The Doctor and SA Law

20/01/2020
Dr K. K. Hlaise.
 Main areas for discussion
 The Doctor and SA Law.
 The constitution and health care services.
 SA Court System.
 The SA health System.
 Statutory framework for the regulation of the medical
profession.
 Acts regulating the performance of clinical forensic,
academic and forensic post-mortem examinations.
 Dr-Pt relationship, Consent, confidentiality, vicarious
liability, Legals of HIV.
 Professional regulations, ethical and moral guidelines for
health profession - HPCSA, SAMA, SAMR and others.
 Conclusion
 Guideline to reading Acts

 No one remembers Acts or sections of Acts word by word;

even legal professionals and legal students.
 No one will ask you to write an Act or section of an Act
word by word.
 All Acts need to be read for understanding and application
in their specific contexts.
 Students must just understand the Act or Section of an
Act and if asked in an assessment describe the issues as
you understand them using your own words.
 In Manual; I first explain the Act or Section of an Act in
arial font and below that I have pasted the Act or Section
of Act as it is for easy of reference in Italics.
 Law and Medicine
 Medicine is practiced within a legislative framework
establish by an act of Parliament. In SA; the relevant laws
are – National Health Act; and Health Provisions Act.
 What is law? Laws bind all citizens and is enforced by
government. Law is not same as morals (= Ethics).
Morals do not bind everyone and are not enforced by
government.
 Law is not justice; we can have unjust laws. Justice is
about equality and fairness.
 Every right is limited in content and scope.
 For every right there is a corresponding responsibility.
 Law is there to maintain peace and order in society; and
to balance interests of individuals, communities and
public as represented by government.
 Sources of SA Law .
 Authoritative and persuasive sources
 Indigenous African Law – existed before arrival of Dutch settlers in
1652. Is unwritten. Applicable since the interim constitution of 1993.
 Customary Law – unwritten laws, develops from customs in
community, transmitted from generation to generation.
 Common Law –originating from Roman-Dutch and English laws.
 Statutory Law – Enacted by parliament out of a need to control and
regulate certain practices not covered by common or customary
law, and includes Constitution, Acts, Ordinances (by-laws), Rules
and Regulations.
 Case law – established by precedence.
 International law to a limited extend, some countries do not enforce
these laws.
 Persuasive – Foreign law and academic sources (journals, books and
experts)
 Origins of SA Law.
 Roman-Dutch Law – brought to SA by the Dutch in 1652.
 English Law – brought by the English when they ruled since
1800s.
 Common Law - based on Roman-Dutch and English Laws.
 Customary law – established by customs and traditions.
 Indigenous African Law – based on traditional and cultural
practices together with their relevant traditional law.
 Constitution – Supreme law in SA. All laws in SA must comply
with constitutional provisions.
 Criminal and civil Law – similar but differ in ways prosecution
is conducted.
 Criminal and Civil cases.
 Criminal case – prosecution to serve public
interest, must be proved beyond
reasonable doubt.
 Civil case – private prosecution, must be
proven on balance of probabilities.
 SA Court System
 Judicial precedence – lower courts are bound by
previous decisions of higher courts.
 Constitutional Court – Adjudicate over constitutional
matters and matters it deems relevant.
 Courts of Appeal – highest court over non-
constitutional matters.
 High Court – seriousness of case and or rands
amounts involved or type of case.
 Magistrate Courts – most cases start here except
those assigned for High court.
 Specialised Courts e.g. Family Courts, Sexual
offences courts, children’s courts etc.
 The Constitution and health care:
Bill of Rights
 The constitution – Preamble; 14 chapters; and 7
schedules.
 Bill of rights – Chapter 2.
 Every SA citizen has right to human dignity, equality
and freedom.
 State has to respect these rights.
 Rights can’t be violated except through Section 36 of
Bill of Rights.
 Non-derogable (Non-annullable) rights (even in a
state of emergency) – Equality, Human dignity, life,
freedom and security of the person, slavery, servitude
and forced labour, rights of children, arrested,
detained and accused persons.
 The Constitution and health care:
Bill of Rights
Limitation of rights
36. (1) The rights in the Bill of Rights may be limited only in
terms of law of general application to the extent that the
limitation is reasonable and justifiable in an open and
democratic society based on human dignity, equality and
freedom, taking into account all relevant factors, including —
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose.
(2) Except as provided in subsection (1) or in any other provision
of the Constitution, no law may limit any right entrenched in
the Bill of Rights.
 The Constitution and health care:
Bill of Rights
 Everyone is equal before the law.
 Everyone has inherent dignity and right to
have their dignity respected and protected.
 Everyone has right to freedom and
security of person.
 Every human being has a right to life.
 Every human being has a right to health;
food and social security.
 Children’s interests take precedence over any
other matter concerning children.
 The Constitution and health care:
Bill of Rights
 Everyone has a right to information held by
