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MN506 System Management

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MN506 System Management

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Course Code: MN506
University: Melbourne Institute Of Technology

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Country: Australia

Question:
14 “As part of his case, Mr Conway has put forward the outline of an alternative statutory scheme which he says would safeguard relevant competing legitimate interests and would sufficiently protect the weak and vulnerable in society and which therefore shows that the blanket prohibition in section 2 (Of the Suicide Act) …15 The outline alternative statutory scheme proposed by Mr Conway is broadly equivalent to that in a Bill introduced in Parliament by Lord Falconer of Thoroton (the Falconer Bill). The Falconer Bill did not attract the support of Parliament and did not become law.
 
37 Issues arise where a person is unconscious or otherwise lacks capacity to make the relevant choice about whether to receive or continue to receive life-sustaining medical treatment. The leading authority is the Bland case. The House of Lords decided that life sustaining treatment for a patient in a persistent vegetative state could be terminated, with the result that he would die. Although the law forbids the taking of active measures to cut short the life of a terminally ill patient, to terminate the treatment would not violate that prohibition. In the circumstances of that case the treatment involved invasive manipulation of the patient’s body to which he had not consented and which conferred no bene t upon him and so could be withdrawn…”In the light of the comments made above by Sales LJ in R(Conway) v Justice Secretary (DC) [2018] 2 WLR 322, (above) analyse and evaluate the arguments of the various academic articles you have read as to the correctness of the House of Lords decision in Airedale NHS Trust v Bland [1993]. And, in the light of your conclusions, suggest what reforms, if any, you think should be made to the current law on Euthanasia and Assisted Suicide in England & Wales.This assessment seeks to assess all the module outcomes identified in the Module Guide. Marks will be awarded in accordance with the Generic Marking Descriptors for the LLB and the following specific assessment criteria:Dispute FormulationRange and Use of Sources Development of the main argumentConclusion and recommendationsStandard of presentation
Answer:

R (Conway) -v- The Secretary of State for Justice [2017] EWCA Civ 275
This case was an application for appeal against a decision of the divisional court. It sought an order in light of the Human Rights Act, 1998. The case was based on a contention relating to the right to life. Mr. Conway, aged about 67, was diagnosed with a disease relating to his motor functions. Such a condition limited his life expectancy to a maximum of 18 months. This thus means that before the expiry of the term of 18 months he would no longer be alive. His movement was also severely restricted due to the disease and it placed him in a position where he would need the aid of a wheelchair to move freely. Despite having the wheelchair he would still require assistance from people to function. He also was on the verge of respiratory failure. He has also been informed that if such a respiratory failure occurs then he would have to face death immediately. His breathing was also supported at that time through medical equipment (ventilator) and if the same was removed he would only have weeks to live.
Under such circumstances Mr. Conway wished to die with dignity and equated it to ending his life on his own terms. He thus applied to the medical profession to remove the equipment that kept him alive resultantly giving him the death that he requested for. It must also be noted that his family was in support of his decision and thus this death would be an entirely conscientious decision. He would however have to have legal approval before such a step could be undertaken by the medical profession (or the professionals aiding his current situation). This scenario is amply similar to the case of R (Nicklinson) v Ministry of Justice (CNK Alliance Limited and Others Intervening) [2014] UKSC 38 which was adjudicated by the Supreme Court. In this case however the court adjudicated that such a step would not be appropriate. The Supreme Court also reiterated in that case that providing for such exceptions statutorily would also not be feasible. Thus a precedent would have to be made regarding this to ensure that such cases can be dealt with through ejus dem generis.  
Here the ultimate issue that arose was the liability of a person who assists in such a death after it has taken place. In the absence of statutory provisions to the contrary it would amount to assisting suicide which is aiding and abetting of a crime specifically set out in the penal framework. Thus a person engaging in such an activity, despite it being consensual and conscientious decision, would still be aiding and abetting a crime and would thus face criminal liabilities as prescribed by the penal law of the land. This case would thus have to determine if such a decision can be endorsed. The mental state of the person would also have to be considered in light of the issues before the court. This is because a person choosing to opt for death in an improper mental state would not be effectively making a conscientious decision. This also means that the first and foremost consideration would be if the decision is in fact consensual as per the provisions of law. This debate is what sparked the entire debate and thus the contention that assisted death would be aiding and abetting suicide. This is the dispute that was to be decided by the court and the fact discussed above gave rise to the formation of the dispute.
