Introduction to Health Law and Human Rights

1. Introduction to Health Law and Human Rights Professor A Dhai Director – Steve Biko Centre for Bioethics GEMP 1 - 2009

2. OURCES OF SOUTH AFRICAN LAW SOURCES OF SOUTH AFRICAN LAW Customary Law Existed before arrival of Dutch settlers Still relevant in rural areas, especially for family matters. Recognised by Constitution provided does not conflict with Bill of Rights. Roman-DutchLaw Brought to Cape in 1652 Has remained basis of common law in SA

3. SOURCES OF SOUTH AFRICAN LAW English Law Important influence on law governing operation of Courts & affecting business community. Constitution 1994 - Interim constitution 1996 - final Constitution Both Constitutions introduced international human righs law as part of South African law. South African Law Mixture of Roman Dutch Law, some English Law and Statute Law Customary Law influences. Must be in line with Bill of Rights in new SA Constitution.

4. CRIMINAL AND CIVIL LAW CRIMINAL LAW Part of public law - Relationship between individual and state. Controls how people in society behave. State brings case against accused who is charged with crime. Prove guilt “beyond a reasonable doubt”. Accused does not have to prove he is not guilty. Accused has to merely raise doubt concerning guilt. Crime - a wrong against the state for which the wrongdoer (the criminal) is punished by the state.

5. CRIMINAL AND CIVIL LAW CIVIL LAW Part of private law. Controls how individual people or groups of people behave towards each other. State is usually not involved - plaintiff brings action against defendant Plaintiff has to prove case “on a balance of probabilities.” If plaintiff succeeds, defendant pays compensation to make up plaintiff’s losses - medical expenses, lost wages and pain and suffering. Civil wrong - a wrong against an individual for which the wrongdoer must pay compensation to the injured person. Occasionally, act may result in both criminal and civil actions.

6. CRIMINAL & CIVIL LAW PRESCRIPTION PERIOD Civil Law - 3 years from date of realisation of wrong Child - may commence at age of majority Criminal Law - 30 years from time of offense / realisation of wrong

7. ASPECTS OF LAW RELEVANT TO HEALTH PROFESSIONALS USEFUL WEBSITES For legislation in general: www.polity.gov.za For health legislation: www.health.gov.za HPSCA: www.hpsca.co.za South African Journal of Bioethics and Law: www.sajbl.org.za

8. Layers of Legal Structure • International Law • Constitution • Legislation • Common Law • Policy and Regulations

9. Human Rights • Defn: rights one possesses by virtue of being human • “Human rights and fundamental freedoms allow us to fully develop and use our human qualities, our intelligence, our talents and our conscience and to satisfy our spiritual needs. They are based on mankind’s increasing demand for a life in which the inherent dignity and worth of each human being will receive respect and protection.”(see VT Thamilmaran IHuman Rights in Third World Perspective (1992)17) • Bible: • urges people to treat others in the same way they themselves would like to be treated – espouses equality • What makes health a human right?

10. Universal Declaration of Human Rights – 1948 • Everyone “… has the right to a standard of living adequate for the health and well-being of himself and his family, including food, clothing, housing, and medical care and necessary social services.”

11. International Covenant on Economic, Social and Cultural Rights - 1966 • Makes responsibility of governments with respect to right to health more specific • Mandates governments to undertake following steps: • Provide for reduction of still-birth rate and of infant mortality and for healthy development of child • Improve all aspects of environmental and industrial hygiene • Prevent, treat and control epidemic, endemic, occupational and other diseases • Create conditions to assure to all medical service and medical attention in the event of sickness

12. Pertinent Aspects of the Bill of Rights of Constitution of SA • 9: Equality • 10: Human Dignity • 11: Life • 12: Freedom and Security of the person • 14: Privacy • 15: Freedom of religion, belief and opinion • 16: Freed of Expression • 24: Environment • 27: Health care, food, water and social security • 28: Children • 32: Access to information • 36: Limitation of rights

13. Some Pertinent Legislation • National Health Act • Health Professions Ammendment Act • Choice on Termination of Pregnancy Act • Child Care Act • Childrens Act • Medical Schemes Act • Medicines and Related Substances Control Act • Domestic Violence Act

14. ASPECTS OF LAW RELEVANT TO HEALTH PROFESSIONALS COMMON LAW Confidentiality Informed consent Health professional-patient relationship Medical malpractice Euthanasia Treatment of prisoners and detainees Legal aspects of AIDS and HIV infection.

