Repository logo

Masters Degrees (Medical Law)

Permanent URI for this collection


Recent Submissions

Now showing 1 - 20 of 82
  • Item
    Conscientious objection to termination of pregnancy in South Africa: analysing the legislative framework governing the rights of patients and healthcare providers.
    (2024) Ganesh, Nivida.; Soni, Sheetal.; Badul, Chantal Jacqueline.
    The termination of pregnancy (TOP), underpinned by international, constitutional and statutory laws, is an essential medical service available to girls and women in South Africa. Health practitioners involved in TOP provision possess the constitutional right to conscientiously object to such services, but this can conflict with the patient’s right to access reproductive healthcare. Therefore, this doctrinal study, through an examination of relevant legal doctrines and other contextual literature, aimed to scrutinise the legislative framework governing the rights of both patients and practitioners concerning TOP and conscientious objection (CO) within the public healthcare sector in South Africa. The findings show that CO primarily relies on the objecting provider's responsibility to refer patients to an alternative and willing provider. However, when considering this duty against the grim backdrop of a dysfunctional and critically under-resourced public healthcare system, undefined or non-existent referral pathways, public health laws incongruent with socio-economic realities, and a lack of policy monitoring structures, it becomes evident that this regulatory mechanism is inadequate to safeguard the rights of the patient. Since CO has the potential to undermine health rights, and social and reproductive justice, targeted advocacy is imperative at legislative, political, social, and health system levels to establish a realistic rights equilibrium within this normative gap. This is a critical starting point in ensuring that girls and women are not unreasonably impeded in their pursuit of TOP care.
  • Item
    Securing the privacy of patients’ electronic personal information in South African hospitals during COVID-19.
    (2021) Singh, Ashwini.; Mnyongani, Freddy Duncan.; Patrick, Hosea Olayiwola.
    South African organisations have been noticeably ill-prepared in their prevention of data breaches, even amidst the coronavirus public health predicament, where a palpable onslaught of cyberattacks targeting the healthcare sector has arisen locally and globally. The true victims of hospital data breaches in particular remain the patients, who are ultimately deprived of their constitutional right to privacy when electronic records containing their personal information become ‘free real estate’ to cybercriminals. The crux of deterrence of such cybercrime is within the principle of prevention via the utilisation of appropriate cybersecurity and information security controls at an organisational level. With the newly promulgated Protection of Personal Information Act (2013) and Cybercrimes Act (2020), greater legal scrutiny is placed upon South African hospitals to defend the privacy of patients’ data stored on their systems. As per the National Health Act (2003), hospitals have a further obligation to maintain the confidentiality of their patients’ records. This study proposes effective cybersecurity and information security practices that lend support in ensuring the confidentiality, integrity and accessibility of patients’ electronic personal information records in South African private hospitals. Compliance thereof would definitively result in enhanced service delivery and data security for these hospitals and patients alike, whilst adhering to the national legislative requirements.
  • Item
    Advancing human rights in patient care through strategic litigation: the case of Uganda.
    (2022) Aruho, Amon.; Mnyongani, Freddy Duncan.
    No abstract provided.
  • Item
    Dignity in death and physician-administered euthanasia: the South African journey so far and likely journey in future.
    (2021) Omodan, Olayinka Olayemi.; McQuoid-Mason, David Jan.
    Although the acceptance of physician assisted suicide and euthanasia has gained acceptance in some countries with different safeguards, it is still not accepted in South Africa either by omission or commission. Some of the arguments for euthanasia are to relieve patients of extreme pain and it protects the dignity of terminally ill patients, who do not wish that their lives be devalued. The major arguments against the practice are based on perspectives from moral, religious and ethical views. This research examined euthanasia and its position in South Africa and other countries. It also studied how the Constitution in relation to the request for physician assisted suicide protects the right to life, the right to human dignity of persons and respect for patient’s autonomy among others. Its aim is to further promote public awareness on the topic. The research was achieved by reviewing literature. The law in South Africa accepts the practice of passive euthanasia which includes the withdrawal or withholding of life sustaining medications where the physician feels that the treatment if continued would be futile. In such case, the doctor is free from criminal liability. Also, they will not be liable when they dispense pain relieving drugs which may later cause the death of a critically ill patient. The stand in South Africa is not static since a patient is permitted by law to stop or refuse the continuation of a life prolonging treatment even if it could lead to his or her death. The few recommendations from the South African Law Commission are yet to be looked into by the Parliament and this has caused a huge setback on reaching a final conclusion about the legality of the practice in South Africa. In cases regarding euthanasia or physician assisted suicide, the courts have decided that each case should be determined by its own merits. The courts have also shifted the responsibility to decide on the topic to the Parliament, being the representative of the people. This has poised a great threat. Result has shown that physician-administered euthanasia, though not legalised in South Africa is not strange to the practice and the courts could be approached. It is an infringement of a person’s dignity not to allow a suffering terminally ill person to be euthanased by their doctor to alleviate their unbearable suffering.
