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Course curriculum on Comparative Health Law

Course Curriculum
Subject Code: Comparative Health Law (LW 6112)
Particular Number of Hours Total Hours
Particular
Module-I: Difference between Common Law and Civil Law legal systems
12hr 12hr            
 
Module-II:
  1. The notion of Patient's Rights
  2. Protection of Health Information
  3. Patient's Right to Information and Informed Consent
  4. Patient's rights to End of Life
  5. Conscientious Objection in Health
2hr
3hr
2hr
3hr
2hr
12hr
Module-III: Elder Law and Health: discrimination and disabilities 8hr 8hr
Module-IV:
  1. Healthcare, Healthcare systems and Health professions regulations in prisons
  2. National Healthcare Systems
  3. Health professional's regulation
3hr
4hr
2hr
9hr
Module- V:
  1. Human biotechnology, research and bioethics
  2. The protection of human subjects in research
  3. Human tissues, organ donations and transplants
3hr
4hr
2hr
9hr
Module-VI: Medical malpractice issues 10hr 10hr
Total 60hr

Course Description:
Comparative Health Law course focuses on the analysis of health foreign legal systems and topics, comparing them to the structure and notions existing mainly in the US and India.

The content of this course is organized around the following main 6 areas:
  1. The difference between legal systems (Common Law and Civil Continental Law) related to Health Law;
  2. The notion of Patients' Rights;
  3. Elder Law and Health;
  4. Healthcare, Healthcare systems and Health professions regulations;
  5. Human biotechnology, research (protection of human subjects) and bioethics;
  6. Medical malpractice issues.

Learning Objective:
The objective is to study through practical cases and legal notions and structures, a number of chosen aspects related to Health Law from an international and comparative point of view. Doing so, the target is:
  1. To analyse the different health legal systems existing in the world and to define the interactions national healthcare legal systems can have worldwide.
  2. To foster interest in comparative law methods in Health to bring solutions to globalize matters and inspire further legislation.

Class Methodology:
Legal, ethical and social conflicts will be exposed from a Comparative Health Law approach. The discipline of comparative law allows by means of analysis, contrast, and classification of concepts to understand foreign legal systems in a whole. Applied to Health, we will be able to draw conclusions related to a growing globalized healthcare sector where common and different aspects would be outlined. We would look to make conceptual comparisons, integrating legal concepts and avoiding when suitable a mere exposition of the foreign system.

The aim of using the comparative law method would be to confirm a divergence or convergence of notions and systems in each topic, besides the ability gained in understanding other legal schemes, taking distance from our own. The Comparative Law method pretends to bring ideas and inspiring new solutions, when possible, that may arise to deal with the inherent adaptive process of the evolution of Law.

Each student thoughtful attitude, shown in the debate and discussion that will take place in the classroom will be evaluated together with its individual work, group work eventually, and final exam.

Reflection and participation will be promoted through three kinds of exercises:
  • To figure out cases, or
  • The writing of briefs commentaries or essays, or
  • The writing of structure-plan dealing to a dissertation: in this exercise, the content would be briefly mentioned by mean of key ideas (no need of a detailed composition), giving also importance to the titles or structure of the work going from general to particular arguments; giving importance to what is principal and making the difference to what is accessory. Synthesis is essential in that exercise.
Through these exercises the students will show the research done before the sessions, allowing them to approach, comment and eventually solve the problems presented. In case the answer to some of the questions asked couldn't be directly extracted from the documents given, students should look for it, in order to develop practice research skills.

Module-I
Difference between Common Law and Civil Law legal systems:
  1. Difference between legal systems: Common Law and Continental law.
  2. A projection to Health Law
  3. What are the main differences between legal systems?
  4. Why is Health Law relevant today?
  5. In what Comparative Health Law is useful to the evolution of Law?

Module-II
  1. The notion of Patient's Rights
    1. Right to Health and Health protection from a public, constitutional law perspective and human rights in the United States, the United Kingdom, India, Germany and France.
    2. What is Universal Care notion?
    3. Is health, its access or its protection, a human right? Why?
       
  2. Protection of Health Information
    1. Medical records and data protection in the United States, the United Kingdom, India and Spain.
    2. What is the content of a right to protect medical information?
    3. What is the extent of Right to Privacy?
    4. What is the difference with confidentiality?
       
  3. Patient's Right to Information and Informed Consent
    1. Right to Information and Informed Consent in the United States, the United Kingdom, Germany and India.
    2. What is informed consent?
    3. Are they differences between countries in terms of minors giving consent?
    4. What is the difference between consent and assent?
       
  4. Patient's rights to End of Life
    1. Advanced directives and end of life: Will or Law? Main countries of interest: the United States, the United Kingdom, India, Belgium, and Switzerland.
    2. What are the main lines of the different legal systems in terms of end's life legislation?
    3. What is euthanasia? What is palliative care? What are the ethical and legal implications?
       
  5. Conscientious Objection in Health
    1. Conscientious objection in health and drugs in the United States, India, France and Spain.
    2. What is Conscientious Objection? It is justified in healthcare?
    3. Is there a limit to the freedom of conscience?

Module - III
Elder Law and Health: discrimination and disabilities:
  1. Ageing and the Law in the United States, the United Kingdom, India and Brazil.
  2. Why ageing and its legislation is so relevant today?
  3. Could ageing be considered a Human Right?
  4. What are the legal systems existing in the United States and India for elder social and healthcare protection?
  5. What is regulated in Spain, India and Brazil about this topic?

