Health Care Ethics in South Africa by jhr80137

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									           School of Natural Medicine

         Faculty Community & Health
                Science


   ETHICS, JURISPRUDENCE AND PRACTICE
             MANAGEMENT



                 2009



              CLASS NOTES




               Dr N Nortjé




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Dear Student


In the ancient Greek and Roman era Ethics was always part of the curricula of any study.
Sadly, this fell to the side as degrees became more and more specialized. However, tertiary
institutions have realized that they cannot award degrees in health care if they have not given
their students a basic schooling in Ethics. This course is not intended to be an advanced
degree in Ethics and Jurisprudence, but rather one to stimulate your thoughts and equip you
for most of the ethical dilemmas you would meet in practicing your field of specialization.


It is expected from you to understand these notes as it will form the corpus of your studies
and also for the evaluations which you will to complete in order to successfully pass this
course.


With the right you assert to be taught you also have a responsibility to do your share. This
important principle will be reiterated throughout the course. Once you understand that no
right can stand alone, you will understand the true value of ethics.


I trust that you will enjoy your lectures. The first part will always be theoretical and the latter
part practical. Please participate in these class discussions as you will benefit hugely from
your colleagues’ opinions and perspectives. Ethics can never be practiced in isolation as we
always interact with people from a wide walk of life and also with differing perspectives on
that which is right and wrong.




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                                        CHAPTER 1
                                    INTRODUCTION

OUTCOMES
Studying this chapter will enable you to:
        Critically discuss the differences between ethics and morality;
        Outline the categories of ethics;
        Discuss the development in moral philosophy.


Since humans are interdependent, rules need to regulate our behavior. With the codification of
legal principles in the West during 12th century of the Common Era (CE) regulating human
behavior with regards to rights and obligations has taken effect. However, these codified rules
apply to legal rights. The question arises what does one do when you are faced with a moral
problem and you need to make a decision? Codified law does not always give us a clear-cut
solutions to moral problems as it cannot function from a individual’s convictions and sphere
of influences.


To illustrate this take the example we are faced with daily, due to the limitation to resources
we cannot provide the latest technologically-advanced medical interventions to all citizens.
Choices need to be made which will affect individuals, but what guides us if there are no
laws?


At the off-set it is important to mention that ethics and the law cannot be separated. There
are similarities between ethics and law, as both strive to determine what is right in human
interaction and society. The difference however is that law is a public and political process
whilst ethics is the emanating of personal values (internal versus external pressure).
Speeding to get a seriously injured person to the hospital is an illegal but ethical.


Ethics is one of the four major branches in philosophy (axiology) which attempts to
understand the nature of morality (to distinguish that which is right from that which is


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wrong). The Western tradition of ethics, which has its roots in Greek philosophy (Aristotle’s
Nicomachean Ethics) is sometimes also referred to as moral philosophy.


No community is homogenous and has members from different walks of life and different
convictions. Since people are living together in groups, the moral regulation of behavior has
been necessary to the group's well-being.




Three broad categories of ethics exist:




Meta-ethics which refers to the nature of the ethical statements and attitudes. It includes
questions as what "good" and "right" mean, whether and how we know what is right and
good, whether moral values are objective, and how ethical attitudes motivate us. Often this is
derived from some list of moral absolutes, e.g. a religious moral code, whether explicit or not.


Meta-ethics also investigates where our ethical principles come from, and what they mean.
Are they merely social inventions? Do they involve more than expressions of our individual
emotions? Meta-ethical answers to these questions focus on the issues of universal truths, the
will of God, the role of reason in ethical judgments, and the meaning of ethical terms
themselves.




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Normative ethics is the link between meta-ethics and applied ethics (discussed below).
Through normative ethics we attempt to ascertain a practical moral standard which indicates
to us what is right and what is wrong, as well as how to live morally good lives (see
discussion later). Normative ethics will aid us in arriving moral conduct we should exercise
(moral codes), the duties that we should follow, or the consequences of our behavior on
others.


Applied ethics attempt to apply normative ethical theories to specific controversial issues or
areas of study. In these cases, the ethicist adopts a defensible theoretical framework, and then
derives normative advice by applying the theory. Some examples of applied ethics are: health
care ethics (which you will be studying); business ethics; environmental ethics; legal ethics;
engineering ethics; etc.


Ethical problems addressed by applied ethicists often bear directly on public policy.
Examples are ample, but to illustrate this think of the debate around human experimentation
in research. The human rights movement is also directly linked to applied ethics.


Morality vs. Ethics
Often in everyday usage morality and ethics are referred to as one and the same. We must not
allow ourselves to get wrapped up in giving one concept two names and then arguing about
those names. We are dealing with two separate concepts and two names, so we should have
little difficulty in distinguishing between them, if we define our terms beforehand.


With this in mind, morality is defined as belief-derived, and ethics as derived from principles.
Morality is often shared by cultural, religious, secular (e.g. Humanist) and philosophical
communities who share concepts and beliefs, by which people determine whether given
actions are right or wrong. More often than not these concepts and beliefs about right and
wrong are codified (i.e. religious text) and serve to regulate the behavior of the members of
the community who subscribe to it.




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The difference, then, is not a function of what, but rather of how derived. Ethical behavior
(derived from principles) can be moral within this context if it also can be derived from
religious principle. Ethical behavior can be immoral within this context, if religion condemns
it; and, of course, it can also be amoral if religion does not address it. Likewise, moral
behavior can be ethical or unethical; and it can also be non-ethical, in the sense that it falls
outside the purview of ethics.


This separation of ethical and moral becomes particularly problematic and evident in
arguments over abortion because so many of the moralities and ethics involved are at odds
with one another and people understandably have a difficult time separating the two because
there are so many instances in our culture where they overlap. For this course we will focus
only on Ethics as we need to educate you about principles. Your moral conviction is your
own. Although you may never impose your moral conviction on an ethical case you are
involved with, it will inevitably play a role and one needs to take cognizance thereof.


To further illustrate the concept of morality I would like to refer to Blackburn (1996:250)
who describes morality in terms of two philosophic perspectives. According to the Kantian
perspective, morality is based on the notions of duty, obligation and principles of conduct.
From an Aristotelian perspective, Blackburn describes morality as an approach to practical
reasoning based on the notion of virtue. A simpler definition can be found in the Collins
English dictionary (1993:977), which defines morality is being concerned with the distinction
between good and bad or right and wrong behaviour. This definition touches at the heart of
the problem surrounding the meaning of morality since, as the President’s Council on
Bioethics (2004:54) points out, different to any debate are inclined to hold different views to
what is right and wrong.


Development in moral philosophy
In order to gain a better understanding of the different schools of moral philosophy, it is
imperative to take at least a brief look at the development of moral thinking. Alasdair
MacIntyre (1998:1) argues that, although roughly the same concepts of right and good exist



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universally, moral concepts change as social life changes and what is held to be right or good
may differ.


The ancient Greek philosophers held very definite views of morality. Socrates believed that it
was worse for a man to inflict wrong than to suffer it (MacIntyre 1998:27). Plato asserted in
both The Gorgias and The Republic that ―it is better to suffer tortures on the rack than to have
a soul burnt with the guilt of doing evil‖ (MacIntyre 1998:58). Aristotle likewise emphasized
that it is better to be free from having done evil.


Hobbes argued that man is simply driven by his passions and what is seen as good or bad can
therefore not be left to the individual. He reasoned that since society tends to the chaotic, it
needs to be organised and guided by a strong central authoritative figure, namely the state (de
Crespigny 1987:230).


According to Hare (1997:1), the greatest influence on contemporary moral philosophy came
from the work of the German philosopher Immanuel Kant. Kant argued that nothing is
unconditionally good – except a good will. Health, wealth and intellect are good only insofar
as they are used well. Therefore, attention is focused on the agent’s will, on his motives and
intentions, rather than upon what he actually does. The good will’s only motive is to do its
duty for the sake of doing its duty. Whatever it intends to do, it intends because it is its duty.
A man may do what is, in fact, his duty from quite other motives (MacIntyre 1998:185).
Consequently, Kant argues that my duty is my duty irrespective of the consequences
(MacIntyre 1998:188). Morality sets limits to the ways in which and the means by which we
conduct our lives; it does not give them direction. Thus morality sanctions any way of life
which is compatible with keeping our promises and telling the truth. The Kantian test for a
true moral precept, according to MacIntyre (1998:190), is that it is one that can be
consistently universalized.


As society becomes more multifaceted it is becoming increasingly difficult to draw from one
set of ―moral‖ rules. MacIntyre (1998:89) therefore elaborates on what he sees as morally
justifiable behaviour. According to him, to call something good is to say that anyone who

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wants something of that kind would be satisfied with this particular version. However, people
bring more than their own individual choice and preference to a set of circumstances; they
point to a norm for choice. In a society where traditional roles and the corresponding
traditional evaluation of behaviour have broken down or disappeared, MacIntyre (1998:89)
argues that the sequel to unsuccessful attempts to use the word ―good‖ as a simple expression
of choice or preference may well be an attempt to re-establish norms for choice. There is
indeed no reason why ―good‖ should not acquire new criteria of application.




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                                        CHAPTER 2
                             INTERNATIONAL CODES



OUTCOMES
Studying this chapter will enable you to:
       Discuss the most influential international codes pertaining to health care;
       Identify the main contribution of the specific code to modern day health care ethics.


Hippocratic Oath (4th Century BCE)
Generally accepted the Hippocratic Oath is an oath traditionally taken by physicians.
This oath is then also referred to as the first Code of Ethics. It is widely believed that the
oath was written by Hippocrates (460-370 BCE (Before the Common Era)).


Many different interpretations of the Ancient Greek version exist, herewith merely one of
the interpretations and translations:


    I swear by Apollo Physician and Asclepius and Hygieia and Panaceia and all
    the gods, and goddesses, making them my witnesses, that I will fulfill according
    to my ability and judgment this oath and this covenant:
    To hold him who has taught me this art as equal to my parents and to live my
    life in partnership with him;
    and if he is in need of money to give him a share of mine;
     and to regard his offspring as equal to my brothers in male lineage and to teach
    them this art–if they desire to learn it–without fee and covenant;
    to give a share of precepts and oral instruction and all the other learning to my
    sons and to the sons of him who has instructed me and to pupils who have
    signed the covenant and have taken the oath according to medical law, but to no
    one else;



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    I will apply measures for the benefit of the sick according to my ability and
    judgment;
    I will keep them from harm and injustice;
    I will neither give a deadly drug to anybody if asked for it, nor will I make a
    suggestion to this effect.
    Similarly I will not give to a woman an abortive remedy.
    In purity and holiness I will guard my life and my art.
    I will not use the knife, not even on sufferers from stone, but will withdraw in
    favor of such men as are engaged in this work.
    Whatever houses I may visit, I will come for the benefit of the sick, remaining
    free of all intentional injustice, of all mischief and in particular of sexual
    relations with both female and male persons, be they free or slaves.
    What I may see or hear in the course of treatment or even outside of the
    treatment in regard to the life of men, which on no account one must spread
    abroad, I will keep myself holding such things shameful to be spoken about.
    If I fulfill this oath and do not violate it, may it be granted to me to enjoy life and
    art, being honored with fame among all men for all time to come; if I transgress
    it and swear falsely, may the opposite of all this be my lot.




The Nuremberg Code (1947)
The protagonists of the inhumane human experimentation during the Second World War
defended their actions on the foundation that such research contributed towards the good of
society by encouraging a better understanding of human disease and human nature.


The Nuremberg Military Tribunal laid down ten principles, comprising the first
internationally recognised policy which laid down a set of guidelines to direct experiments on
human beings. Amongst other requirements, the Nuremberg Code expresses the condition of
voluntary informed consent of the human subject, enabling the subject to be in control of his
or her own body. Furthermore, attention is paid to the principle where risks must be evaluated
against the likely advantage, and that unnecessary pain and suffering must be avoided. The

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principles established by this code for medical practice have now been extended into general
codes of medical ethics (The Nuremberg Code, 1996:1448).


The Nuremberg Code includes principles such as informed consent; the absence of coercion;
properly formulated scientific experimentation; and beneficence towards experiment
participants.



The ten points of the Nuremberg Code
    1. The voluntary consent of the human subject is absolutely essential. This means that
        the person involved should have legal capacity to give consent; should be so situated
        as to be able to exercise free power of choice, without the intervention of any element
        of force, fraud, deceit, duress, over-reaching, or other ulterior form of constraint or
        coercion; and should have sufficient knowledge and comprehension of the elements of
        the subject matter involved as to enable him to make an understanding and enlightened
        decision. This latter element requires that before the acceptance of an affirmative
        decision by the experimental subject there should be made known to him the nature,
        duration, and purpose of the experiment; the method and means by which it is to be
        conducted; all inconveniences and hazards reasonable to be expected; and the effects
        upon his health or person which may possibly come from his participation in the
        experiment. The duty and responsibility for ascertaining the quality of the consent
        rests upon each individual who initiates, directs or engages in the experiment. It is a
        personal duty and responsibility which may not be delegated to another with impunity.
    2. The experiment should be such as to yield fruitful results for the good of society,
        unprocurable by other methods or means of study, and not random and unnecessary in
        nature.
    3. The experiment should be so designed and based on the results of animal
        experimentation and knowledge of the natural history of the disease or other problem
        under study that the anticipated results will justify the performance of the experiment.
    4. The experiment should be so conducted as to avoid all unnecessary physical and
        mental suffering and injury.