state or any other person required for
exercising or protecting any rights.
 Everyone has right to have access to
adequate housing
 Everyone has right to live in non-harmful
environment.
 The state has a responsibility to protect these
rights.
 The state has a responsibility to provide basic
health care services.
 The South African Health System.
 Private and public health sectors.
 The National Health Act is central Act that regulate the
health industry, together with supporting statutes that
regulate various aspects of the health system.
 Most sections of NH Act have not been implemented, still
awaiting publication of their regulations.
 National Government is responsible for setting and
monitoring Health Policies, while provinces for
implementation.
 Public Health services are mainly provided by Provincial
governments, supported by local governments who play
a minor role.
 New developments: NHI, Tertiary (Academic) hospitals to
be managed by NDoH.
 Statutory framework for the
regulation of medical profession
 The medical profession is practiced within a
certain medico-legal framework - regulated by
certain laws, regulations, and ethical and moral
guidelines.
 Central Act governing the medical profession is
the Medical, Dental, Supplementary Health
Service Professions Act 56 of 1974, as amended,
which establishes the HPCSA.
 Parallel Act is the Traditional Health Practitioners
Act – establishes the Interim Traditional
Practitioners Council of SA i.e. ITPCSA
 Objectives of HPCSA.
 Promote the health of the SA population.
 Determine standards of professional education &
training.
 Set and maintain fair standards for professional practice.
 Adjudication of violations of minimum standard of
practice through disciplinary committees.
 Through Section 48 of HPA Act, to declare certain types
of deaths as unnatural deaths, i.e. - ‘death of persons
undergoing a procedure of a therapeutic, diagnostic or
palliative nature, or as a result of a procedure of a
therapeutic, diagnostic or palliative nature, or of which
any aspect of such a procedure has been a contributory
cause, shall not be deemed to be a death from natural
causes as contemplated in the Inquests Act & Births and
Deaths registration Act’.
 Acts regulating certain clinical and
forensic clinical examinations.
 National Health Act.
 Choice of Termination of Pregnancy Act.
 Children’s Act 38 of 2005.
 Aged Persons Act.
 Criminal Law (Sexual Offences) Amendment Act.
 Domestic Violence Act.
 Prevention of Family violence Act.
 National Road Traffic Act.
 Criminal Procedure Act.
 Births and Deaths Registration Act.
 And other laws playing minor role.
 Acts regulating performance of
Academic (Natural deaths) autopsies.
 National Health Act.
 National Health Laboratory Services Act
i.e. NHLS.
 Acts regulating performance of
forensic autopsies.
 National Health Act.
Provides for establishment of Forensic Services.
 Criminal Procedure Act.
 The Births and Deaths Registration Act.
 Inquests Act 58 of 1959.
 Section 48 of the Health Professions Act.
 Correctional Services Act.
 The Occupational Diseases in Mines and Works
Act.
 National Health Act.
 Main Act that regulate health Services in SA.
 The relevant provisions are:
1. Establishes & regulates all health services.
2. Regulates medical ethical conduct.
3. Establishes and regulates forensic services
and other services.
4. And many other functions including health
administration etc.
 Choice of Termination of
pregnancy Act 92 0f 1996
 First 12 weeks – upon request.
 13th to 20th weeks – risk to mother, fetus, rape or incest,
or social / economic circumstance of mother.
 After 20 weeks – endanger woman’s life, malformed
fetus or result in injury to fetus.
 Performed by MP except below 12weeks, and performed
in designated facility.
 Consent of pregnant woman only - irrespective of age.
 Mentally disabled persons – consent from guardian or
two MP.
 Children’s Act 38 of 2005.
 Section 110: Notification of suspected abused
and neglected children - Any person in the care
of children (a child) who suspect abuse or
neglect, must report accordingly to relevant
authority.
 Section 129: consent to medical and surgical
treatment of children less than 12 years -
Parent.
Absence of guardian – minister of health.
In emergency – Superintendent of hospital.
Special situations - High court or Children’s court.
The aged persons amendment Act.
 Similar to provisions of Section 110 of
Children’s Act 38 of 2005.
 Abuse must be reported to relevant
authorities.
 Criminal Law (Sexual Offences)
Amendment Act 2009.
 Sexual penetration – penetration to any
extent whatsoever.
 Sexual violation – direct or indirect
contact.
 This Act establishes a number of sexual
offences.
 Criminal Law (Sexual Offences)
Amendment Act.
 1. Rape.
 2. Compelled rape.
 3. Sexual assault.
 4. Compelled sexual assault.
 5. Compelled self-sexual assault.
 6. Compelling or causing persons 18 yrs or older to witness sexual
offences, acts or self-masturbation.
 7. Exposure or display of or causing exposure or display of genital
organs, anus or female breasts to persons 18 yrs or older (flashing).
 8. Exposure or display of or causing exposure or display of child
pornography to persons 18 yrs or older.
 9. Engaging sexual services of persons 18 yrs or older.
 10. Incest, Bestiality, and Sexual acts against corpse.
 Sexual Offences against children
 Statutory rape.
 Statutory sexual assault.
 Sexual exploitation of children.
 Sexual grooming of children.
