Low-threshold fitness test in South Africa and the USA : consequences for the fit but mentally ill accused

An accused, who is unable to follow the criminal proceedings against him/ her on account of mental illness or intellectual disability, could be found unfit to stand trial. Whether the individual is indeed unfit is determined by the fitness test employed in the particular jurisdiction. This article considers the fitness tests employed in South Africa and the United States of America and points out the similarities and differences between them. The threshold for fitness in both these jurisdictions is low, resulting in the majority of accused persons sent for fitness assessments being found fit to stand trial. Amongst these accused are persons with serious mental illness. The article considers the impact of such a low threshold test on the fit but mentally ill accused and considers a therapeutic response to this category of accused persons.Criminal and Procedural La

Access to the medical records of a child : legislative review required

The interplay between the constitutional right to privacy and the right to access to information constitute the parameters within which the issue of access to a child’s medical records is explored. The Children’s Act and the National Health Act provide for confidentiality pertaining to medical records and encourage participation in decisions affecting an individual’s health. The question arises whether existing legislation has been amended to support this right to confidentiality. An inquiry is done to establish if this right to confidentiality entails that the child is vested with the right to refuse access to his/ her medical records? Current legislative provisions regulating this issue do not provide a clear answer. Recommendations are made for legislative amendments to bring clarity on this issue and to ensure that the child’s right to privacy in the health-care context is optimally protected.Criminal and Procedural La

The unfit accused in the South African criminal justice system: from automatic detention to unconditional release.

Section 77 of the Criminal Procedure Act 51 of 1977 sets out the orders that a court can make after finding an accused unfit to stand trial on account of his mental illness or intellectual disability. All the orders result in detention of the unfit accused in prison or a psychiatric institution (depending on the nature of the charges against the accused) in terms of the Mental Health Care Act 17 of 2002. The court could not consider the treatability of the accused’s condition or any individual circumstances of the accused before ordering such detention. Section 77 was recently amended by the Criminal Procedure Amendment Act 4 of 2017. The Amendment Act resulted from the Constitutional court’s judgment in De Vos NO v Minister of Justice and Constitutional Development 2015 (2) SACR 217 (CC) where the court found, inter alia, that such limited orders deprive the court of its discretion to craft an order that is suitable for the particular unfit accused. The court ruled on the constitutionality of detaining an unfit accused in prison or a psychiatric institution and found some provisions of s 77 that facilitates such detention, unconstitutional. The Amendment Act brings s 77 in line with the Constitution. This contribution explores the orders available to the court before and after the amendment of s 77 and conveys the crux of the court’s judgment in the De Vos matter pertaining to the unconstitutionality of certain provisions of s 77. It concludes that the amendment bolsters, in particular, the unfit accused’s right to freedom and security of the person as the court may now order the conditional or unconditional release of the unfit accused where appropriate.College of La

Deciphering the Composition of Section 79- Assessment Panels in the Criminal Procedure Amendment Act 4 of 2017

Section 79 of the Criminal Procedure Act 51 of 1977 provides for the appointment of mental health professionals to assess an accused’s fitness to stand trial and/or criminal capacity if the court orders such an enquiry in terms of sections 77 and 78 of the Criminal Procedure Act. In terms of section 79, one mental health professional must assess an accused charged with a non-violent offence, whereas a panel of such professionals must assess an accused charged with an offence involving serious violence. The legislative provisions regarding the appointment of mental health professionals to a section 79-assessment panel are not without ambiguity. Section 79(1)(b) read with section 79(13) is problematic. Directives issued by the National Prosecuting Authority in terms of section 79(13) do not aid in clarifying the legal position either. The main point of contention is whether a section 79-assessment panel must consist of a minimum of two or three psychiatrists. This ambiguity creates challenges for presiding officers tasked with appointing section 79-assessment panels. When presiding officers appoint these panels incorrectly, it causes delays in the assessment process and the delivery of justice to the accused and the victim. The court considered the interplay between section 79(1)(b) and section 79(13) in S v Pedro 2015 1 SACR 41 (WCC). The judgment highlights the need to clarify the position in the Criminal Procedure Act regarding the appointment of section 79-assessment panels. This case provided the impetus for the amendment of section 79 through the Criminal Procedure Amendment Act 4 of 2017. This contribution explores the composition of section 79-assessment panels as provided for in the Criminal Procedure Act. Section 79(1)(b) and the seemingly contradictory provisions contained in section 79(13) are discussed. The S v Pedro judgment is discussed with a specific focus on the court’s interpretation of the interplay between these two provisions. Following the S v Pedro judgment, the Criminal Procedure Amendment Act 4 of 2017 amended section 79. This contribution explores the clarifying provisions of the Amendment Act regarding the composition of assessment panel