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    5. No experiment should be conducted where there is a prior reason to believe that death
         or disabling injury will occur; except, perhaps, in those experiments where the
         experimental physicians also serve as subjects.
    6. The degree of risk to be taken should never exceed that determined by the
         humanitarian importance of the problem to be solved by the experiment.
    7. Proper preparations should be made and adequate facilities provided to protect the
         experimental subject against even remote possibilities of injury, disability, or death.
    8. The experiment should be conducted only by scientifically qualified persons. The
         highest degree of skill and care should be required through all stages of the experiment
         of those who conduct or engage in the experiment.
    9. During the course of the experiment the human subject should be at liberty to bring the
         experiment to an end if he has reached the physical or mental state where continuation
         of the experiment seems to him to be impossible.
    10. During the course of the experiment the scientist in charge must be prepared to
         terminate the experiment at any stage, if he has probable cause to believe, in the
         exercise of the good faith, superior skill and careful judgment required of him that a
         continuation of the experiment is likely to result in injury, disability, or death to the
         experimental subject.


The 1948 Universal Declaration of Human Rights
(Part of the Declaration)
     Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of
     the human family is the foundation of freedom, justice and peace in the world,
     Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged
     the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of
     speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the
     common people,
     Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion
     against tyranny and oppression, that human rights should be protected by the rule of law,
     Whereas it is essential to promote the development of friendly relations between nations,
     Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental
     human rights, in the dignity and worth of the human person and in the equal rights of men and women
     and have determined to promote social progress and better standards of life in larger freedom,


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    Whereas Member States have pledged themselves to achieve, in co-operation with the United Nations,
    the promotion of universal respect for and observance of human rights and fundamental freedoms,
    Whereas a common understanding of these rights and freedoms is of the greatest importance for the full
    realization of this pledge,


    Now, Therefore,
    THE GENERAL ASSEMBLY
    Proclaims:
    THIS UNIVERSAL DECLARATION OF HUMAN RIGHTS as a common standard of
    achievement for all peoples and all nations, to the end that every individual and every organ of society,
    keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect
    for these rights and freedoms and by progressive measures, national and international, to secure their
    universal and effective recognition and observance, both among the peoples of Member States
    themselves and among the peoples of territories under their jurisdiction.




The Declaration of Helsinki (1964)
According to McNeill (2001:371-372), the Nuremberg Code contained in the court's
judgment was not itself very influential. In 1964 the World Medical Association issued
another code for research and experimentation, known as the Helsinki Declaration, which
gained more publicity than the Nuremberg Code and was more influential within the medical
profession. The Declaration of Helsinki dealt with the complex questions surrounding
subjects who are incompetent to make informed judgments.


The Declaration of Helsinki does not hold an absolute obligation that informed consent be
obtained in the setting of therapeutic research, but introduces the notion of guardianship as a
means of obtaining consent from incompetent subjects (British Medical Journal, 1996:1413).


According to the editorial in the prestigious British Medical Journal (1996:1413) incorporated
into both the Code and the Declaration are objective conflicts of interest and conflicts of role:
―the physician seeks the best for his or her patient and yet seeks to pursue medical science for
the good of society‖. Both documents ascertain an unconditional obligation for informed
consent in performing experimental research, but the Declaration allows the physician, under


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certain circumstances which he or she must defend, to waive the requirement for informed
consent.


Since its writing, the Declaration of Helsinki has had a vast influence on researchers’ overall
sense of duty to individual patients. These advances have reflected the development of public
concern over the possible conflict of interest between different value systems and unfettered
scientific progress.




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                                          CHAPTER 3
                                  ETHICAL THEORIES



OUTCOMES
Studying this chapter will enable you to:
        Critically discuss the different theories;
        Outline the essence of every theory;
        Describe recent trends;
        Discuss principilism in detail.




It is important for us to take note of the theories which has been developed. A good
understanding of these theories is necessary to aid your critical thinking. No one theory will
be propagated as the dominant theory. However, since most committees use the principles
developed by Beauchamp and Childress (2001), we will pay special attention to this
influential school of thought. In this section we will briefly touch on the most influential
theories, returning to principilism later in more detail.


Libertarian theory
Blackburn’s (1996:218) definition of the libertarian theory states: ―Libertarians advocate the
maximization of individual rights, especially those connected with the operation of a free
market, and the minimization of the role of the state. In the libertarian vision, exercises of
state power for positive ends, such as amelioration of social disadvantages through social
welfare programmes, constitute infringements of the rights of others.‖


The dichotomous South African picture of health care is based upon this theory, which
functions on the material principle of ability to pay, either directly or indirectly through
insurance. In general, under this conception, a just society protects rights of property and


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liberty, allowing persons to improve their circumstances and protect their health on their own
initiative (Beauchamp & Childress, 2001:231). The ―father‖ of the libertarian theory, Robert
Nozick, appeals to the Kantian initiative that people should not merely be treated as an ends
to a mean, but rather as rational beings. According to this theory health care is not a right, and
the best health care system is privatized.


Beauchamp and Childress (2001:232) specify that according to the libertarian interpretation
of justice, the focus is not on increasing public utility or meeting the health needs of society,
but on the creative process of fair procedures. Therefore a theory of justice should affirm
individual rights rather than generate patterns of financial allocation in which governments
redistribute the assets obtained by individuals under the free market.


Nozick, as illustrated in Beauchamp and Childress (2001:232), acknowledges an outline of
procedural justice with only three principles: justice in acquisition, justice in transfer, and
justice in rectification. Consequently, justice consists in the process of just actions (such as
fair play), not in the creation of just end results (such as an equal distribution of resources).
There are no welfare rights and therefore, according to this theory, no rights or claims to
health care can be based on justice. To summarise their point of view: any distribution of
goods, including that of health care, is just and justified if individuals in the relevant group
freely choose it.


Communitarian theory
Communitarians respond pessimistically to forms of the social order that support individual
interaction on privileges and agreements. Tönnies’ theory ―stresses ties of affection, kinship,
and a sense of common purpose and tradition, as opposed to the meagre morality of
contractual ties entered into between a loose conglomeration of individuals‖ (Blackburn,
1996:70).


For communitarians principles of justice are pluralistic, originating from as many diverse
origins of the good as there are diverse moral communities (Beauchamp & Childress,
2001:232). Thus communitarians stress either the accountability of society to the individual

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or, more recently, the accountability of the individual to society. Justice is positioned in the
guarantee that services will be presented to fulfil a particular community-endorsed conception
of social objectives (Beauchamp & Childress, 2001:233).




Egalitarian theories (Deontology/duty-based)
The doctrine of egalitarian theory, which holds that life should be intended at respecting and
advancing the equality of persons, thereby advocating that all individuals should receive an
equivalent distribution of some goods, and unrestricted access to basic health care.


The German philosopher Immanuel Kant (1724-1804) is arguably the father of deontology. In
his theory he argues that the end should not justify the means and that the intention of the
agent should at the outset be good. He also holds that all humans are bound by the maxim that
they should do the right thing all the time. No person should be viewed as an instrument
(means) to an end and all humans therefore should only be viewed as ends in themselves.
Arguably the most noted qualified egalitarian is John Rawls. Rawls (Blackburn, 1996:319)
―considers the basic institutions of a society that could be chosen by rational people under
conditions that ensure impartiality. These conditions are characterised as an original position
so that it is as if the participants are contracting into a basic social structure from behind a veil
of ignorance, leaving them unable to deploy selfish considerations, or ones favouring
particular kinds of persons.‖


A just health care system based largely on a Rawlsian principle of "fair equality of
opportunity", according to Beauchamp and Childress (2001:234), relies unconditionally on
the significance of health care requirements and on a considered conclusion that fair prospect
is fundamental to any acceptable theory of justice. Rawls's theory identifies a society’s
responsibility to attempt to diminish or eradicate obstructions to fair equality of opportunity
and access. Therefore, a health care system intended to meet these needs should endeavour to
avoid ailment, infection or injury by ensuring justice through fair equality of opportunity
(Beauchamp and Childress, 2001:234).



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Consequentialism (Utilitarianism)
Consequentialism holds that an action is acceptable provided it advances the best
consequences. The ethical and political doctrine known as utilitarianism which was
formulated by the British philosopher Jeremy Bentham toward the end of the 18th century
and later expounded by the British philosopher James Mill and his son, John Stuart Mill, is
the best known branch of the consequentialistic theory.


In his Introduction to the Principles of Morals and Legislation (1789), Bentham explained the
principle of utility as a means of augmenting the happiness of the community. He believed
that all human actions are motivated by a desire to obtain pleasure and avoid pain. Because
utilitarianism is a universal hedonism, not an egoistic hedonism like Epicureanism, its highest
good is the greatest happiness of the greatest number of people.


Psychoanalysis and Behaviorism
Modern ethics is profoundly affected by the psychoanalysis of Sigmund Freud and his
followers and the behaviorist doctrines based on the conditioned-reflex discoveries of the
Russian physiologist Ivan Pavlov. Freud attributed the problem of good and evil in each
individual to the struggle between the drive of the instinctual self to satisfy all its desires and
the necessity of the social self to control or repress most of these impulses in order for the
individual to function in society. Although Freud's influence has not been assimilated
completely into ethical thinking, Freudian depth psychology has shown that guilt, often
sexual, underlies much thinking about good and evil.


Behaviorism, through observation of animal behavior, strengthened beliefs in the power to
change human nature by arranging conditions favorable to the desired changes. In the 1920s,
behaviorism was broadly accepted in the United States, principally in theories of pediatrics
and infant training and education in general. The greatest influence, however, was on thinking
in the former Union of Soviet Socialist Republics. There, the so-called new Soviet citizen was
developed according to behaviorist principles through the conditioning power of the rigidly



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controlled Soviet society. Soviet ethics defined good as whatever is favorable to the state and
bad as everything opposed to it.


In his late 19th-century and early 20th-century writings, the American philosopher and
psychologist William James anticipated Freud and Pavlov to some extent. James is best
known as the founder of pragmatism, which maintains that the value of ideas is determined by
their consequences. His greatest contribution to ethical theory, however, lies in his insistence
on the importance of interrelationships, in ideas as in other phenomena.


Recent Trends
The British philosopher Bertrand Russell has influenced ethical thinking in recent decades. A
vigorous critic of conventional morality, he held the view that moral judgments express
individual desires or accepted habits. In his thinking, both the ascetic saint and the detached
sage are poor human models because they are incomplete human beings. Complete human
beings participate fully in the life of society and express all of their nature. Some impulses
must be checked in the interests of society and others in the interest of individual
development, but it is a person's relatively unimpeded natural growth and self-realization that
makes for the good life and harmonious society.


A number of 20th-century philosophers, some of whom have espoused the theories of
existentialism, have been concerned with the problems of individual ethical choice raised by
Kierkegaard and Nietzsche. The orientation of some of these thinkers is religious, as was that
of the Russian philosopher Nikolay Aleksandrovich Berdyayev, who emphasized freedom of
the individual spirit; of the Austrian-Jewish philosopher Martin Buber, who was concerned
with the morality of relations between individuals; of the German American Protestant
theologian Paul Tillich, who stressed the courage to be oneself; and of the French Catholic
philosopher and dramatist Gabriel Marcel and the German Protestant philosopher and
psychiatrist Karl Jaspers, both of whom were concerned with the uniqueness of the individual
and the importance of communication between individuals. A different tendency in modern
ethical thought characterizes the writings of the French philosophers Jacques Maritain and



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尒ienne Gilson, who followed the tradition of Thomas Aquinas. According to Maritain, "true
existentialism" belongs only to this tradition.


Certain other modern philosophers do not accept any of the traditional religions. The German
philosopher Martin Heidegger maintains that no God exists, although one may come into
being in the future. Human beings are, therefore, alone in the universe and must make their
ethical decisions with the constant awareness of death. The French philosopher and novelist
Jean-Paul Sartre was an atheist who also emphasized the awareness of death. Sartre also
maintained that people have an ethical responsibility to involve themselves in the social and
political activities of their time.


