Papers by DR. ERNEST OWUSU-DAPAA
African Journal of International and Comparative Law
Deployment of illegality or public policy to render unenforceable is one area of the common law w... more Deployment of illegality or public policy to render unenforceable is one area of the common law which developed early to contain untrammelled party autonomy or freedom of contract. Traditionally, contracts that advance immoral purpose, undermine integrity in public office or governance as well as ousting jurisdiction of the courts are peremptorily deemed contrary to public policy and consequently unenforceable. In this paper I argue that the imposition of general obligation on all organs of government and private bodies and individuals to observe fundamental human rights and freedoms enshrined in Chapter 5 of the 1992 Constitution makes it imperative for the common law concept of public policy to be expanded to encapsulate non-compliance with fundamental freedoms and human rights as a ground for rendering contract unenforceable.
International Journal of Law and Society
Defining a legal field has functional importance and a legitimising usefulness for the field. The... more Defining a legal field has functional importance and a legitimising usefulness for the field. There is no doubt that health care law (HCL) has emerged as a field of law and a discrete academic discipline in England and Wales with indicators that gradually became identifiable post-1980. Increasingly, patients aggrieved by their clinical experiences have sought redress in the courts. Doctors have also resorted to the courts for declarations as to the legality of proposed procedures that are ethically sensitive. The burgeoning litigation in healthcare has not only generated an avalanche of case law for academic study, but has also exposed the inadequacy of the common law in resolving the specific bioethical and legal challenges raised by healthcare. Specific legislation was enacted for the first time to address issues raised by medical advances. Concomitant with the evolution of this field of law was the emergence of its academic discipline. It entered the curriculum of legal education as many universities began to teach HCL. This eventually triggered a proliferation of textbooks and journals. The proliferation of literature was accompanied by the creation of academic research centres. Active scholarship in this field has manifested itself in four different doctrinal orientations, namely medical ethics, human rights, and multidisciplinary and socio-legal approaches.
SSRN Electronic Journal, 2014
Although health care law (HCL) (2) has attained the status of a discrete field of law during the ... more Although health care law (HCL) (2) has attained the status of a discrete field of law during the past four decades, yet malpractice litigation is heavily based upon the traditional requirements of tort law which is largely entangled with its complexities in establishing medical liability. This conundrum is exacerbated by the perceived excessive deference to medical paternalism in English and Welsh courts. Whether or not medical malpractice litigation should be exempted from strictures of the traditional paradigm of the common law in establishing liability for negligence remains contested. In this paper, I argue that due to the practical difficulties entailed in pursuing healthcare malpractice grievances via the courts system particularly the uphill task of proving clinical negligence, lawmakers should revisit the possibility of adopting a no-fault compensation scheme for all cases that can properly be categorized as medical malpractice.
Commonwealth Law Bulletin, 2012
UCC Law Journal
The Common law has evolved in leaps and bounds since the Normans Conquest of 1066. Certain areas ... more The Common law has evolved in leaps and bounds since the Normans Conquest of 1066. Certain areas of private law including the tort of negligence have developed into settled doctrines well known and generally followed in many common law jurisdictions. Vicarious liability is one of such well-developed doctrines with clear prerequisites for its deployment. The Supreme Court of Ghana is also required to follow the doctrine of vicarious liability unless there is a clear reason for a departure. The apex Court is mandated to justify any departure from its previous decisions with sound judicial analysis of the precedents vis-à-vis the case under consideration. In the case under review, the Supreme Court obviously ignored the established rules for the application of the doctrine of vicarious liability. The Court equally failed to justify the need for such a monumental departure from the tenets of the doctrine. The Supreme Court of Ghana invoked the doctrine of vicarious liability when the mo...
Commonwealth Law Bulletin, 2009
The doctrine of ultra vires was at common law invoked to frustrate expectations of innocent parti... more The doctrine of ultra vires was at common law invoked to frustrate expectations of innocent parties that entered into transactions with companies outside their object clause. The common law doctrine of ultra vires is applicable in Ghana but with necessary modification ...
Medicine and law, 2014
Prior to customizing for themselves, consumers often encounter products customized by other peopl... more Prior to customizing for themselves, consumers often encounter products customized by other people within their social network. Our research suggests that when encountering a custom-made example of an identity-related product created by an identified social other, consumers infer this social other was motivated to express uniqueness. After making this inference, consumers are also motivated to express uniqueness, particularly when the example was created by a close versus distant social other. Consumers express uniqueness through their own customization choices, choosing fewer options shown in the example or choosing fewer bestselling options. Consumers sometimes even pay a monetary cost or sacrifice preferred choices in order to make their own product unique. Further, this effect dissipates when motivations other than expressing uniqueness are inferred about a social other (e.g., for functionally related products). Across eight studies that span different product contexts, involve real choices, and isolate the underlying theoretical mechanism (i.e., motivation to express uniqueness), our research documents the unique role of custom-made examples, demonstrates the importance of social distance for customization choices, and identifies a novel path explaining when and why individuals express uniqueness.