 Exposure or display of or causing exposure or display of
child pornography or pornography to children.
 Using children for or benefiting from child pornography.
 Compelling or causing children to witness sexual
offences, sexual acts or self-masturbation.
 Exposure or display of or causing of exposure or display
of genital organs, anus or female breasts to children
(flashing).
 Sexual offences against persons
who are mentally disabled
 Sexual exploitation of persons who are mentally
disabled.
 Sexual grooming of persons who are mentally
disabled.
 Exposure or display of or causing exposure or
display of child pornography or pornography to
persons who are mentally disabled.
 Using persons who are mentally disabled for
pornographic purposes or benefiting therefrom.
 Sexual offence is deemed
committed if:
 No consent.
 Child under 12 years.
 Coercive circumstances e.g. use of force, threat, abuse
of power or authority.
 False pretences or fraudulent means e.g.
misrepresentation, false act, failure to disclose life-
threatening sexual illnesses.
 Performed under Circumstances where victim is
incapable in law to appreciate nature of act: asleep,
unconscious, in an altered state of consciousness, under
influence of drugs, mentally impaired person, or below
age of 12 years.
 A marital relationship, previous or existing, is not a
defence to a charge of sexual offences.
National Road Traffic Act No. 93 of
1996.
 Section 56.
 While under the influence of intoxicating
liquor or drug having a narcotic effect.
 [Blood Alc.] is not less than 0.05gram% or
prof. 0.02gram%.
 [breath alc.] is not less than 0.24
milligrams %, prof. 0.1milligrams %
 Criminal Procedure Act.
 Section 37(a): permission for police and medical
officials to perform certain acts on accused for
legal purposes e.g. age estimation, ID, recovery
of evidence, statutory examinations of suspects.
 Section 37(b): permission for nurses and
medical practitioners to withdraw blood for
alcohol estimation in patients in hospital
suspected of criminal act.
 Section 4: medico-legal documents in affidavit.
Births and Deaths Registration Act
 Defines births and deaths and procedures to be
followed in respect of the following:
 Chapter III: Section 14, 15,16, 17,18,19,20 and
21.
 Section 14: Death due to natural causes
 Section 15: Certificate by medical practitioner.
 Section 16: Duty of Police officer on receipt of
certain information.
 Section 17: Death due to ‘other than’ natural
causes.
 Section 18: Still-births.
Births and Deaths Registration Act
 Section 19: Death outside the Republic.
 Section 20: Burial order
 Section 21: Burial register.
 Section 22: Issuing of death certificate.
National Health Act: Natural deaths
and autopsies.
 Section 66: Post-mortem examination of
bodies
1. Autopsy may be conducted if:
I. Person, while alive, gave consent.
II. A relative (spouse, partner, major child,
parent, guardian, major brother or major
sister – in that specific order) gave consent.
III. Such an autopsy is necessary for determining
the (NATURAL) cause of death.
2. Autopsy may not take place unless
authorised by authorised institution.
National Health Act: Natural deaths
and autopsies.
4. Tissue may not be removed if:
 It will affect outcome of autopsy.
 Tissue or body already been donated or
contrary to deceased’s wishes.
 Inquest Act.
 Objectives – all deaths due to ’other than natural
death’.
 Section 2 – when death happens: Report.
 Section 3 – Medico-legal investigation and
autopsies.
 Section 4. – Investigating Officer.
 Section 20, subsection 4 – no one may prejudice
or anticipate court findings.
 Section 21 – Arrests and criminal proceedings
can still occur, and when these are started the
Inquests proceedings must stop.
 Inquests Act.
 Other sections – Inquest Court procedures
and processes.
 Sect. 48 of Health Professions Act.
 The death of a person:
1. undergoing, or
2. as a result of a procedure of a therapeutic ,
diagnostic or palliative nature or
3. of which any aspect of such a procedure has
been a contributory cause
shall not be deemed to be a death from natural
causes as contemplated in the Inquests Act.
 For purpose of referral for medico-legal
investigation; it is irrelevant whether the
patient recovered or not from the anaesthetic.
 Inquest.
 Judicial officer – magistrate or judge.
 There is no accused.
 Object: investigate circumstance of death and record
following – identity, cause of death, date of death,
whether death brought by an act or omission involving
or amounting to an offence on the part of any person.
 In PRDS and ‘medical negligence’ inquiries: Court must
establish following – Informed consent, procedure
necessary, screened before procedure, fit for procedure,
suitably prepare for procedure, suitable anesthetic given,
skill of anesthetist and surgeon, emergency resuscitation
anticipated, when emergency developed was suitable
resuscitation undertaken.
 Inquest
 Judicial officer may use assessors.
 Paper inquest and formal inquest.
 Report of findings of Inquest sent to DPP.
 Inquest.
 DPP may – institute criminal proceedings,
OR refer case to statutory body e.g.
HPCSA, OR departmental inquiry, OR take
no action OR confirm the Inquest
Magistrate’s findings OR refer case back to
Inquest Magistrate.
 Acts regulating performance of
autopsies in special circumstances.
 Occupational Diseases in Mines and Works Act
78 of 1973.
provides miners’ CR organs to be sent to NIOD.
Consent needed if natural death.
If unnatural, no consent needed.
 Correctional Services Act

