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How to judging professional person’s conducts is very difficult. Balance of right is very important factor. Rights of the doctors have to be balanced by the rights of the patients, while at the same time keeping the societal interests in perspective. Also development to other professional field, common practice standards and balance of right are pivotal structure for establish best test for professional person negligence. I think that properly applied the Bolam test, does balance the rights. It protects doctors who act in accordance with the provisions accepted by their profession, and it allows a patient to sue. When he can show that his doctor had fallen below what the profession considers acceptable.
8. Uncertainties of interpretation arise in respect of Sections 5O and 5 P of the Civil Liability Act 2002.
The Civil Liability Act was passed by NSW Parliament on 7 June 2002. However, the 5O and 5P ACT is limited to those sections relevant to medical negligence.32
Part 1A of the Act attempts ‘to redefine and restrict the whole body of principles known as the law of negligence’. Negligence is defined in section 5 to mean a ‘failure to exercise reasonable care and skill’. Statutory schemes should embody the principle that ‘a person is not negligent by reason only of failing to take precautions against a foreseeable risk of harm’.33
However, these considerations have been problematic as the language used is imprecise. He stresses that these considerations are not a ‘precise mathematical tool’ and are ‘not overly helpful to courts that have to work with words and phrases in a legal context’. 34 Also, peer professional opinion is not to be relied upon should the court consider it to be irrational. Although there are some differences, section 5O largely suggested the applicable standard of care should be: A medical practitioner is not negligent if the treatment provided was in accordance with an opinion widely held by a significant number of respected practitioners in the field, unless the court considers that the opinion was irrational. 35
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