Transcript Introduction to Health Law and Human Rights

Introduction to Health Law
and Human Rights
Professor A Dhai
Director – Steve Biko Centre for
Bioethics
GEMP 1 - 2009
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-Dutch Law
Brought to Cape in 1652
Has remained basis of common law in SA
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.
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.
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.
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
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
Layers of Legal Structure
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International Law
Constitution
Legislation
Common Law
Policy and Regulations
Human Rights
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Defn: rights one possesses by virtue of being
human
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“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)
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Bible:
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urges people to treat others in the same way they
themselves would like to be treated – espouses equality
What makes health a human right?
Universal Declaration of Human
Rights – 1948
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Everyone “… has the right to a standard of
living adequate for the health and wellbeing of himself and his family, including
food, clothing, housing, and medical care
and necessary social services.”
International Covenant on
Economic, Social and Cultural
Rights - 1966
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Makes responsibility of governments with
respect to right to health more specific
Mandates governments to undertake following
steps:
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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
Pertinent Aspects of the Bill of
Rights of Constitution of SA
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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
Some Pertinent Legislation
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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
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.
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
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
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
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
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
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.
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.
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.
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
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.
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.
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.
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
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
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
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
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.
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
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?
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?