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Medical Forum / General / Pharmacy / October 2003Q - Prescription Evidence at Trial?
The Criminal Cases Review Commission has stated in a Provisional Statement of Reasons the following: 6.22.3. ... In the opinion of the Commission the significant issues at the trial concerned whether Mr. K had in fact taken the (prescribed) drugs and, if so, whether they would have affected his mind to the extent that he did not have the necessary intent for the offences. The evidence as to the amounts prescribed was not disputed by the Prosecution. http://www.injustice.org/ccrc/ar_20030127a.html Evidence concerning the drugs was raised by two prosecution witnesses, one of whom was a medical expert who gave the jury a list of drugs. The defence did not challenge his evidence regarding the drugs. http://www.injustice.org/nemo/trials/t40540.html http://www.injustice.org/nemo/trials/t40530.html The defendant's solicitor interviewed both the defendant's (overseas) doctors and a pharmacist and testified as to the drugs prescribed AND administered by those doctors and dispensed by the pharmacist (both doctors and the pharmacist refused to testify). The prosecution did not cross-examine that witness. http://www.injustice.org/nemo/trials/t41010.html The defendant took the stand. At no time did prosecution Counsel cross-examine him about the actual taking of drugs. http://www.injustice.org/nemo/trials/t40800.html The prosecution did not challenge any of the primary witnesses on the question of whether the drugs were actually taken during the trial. The prosecution briefly raised the issue while cross-examining a defence medical expert who was not in a position to know whether any drugs were actually taken. Her evidence concerned the effects the drugs might have had if they had been taken. http://www.injustice.org/nemo/trials/t41100.html Is the CCRC justified in now claiming that the actual taking of drugs was an issue at trial when the prosecution failed to challenge the defendant on the issue and no prosecution evidence was adduced to the contrary? Is there a presumption in law that a patient has taken lawfully prescribed medications unless there is evidence to the contrary? TIA NightWatch - http://www.injustice.org/ccrc/whatisthis.html http://www.ccrc.gov.uk > Is there a presumption in law that a patient has taken lawfully > prescribed medications unless there is evidence to the contrary? [quoted text clipped - 3 lines] > NightWatch - http://www.injustice.org/ccrc/whatisthis.html > http://www.ccrc.gov.uk As far as I am aware, when you are pleading a special defence you have to prove it on the balance of probabilities so there is no presumption. As I understand it though, there are test which can be carried out now which can confirm if the drugs you were talking about were in fact taken, but I only have the word of a man I met in a pub for that <G> Kind regards and keep in touch. -- Benedict White >> Is there a presumption in law that a patient has taken lawfully >> prescribed medications unless there is evidence to the contrary? [quoted text clipped - 6 lines] >As far as I am aware, when you are pleading a special defence you have to >prove it on the balance of probabilities so there is no presumption. The way the trial was run meant that no special defence was pleaded. It was up to the prosecution to prove its case and negate the defence beyond reasonable doubt. >As I understand it though, there are test which can be carried out now which >can confirm if the drugs you were talking about were in fact taken, but I >only have the word of a man I met in a pub for that <G> Quite. I'm merely trying to establish whether the CCRC is justified in making such a claim given the fact that the prosecution did not challenge the primary witnesses during a trial in which the defence didn't have to prove anything. > >> Is there a presumption in law that a patient has taken lawfully > >> prescribed medications unless there is evidence to the contrary? [quoted text clipped - 10 lines] > It was up to the prosecution to prove its case and negate the defence > beyond reasonable doubt. I could be wrong but as I understand it what you should have run was a special defence to plead involuntary intoxication. That is a special defence and from what your saying it was not run as such. It seems to me it was sort of. The point they are making is whether the drugs were or were not taken was put to the jury and they said no they had not. Well there seems to me to be new evidence available to show that was wrong. Job done. But I have only the word of a Greek Cypriot! <G,D&R> > >As I understand it though, there are test which can be carried out now which > >can confirm if the drugs you were talking about were in fact taken, but I [quoted text clipped - 4 lines] > challenge the primary witnesses during a trial in which the defence > didn't have to prove anything. Difficult. Seems to me that the question may have been put to the jury but possibly mis directed by Judge. Hopefully someone else will pop in with a view. Kind regards -- Benedict White >> >> Is there a presumption in law that a patient has taken lawfully >> >> prescribed medications unless there is evidence to the contrary? [quoted text clipped - 13 lines] >I could be wrong but as I understand it what you should have run was a special >defence to plead involuntary intoxication. You're absolutely right. Unfortunately, defence Counsel decided to downgrade involuntary intoxication to self-induced drunkenness. He didn't bother to tell my principal defence expert or me, though. He even called another expert (Prof. DJ West) without my consent to introduce the elements of drunkenness into the defence case. >That is a special defence and from >what your saying it was not run as such. Yep. Counsel sabotaged an obvious (and easily provable) defence in favour of an argument that was bound to fail. >It seems