Several other modern philosophers, such as the American John Dewey, have been concerned
with ethical thought from the viewpoint of instrumentalism. According to Dewey, the good is
that which is chosen after reflecting upon both the means and the probable consequences of
realizing the good. Contemporary philosophical discussion of ethics in England and the
United States is largely based on the writings of George Edward Moore, especially his
Principia Ethica. Moore argued that ethical terms are definable in terms of the word good,
whereas "good" is undefinable. This is so because goodness is a simple, unanalyzable quality.
Philosophers who disagree with Moore in this regard, and who believe good to be definable,
are termed naturalists. Moore is called an intuitionist. Naturalists and intuitionists regard
ethical sentences as descriptive of the world, and hence true or false. Philosophers who
disagree with this belong to a third major school, noncognitivism, in which ethics is not a
form of knowledge, and ethical language is not descriptive. An important branch of the
noncognitive school is logical empiricism, which questions the validity of ethical statements
as compared with statements of fact or of logic. Some logical empiricists argue that ethical
statements have only emotional or persuasive significance. Other contemporary American
philosophers writing to indicate a concern with ethical considerations are Sidney Hook in his
Human Values and Economic Policy (1967) and Mortimer Adler in The Conditions of
Philosophy (1965).




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Principlism




Respect for Autonomy
This principle assumes that all rational agents’ should make informed and voluntary
decisions, translated it means all people should give their "informed consent". In health care
decisions, respect for the autonomy of a patient implies that the patient has the capacity to act
intentionally, with understanding, and without controlling influences which would be contra
to a free and voluntary act.


The Principle of Nonmaleficence
The principle of nonmaleficence requires that we do not on purpose create unnecessary harm
or injury to the patient (either through commission or omission). It is considered negligent if
one imposes a careless or unreasonable risk of harm upon another, i.e. through incompetency;
breach of duty; negligence; etc.


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The Principle of Beneficence
This principle refers to the duty of health care providers to be of benefit to the patient, as well
as to take active steps to prevent harm from happening to the patient. These goals are applied
both to individual patients, and to the good of society as a whole. It is held that
nonmaleficence is a constant duty, that is, one ought never to harm another individual.
Whereas, beneficence is a limited duty (a physician has a duty to seek the benefit of any or all
of her patients, however, the physician may choose whom to admit into his or her practice).


The Principle of Justice
Justice in health care is usually defined as a form of fairness, or as Aristotle once said, "giving
to each that which is his due." This implies the fair distribution of goods in society and
requires that we look at the role of entitlement. The question of distributive justice also seems
to hinge on the fact that some goods and services are in short supply, there is not enough to go
around, thus some fair means of allocating scarce resources must be determined.




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                                                   CHAPTER 4
                                                    THE LAW1



OUTCOMES
Studying this chapter will enable you to:
           Critically discuss the important acts of parliament which governs health care services;
           Outline the essence f the basic legal principles.


    The South African system of health care is a non-socialised system (private and public
    sectors). Although a substantial number of medical doctors and supplementary health-
    care professionals and the majority of nurses are employees of the national
    Department        of      Health,     the     provincial     administrations     and       local   authorities,
    most of the medical doctors, dentists, and pharmacists are not employed by
    the     state      but     practise         independently     for     their     own        account.      Private
    practitioners      and     private    hospitals     attend    to    those     who    can     afford   to    pay
    for the services they render, either from their own funds or through the
    medical     scheme that         they belong to.             Medical     schemes provide a form of
    medical insurance and are controlled in terms of the Medical Schemes Act
    131 of 1998. Because of the relatively high costs involved, membership of
    medical schemes is to a large extent restricted to the more affluent. Employers
    often subsidize their employees' medical-scheme membership fees.


    As a matter of policy, the national                        Department       of Health hopes to             make
    membership         of      medical      schemes       more      affordable,     to       enable    the     high
    percentage of the South African population who are currently excluded, to
    enjoy the advantages of medical-scheme membership. According to the Department of
    Health,         roughly      between          75    and       80      percent       of      the    population
    have limited access to health services (The Charter of the Health Sector of the
1
    This chapter draws greatly on the work of Coetzee and Strauss (2008) Medical Law.


23 | P a g e
 Republic of South Africa, released by the Minister of Health on 28 October
 2005, par 2.2.7.).


 The patient, who consults a health professional or other person in private practice, enters
 into   a      direct     relationship   with     the        practitioner    and     must        remunerate      him
 privately for his service.              (The patient may, of course, belong to a medical
 scheme which will pay the practitioner on his behalf.) It is, therefore, a free-
 enterprise      system      in    the   sense        that    the   relationship          between     the     parties
 depends on the agreement entered into by them, and that the state is not a
 party to the relationship. Nor does the state undertake to provide medical
 services to all.


 Notwithstanding the provisions of section 27 of the Constitution the individual has no
 absolute right to health care in the sense that the state is legally obliged to provide such care
 and at its expense, irrespective of the economic status of the patient requiring medical
 or hospital services.


 As far as the terms of the agreement between health professional and patient are
 concerned, their relationship is                not, however, a               ``free-enterprise''          type of
 relationship in the full sense of that expression. The law has placed important
 limitations upon the terms of the contract between health professional and patient. Thus a
 health professional is not at liberty to charge the patient any fee he wishes or that the
 patient is willing to pay.


 Another legal limitation upon the contents of the contract between health professional
 and patient is that a health professional may probably not enter into an agreement
 whereby       the      patient   undertakes     to     assume      the     risk    for     negligent       treatment
 (Strauss SA & Strydom MJ Die Suid-Afrikaanse geneeskundige reg                                               (1967)
 317). As yet we have not had a court decision on the legal validity of such an
 agreement,       but      the    HPCSA     will        probably      regard       such     an      agreement      as
 unethical.

24 | P a g e
 Regulation of Medical, Dental, Nursing and Supplementary Health Service Professions
 The medical, dental, nursing and supplementary health service professions are
 not    state-controlled,       but         the    law     makes         provision        for     registration   by
 professional     councils      or     boards       and    for   the      control     by        these   boards   of
 standards of conduct for practitioners. The Health Professions Act 56 of 1974
 governs medical and dental practitioners as well as health-service personnel such as
 psychologists, occupational therapists, chiropodists, physiotherapists, medical technologists,
 optometrists, orthopaedic orthotists and prosthetists, radiographers, speech therapists,
 dieticians and food inspectors.


 Practitioners such as chiropractors, homeopaths, naturopaths, osteopaths, herbalists and
 certain other categories of health practitioners by the Allied Health Professions Act
 63 of 1982.


 All the Acts referred to make registration or enrolment on a professional register or
 list a prerequisite for the practice of the branch of medicine or technology involved,
 and penalise practice by an unregistered person. (Note that in terms of the Health
 Professions Act 56 of 1974, it is a criminal offence for an unregistered person to
 undertake certain forms of treatment, even where it is not for gain, e.g. to treat
 cancer.)




 Limitations are placed on the scope of activities that may be undertaken by members of a
 particular profession, except in the case of medical practitioners and dentists. As far as
 medical        practitioners         are         concerned,       the       only         statutory      limitation
 imposed upon their practice is that a doctor who is not registered as a dentist
 may not perform acts pertaining to dentistry except in cases of emergency or
 where no dentist is readily available                    (s 38, Act         56      of     1974). Furthermore
 there is the rule of professional ethics whereby it is improper conduct for a

25 | P a g e
 doctor or dentist to perform professional acts for which he is inadequately
 trained and/or insufficiently experienced (except in an emergency).


 Under common law a practitioner who performs such acts may be held liable for the
 damage or injury suffered by the patient as a consequence of these acts, on the
 basis of negligence.




 Hospital and state medical services
 Although there is no national health service in South Africa of the type
 operative     in   England,    provision   has    been   made   for    state   and   provincial
 hospitals and clinics to offer medical and hospital services for the lower-
 income groups and indigent persons either free or at a reduced rate.


 The National Health Act 61 of 2003 (s 4(1)) empowers the Minister of Health to
 prescribe conditions subject to which categories of persons are eligible for such free health
 services at public health establishments as may be prescribed. Section 4(3) of the Act
 provides that, subject to any condition prescribed by the Minister, the state and clinics and
 community health centres funded by the State must provide:
         (a) pregnant and lactating women and children below the age of six years, who are
               not members or beneficiaries of medical aid schemes, with free health services
         (b) all persons, except members of medical aid schemes and their dependants and
               persons receiving compensation for compensable occupational diseases, with
               free primary health care services
         (c) women, subject to the Choice on Termination of Pregnancy Act 92 of 1996 free
               termination of pregnancy services


 It is to be noted that no-one has an absolute right to be admitted to a hospital, whether
 private or public. Admission to a state hospital is a matter which in terms of provincial
 laws is ordinarily within the discretion of the superintendent of the hospital. Provided
 that the superintendent has exercised his discretion in a reasonable manner and with due

26 | P a g e
 regard to the urgency of each case, his decision cannot be challenged.


 Private       hospitals   in   principle   have     an    absolute      discretion   concerning    whom
 they will admit as patients. It is submitted, however, that in a case of a life-or-
 death emergency, where there is no state hospital within easy reach, a private
 hospital which is equipped with a casualty section may by common law be
 obliged to admit the patient involved. This view is supported by section 27 of
 the    Constitution       which    provides       inter   alia   that     no-one     may   be     refused
 emergency medical treatment.




27 | P a g e
                                              CHAPTER 5
                                     THE BILL OF RIGHTS2



OUTCOMES
Studying this chapter will enable you to:
           Identify the Constitutional provisions relating to each of the values;
           Discuss the most important interpretation of the relevant Constitutional provisions.




Constitutional law is a study field in its own right. The attempt is not to school you in
Constitutional law, but to draw your attention to certain provisions of the Bill of Rights
(Chapter 2) contained in the Constitution, which took effect on 1 January 1997, relating to
medical and health matters.


The prohibition of unfair discrimination (Section 9)
Section 9 (equality) prohibits unfair discrimination, inter alia on the ground of ``disability''.
Depending on the eventual interpretation of this clause by the Constitutional Court, the
provision may be relied upon by, for example, persons with epilepsy, to challenge
discrimination in the field of employment.


The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 gave effect
to section 9. This Act contains a comprehensive list of grounds on which discrimination is
prohibited. One of these is disability.


Section 9 of the latter Act prohibits discrimination on the ground of disability, including
          denying a disabled person any supporting facility necessary for his or her functioning
           in society;


2
    This chapter draws greatly on the work of Coetzee and Strauss (2008) Medical Law.


28 | P a g e
       contravening the code of practice or regulations of the South African Bureau of
        Standards that govern environmental accessibility;
       failing to eliminate obstacles that unfairly limit or restrict persons with disabilities
        from enjoying equal opportunities or failing to take steps to reasonably accommodate
        the needs of such persons.


Moreover, the Schedule to Act 4 of 2000 contains a list of examples of unfair practices in the
health-care sector, such as:
       subjecting persons to medical experiments without their informed consent;
       unfairly denying or refusing any person access to health care facilities or failing to
        make health-care facilities accessible to any person;
       refusing to provide emergency medical treatment to persons of particular groups
        identified by one or more of the prohibited grounds;
       refusing to provide reasonable health services to the elderly.


From a study of the Act in its context with the Bill of Rights it is clear, however, that there is
no duty upon private practitioners or hospitals to give access to these facilities or render these
services free of charge.


The right to life (Section 11)
Section 11 provides that everyone has the right to life. This right is, of course, also protected
by common law.


In Christian Lawyers Association of SA and Others v Minister of Health and Others 1998
(4) SA 1113 (T) a provincial court ruled that the Choice on Termination of Pregnancy Act
92 of 1996, governing abortion, was not in conflict with the constitutional right to life. The
Act was challenged on the ground that it allows the termination of human life. It was
contended that section 11 applied also to unborn children from the moment of conception.
The court, however, held that the word ``everyone'', does not include a foetus.
The right to life may also be relevant in the context of euthanasia. In terms of common law,
assisted suicide and active euthanasia are considered unlawful.

29 | P a g e
Where an individual patient wants to have an end made to his/her intolerable suffering, it may
be necessary to balance the state's constitutional obligation to protect life with the individual's
right to control over his/her body (s 12(2)) and right to dignity (s 10).


The right to freedom and security of the person (section 12)
Section 12 (freedom and security of the person) provides the following in subsection (2):


Everyone has the right to bodily and psychological integrity, which includes the right:
        (a) to make decisions concerning reproduction;
        (b) to security in and control over their body; and
        (c) not to be subjected to medical or scientific experiments without their informed
        consent.


Recognition of these rights has also been accorded by common law, although the right
referred to in paragraph (a) has never before been formulated in such specific terms. South
Africa's permissive abortion legislation, the Choice on Termination of Pregnancy Act 92 of
1996, finds constitutional support in the express recognition of the right to make
decisions concerning reproduction.


The right to security in respect of and control over one's body is closely linked to the health
professional’s duty to   obtain an informed consent before performing a medical intervention.


The right to privacy (Section 14)
Section 14 protects the right to privacy in general terms, and specifically mentions certain
aspects of this right. Privacy is, of course, also protected by common law, and an example in
the medical field is the patient's right to expect the doctor not to make unwarranted
disclosures to others regarding the patient's ailment and the nature of the treatment. Section
14                                            will                                       probably
have little effect in the area of medical law because of existing common-law protection of
privacy.