  • Item
    Rising medical negligence litigation: the importance of legislative and ethical knowledge.
    (2021) Ngcobo, Siyabonga Hopewell.; Mnyandu, Ntokozo Steven Nkonzo.
    There has been an increase in medical negligence litigation in the country, both in value and in the number of claims. Health departments, establishments and professionals are facing the financial burden of these increases. The study offers an examination of the legislation and ethical guidelines that govern medical practice. It further elaborates through case law and research what the law and guidelines mean and what they require during the provision of health care. The research argues that the rise in litigation is caused, among others, by the failure to follow appropriate procedure and guidelines when obtaining informed consent, maintaining patient confidentiality and when providing care. Consequently, the research highlights the importance of having good knowledge and understanding of the law and the relevant ethical and practical guidelines as provided for by the Health Professions Council of South Africa and the four pillars of bioethics. When medical professionals follow the guidelines, they will be able to justify their actions and will be able avoid claims of medical negligence. This is because ethical guidelines give medical professionals an established framework of values which serves as a reference point from which they can determine which course of action is most justifiable in the circumstances. Furthermore, medical professionals must realize that the law is not just for lawyers. Being aware of the provisions that regulate the provision of healthcare will enable them to act in a manner that will help them avoid damages claims.
  • Item
    A critical evaluation of the laws pertaining to sterilisations and termination of pregnancies: exposing the gaps and threats.
    (2021) Mthethwa, Mendy Nolwazi.; Strode, Ann Elaine.; Badul, Chantal Jacqueline.
    The right to reproductive health, which is the primary focus of this dissertation, is a component of the right to health. This right has been protected for many years, notably in international human rights instruments, and has over time found recognition in the constitutions of various states, including South Africa. The South African Constitution protects the right to self-determination as well as the right to reproductive health care. In addition to the above, the protection of other Constitutional rights such as the right to dignity, the right to life, the right to equality and the right to access to information further strengthen the right to reproductive health care. The legislature has also given effect to these rights through the enactment of the Choice on Termination of Pregnancy Act (hereinafter referred to as the Choice Act), the Sterilisation Act, as well as the National Health Act. Notwithstanding the state’s efforts to comply with international standards, gaps continue to exist in, firstly, the South African legislative framework and, secondly, the implementation of existing reproductive health laws. These gaps have manifested, inter alia, in women having limited access to termination services; the continued threats and subversion of reproductive health rights; as well as the forceful sterilisation of HIV positive women in KwaZulu-Natal and Gauteng hospitals. These gaps, unfortunately, disadvantage the most vulnerable members of society who rely on public health facilities to enforce their constitutional and legislative rights to reproductive health. Persons affected by these gaps and threats often resort to illegal reproductive health services. It is argued, therefore, that the state has a duty to fulfil and protect reproductive health rights to prevent the inevitable consequence of indirect discrimination against poor women and girls caused by these gaps.
  • Item
    Is section 71 of the National Health Act 61 of 2003 inconsistent with a child’s constitutional rights to bodily integrity and equality?
    (2021) Ngcobo, Gcinokwakhe Dan.; Strode, Ann Elaine.