to me it was sort of. If you look at the Judge's summing up, he clearly directs the jury in terms of self-induced drunkenness. For one thing, as the law stood at that time, an intent attributable to involuntary intoxication was excused whereas one had to be incapable of forming any intent in order for drunkenness to amount to a defence. I was not unconscious during the several weeks in which it was alleged I had committed the offences. I was awake but acting under the influence of involuntary, paranoid and grandiose delusions induced by the drugs. (Sigh - those were the days :) >The point they are making is whether the drugs were or were not taken was put to >the jury and they said no they had not. I don't know. It seems more likely that the jurors convicted because they were directed to find me guilty if they thought that I had some capacity to form an intent regardless of whether I had taken the drugs. The actual taking of drugs doesn't amount to a defence when the resulting drunkenness is self-inflicted. [Counsel sabotaged another aspect of the defence which I haven't raised in this thread - it was the two prongs of his treachery acting in concert that sealed my fate.] Anyway, I don't believe the prosecution proved beyond reasonable doubt that I hadn't taken the drugs. The prosecution's case was that despite the drugs I could still form an intent. That's why actual drug taking wasn't an issue. I think the CCRC is taking the piss raising that argument now. >Well there seems to me to be new evidence available to show that was wrong. Job >done. But I have only the word of a Greek Cypriot! Yes, it can now be proven with fresh evidence - the question is why should I have to prove it? >> >As I understand it though, there are test which can be carried out now which >> >can confirm if the drugs you were talking about were in fact taken, but I [quoted text clipped - 7 lines] >Difficult. Seems to me that the question may have been put to the jury but >possibly mis directed by Judge. The CCRC refuses to see it that way. >Hopefully someone else will pop in with a view. Don't hold your breath for a lawyer to comment on this case - they rarely do. Well, what could they say? >Is there a presumption in law that a patient has taken lawfully prescribed medications unless there is evidence to the contrary? No - and why should there be? Many medicines may not be taken by the patient after a change of view or improvement in health. Yours faithfully, John Aidiniantz www.funbus.org www.homepage-link.to/blaster www.feisal-ali.com > >> >> Is there a presumption in law that a patient has taken lawfully > >> >> prescribed medications unless there is evidence to the contrary? [quoted text clipped - 83 lines] > Don't hold your breath for a lawyer to comment on this case - they > rarely do. Well, what could they say? > >Is there a presumption in law that a patient has taken lawfully >prescribed medications unless there is evidence to the contrary? > >No - and why should there be? If a doctor misprescribes a medicine and the patient suffers harm as a result I believe there is a presumption in law that the medication was taken. How else could medical negligence cases be prosecuted? Few patients could actually prove they took a particular medication. > Many medicines may not be taken by the patient >after a change of view or improvement in health. If so then no harm would arise so the point is moot. >> >> >> Is there a presumption in law that a patient has taken lawfully >> >> >> prescribed medications unless there is evidence to the contrary? [quoted text clipped - 90 lines] >> Don't hold your breath for a lawyer to comment on this case - they >> rarely do. Well, what could they say? > If a doctor misprescribes a medicine and the patient suffers harm as a result I believe there is a presumption in law that the medication was taken. No - this would be a presumption in fact - not in law - and would be material for a jury to consider. The law no doubt allows some presumptions to be made- but for a very specific purpose and in a limited number of situations. Other posters could indicate examples of presumptions allowed in law. Yours faithfully, www.feisal-ali.com > > >Is there a presumption in law that a patient has taken lawfully > >prescribed medications unless there is evidence to the contrary? [quoted text clipped - 107 lines] > >> Don't hold your breath for a lawyer to comment on this case - they > >> rarely do. Well, what could they say? >> If a doctor misprescribes a medicine and the patient suffers harm as a >result I believe there is a presumption in law that the medication was >taken. > >No - this would be a presumption in fact - not in law - and would be >material for a jury to consider. I'm grateful for that. I was told there was a "presumption" some time ago by a medical expert but I must have misunderstood what he said (I didn't realise there were two types). I've found a couple of glossary entries now. Thanks. http://www.kevinboone.com/lawglos_probative_presumption_of_fact.html http://www.kevinboone.com/lawglos_probative_presumption_of_law.html >The law no doubt allows some presumptions to be made- but for a very >specific purpose and in a limited number of situations. [quoted text clipped - 122 lines] >> >> Don't hold your breath for a lawyer to comment on this case - they >> >> rarely do. Well, what could they say? > >> If a doctor misprescribes a medicine and the patient suffers harm as a > >result I believe there is a presumption in law that the medication was [quoted text clipped - 10 lines] > http://www.kevinboone.com/lawglos_probative_presumption_of_fact.html > http://www.kevinboone.com/lawglos_probative_presumption_of_law.html It seems to me that we are back to the new evidence which if you are right is a killer point. Good luck, keep in touch and let me know how you get on. Kind regards -- Benedict White |
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