Medical Practitioners, the Human Species Professionally Licensed to kill?: The Synthesis of the Ghanaian Medical Jurisprudence and the Tenuous Positions of the Common Law

  • George Benneh Mensah,
  • Prince Opuni Frimpong and Alfred Addy
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  • George Benneh Mensah

    Principal Consultant at E-Group Research Consulting Ghana Ltd. Co., Accra, Ghana

  • Prince Opuni Frimpong

    Anaesthetist at Korle-Bu Teaching Hospital, Greater Accra, Accra, Ghana

  • Alfred Addy

    Vice Principal at Assinman Nursing and Midwifery College, Fosu, Central Region, Ghana

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Medical practitioners, the individuals entrusted with the responsibility of preserving and improving human life, are often regarded as professionals licensed to kill. This controversial notion arises from the delicate balance between saving lives and making difficult decisions that may result in harm or even death. In Ghana, the synthesis of medical jurisprudence and the tenuous positions of common law provide a fascinating insight into this complex issue. This essay aims to explore the similarities and divergences in these frameworks and propose ways to address them for a harmonious legal system. In both Ghanaian medical jurisprudence and common law, there is a recognition that medical practitioners hold significant power over life and death. However, their roles differ in terms of accountability. In Ghanaian medical jurisprudence, practitioners are held accountable under the principle of negligence when they fail to exercise reasonable care in their practice. On the other hand, common law recognizes a higher standard for practitioners known as professional negligence or medical malpractice. One similarity between these frameworks is the requirement for informed consent from patients before any medical procedure can be performed. Both systems emphasize the importance of ensuring patients fully understand the risks involved in their treatment options. However, there is a divergence regarding who bears the burden of proof when it comes to establishing informed consent. While Ghanaian medical jurisprudence places this burden on practitioners, common law requires patients to prove that they were not adequately informed. Another area where these frameworks diverge is in determining liability for wrongful death caused by medical practitioners. Under Ghanaian medical jurisprudence, liability can be established if it can be proven that a practitioner's negligence directly caused a patient's death. Conversely, common law requires an additional element known as causation; plaintiffs must demonstrate that without the practitioner's negligence, death would not have occurred. This higher burden of proof in common law can make it more challenging for patients to seek justice. To address these divergences and bring harmony to the laws, it is crucial to consider the best interests of both patients and medical practitioners. One possible solution is to adopt a hybrid approach that combines elements from both Ghanaian medical jurisprudence and common law. This could involve placing the burden of proof on practitioners for establishing informed consent while maintaining the requirement for patients to prove causation in wrongful death cases. In conclusion, medical practitioners are not professionally licensed to kill; rather, they are entrusted with the responsibility of preserving human life. The synthesis of Ghanaian medical jurisprudence and common law provides valuable insights into this complex issue. By addressing the similarities and divergences between these frameworks, a harmonious legal system can be achieved, ensuring accountability while protecting the rights of both patients and medical practitioners.




International Journal of Law Management and Humanities, Volume 6, Issue 5, Page 1307 - 1330


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