 Correctional Services Act 111 of 1998.

provides for reporting of deaths of
prisoners dying of unnatural causes.
 Doctor-patient relationship.
 Legal Contract: no guarantee for cure, Doctor
may not depart, once therapy commenced
may not abandon pt.
 Dr has no duty to treat, Refusal to treat must
be legally, ethically and morally reasonable,
Dr cannot refuse to treat in emergency.
 No right to treat without consent,
 treatment without consent is only applicable
in statutory examinations, and in patients who
are very young or mentally ill.
 Consent.
 Definition: Permission given to medical
professionals to perform legal medical
interventions on patients, with pt’s full
understanding of benefit and reasonable risk.
 Types: Written, oral or tacit (consent byconduct).
 Duty of Doctor to ensure a legal consent is
obtained.
 Dr may be charged with assault if no consent.
 Consent
 Informed consent – pt knows benefit and
material risks, and has consented to potential
harm.
 Dr must give pt: nature, scope, costs &
administration requirements, importance,
consequence, risks & dangers, disadvantages,
prognosis and alternatives to proposed
intervention.
 Dr has duty to warn patient about material risks.
 Dr has no duty to warn about remote risks.
 Dr has diagnostic and therapeutic privilege not
to disclose some information to patient if such
action will affect pt and her chance of recovery
negatively.
 Consent.
 Tacit consent should not be overstretched
i.e. serious treatment or operation need
written consent.
 Spouses can consent independently, but
in some situations the other spouse’s
permission may be sought.
 The court will not order medical treatment
against the will of the patient.
 Consent in cases of minors.
 Consent by parent or guardian.
 Consent to termination of pregnancy by
minors allowed irrespective of age
according to ‘The Choice of termination of
Pregnancy Act’
 Consent by Minister of Health.
 Consent by medical superintendent.
 Minors in institutions, and prisons.
 Consent in emergency.
 If patient cannot give consent e.g. shock
unconscious or intoxicated, Treatment can
be given in the interest of necessity.
 Necessity is not applicable in cases where
the patient, in full control of his senses,
refuses medical treatment unless the
community is at risk.
 Other statutory provisions:
 Examinations without consent: statutory
examinations (Accused, drunk driving, etc).
 Duty to report certain clinical cases and deaths
to authorities: Notifiable illnesses, child abuse,
abuse of aged, Termination of pregnancy,
admissions and treatment in health institutions
without consent, psychiatric patients, maternal
deaths (NCCEMD), ‘other than natural’ deaths,
occupational diseases and injuries (NCOD).
 Confidentiality.
 Information obtained in a pt-Dr interaction is
confidential.
 Information can be given to third parties if:
1. Instructed by a court of law.
2. Act of parliament.
3. Ethical and moral obligations.
4. With patient’s consent.
 Outside of parameters given above, breach of
confidentiality is unlawful.
 HIV/AIDS: Medico-legal aspects.
 Criminal and or civil liability for infecting
others.
 Disclosure mainly to endangered third
parties.
 No Discrimination.
 HIV not a notifiable disease.
 HIV/AIDS: medico-legal aspects.
 Disclosing the HIV status of deceased persons
is allowed :
1. In death certificates.
2. As a result of court order.
3. In the interest of public.
4. If given to endangered third parties.
 Disclosure unlawful if given to insurance
companies or done without consent of relatives
or executor outside the circumstances above.
 Ethical guidelines for Medical
Practitioners.