Medicine and law, 2013
There is unanimity among states to protect the continuation of life of the individual as a safegu... more There is unanimity among states to protect the continuation of life of the individual as a safeguard against their collective extinction. The right to life is accordingly guaranteed but its antithesis, the right to die is the subject of an unending debate. The controversy over the right to die is deepened by rapid advances in medicine, creating the capability for prolongation of life beyond the span which one's natural strength can endure. Ghana's supreme law explicitly guarantees the right to life but remains ambiguous on right to die, particularly euthanasia and assisted dying. Thus, some of the other rights, such as the right to dignity and not to be tortured, can creatively be exploited to justify some instances of euthanasia. Ghana's criminal code largely proscribes euthanasia. Notwithstanding, proscription of euthanasia and assisted dying by the law, in Ghana's empirical work undertaken in some of the communities in Ghana, suggests that euthanasia is quietly pr...
Comparative Political Economy: Regulation eJournal, 2014
The paper explores the backward and forward linkage between HCL and bioethics. Indeed, the relati... more The paper explores the backward and forward linkage between HCL and bioethics. Indeed, the relationship between the two is so close that it can be considered one of symbiosis. This is particularly the case when an account is taken of how HCL and bioethics positively benefitted from each other in diverse ways during their development into their present status as discrete disciplines. In the first place, the aftermath of the Second World War, such as the Nuremberg trial and unprecedented medical experiment scandals in the 1960s/70s fuelled the increasing participation of lay scholars in exploring and critiquing medical ethics which culminated in the emergence ofbioethics.2 This in turn facilitated the evolution of HCL as a discipline, since academic lawyers involved in early bioethical discourse developed interest in exploring the interface between law and bioethics at the same time that society was waking up to the ethical implications of medical advances. As HCL emerged as a discret...
The past four decades have witnessed an increasing global recognition of the human right to healt... more The past four decades have witnessed an increasing global recognition of the human right to health and healthcare as every country in the world has become a party to at least one human rights treaty or equivalent international instrument that addresses health and healthcare related rights. The framing of healthcare as a human right empowers the rights holders to demand accountability from the obligation bearers. Many countries, including Ghana, have moved further to incorporate their international human rights obligations relevant to health into their domestic legal and policy frameworks and have given them an elevated status as they are often enshrined in the national constitution, the highest law of the land.The right to health has been extensively explored in literature by scholars from jurisdictions with fully matured health care law (HCL). However, the viability of utilising human rights as main paradigm for conceptualising the normative framework for the development and the an...
After a general introduction, the book systematically describes law related to the medical profes... more After a general introduction, the book systematically describes law related to the medical profession, proceeding from training, licensing, and other aspects of access to the profession, through disciplinary and professional liability and medical ethics considerations and quality assurance, to such aspects of the physician-patient relationship as rights and duties of physicians and patients, consent, privacy, and access to medical records. Also covered are specific issues such as organ transplants, human medical research, abortion, and euthanasia, as well as matters dealing with the physician in relation to other health care providers, health care insurance, and the health care system.
LSN: Corporate Law (Topic), 2007
The health of the economy of Ghana is inextricably linked with the responsiveness of its company ... more The health of the economy of Ghana is inextricably linked with the responsiveness of its company law to the realities of business companies. The author argues that Ghana’s once much lauded Companies Code, 1963 (Act 179) may now be in need of updating, arising principally from the changing dynamics of Ghana’s emerging free market economy. The author proposes various recommendations for reform, such as de-regulation of private companies and updating the discretionary powers of the Registrar General. Such reforms, the author concludes, should make Ghana’s company law globally competitive and enhance Ghana’s attractiveness as a destination.