    The South African Constitution entitles children to all the basic human rights. In addition, the concept of ‘[a] child's best interests’ (section 28(2)) has been significant in the realisation of other rights contained in the Bill. This concept becomes more meaningful as the child grows older, where it is used to determine the range and limitations of all other competing rights. Maturing children then derive their partial to full self-determination from the rights to dignity, privacy, and freedom of religion, expression, and association. In this study I submitted that the constriction of section 71 into ‘nurturance’ over a broad class of children violates the constitutional right to equality, human dignity, privacy, freedom, and safety of the person when read together with the ratified international and regional treaties relating to the rights of children. Section 71 provisions are deemed unfair because the direct differentiation is linked to the categorisation of a socially vulnerable group [children] by age. Moreover, section 71 failed to confer the equal protection and benefit of the law and to set other measures designed to protect or benefit persons, or groups of persons who are disadvantaged as a result of unfair discrimination. Section 71 lacks a proper set of provisions or rules applying to research involving children, and the power grants and restrictions are not properly balanced to fit the protection and self-determination of children’s rights. Moreover, the general principles that form the basis of children's rights were not fully considered. Principles relating to age, maturity, and stage of development are generally provided to make any law or conduct meaningful to children. The section 71 infringement of the right to equality and bodily integrity cannot be justified through analysis in terms of section 36. The limitations imposed are highly restrictive, unreasonable, and unjustifiable in a democracy based on human dignity, equality, and freedom. There are no less restrictive provisions that allow independent consent for, particularly, maturing children. This is inconsistent with the principle of the child’s best interest contained in the Constitution and the UNCRC. Children have not been treated as individual rights bearers since the parent still stands as the final decisional maker and encroaches on the right of the child to control its body and its uses. In conclusion, section 71 of the National Health Act is unconstitutional.
  • Item
    A critical analysis of the South African government’s management and response to Covid-19 in the context of its constitutional commitments to its citizens based on the Social Contract Theory.
    (2021) Narismulu, Dhisha.; Botes, Wilhelmina Maria.
    Despite the South African Constitution having been promulgated to redress the injustices of the Apartheid regime by entrenching access to socio-economic rights, the government has failed in its responsibility to fulfil such rights. Such failings have been highlighted and heightened since the outbreak of the SARS-CoV-2 or Covid-19 where large portions of the South African population have been unable to comply with basic non-pharmaceutical measures. This is largely due to the inadequacies in access to water and sanitation, food and nutrition, healthcare and adequate forms of education. A syndemic approach to the fulfilment of socio-economic and other rights, as well as public health emergencies may avoid such shortfalls. This is due to the approach considering more than just the biological factors. A syndemic would also consider socioeconomic concerns, looking at sociobehavioural issues, the physical environment, socio-marginalisation issues and government policies The South African government should take their responsibility of realising socio-economic rights and other human rights as stipulated in the Constitution, seriously, and accordingly adequately respond to ongoing public health concerns such as the human immunodeficiency virus and tuberculosis epidemics and any future public health outbreaks.
  • Item
    A critical examination of the State Liability Amendment Bill (2018) and its implications for medical negligence litigation in South Africa.
    (2021) Yenkanna, Huben.; Botes, Wilhelmina Maria.
    Medical negligence litigation in South Africa is an ever-growing problem that places a great burden on public hospitals and threatens their ability to render health care services. The number and monetary value of these claims against the State have reached alarming levels. The causes of this increase in claims are multifactorial, but they appear to follow a similar global trend of increasing medical negligence litigation. While other countries have developed legislation to deal with this problem, South Africa has yet to pass legislation to solve the problem. The State Liability Amendment Bill (2018) aims to make changes that would help mitigate the financial burden arising from this litigation against the Department of Health. The Bill’s provisions appear to favour the State at the expense of compromising the rights of victims of medical negligence. These provisions include replacing lumpsum payments in favour of periodic payments and having public healthcare facilities render future medical care instead of awarding monetary damages. So far, the State Liability Bill has not been kindly received by various legal commentators, and it is unlikely to withstand the inevitable constitutional scrutiny it will face if passed. The recent Constitutional Court ruling in Member of the Executive Council for Health, Gauteng Provincial Government v PN obo EN (Member of the Executive Council for Health, KwaZulu-Natal Provincial Government and other as Amici Curiae) [2021] JOL 49995 (CC) will allow for greater use of the Public Healthcare Defence and Undertaking to Pay Defence which will help lessen the financial impact of successful claims against the Department of Health. This will allow the State more time to give greater thought and consideration into making the State Liability Amendment Bill a fairer proposition for all parties involved in medical negligence litigation.
