Are the restrictive provisions of sections 2(1)(c) and 5(5)(b) of the Choice on Termination of Pregnancy Act 92 of 1996 unconstitutional?

Sections 2(1)(c) and 5(5)(b) of the Choice on Termination of Pregnancy Act 92 of 1996 only allow a termination after the 20th week of gestation on very limited grounds. No provision is made for terminations of pregnancies arising from rape or incest. Therefore women survivors of rape or incest who, for reasons beyond their control, postpone their decisions to terminate until the third trimester will not qualify for a legal abortion unless they fall under the existing grounds in the Choice Act. The provisions of the Choice Act regarding the third trimester are more restrictive than those in section 3(1) of the Abortion and Sterilization Act 2 of 1975. The latter did not adopt a trimester approach and allowed a termination on the grounds of rape or incest at any stage of the pregnancy — subject to certain conditions concerning the verification of the cause of the pregnancy. By excluding rape and incest as grounds for termination of pregnancy in the third trimester the Choice Act imposes an “undue burden” on women who are survivors of rape or incest and their exclusion is unconstitutional

Access to justice and the role of law schools in developing countries: Some lessons from South Africa: Part 2: 1990 until the present

Access to justice in South Africa improved dramatically during the 1990s, especially after the introduction of a constitutional democracy in 1994. Although the Constitution guarantees access to legal representation in criminal cases this has posed new challenges for law schools and law clinics regarding civil cases. The right to legal representation in civil matters has not been tested in the Constitutional Court, and the burden of providing this service is increasingly falling on NGOs and law clinics, particularly in respect of social and economic rights. This has led to exciting new opportunities such as law clinics and NGOs entering into formal partnerships with the state-funded legal aid scheme to assist in the delivery of legal services and advice. As a result law clinic operations have become more focused and more sophisticated. At the same time “Street law” programmes are assisting the government in achieving its mission of promoting a culture of legality, human rights and democracy. The South African experience is that law schools in developing countries can make a significant contribution to access to justice in both repressive and democratic political environments. They can do likewise in educating ordinary citizens about their legal rights. What sets developing countries apart from developed countries is that law schools in the former have a special duty to serve their communities. This is because they often operate as a privileged island in a sea of scarce resources, particularly when it comes to providing access to justice for the poor

May a sample be legally removed or an autopsy undertaken without an advance directive or proxy consent to determine whether a critical care patient at risk of COVID-19 infection has died as a result of the virus?

It has recently been suggested that ethically and legally the obtaining of biological samples for research after death during the COVID-19 pandemic in South Africa justifies a waiver of consent followed by a deferred proxy consent. However, it is submitted that because deceased persons are not protected by the Constitution, and only partially protected by common law and statute law, such consent and the need for consent to autopsies may be dispensed with altogether under the common law doctrine of ‘necessity’. It is pointed out that such information is in the public interest because it will inform critical care facilities on how to save lives of future patients and assist government in responding to the COVID-19 pandemic by adequate planning. It is also reasonably justifiable in the public interest to ascertain the COVID-19 status of deceased persons who may have been exposed to the virus, in order to protect their family, friends, healthcare practitioners, undertakers and staff members, and members of the public with whom they have been in contact. Finally, it is suggested that the law can be clarified by amending the Disaster Management COVID-19 regulations to do away with consent for such autopsies or tissue sample collections from deceased persons exposed to the risk of contracting the virus, subject to certain conditions.

Parents refusing blood transfusions for their children solely on religious grounds: Who must apply for the court order?

The South African Constitution provides that children have the right to healthcare, as well as all other rights. Furthermore, in all matters affecting them, their best interests must be ‘of paramount importance’. It seems common practice that, when parents refuse blood transfusions for their children solely on religious grounds, doctors and health authorities apply for a court order to overturn such refusals. However, since the implementation of the Children’s Act of 2005, it may be that the onus is no longer on doctors and authorities to apply to court to reverse the decision of parents and guardians. It can be argued instead that the burden has shifted to the parents to apply to court for an order to overrule the decision of doctors, by proving to the court that alternative choices are available. Guidance is given for situations, particularly in the public sector, where alternative choices are not availabl

Do COVID-19 patients needing extended care in an intensive care unit fall under the ‘emergency medical treatment’ provisions of the South African Constitution?

Whether COVID-19 patients in need of extended care in an intensive care unit qualify for ‘emergency medical treatment’ is answered by considering the Constitution, the meaning of emergency medical treatment, and whether such patients are in an incurable chronic condition. Considering ethical guidelines for the withholding and withdrawal of treatment may assist a court in determining whether a healthcare practitioner has acted with the degree of skill and care required of a reasonably competent practitioner in his or her branch of the profession

Sending patients electronic reminders on the need for urgent treatment to prevent life-threatening illnesses: Some lessons to be learned and a cautionary reminder

A patient’s widow recently successfully sued a doctor who had not followed up on unanswered SMS (text) messages sent to her husband warning him that he needed urgent treatment for a life-threatening form of malaria. The messages had gone to her late husband’s previous cellphone number and were never received by him. The doctor raised several false defences and attempted to defend himself without being represented by a lawyer. This article highlights a number of important lessons about the dangers of relying exclusively on electronic messaging, raising spurious defences, and resorting to self-representation in serious malpractice cases. It also makes some suggestions on what should be done to avoid such dangers

Can’t get no satisfaction: the law and its customers: are universities and law schools producing lawyers qualified to satisfy the needs of the public?

The manner in which law students are taught and trained at undergraduate and post-graduate level impacts on the quality of the legal services that are delivered to clients once students qualify as legal practitioners