Assisted suicide and assisted voluntary euthanasia: Stransham-Ford High Court case overruled by the Appeal Court – but the door is left open

Whether persons wishing to have doctor-assisted suicide or voluntary active euthanasia may make a court application based on their rights in the Constitution has not been answered by the Appeal Court. Therefore, if Parliament does not intervene beforehand, such applications can be made – provided the applicants have legal standing, full arguments are presented regarding local and foreign law, and the application evidence is comprehensive and accurate. The Appeal Court indicated that the question should be answered by Parliament because ‘issues engaging profound moral questions beyond the remit of judges to determine, should be decided by the representatives of the people of the country as a whole’. However, the Government has not implemented any recommendations on doctor-assisted suicide and voluntary active euthanasia made by the South African Law Commission 20 years ago. The courts may still develop the law on doctor-assisted death, which may take into account developments in medical practice. Furthermore, ‘the possibility of a special defence for medical practitioners or carers would arise and have to be explored’

Life Esidimeni deaths: Can the former MEC for health and public health officials escape liability for the deaths of the mental-health patients on the basis of obedience to ‘superior orders’ or because the officials under them were negligent?

Arising out of the reported evidence in the Life Esidimeni Arbitration hearings into the deaths of mental-health patients, the question arises as to whether the former member of the executive committee (MEC) for health, the mental health director, the head of the department of health and the project manager can use the defence of ‘superior orders’ to escape criminal or civil liability. Can the former MEC for health escape liability, by blaming the mental health director, the head of the department of health and the project manager for the deaths, as she did in her evidence? It is suggested that based on the reported evidence, neither the former MEC for health nor the mental health director, the head of the department of health nor the project manager can escape liability for negligently causing the deaths of the patients. They could all be prosecuted for culpable homicide, and in some instances – depending on the results of the arbitration hearings – be held liable to compensate surviving mentally ill patients for physical or psychological harm, and the families of deceased patients for psychological harm

Postoperative care: From a legal point of view, whose responsibility is it?

An ear, nose and throat surgeon recently asked if anyone else would be responsible postoperatively for removing a patient’s throat pack that had been negligently left in place by the anaesthetist. Generally, members of the operating or treatment team such as anaesthetists, surgeons and circulating nurses are not legally liable for one another’s negligent acts or omissions in theatre or postoperatively. However, in situations where one or both of the other members of the team could have directly intervened to prevent harm to a patient and failed to do so, such team members could have legal liability imposed on them as joint wrongdoers, e.g. where a throat pack is negligently left in a patient by an anaesthetist

Public health officials and MECs for health should be held criminally liable for causing the death of cancer patients through their intentional or negligent conduct that results in oncology equipment not working in hospitals

Public health officials and Members of the Executive Council (MECs) for health who allow cancer patients to die because of a failure to renew service contracts for hospital oncology machines – without providing a viable alternative – may be found guilty of having the ‘eventual intention’ to cause such deaths, and convicted of murder if the other elements of the crime are satisfied. Should the National Prosecuting Authority (NPA) decline to prosecute them for murder, they may still be prosecuted for culpable homicide. To succeed in such a prosecution, the NPA would have to prove that reasonable public health officials in their position would have foreseen that a failure to renew service contracts for oncology machines at a hospital might deprive scores of cancer patients of early access to oncology services and result in their deaths

‘Covering doctors’ standing in for unavailable colleagues: What is the legal position?

Covering doctors are those who stand in for colleagues when the latter are unable to deal with their patients. Covering doctors who begin to issue telephonic instructions to nurses or other healthcare practitioners regarding the treatment of the patients they are covering are in the same position as any other doctors treating patients. They cannot argue that the patients they are covering only become their patients once an emergency or crisis occurs or when they see the patients for the first time, and that prior to that their function is merely to monitor the patient’s progress. They also cannot rely on telephone instructions for long periods of time when the patient’s health may be in danger, without seeing the patient. However, if covering doctors are found to be negligent they can still escape liability if the plaintiff cannot prove a causal link between their negligence and the harm that resulted ‘beyond a reasonable doubt’

Can the consent provisions in the Choice on Termination of Pregnancy Act, which do not require children to be assisted by a parent or guardian, be used for live births by caesarian section in emergency situations?