Airedale National Health Service Trust v Bland [1993] AC 789
 In this case the primary issue to be decided by the court was if a person who is currently a patient and is existing in a vegetative state can the same person consent to his own death. This is because when in a vegetative state the mental capacities of a person are ideally affected and thus the mental condition is a factor that has to be considered when deciding if a particular death occurred due to a conscientious decision or if it arose from a state of mental instability. A person “Bland” was injured severely in the Hillsborough disaster and thus the person remained in a vegetative state. This state ensured that his mobility was practically null and he was surviving on majorly medical equipment. Bland was able to breathe on his own but required human intervention for activities such as eating and other bodily functions. He remained on support of these equipments for two years. He received full care for his condition, however, the state of his condition degraded his quality of life to a position where he could no longer wish to stay alive. The doctors tasked with treating Bland has received approval for assisting his death, this would be administered by removal of the tube that fed him. This was however appealed before the house of lord and that is the crux of the case before us. The case here is if a person who longer has the quality of life to be considered a living person would be entitled to end his life. The court has answered in the affirmative and has stated that a person who was no longer physically able to function normally but was mentally capable in making a decision regarding his life the person would be entitled to decide if he could opt for death. In such a case the assisted death would be valid and no claims of aiding and abetting suicide would arise. This means that the person administering such a step would also be absolved of any responsibility for the formation of the same. Thus the facts of the case make it evident that the crux of the dispute is if assisted death can be endorsed in exceptional case and if so the parameters that need to be considered in making this case. The most effective consideration here is the duty of care that treating doctors have towards their patients and the extent to which such a doctor’s liability extends in such circumstances. Bland appealed the decision through his solicitors and the appeal is the case we are considering presently.
The main argument of the case is based on the legal approach of passive euthanasia. According to Lord Goff, passive euthanasia is illegal according to the provision of common law. However, the matters of application of euthanasia are an apple of discord. There are certain arguments take place regarding the matter that whether it is morally or legally right to terminate the life of a patient or not. According to the legal scholars, where in a case the medical experts have given their consent that the patient has gone into the persistent vegetative state and there is no chance for him to be recovered in the near future, all the medical treatment can be stopped and his life can be terminated. The word “persistent vegetative state” means a condition where the patient is surviving through medical instrument only and he will be died if the entire medical instrument stops working. In that stage, the patient is unable to take up any decision or he could not make any sense in their present state. According to Steven et al. (2010), “Persistent vegetative state” may happen due to brain death or traumatic injury. The most complex part of the matter is to identify whether the medical treatment of the patient should be continued or all the medical supporting stuffs should be closed to terminate the life of the patient.
A lifelong discussion has been going on regarding the matter and a solution to this has been made in the case of Airedale National Health Service Trust v Bland.  In this case, Lord Goff has attempted to interpret the ideology of passive euthanasia and has stated that in case the possibilities of recovery could not be sustained and there was no fault from the part of the medical treatment observed, the life of the patient can be terminated.  Further, in this case, he has stated that the medical experts should have to do their best to secure the interest of the patient and if it has been proved that no positive outcome has been derived from the treatment, the experts can make a justified application before the court to terminate the life of the patient. According to Lord Goff (1993), “to cross the Rubicon which runs between on the one hand the care of the living patient and on the other hand euthanasia – actively causing his death to avoid or to end his suffering”? In this case, ethical decisions should be taken to come into an effective end.
The subject matter of the present case is based on get proleptic permission for suicide and whether the patient can get the right to end their life by way of committing suicide. According to section 1 of the Suicide Act 1961, no person is allowed to end his or her life and if he has attempted to do it, he will be held liable under criminal Act. In this present case, Mr. Conway has made a claim that provision of criminal liability will not be applied on the suicide case where the patient is suffering from an incurable disease. According to section 4 of the Human Rights Act 1998, attempt to suicide could not be prohibited under the criminal law. Further, according to section 2 of the Coroners and Justice Act 2009, a question of criminal offence takes place where an act of a person encourages others to commit suicide, it will be treated as criminal offence. However, if a patient wants to conclude his life due to vegetative disease, it should not regarded as criminal act. In R (Pretty) v Director of Public Prosecutions, a patient wants to end her life by the help of her husband. It has been held by court; in this case, the husband can face criminal trials, as his act encourages the patient to commit suicide.
