Legal Update 2
LEGAL UPDATE (2)
By: Prof Pieter Carstens, Faculty of Law, University of Pretoria
1. AIM OF THE LEGAL UPDATE AND DISCLAIMER:
The aim and function of this legal update as well as the concomitant disclaimer is as stated in the previous legal update (as available on this site) and is also mutatis mutandis applicable here.
2. FOCUS OF THIS UPDATE:
Since the previous update, the New National Health Act No 61 of 2003, has now come into force during August 2003. The effect and implications of this Act for the health professions, public and private health care services and the general South African public at large are vast and comprehensive. A full copy of the Act is available on this site (see previous update for the latest version) and can be perused. According to the Department of Health, the Act will be implemented in phases. The all important Regulations ( as determined by the Minister of Health) to the Act are no yet available and will apparently only be available in four to six months time. The Regulations will provide a regulatory framework for the effective application of the provisions of the Act and till then it is a question of wait and see …. It should be noted that the Act has repealed a number of previous Acts (notably the Human Tissue Act of 1983) – see previous update for more detail. A Schedule of all the legislation repealed is available at the back of the new National Health Act.
Author of this update was also fortunate to have presented a paper at the 15th World Conference on Medical Law hosted by the World Association of Medical Law in Sydney, Australia (1- 5 August 2004), as well as a workshop by the South African AIDS Vaccine Initiative (University of KwaZulu-Natal) on the “Ethical-legal regulation of research in South Africa: Implications for HIV vaccine trials” held in Illovo during July 2004. This update will contain a report back on these conferences. As usual there will also be some reference to interesting news and “snippets” from the general media relating to the medico-legal field.
3. REPORT BACK FROM THE 15TH WORLD CONFERENCE ON MEDICAL LAW: SYDNEY (1 – 5 AUGUST 2004)
NEWSFLASH!!!!! PLEASE NOTE THAT THE NEXT 16TH WORLD CONFERENCE ON MEDICAL LAW WILL BE HOSTED ON 7 – 11 AUGUST 2006 IN TOULOUSE, FRANCE.
Medical and legal professionals are truly encouraged to attend this conference (or to even present a paper at the conference). Toulouse is situated in South –West France, the largest region in France, with cathedrals and castles, vineyards and the famous Armagnac Distilleries and unique mountain landscapes. The city offers a rich cultural heritage with Roman churches and Renaissance mansions. There are generous airlinks to Toulouse Blagnac International Airport with direct flights to 34 international destinations. Pre or post tours in Paris could be arranged --- truly an unique opportunity to combine business and pleasure!
The conference will be hosted in collaboration with La Societe de medicine Legale de France and L’Institut International de Recherche en Ethique Biomedicale.
For updates and application forms please visit: www.arfdm.asso.fr
3.1 Sydney
The conference extended over 5 days and was attended by 300 delegates (mainly legal professionals and health care professionals) from all over the world. Apart from the plenary sessions, approximately 200 papers were presented together with a variety of poster displays. A variety of medico-legal topics was covered and included the following themes: Frontiers of Health Liability, Challenges in Mental Health, Traffic medicine, State responses to Malpractice Crises; Forensic pasts and futures, Challenges for expert evidence, Alternatives to Tort; The future of therapeutic relationships; Health care, human rights and globalisation, Challenges in policy and regulation; Comparative studies in euthanasia; Comparative informed consent; Issues pertaining to blood and blood donations; Issues in genetics; Infectious disease and public health; Privacy and Informatics; Death, dying and children; Tissue markets and morals; Autopsy and corpses; Medical ethics; Research ethics and regulation; Choices, resources and abortion and Comparative nursing regulation.
Delegates were provided with a CD-ROM containing all the papers and abstracts presented at the conference. Copies may in due course be requested from the author at pcarsten@hakuna.up.ac.za
There was also a very stimulating debate hosted by the Macquarie Bioethical Society between prominent medical professionals, lawyers and bioethicists with reference to the “Ethics of Choice in the Genetic Age”. In this regard the following issues were debated: In the near future what choices will parents be able to make about the genetic makeup of their offspring? Will our perceptions of disability change? How much can behavioural characteristics be controlled by genetic makeup? Is criminality genetic? Should corporations own the knowledge about our genetic structures? How will such decisions be regulated?
Briefly, it can be observed that there were a multitude of stimulating papers presented during the workshop by various medico-legal experts --- too many to mention. It can safely be stated that the main stream or forefront of present medico-legal research was focused upon. The main exponents of this research attended the conference and it was thus an important networking event.
An interesting paper (in the context of the doctor-patient relationship in the sphere of HIV/AIDS), of importance for South African medical law (with reference to section 39(1) of the Constitution of South Africa [to the extent that courts may take cognisance of foreign law]) was a paper presented by Albert Vermaas, Legal Advisor to the University Medical Centre, Utrecht, The Netherlands. In the paper he discusses the ruling by the Court of Appeal in Amsterdam on 18 April 2002 (reported in TVGR, 2003/15) which emphasized that a patient not only has rights, but also responsibilities. The issue was whether a physician can violated his medical confidentiality in the patient-doctor relationship as a result of fear of infection with the HIV-virus after and accidental cut during surgery. The aim of the physician was for the award of his claim that the patient be forced to take an HIV-test. The ruling by the Court to the effect that the patient may be forced to submit to an HIV-test, has been noted by health lawyers and has been received positively (not unexpectedly) by the medical profession.
Other papers are available from the author, on request at the abovementioned e-mail address.