15. ETHICAL OBLIGATIONS Ethical rules do not have weight of law. May be relied on by courts as guidelines to determine unlawful action. Regulations by Health Professions Council impose ethical obligations on health professionals - breach may result in disciplinary action for unprofessional conduct. A breach may be used to prove medical malpractice or professional negligence

16. THE DOCTOR-PATIENT RELATIONSHIP Takes form of contract / duty of care imposed by law by special relationship between doctor & patient • THE CONTRACT • Contract - implied agreement for diagnosis and treatment in accordance with generally accepted medical procedures by doctor • Do not guarantee cure • Breach of contract - when doctor departs from patient’s express instructions / fails to treat patient without adequate reason - denied right to claim payment • Once treatment commenced - may not abandon patient • Patients expected to honor their part of agreement - should be responsible & make themselves available for treatment • Private practice - doctor contractually liable • Hospital - contract with relevant hospital authority

17. THE DOCTOR-PATIENT RELATIONSHIP IS THERE A DUTY TO TREAT? Constitution - everyone has right to access health care services which state must provide within available resource: state run health facilities, doctors to treat all that present & qualify for treatment private run facilities - applies only for medical emergencies (“dramatic, sudden situation or event which is of passing nature in terms of time) Private practice - no duty to treat if not your patient no liability in law for mere omission however, duty to act if society regards failure to act as unlawful contractual duty - casualty officer

18. THE DOCTOR-PATIENT RELATIONSHIP IS THERE A DUTY TO TREAT? ASSESSING FAILURE TO TREAT COURTS CONSIDER:  doctor’s actual knowledge of patient’s condition  seriousness of patient’s condition  professional ability of doctor to do what is asked  physical state of doctor - ?exhausted  availability of other health care practitioners  interests of other patients  professional ethics

19. MATERIAL RISKS obligation to warn patient of “material risks” inherent in treatment Risk is material if: † reasonable person in patient’s position if warned of risk would regard it as important † medical practitioner should reasonably be aware that the patient, of warned of the risk, would regard it as important. Therefore - need not tell patient of all remote risks, but should mention probable and possible risks of harm particularly where serious

20. MEDICAL MALPRACTICE AND PROFESSIONAL NEGLIGENCE Wrongful acts by health professionals causing harm to patients. May be intentional or negligent. Where negligent - fail to act like reasonable doctor would have acted in similar circumstances Most medical malpractice takes form of professional negligence.

21. PROFESSIONAL NEGLIGENCE Accused’s conduct did not measure up to the standard of care Acted with guilt - can therefore be blamed for deed. Exercise degree of skill and care of a reasonably skilled person Greater skill and care - expected of specialist & where complicated medical procedures used. Negligent if undertakes work requiring specialist skill which health professional does not have.

22. THE STANDARD OF CARE How would a reasonably competent health professional in that branch of medicine have acted in a similar situation? Would a reasonable health professional have foreseen the likelihood of harm to the patient and taken steps to guard against this happening? Greater degree of care when working with inherently dangerous substances and when have special knowledge of circumstances that increase risk.

23. THE STANDARD OF CARE Sudden emergency - same degree of skill and care may not always be required Failure to obtain consent - negligent conduct & treatment may result in assault NEGLIGENCE DETERMINED BY CRITERION OF REASONABLENESS

24. DEFECTIVE INSTRUMENTS AND EQUIPMENT Where malfunctioning appliance prejudices patient - manufacturer may be sued Health professional may also be sued Liability depends on whether reasonably aware of defect and if patient is prejudiced Health professional entitled to assume hospital equipment has been inspected & safe for use.

25. VICARIOUS LIABILITY FOR PROFESSIONAL NEGLIGENCE Where employee commits unlawful act against third person in execution of duties, third person can institute an action against employer. Acts occur during the course and scope of the work of their employees. Standard of excellence cannot be expected which is beyond the financial resources of the hospital authority concerned.

26. ETHICAL AND LEGAL DILEMMAS AND SCARCE MEDICAL RESOURCES Ethical rules of the health professionals cannot be compromised. HCW expected to maintain ethical standards Failure may result in disciplinary action by relevant professional board or council Where invasion of the patient’s Constitutional or Common law rights, the health professional may face legal action.

