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The Interface of Law and Medicine in the South Pacific (Working Paper) [2002] JSPL 14; (2002) 6 Journal of South Pacific Law

The Interface of Law and Medicine in the South Pacific

By James Baledrokadroka

INTRODUCTION

Medical law and medico-legal issues involve a relatively new subject area, and this is especially so with respect to the South Pacific region. Previously medical law was regarded as a mixture of criminal law, tort, contract and property concepts. Nowadays medical law has emerged as a subject in its own right, but there is still debate as to what, if anything, makes it a discrete area of the law. Medical law does not respect the traditional compartments with which lawyers have become familiar, such as torts, contracts, criminal law, family law and public law. Instead medical law cuts across all of these subjects and today must be regarded as a subject in its own right...it is a discrete area concerned with the law governing the interactions between doctors and patients and the organization of health care.

In the South Pacific region, the development of medical law as a subject in its own right, is still very much in its early stages. Case authorities in this paper will reveal that principles of torts law, Contracts and Administrative Law are still applicable to the issues of Medical law especially medical negligence.

This paper is concerned with medical negligence in the South Pacific. The main focus of the researches undertaken was on the issue of limited resources of Health authorities in the region. The thesis I wish to put forward is ; Can limited health resources be a basis for suing in medical negligence in the South Pacific? and alternatively, is the lack of these health resources a valid legal defence? The fact is no resources are infinite and a compromise must be achieved between demand and supply. The distribution of scarce resources poses some of the more complex ethical problems of modern medicine and permeates every aspect of its structure. There is little law established on the subject. To determine whether negligence is alleged, I have tried to research the duty of care of health authorities by referring to statutory and common law authority. I have then discussed these authorities comparatively, with those of other jurisdictions beyond the region.

The issue of limited health resources and their allocation is very relevant in the region. There is a continuing debate whether the criticisms of our health care systems reflects an unrealistic public expectation of the range and quality of services that could be reasonably expected to provide. On the other hand, one could ask if the regions health care delivery system are responsive enough to the needs of patients within the confines of the resources that are currently available. This paper also seeks to discuss some of these medico-legal issues, as well as essentially, being a research paper on the possible development of the law on Medical negligence in the South Pacific.

a) The Duty of care of the Health Care Provider.