Health Law and Ethics Lecture 01

HEALTH LAW AND ETHICS
LECTURE 01
Introduction to Law, Ethics and
Bioethics
BelindabAdzima-Yeboah
Learning Objectives
• List three general areas that are used to
understand the development of law.
• Explain what the purpose of law has on society.
• List the five principles of law and provide an
example of each.
• Give an example of the three different types of
law writing.
• Provide a list of the three branches of Ghana
government.
• Determine what unique powers are provided to
each of the three branches of the government.
PAHS 658 - Lily Yarney

• The word jurisprudence comes from the Latin
word juris meaning “law” or “legal,” and the
word prudentia, meaning “knowledge.”
• Thus, jurisprudence means “knowledge of the
law.”

Introductory Question

The Law
• Not intentionally written to be confusing
• Result of complex society
• First written to act as a list of instructions
• As society grew and became more complex
• The law also grew and became more

complex

The Law
The Human Body The Law
• Anatomy • Anatomy
– Body structures – The courts
• Physiology • Physiology
– How the body works – How the law works
• Pathophysiology • Pathophysiology
– What happens when the – What happens when the
body does not work as law does not work as it
it should should

Law Foundations
• Three different subject areas provide
the foundation needed to understand
the law:
1.The purpose of law
2.The writing of law
3.The structure of law

The Purpose of Law
• Each law serves some purpose though it may
not always be apparent
• Similar to rules parents give their children for a
variety of reasons:
– Protect you from injury
– Maintain family order and keep the peace
– Demonstrate acceptable or appropriate behaviour.
• Society also needs rules for it to function smoothly,

hence the law (a rule developed by society)

Principles of Law
• The principles of the law is what the law is trying to do for
us.
• Five main:
1. The Harm Principle
2. The Parent Principle
3. The Morality Principle
4. The Donation Principle
5. The Static Principle

The Harm Principle
• Some of the laws that are written focus on the principle of harm
To protect against infliction of harm:
• Person causing harm should be responsible
• Without harm laws, the strong in society would overtake the

weak
• Examples
– Tort law which most health care laws are protect the patient from Harm.
(eg. Negligence)
– Criminal laws

Eg. Helmet laws help protect members of society from serious
harm.

The Principle of Harm and Damages
• Within the law, harm is referred to as
damages.
• Any civil lawsuit that is filed must specifically
state what harm a person has received.
• The principle of harm and damages within the
law are closely related concepts.

The Parent Principle
• The government when enacting in
law, sometimes takes on the role of
a parent
• Parens patriae (father of the people). This

is when the government acts as a parent

A coin with an image of Caesar and the words parens patriae. Caesar was
often referred to as the father of the people. Courtesy of Australian Center
for Ancient Numismatic Studies.

The Parent Principle
• Lawmakers occasionally have to make difficult and
sometimes unpopular decisions when they act as
parents of the people to:
• Keep society from harm
• create ethical issues
• Some of the most complex ethical issues in healthcare

are based on the parent principle.
• Examples
– Public health laws
– Laws related to illegal drug use
– Child Protection LawsPAHS 658 - Lily Yarney
The Principle of Parenting and Religion
• Some religions discourage their adherents
from receiving specific treatments, including
advanced medical treatments.
• However, the courts will sometimes step in

and, acting as parens patriae, will require that
healthcare services be provided to children,
contrary to a parent’s religious beliefs.

The Morality Principle
• Usually based on religious beliefs
• This law focuses on type of behaviour society deems

right or correct
• What society allows and does not allow or will not

tolerate
• Usually controversial, dictate what is right and wrong

• Examples
– Abortion laws
– Laws related to cloning

The Donation Principle
• Focuses on the rights of the less
fortunate in society
• Provides help to those in need
• Examples Social Services
– Low-income housing
– Social Welfare programs
– Disability laws
– Organ donation laws

The Donation Principle
• Example: In America, Many states

have passed laws allowing drivers to
indicate whether they are an organ
donor on their driver’s license.
• This type of law is an example of the

Donation Principle.

The Static Principle
• Maintains the status quo within
society
• Rules to help society function
• Examples
– Administrative laws
– Licensing and credentialing
The Static Principle and Credentialing
• Depending on the type of health profession and
the country that you live in, there are
requirements for obtaining certain credentials,
such as licensure or certification.
• The laws related to credentialing are an example

of Static Principle laws.
• The government usually Mandates professional
bodies to enact these laws and enforce them.
How the Law is Written
• The healthcare industry is highly regulated with
a lot of rules and laws to be followed
• Laws are like instructions
• To follow the instructions, you have to read

them and understand them
• Different styles of law writing:

1. Apodictic law writing
2. Casuistry law writing
3. Definitional law writing

Apodictic Law Writing
• Apodictic: related to an expression of absolute certainty
• Statements of absolute certainty
• Easy to write
• Because they typically, include only a few words

