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Doctoral Degrees (Medical Law)

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    Death and dying in a constitutional democracy – an analysis of the South African criminal law and a call for law reform.
    (2022) Bhamjee, Suhayfa.; Freedman, David Warren.; Reddi, Managay.
    Murder is defined as the unlawful and intentional causing of the death of another human being. Suicide is not a crime. In South Africa, the act of assisting another person to commit suicide is prosecutable under the broad category of crimes classified as homicide – murder, attempted murder and culpable homicide; whether the assistance is the direct administration of a fatal drug or through the provision of the means by which to commit suicide. The current formulation of the common law is broad enough to include medically assisted yet consented-to deaths within the definition of the crime of murder. Some jurisdictions have decriminalised the acts of physician-assisted suicide and physician-administered euthanasia (collectively called voluntary active euthanasia -VAE) under specific conditions, notably the nature of the illness and the fact that a patient has requested and given informed consent for such assistance. In South African law, consent is not a defence to a charge of murder and, consequently, does not justify VAE, which is categorized as murder. When the elements of criminal liability are applied to VAE, they prove that the physician who assists a patient acts both causally and intentionally and cannot escape criminal liability because consent is not a defence in these circumstances. In contrast to VAE, deaths consented to, intended and caused through passive euthanasia practices (e.g. withdrawing treatment or withholding treatment and/or life-sustaining mechanisms and the administration of palliative care and palliative/terminal sedation) have been medicalised. In other words, this form of intentionally causing the death of a patient is seen as a legitimate form of medical treatment, even though it undeniably hastens and causes death. However, for policy reasons is not treated as nor categorised as the crime of murder, provided that the patient has consented to (either personally or through a proxy) such fatal medical treatment. The question of whether VAE should be de-criminalised was ventilated in 1998 when the South African Law Reform Commission considered arguments for and against decriminalisation of the practice, and a draft bill to that effect was prepared. To date, there has been no progress towards law reform by the Legislature. The case of Stransham-Ford re-ignited the issue. However, for various reasons, the court did not effect any change to the status quo. The Supreme Court of Appeal, however, did indicate that if a proper case was made, it might result in the development of the law to accommodate for a lawful form of medically-assisted dying. However, this would first require a thorough investigation into the reasons why the practice is unlawful and criminal in the light of the definitional elements of the crime of murder and the policy reasons for such criminalisation. Only once that has been thoroughly canvassed, can the question of the limit placed on autonomy and patient consent be gauged for whether consent could be a defence in the specific and limited circumstance of a VAE scenario. At its core, the focus turns to autonomy in decision making, policy reasons for disregarding autonomy, and whether arguments for and against decriminalisation can be sustained in light of the spirit, purport and objects of the Bill of Rights of the Constitution. Those in favour of the decriminalisation of VAE argue that the limit on autonomy and consent violates the constitutionally guaranteed rights to dignity, life and privacy. Those who are against it argue that the limit on autonomy is necessary to protect and preserve these very same rights. An analysis of these rights and the arguments can help determine whether reform or retention would be reasonable and justifiable under a Constitutional dispensation. This thesis considers the elements of criminal liability and the purpose for which the act of assisting another to die at their request has been criminalised to the extent that conduct on the part of an assisting physician is prosecutable as the common law crime of murder. The conclusion reached is that in the light of constitutional advancements, particularly in relation to the right to dignity as informed by autonomy, it is possible to decriminalise assisted dying when strictly confined to VAE in the medical context by moving from a position of criminalisation to medicalisation of the practice, as has been the case with passive euthanasia. This thesis advocates for neither a pro-life nor a pro-death policy but rather a pro-choice one, which would be in accordance with the cornerstone of constitutionalism in a state governed by constitutional democracy.
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    Developing and applying a constitutional rights-based approach to the regulation of the modifiable risk factors for noncommunicable diseases in South Africa.
    (2022) Karim, Safura Abdool.; McQuoid-Mason, David Jan.