There are certain ethical issues cropped up regarding the case of passive euthanasia. It has been observed by Mr Strachan QC that right to live is the basic right of the individual and no adverse situation could be permissible under the law regarding terminate the life of the individual. However, in the words of Mr. Gordon QC, the provision of right to live opposed the provision of right to deal with the private life as stated under section 8 of the European Convention on Human Rights 1998. According to this section, any person has the right to take all the relevant decisions about their private life and there should be no interference from the public authority to make any intervention regarding the process. however, it has been established in Nicklinson v United Kingdom that right to death under section 8 of the European Convention on Human Rights 1998 applies only when the person could take all the relevant decisions by him. However, in case where a patient is suffering from traumatic diseases and he is not in a condition to do the same, the provision of section 8 will not be applied on them.
According to Professor Christiana Faull, the medicinal experts should have to take palliative action or care in order to treat the patient with incurable diseases. It is the duty of the doctors to act for the best interest of the patient. All the necessary requirements are to be followed in this regard. However, in certain circumstances, the medical treatment becomes irrelevant for the patient and it is ethical to claim for terminating the life of the patient at that moment. Similar principle has been observed in the case of Airedale N.H.S. Trust v Bland  where the court has observed that where it is medically and legally ethical to terminate the life of the patient, order for death could be given. It has further been observed in this case that where it is certain that there is no prospect of improvement of condition for the patient, it is quite ethical to terminate the life of the patient and this act could not be regarded as illegal. Further, the British Medical Institute has produced a full report on that basis. According to this report (2015), “the majority of doctors thought there would be professional and emotional impacts on doctors if physician-assisted dying were legalised and the majority of the impacts identified by them were negative; many doctors did not see being involved with physician-assisted dying as compatible with their understanding of their fundamental role and remit as a doctor.” Supports have been generated from the part of the Doctors too and they have given their consent over the issue of passive euthanasia. Further, according to the words of Alfred Tennyson, “No life that breathes with human breath has ever truly longed for death”. Further support has been given by New England Journal of Medicine where it has been observed that the life of the patient on bed are quite unbearable, right to death should be applied. Further, with the view of Airedale’s case, it can be stated that if the condition of the patient is deteriorating and there is no chance for survival, it is quite ethical to terminate his life.
As observed from the case of R(Conway) v Justice Secretary (DC) [2018] 2 WLR 322, the facts of this narrate the basic fact that every individual must have the right to life. As argued in this case, Mr. Conway had forwarded the outline of the alternative statutory scheme where he stated that he wanted to safeguard the legitimate interests of the vulnerable individuals of the society. The criteria of Mr. Conway stated that there are relevant prevention on producing assistance for the process of suicide will not be applicable. The chief facts of this case highlighted the only major concept of right to life. Such a right was given based on the facts that took place in the case of Airedale NHS Trust v Bland [1993] A.C. 789. However, there was an alterative statutory that was introduced by Mr. Conway in this particular case. This alternative statutory was considered to be equivalent to the Bill, which was established in the Parliament by Lord Falconer of Thoroton.
 It was observed and argued on the situation when this Bill did not receive any kind of support from the Parliament and hence, it did not become law. The major and issues that arose in this particular case when an individual becomes unconscious does not have the ability to make the significant choice regarding the matter of receiving life-sustaining medical treatment. It all depended and varied on the situation of the person who needs the medical treatment. In this scenario, the leading authority was referred to the case of Bland. According to the House of Lords, the life-sustaining treatment for the patient or the individual in a importunate vegetative state could be terminated. This will thereafter result in a situation where he can die. As per the law, it was later argued that it forbids the process of taking possible measures to reduce the life of an unwell patient. Terminating the patient will not result in violating the prevention. However, in few such circumstances of this case, the treatment related or engaged to this had involvement of manipulation of the patient where his own consent was not provided. This will not be treated as the benefit in these circumstances if the consent is not provided. It was further noticed and observed that the patient who was unwell and living and euthanasia caused the death to ignore the end of suffering.