30 | P a g e
Section 14 of the National Health Act 61 of 2003 also emphasises the patient's right
to privacy and confidentiality. The Act stipulates that all information concerning a
user, including information relating to his/her health status, treatment or stay in a health
establishment, is confidential. Such information may not be disclosed unless:
          (a) the patient consents in writing to disclosure
          (b) a court order or any law requires that disclosure
          (c) non-disclosure presents a serious threat to public health.


The right to health care (Section 27)
Section 27 (dealing inter alia with health care) provides inter alia that:
          (a) everyone has the right to have access to health-care services, including
               reproductive health care (s 27(1)(a))
          (b) no one may be refused emergency medical treatment (s 27(3))


See also the National Health Act 61 of 2003, section 5, which imposes a duty on doctors,
nurses, hospitals, etcetera, in the following terms: ``A health care provider, health worker or
health establishment may not refuse a person emergency medical treatment.'' Note that there
is nothing in this provision that would entitle a patient to receive such treatment free of
charge.


CASE LAW:
In Soobramoney v Minister of Health, KwaZulu-Natal 1998 (1) SA 765 (CC) the court
considered the meaning of the term ``emergency medical treatment''. The judge was of
the opinion that there ``is some suddenness and at times even an element of unexpectedness
in the concept emergency medical treatment''.
In this case the patient suffered from chronic renal (kidney) failure. His life could, however,
be prolonged by means of regular renal dialysis (blood purification by means of a
machine). The hospital, a state institution, did not have enough financial resources to provide
dialysis treatment for all patients suffering from chronic renal failure. The cost of treating one
chronically ill patient twice a week was approximately R60 000 per year. If the patient and

31 | P a g e
others in the same condition were to be admitted to the hospital's dialysis programme, the
``carefully tailored programme'' would have collapsed, and no one would have benefited from
that. The patient's condition simply was not so serious that it met the official guidelines.




The rights of children (Section 28)
Section 28 (children) provides inter alia that every child has the right to basic health-care
services. Undoubtedly the scope of this right will in due course be defined more closely by
the Constitutional Court.


The right to information (Section 32)
Section 32 (access to information) provides as follows in subsection (1): Everyone has the
right of access to:
               (a) any information held by the state; and
               (b) any information that is held by another person and that is
                   required for the exercise or protection of any rights.


This provision clearly entitles patients to access to medical records pertaining to themselves,
whether such records were compiled in state hospitals or clinics, or private health-care
facilities or by medical practitioners in private practice. The Promotion of Access to
Information Act 2 of 2000 was enacted to give effect to this right. The provision of this Act
makes it easier for patients to gain access to information in their hospital or medical
records, both in the public (s 30) and the private (s 61) sectors. Regulations promulgated in
terms of the Act set out the procedure to be followed.


The rights of prisoners (Section 35)
Section 35, dealing with the rights of arrested, detained and accused persons,
provides inter alia that such persons have the right to conditions of detention
that are consistent with human dignity, including the provision of adequate medical treatment
at state expense. The section also guarantees the right of a detained person to communicate
with and be visited by that person's chosen medical practitioner.

32 | P a g e
                                                               CHAPTER 6
                                                   MORAL REASONING



OUTCOMES
Studying this chapter will enable you to:
             Critically discuss Kohlberg’s theory;
             Outline the four quadrant analysis;
             Apply the four quadrant analysis.



Kohlberg's Theory of Moral Development3


Lawrence Kohlberg (1927-1987) was a well-known psychologist and theorist in the field
of moral development. He posed moral dilemmas (e.g., Heinz Dilemma) to his subjects
then asked questions to probe their reasons for recommending a specific course of action.


Below is the best known of his theories:


The Heinz Dilemma
       1. Scenario


             A woman was near death from a unique kind of cancer. There is a drug that might
             save her. The drug costs $4,000 per dosage. The sick woman's husband, Heinz,
             went to everyone he knew to borrow the money and tried every legal means, but he
             could only get together about $2,000. He asked the doctor scientist who discovered
             the drug for a discount or let him pay later. But the doctor scientist refused.



3
    Descriptions of the six stages that follow are attributed to Lawrence Kohlberg and taken from Ronald Duska & Mariellen Whelen, Moral Development:
A Guide to Piaget and Kohlberg (New York: Paulist), 1975.




33 | P a g e
        Should Heinz break into the laboratory to steal the drug for his wife? Why or why
        not?


    2. Scenario


        Heinz broke into the laboratory and stole the drug. The next day, the newspapers
        reported the break-in and theft. Brown, a police officer and a friend of Heinz
        remembered seeing Heinz last evening, behaving suspiciously near the laboratory.
        Later that night,    he   saw Heinz     running away from        the laboratory.


        Should Brown report what he saw? Why or why not?


    3. Scenario


        Officer Brown reported what he saw. Heinz was arrested and brought to court. If
        convicted, he faces up to two years' jail. Heinz was found guilty.


        Should the judge sentence Heinz to prison? Why or why not?




34 | P a g e
                                               Kohlberg's Theory of Moral Development

Stages in Moral Development: Pre-conventional Moral Development


Stage Zero: Pre-moral (Before moral)
       Pleasure-pain (exciting-fearful) will determine behavior;
       No sense of obligation or morality;
       No comprehension of effects of actions;
       Not immoral but amoral therefore lacking the ability to distinguish between right
        and wrong;
       Take what is pleasant and avoid what is unpleasant;
       Person is guided by what he or she can and wants to do, even hurting others for the
        pleasure or excitement it may bring him or her.


Stage One: Punishment-Obedience Orientation
       Obedience and punishment orientation where physical consequences determine
        good or bad (obeying someone out of fear);
       Regard to superior power whereby the authority figure determines the standards;


35 | P a g e
       Responsive to rules IF he thinks he’ll be caught and punished.


Stage Two: Instrumental Relativist Orientation
       Naively egoistic orientation;
       Satisfies needs of self and occasionally others;
       Equal sharing: exchange, reciprocity, fairness, same for all, treat all the same, eye
        for eye.


Stage Three: Good Boy/Nice Girl orientation
       Being nice and getting the approval of the group is important;
       Conformity to stereotypical images of what carries the approval of the majority;
       Behavior is frequently judged by intention.


Stage Four: Law and Order Orientation
       Orientation toward authority and maintenance of the social order for its own sake;
       Does his or her ―duty‖ and what is expected of him/her;
       Is very rigid and fixed on rules which are hard to change.


Stage Five: Social Contract Orientation:
       An agreement among individuals forming an organized society;
       Agreement between the community and the ruler that defines and limits the rights
        and duties of each;
       Contractual and legalistic;
       Constitutional and democratic;
       Standards critically examined and socially agreed upon;
       Legalistic but law can be changed for the benefit of society;
       Individual rights respected except when contrary to social contract (agreed rights);
       Moral values defined in terms of individual rights and standards agreed upon by
        society;
       Consensus (general agreement, unanimity) rather than majority (one over half).



36 | P a g e
Stage Six: Universal Ethical Principles Orientation
        Orientation to ethical principles higher than the law;
        Conscience guided by self-chosen principles (Do no harm to others);
        Obedience or disobedience to law based on moral respect for justice for all people;
        At heart, these are universal principles of justice, of the reciprocity and equality of
         human rights, and of respect for the dignity of human beings as individual persons.


The process of moral development can be stimulated by 1) an experience of moral conflict
(dilemma study), 2) an exchange of different views, and/or 3) an exposure to the next
higher level of moral reasoning.




CASE STUDY APPROACHES
D K Sokol gives useful guidance in how to approach case studies and real cases.


Four quadrants analysis4




4
 D K Sokol (2008): The "four quadrants" approach to clinical ethics case analysis; an application and review. Journal
of Medical Ethics(34): 513-516.

37 | P a g e
1. Medical indications
This quadrant is the starting point of any case analysis. It requires the clinician/ethicist to
review the medical situation, identify the treatment options, and determine how the patient
can be benefited, if at all, by treatment.


The emphasis on the concrete medical situation, on the details of diagnosis and prognosis,
grounds the ethical analysis on medical reality. It forces the clinician to articulate the specific
goals of treatment and to justify why one modality is preferable to the alternatives. Asking
"What are we trying to achieve here?" can itself reveal confusions.


The phrase "medical indications" has a ring of authority about it, but it requires more than the
gathering of relevant clinical details. Deciding on the best treatment option based on an
evaluation of harms and benefits requires more than facts. It requires interpretation. What
constitutes a harm or a benefit varies from person to person, not only because of the differing
physiology and pathophysiology of patients but also because people have different values,
beliefs and preferences. For this reason, the conclusion of this quadrant—the clinical
"ought"—will not be final, but will depend on the analysis of the remaining three quadrants.


Although no quadrant will single-handedly settle the case, the position of "medical
indications" as the first quadrant is logical. Its purpose is to obtain a clear picture of the
medical facts and probabilities. We cannot ask for the patient’s preferences if we do not know
what options are available.




2. Patient preferences
This quadrant focuses on the wishes of the patient if competent, and his presumed wishes if
not.


3. Quality of life



38 | P a g e
Medical interventions aim to maintain or improve a patient’s quality of life. When evaluating
the appropriateness of a treatment, it is thus important to consider how it will affect the
patient’s quality of life, and how likely it is to achieve the goals of treatment. In light of the
strong subjective component to quality of life, this will be largely determined by the patient’s
own preferences.


4. Contextual features
The final quadrant invites the clinician/ethicist to consider the larger context within which
clinical encounters occur and how their relevance influences the ethical analysis. These may
include economic, religious and cultural factors, confidentiality issues, and the impact of the
decision on the patient’s family and medical team. It also encourages the doctor or nurse to
reflect on any personal biases which might influence treatment decisions.


This final quadrant is less defined than the others. It is, in effect, a hotchpotch of potentially
relevant issues, reflecting the wealth of considerations that might affect an ethics case
analysis. The four quadrants approach cannot single-handedly resolve moral dilemmas in
clinical ethics. Unlike the egalitarian and/or consequentialist moral theories, it does not offer a
clear account of right action. Neither is it directly concerned with the validity of ethical
theories. Rather, it is a framework designed to facilitate systematic identification and analysis
of clinical ethics problems. It is a kind of ethical stethoscope, increasing the
clinician/ethicist’s ability to see what is morally relevant while revealing, at the bedside, the
moral dynamics of the case. The judgment and justification needed to resolve the specific
problems, such as the scope of a prior refusal of treatment, are not included in the model. This
is why the approach could be fruitfully combined with a theory such as principlism
(discussed in detail hereafter) and balancing (i.e., determining the moral weight of competing
principles and assessing which takes priority).




39 | P a g e
                                       CHAPTER 6
                                      AUTONOMY

OUTCOMES
Studying this chapter will enable you to:
        Critically discuss the argument of autonomy;
        Outline the concept of informed consent (refer also to the National Health Act);
        Discuss informed consent with regards to HIV/AIDS, as well as vulnerable groups;
        Identify when one does not need to get informed consent (emergencies)
        Apply the four quadrant analysis.


The argument of autonomy can be found in the Kantian philosophy of deontology.
Autonomy is derived from the Greek autos (self) and nomos (rule).


Beauchamp and Childress (2001:63) argue that ―to respect an autonomous agent is, at a
minimum, to acknowledge that person’s right to hold views, to make choices, and to take
actions based on personal values and beliefs…It also requires more than non-interference in
other’s personal affairs.‖


According to the teachings of Immanuel Kant, all persons have unconditional worth, the
capacity to determine their moral destiny and individual rights (Brody 1983:188). Kant
reasons that dignity is an unconditional worth that everyone has by virtue of being a human
being; persons should be treated as ends in themselves. John Stuart Mill, the father of the
utilitarian school of thought, supports Kant in his concern that society should allow a person
to develop according to his or her own views as long as that person's expression of freedom
does not interfere with the freedom of expression of another person.


Beauchamp and Childress (2001:64) points out that the principle of respect for autonomy can
be viewed as either a positive or a negative obligation. ―As a positive obligation this principle
requires respectful treatment in disclosing information and fostering autonomous decision-


40 | P a g e
making…As a negative obligation: Autonomous actions should not be subjected to
controlling constraints by others.‖ The interpretation of this principle as a negative obligation
renders intervention necessary and justifies emergency treatment of unconscious patients
(Beauchamp & Childress 2001:65), since they are significantly non-autonomous and cannot
be rendered autonomous for specific decisions.


Respect for autonomy
Personal autonomy, according to Beauchamp and Childress (2001:58), is a minimum self-rule
that is free from both controlling interference by others and from limitations, such as
inadequate understanding that prevent meaningful choices. The autonomous person is well
informed about the dangers and consequences of each technique or treatment and can make
an unbiased, informed decision, without being pressured into any specific camp or school of
thought. It is the duty of the researcher to disclose all available information to the individual –
whether adverse or not.


Only when an individual is properly informed by having received all information available on
the subject matter, can he or she give informed consent to participate in a study or research on
a voluntary basis. This consent, as pointed out in the abovementioned definition of autonomy,
also stresses that no person should be coerced into making a decision. The person should
participate voluntary and be given adequate time to reach a decision. Once such a decision
has been reached, positively or negatively, the decision should be respected by the researcher,
and there should be no consequences for the decision maker.


