Topic X Introductionto

Law
7
LEARNING OUTCOMES
By the end of this topic, you should be able to:
1. Define basic concepts and principles of law;
2. Describe the sources and types of law; and
3. Relate tort law with issues in nursing practice.

X INTRODUCTION
The role of professional nursing has expanded rapidly within the past few years
to include increased expertise, specialisation, autonomy and accountability, from
both a legal and an ethical perspectives. This has forced new concerns among
nurses and a heightened awareness of the interaction of legal and ethical issues.
Areas of concern include legal issues, professional acts and regulations,
employment rules and ethical principles.

This topic gives you an overview of the legal system and specific doctrines used
by courts to define legal boundaries for nursing practice.

This topic is not meant to be a complete legal guide to nursing practice. Students
are advised to seek other legal textbooks.
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7.1 DEFINITION OF LAW

Earliest notion of law was the pronouncement of a ruler acting according to what
he thought to be his divine right. A workable definition of the term law would
be those rules of human conduct, established and enforced by authority, which
prohibit extremes in behavior so that one can live without fear for oneself or
ones property.

7.1.1 Sources of Law

SELF-CHECK 7.1

In a democratic country like Malaysia, who makes and enforces laws?

There are many different sources of law affecting health care providers and
their practices. Some laws affect nurses personally, such as constitutional
amendments, whereas other laws such as administrative laws regulate nurses
professional acts.

In Malaysia, the ruling Government which is elected by the people make and
enforce laws. Article 160 of the Federal Constitution provides a three-fold
classification of the different types and sources of Malaysian Law as shown in
Figure 7.1.

Figure 7.1: Three types of Malaysian Law

98 X TOPIC 7 INTRODUCTION TO LAW

(a) Written Law (Statutory Law/Public Law)

The Written Law consists of the Federal Constitution which is the supreme
law of the land and the Constitution of each State of the Federation. The
acts are passed by Parliament and various State Assemblies. The subsidiary
rules and regulations are made by Ministers and other persons by virtue of
powers given to them by Acts of Parliament of State enactments.

(b) Common Law

A body of law developed from an accumulation of judgments arising from
particular cases. The body of case law that developed from adjudication of
kings and later of judges is known as Common Law. Common law or
judge-made law is to be contrasted from statutory law.

Whenever a case comes up before a court, a decision is made by the court

upon the facts of the case before it. This legal decision may contain a
principle which would be used in subsequent cases as a guide or precedent.
Most of these precedents are recorded in volumes known as case reports.
These recorded precedents are referred to as the common law. Precedents
are created by the power of judges to interpret existing law whether it is a
previous precedent or some legislation. By so interpreting they create new
precedents and so the common law grows.

(c) Customs or Practices

Customs or Practices deal with any custom or usage having the force of
law in the Federation. Usage derived from personal laws of different
communities e.g. adats of the Malays and the Hindu and Chinese
customary laws.

SELF-CHECK 7.2

What is your interpretation of law? Why must law exist?

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7.1.2 The Malaysia Court Hierarchy

See Figure 7.2 for an overview of the Malaysia Court Hierarchy.

Figure 7.2: The Judicial System in Malaysia

The system of courts throughout Malaysia was established via Article 121 of
the Federal Constitution, the Courts of Judicature Act (revised 1972) and The
Subordinate Courts Act (revised 1972).

A court is a gathering, presiding over by a judge or other person invested with

judicial power, which follows the rules of procedure prescribed for that court,
and is in some cases assisted by a jury. The judge, or where there is a jury, the
judge and jury, determines such matters as:
Whether certain facts have been established.
Where required, the legal obligations and rights of a party or parties.
The punishment appropriate for criminal or other offences.
The interpretation of statutory provision, the provisions of a will, or of a
contract.

Every court has a specific jurisdiction or power to hear cases. The word
jurisdiction has two aspects;
The subject matter before the court; and
The geographical area which the Court covers.
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In law, courts have the power to deal with matters that have been specifically
stated to be within a certain geographical area. Further each court has certain
civil and criminal powers. On the civil side, it can only try actions involving
subject matter of a certain value. On the criminal side courts are limited by the
punishment that they can impose.