  • Item
    Affording patients the right to access experimental stem cell treatment: a comparative analysis of the legal and ethical consequences.
    (2021) Gosai, Yadhna.; Botes, Wilhelmina Maria.
    Despite revolutionary advances in the medical field, with specific reference to stem cell technologies and therapies, South African laws do not adequately address gaps that currently exist when it comes to legally accessing the various forms of experimental therapy. The Constitution of South Africa does make provision for the right to access health care, however most stem cell therapies are not yet approved or registered by the relevant authorities and can therefore not be considered as accessible health care. Patients are increasingly becoming aware of their rights when it comes to health care which may be partially linked to the advances in, and knowledge of medical professionals diagnosing and treating auto immune and other previously incurable diseases. While conventional treatments yield positive results, there are a number of incurable and novel diseases that cannot be managed with approved treatments. Stem cell therapies, currently still in its experimental phase have shown some great promise in treating and managing various diseases. The fact of the matter is that that access to such experimental therapies is limited. The rationale behind this is reasonable and justified. The safety and interests of patients are protected by numerous laws and ethical principles as such, if the safety and efficacy of medical treatments have not been clinically proven, it is not in the patient’s best interests to be subjected to such treatment. However, the principle of patient autonomy does support the position that a patient should be able to choose whether or not he or she wishes to be subjected to experimental medicines, such as stem cell therapies or not, on condition that they are fully informed about the risk and consequences of doing so. Against this background, other countries, such as the United States, have enacted laws to address the lack of access to potentially lifesaving treatments. Considering that the benefits of stem cell therapies are becoming more and more evident, access to these therapies whilst not yet fully clinically approved and registered as a medicine or therapy, should, in certain circumstances, be an option for those patients who have exhausted all legally available medicine and treatments without success. Laws that afford access to experimental medicine are seen as both controversial and progressive. A balance must therefore be struck between the individual patient’s right to access and his or her safety. Although expanded access programs have been around for a while, the restrictive nature of these programs often does not necessarily result in access to experimental therapies. It is important that there are viable, legal and ethical ways to access experimental stem cell therapies, whether through right to try laws or through expanded access programs.
  • Item
    Informed consent: a review of the ethical and legal framework for medical practitioners and nurses.
    (2022) Shunmugam, Diana.; Mnyongani, Freddy Duncan.
    The purpose of this dissertation is to review legislation and ethical guidelines that help to inform the practice of healthcare workers on the undertaking of informed consent. The standard management of the healthcare worker and patient presides over open and voluntary consent, underpinned by ethical and legal foundations.1 The legal requirements of informed consent and the obligation to recognise the constitutional rights to privacy is laid out in chapter two of the National Health Act. 2 A meaningful discussion must include the material risks and provided in a manner that the patient has full understanding and is able to reflect on the options of the undertakings on his /her own health. 3 Globally, the bioethical principle of respect for patient autonomy, forms the guiding indicator for ethical practice of healthcare workers, defining the requirement for the establishment of trust through ongoing information discussion in the absence of coercion. 4 Ethically, morally, and legally, informed consent remains the fiduciary responsibility of the physician. 5 In Pandie v Isaacs,6 a case based on delictual negligence, as a result of the surgeon placing reliance on the nurse to undertake the task of informed consent, the responsibility of informed consent for surgery is explored and exposed.7 The principal conclusions of this study is to emphasise that informed consent practices among healthcare workers fall below the legal requirements, and to highlight the need to know the relevant legislative requirements and ethical guidelines in medical law for health care practitioners. Integration of ethics and legislative requirements into medical law and into doctor and nurse education are required to accomplish a meaningful patient relationship.
  • Item
    Unregulated or not? a legal analysis of South Africa’s legislative framework relevant to direct-to-consumer genetic testing.
    (2021) Gooden, Amy Elizabeth.; Thaldar, Donrich Willem.
