Public health officials and MECs should be held liable for harm caused to patients through incompetence, indifference, maladministration or negligence regarding the availability of hospital equipment

There have been several reports of state hospitals not having functional equipment  such as radiological equipment. Where these are due to incompetence, indifference,  maladministration or negligence by the public officials concerned, they may be held  personally liable for the resulting harm to patients. However, the courts have often  observed that where the State has been sued vicariously for the wrongs of public  officials, it has not obtained reimbursement from the offending official. It has therefore  been suggested that irresponsible public servants should be sued in their personal  capacity (in addition to the State), to prevent taxpayers always having to pay for their  misdeeds. If an individual public official cannot afford to pay all the damages awarded, the injured party can recover the balance from the State by citing it as a vicarious joint wrongdoer

Emergency medical treatment and ‘do not resuscitate’ orders: When can they be used?

The Constitution and the National Health Act provide that nobody shall be refused emergency medical treatment. ‘Do not resuscitate’ (DNR) orders require that certain patients should not be given cardiopulmonary resuscitation to save their lives. Whether there is a conflict between these two requirements is answered by considering: (i) the meaning of emergency medical treatment; (ii) the relationship between emergency medical treatment and DNR orders; (iii) the meaning of futile medical treatment; (iv) the relationship between DNR orders and euthanasia; and (v) when DNR orders may be lawfully used

When may doctors give nurses telephonic treatment instructions?

Doctors are expected to examine their patients before issuing telephonic instructions to nurses. However, in emergencies or when they are aware of the health status of their patients, it may be justified for a doctor to issue telephonic instructions to nurses  without examining the patient. Doctors on call owe a special duty to patients, who they may have to examine or arrange for another doctor to do so before issuing telephonic instructions. In deciding whether doctors acted reasonably in issuing telephonic  instructions to nurses, the courts will decide whether they exercised the same degree of skill and care as reasonably competent practitioners in their branch of the profession. Suggestions are made concerning doctors giving telephonic instructions to nurses  regarding patients they have not examined

Decriminalisation of consensual sexual conduct between children: What should doctors do regarding the reporting of sexual offences under the Sexual Offences Act until the Constitutional Court confirms the judgement of the Teddy Bear Clinic case?

In the Teddy Bear Clinic case, the High Court declared some sections of the Sexual Offences Act unconstitutional, a decision which is still to be confirmed by the Constitutional Court. However, until the Constitutional Court pronounces on the matter, doctors faced with child patients who have been involved in ‘consensual sexual penetration’ or ‘consensual sexual violations’ with other children would be fully justified in not reporting such conduct to the authorities because (i) the High Court has judged the criminalisation of such conduct as unconstitutional, which is likely to be upheld by the Constitutional Court; and (ii) there is no duty to report consensual sexual activities involving children if this would violate the constitutional ‘best interests of the child’ principle

Medico-legal aspects of pathology - current dilemmas regarding confidentiality and disclosure

This article deals with confidentiality and disclosure in the practice of pathology in South Africa. The recent bringing into force of the National Health Act and the proposed implementation of the International Classification of Diseases (ICD 10) codes as well as the furore regarding the accuracy of HIV related mortality statistics emanating from death certificates has focused the spotlight on ethical and legal problems with regard to confidentiality. Medical confidentiality is a duty cast upon a medical practitioner/health care provider (HCP) to keep secret any information, whether relating to a patient's ailment or otherwise, obtained directly or indirectly by the practitioner as a result of the doctor patient relationship. Confidentiality is governed by the ethical rules of the profession and the law. The ethical rules are based on the principles of autonomy and the duty not to harm patients. Rule 20 of the Health Professions Council of South Africa (HPCSA) Ethical Code makes it ethical misconduct to breach confidentiality '…except with the express consent of the patient or, in the case of a minor under the age of 14 years, with the written consent of his or her parent or guardian, or in the case of a deceased patient, with the written consent of his or her next of kin or the executor of his or her estate.' The rule has recently been amplified by Ethical Rules 24 26 of the HPCSA.5 Legally, the confidentiality of patient information is prescribed in the Constitution, statute law and in the common law. Section 14 of the Constitution specifically protects people from unwanted and unnecessary disclosures of information. Section 14 of the new National Health Act1 (NHA) has specific provisions regarding confidentiality, and the common law has recognised an action for invasion of privacy for many years. All these privacy provisions have to be measured against the right of access to information in the Constitution and the Promotion of Access to Information Act

Ethical and legal controversies in cloning for biomedical research - a South African perspective

Therapeutic embryonic stem cell research raises a number of ethical and legal issues. The promised  benefits are new and important knowledge of human embryological development, gene action, and the production of transplantable tissue and organs that could be effective in reversing or curing currently irreversible disease processes. However, this research involves the deliberate production, use, and  ultimate destruction of cloned embryos, hence re-awakening the debate on the moral status of the embryo. Other moral anxieties include the possibility that women (as donors of ova) would be exploited, that this research would land on the slippery slope of reproductive cloning, and that promises made too early could lead to false hope among sick patients. It also raises the question of intellectual and actual  property rights in human cell lines and the techniques by which they are produced. Review of legal systems internationally reveals that there is no global consensus on therapeutic embryonic stem cell research. Legal considerations are very much influenced by ethical  deliberations on the moral status of the embryo. The South African parliament is promulgating legislation permitting therapeutic cloning, thereby demonstrating a commitment by the state to act in the best interests of patients and of regenerative medicine

Chronicles: 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?*

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Teaching Human Rights in Commonwealth University Law Schools: Approaches and Challenges, With Passing References to Some South African Experiences

There have been a number of international commitments by members of the United Nations, including Commonwealth countries, to include human-rights education in their formal and informal education programmes. In addition, the Commonwealth Legal Education Association (CLEA), under the auspices of the Commonwealth Secretariat, has produced a Model Human Rights Curriculum for Commonwealth countries. Despite these initiatives, there appears to have been no systematic programme for introducing human-rights education at Commonwealth universities. An increasing number of Commonwealth law schools, however, have introduced human-rights law by integrating it into existing law courses as a “stand-alone” optional or core course, or as a combination of both. In addition, university-based centres for human rights have been established. The importance of the role that universities can play in advancing human rights in countries transitioning from autocracy to democracy is illustrated with passing references to the South African experience

The South African law and the health profession - Issues in litigation

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