Courts are arranged in a hierarchy, from the lowest courts (Magistrates Courts)
to the highest courts (Supreme Court). Decisions made in the higher court have
precedence over decisions made in the lower courts. This means that when one
has received a judgment of a lower court, one can appeal to a higher court to
have the lower courts judgment quashed, and either a different judgment made
or a new hearing granted. The decision of the higher court then applies, and is
binding on all courts lower in the same hierarchy in the jurisdiction. Precedent is
the word used to describe the system by which the common law is passed on to
influence later decisions.

7.1.3 Differences between Each of these Malaysian

Courts
(a) The Supreme Court
The Supreme Court is the highest court in the land. It is essentially an
appellate Court hearing appeal as from the High Court. It has also original
jurisdiction to hear disputes between States of the Federation or between
any State and the Federation and it can decide whether any State or Federal
law has been made by the State or Federal government exceeding their
authority. Further it can decide on any question on the Federal Constitution
referred to it by the Yang di-Pertuan Agong.

(b) The High Court

The High Court has an original, appellate and supervisory jurisdiction. In
its original jurisdiction it has power to hear all civil and criminal matters
regardless of the amount or sentence involved. However in civil matters
only matters above the jurisdiction of the subordinate Courts are filed in the
High Court.
Criminal cases have normally to be heard first in the Magistrates courts by
way of a preliminary hearing before they can be brought to the High Court.
However the Public Prosecutor may issue a certificate requiring the Court
before which the case is pending to send the case to the High Court directly
for trial.
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In its appellate jurisdiction, the High Court hears appeals from the
Subordinate Courts. By virtue of its supervisory jurisdiction the High Court
may require any case in the Subordinate Courts to be brought before the
High Court for hearing.

(c) Sessions Court

A Sessions Court has the power to try all civil proceedings where the
amount in dispute or value of the subject matter does not exceed
$100,000/. However, parties may have agreement in writing to agree that
the Sessions Court shall have jurisdiction over any amount. The Sessions
Court has however no jurisdiction on matters relating to immovable
property (with some exceptions), specific relief, administration and probate,
legitimacy and guardianship of infants and divorce. In its criminal
jurisdiction, the Sessions Court can try all offences other than those
punishable with death.

(d) Magistrates Courts

First-class Magistrates have power to hear civil proceedings where the
amount in dispute or value of the subject-matter does not exceed $25000/.
A First Class magistrate may also hear and determine appeals from the
Penghulus Court. In his criminal jurisdiction he can hear all offenses for
which the maximum term of imprisonment does not exceed 10 years or
which are punishable with fine only. He is empowered to try offenses
under Section 392 (robbery) and Section 457 (trespass) of the Penal Code.
The First Class Magistrate may pass any sentence allowed by law not
exceeding:
(i) 10 years of imprisonment
(ii) A fine of $10000/
(iii) Whipping up to 12 strokes
(iv) Any sentence combining any of the sentences above.

An appeal from the decision of the Magistrates Court lies to the High
Court.

Second-Class Magistrates have power to try original actions or suits of a

civil nature where the Plaintiff seeks to recover a debt or definite amount of
money not exceeding $300/. On the criminal side, a second-class
magistrate may try offenses where the maximum term of imprisonment for
those offences does not exceed 12 months imprisonment or which are
punishable with a fine only. A second class Magistrate may pass any
sentence allowed by law not exceeding:
102 X TOPIC 7 INTRODUCTION TO LAW

(i) Six months imprisonment

(ii) A fine of not more than $1000/, or
(iii) Any sentence combining either of the above
(iv) Any sentence combining any of the sentences above.

An appeal from the decision of the Magistrates Courts lies to the High
Court.

(e) The Juvenile Court

This is a special court under the Juvenile Act of 1947 (revised 1972), which
is for offenders below the age of 18. The President of the Sessions Court
presides with the help of two assessors chosen from the Public. Hearings
are conducted in an a informal atmosphere and are closed to members of
the public. The Court has power to try all offenses except those punishable
by death. Guilty offenders may be sent to an approved institution or
discharged upon a bond with or without sureties. Any person aggrieved by
any findings of the Court may appeal to the High Court.