Consent may not be induced, as pointed out by the MRC (2002b:13), by fear, force, threats,
duress, coercion, compulsion, deceit, fraud, undue influence, perverse incentives or financial
gain. Hence there should be no personal gain or loss if the individual decides to participate or
not to participate in the research. Another important aspect of consent, as once again pointed
out by Beauchamp and Childress (2001:68), is that the decision maker should be able to
retract their consent at anytime during the procedure.




41 | P a g e
The concept of consent5
Whether there was consent or not in a particular instance is a question of fact. The manner
in which the manifestation of the will occurred is of little importance in substantive
law. The law prescribes no definite form save in exceptional instances. Proof of consent
occurs        where     the   conduct      of   the patient, in the light of all the surrounding
circumstances, was such that one could reasonably infer from it the mental attitude of
acquiescence to or satisfaction with the proposed treatment.


The patient can consent expressly to the operation or treatment, that is he can consent in
words, either orally or in writing. Although consent in writing facilitates subsequent
proof and is most desirable in the case of serious procedures, it would be
impractical for the health care provider to obtain written consent from the patient with
each treatment. Nor need the patient declare in so many words that he consents to a
particular medical procedure. Consent generally takes place by way of a request made by
the patient for a specific form of treatment or an operation. It takes place just as often by
mere tacit submission to the treatment.


In our law, however, as in English and American law, there is a distinction
between mere submission and consent. It is generally accepted that consent
can      be    either    express     or   implied.     When      a   person     who     is   capable   of
manifesting his will submits himself to an operation in full knowledge of the
nature of the operation, and his unwillingness does not manifest itself in any
form of resistance, protest or attempt at escape, or anger, etcetera, no other
reasonable inference can be drawn save that he consents to the operation. The
more drastic the nature of the medical treatment, the more definitely ought
the physician to ensure, for the sake of his own protection, that express
consent is obtained from the patient.


The situation might present itself where the patient expressly declares, from
fear of pain or some other injurious consequence, that he does not wish to

5
    This section draws greatly on the work of Coetzee and Strauss (2008) Medical Law.

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undergo the treatment, but submits to it nevertheless. In such instance, where
the tacit conduct betokens an attitude different from that contained in the
spoken words, it is the former which must settle the matter. General human
experience shows that tacit conduct in such an instance is a more reliable
indication of the patient's attitude than his words are. Deeds say more than
words. Where a patient has consented to a specific operation even if his consent was given
orally and not in writing the doctor should not perform another operation or go beyond the
procedure agreed upon.


Substituted consent
Informed consent of the patient is in principle required both by common law and by virtue
of the provisions of the National Health Act 61 of 2003.


The basic point of departure in terms of section 7 is that, barring certain exceptions, a
health service may not be provided to a user without the user's informed consent. Section 7
of the Act, however, makes provision in general terms for substituted consent as follows:
     Where the patient is unable to consent, consent may be given by a person mandated
        by the patient in writing to grant consent on his or her behalf, or by a person
        authorised to give consent in terms of any law or court order (s 7(1)(a)).
       Where the patient is unable to consent and no person is mandated or authorised to
        give consent, consent may be given by the patient's spouse or partner, or in the
        absence of a spouse or partner, a parent, grandparent, an adult child or a brother or
        sister of the patient, in the specific order as listed (s 7(1)(b)).


Note that, in terms of section 8(2)(a), where consent is given by someone other than the
patient, that person must, if possible, first consult the patient. A patient who is capable of
understanding must be informed of the matters referred to in section 6 of the Act even if he
or she lacks the capacity to give the informed consent required by section 7 (see s 8(2)(a)).


For purposes of section 7, ``informed consent'' is defined as consent for the
provision of a specified health service given by a person with legal capacity to do so and

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who has been informed as contemplated in section 6 (see s 7(3)). If the patient is unable to
participate in a decision affecting his or her personal health and treatment, he or she must
be informed of the relevant matters after treatment, unless the disclosure of such
information would be contrary to the patient's best interests (s 8(3)).


Treatment without consent
As we shall see below, the common law makes provision for emergency treatment
without consent.


The National Health Act 63 of 2003, section 7, also makes provision for treatment
without consent in situations of dire emergency. Thus, section 7 (1) (e) provides that a
health service may be provided to a user without his or her informed consent where any
delay in the provision of the health service to the user might result in his or her death or
irreversible damage to his or her health, and the user has not expressly, impliedly or by
conduct refused that service. Section 7 (a) and (b) further provide for the provision of
health services to a user without his or her consent where:
     the provision of the health service without informed consent is authorised in terms
        of any law or a court order;
       failure to treat the user might result in a serious risk to public health


The provisions of section 8 obliging health personnel to inform the unconsenting
patient after treatment.


Minors
In the case of a minor, consent on the part of a parent or guardian will, in principle, be
required. The minor is, after all, subject to parental authority.


It is to be noted that a parent may by common law delegate various incidents
of his parental authority to a person who acts in loco parentis, such as a teacher, a youth
leader or a relative who may be caring for the child temporarily. Where a parent has
expressly or tacitly authorised such a person to consent to medical treatment on his behalf,

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that person may lawfully do so.


Problems may arise when the child is in need of an operation or medical treatment, but
the parents refuse consent on religious or other grounds. However, section 39(1) of
the Child Care Act 74 of 1983 offers a solution.


The subsection provides that where a health professional is of the opinion that it is
necessary to perform the operation or submit the child to treatment, and the
parent or guardian refuses consent, the health professional must report the matter to the
Minister, who may then consent in lieu of the parent or guardian. The same
provision applies where the parent cannot be found, or is by reason of mental
illness unable to consent, or is deceased.                    (The Minister has delegated her
power      to   certain   officials.)   Significantly   the    Child   Care   Act   declares   the
parent or guardian liable for the costs of the medical treatment involved (s
39 (3)).


The Child Care Act also makes provision for consent by the medical superintendent
of a hospital in emergencies, without consulting the person legally competent to consent
on behalf of a child (such as the child's parent or guardian) (s 39(2)). The superintendent
must satisfy himself on two points: first, that the operation (or treatment) is necessary to
preserve the life of the child, or to save him from serious and lasting physical injury or
disability; second, that the treatment indicated is so urgent that it ought not to be deferred
for the purpose of consulting the person legally competent to consent on behalf of the
child. The parent or guardian is liable for the costs of the operation or treatment thus
authorised.


Cases of absolute emergency may occur where it would be altogether impracticable
or dangerous to defer action in order to request the medical superintendent or other official
to give consent. An example would be cardiac arrest where                       cardiopulmonary
resuscitation (CPR) must be resorted to without any delay. Without a doubt the health
professional can take immediate action without first seeking consent or official

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authorisation of any kind.


The Child Care Act further vests the management of institutions (such as reform schools,
industrial schools and children's homes) with the power to authorise medical operations
on, or treatment of, children who are inmates (s 53 (1)). The same criteria apply as in the
case of medical superintendents (see s 53(4)). It is to be noted, however, that where the
operation or treatment is not of such an urgent kind, the head of the institution must first
consult the parent or guardian, or the Minister. The Child Care Act specifically provides
that the powers of the management of an institution do not include the power to consent to
medical treatment or operations attended by serious danger to life (s 53(3)).


The statutory provisions discussed do not detract from the rule that the High Court is the
upper guardian of minors and has the last say also with regard to medical interventions
performed on minors. The High Court may be approached to authorise a medical
intervention, particularly where there is a dispute between parent and child, or between
parent and doctor, or where there is an unreasonable parental refusal to consent to a
medical intervention. The Court will be guided by the child's best interest.


Can a minor independently consent to an operation or treatment? This question
becomes of paramount importance where it is not a case of dire emergency and where the
minor is not a neglected child or the inmate of an institution. Take the example of a
scholar, university student, or office employee in his late teens who consults a doctor or
a dentist. His parents live in a distant town or are on an overseas tour. His ailment is not
such that there is an imminent threat to his life, but there is a clear indication in favour of
medical treatment, which might involve surgery, without undue delay. The patient is
obviously a responsible individual who can make an intelligent assessment of the situation
after having been informed of the diagnosis. It would seem grossly unrealistic, if not
unprofessional, for the doctor to defer treatment for several days or weeks until the parents
can be reached and asked whether they consent to the treatment indicated.


In these cases section 39(4) of the Child Care Act 74 of 1983 makes it possible for a

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minor who is 18 years or older to independently consent to a medical operation, and a
child who is 14 years or older, to medical treatment.


The Legislature has refrained from endeavouring to define ``medical operation'' or
``medical treatment''. Each case is therefore considered on its own merits. If a dispute were
to arise, the courts would have to decide on the basis of expert medical evidence where
the dividing line between an ``operation'' and ``treatment'' lies. It is submitted that the
courts will apply a common-sense approach. ``Operation'' will probably be confined to
substantial surgical interventions and not to procedures such as the extraction of a tooth or
the draining of an abscess. ``Medical treatment'' decidedly includes birth-control measures
provided by a medical practitioner, such as the insertion of an intra-uterine device or the
prescribing of an oral contraceptive. A girl who is 14 years or older will therefore be able
to consent independently to such measures.


In regard to abortion, however, other principles apply. A minor female may in terms of the
Choice of Termination of Pregnancy Act 92 of 1996 consent independently to abortion. No
age limit is prescribed by the Act. However, the intellectual maturity of the girl should be
such as to enable her to appreciate the nature of the intervention.


It is doubtful whether a court would be prepared to grant an application brought by the
parents of a girl who is capable of exercising her will, to force the girl to undergo a
lawful abortion against her will.


Finally, mention must be made of section 335B of the Criminal Procedure Act 51 of 1977.
This section governs medical examination upon the initiative of a police official of a minor
who has been the victim of a sexual offence or an offence of a violent nature, where the
parent or guardian (a) cannot be traced within a reasonable time; (b) cannot grant consent
in time; (c) is a suspect in respect of the offence in consequence of which the examination
must be conducted; (d) unreasonably refuses to consent that the examination be
conducted; (e)    is incompetent on account of mental disorder to consent that the
examination be conducted; or (f) is deceased. A magistrate must then be approached for

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consent. If a magistrate is not available, certain senior police officers may give consent,
subject to certain procedural requirements.


Mental patients
At the outset it should be pointed out that the mere fact that a person is mentally ill does
not necessarily mean that such a person is unable to consent to medical treatment
(including psychiatric treatment) or an operation.


Mental illness can manifest itself in a variety of conditions and its severity could range
from mild to extremely severe. What is more, even a person with a serious form of mental
illness, such as schizophrenia, could experience a lucid interval. Where a patient is known
to be mentally ill, it will therefore be necessary for a doctor first to establish whether the
patient is capable to consent; it may be necessary to seek assistance from a psychiatrist in
order to establish the patient's competency to consent.


In the case of a minor patient who is mentally unable to consent, a parent or guardian may
by common law give the necessary consent. As far as a major patient who is incapable of
consenting is concerned, the personal curator could, in common law, consent.


What about the patient who is in private care and has neither a curator nor relatives, or
who has been deserted by his relatives? It is suggested that to obviate the necessity of an
application to court for a special curator to be appointed, the legislature should make
provision for the superintendent of the hospital in which the operation will be performed or
treatment will be given, to give consent in special circumstances.


In cases of dire emergency, where a life-saving operation must be performed without
delay, hospital doctors may do so without going through the process of having a personal
curator appointed by the High Court, or without even seeking the approval of some person
in authority over the patient's person.


It is necessary here to refer also to frail, aged persons who are not necessarily diagnosable

48 | P a g e
with mental illness, but on account of old age are incapable of controlling their lives
independently and are being cared for by relatives. It is a daily occurrence that medical
treatment is administered and even medical operations performed on such persons by
doctors after consultation with relatives. A common-law principle has evolved in terms of
which the consent given by such caring relatives is sufficient to justify medical
intervention.


The provisions of the National Health Act 61 of 2003 on substituted consent,
which have been discussed above, may be relied upon in some situations involving non-
emergency medical treatment of mentally ill persons, but do not cover the type of
situations where no spouse or relatives can be traced.


Spouses
Spouses can consent independently to any type of medical intervention, even interventions
affecting procreation, such as contraception, sterilisation or abortion, and even if
they are married in community of property. This principle applies even where a spouse
undergoes a sterilisation purely for convenience and in the absence of a medical indication.
The consent of a married woman's husband is not a requirement for artificial insemination,
but in the absence of the husband's consent, the child born as a result of such artificial
insemination may not be regarded as the legitimate child of the husband (see the Children's
Status Act 82 of 1987). A husband has no right to force his wife to undergo an operation
against her will or even to submit to medical examination.


With regard to spouses, it is important to note that a situation which occurs in practice
quite often: a husband or wife is seriously ill or injured and perhaps semiconscious. The
attending health professional will consult with the other spouse about the necessary
medical intervention and the latter will then give consent, often by signing a consent form.
This ``common sense'' situation has become a common-law rule, and the health
professional will not incur any liability in respect of the medical procedure performed in
these circumstances without the express consent of the ailing spouse.