From the facts of this case, it can therefore be stated that even if the individual is ill or unwell he will have the ability to use the right to life. According to the case of Airedale NHS Trust v Bland, the issues and facts can be applied in the case of R(Conway) v Justice Secretary. The basic issue of this case deals with ending of medical treatment in absence of informed consent. The issues related to this case study stated that a patient who was in a vegetative state will not be able to keep back the consent for the treatment. It required the doctors to carry out their activities in the interests of the patient. The doctors must show concern and care for the betterment of the patient, which in this case was whether there will be continuation of Band reviving or surviving on life support. It was therefore significant enough to comprehend in this scenario that if the medical life support is not provided to the patient then the person who will not be able to produce the medical professionals with informed consent on a specific issue will not survive.
The facts thereafter that existed based on the issues stated that Bland was noticed being harmed when he was not even an adult and thus was left in a vegetative state to survive. It was further observed more that he kept surviving based on the medical support of the machines. There was no sign of improvement whatsoever. By witnessing such condition of Bland, the doctors asked for his approval for removing the tube that helped to feed him. At the end it was stated and held that the doctors have a duty to act as per the best interests of their patients. However, this does not necessarily oblige them to prolong life. Based on this, it was noticed that there was no chance of improvement in such a case. The treatment therefore that was received did not end up in the best interest of the patient. Hence, after reviewing and observing the facts and issues of the case, it can therefore be stated that the case of Airedale NHS Trust v Bland is applicable in the case of R(Conway) v Justice Secretary. The common factor between the cases is the concept of right to life. When a patient is in a vegetative condition or states his consent is required before taking any kind of decision. It was lawful to note that without the life-extending treatment which was the food that Bland was being fed through a tube. Therefore, the appeal got dismissed.
According to the facts of the case, it can therefore be applied that the concept of right to life is appropriate in such a situation. If this right of the patient is applied, then he will not have to face any kind of trouble in a vegetative state. Being in a vegetative state is generally not possible for an individual to give consent to the doctors regarding his treatment. However, it can be observed that the right to life of a patient must be utilized in such circumstances. It puts pressure on the patient when they have to give consent by being in unbearable pain. During that level of pain it is not possible for a patient to give his consent regarding the treatment. It was agreed on the decision that it becomes stronger when the other existing aims are brought into the account. The Parliament was entitled in maintaining such a position that prevents individuals from assisting the person who will be committing suicide. Maintaining section 2 helps in promoting trust between the patients and the doctors. This particular case sets out the evidence where the relationship of trust between the doctor and patient. The purpose of this is to safeguard and reinforce the trust of relationship.
 Therefore, it can be argued stating that right to life must be exercised for the patient who is undergoing a medical treatment. On the other hand, it was argued that Mr. Conway was not in the state to live anyway and was expected to die soon. Both the cases dealt with the medical condition of the patients and their consent. However, the duty of the doctors is to take care of the exiting patients. As per the Human Rights Act, right to life is the duty of every individual.
In the light of the above discussed case laws, it can be concluded that there is no need to apply for judicial review and the reasoning behind that is, because Parliament has already in its earlier submissions reconsidered the issue of assisted dying. Following the case of Nicklinson, the court was also of the view that there are certain conditions when assisted dying can be considered. If an assisted dying is legalized, there might be a relaxation of the strict application of section 2(1). As stated in the earlier cases, a duty of care was believed to be existing in the roles that the doctors play in the society. The doctors are deemed to have a duty towards the patients and the duty entails that he shall take care of the patients to the best of his capabilities. It was further buttressed with reasoning that the duty of care to ensure that patients live a healthy life does not mean that the doctors will also have a duty to prolong that life. The duty to act in the interest of the patient does not include the duty to make sure that the patient’s lives irrespective of the health conditions he is suffering. Therefore, in the Airedale NHS Trust v Bland [1993], it was argued that the treatment Bland was subject to did not have the potential to better his life and that was concluded because the medicines were showing no effect on Bland. Bland did not show any improvement. The Parliament in the execution of its powers had held that there shall be no legislative exception in the understanding of section 2(1) of the 1961 Act. The Nicklinson case was decided by a bench of 9 judges and they all argued towards the implementation of the doctor’s duties. While giving the judgment, there was a declaration of incompatibility that was referred to by the judges.  There was a reference made to the case of Pretty v United Kingdom (2002) 35 EHRR 1, where the judges held that there shall not be an all encompassing blanket ban and the courts will need to look at the facts of the case before making an analysis. The court also considered the role domestic courts play in implementing the laws that pass the test of reasonability. Therefore, the above mentioned cases gave a right to the courts to implement the law and apply at their own discretion. Therefore, understanding the above two cases in the lights of the power that the Parliament exercises, it is important to understand that no court can surpass the laws that have already been established by the Parliament. The appeals in the Bland case held that assisting someone to commit suicide should be seen as a criminal act.  The domestic courts do not have the power to surpass the already existing laws and come up with a new interpretation of the laws because that will cause incompatibility of the terms of the already existing legislature.
