Riminal and civil litigation; Mental Health Law

This coursework contains 2 parts. Both parts must be completed.

1. Mens Rea in criminal law reflects a Defendantas culpability. Critically evaluate this statement.

(The answer to Part A must not exceed 2,500 words in total. The marker will not read beyond that point)

You should answer both questions from this part. There is a word limit of 2500 words for this part.

Read the following scenario:

Alan suffered serious injuries to his head in an accident at work. He fell from incorrectly erected scaffolding. He was immediately taken to hospital in an ambulance.

On arrival at Accident and Emergency, the senior house officer on duty, Dr Black examined Alan. He requested x-ray examination of the lumbar spine and skull. The radiographer was unable to use the usual equipment in the Accident room to take the X-ray images, as there was a fault transferring the images to the computer system, so he had to rely on an older mobile X-Ray machine. This resulted in older style film images being produced. Dr Black examined the images and focussed her attention on the fractures to Alanas lumbar vertebrae which needed immediate surgical intervention. The skull images were not very clear, and although she looked at them closely, she did not notice that there was a fracture to the skull. Immediately after Dr Black had assessed Alanas condition, four victims from a multiple road accident were brought into A & E. Alan was taken to a holding bay before being sent to theatre 2 hours later.

One of the student nurses, Nurse Sarcevic was checking the X-rays, as she thought they could form part of her portfolio towards evidence of her time in A & E, when she noticed the skull fracture. She approached Dr Black and told him that she thought there was a problem. Dr Black refused to look at the X-rays again and shouted a?Go away student nurse, I am too busy to help you pass your exams.a? Nurse Sarcevic ran away in tears and did not mention the fracture to anybody else. Alanas wife was in the waiting area at the time and heard this altercation.

Midway through the operation Alan suffered convulsions and then respiratory and cardiac arrest. The surgeon Mrs Friedel and her team tried to stabilise Alan, but he left the operating theatre in a grave condition and on a ventilator.

After further investigation, it was discovered that Alan had suffered a brain haemorrhage on the operating table. He was in a coma for 5 days. When he regained consciousness it was realised that he had suffered permanent brain damage.

Alanas sister-in law is a solicitor and she asked to see the medical records of his admission to hospital. However, she was told that they could not be found. The X-rays had also disappeared although Mrs Friedel recalls they were available during the surgery. The solicitor suspects that Dr Black has deliberately destroyed the records and X-rays as she remembers a similar problem in this hospital on a case a few years ago.

1) Consider the legal issues that this case reveals.

a) What avenues for redress a and against whom can be pursued on Alanas behalf?

b) Would your answer be any different if Dr Black was at the end of a 36 hour shift, having been forced to extend his period on duty by 10 hours as other staff were absent with flu?

2) Representative proceedings are brought on behalf of Alan for negligence against those involved. In the (civil) trial of this matter, experts for the defendants seek to allege that it was a?not outside the band of reasonable decisionsa? to proceed with orthopaedic surgery without seeking a neurologistas opinion on the very obvious head injury. The claimantas experts absolutely refute this argument. How might the judge approach such a conflict in expert opinion?