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The health care professional's duty to inform the patient
To be legally valid, consent must be based on substantial knowledge concerning the
nature of the act consented to. It must, in other words, be an ``informed'' consent. Because
of the technical nature of most forms of medical treatment and surgical operations, there is
a duty upon the health care professional to inform the patient. During the past three or four
decades a major debate has raged internationally regarding the criterion (or criteria) for the
amount of information that a health care professional must convey to his or her patient
concerning the diagnosis and in particular the risks attendant upon the proposed treatment
or operation. Even after the first decade of the new millennium this issue had not yet been
conclusively decided by the courts of South Africa.


Although there is no need for the health care professional to meticulously point out all the
conceivable complications that may arise the patient should at least be informed of the
serious risks involved in the operation. Where the risk of a particular form of treatment is
extremely uncommon, the health care professional cannot be held liable for failure to
mention such possibility to the patient.


The wise health care professional will ensure that he does not overestimate the
patient's intellectual level, and will avoid technical terminology in describing to the
patient the nature and scope of the operation and any serious consequences or
complications that may result from it. Although health care professionals will
frequently inform the patient of the diagnosis, this is not considered an absolute
requirement in law. But where the patient postulates information about the
diagnosis as a condition to consent, this should be made known to him.


The duty to inform the patient in essence lies with the health care professional, but he or
she may delegate it to qualified personnel. It is submitted that where it would have a
manifestly harmful effect upon the patient to inform him of the diagnosis or of the
potential effects of treatment, for example where a cancer patient will most probably
become despondent to such an extent that the effectiveness of treatment is endangered, or


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that he might develop suicidal tendencies, it is not necessary for the health care
professional to inform the patient.


Tests, including HIV/AIDS tests, and informed consent
Health care professionals or other health personnel who take urine or blood specimens
from patients who seek medical advice or treatment, need not ordinarily inform the patient
what these specimens will be tested for unless the patient insists on being told because the
taking of a urine specimen involves no risk at all, and in the case of a blood specimen,
negligible risk only. If, however, the taking of a blood specimen for purposes of testing it
for HIV is proposed, it will not be sufficient merely to tell the patient that it is ``for HIV or
AIDS testing''. Such a test should be preceded by adequate counselling. There can only be
consent if the person appreciates and understands what the purpose of the test is, what an
HIV-positive result entails, and what the probability of AIDS occurring thereafter is.


Should the test for HIV be positive, a legal obligation would arise for the health care
professional, or other health-care worker involved, to inform the patient and to counsel
him or her properly, considering the fact that AIDS is a deadly, incurable and infectious
disease. Both pre-test and post-test counselling should be carefully documented by the
health care professional, and a proper written consent should be obtained. The health care
professional should ensure that the patient be informed in his or her own language.


National Health Act 61 of 2003 and informed consent
The provisions of chapter 2 of the National Health Act 61 of 2003 on informed
consent in essence largely reinforced the common-law position as set out above. Inter alia
the health care professional is required by section 6 to inform the patient of ``the
benefits, risks, costs and consequences generally associated with             each [treatment]
option''. This provision can decidedly not be interpreted as requiring information to be
given on all conceivable risks.


The health care professional must further inform the patient of the range of
diagnostic procedures and treatment options generally available to the patient. Note that

51 | P a g e
section 6(1)(d) requires the health care professional to inform the patient also of his or her
right to refuse health services and to explain the implications, risks and obligations
of such refusal. The health care professional must, where possible, inform the patient in a
language that the patient understands and in a manner which takes into account the latter's
level of literacy.


Confidentiality / Invasion of privacy
From the health care professional-patient relationship flows the duty of the health care
professional to maintain confidentiality concerning the patient's ailment and the treatment
given to him. This duty is of a legal as well as an ethical nature. In terms of the ethical
rules of conduct made by the Health Professions Council of South Africa a medical
practitioner
may only divulge information regarding a patient which:
       The patient has consented to;
       at the instruction of a court of law;
       or where justified by public interest.


As far as the public disclosure of private facts is concerned, the Hippocratic Oath,
(see chapter 2), is still in use. It requires of the medical practitioner ``to keep silence''
about information acquired in his professional capacity relating to a patient, ``counting
such things to be as sacred secrets''.


It is of interest to note that a work written in Sanskrit and presumed to be from about 800
BC, in which Brahmin priests were advised to carry out their medical practices by
concentrating only on the treatment of the patient and not divulging any information about
the sick person to anyone else, predates Hippocarates. In ancient Egypt also the priestly
medical men were under strict oaths to retain the secrets divulged to them in confidence.
They worshipped in the temples of Isis and Serapis, healers of the sick, and also of their
son Horus, who was usually called Harpocrates by the Greeks and was pictured with his
finger held to his mouth. The name used for medicine, ars muta (dumb art) was used in



52 | P a g e
Roman poetry by Virgil. The Pythagorean school in Greece, to which medical practitioners
in particular belonged, considered silence as one of the most important virtues.




EMERGENCIES
Medical intervention without consent in emergencies
As    mentioned    earlier,   consent     by   the   patient,    or   by    someone     else    on
his behalf, is not always a requirement for medical treatment. The common-
law   position    regarding   emergency treatment        of     patients   without    consent   is
reaffirmed by the National Health Act 2003, section 7(1)(e), which provides
that a health service may be provided to a patient without his or her consent if
any delay might result in the patient's death or irreversible damage to his or her health,
and the patient has not expressly, impliedly or by conduct refused that service.


Determining the legal ground on which emergency treatment is based is not important
from a theoretical point of view only. It may also be of practical significance in order to
establish the rights and obligations that exist between health care professional and patient.


In current South African law, emergency (``necessity'', ``inevitable evil'') is in fact
regarded as a general ground of justification. A characteristic of a typical emergency
situation, however, is that the interests of an innocent third party are sacrificed to protect
the interests of the person threatened.


But necessity in the context of its ``technical'' meaning will be the ground of justification
where the medical treatment of a person is administered directly in the interests of society
at large. This occurs when the medical treatment is necessary to prevent a dangerous
disease from which the patient is suffering from spreading to others, or to prevent healthy
people from contracting a disease which has reared its head in the community. Necessity
consequently justifies the treatment of persons suffering from a dangerous infectious
disease and the vaccination of healthy persons in order to prevent the spread or outbreak of



53 | P a g e
a dangerous epidemic. In these cases the consent of the person against whom the action is
taken is irrelevant, and treatment may even be administered against his will.


If a health care professional has done what is reasonable in an emergency, he cannot be
held liable if the emergency measures prove to be of no avail and the patient dies.




54 | P a g e
                                        CHAPTER 7
                    BENEFICENCE & NONMALEFICENCE

OUTCOMES
Studying this chapter will enable you to:
         Critically discuss the concept of beneficence;
         Discuss nonmaleficence, drawing on the dictum as well as the double effect theorem.




BENEFICENCE
According to the guidelines presented by the MRC (2002b:83), beneficence refers to the
practise where individuals are treated in an ethical manner not only by respecting their
decisions and protecting them from harm, but also by making efforts to secure their
wellbeing.


The moral obligation of beneficence is paramount to ethics where actions are weighed for
their possible good against the costs and possible harms. This principle holds that failure to
enhance the good of others when one is in a position to do so is morally wrong. It could be
argued that stem cell research falls under the principle of beneficence. The beneficence
principle is often seen as referring to charitable acts; however, beneficence should in this
context rather be seen as an obligation to maximize benefits and minimize risks that might
arise.


The MRC (2002b:84) points out that a difficult ethical problem remains when applying the
principle of beneficence. Some research presents more than minimal risk without immediate
prospect of direct benefit to the community. Therefore all risks and benefits should be
carefully assessed by analysing all relevant data.


Blackburn (1996:41) defines benevolence as the ―general desire for the good of others, and
disposition to act so as to further that good.‖ Beauchamp and Childress (2001:166) agree to a


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similar definition: ―the character trait or virtue of being disposed to act for the benefit of
others.‖ They elaborate by asserting that the utilitarian principles are methodically arranged
on the philosophy of beneficence. According to these authors, the obligation to give benefit,
to prevent and remove harm, and to weigh and balance an action’s possible good against its
cost and possible harm, are central to biomedical ethics (2001:166). It is the central theme of
utilitarianism and common morality theories that beneficence is conceived as that aspect of
human nature that motivates us to act in the interest of others, and it is considered the goal of
morality itself (Aksoy & Tenik 2002:E4).


Beauchamp and Childress (2001:168) explain that different norms of beneficence not only
institute responsibility, but that these responsibilities may also overrule the obligation of non-
maleficence (Primum non nocere – First, do no harm). The authors argue that the obligation
to benefit may take precedence if one can produce ―a major benefit by causing a minor harm,
or a major benefit for many people while causing a minor harm for only a few‖. Non-
maleficence does not always take priority over beneficence.


The rights and privileges of the individual must therefore be seen in terms of the dictum of
utility. This maxim states that that which produces the best results for society as a unit must
be taken advantage of, even if it means reducing individual independence and rights (Brody
1983:174). Utilitarians do not believe in rights as independent moral considerations (Brody
1983:174). This leads again to the debate of paternalism versus autonomy.


Non-maleficence
                           Primum non nocere – First, do no harm


Nonmaleficence refers to the obligation not to inflict intentional harm on the research subject.
This approach (Beauchamp & Childress, 2001:128) incorporates a fundamental distinction
between intended effects and merely foreseen effects - effects being consequences of actions.
Nonmaleficence corresponds to the theory/approach of the double effect.




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This approach (Beauchamp and Childress 2001:128) incorporates a fundamental
distinction between intended effects and merely foreseen effects - effects being
consequences of actions. Many authors on morality include this principle in their
discussions to illustrate why (or why not) some acts are permissible. In order to aid your
understanding of the approach, I will first reflect on the traditional (religious) view of the
principle before moving my focus to a more secular perspective.


The principle is often used to explain the acceptability of an act which has to cause harm –
as a side-effect – in order to promote a good end (Darley et al., 1996; Hessing et al., 1996;
Russel, 1977; Twycross, 1996). In other words, the end justifies the means.


The principle of double effect originated in the philosophy of one of the great doctors of
the Catholic faith, St. Thomas Aquinas (and was morally approved in 1957 by Pope Pius
XII). St. Aquinas introduced the principle in the Summa Theologica, which deals with the
acceptability of self-defence. As noted by Baumbarth and Regan (1988:226), Aquinas
observes that ―[n]othing hinders one act from having two effects, only one of which is
intended, while the other is beside the intention.‖ Aquinas also states that the acceptability
of an action is not absolute: ―And yet, though proceeding from a good intention, an act
may be rendered unlawful if it be out of proportion to the end.‖


Connell (1967:1021) provides four conditions from the New Catholic Encyclopedia for the
application of the principle of double effect, namely:
          The act itself must be morally acceptable or at least indifferent.
          The agent may not positively desire the bad effect, but may allow it. If he could
           attain the good effect without the bad effect he should do so. The bad effect is
           viewed to be indirectly voluntary.
          The good effect must be produced directly by the action, not by the bad effect.
           Otherwise the agent would be using a bad means to a good end, which is never
           allowed.
          The good effect must be sufficiently desirable to balance the allowance of the
           bad effect.

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The principle may also be seen from a more secular perspective (Quinn 1989:343): there is
a justification for causing some bad effects - as a side effect – which might not be
sufficient for causing that effect as a means to the same good end under the same
circumstances. Quinn (1989:343-344) argues that the principle:


        … distinguishes between agency in which harm comes to some
        victims, at least in part, from the agent deliberately involving
        them in something in order to further his purpose precisely by
        way of their being so involved, and harmful agency in which
        either nothing is in that way intended for the victims or what is so
        intended does not contribute to their harm.        …direct agency
        requires neither that harm itself be useful nor that what is useful
        be causally connected in some especially close way with the harm
        it helps bring about.


In another article Quinn (1991:511) explains that:


        some cases of harming that the doctrine intuitively speaks against
        are arguably not cases of intentional harming, precisely because
        neither the harm itself nor anything itself causally very close to it
        is intended.




Beauchamp and Childress (2001:129) identify four conditions which usually apply to the
principle of double effect:
    1. the act itself must not be fundamentally immoral, but must be a good or neutral act;
    2. only the good effect must be anticipated by the researcher, not the bad effect, even
        though it is foreseen;
    3. the negative effect must not be the means of the good effect; and
    4. the good effect must prevail over the bad that is permitted.
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Many proponents apply these four criteria to stem cell research and find that the potential
cures by far outweigh the consequences, and hence recommend that the doctrine of double
effect is morally viable.


In theory the principle of double effect assumes that all agents are well-intentioned and
concerned whether harm may be caused. However, according to the theory, attempting to
achieve a good end by overruling moral value when it is – regrettably – not feasible to
attain the good end without the harm, may be seen as a violation of the principle.