The above cases can be read in line with a few more cases that also deal with the issue of allowing assistance to a person who has no chances of living a healthy and safe life. The R (Pretty) v Director of Public Prosecutions [2001] UKHL 61 is a landmark judgement and the judges in the above mentioned case was of the opinion that assistance should be given to a person who is not in the best of his health. Mr Gordon therefore held that the blanket ban cannot be exercised if there is an existing law that prohibits the taking away of life. The argument advanced that there shall be assisted suicide in cases when the patients are unable to live a healthy life and the life can be prolonged only with the help of assistance by medicines or modern technology.
The above made submissions by the Courts can be understood by the implementation of Bills that provided help and support for the assistance of safeguarding the principles of section 2 of the Act. The Falconer Bill was introduced subsequently, where it was held that the bill shall help in the assistance of dying of a weak man who cannot be expected to lead a healthy life. The Bill also mandates that the law shall apply only to the people who are above the age of 18 and are not minors and have the capability to take their own decision. There is a need for a confirmation from a registered and qualified medical practitioner who will confirm that the condition of the patient is not good and that the patient is reasonable expected to die very soon, maximum within a period of 6 months. In those cases, if there is consent from the High Court, the medical practitioner can go ahead with the death of the patient.
The rules of the landmark cases discussed above have an important implication on the legislation that have followed subsequently claiming that the laws have been passed by relying on the case of MrConway. Following the opinions that the learned judges has made in the landmark cases, a Select Committee Report was placed that studied the implications of law to state that whenever it seen that the patient is terminally ill and incapable of living a proper life, the medical practitioners shall end the suffering. In cases when the patient is mentally incapable to give consent, the medical practitioner shall take the responsibility of ensuring that the patient’s life is taken with proper care. The Select Committee shall exercise supreme autonomy in exercising euthanasia. The arguments advanced by the Courts were of the opinion that if a Bill is allowed to pass that helps in assisted killings, the faith on the doctor patient relation shall diminish. In the opinion of the Learned Judges, it was held that just like a patient has the right to medically assisted death, the patient shall also have the right to refuse a life prolonging treatment. The arguments advanced by the judges were of the opinion that there shall not be an intention to commit killing, that is, no medical practitioner shall have the intention to take away life and there cannot be any law that promotes the intentional taking away of life.
The repercussions of the decided cases hold that the vulnerable section of the people will be placed at higher risk because they will have a threat to their safety. The Falconer Bill and Joffe Bill are of the same opinion in coming to the implementation of the assisted suicide regime. The doctors have been held in high regard for the role they play in helping the patients and mitigating their pain and therefore, if a law is passed that legalises assisted killing, the trust levied on doctors shall suffer as the patient will live in fear and suspicion. Therefore, in concluding the arguments advanced by the judges in both the cases have an impact on society as the underlying principle states that there shall be no law that advances the notion of killing anyone. The legislature shall not advance assisted killing and in cases where the patients are dying and are not in the best of their health, there should not be a prolongation of that life.