The answer to the question as to whether in emergency situations, when there is no time for the procedures in the Children’s Act No. 38 of 2005 to be followed, doctors may use the consent provisions in the Choice on Termination of Pregnancy Act No. 92 of 1996 (CTOP), which do not require children to be assisted by a parent or guardian, for live births by caesarian section, will depend on how ‘termination of pregnancy’ is defined and interpreted in the CTOP. It is argued that, unless it is modified by Parliament or the courts, the definition in the Act is sufficiently wide to justify doctors using the provisions applicable to the third trimester to rely on the consent of the child alone, in situations where the caesarian section is performed to save the mother’s life or to prevent the fetus suffering the risk of injury. Whatever Parliament or the courts decide, doctors can always fall back on the ‘best interests of the child’ Constitutional principle, using the provisions in the CTOP and standards in the Children’s Act as guidelines for determining the pregnant child’s ‘best interests’ in emergency situations requiring a caesarian section, where there is no time to obtain the consent required by the Children’s Act. Such an approach is also consistent with the bioethical principles of patient autonomy, beneficence, non-maleficence and justice or fairness

A study of the role and functions of inspectors of anatomy in South Africa

Inspectors of anatomy are supposed to monitor and regulate the use of human tissue for teaching and research purposes. In South Africa, provincial inspectors are appointed to oversee this function. However, there is a critical shortage of such persons, and there are only three inspectors currently appointed: one in an acting capacity for KwaZulu-Natal Province, and one each for the Gauteng and Western Cape provinces, respectively. It is imperative, therefore, that the appointment of inspectors of anatomy in the other provinces be addressed urgently. The responsibilities of inspectors of anatomy towards higher-education institutions are to: (i) maintain cadaver records; (ii) ensure that cadavers are obtained in a legal and ethical manner; (iii) carry out inspections of anatomy departments at least once a year; (iv) evaluate health and safety with regard to the storage of specimens; and (v) monitor cadaver procurement. This study recommends the establishment of a National Consultative Anatomy Forum to make decisions on: (i) the type of consent required for donations of bodies; (ii) the mechanisms for the donation of bodies for teaching and research; and (iii) the treatment of unclaimed and/or unidentified bodies. In addition, the forum should advise government on policy, and provide guidelines for the donation and use of cadavers and human tissue

Gastric intramucosal pH predicts outcome after surgery for ruptured abdominal aortic aneurysm

Objective:The mortality associated with repair of ruptured abdominal aortic aneurysms (RAAA) remains obstinately high and many deaths result from multiple organ failure which is likely to be related to splanchnic ischaemia. The aim of this study is to investigate the importance of splanchnic ischaemia in determining outcome from RAAA by comparing gastric intramucosal pH with other methods of assessing the adequacy of splanchnic oxygenation.Design and setting:Prospective cohort of patients following surgery for RAAA admitted to the Intensive Care Unit of Guy's Hospital, London.Outcome measures:Gastric intramucosal pH (pHim) and global haemodynamic, oxygen transport and metabolic variables were measured on admission, at 12 h and at 24 h after admission. Results were compared between survivors and non-survivors and Receiver Operating Characteristic (ROC) curves were constructed to assess the ability of each measurement to predict outcome.Results:The median 24 h APACHE II was 18 and the ICU mortality 45.5%. Gastric pHim was significantly higher in survivors than non-survivors at 24 h (7.42 vs. 7.24, p < 0.01). In survivors who had a low intramucosal pH (pHim) on admission there was a significant improvement over the first 24 h (7.26 to 7.40, p < 0.05), whereas in patients who subsequently died, and had a normal pHim on admission, there was a significant fall in pHim (7.35 to 7.16, p < 0.05). ROC curves showed that gastric pHim was the most sensitive measurement for predicting outcome in these patients.Conclusions:Gastric intramucosal pH is the most reliable indicator of adequacy of tissue oxygenation in patients with RAAA, suggesting that splanchnic ischaemia may have played an important role in determining survival