(f) Penghulus Court

Penghulus Courts are peculiar to West Malaysia. A Penghulus Court has
power to hear civil proceedings where the amount sought to be recovered
does not exceed $50/ and in which all the parties are persons of an Asian
race, speaking and understand the Malay language. On the criminal side,
the Penghulus Court may only try offenses of a minor nature which are
specifically enumerated in his Kuasa (empowering document) and which
can be adequately punished by a fine not exceeding $25/. A person
charged in a Penghulus Court may elect to be tried by a Magistrate Court.
An appeal against the decision of the Penghulus Court may be made to a
First Class Magistrate.

(g) Native Court

Native Courts are part of the judicial system of Sabah and Sarawak. They
have power to deal with matters concerning native customs where the
parties are local natives. The Native Courts have power to try civil and
criminal matters cases arising from a breach of native law or custom where
all the parties are natives or, in respect of a breach relating to religious,
matrimonial or sexual matters where one of the parties is native.

(h) Tribunals
Apart from the main system of courts there are various bodies which are
often referred to as tribunals. These tribunals have varying functions and
procedures which are set out in the legislation which creates them.
 TOPIC 7 INTRODUCTION TO LAW W 103

(i) The Industrial Court

Industrial Courts are special courts set up to deal exclusively with trade
disputes. A trade dispute is defined as any dispute between employers and
workmen or between workmen and workmen or between employers and
employees which is connected with employment of any person.
However parties cannot go directly to Industrial Court. They have to go to
the Minister of Labour who may refer such dispute to the Industrial Court.
Though the Industrial Court is not part of the main system of courts, the
High Courts supervisory powers may be invoked to examine the decisions
of the Industrial Court. If an employee is dismissed or terminated and
chooses to challenge such dismissal or terminal he can as a workman take
the matter up to the Industrial Court.
The Industrial Court deals with matters referred to it in a less formal way
than the High Court. Rules of evidence are applied rather liberally. The
Court pursues a nebulous ideal known as social justice in deciding upon
cases before it.

7.1.4 Types of Law

There are a number of ways to classify laws. Classifications are based on whether
the laws are substantive or procedural law.

(a) Substantive Law

Substantive law is that part of the law which tells us what we can do, must
do, or must not do, as well as the interpretation of the law, setting out right
and obligations, etc. It determines the specific wrong, harm, duty or
obligation that causes an action to be brought to trial. It is divided into two
sub-branches: civil law and criminal law.
Civil law in turn has many sub-branches such as constitutional law,
commercial law contract law, bankruptcy law, administrative law and
family law. It recognises and enforces the rights of individuals and
organisations.
Criminal law defines crimes and punishment.

(b) Procedural Law

Procedural law includes the various legal procedures required to bring a
dispute to trial and determines the rules that parties must follow to litigate
a matter before a court. Thus it regulates the statue of limitation and the
process for administrating evidence at trail. It includes such sub-branches
as the law of evidence and court rules.
104 X TOPIC 7 INTRODUCTION TO LAW

See figure below 7.3 for the types of law.

Figure 7.3: Types of law

In a Nutshell
The legal system is a complex combination of laws, rules and regulations that
are created at both federal and state levels. Nurses must stay informed of the
legal scope of their nursing practice as society and profession changes. A basic
knowledge of the law and how it works helps nurses avoid litigation while
giving them the confidence to practice more completely.

7.1.5 Differences between Civil and Criminal Law

Disputes at law arise when a person or body claims that another has done them a
wrong.

Criminal actions are instigated by the Crown (in the guise of the State, through
the police) claiming a person has committed a wrong against it by committing a
crime. A civil action is instigated by an individual, who claims that another
person has wronged (harmed) them, either physically, mentally or economically,
or is likely to cause such harm by the proposed actions.
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Criminal cases are prosecuted by the State. They are officially designated. If the
prosecution is successful, the convicted person is punished. The Crown is not
interested in compensating the victim in these cases, only in punishing the
offender.