(eg.“Thou shall not kill”)- killing is not allowed!
• Problems with apodictic law writing:
– They do not leave room for interpretation (eg what about killing someone
in self defense, war, or allowing someone to die?)
– Do not provide a consequence, punishment or result for breaking the law

Casuistry Law Writing
• Casuistry: a method of reasoning or legal analysis using
conditions and results or course and effect method
• Informs us of both the law and the result
• Written using a simple formula

– Condition and result
– If this occurs (condition) that happens (result)
• These laws are important not only because of their historical survival, but
because they were written in the casuistry method
– Eg: If you strike and kill a slave (the condition), the

slave’s wife must go free (the result)
Casuistry Law Writing
• They are more specific, and tell exactly when
the law applies
• Problems with casuistry law writing:
– Do not leave room for interpretation

– The Moslem Shairi Laws. If you do this, this will be
done to you.
– One law for every conceivable incident (eg.

Separate laws for when killing in self defense
applies; whether killing in war is allowed; and
whether allowing someone to die constitutes
killing)
Definitional Law Writing
• To combat the overwhelming number of laws that are
needed with casuistry style, definitional laws were
created to provide one law that would cover a variety
of situations
• (One law can be Interpreted in different ways.
• Similar to casuistry writing
• Uses conditions and results
• Can apply to many different situations
• Written like a dictionary definition

Definitional Law Writing
• One law can apply to many different
situations
– Eg. Murder is the unlawful killing of another
person, with malice aforethought (thinking
about it ahead of time).
• Using the definition:
Is killing someone in self-defense murder?

Definitional Law Writing and Legal
Analysis
• The process of using a law's definition is referred
to as performing a legal analysis.
• Lawyers, judges, and courts use this definitional

approach to perform a legal analysis to
determine, for example, if a person has
committed an offense or not.
• Performing a legal analysis is a key part of

reading, understanding, and applying the law.

The Structure of Law
• Once laws are written, the next step is to provide a
mechanism for their application
• The structure of law includes all the mechanisms that are

utilised to apply the law
• Different words are used to describe laws, are: legislation,

statutes, ordinances, or acts.
• While each term has some slightly different meanings ,

each essentially mean the same thing—a law passed by
governmental body that has the authority to create laws.

The Structure of Law
• Mechanism for the application of law:
– How does a law become applicable in a
Country?
– Who can write laws?
– Who Approves the Law?
– Who interprets the law?
– How is the law enforced?

Constitution of the Republic of Ghana
• Who Enacts or Writes the Law?

• A Consultative Assembly:
• Write laws to develop a new form of
government
• The Legislature
• Write laws for various sectors in the
Country

LAWS OF A COUNTRY
Constitution of the Republic of Ghana
Constitution accomplished three goals
1.Established the government

2.Limited government power so
individual liberties protected
3.Determined the relationship between
government and the people of Ghana

The Preamble
Assignment:
Get a Copy of the Constitution of Ghana, and
Write out the Preamble
(The Declarative Statement)

THE CONSTITUTION
THE CONSTITUTION
(1) The Sovereignty of Ghana resides in the people of

Ghana in whose name and for whose welfare the powers
of government are to be exercised in the manner and
within the limits laid down in this Constitution.
(2)
The Constitution is the supreme law of Ghana and any
other law found to be inconsistent with any provision of
this Constitution shall, to the extent of the inconsistency,
be void.
Features of Constitution of the
Republic of Ghana
• In the Constitution, power is vested in the
people, not one individual.
• The constitution created a government with

three branches:
1) The Executive Branch
2) The Legislative Branch
3) The Judicial Branch

THE LEGISLATIVE BRANCH
• Provided with the power to ENACT or
CREATE laws
• After every election, a new Parliament is

inaugurated, and the Parliament usually works
to create or amend laws

Parliament House, Accra


Types of laws Enacted in
Parliament
• How are the laws enacted or created
• Prior to creating laws, the common law existed
• Common laws are laws that existed as traditional laws, and then eventually
accepted as laws of the Country.
• Core principle used in development of the common law is the concept of

precedence (a decision by a court in the past used to determine the outcome of
a current case).
• Once a court interprets the law a certain way, all inferior courts are then
required to follow that interpretation
• Used in early colonial times
• Used until new laws were created by Parliament of the 1st Republic
• Still exist today but is rarely used

Common Law
• Under the common law, if a man and woman live
together for an established period of time (about
seven years or more) they can be granted the same
rights and privileges as a married couple, even though
they are not married.
• While common law marriage has been replaced in
many countries around the world, there are times
when the courts may recognize a man and a woman as
common law spouses.
• Assignment: Find out whether common law marriage
is recognized in Ghana. If it is, identify what the
requirements are.