Investigating the Reasons behind the Increase in Medical Negligence Claims

Medical negligence claims have increased significantly over the last number of years. The trend is still ongoing and concerns have been raised about the impact of this increase on the medical industry. Medical practitioners are increasingly practising defensive medicine in an attempt to limit the risk of medical negligence claims being instituted against them. Medical negligence claims are instituted for a number of reasons, such as lack of communication between doctor and patient. Birth-related claims are instituted most frequently. This contribution investigates the possible reasons behind the increase in both the value and the number of medical negligence claims. The focus falls especially on the increase in the number of claims. The contribution considers a decline in the level of professionalism amongst medical practitioners as one reason behind the increase, followed by the possibility that lawyers may be responsible for the increase in claims. In addition, it is pointed out that patients are simply becoming more aware of their rights. The contribution further focuses on patient-centred legislation and pronouncements by courts that bolster patient autonomy and place patients in an ever stronger position to enforce their rights. Relevant provisions of the Constitution, the National Health Act, the Consumer Protection Act and the Children's Act are singled out for discussion, followed by a brief discussion of case law in line with themes identified in the aforementioned legislation. The contribution submits that the increase in medical negligence claims should not come as a surprise, considering the high regard that our courts had for patient autonomy even before the enactment of the 1996 Constitution. The Constitution and the above legislation now contain specific rights that patients, including child patients, can enforce. The best interests of the child principle embodied in both the Constitution and the Children's Act is very prominent in the medical context and impacts on the medical practitioner's responsibilities towards a child patient. The Constitutional Court relied on this principle in its recent judgment to the effect that claims for wrongful life (brought by a child with a disability), may possibly have a place in our law. If the claim for wrongful life is eventually confirmed, we will no doubt see a further increase in medical negligence claims.  Patient-centred legislation and pronouncements by our courts that constantly reiterate the importance of patient rights arguably create very fertile ground for medical negligence claims. These are, as the contribution concludes, merely contributing factors to the phenomenon under investigation.      &nbsp

Mentally ill accused in South African criminal procedure: evaluating the mental health court model as therapeutic response

Mental illness that affects an accused’s fitness to stand trial is an ill-explored topic in the South African criminal justice system. The necessity to explore this topic is motivated by the increasing number of persons with mental illness moving into the criminal justice systems in South Africa, Canada, and the United States of America. An accused’s fitness to stand trial is assessed once concern about his ability to follow the proceedings, or give proper instructions to his legal representative, is in doubt. The assessment is conducted in the forensic system where the vastly different fields of law and psychiatry meet. The South African forensic system is plagued with resources and skills shortages. These inadequacies cause delays in resolving pre-trial issues for an accused in respect of whom fitness is at issue. The accused is oftentimes detained in a correctional facility awaiting fitness assessment for anything between three months to two years. Generally, detention in a correctional facility has a negative effect on the mental state of a person with a mental illness. The logistics of fitness assessments differ between the three jurisdictions referred to above. However, the threshold for fitness in these jurisdictions is relatively low, with the result that the majority of accused persons sent for fitness assessments are found fit to stand trial. Such a finding does not imply that the accused is not mentally ill; it simply means that the illness does not affect his understanding of the court proceedings and that it does not influence his ability to communicate with his legal representative. An accused with a serious mental illness such as schizophrenia or major depression can, for example, be found fit to stand trial. After a fitness assessment, a court may either find an accused fit to stand trial or unfit to stand trial. The fact that many persons found fit to stand trial have a mental illness suggests that there is a third category on the fitness continuum that must be acknowledged, namely, fit but mentally ill accused persons. No alternatives to traditional prosecution currently exist in South Africa for this third group of accused persons despite the fact that their situation in the criminal justice system calls for a therapeutic response. The South African legislative framework that regulates fitness assessments and the processes associated therewith are not without challenges. The assessment practices have recently been under scrutiny by the Constitutional court, which judgment changed the position for the accused found unfit to stand trial. The position of the fit but mentally ill accused remains unregulated. The Canadian and American criminal justice systems have implemented diversion programmes for fit but mentally ill accused persons in the form of Mental Health Courts. The underlying principle of a Mental Health Court is therapeutic jurisprudence. Therapeutic jurisprudence evaluates the impact of the law on those in conflict with it. It promotes the inclusion of expertise from other disciplines to improve the effectiveness of the law in a particular set of circumstances. Many South African scholars acknowledge the need for mental health expertise in the criminal justice system, and suggestions have been made for the diversion of mentally ill accused persons charged with minor offences. Those above notwithstanding, no formal diversion programmes exist in South Africa for the fit but mentally ill accused. This research investigates the Mental Health Court as a therapeutic response to the mentally ill accused in the South African criminal justice system. The Mental Health Court models as employed in Canada and the United States of America are studied to identify elements thereof that can be employed in the South African context to provide an effective alternative to traditional prosecution for the mentally ill accused. The Toronto Mental Health Court is studied in the Canadian context as a court that is not a diversion programme as such but has a diversion component attached to it. Diversion in Canada is reserved for those charged with less serious offences, and only these accused persons are allowed into the diversion component of the Mental Health Court. However, the Canadian Mental Health Court assists those who do not qualify for diversion but who need the specialised skills of the Mental Health Court for purposes of, for example, a bail application. The Brooklyn Mental Health Court in the United States of America is investigated as a model that constitutes a complete diversion programme and considers diversion of accused persons charged with more serious offences. The unique structure and procedure of each of these Mental Health Courts are investigated with due consideration to the eligibility criteria of each and the sanctions employed for non-compliance of the court-monitored treatment programmes. Further, the successes and challenges of each model are highlighted. Finally, a proposal is made for a Mental Health Court model mindful of the uniquely South African factors that have to be taken into account when building such a model. Amendments to the existing legislative framework are proposed to incorporate a Mental Health Court as a therapeutic response to mentally ill accused persons in the South African criminal justice system.Criminal and Procedural La