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                                        CHAPTER 8
                                            JUSTICE

OUTCOMES
Studying this chapter will enable you to:
        Critically discuss the health care situation in South Africa;
        Discuss five possible ways to approach limited research allocation.


Allocation of limited resources and setting possible priorities.


With a past where a minority of the population enjoyed most of the resources, and the
majority was left mostly to their own devices, the South African health care system is
faced with the immense problem of having to adjust the inequality of the past and
redistribute all resources equally in order to provide all citizens with equal access to basic
health care. However, priorities must be set for the allocation of technologically
sophisticated and expensive health care resources.


Government faces the challenge to devise policies which offer equal access to health care
to all citizens. The most widely used approach is that of allocation based on "basic health
care services". This approach sees primary health care as important, since it not only
addresses an individual’s health needs but also extends his or her social, cultural and
political self.


This viewpoint is summarized in the WHO’s (1978) Declaration of Alma-Ata’s point V:


        Primary health care is essential health care based on practical,
        scientifically sound and socially acceptable methods and technology
        made universally accessible to individuals and families in the
        community through their full participation and at a cost that the
        community and country can afford to maintain at every stage of their


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        development in the spirit of self-reliance and self-determination. It
        forms an integral part both of the country's health system, of which it
        is the central function and main focus, and of the overall social and
        economic development of the community. It is the first level of
        contact of individuals, the family and community with the national
        health system bringing health care as close as possible to where
        people live and work, and constitutes the first element of a
        continuing health care process.


Measured from a perspective of social effectiveness, the benefit of the primary health care
approach is that the basic health care needs of more patients can be satisfied.


However, in a polarised country such as South Africa where there exist two separate health
care providers (the public and the private sector), this kind of allocation of resources could
be seen to oppose equity and equality. For a group plagued by illnesses such as
tuberculosis or even AIDS, basic health care could mean trying to stay alive, while for
those to whom tuberculosis, AIDS and pneumonia are not a direct threat to their survival
the absence of access to stem cell therapies could be defined as a violation of the right to
basic health care.


Some individuals argue that since the haves contribute most of the economic resources in
form of their tax contributions, health care resources should be allocated to the treatment
of those disease conditions which usually affect this group and which require expensive
and specialised medical care. However, money is of course generated by all the classes of
society, often at the expense of the health of the so-called lower socio-economic. The
severe limits on the availability of taxpayers’ money to correct the imbalances in the
allocation of resources are understandable. But we are still left with a problem. Who
should the restricted funds be allocated to?


Since resources are inadequate, choices must be made about which needs should be the first
(and the last) priority.

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Herewith some options:
1) Macro-allocation
―Macro-allocation of health care resources involves decisions over the share of a society's
total resources which are to be devoted to health, and also the division of the health care
budget between different possible uses. Macro-allocation involves questions of distributive
justice because health care resources are nearly always scarce relative to need.‖ (Wilker &
Marchand, 2004:306)


Resource distribution in health care expenditure is predetermined in all societies. Conversely,
according to van Rensburg (2004:582), resource allocation needs to be considered at several
levels: firstly, at the national level, where the budget for public health services is determined;
secondly, within regional geographical areas, which are influenced both by the national and
provincial governments; thirdly, for particular diseases or forms of treatment; fourthly, at the
level of eligible patients, where decisions are usually made at the institutional level by
committees; and finally, at the level of the individual patient, where such decisions are
characteristically made by practitioners at the bedside.


To help with the process of macro-allocation, Wilker and Marchand (2004:307) and
Beauchamp and Childress (2001, 251-252) have identified a few principles of macro-
allocation.


a) Determining the overall health care budget
Developing countries often allocate less than 3 % of their gross domestic product (GDP) to
health, while most developed countries allocate between 6% to 14% of their GDP to health
(Wilker & Marchand, 2004:307). Such allocation usually reflects a country’s affluence.


b) Allocation within the health care budget
Wilker and Marchand (2004:308) concur that no agreement exists on which principle or
principles should direct the distribution of resources within the health care budget. They
explain that the most widely advocated principle is that of maximization of benefit, or 'value

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for money'. Beauchamp and Childress (2001:251) stress that ―[h]ow society might
appropriately mix preventative and treatment strategies will depend, in part, on knowledge of
casual links, such as those between disease and environmental and behavioural factors‖.
It is interesting to note that many societies permit some health services to be allocated
according to ability and willingness to pay (Wilker & Marchand, 2004:308). However, this
principle is repeatedly in conflict with other principles which also seem appropriate, such as
giving precedence to those in the direst need, or even to those individuals who are most
needed by society.


c) Take the health needs and benefits into consideration.
Wikler and Marchand (2004:308-309) explain that an approach which maximizes health
benefits is pursued through an analysis of cost-effectiveness which requires that diverse
goods be quantified in comparable units. Treatments for different conditions, if they are to
be graded in precedence, must employ a more universal appraisal, such as net loss or gain
in years of life. Therefore, the highest priority would be allocated to health care
interventions which entail the least cost per unit of health related quality of life. The most
extensively used universal unit of assessing medical benefit discounts life years
compromised by symptoms and functional limitations. An alternative measure relies on
experts' approximations of the impact of the symptoms and functional limitations on the
quality of a person's life. These and other health metrics can be used to calculate the
benefits of health care interventions, and consecutively, their return of health benefits for
money spent (Wikler and Marchand 2004:309).


2) Quality of life as a measurement
The use of quantity of life as a measurement for resource allocation is problematic. Wikler
and Marchand (2004:309) correctly assert that at a most abstract level it may refer to
longevity, in which case it would be giving more weight to those at the start of their lives
than those on the other side of the spectrum.


The extent of quality of life as a norm also involves challenges. One such a challenge
involves the difficulty of assigning the value of quality of life by asking people who are /

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have never been in a similar position. Wikler and Marchand (2004:310) dispute that
healthy people without fail rate conditions such as rheumatoid arthritis as imposing greater
burdens than do rheumatoid sufferers themselves. It is not easy for the well to genuinely
understand what living with a chronic condition is like, and as such it is difficult to use
their value judgments as the basis for health measurements. For Wikler and Marchand
(2004:310) the answer to this enigma possibly lies in combining objective and subjective
evaluations.


Another ethical consideration is the maximization of the total sum of units of health related
quality of life or paraphrased as being the highest total amount of health benefit is more
important than its distribution among individuals. This inevitably means that patients in
terminal states of illness lose out with respect to health funds to a number of patients in
better condition (Wikler and Marchand 2004:310). The authors continue to sketch the
bleak picture where a person with a life-threatening, treatable condition would be endorsed
to die so that others could have assistance for mild discomfort. Thereby the total
maximizing strategy presupposes that adequate quantities of the latter can outweigh the
former.


A very emotive argument cites that one is to a degree responsible for one's own state of
health. According to proponents of this presumption, individuals should be penalised or
even receive no benefit if a specific illness is directly caused by behaviour they have
committed. An example is the alcoholic who is in line for transplant of a new liver.


Although this viewpoint seems to be sound, it is also riddled with problems. One such a
problem relates to the uncertainty regarding which habits are within the power of an
individual (Wikler and Marchand 2004:313).


4) Priority setting
The fundamental hypothesis of such an approach to limited health care resources is (a) to
guarantee that all citizens with low income receive a respectable minimum of health care
treatment, and (b) to find as many top priority-ranked services as feasible for all entitled

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citizens under the standard that there is a basic social responsibility to offer universal
access to a respectable minimum of health care.


Law makers and citizens in the State of Oregon in the United States of America pioneered
a world-first and closely scrutinized plan to ration health care funds. It included, as
identified by Beauchamp and Childress (2001:256), access to care, cost-effectiveness and a
decent minimum. In July 1989 the Oregon Health Services Commission (OHSC) was
formed by virtue of the Basic Health Services Act. OHSC employed a public prioritization
method to rank a wide-ranging set of primary and acute medical and mental illness
conditions and services. The commission incorporated health care suppliers and patrons
who determined which category of health services were most essential and most probable
to result in a healthier society. The final list incorporated 745 conditions and treatments.
The legislature then approved financial support for items 1 through 606 on the list. This
list is continuously being updated for both the clinical effectiveness and cost-effectiveness
of health services by determining their relative importance using peer-reviewed medical
literature. Hence, limited resources are used to assure the maximum health care gain for
the most people at the lowest price.


Another approach, namely the age-based rationing approach focuses on rationing by
giving individuals lower priority, or even excluding them, by virtue of their age. This
approach could be beneficial – such as Medicare in the USA – or detrimental. Beauchamp
and Childress (2001:260) explain that justification for this approach lies in the probability
of successful treatment and shorter recovery periods. The authors (2001:261) furthermore
argue that ―the old have had an opportunity to live more years and, on grounds of fairness,
the young deserve chance to live those additional years‖.


The communitarian justification to this approach lies in the belief that medicine ought to
undertake to provide civilized and basic care to all, but should not make indefinite efforts
to triumph over all illnesses and death. Death should become the acceptable outcome of a
full life, rather than be seen as a failure of it.



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Criticism of this approach is also bountiful. Norman Daniels argues from the Rawlsian
theory of fair equality of opportunity (Beauchamp and Childress 2001:234). He reasons for
a situation where age is not a variable in the allocation of health resources, since every
individual has equal rights to receive a fair share of the normal range of opportunities
present in that culture.


5) Cost-effectiveness analysis
Beauchamp and Childress (2001:257) point out that the cost-utility analysis is a very
influential theory used in the determination of cost effectiveness. Health benefits - using
this strategy - are therefore calculated in terms of predictable health gains, whereas
expenses are calculated in terms of expenditures of resources. Health benefits are
measured, and an effort is made to include the outcome by determining the impact of
interventions on both the length and quality of life. Using this strategy one is again
applying the maxim where the most people benefit for the least expenditure.


Once again criticism against this approach includes discrimination against those who
cannot advocate for themselves, such as infants and the disabled, and the uncertainty of
who is to decide on the quality of life.




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                                        CHAPTER 9
                                       NEGLIGENCE

OUTCOMES
Studying this chapter will enable you to:
        Critically discuss the concept of negligence;
        Discuss vicarious liability;
        Describe what unprofessional conduct is and the powers of a disciplinary committee;
        List the penalties which could be imposed if found guilty of unprofessional conduct;




Medical Negligence
Apart from any contract between the health care professional and patient, the health care
professional owes the patient a duty of care when performing an operation or giving
treatment, which implies that the procedure will be performed with the requisite
professional skill to avoid injuring the patient. Failure to do so amounts to a delict or civil
wrong, entitling the patient to claim damages.




The Concept of Negligence
Negligence refers to the blameworthy attitude or conduct of someone who has acted
wrongfully. The blameworthiness is to be found therein that on account of carelessness,
thoughtlessness or imprudence the person failed to adhere to the standard of care legally
required of him.


In the case of an expert, such as a health care professional, negligence is established by
finding an answer to the question how a reasonable expert (health care professional) would
have acted in the same circumstances. In a medical context the question arises whether failure
by a health care professional to inform a patient in advance of the possible risks involved in a



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particular medical procedure would constitute negligence even if the procedure was not
performed in a negligent manner.


Standard of Care
The standard of care required of a medical practitioner who undertakes the treatment of a
patient is not the highest possible degree of professional skill, but reasonable skill and care.


Proof of Negligence
The ordinary rule concerning the burden of proof is that such burden rests with the plaintiff.
Because expert evidence is needed in the overwhelming majority of medical cases, the
plaintiff usually finds it difficult to acquit himself of the burden. Often the best the
plaintiff can hope for is to find an expert who can interpret for the court occurrences at and in
connection with the medical intervention and its consequences.


A causal connection has to be proven in materially defined crimes (crimes, that is, where the
emphasis is on the consequence brought about and not so much on the act itself). The same
applies when a claim based on a delict is brought, and proof of negligence in causing a
harmful result through a medical intervention is required.


Vicarious (Indirect) Liability
The principle of indirect or vicarious liability, that is liability for the wrongful act of another
by virtue of the doctrine of respondeat superior, is well established in the modern law of
delict. First, a person can be held delictually liable if he ordered or authorised another to
commit a wrongful act. Thus a health care professional who instructed his professional
assistant to perform an unlawful operation cannot later seek refuge in the excuse that he did
not perform the operation with his own hands.


As far as liability for negligence is concerned, authorisation to perform a negligent act will
probably seldom occur. The question of vicarious liability will ordinarily arise in those cases
where a person employs another to perform a lawful activity, and the employee then does not
proceed with the required or expected measure of skill and care, and causes harm to others. As

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far as the medical situation is concerned, the potential liability of the health care professional for
the negligence of his professional assistants and the nurses he employs is relevant, as well as
the possible liability of a hospital authority for the negligence of health care professionals,
nurses, paramedics and other personnel it employs.


The general principle is that there must be a relationship of employment whereby one
person (employer) stands in a position of authority vis-a-vis another (employee) in terms
of which the former is legally capable of exercising control over the latter's actions.
Partners do not stand in such a relationship: by law they are equals, even though the one may
be the senior of the other. It is nevertheless generally accepted that one partner is vicariously
liable for the wrongful act of another when such act falls within the scope of partnership
business.


