Optometry and the law: an introduction Flashcards Preview

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Flashcards in Optometry and the law: an introduction Deck (29):
1

what are the 3 UK legal systems

- English (covering England and Wales)
- Scottish
- Northern Irish

2

what are the 3 main sources of law for Britain from

- Acts of Parliament or Statues
- Common (Case) Law
- European Community Law (binding in all UK Legal systems)

3

for an act/law of parliament to be established/created:
- what does it have to start off as
- what is this approved by
- what does it have to attain to become a law/act

- Start as Bills
- Bills approved by both Houses of Parliament
and
- Attain Royal Assent before becoming law
E.g. Opticians Act

4

what 2 things does additional laws: minister/other competent body, come as and give an example of one related to optometry

- Delegated/secondary legislation
- Statutory instrument

E.g. GOC fitness to practice etc: statutory instrument

From the opticians act, the GOC was formed and the purpose of the GOC was to make further laws and legislations

5

what is a statutory instrument and how is this applied to the GOC and opticians act

- It is to do with additional laws
- Whatever legislations are made, come out as a statutory instrument
e.g. with the GOC, you have a fitness to practice which is part of the opticians act
but it is a statutory instrument in that act and not part of the original opticians act

6

what is meant by Subsequent acts: amend/delete original act and how did this apply to the opticians act

E.g. Opticians Act 1989 repealed the Opticians Act 1958
Opticians Act 1989 was amended in 2005
Statutory Instrument 2005 No. 848 The Opticians Act 1989 (Amendment) Order 2005

so the law keeps changing as time goes on
as the role of an optician in 1958 is not the same as now
e.g. now optoms can manage px's instead of just prescribing rx's
so it is possible to bring forth a new act and can either amend or change the previous

7

who is a common case law made by
what does it work by

- Judge made law
- Not embodied in legislation - so doesn't come from acts of parliament as it doesn't come as a legislation

- Doctrine of precedence- previous similar cases taken into account
i.e. look at previous same case to make their decision
- Find them by looking at records/law reports of all the same legal cases

- so if something happens again, the outcome will be the same/similar as what happened in the previous case

8

what are the 2 divisions of the law

- Criminal
- Civil

9

in a criminal serious case:
how is the defendant indicted
who is the prosecution on behalf of
what is required for a case to become a criminal case
if the case proceeds, where is it held
who decides the verdict
what is the prosecution based on

- Serious cases: indictment

- Defendant ‘indicted’ on criminal charges specified in the indictment by the prosecutor

- Prosecution on behalf of the Crown (the state)

- the magistrate first look at the case to see if theres enough evidence to take to court

- held at crown court

- you have a jury who decide the verdict

- based on the burden of proof - beyond reasonable doubt
(so need a lot of proof if defendant is guilty)

10

in a criminal less serious case:
- how much % of cases does it comprise of
- where is the defendant sent
- what is not present to decide the verdict
- who is the trial before instead to decide the verdict

- Comprise over 90% of criminal cases

- Sent for summary trial magistrates’ courts (not to crown court as more simple procedure)

- No committal or jury

- Trial before a bench of magistrates
Usually three magistrates
Magistrates usually lay persons (i.e. anyone can become a magistrate here)

11

with civil cases:
- what are the claims usually about give examples
- who is the litigation commenced by
- what must they try to prove and what does the proof have to be based on
- what does the choice of court depend on
- where do most civil disputes not reach

- Claims usually about contracts, torts (civil wrongs such as the causing a road accident through negligence) and land disputes

- Litigation commenced by plaintiff (a private person/company/public authority) against defendant

- Plaintiff must try to prove the liability of the defendant on the balance of probabilities

- Choice of court depends on the value of the claim

- Most civil disputes do not go to court at all, and most of those that do, do not reach trial

12

what do the GOC base their litigation on and why

give an example of when an optometrist is a plaintiff in a civil case

- GOC use balance of probabilities - as you dont need much proof/evidence that a person is guilty (easier than beyond reasonable doubt)

- an optom can be a plaintiff if someone doesnt may for their glasses

13

where do civil cases usually take place and what is this based on
what is the value of the money involved in these cases

- Claims of lesser value: County Court

- The civil court that the case goes to depends on the money involved

- Usually less than £15,000 or over £15,000 by agreement

14

what are the 3 tracks that the country courts is divided into

- Small Claims Track : Less than £5000
- Fast Track : £5000 to £15,000
- Multi Track : Over £15,000