ERN: Other Emerging Markets Economics: Macroeconomic Issues & Challenges (Topic), 2007
The availability of commercial credit is crucial for the well being of every economy. This is par... more The availability of commercial credit is crucial for the well being of every economy. This is particularly true in transitional economies where poverty is not only prevalent but capital for business is pretty difficult to come by. The quest for rapid and accelerated economic development upon the attainment of independence will be a mirage unless there exist a legal framework within which credit or financial accommodation can be accessed. The accessibility of credit for business or commerce is equally contingent upon adequacy of protection afforded lenders or credit providers by the law. The paper seeks therefore to embark on diagnostic analysis of the Ghanaian law to ascertain the degree to which it has facilitated the creation and accessibility of credit for businesses and commerce . The deficiencies of the law impeding it from enhancing accessibility of credit will equally be exposed with the view of suggesting a more credit friendly legal regime . The paper concedes that the Ghan...
Social Science Research Network, 2019
Ghana Legal System and Legal Method is a module which is crucial foundation for all the other dis... more Ghana Legal System and Legal Method is a module which is crucial foundation for all the other disciplines of law that a law student is required to pursue in all law faculties and schools in Ghana. Nevertheless, it is a discipline which has received inadequate attention by text writers and legal academics in Ghana. It was quite reassuring when our late learned friend Professor Quansah authored the maiden edition of Ghana Legal System about a decade ago. While saluting Professor Quansah for his pioneering work, we wish to emphasis that our present work is quite broader in range of topics covered. A monumental feature of this core textbook is that the two traditional aspects of the module namely Ghana Legal System as well as Legal Method have all been accorded significant space in our coverage of the topics. There is today a very real interest in law and in our legal system. What is it that constitutes our law? What are the institutions which enable our legal system to operate? Can our...
African Law eJournal, 2007
Secured transaction is typically a private law activity. It is expected that freedom of contract ... more Secured transaction is typically a private law activity. It is expected that freedom of contract or party autonomy will prevail most of the time. However, the evolution of this area of the law reveals that the courts have often interfered with the sanctity with party autonomy by re-characterizing the nature of security intended by the parties differently. The Spectrum Plus case by the House of Lords highlighted the fact that the law is very much in state of flux. The ramifications from this development of English law may provide useful lessons for Ghanaian law.
The paper argues that the use of absolute currency figures in penal enactment is unrealistic havi... more The paper argues that the use of absolute currency figures in penal enactment is unrealistic having regard to the rapid inflation. The upshot of inflation on fines contained in enactment is to substantially devalue it and make the fine no longer sufficiently biting as a punishment for stated crimes. To overcome this conundrum, the paper welcomes the new penalty units as more progressive way of providing for fines in criminal legislation.
Health has universally been recognised as an important dimension of human flourishing. This has b... more Health has universally been recognised as an important dimension of human flourishing. This has been recognised at the global and regional level by protection of the right to health/ health care in international human rights instruments. The content of this right has been explored and explicated within the context of the major international human rights instrument enshrining the right to health. Apart from international human rights instruments, municipal legal systems also recognise the right to health explicitly or tacitly. Ghana and Pakistan have been selected to explore the extent to which the international right to health has been domesticated in both countries. The article also attempts to understand how right-based approach is better than the policy based approach towards healthcare and how positively/effectively it can influence health reforms in the national legal system.
In this thesis, it is postulated that a discrete body of health care law (HCL) can potentially of... more In this thesis, it is postulated that a discrete body of health care law (HCL) can potentially offer more benefits to patients by providing protection for their rights and improving healthcare delivery as a result of making healthcare professionals and workers more aware of their legal duties towards patients than is the case where a field of HCL is absent. The emergence of a discrete body of HCL in England and Wales has not received a great deal of attention in the academic literature; there has not, as of yet, been any thorough study of the questions of how and why this relatively new field of law emerged three decades ago. This thesis addresses this gap in the literature and explores those attractive elements of HCL in the law of England and Wales that may be emulated by a jurisdiction like Ghana, which is seeking to develop this field of the law. A combination of legal history and empirical legal research methodologies are deployed to unpack the development of HCL in England and...
After a general introduction, the book systematically describes law related to the medical profes... more After a general introduction, the book systematically describes law related to the medical profession, proceeding from training, licensing, and other aspects of access to the profession, through disciplinary and professional liability and medical ethics considerations and quality assurance, to such aspects of the physician-patient relationship as rights and duties of physicians and patients, consent, privacy, and access to medical records. Also covered are specific issues such as organ transplants, human medical research, abortion, and euthanasia, as well as matters dealing with the physician in relation to other health care providers, health care insurance, and the health care system.
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Papers by DR. ERNEST OWUSU-DAPAA
The Organising Committee welcomes submissions for the 1st the Kwame Nkrumah University of Science and Technology, Faculty of Law Conference on Law, Science and Technology from 18 to 19 August 2022.