Civil cases, on the other hand are brought about mainly by:
One person against another, claiming damage wrongfully inflicted on her or
him, or a debt owing to her or him, and seeking compensation from that
person. In this type of case the first person is suing (not prosecuting) the
other. The person suing is called the plaintiff, the person being sued is called
the defendant

or
A person seeking endorsement of a claim to certain rights and privileges as
against another. That person is called an applicant of the court and any
person or body opposing the claim is called the respondent.

The Crowns only interest here, through the judges, is that the contest in court be
carried out according to the established procedure and rules of evidence, it acts
as a referee in both types of case (the judges of course have the added role of
interpreting the law and determining the facts). Civil cases are designated, the
name of the plaintiff or applicant first, followed by that of the defendant or
respondent.

In criminal cases the prosecution has to convince the jury beyond a reasonable
doubt that the accused is guilty. This means that unless the prosecution has left
no reasonable doubt in the jurys mind as to the accused guilt, despite the
accusers attempts to create that doubt, they must acquit.

In a civil case the burden on the plaintiff or applicant amounts to convincing the
court on the balance of probabilities. This is not as difficult as the standard of
proof for a criminal case. The court must find a defendant not liable unless the
plaintiff has proved her or his case to that standard; the defendant does not have
to prove her or his case, only throw doubt on the plaintiffs arguments.

Criminal law deals with wrongs which are committed against the state rather
than against individuals. This is reflected in the fact that offenders are prosecuted
by the state. The interest of criminal law is in the punishment of the perpetrator,
not in the fate of the victim, who must pursue remedies in civil actions.
106 X TOPIC 7 INTRODUCTION TO LAW

It is rare for a charge of criminal negligence to be laid against a health worker. It

may, however be found where something has gone horribly wrong, with
unintended results, and it is established that the health care in question either
intended some degree of harm to occur, or was so reckless with regard to human
life or safety that a jury finds their actions serious enough to amount to criminal
act. There is no definition of criminal negligence in the legislation (where it
involves an unintended death it may be termed involuntary manslaughter), so
we must look to the case law for it.

7.1.6 Tort Law

The law of negligence, also known in the health care context as malpractice law,
is part of what is known as tort law. The term is derived from the old French
word meaning wrong and this branch of the law deals with injuries caused by
one person to another. The doctrine of negligence applies to all areas of human
activity, but its operation in relation to health care has some special features.

Tort law is one of the ways in which nurses, midwives and health visitors are
held accountable. It differs from other types of law in a number of ways.
Criminal law established standards in behalf of society, and when the rules are
broken society punishes the wrongdoer irrespective of the victims position. The
wrong is committed against society as a whole. Tort law is concerned with the
relationship between individuals.

When mishaps occur, victims can choose whether they wish to sue the person
who caused the action. If they decide to sue, and in their case, they will receive
compensation, which is designed so far as possible to put them in the position in
which they would have been if nothing had happened to them. The major
function of negligence actions therefore, in health care as elsewhere, is to provide
compensation for the victims of accidents.

The second main function of negligence is to provide an incentive to practitioners

to attain a high standard of care. The fact that falling short of the proper
standards of care may lead to being sued and paying out money is thought to
deter poor practice.

The standard of care in negligence does not represent the quality of care that
nurses, midwives and health visitors should aspire to provide, it establishes the
basic standard of practice that patients are entitled to expect as a minimum.
 TOPIC 7 INTRODUCTION TO LAW W 107

Legislative and legal controls have been established to clarify the boundaries
of professional practice and to protect patients.
There are some definite answers and guidelines to assist nurses for legal and
legislation areas.
However these controls are constantly evolving and the nurse must
continually be aware of these changes as they affect the scope of practice.

Appellant Duty of Care

Appeal Libel
Assault Legislation
Battery Legislature
Burden of proof Negligence
Case Law Plaintiff
Contract Tort
Defamation

1. Ethics is a body of knowledge that deals with:

(a) Primarily legal aspects of health care
(b) Trying to get individuals to behave correctly
(c) Th shoulds and should nots of individual behavior or actions.
(d) Religion only
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2. Common laws refer to:

(a) Laws that societies have in common
(b) Ethical ideas only
(c) Statutes
(d) Case law

1. According to Marquis & Huston, Ethical dilemmas can be defined as

having to choose between two equally desirable or undesirable alternatives.
How far does this statement influenced your decision making process.