Samenvatting Notities health law

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Samenvatting - Notities health law

  • 1 Sources of health law and the boundaries of the discipline

  • What is health?
    It is related to illnesses and diseases.
    • health depends on the country and timeframe 
    • access to health will be different in the MS
  • 1.1 What do we mean by health?

  • What do we mean by health in the broach approach?
    The social model = a state of complete physical, mental and social well-being
  • What do we mean by health in the strict approach?
    The engineering model: the repair of the defective human machine
    • risk of sensitive of controversial classification
    • healthy depends on the chosen norm
  • 1.2 Evolution of law's engagement with health: some reasons

  • Which 3 stages can we see in the evolution in the laws engagement with health?
    1. Law as a means to protect the collective public interest
    2. Legal regulation of disease and health promotion
    3. Health professional regulation
  • What specific legislation addressing health do we see today? Explain.
    In BE we have a lot of liberal law
    • changing opinions in society about abortion, euthanasia 
    • ethical controversies have also multiplied 
    • rapid development of clinical practice and new technologies
    • relationship between
      • biomedical ethics
      • health law
  • What is the consequence of the increased number of legislation?
    • The volume of litigation has increased significantly (malpractice litigation)
    • Academic literature on health law
  • 1.3 Health law in a multi-layered legal order

  • What does a multi-layer legal order mean?
    That the sources of law can no longer be found in one national MS. 
    • there are now different actors on every level
  • What is an example of a multi-layered legal order?
    A federal state structure (BE):
    • it depends on competence
    • dispute? Constitutional court!
  • What is another example of a multi-layered legal order?
    Supra-national developments
    • EU law: law coming from outside the MS
  • What is the difference between supranational law and European law?
    European law: law agreed upon by the different MS
    Supranational law: national MS decide to shift competences to that level
  • What is the Solange doctrine?
    It deals with the supremacy of EU law over national law. Several courts did not accept for example Germany "as long as the EU does not provide the same fundamental rights as we do, then we will apply our own" = zo lange doctrine
  • Is the EU a constitutionalized legal order? Why?
    We find the same things (fundamental rights, competences of powers, ..) in the treaty's as we do in constitutions of states.
    • it fulfills the same role as the constitution does in MS
  • What is the difference between a directive and a regulation?
    Regulation: directly applicable
    Directive: not directly applicable
  • What are the sources of the EU as a legal order?
    Primary law: founding treaties
    Secondary law: binding legal measures such as regulations, directives and decisions and non binding law
  • 1.4 Components of health law

  • Why is there a movement from medical law to health law?
    • Law's engagement can no longer only be seen in terms of interface between doctors and their legal obligations
    • Health care products and services can be accessed directly 
    • Medical law: focus on doctor as a gatekeeper
  • 1.4.1 Liability of health care professionals

  • There is a medical malpractice crisis due to an increased number of legal processes, why?
    There is an increased awareness and less acceptance of mistake
    • patients face a heavy burden of proof
    • expensive and time-consuming procedure
    • risk of defensive medicine
    • insurance has become far more expensive for society

    Several states introduced alternative compensation schemes
    • BE: medical accident funds: compensate during the proceedings
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