27. ETHICAL AND LEGAL DILEMMAS AND SCARCE MEDICAL RESOURCES • Health Care Managers and Scarce Medical Resources • Liable for negligently failing to repair or replace medical • equipment or obtain the required medical items when • resources are available. Alternative referral systems restrict patient intake - where limited or no resources available Except in emergencies negligent to allow acceptance of patients for procedures, which cannot be done at facility

28. RIGHT OF ACCESS TO INFORMATION CONSTITUTION & ACT 2 OF 2000 (ACCESS TO INFORMATION ACT) † right of access to information held by state (as of right) † right of access to information held by private bodies (where information necessary to exercise or protect rights) † information officer of governmental body must provide patient access to medical records † may be refused where HCW of reasonable opinion disclosure likely to cause serious harm to patient’s physical / mental health or well-being † similar provisions to heads of private bodies Hence institutions / doctors custodians of medical reports. RECORDS OWNED BY PATIENTS

29. THE COSTS OF MEDICAL LITIGATION † financial † harassment † time † emotional strain BEST WAY TO AVOID LITIGATION † ensure no medical accidents occur - idealistic † ensure patient understands management - proper informed consent † where treatment goes wrong, corrective measures effected + patient given all necessary information to understand what went wrong and how it is being corrected GOOD COMMUNICATION † trouble usually when patient kept in dark

30. AVOIDANCE OF LITIGATION † Maintain a reasonable standard of care - do not undertake intervention when requisite facilities and expertise not available † Meticulous contemporary note-keeping - full history, advice in relation to treatment, precise account of surgical technique or other treatment, full details of postop management, discharge summary † Good communication - patient must be kept informed at all times, full & frank disclosure when things go wrong † All staff to produce report ASAP while incident fresh in minds. † Doctors concerned with techniques at horizon of medical research - should stick to ethical guidelines laid down

31. HOW TO ACT WHEN COMPLAINT MADE † Promptly contact medical protection insurance for advice † Where letter from patient’s legal advisors - prompt response - ONLY OF ACKNOWLEGEMENT - no further correspondence to legal advisors † Where doctor / patient relationship is continuing, give full explanation to patient † Where complaint is of administrative nature, hospital manager to be immediately involved.

32. HOW TO ACT WHEN COMPLAINT MADE - MPS • Send letter to Society attorney immediately + contact MPs medico-legal advisor • Start thinking of events that led up to complaint • Prepare report for MPS • Get and keep copies of patient’s notes • Do not make any changes to notes

33. A PATIENT CONSENTS TO EXPLORATORY SURGERY TO EXAMINE A POSSIBLY MALIGNANT GROWTH IN HIS ABDOMEN. DURING THE OPERATION THE GROWTH IS FOUND TO BE MALIGNANT AND THE SURGEONS USE MAJOR SURGERY TO EXCISE IT TOGETHER WITH SECONDARY GROWTHS IN SOME OF THE PATIENT’S GLANDS. HAD THE GROWTH NOT BEEN REMOVED THE PATIENT’S LIFE EXPECTANCY WOULD HAVE BEEN REDUCED TO ONE YEAR. AS A RESULT OF THE SURGERY THE PATIENT IS OFF WORK FOR THREE MONTHS AND LOSES A LUCRATIVE CONTRACT WORTH R300 000 IN PROFITS. THE PATIENT ALLEGES THAT HAD HE KNOWN THAT HE WOULD REQUIRE MAJOR SURGERY HE WOULD HAVE POSTPONED THE OPERATION FOR FOUR MONTHS UNTIL HE HAD COMPLETED THE CONTRACT. HE NOW WISHES TO SUE THE SURGEON FOR THE LOST PROFITS. WILL HE SUCCEED? WHY OR WHY NOT?

34. The ward registrar tells you, the intern to administer a penicillin injection to 30 year old Sandy whom he has just admitted with an acute chest infection. The registrar leaves the ward immediately, rushes into theatre and starts surgery on a patient with acute abdomen. You are quite busy in the ward. However, you leave what you are doing and follow registrar’s orders and administer the injection. This is your 2nd day as an intern and you do not want to “rub your registrar up the wrong way” Sandy has an acute allergic reaction. You have not managed such a reaction before. You try to get your registrar to assist – he cannot leave the patient in theatre. There is no one else around to assist you. Sandy dies. Analyse this case from a medico-legal and ethical perspective. What should health professionals do to avoid finding themselves in the intern’s situation?