Module - IV
  1. Healthcare, Healthcare systems and Health professions regulations in prisons
    1. Healthcare access in prisons in India, the United Kingdom, Spain and France.
    2. What makes healthcare in prisons particular?
    3. What are the principles leading prison's healthcare systems in the different countries studied?
       
  2. National Healthcare Systems
    1. National Healthcare Systems in United States, the United Kingdom, India, Germany and Italy.
    2. Member States legal competences and Healthcare in the European Union
    3. Healthcare in the European Union: what is and what are the main issues related to Health Tourism phenomenon?
    4. What are the differences between Medicaid and main European Healthcare systems?
    5. Public healthcare systems vs. private healthcare systems. What system would you recommend?
       
  3. Health professional's regulation
    1. What are the principles of the legal frameworks allowing to have access to medical professions in the United States, the United Kingdom, and India and the European Union in general?
    2. What are the different professional relationships existing between health professionals and hospitals in the US, the UK and India?

Module- V
  1. Human biotechnology, research and bioethics
    1. Human enhancement, sex selection and legal status of embryos in the United States, the United Kingdom, India and France.
    2. What are the legal and ethical issues arising in the different legal systems studied, in terms of sex selection and legal status of embryos?
       
  2. The protection of human subjects in research
    1. The protection of human subjects in research in the US, India and Spain
    2. What has to be protected in terms of human subjects participating in research?
    3. How do Institutional Review Boards (IRB) work?
       
  3. Human tissues, organ donations and transplants
    1. Human tissues, organ donations and transplants system in the United States, the United Kingdom, Spain and India.
    2. How can we link the notion of property to human body and body parts?
    3. What are the particularities of the donation and transplant system existing in Spain (Organización Nacional de Transplantes - ONT)?

Module - VI
Medical malpractice issues:
  1. Liability of physicians in public and private hospitals: medical malpractice and insurance aspects in the United States, Mexico, France, India and New Zealand
  2. Best effort Obligation or Obligation of means vs. Performance Obligation or Obligation of result in healthcare
  3. What is a non-fault compensation system?
  4. What is a best effort's obligation vs. a performance's obligation?
  5. How do these systems evaluate tort?
Bibliography
  1. BRASHIER, R.C., Mastering Elder Law, Second Edition, Carolina Academic Press, 2015
  2. EDOIZEN, Leroy C., Self-determination in Health Care, A property approach to the Protection of Patients' Rights, Ashgate, 2015
  3. FREEMAN M., LEWIS, A.D.E., Law and Medicine, Volume 3, Oxford University Press 2000
  4. GAFO, J., Problemas éticos de la manipulación genética, Ed. Paulina, Madrid 1992
  5. HARPER, I., KELLY, T., KHANNA, A., The Clinic and The Court, Law, Medicine and Anthropology, Cambridge University Press, 2015
  6. HERRING J., Medical Law and Ethics, Fourth edition, Oxford University Press, 2012
  7. KEOWN J., The Law and Ethics of Medicine, essays on the inviolability of Human Life, Oxford University Press, 2012
  8. LOPES, Giza, Dying with Dignity, a Legal Approach to Assisted Death, Praeger, 2015
  9. MASON, J.K., LAURIE, G.T., Law and Medical Ethics, Mason & McCall Smith's,Oxford, 2005
  10. MILLS, O, Biotechnological Inventions, Moral Restraints and Patent Law, Ashgate Publishing Limited, Hants, England, 2005
  11. SÁNCHEZ-CARO, J, ABELLÁN, F. Medicina Genética y Clínica del siglo XXI. Consideraciones científicas, éticas y legales, Ed. Fundación Salud 2000, Granada, 2009
  12. SOMSEN, H., The Regulatory Challenge of Biotechnology, Human genetics, Food and patents, Edward Elgar Publishing Limited, United Kingdom, 2007
  13. STOLTZFUS JOST, T., Readings in Comparative Health Law and Bioethics, Second edition, Carolina Academic Press, 2007,
  14. SUTTON, V., Law and Biotechnology, Cases and Materials, Ed. Carolina Academic Press, North Carolina, 2007
  15. WELLONS, H.B., SMITH EWING, E. and others, Biotechnology and The Law, American Bar Association, Chicago, 2007
Books:
  1. The Oxford Handbook of Comparative Health Law
  2. Comparative Healthcare Law - by Peter De Cruz
  3. Readings in Comparative Health Law and Bioethics - by Timothy Jost
Case Laws:
  1. In Re ( Suo Moto ) v. Union of India (2021)
  2. State of Punjab v. M. S. Chawala (1996)
  3. State of Punjab v. Ram Lubhaya Bagga (1998)
  4. Bandhua Mukti Morcha v. Union of India (1997)
  5. Mr. X v. Hospital (1998)
  6. Paschim Banga Khet Mazdoor Samity v. State of West Bengal (1996)
  7. Charles Sobhraj v. Superintendent Tihar Jail (1978)
  8. Gian Kaur v. State of Punjab (1996)
  9. Common Cause (A Registered Society) v. Union of India (2018)
  10. National Federation of Independent Business v. Sebelius (US Supreme Court), 20

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