3.2 Other useful websites as spin-offs of the conference
Register of Expert Witnesses:
It was interesting to note that in Australia there is a Register of Expert Witnesses – it is regarded as Australia’s leading expert resource. Providing easy identification of experts of the highest calibre in all disciplines. Free of charge to the legal and insurance professionals in the form of a book and CD-ROM as well as on-line and telephone search facilities. Website: www.expertregister.com.au
This website is well worth a visit. Is it time for a similar register in South Africa?
Journals/Publications
There was a host of international medico-legal journals/publications on display at the conference. These are all indicative of the mobility of medical law in the international sphere and major medico-legal issues warranting extensive research. Here are a few:
· The European Journal of Health Law: free online sample issues available at www.brill.nl/ejournals/Ejournals.html
· The Journal of Medical Ethics: visit www.jmedethics.com
· The International Journal of the World Association of Medical Law “Medicine and Law”: enquiries – e-mail: acarmi@research.haifa.ac.il / or books@yosmot.com
· Psychiatry and Mental Health: a variety of journals in this field available at www.tandf.co.uk/journals (Journals from Taylor & Francis [UK])
· A Selection of products on Forensic Medicine from Elsevier publishers: visit www.elsevier.com/locate/legalmed
· Books on Health, Medical Ethics and the law: visit: www.federationpress.com.au
Memberships:
To apply for membership of the following organizations:
· World Association of Medical Law: e-mail: acarmi@research.haifa.ac.il
· American College of Legal Medicine: visit: www.aclm.org
4. BRIEF REPORT BACK FROM THE DEBATE/CAPACITY BUILDING FORUM: HIV/AIDS VACCINES ETHICS GROUP
At this workshop, held during July 2004 by SAAVI (South African AIDS Vaccine Initiative) ethical guidelines and implications for research and HIV vaccines, as well as an ethical-legal framework (with reference to the new National Act) for research in South Africa were debated. Of particular importance was the implications of the new National Health Act for HIV vaccine trials conducted on children. For more information on SAAVI visit: www.saavi.org.za/haveg.htm
5. BY THE WAY ….
Latest South African case on informed consent in medical law
Oldwage v Louwrens [2004] 1 All SA 532 ( C) is the latest reported case on the issue of informed consent in South Africa medical law. For a discussion and analysis of this case see the article by Neil Kirby (Werksmanns Attorneys) available on this website.
Pharmacies’ admin fees illegal --- government
Medical schemes are being urged not to pay ‘unreasonable’ administration fees levied by pharmacists to boost their income on medicines, with the Health Department saying these charges are illegal. Since the Cape High Court rules last month that the government’s pricing regulations should be implemented in full, pharmacists have introduced new charges to compensate for the subsequent loss of income.
Doctors probed over poor quality post mortems
The problem of poor quality post mortems, highlighted in the past by the courts, has once again surfaced with the Health Professions Council of South Africa saying it is investigating at least six doctors for alleged negligence and other transgressions related to post mortems. One case involves two doctors who allegedly signed blank death certificates “ to speed up the process of post mortems”. In another case a doctor allegedly issued a death certificate without examining the body.
Girls under 18 can decide on abortions
Girls under the age of 18 can legally have abortions without parental consent, according to a ruling of the Pretoria High Court. The Court dismissed the Christian Lawyer’s Association’s challenge to the Choice on termination of Pregnancy Act. The Court ruled that the Constitution protected a woman’s right to determine the fate of her own pregnancy, and said this applied to everyone, including girls under 18 years. It was also argued that there were compelling reasons why a minor may choose not to consult her parents and that many young girls would rather risk illegal abortions than tell their parents they are pregnant.
Litigation: Mother wins medical negligence lawsuit
A 54-year old Pretoria mother of seven has received more than R1.3 m in damages from the Premier of Gauteng following the loss of her leg due to the negligence of local hospitals. She slipped on a wet floor at a Hotel where she was resident for more that three years. She fell and dislocated her knee. A few days later, however, she had her leg amputated because doctors failed to notice that a major artery had been damaged.
Litigation: Doctors to pay in HIV responsibility lawsuit
A New South Wales Appeal Court has ordered two doctors, who lost their appeal, to pay $700 000-00 to a patient who contracted HIV from her husband. The Court rules that the two doctors should have warned the woman’s former husband to tell her that he was HIV positive.
Italy clamps down on ‘Wild West’ fertility medicine
Italy has approved a contentious new law aimed at reining in the unregulated world of fertility medicine. The law bans the use of donor sperm, eggs or surrogate mothers and restrict assisted fertilisation to ‘stable’ heterosexual couples --- denying it to single mothers or homosexuals. Supporters say the legislation will end 25 years of “Wild West” fertility medicine in the country that has boasted a 62-year old artificially inseminated mother and a maverick doctor who talks openly about trying to clone babies. The law makes cloning embryos a crime punishable with up to 20 years in prison and a 1 million euro fine. Critics of say the law, one of the most rigid in Europe, could pave the way for making abortion illegal again.
Patient rights’ charter in new Mental Health Care Act
The Mental Health Care Act, 17 of 2002, which is expected to come into effect within the foreseeable future, replacing the Mental Health Act of 1973, will include a new charter of patients’ rights – to be displayed on the walls of mental institutions – and the introduction of review boards to ensure proper treatment and that no one is unnecessarily confined to psychiatric hospitals.
6. IN THE FORTHCOMING NEWSLETTER ….
In the next newsletter the focus will be on the regulations to the new National Health Act, as well as some comments on the legal challenges/litigation against the Medicines and Related Substances Act. There will also be a report on the progress made by the professional boards of the HPCSA in respect of catching up with the backlog pertaining to disciplinary hearings against medical practitioners.