Considering Mental Health Courts for South Africa: Lessons from Canada and the United States of America

Under the South African criminal justice system, mentally ill persons in conflict with the law spend long periods awaiting forensic assessment, owing to resource shortages (staff and available beds). Accused persons awaiting forensic assessment are often kept in correctional facilities where mental health care services are lacking. This leaves many accused individuals who are mentally ill at risk of falling between the proverbial cracks of the system. The diversion of the accused with mental illness from the criminal justice system into a treatment programme could address this problem. Currently no such formal diversion option exists in South Africa. Mental health courts as a formal diversion option are gaining popularity in jurisdictions such as Canada and the United States of America, where delays with forensic assessments and, in particular, pre-trial fitness assessments are rife. These courts employ therapeutic jurisprudence to deliver justice. This contribution explores the nature of a mental health court and looks at such courts in Canada and the United States of America and considers whether South Africa could benefit from such a court and whether it would be viable within the South African legislative framework.College of La

Investigating the Reasons behind the Increase in Medical Negligence Claims

Medical negligence claims have increased significantly over the last number of years. The trend is still ongoing and concerns have been raised about the impact of this increase on the medical industry. Medical practitioners are increasingly practising defensive medicine in an attempt to limit the risk of medical negligence claims being instituted against them. Medical negligence claims are instituted for a number of reasons, such as lack of communication between doctor and patient. Birth-related claims are instituted most frequently. This contribution investigates the possible reasons behind the increase in both the value and the number of medical negligence claims. The focus falls especially on the increase in the number of claims. The contribution considers a decline in the level of professionalism amongst medical practitioners as one reason behind the increase, followed by the possibility that lawyers may be responsible for the increase in claims. In addition, it is pointed out that patients are simply becoming more aware of their rights. The contribution further focuses on patient-centred legislation and pronouncements by courts that bolster patient autonomy and place patients in an ever stronger position to enforce their rights. Relevant provisions of the Constitution, the National Health Act, the Consumer Protection Act and the Children's Act are singled out for discussion, followed by a brief discussion of case law in line with themes identified in the aforementioned legislation. The contribution submits that the increase in medical negligence claims should not come as a surprise, considering the high regard that our courts had for patient autonomy even before the enactment of the 1996 Constitution. The Constitution and the above legislation now contain specific rights that patients, including child patients, can enforce. The best interests of the child principle embodied in both the Constitution and the Children's Act is very prominent in the medical context and impacts on the medical practitioner's responsibilities towards a child patient. The Constitutional Court relied on this principle in its recent judgment to the effect that claims for wrongful life (brought by a child with a disability), may possibly have a place in our law. If the claim for wrongful life is eventually confirmed, we will no doubt see a further increase in medical negligence claims.  Patient-centred legislation and pronouncements by our courts that constantly reiterate the importance of patient rights arguably create very fertile ground for medical negligence claims. These are, as the contribution concludes, merely contributing factors to the phenomenon under investigation.      &nbsp