Conclusion
Concluding the paper it can be stated that the two cases of R (Conway) -v- The Secretary of State for Justice [2017] EWCA Civ 275 and Airedale National Health Service Trust v Bland [1993] AC 789 provide a significant discussion in relation to the right to live and the right to die. The primary issue in the case of Conway was the liability of a person who assists in such a death after it has taken place. In the absence of statutory provisions to the contrary it would amount to assisting suicide which is aiding and abetting of a crime specifically set out in the penal framework. On the other hand in the case of Airedale National Health Service Trust the primary issue to be decided by the court was if a person who is currently a patient and is existing in a vegetative state can the same person consent to his own death. This is because when in a vegetative state the mental capacities of a person are ideally affected and thus the mental condition is a factor that has to be considered when deciding if a particular death occurred due to a conscientious decision or if it arose from a state of mental instability. Passive euthanasia is illegal according to the provision of common law. However, the matters of application of euthanasia are an apple of discord. There are certain arguments take place regarding the matter that whether it is morally or legally right to terminate the life of a patient or not. According to the legal scholars, where in a case the medical experts have given their consent that the patient has gone into the persistent vegetative state and there is no chance for him to be recovered in the near future, all the medical treatment can be stopped and his life can be terminated. “The majority of doctors thought there would be professional and emotional impacts on doctors if physician-assisted dying were legalised and the majority of the impacts identified by them were negative; many doctors did not see being involved with physician-assisted dying as compatible with their understanding of their fundamental role and remit as a doctor.” Supports have been generated from the part of the Doctors too and they have given their consent over the issue of passive euthanasia. Further, according to the words of Alfred Tennyson, “No life that breathes with human breath has ever truly longed for death”. Further support has been given by New England Journal of Medicine where it has been observed that the life of the patient on bed are quite unbearable, right to death should be applied. Further, with the view of Airedale’s case, it can be stated that if the condition of the patient is deteriorating and there is no chance for survival, it is quite ethical to terminate his life. It hs been argued that that even if the individual is ill or unwell he will have the ability to use the right to life. . It required the doctors to carry out their activities in the interests of the patient. The doctors must show concern and care for the betterment of the patient, which in this case was whether there will be continuation of Band reviving or surviving on life support. It can therefore be applied that the concept of right to life is appropriate in the above discussed situation. If this right of the patient is applied, then he will not have to face any kind of trouble in a vegetative state. Being in a vegetative state is generally not possible for an individual to give consent to the doctors regarding his treatment. However, it can be observed that the right to life of a patient must be utilized in such circumstances. It puts pressure on the patient when they have to give consent by being in unbearable pain. During that level of pain it is not possible for a patient to give his consent regarding the treatment
There have also been counter arguments in relation to allowing people to end their lives. Therefore, it can be argued stating that right to life must be exercised for the patient who is undergoing a medical treatment. On the other hand, it was argued that Mr. Conway was not in the state to live anyway and was expected to die soon. Both the cases dealt with the medical condition of the patients and their consent. However, the duty of the doctors is to take care of the exiting patients. As per the Human Rights Act, right to life is the duty of every individual.
Through the above analysis it can be stated that the vulnerable section of the people will be placed at higher risk because they will have a threat to their safety in relation to the rulings made by the above discussed cases. The Falconer Bill and Joffe Bill are of the same opinion in coming to the implementation of the assisted suicide regime. The doctors have been held in high regard for the role they play in helping the patients and mitigating their pain and therefore, if a law is passed that legalizes assisted killing, the trust levied on doctors shall suffer as the patient will live in fear and suspicion. Therefore, in concluding the arguments advanced by the judges in both the cases have an impact on society as the underlying principle states that there shall be no law that advances the notion of killing anyone. The legislature shall not advance assisted killing and in cases where the patients are dying and are not in the best of their health, there should not be a prolongation of that life.
It is therefore recommended that laws such laws are enacted through which advance assisted killing is allowed in cases where the patients are dying and are not in the best of their health and there should not be a prolongation of that life reasonably.
Reference:
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Course Code: MPM755
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The process of developing a successful business entity requires a multidimensional analysis of several factors that relate to the internal and external environment in commerce. The areas covered in this current unit are essential in transforming the business perspective regarding the key commerce factors such as ethics, technology, culture, entrepreneurship, leadership, culture, and globalization (Nzelibe, 1996; Barza, 2…
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Critical reflection on the objective, design, methodology and outcome of the research undertaken Assessment-I
Smoking and tobacco addiction is one of the few among the most basic general restorative issues, particularly to developed nations such as the UK. It has been represented that among all risk segments smoking is the fourth driving purpose behind infections and other several ailments like asthma, breathing and problems in the l…
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Course Code: BSBHRM513
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MKT2031 Issues In Small Business And Entrepreneurship
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