Type of claims

Function Onus and Standard of Proof

Outcome

Civil claims: Tort law (negligence and trespass)

Promote individual rights

1. Plaintiff must prove elements of cause of action - Trespass - Negligence 2. Balance of probabilities

Monetary compensation – award of damages

Type of claim

Function Onus and Standard of Proof

Outcome

Discipline Protection of the public (not punitive)

Maintain high professional standards

Deter others

1. Regulator must establish: Unsatisfactory professional conduct; Professional misconduct 2. Briginshaw standard – more serious allegation requires higher degree of probability to satisfy burden.

-  Fine -  Public

sanction - Caution - Supervised

Practice - Suspension - Cancellation of

registration

Type of claim

Function Onus and Standard of Proof

Outcome

Crime Punish offenders Deterrence Compliance

Crown must prove elements of offence Beyond reasonable doubt 1. Voluntary action 2. Mens rea: moral blameworthiness - Intention to harm or reckless conduct

Criminal conviction - Fine - Non-custodial orders - Prison

• Crime arises out of doctor - patient relationship

• Patient harm: •  assault • Murder/manslaughter

• Crime tangental to medical practice - medical practice provides a means to commit crime

• Access to drugs • Indecent contact • Vulnerable persons

•  Crime arises out of doctor – patient relationship • Aware no consent, or reckless

• Consent vitiated • > Trespass • (assault/battery)

• Crime incidental to professional status – accused happens to be a doctor.

Identity Treatment: Consent

Treatment: Gross

Negligence (Injury/death)

Opportunity