This article deals with whether the COVID-19 regulation that prohibits parental visits to their children who are patients in hospital is invalid in terms of the Constitution of South Africa. The ...article contends that the ban on visits by parents to their children in hospital is a violation of the children's rights provisions of the Constitution regarding the 'best interests of the child', and the 'best interests standard' in the Children's Act 38 of 2005. The article also points out that the regulations are not saved by the limitations clause of the Constitution, because the restriction is not 'reasonable and justifiable' and a 'less restrictive means' can be used to achieve the same purpose of preventing the spread of the COVID-19 virus. The article concludes that the relevant regulation is legally invalid, and hospitals would be fully justified in allowing parental visits to child patients provided proper precautions are taken to contain the virus.
The new 501Y.V2 variant of COVID-19 has led to a rapid increase in the number of persons infected with the virus in South Africa, and state and private hospitals are having to turn patients away. ...Although it is common practice for patients to be transferred between provinces for specialist care, the upsurge in the COVID-19 pandemic has led to some hospitals considering reserving intensive care and critical care beds for COVID-19 patients from their province. The Constitution provides that nobody may be refused emergency medical treatment, nor may they be unfairly discriminated against. This is also implicit in the 'equitable' provision of healthcare services referred to in the National Health Act 61 of 2003. The Critical Care Society of Southern Africa COVID-19 guidelines, or other similar widely accepted guidelines, may be used, provided they do not unfairly discriminate against patients on the basis of age. According to the Constitution, a hospital that wishes to turn away an emergency treatment request from another province because it is reserving beds for COVID-19 patients from its home province will have to show that it is 'reasonable and justifiable' to do so. It will have to show that the other province's patient was being subjected to the same criteria for admission as its home province COVID-19 patients, because, for instance, occupation of the bed by another COVID-19 patient from the home province was imminent.
Problems arise when a lawfully appointed surrogate decision-maker wishes to decide on a course of action on behalf of a mentally incompetent patient that is against the patient's best interests. This ...may arise: (i) where there is no advance directive, and the decision is made by the surrogate decision-maker on religious grounds; (ii) where the medical practitioners are of the opinion that the surrogate decision-maker's decision is not in the best interests of the patient; (iii) where the close relatives of the patient do not agree with the decision by the surrogate decision-maker; and (iv) where the surrogate decision-maker asks the medical practitioners to undertake treatment or a procedure on the patient that is unlawful or unethical. Suggestions are made regarding what doctors should do when faced with each of these situations.
The South African Constitution provides that children have the right to healthcare, as well as all other rights. Furthermore, in all matters affecting them, their best interests must be ‘of paramount ...importance’. It seems common practice that, when parents refuse blood transfusions for their children solely on religious grounds, doctors and health authorities apply for a court order to overturn such refusals. However, since the implementation of the Children’s Act of 2005, it may be that the onus is no longer on doctors and authorities to apply to court to reverse the decision of parents and guardians. It can be argued instead that the burden has shifted to the parents to apply to court for an order to overrule the decision of doctors, by proving to the court that alternative choices are available. Guidance is given for situations, particularly in the public sector, where alternative choices are not available.
During the recent strikes by healthcare personnel in North West Province, South Africa, patients were prevented from accessing emergency medical care and doctors and nurses were ejected from ...hospitals. Such conduct violates the Constitution of the Republic of South Africa, 1996, and is unlawful, as health services are ‘essential services’ in terms of the Labour Relations Act No. 66 of 1995. Doctors, nurses and other healthcare personnel who are prevented from assisting patients by striking colleagues should take active steps to secure access to healthcare services for patients requiring emergency medical care.
Medicine and the Law McQuoid-Mason, D J
South African medical journal,
09/2023, Volume:
113, Issue:
9
Journal Article
Peer reviewed
Problems arise when a lawfully appointed surrogate decision-maker wishes to decide on a course of action on behalf of a mentally incompetent patient that is against the patient’s best interests. This ...may arise: (i) where there is no advance directive, and the decision is made by the surrogate decision-maker on religious grounds; (ii) where the medical practitioners are of the opinion that the surrogate decision-maker’s decision is not in the best interests of the patient; (iii) where the close relatives of the patient do not agree with the decision by the surrogate decision-maker; and (iv) where the surrogate decision-maker asks the medical practitioners to undertake treatment or a procedure on the patient that is unlawful or unethical. Suggestions are made regarding what doctors should do when faced with each of these situations.
The Court of Arbitration for Sport recently confirmed that the decision by the International Association of Athletics Federations to require hyperandrogenic female athletes such as Caster Semenya to ...reduce their testosterone levels to compete in certain races has been widely condemned. The World Medical Association has warned doctors not to assist in implementing the decision, as it would be unethical. The same would apply in terms of the Health Professions Council of South Africa’s rules of professional conduct. Such treatment is ‘futile’ in medical terms, and does not serve the purpose of providing healthcare. Therefore, doctors may lawfully refuse to prescribe it. The decision is a violation of Semenya’s constitutional rights and would be regarded as unethical should doctors comply with it. However, the prescription of such drugs would not be unlawful if Semenya gave informed consent to taking them. Such consent would not be a defence to a disciplinary hearing on unprofessional conduct, but would be a good defence to any legal action arising from unpleasant side-effects – provided they were explained to her.
This article deals with what doctors in the private sector should do if relatives of deceased patients refuse to consent to medicolegal autopsies and demand that the bodies be handed over to them. ...The law does not require consent by relatives for medicolegal autopsies, because the State has a compelling interest in ensuring that such deaths are properly investigated. Relatives of patients who have died an unnatural death may be criminally prosecuted if they attempt to obstruct doctors from carrying out their duties under the Inquests Act 58 of 1959 and the regulations regarding the rendering of forensic pathology services.
Doctors' organisations have called for special legislation regarding the criminal charging of doctors for culpable homicide, and the need for special medical malpractice courts to deal with the huge ...increase in the number of medical malpractice cases. However, there are very few criminal prosecutions, because the prosecuting authorities generally accept that doctors do not intend to kill their patients, and are only likely to charge them for intentional or very serious deviations from the standard of a reasonably competent doctor in their profession. Doctors are also generally not held liable for mere errors of judgement. Although the call is for special legislation, the issues concerned can generally be dealt with administratively by existing legislation. For instance, the requirement of mediation before litigation could be introduced by the Chief Justice. Doctors need not fear making admissions during mediation proceedings in civil matters, because legislation provides that such admissions and evidence may not be used in subsequent civil actions. The Chief Justice can also issue a practice directive that all presiding officers must appoint medicolegal experts as assessors in medical malpractice cases. The medical profession can assist the process by arranging a panel of such experts who can be called upon to serve as assessors by the courts.
The Limpopo MEC for Health, during a hospital visit, was recently shown in a video to have humiliated a vulnerable undocumented Zimbabwean woman patient, resulting in the hospital workers present ...laughing at the unfortunate patient. The patient had arrived at a hospital in the province that was short-staffed and under-resourced because of failings on the part of the Department of Health. She wished to give birth to her child in a safe environment, because the shortage of proper facilities in Zimbabwe posed a threat to her and her unborn child. The conduct of the MEC is measured against the patient’s rights under the Constitution of South Africa and the National Health Act 61 of 2003, and her conduct is discussed in the light of the Health Professions Act 56 of 1974 and the Ethical Rules of Conduct of the Health Professions Council of South Africa (HPCSA). The conclusion reached is that the MEC had breached the Constitution, the National Health Act, the Health Professions Act and the Ethical Rules of Conduct of the HPCSA, and should be disciplined by the HPCSA, as required by the Health Professions Act.
PDF