This conference provides the foremost international forum for the presentation of innovative ideas and research results in Law, Science and Technology under the theme: Harnessing Digitilisation for Economic Development: Law at the Intersection of Science and Technology. The Organising Committee is seeking submissions related to the conference theme.
ABSTRACTS
An abstract of no more than 500 words, together with a CV, should be submitted via this email address: [email protected] by 11:59pm GMT, Saturday, 30 April 2022. In the case of co-authored papers, a CV for each author should be included.
Applicants will be notified of the outcome of their proposals by 13th May 2022 after the Organising Committee has evaluated all the abstracts.
Applicants who present at the Conference may be invited to submit their papers for publication consideration in the African Journal of Law, Science and Technology, the dedicated conference issue of the Journal. Authors will be contacted about this after the Conference. Please, note that all full paper submissions will be peer reviewed and evaluated based on originality, technical and/or research depth, accuracy, and relevance to the conference theme.
FURTHER INFORMATION
For more information about the conference, you are welcome to contact the Organising Committee directly via this email address [email protected]
ABSTRACT
Perhaps the dominant position among the legal taxonomy scholars is that a legal field is a group of situations unified by a pattern or set of patterns that is both common and distinctive to the field. This position appears to rest on an unexamined assumption, namely, that all fields of law necessarily follows the analytical framework of the traditional fields of law- contract, tort, criminal law, constitutional law. In this paper I challenge that assumption in relation to health care law (HCL) in England and Wales. I argue that although HCL possesses some of the so-called defining features of a field or a discipline of law, it is not necessary for it to strictly fit into the paradigmatic framework implicit in the dominant position. After charting the historical journey which HCL in England and Wales took to emerge as a distinct discipline, as evidenced by the burgeoning litigation in healthcare, quantitative increase in hard and soft legislation, the exponential increase in academic interest in healthcare during the past thirty three years, I contend that utilitarian reasons may provide a better justification for its emergence than a strict doctrinaire account. In this regard, the consolidation of a culture of liberalism which arguably projected personal autonomy as an important value, coupled with the awareness of bioethical implications of medical advances created by the media becomes a critical factor in any inquiry into the disciplinarily of HCL.
KEY WORDS: Healthcare Law, Medical Law, legal field, disciplinarity.
ABOUT THE AUTHOR
Ernest Owusu-Dapaa is a PhD Candidate in the Lancaster University. He is researching the topic ‘An Inquiry into the Emergence of Health Care Law in England and Wales as a Distinct Body of Law - What Lessons Can be Drawn From This in Relation to Ghana?’ Prior to commencing his PhD, Ernest completed his LLM and LLB at the University of Manchester and the University of Ghana respectively. He has been called to the Ghana Bar since 2003. Until embarking upon his study leave in September, 2011 Ernest lectured in law at the Kwame Nkrumah University of Science and Technology and also practised law on part time basis with the Owusu-Dapaa Law & Associates Ltd (Nhyira Chambers) Ghana. He has been a tutorial fellow at Lancaster University School of Law in Law of Contract and Criminal Law since 2011. CONTACT: [email protected]; [email protected]
Abstract
The last three decades witnessed the emergence of medical law (or I prefer to call it, health care law) as a discrete field of law in the UK and in particular England and Wales. Medical law is now part of our legal system and contemporary social discourse with prominence in the media almost on weekly basis. Indeed, the academic status of medical law is taken for granted as scholars presently produce various works on the subject freely and many students also go for medical law as a popular elective. The law has always interacted with medicine in diverse ways prior to the evolution of a full-fledged field of medical law. Case law from the pre 1980s did not approach legal issues arising from healthcare as a unique conundrum which warranted special adaptation of principles of traditional area of the law. Similarly scholarship on law and medicine relationship during same period did their reflections mainly from criminal law perspective without necessarily emphasising the role of the law in the actual nuances of medical practice and in particular its potential to empower patient against what was perceived as excessive medical paternalism. Nevertheless, there has not been any systematic investigation into the questions of how and why a discrete body of Medical Law evolved. In this paper I explore four key issues namely: first, how did the law interact with medical practice or healthcare during the long period before the emergence of a discrete body of Medical law; second, the defining characteristics of medical law; third the perceived focus of Medical law and finally what factors accelerated the emergence of medical law as a discrete body.