    Recent advances in science and technology have enabled genetic testing to be conducted inexpensively, expeditiously, and directly by consumers, therefore allowing individuals access to their genetic information without the intervention of healthcare practitioners. This technology can assist individuals to better manage their wellbeing and conserve healthcare funds. Yet, direct-to-consumer genetic testing is not free from controversy primarily due to potential human rights infringements and a perceived lack of regulation. While direct-to-consumer genetic testing may provide consumers with autonomy, involvement in healthcare decisions, convenience, and enhanced genetic literacy, the field remains contentious. The questionable validity, accuracy, and utility of tests, the absence of professional oversight and lack of suitable genetic counselling, potential result misinterpretation, consent processes, follow-up costs which burden healthcare systems, and privacy concerns surrounding the usage and confidentiality of genetic data for research, have brought direct-to-consumer genetic testing to the fore. Despite its growing prevalence, direct-to-consumer genetic testing remains greatly under-investigated in South Africa and, while the need for regulation has been highlighted, it is yet to be fully examined. Therefore, in this dissertation, I map the current legal landscape relating to direct-to-consumer genetic testing in South Africa. This is done through a comprehensive legal analysis of South Africa’s extant law relevant to the industry, and the issues associated therewith – with the intention of determining if, and how, direct-to-consumer genetic testing is legally governed in South Africa and how its various aspects and processes function within the current legislative framework. Through this analysis, I find that the legal landscape in South Africa relating to direct-to- consumer genetic testing is multi-layered and the industry is, in fact, governed by a variety of, sometimes overlapping, statutes and regulations. Clarifying South Africa’s current legal landscape regarding direct-to-consumer genetic testing enables local, as well as foreign, direct-to- consumer genetic testing companies operating in South Africa to better understand the parameters within which they may legally function, in terms of offering genetic tests directly to the public and subsequent genetic research conducted using the genetic data obtained from the samples of consumers.
  • Item
    The role of the minimally invasive forensic autopsy in South Africa: a legal perspective.
    (2021) Singh, Yulisha.; Naidoo, Threnesan.
    The purpose of the study is to provide a legal perspective on the role of the minimally invasive forensic autopsy in South Africa in light of the wide discretion conferred upon autopsy practitioners by the Inquests Act 58 of 1959. Autopsies are essential not only to identify cause of death and related pathology but also for healthcare quality control, vital statistics and medical education. Forensic autopsies received widespread attention internationally however the field in South Africa seems to be falling behind in light of the legislature failing to revisit the legislation regulating the field. In light of autopsies becoming more sophisticated there are now several different modalities that are used to perform both an academic autopsy and forensic autopsy other than a complete dissection of the body. These modalities can be defined as minimally invasive forensic autopsies. It has been extensively argued that diagnostic technology has rendered the conventional autopsy redundant. The dissertation aims to assess these modalities in comparison to the conventional autopsy. In recent times, the option of a minimally invasive forensic autopsy including the non-invasive virtopsy and verbal autopsy has acquired considerable attention worldwide. However in South Africa, the extent of the medico-legal post mortem examination is not exactly prescribed by the Inquests Act 58 of 1959 and therefore left to the discretion of the autopsy practitioner as per the perceived needs of the case. Hence it is essential to provide a legal perspective to assess whether minimally invasive forensic autopsies will fulfil the statutory obligations imposed by the Inquests Act and withstand judicial scrutiny in South Africa. The writer submits that there is compelling evidence to promote the introduction of the minimally invasive forensic autopsy in South Africa. There is no legal prohibition in this regard. However, the implementation thereof will inevitably require a review of current legislation, especially the Inquests Act 58 of 1959 which is arguably outdated. In this way, the role of the minimally invasive forensic autopsy in South Africa will be supported by a robust legal framework.
  • Item
    The right to freedom of scientific research in the age of gene editing.
    (2020) Steytler, Michaela Rae.; Thaldar, Donrich Willem.
    The right to freedom of scientific research is largely omitted, or merely given lip service, in legal and ethical arguments surrounding heritable human gene editing (HHGE) in the context of CRISPR-Cas9 technology. The international ethical and foreign legal attitude towards the right to freedom of scientific research, even when constitutionally protected, is generally dismissive. Debates and arguments which omit this fundamental value are ill-informed and are inappropriate for application in the South African context. The omission of a relevant constitutional right in analyses is cavernous. The practical application of the right to freedom of scientific research must be brought into the light and viewed as an equal among other constitutional rights. This is because the right is constitutionally protected in South Africa and serves important purposes — which are also served by the well-established right to freedom of expression — such as the promotion of individual self-fulfilment and the search for truth. The right to freedom of scientific research plays a valuable role in the advancement of science and the diffusion of knowledge. The right is of particular importance to science in the South African context, where the burden of disease necessitates the pursuit of innovative and contextually appropriate scientific solutions. The right to freedom of scientific research has the potential to influence legislation on HHGE and CRISPR-Cas9, thereby advancing the improvement of healthcare in South Africa. This is a benefit which South Africa cannot afford to overlook, and which should drive the consideration of the right to freedom of scientific research. The right to freedom of scientific research should not be limited by public opinion or ethical arguments, but rather only through regulations which establish constitutionally justified limitations.