The Executive Branch
• President of the Republic of Ghana, and his cabinet
and advisors
• Some debate over creating a position similar to a king
• Responsible for carrying out the day-to-day operations

of the country
• Function: To Approve and EXECUTE the law
• Eg: Chief Justice Georgina Woode administered the

oath of office to John Mahama during the Presidential
Inauguration Ceremony, in Accra on January 7, 2013.

The Judicial Branch
• Functions
• To interpret the law
– To settle disputes about the law
– Ensures adherence to the law
• Power: To INTERPRET the law

– Not arbitrary
– Based on precedence
– Used the common law
Functions of Government
Arm/Branch of Government Mandate
• Legislature • Power to create laws
• Executive • Power to execute laws
• Judiciary • Power to interpret laws

PURPOSE OF BRANCHES OF
GOVERNMENT
• Checks and Balances
• Incorporated so that no one branch
would become too powerful
• Checks: Before a branch’s power is

used
• Balances: After:

Checks and Balances
1. Ensures no branch is more powerful than the other two.
2.Provide a system of checks on a branch’s power before it is used.
•E.g. The legislature is provided with the power to create laws, but in
order to keep that power in check, the executive is given the
opportunity to veto a law that has been created.
•The veto power of the executive ensures that the legislature does not
become too powerful
•Provide a system of balance on branch’s power after it is

used.

The checks and balances system is an integral part of
democracy. It ensures that no one branch becomes more
powerful than the other two

Other Bodies Contributing
to Checks and Balances
Eg:The Constitution Review Commission was set up under the
Constitution Review
Commission of Inquiry Instrument, 2010, C.I. 64, with the following
terms of reference:
(a) To ascertain from the people of Ghana, their views on the

operation of the
1992 Fourth Republican Constitution and, in particular, the strengths
and weaknesses of the Constitution;
(b) To articulate the concerns of the people of Ghana on

amendments that may be required for a comprehensive review of the
1992 Constitution; and
(c) To make recommendations to the Government for consideration

and provide a
draft Bill for possible amendments to the 1992 Constitution

Court Case
You may read on:

Marbury v. Madison
U.S. (1 Cranch) 137 (1803)
United States Supreme Court
Marbury v. Madison, 5 U.S. 137 (1803), was

a landmark United States Supreme Court case in which the
Court formed the basis for the exercise of judicial review in
the United States under Article III of the Constitution. The
landmark decision helped define the boundary between
the constitutionally separate executive and judicial branches
of the American form of government.

Assignment
1. What credentials are you working toward?
and how does the Static Principle relate to
credentialing laws.

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HEALTH LAW AND ETHICS

PAHS 658 - Lily Yarney

PAHS 658 - Lily Yarney

PAHS 658 - Lily Yarney

• First written to act as a list of instructions

• As society grew and became more complex

• The law also grew and became more

PAHS 658 - Lily Yarney

PAHS 658 - Lily Yarney

1.The purpose of law

2.The writing of law

3.The structure of law

– Protect you from injury

– Maintain family order and keep the peace

– Demonstrate acceptable or appropriate behaviour.

• Society also needs rules for it to function smoothly,

PAHS 658 - Lily Yarney

1. The Harm Principle

2. The Parent Principle

3. The Morality Principle

4. The Donation Principle

5. The Static Principle

To protect against infliction of harm:

• Person causing harm should be responsible

• Without harm laws, the strong in society would overtake the

PAHS 658 - Lily Yarney

PAHS 658 - Lily Yarney

PAHS 658 - Lily Yarney

• Parens patriae (father of the people). This

PAHS 658 - Lily Yarney

PAHS 658 - Lily Yarney

• Keep society from harm

• create ethical issues

• Some of the most complex ethical issues in healthcare

• However, the courts will sometimes step in

PAHS 658 - Lily Yarney

• This law focuses on type of behaviour society deems

• What society allows and does not allow or will not

• Usually controversial, dictate what is right and wrong

– Laws related to cloning

PAHS 658 - Lily Yarney

PAHS 658 - Lily Yarney

• Example: In America, Many states

• This type of law is an example of the

PAHS 658 - Lily Yarney

• Rules to help society function

• The laws related to credentialing are an example

• Laws are like instructions

• To follow the instructions, you have to read

• Different styles of law writing:

PAHS 658 - Lily Yarney

• Statements of absolute certainty

• Because they typically, include only a few words

• Problems with apodictic law writing:

– Do not provide a consequence, punishment or result for breaking the law

PAHS 658 - Lily Yarney

• Informs us of both the law and the result

• Written using a simple formula

– Eg: If you strike and kill a slave (the condition), the

• Problems with casuistry law writing:

– Do not leave room for interpretation

– One law for every conceivable incident (eg.

• Similar to casuistry writing