ABOUT THE PRESENTER
Ernest Owusu-Dapaa obtained his Bachelor of Laws degree (LLB (honours) from the University of Ghana and proceeded to Ghana School of Law to pursue two years of professional legal education which earned him a barrister at law qualification (BL). This paved way for him to be called to the Ghana Bar in 2003 as a Barrister, Solicitor and Advocate of the Supreme Court of Ghana. Mr Owusu-Dapaa subsequently obtained an LLM degree from the University of Manchester, UK in 2004. He was appointed a lecturer in law at the Kwame Nkrumah University of Science and Technology, Kumasi (Ghana) in 2004. He is a member of the World Association of Medical Law and the Society of Legal Scholars. Since 2011 Mr Owusu-Dapaa has been pursuing a PhD in health care law/ medical law at Lancaster University School of Law, UK. Since 2011 Michaelmas he has been teaching Law of Contract and Criminal Law at Lancaster University. He has also been delivering papers at conferences including 2013 European Health Law Conference held at Coimbra, Portugal.
COVER PAGE
Ernest Owusu-Dapaa
LLB(Hons) (Ghana), BL (Ghana), LLM (Manchester), PhD (Lancaster)
Barrister and Solicitor of Supreme Court of Ghana
Senior Lecturer and Vice Dean, Kwame Nkrumah University of Science and Technology, Kumasi
Adjunct Senior Lecturer, Lancaster University Ghana
Nicholas Freduah Kwarteng
LLB(Hons) (Ghana), BL (Ghana), LLM (Birmingham)
Barrister and Solicitor of Supreme Court of Ghana
Lecturer, Central University
Former Lecturer, Institute of Professional Studies (now UPSA)
PREFACE
Ghana Legal System and Legal Method is a module which is crucial foundation for all the other disciplines of law that a law student is required to pursue in all law faculties and schools in Ghana. Nevertheless, it is a discipline which has received inadequate attention by text writers and legal academics in Ghana. It was quite reassuring when our late learned friend Professor Quansah authored the maiden edition of Ghana Legal System about a decade ago. While saluting Professor Quansah for his pioneering work, we wish to emphasis that our present work is quite broader in range of topics covered. A monumental feature of this core textbook is that the two traditional aspects of the module namely Ghana Legal System as well as Legal Method have all been accorded significant space in our coverage of the topics.
There is today a very real interest in law and in our legal system. What is it that constitutes our law? What are the institutions which enable our legal system to operate? Can our law and its legal system be improved? The answers to these questions are absolutely important. For whom are those answers vitally important? They are important for: law students; students in a wide range of studies including politics, environment, accountancy, commerce, engineering, and many others; officers entering the civil service; chief executive officers, and managers, in statutory bodies, local government, commerce and industry; persons starting a career in management; persons running their own small business; and generally anyone interested in learning about the system of law and of government under which we live and work. It is the purpose of this book to set out in plain language what such an enquirer needs to know about the law, its institutions, and its operation
More importantly, a good comprehension of the Ghana legal system and Legal Method requires knowledge and skill in a number of disciplines. Undoubtedly, Ghana Legal System itself is the product of developments in history, law, economy, politics, sociological change. A detailed knowledge of several areas of law is indispensable, but students are also expected to appreciate the historical development of many legal institutions, and the social and political debates which surround legal issues. It is also important to understand the legal theory underlying policies on matters as diverse as the sources of law, classification of law, law relating to arrest, search and seizure; civil litigation; the distribution of work among different types of court; the legal profession; judicial review of administrative discretion; the operation of the doctrines of precedent and statutory interpretation; alternative dispute resolution , legal aid; legal writing, legal English . Being proficient in this subject also means being familiar with contemporary changes and proposed changes. This book aims to assist law students in the achievement of a good understanding of the law, its institutions, processes and techniques. We are happy to receive feedback through [email protected] and [email protected] for improvement of second edition. We are unreservedly accepting responsibility for any limitations.
Ernest Owusu-Dapaa
Kwame Nkrumah University of Science and Technology, Kumasi
Nicholas Freduah Kwarteng
Central University
September 2019.
ACKNOWLEDGMENTS
We wish to dedicate this work to the Almighty God for His superabundance wisdom that He lavishes upon us. We are very grateful to many people for their assistance, counsel, expertise, good humour and patience, all of which have contributed to the writing of this book. We are especially indebted to Afia, Akua Sisters, Olivia, Nana and KB. Great thanks are due to Dominic and Kwadwo Agyei Bioh from whose research assistance, diligence and vigilance we greatly benefited. We are also indebted for all the professional support given by our publisher. We are very grateful to Professor Festus Emiri of Nigeria and Dr Owusu-Dapaa for the three chapters that they contributed and to Doreen Adoma Agyei esq for her marvellous work in contributing Chapter 17.