Plausible subjective experience versus fallible corroborative evidence: The formulation of insanity in Nigerian criminal courts

Insanity as a defence against criminal conduct has been known since antiquity. Going through significant reformulations across centuries, different jurisdictions across the globe, including Nigeria, have come to adopt various strains of the insanity defence, with the presence of mental disorder being the causative mechanism of the crime as their central theme. A critical ingredient in the Nigerian insanity plea is the presence of ‘mental disease’ or ‘natural mental infirmity’ as the basis for the lack of capacity in certain cognitive and behavioural domains resulting in the offence. Mental disorders, which are the biomedical formulations of this critical legal constituent are primarily subjective experiences with variable objective features. Using illustrative cases based on psycho-legal formulation as well as reform-oriented and fundamental legal research, it is shown that Nigerian courts have held that claims of insanity based on the accused person’s evidence alone should be regarded as “suspect” and not to be “taken seriously.” Thus, Nigerian judicial opinions rely on non-expert accounts of defendants’ apparent behavioural abnormalities and reported familial vulnerability to mental illness, amongst other facts while conventionally discountenancing the defendants’ plausible phenomenological experiences validated by expert psychiatric opinion in reaching a conclusion of legal insanity. While legal positivism would be supportive of the prevailing judicial attitude in entrenching the validity of the disposition in its tenuous precedential utility, legal realism invites the proponents of justice and fairness to interrogate the merit of such preferential views which are not supported by scientific evidence or philosophical reasoning. This paper argues that disregarding the subjective experience of the defendant, particularly in the presence of sustainable expert opinion when it stands unrebutted is not in the interest of justice. This judicial posturing towards mentally abnormal offenders should be reformed on the basis of current multidisciplinary knowledge. Learning from the South African legislation, formalising the involvement of mental health professionals in insanity plea cases, ensures that courts are guided by professional opinion and offers a model for reform

Plant-based meat alternatives in South Africa : an analysis of products on supermarket shelves

DATA AVAILABILITY STATEMENT : Data that support the findings of this study are available from the corresponding authors upon reasonable request.All over the world, the development of products that resemble meat but contain predominantly plant-sourced ingredients is a prime focus. Meat obtained by rearing animals is associated with a range of important issues related to the sustainability of the planet. Locally, the topic is trending and the cause of various debates among industry role players. This study aimed to explore and analyze plant-based meat alternative (PBMA) products in the South African retail market as well as review internal (nutritional content and ingredients) and external (country of origin, cost/kg, and label claims) factors of the products. This study also compared the nutritional content of PBMA and comparative meat products. Seventy-eight PBMA products were included: plant-based sausages (n = 23), burgers (n = 31), chicken-style (n = 11), mince (n = 8), and an “other” (n = 5) category providing for a variety of product lines. Information from product packaging (total fat, saturated fat, fiber, protein, sugar, sodium, carbohydrates, and energy density) was extracted for all PBMA (n = 78) and comparative meat product lines (n = 28). Meat products tended to be comparatively higher in saturated fat, while PBMAs were higher in carbohydrate, sugar, and dietary fiber content. Sodium content of plant-based mince was approximately five times higher than beef mince. On-pack claims for PBMAs included vegetarian/vegan/plant based (80% of products), high in/source of protein (48%), containing no genetically modified organisms (GMOs; 16%), and gluten free (26%). The plant protein trend has prompted innovation in PBMAs, however, wide nutrient ranges and higher sodium levels highlight the importance of nutrition guidelines for their development to ensure healthier product offerings to consumers. The findings of this study may assist in exploration of consumers' preferences/attitudes or engagement with PBMA products, which could, in turn, guide new product development within the category. However, information about possible barriers, drivers, consumer expectations, and attitudes toward these products is also required.European Union's Horizon 2020.http://www.wileyonlinelibrary.com/journal/fsn3hj2024Consumer ScienceFood ScienceSDG-02:Zero Hunge