    Non-communicable diseases (NCDs) caused by unhealthy diet, contribute significantly to South Africa’s burden of disease and are preventable. Policies and laws offer an evidence-based mechanism improve diet and prevent NCDs. However, the adoption of these measures is complex, often facing opposition from many actors. To address these challenges to the adoption of these interventions, scholars have looked to develop human rights-based (HRbased) approaches to the prevention of obesity and diet-related NCDs. These approaches have the advantages of supporting and guiding government action on NCDs, holding various actors accountable and providing a means to manage the competing rights implicated in NCD prevention efforts. However, to fully realise the benefits of an HR-based approach to NCDs, there is a need to anchor the approach in context-specific rights married with concrete and enforceable obligations. This thesis seeks to develop an HR-based approach to NCDs under the rubric of the South African Constitution. Often the right to health or the right to food can form the basis of an HR-based approach to NCDs. However, the peculiarities of section 27 of the Constitution require that the content of these rights be further developed to encompass NCD prevention, particularly where the interventions sit outside the healthcare system and are not biomedical in nature. This thesis explores and develops the content of the right to healthcare and the right to sufficient food to identify obligations that could support action on NCD prevention. Recognising that NCD prevention interventions may limit individual rights, this thesis then explores the relationship between public health and HR through the lens of colliding rights and section 36. Since many NCD prevention interventions may be novel, there arise implications for the section 36 limitations analysis. This thesis therefore addresses the application of section 36 analysis to novel NCD prevention interventions, outlining the kinds of considerations influencing whether the limitation of rights by a public health intervention can be found to be justifiable. This thesis with recommendations on how this HR-based approach may be used in South Africa to prevent NCDs.
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    Access to healthcare in the age of CRISPR: an analysis of the right to heritable human genome editing in the context of the tuberculosis epidemic in South Africa.
    (2022) Kamwendo, Tamanda Agatha.; Thaldar, Donrich Willem.
    Tuberculosis (TB) is the leading cause of death from infectious diseases in South Africa and a major risk to global health security. Although notable progress has been made towards TB control, its effectiveness has been limited, partly due to acquired resistance during the first-line TB treatment or poor patient adherence to the treatment. Considering that genetic factors play an important role in one’s susceptibility to TB, it is imperative that all aspects of vertices of the TB triad — a susceptible host gene, pathogen, and environment — be considered in formulating treatment. CRISPR-CasX is a revolutionary new approach to genetic modification that promises effective disease treatment and control in humans. This thesis explores the right to heritable human genome editing in South Africa in the specific context of TB treatment. Against this backdrop is the uncertainty of the ambit of the Constitutional commitment to ensure that all South Africans have access to healthcare services such as gene-editing services. As a result, the application of gene-editing technology for TB treatment is contingent on how this the right of access to healthcare services is interpreted. This thesis endeavours to show how the right of access to healthcare should be interpreted as being inclusive of access to geneediting technology. This study hence serves as an appraisal for South Africans on how to demand access to gene-editing services as a legal right in the search for a suitable treatment for TB. The thesis also provides momentum for South African policymaking by providing recommendations for research and the clinical use of CRISPR therapeutics as a medicinal product as the country has no gene-editing-specific policies or statutes.
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    An Afrocentric approach to CRISPR-Cas9: analysing the use of genetic technologies in human reproduction through the lens of human rights and African values.
    (2021) Shozi, Bonginkosi.; Thaldar, Donrich Willem.
    In the wake of the advent of genome editing technology CRISPR-Cas9, there has been global debate about the potential use of this technology on human gametes or embryos to create individuals with genetically modified genomes. This is a process commonly referred to as germline genome editing (GGE). Given that several countries, including South Africa (SA), have no regulation speaking to GGE, many proposals have been put forward regarding how this technology ought to be regulated in a way that attends to the ethical issues raised by the prospect of modifying the genomes of future generations. Within this global discourse, however, there are several material gaps. Most notably, the proposals have primarily been framed through a Eurocentric paradigm that omits material contextual considerations relevant to SA and the African continent. Furthermore, the proposals tend to be based on value judgements on ethical issues — such as the moral significance of the human genome — rooted in the Western philosophical tradition. This thesis endeavours to respond to these gaps by providing a novel theoretical approach to the regulation of GGE in South Africa, termed an ‘Afrocentric approach’. This approach entails responding to the legal, ethical and human rights issues related to GGE that is rooted in an African philosophical perspective on these issues, and that is sensitive to the realities of the South African context. This thesis concludes that SA ought to be open to the prospect of parents modifying the genomes of future offspring but must also place reasonable and evidence-based constraints on GGE. This thesis finds that there is a tenable argument that prospective parents have a ‘right to CRISPR’, but this right may be limited. Such limitations must be rationally related to the goals of (1) protecting public interests, or (2) promoting the best interests of the prospective child.
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    The legal consequences of artificial insemination and embryo transplantation in humans.
    (1982) Lupton, Michael Leslie.
    No abstract provided.