  • Item
    Reopening the debate on medical malpractice claims in South Africa: examining the intersection between quality health professional training and bioethics.
    (2020) Zondo, Zakithi Charity.; Balogun-Fatokun, Victoria Aderonke.
    Medical malpractice claims are a growing trend in South Africa that is crippling the Department of Health thus impacting on the provision of healthcare to the population. This dissertation revisits the hotly debated topic of whether there is a link between malpractice claims and the medical professional training, and conditions in South Africa? This dissertation presents an overview of the origin of health as a human right and the steps taken by the South African government to bring about the realisation of that right. An analysis of the conditions that lead to patient injury will be undertaken together with the procedures or lack thereof in place to ensure patient safety. Case law and South African legislation regarding healthcare services are consulted for comparative purposes with other countries who are also dealing with an increase in medical malpractice claims. The relevance of a shortage of resources and the implications thereof are discussed in this work. South African medical professionals’ adherence to the set standards of good medical practice is analysed before conclusions are reached and recommendations to curtail the rise of malpractice claims are provided.
  • Item
    The rights and regulation of saviour siblings in South Africa: an ethical and jurisdictional comparative.
    (2020) Gumede, Nonduduzo Penelope.; Strode, Ann Elaine.; Singh, Jerome Amir.
    The creation of saviour siblings is contentious; therefore, the dissertation determines whether it is ethically justifiable to create saviour siblings and analyses the associated conflicting interests. It is crucial to do this as the child's best interests are of international, regional and national importance. Moreover, the dissertation explores the regulation of the creation of saviour siblings in other jurisdictions and compares it with that of South Africa. The purpose of this is to determine if there are any lessons that South Africa can learn, especially as the procedure of saviour siblings has potential harms. Lastly, the purpose of the dissertation is to assist the lawmakers in the sphere of medical law and children’s rights to look at the existing legislation to ensure that there are no gaps to avoid the violation of rights.
  • Item
    If donor-conceived children have a constitutional right to know their genetic origins, what protection is there for donors in terms of their constitutional right to privacy?
    (2020) D’Almaine, Justin Michael Basil.; Thaldar, Donrich Willem.
    Increasingly, couples and individuals are turning to donor-conception as a means to conceive children. In South Africa, gamete donation is regulated by the National Health Act 61 of 2003, together with the Regulations relating to the Artificial Fertilization of Persons, 2012 and the Children’s Act 38 of 2005 together with its regulations. In terms of these, the disclosure of the identity of a gamete donor is prohibited unless the law or the courts deem it permissible. This leaves a donor-conceived child without means of ascertaining his or her biological parent who is the donor. The lack of a right of a donor-conceived child to know his or her biological parents is seemingly inconsistent when compared with adopted and naturally conceived children. The position may be tenuous in our law therefore, as it may go against the spirit and objectives of the Bill of Rights, where both the Right to Equality is guaranteed, as well as the Right of Access to Information. The position is further complicated by advancements in medical technology since the advent of direct-to-consumer genetic testing, as this makes it possible to track down biological relatives using online genealogical databases. This may make the position of donor-anonymity increasingly unfeasible as increasing numbers of people use direct-to-consumer genetic testing, and the online genealogical databases increase in size. This dissertation will discuss the law as it stands pertaining to whether the position of donor-anonymity is in fact legal under the Bill of Rights. It will then discuss the challenges posed to donor-anonymity by direct-to-consumer genetic testing, and then draw conclusions and recommend that principle of donor-anonymity be abolished, by allowing donor-conceived children access to the identity of their gamete donors, while introducing other measures to protect the donors interests by introducing a framework as to how much interaction a donor-conceived individual is permitted with a donor. These may include laws pertaining to nuisance, trespass or anti-stalking.