Abstract

This paper on the practice of nursing, midwifery and the tort of negligence within the Ghanaian Laws provided a comprehensive analysis of the Ghanaian medico-legal Jurisprudence. The legal analysis probed two issues: 1) What are the jurisprudential positions of the Ghanaian laws on negligence in nursing, midwifery and other specialists practices? 2) Whether Ghanaian jurisprudence elucidates on the patient’s rights of privacy and information without recourse for nursing, midwifery and other specialists practitioners to withhold such medical records? The analysis found that legal jurisprudence in Ghana had recognized several categories of negligence including: lateness to duty; indeterminate duty founded on the defense of res ipsa liquitor; practicing without licence; refusal to treat patient and practicing out of scope. Thus, the Ghanaian medico-legal Jurisprudence presume a prima facie evidence on these duty categories as stated. Moreover, the analysis revealed that Bolam principle and Res ipsa liquitor had been extensively applied in the Ghanaian courts to hold practitioners to their standards of care. While noted from the analysis that the common law position had been reluctant in the acceptance of liabilities toward the unborn child, the Ghanaian medico-legal context recognizes expressly duty towards the unborn child and the mother of that unborn child. It was found through the legal analysis that the Ghanaian laws recognize the concurrent “tortfeasance” and multiplicity in negligence actions on practice. The material contribution principle in the common law had long being applied in Ghanaian case laws before it’s application in toxic negligence cases. Thus, from this findings, two or more practitioners may be held to have materially contributed to the wrongful acts or negligence treatment of a patient. The medico-legal analysis further indicated that the Ghanaian Constitution and the accompanying laws have guaranteed the privacy and information rights of the patient to his medical records and thus the jurisprudence recognise the privacy and information rights of patients to their medical records and that practitioners cannot withhold such data when requested for use by the patient. The paper concluded that the Ghanaian Medico-legal Jurisprudence presume that negligent act in treatment can only succeed if the patient is able to proof the negligence and the causal link between the negligence and the breach of the duty the practitioner had towards him. Except in the circumstances where Res Ipsa Liquitor as a defence on the part of the patient is raised. More so the Medico-legal Jurisprudence and the Ghanaian Constitution provisions guarantee the rights of privacy and information to the patient. Thus, the patient has the unqualified access to his or her record for any reason whatsoever for retrieval of that same records for any purpose of his or choice without question in the Ghanaian law context.

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