15

in a small claims track:
- up to how much can be claimed
- what much the claimant have to do
- what proof does the claimant need
- who is the summons sent to
- what can the defendant do
- what happens if the claim is disputed
- what is the small tracks claim designed for

- Can claim up to £5,000 in unpaid debt or for personal injury. E.g. customer owes money for glasses

- Claimant completes claim form (can do online) including nature of claim and various parties involved

- Needs proof of debt/claim either written or witness

- Set fee for procedure

- Summons sent to party involved

- Defendant can pay claim or dispute part or all of claim

- If claim disputed case heard before judge

- Procedure informal

- Designed to reduce court costs e.g. glasses dont cost that much

16

what is the value of substantial civil cases and where are they heard

- over around £15,000
- are heard in the High Court

17

which 2 people can an optom be tried by

- GOC
and
- a criminal/civil court

e.g. if you miss a RD, the GOC will look and take action against you by a disciplinary action. But the patient could also go to the civil court and claim that they lost their eye and want compensation for this

18

what is a contract what 5 elements does it consist of/require

- Legally binding agreement between two or more parties

Elements of a contract:
- Offer and Acceptance
- Intention to create legal relations
- Consideration
- Capacity
(is person your making contract with reasonable/able to do whats agreed. e.g. not with a 4 year old)
- Consent (on both sides)

19

what is an offer and what 3 things can be done with it

- Expression of willingness to contract on certain terms, made with the intention that it shall become binding (on the offeror) as soon as it is accepted by the person to whom it is addressed (the "offeree“)
e.g. if you booked an eye test and you tell them it costs £10, then a contract exists

An offer can:
- lapse
- be revoked
or
- rejected

e.g. you can have an offer and you put a deadline on it and that person does not accept the offer until that date = then offer lapses and you can reject that offer

20

what is different to an invitation to treat
what is an invitation to treat
what does it refer to
name 5 examples of an offer to treat

- Genuine offer is different from "invitation to treat’’

- It is an indication of a person’s willingness to negotiate an offer

- Refers to when a party is merely inviting offers, which they are then free to accept or reject

Examples:
- Auction
- Display of Goods
- Advertisements
- Statements of price
- Tenders

21

how is the display of good an example of an offer to treat in an opticians

the display of glasses
px tries them on and then orders the lenses to put into them

22

what is an acceptance
how is this for a binding contract

- Final and unqualified acceptance of the terms of an offer
so can't later change things

- For a binding contract the acceptance must exactly match the offer
e.g. is someone is selling glasses for £10 and then accepting to buy them for £10

- The offeree must accept all the terms of the offer

23

what does the intention to create legal relations stat about business agreements and social and family arrangements

- Business agreements are presumed to be legally binding

- Social and family arrangements are not, unless it is stated that this is the intention

24

what is a consideration and how does this apply to an eye test
what things does as consideration consist of
what things does a mere promise consist of

- Each side must promise to give or do something for the other
e.g. px pays £10 for an eye test so the optometrist performs the eye test

Consideration
- Sufficient not adequate
- Monetary value (a token value, it should be paid)

Mere promise
- Keeping spectacles aside
and doesn't pay a deposit, as we did something for them and they didn't for us, so no consideration was made unless they pay a deposit)
- Non-payment of glasses
- Non-attendance at eye test
if px does not turn up for eye test = they're breaching a contract, but most opticians won't do anything about it. but there is a legal relationship between both parties

25

what is meant by capacity of a contract and list 3 people who may not have the capacity to agree to a contract

- Valid contract: any person recognised by law with legal personality

- Certain groups incompetent to contract
E.g.
- Minors (under age 18)
- persons of unsound mind
- Drunkards

26

who is consent required by when making a contract

both parties

27

what 3 conditions does the sales of goods act 1979 state

- Goods should match any description given to them
- Goods should be of satisfactory quality
- Goods should be reasonably fit for any particular purpose that was made known to the retailer

28

what three conditions does the supply of good and services act 1982 state about a person providing a service must do so with
and what is the one exception to this

A person providing a service must do so with
- Reasonable care and skill
- Within a reasonable time
- And for a reasonable charge

Unless there was a prior agreement with the customer over these matters

29

what does the Unfair Contract Terms Act 1977 Unfair terms in Consumer Contracts Regulation 1999 state about consumers

- Consumers cannot have their legal rights removed in sale of goods contracts

- Offence to mislead consumers about their legal rights

- For e.g. Notices such as ‘We do not give refunds cannot be used’