 HPCSA regulations and guidelines, information

booklet available are:
1. B2 – Generic Ethical rules.
2. B3 – National Patients’ rights charter.
3. B6 – Guidelines on overservicing, perverse
incentive and related matters.
4. B58 – General Ethical guidelines for
biotechnology research.
5. B9 – Research, development and use of
chemical and biological weapons.
 Ethical guidelines for Medical
Practitioners.
6. B10 – Seeking Patients’ informed consent –
ethics.
7. B11 – Confidentiality; protecting and providing
information.
8. B12 – Ethical guidelines for good practice with
regard to HIV.
9. B13 – Guidelines for the withholding and
withdrawing of treatment.
10. B14 – General Ethical guidelines for
reproductive health.
11. B15 – Guidelines on keeping of pt records.
 Ethical guidelines for Medical
Practitioners.

 SAMA guidelines - Doctors’ and Patients’

Rights and Responsibilities.
 SAMR guidelines in research – five booklets.
 WHO ethical guidelines.
 International oaths, declarations, vows and
codes, e.g.
1. Hippocratic oath.
2. Declarations of Geneva, Helsinki and Tokyo.
3. International code of Medical Ethics etc.
 Medical Professional associations etc.
 Medical evidence and Expert
witness.
 Subpoena.
 Punctual and formally dressed.
 Take an oath – to tell the truth.
 State qualifications and work experience.
 Presiding officer – Judge is my lord, and
magistrate is Your worship, Advocates /
attorneys are Sir or Madam.
 Give objective medical facts / evidence.
 All opinions given must be in your area of
expertise.
 CONCLUSION.
 Medicine is practiced under very strict regulatory
framework (deals with human life).
 Medical Practitioners should be aware of all statutes,
ethical guidelines, regulations and policies governing
their areas of practice.
 No medical practitioner has a right to examine, or treat a
patient.
 Lack of ‘Record keeping’ is inexcusable in law.
 All medical practitioners should assist in the
administration of justice if requested.