A person is not vicariously liable, however, for the wrongful act of an independent
contractor engaged by him. Such a contractor undertakes a specific job, and in the
execution thereof acts in accordance with his own judgment, in particular as concerns the
method applied. He is not a ―servant‖ but ``his own master''. In the medical context the
anaesthetist who collaborates with the surgeon performing an operation ordinarily is such
an ``independent contractor''. Provided that the surgeon (or general practitioner) on reasonable
grounds believes that the anaesthetist (or specialist) is professionally competent to do the job,
there is no question of liability on the part of the former. If the practitioner who refers the
patient is not so convinced, he may be held liable on account of his own negligence.


An independently practising health care professional who ``hires'' an operating theatre in a
hospital is not an employee of the hospital. The hospital can, therefore, not be held liable for
his negligence. But the hospital may incur direct liability for its own negligence, for example
where a patient operated on by such a health care professional suffers harm caused by defective
theatre equipment, which is the hospital's property. The health care professional or nurse
who is a member of the staff of a hospital, in other words, who occupies a firm and fixed
position, is an employee of the hospital authority, and the latter will be delictually liable



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for acts of professional negligence committed by the servant within the scope of his
or her employment.




Waiver by patient of future claim for possible negligence (``disclaimer'')
May a health care professional, hospital or other health-care provider protect him- or itself
against liability for possible negligence in treating the patient or for some
other form of malpractice by having the patient sign a waiver of claims, an
indemnity form or a so-called ``disclaimer'' prior to the intervention?


Many private hospitals in South Africa nowadays have waiver clauses in their admission or
consent forms which they require patients or their parents, guardians or wards to sign prior to
treatment. These clauses may vary in their wording. Generally they seek to protect the
hospital against mishaps occurring in connection with nursing or handling the patient. Some
of these clauses are formulated in very wide terms, purporting to protect the hospital and its
staff against claims based even upon gross negligence, recklessness or intentional acts
performed by hospital staff.


No legislation in South Africa exists on the subject of indemnity clauses. It is doubtful whether
the current legislation on harmful trade practices would be at all applicable in this regard. No
case of a health care professional trying to protect himself against liability in this manner has
been reported, but the question has been raised whether such a contract of waiver would be
enforceable in our courts. Such contracts would probably be void (unenforceable) because they
would offend against public policy (or boni mores, in the sense of the juristic notions of
society) and ``unconscionable'' in the terminology sometimes used by the courts. A waiver
by a patient safeguarding a health care professional against liability for negligence, so it would
seem, would be tantamount to a patient ``licensing'' a health care professional to practice bad
medicine.


Unprofessional conduct



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``Unprofessional conduct'' is defined in the Health Professions Act 56 of 1974
as   ``improper     or   disgraceful     or     dishonourable        or    unworthy      conduct      which,
when regard is bad to the profession of a person who is registered in terms of
the Act, is improper or disgraceful or dishonourable or unworthy''.


A professional board has the power to institute an inquiry into any complaint, charge or
allegation of unprofessional conduct against persons registered under the Act (s 41(1)). In
practice the boards delegate the power of inquiry to a professional conduct committee
(formerly known as a ``disciplinary committee''). In effect, a professional board is the sole
repository of the power to decide what is ethical and what is unethical in medical practice.


This power must, however, be exercised subject to the values protected by the Constitutional
Bill of Rights, including the right to just administrative action.               The HPCSA must, in
consultation with a professional board, from time to time make rules specifying the acts or
omissions in respect of which a board may take disciplinary steps. (An important provision in
the Act is that the power of inquiry is not limited to acts or omissions so specified.)


Rules governing health professionals’ conduct have been made and published in the
Government Gazette. The scope of our course does not justify us to discuss in detail the rules
of conduct laid down from time to time for medical practitioners, dentists, psychologists
and practitioners of supplementary health services such as optometrists and occupational
therapists, but merely wish to mention the categories of rules currently pertaining to health
care professionals and dentists in general.         These categories are the following: advertising
and canvassing or touting; information to be included on professional stationery; the
naming of a practice; itinerant practice; fees and commission; partnership and juristic
persons; covering; supersession; impeding a patient from obtaining the opinion of another
practitioner      or      from          being         treated        by        another       practitioner;
casting    reflections   on   the      professional     reputation        of   colleagues;   professional
confidentiality; retention of human organs; the signing of official documents;
certificates   and reports, and the information they should contain;                          issuing of
prescriptions;     professional        appointments;        secret        remedies;       defeating       or

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obstructing      the         HPCSA          or     board      in            the   performance     of    its   duties;
performance          of      professional         acts;     exploitation;          medicine;     financial    interest
in hospitals; reporting of impairment or of unprofessional, illegal or unethical
conduct;      research,         development        and      use    of         chemical,   biological   and    nuclear
capabilities; and dual registration.


There is a duty upon a court of law to bring to the attention of the
professional board concerned prima facie proof of unprofessional conduct on
the part of a practitioner which was disclosed in the course of a court trial
(s 45(2)). Where a registered person, either before or after registration, has
been convicted of any offence by a court, he may be dealt with by the professional
board      under       its      disciplinary       powers         if        the   board    is    of    the    opinion
that    such         offence        constitutes           unprofessional           conduct.      However,      before
imposition      of        any    penalty,        the   person          in     question    must    be   afforded    an
opportunity to tender an explanation to the professional board in extenuation
(s 45(1)).


The disciplinary powers of a professional board are not restricted to the conduct prohibited by
the published rules (s 49(1)). If prima facie proof of unprofessional conduct is submitted to a
professional board, a legal obligation arises to conduct an inquiry.


Disciplinary powers of professional boards
As mentioned above, a professional board is vested with the power of instituting an
inquiry into alleged unprofessional conduct against registered practitioners. In the case of a
complaint, charge or allegation which forms the subject of a criminal case in a court of law, the
board may postpone the holding of an inquiry until the court case has been determined.


In practice, disciplinary inquiries are conducted by a professional conduct committee, since the
professional board has delegated its powers to the professional conduct committee.
(Professional conduct committees are also known as ``disciplinary committees''.) Provision is
made for the appointment of a special investigating officer to investigate, inter alia, the affairs

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of a registered person. The provisions of that section are strictly interpreted in order to guard
against an unwarranted interference with the rights of a practitioner. A professional board
may, where a professional practitioner is found guilty of unprofessional conduct, impose one
of the following penalties (s 42(1)):
(1) a caution or reprimand, or a reprimand and caution
(2) suspension     for   a    specified   period    from       practising   or   performing   acts
    specially pertaining to a practitioner's profession
(3) removal of a practitioner's name from the register
(4) a fine not exceeding R10 000
(5) a compulsory period of professional service
(6) payment of the costs of the proceedings or a restitution


If an appeal is lodged against a penalty of erasure or suspension from practice, such penalty
will remain effective until the appeal is heard (s 42(1A)).


Note that if a professional board is of the opinion that a fine (as determined by the Minister)
should be imposed after a conviction following an allegation of unprofessional conduct, an
``admission of guilt'' summons may be issued. The accused practitioner may then admit his
guilt, if he so wishes, without appearing at an inquiry.


A practitioner whose conduct is the subject of an inquiry must himself be
afforded an opportunity of answering the charge and of being heard in his
own defence or of having his legal representative (ie attorney or advocate) answer for him. The
professional board may take evidence and summon witnesses.


A professional board may, if it deems fit, and subject to such conditions, if any, as it may
determine, terminate a suspension before the expiry of the specified period, or on payment of
the prescribed fee, restore to the register any name which has been removed therefrom. A
professional board has the power to postpone the imposition of a penalty or to impose a
penalty but order the execution of such penalty or any part of the penalty to be suspended.



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The effect of a practitioner's suspension or the removal of his name from the register is that
he is disqualified from carrying on his profession. His registration certificate is deemed
to be cancelled until the period of suspension has expired or until his name has been
restored to the register by the professional board. Should he continue to practise, he may
become liable to be prosecuted under the criminal provisions applying to unregistered persons.


Restrictions on impaired students or practitioners
The Minister may, in consultation with the HPCSA, make regulations relating to inquiries in
respect of students or persons registered in terms of the Act who appear to be impaired, on the
assessment of their condition, the conditions to be imposed on their registration or practice,
their suspension or removal, from practising, revocation of conditions, suspension or removal,
and on acts of unprofessional conduct committed before or during assessment or
investigation (s 51 of the Health Professions Act 56 of 1974). ``Impaired'' for the purposes of
this section means ``a mental or physical condition, or the abuse of or dependence on
chemical substances, which affects the competence, attitude, judgment or performance of a
student or person registered in terms of [the] Act''.




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                                        CHAPTER 10
                      THE PATIENTS’ RIGHTS CHARTER6

OUTCOMES
Studying this chapter will enable you to:
          Discuss the broad outline of the Patients’ Rights Charter
          What obligations do patients have?


For many decades the vast majority of the South African population has experienced either a
denial or violation of fundamental human rights, including rights to health care services. To
ensure the realisation of the right of access to health care services as guaranteed in the
Constitution of the Republic of South Africa, the Department of Health is committed to
upholding, promoting and protecting this right and therefore proclaims this PATIENTS'
RIGHTS CHARTER as a common standard for achieving the realisation of this right.


This Charter is subject to the provisions of any law operating within the Republic of South
Africa and to the financial means of the country.


A healthy and safe environment
Everyone has the right to a healthy and safe environment
that will ensure their physical and mental health or well-
being, including adequate water supply, sanitation and
waste disposal as well as protection from all forms of
environmental danger, such as pollution, ecological
degradation or infection.




6
    Source: http://www.doh.gov.za/docs/legislation/patientsright/chartere.html
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                                 Participation in decision-making
                                 Every citizen has the right to participate in the development
                                 of health policies and everyone has the right to participate
                                  in decision-making on matters affecting one’s health.


Access to healthcare
Everyone has the right of access to health care services that
include:
       receiving timely emergency care at any health care
        facility that is open regardless of one's ability to pay;
       treatment and rehabilitation that must be made
        known to the patient to enable the patient to
        understand such treatment or rehabilitation and the
        consequences thereof;
       provision for special needs in the case of newborn infants, children, pregnant
        women, the aged, disabled persons, patients in pain, person living with HIV or
        AIDS patients;
       counselling without discrimination, coercion or violence on matters such as
        reproductive health, cancer or HIV/AIDS;
       palliative care that is affordable and effective in cases of incurable or terminal
        illness;
       a positive disposition displayed by health care providers that demonstrate
        courtesy, human dignity, patience, empathy and tolerance; and
       health information that includes the availability of health services and how best
        to use such services and such information shall be in the language understood by
        the patient.




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                                Knowledge of one’s health insurance/medical aid scheme
                                A member of a health insurance or medical aid scheme is
                                entitled to information about that insurance or medical aid
                                scheme and to challenge, where necessary, the decisions of
                                such health insurance or medical aid scheme relating to the
                                member.
Choice of health services
Everyone has the right to choose a particular health care
provider for services or a particular health facility for
treatment provided that such choice shall not be contrary to
the ethical standards applicable to such health care providers
or facilities, and the choice of facilities in line with prescribed
service delivery guide lines.




                       Be treated by a named health care provider
                       Everyone has the right to know the person that is providing health
                       care and therefore must be attended to by clearly identified health
                       care providers.




Confidentiality and privacy
Information concerning one’s health, including information
concerning treatment may only be disclosed with informed
consent, except when required in terms of any law or an
order of the court.




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                                Informed consent
                                Everyone has the right to be given full and accurate
                                information about the nature of one’s illnesses, diagnostic
                                procedures, the proposed treatment and the costs involved,
                                for one to make a decision that affects anyone of these
                                elements.




Refusal of treatment
A person may refuse treatment and such refusal shall be
verbal or in writing provided that such refusal does not
endanger the health of others.


                                Be referred for a second opinion
                                Everyone has the right to be referred for a second opinion
                                on request to a health provider of one’s choice.




Continuity of care
No one shall be abandoned by a health care professional
worker or a health facility which initially took responsibility
for one’s health.


                    Complain about health services
                    Everyone has the right to complain about health care services and to
                    have such complaints investigated and to receive a full response on
                    such investigation.




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Every patient or client has the following responsibilities:
       to advise the health care providers on his or her wishes with regard to his or her
        death.
       to comply with the prescribed treatment or rehabilitation procedures.
       to enquire about the related costs of treatment and/or rehabilitation and to arrange
        for payment.
       to take care of health records in his or her possession.
       to take care of his or her health.
       to care for and protect the environment.
       to respect the rights of other patients and health providers.
       to utilise the health care system properly and not abuse it.
       to know his or her local health services and what they offer.
       to provide health care providers with the relevant and accurate information for
        diagnostic, treatment, rehabilitation or counselling purposes.




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ANNEXURES:


National Health Act 61 of 2003
Regulations in terms of the Allied Health Professions Act, 1982




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