Medical Law Flashcards
THE RELATIONSHIP BETWEEN LAW, MEDICAL ETHICS AND RISK MANAGEMENT.
professional medical dealings require making of time-sensitive explicit or implicit ethical judgments—many of which are complex and repercussive (e.g. whether to participate in providing an abortion, the removal of nutrition and hydration from comatose patients, whether to provide medical treatment to an intelligent teenager who is refusing to consent)
-if all medical professionals complied with medical = no need for all the organizations and professional regulators
THUS: failure of ethics requires the law to oversee and intervene in issues of ethical significance
Types of decisions doctors make:
- Legal
- Ethical
- Moral
Legal decisions
Decisions where the doctor has no choice. Law has intervened and mandated prescribes a course of action. Frequently occur when law determines that choice belong to the patient rather than the medical practitioner (e.g. law relating to informed consent)
Section 12(2) of the Constitution
-Protects everyone’s right to the protection of their bodily and psychological integrity by allowing any person to make their own decisions about reproduction, have security relating to and control of the own body, and only participate in medical or scientific experiments with their consent
In Re S v Walters
-Rights such as the right to life, human dignity, and bodily integrity are essential and collectively foundational to the value system prescribed by the Constitution
Xaba v Minister of Police
-Court refused to order surgical removal of bullet from prisoner’s leg without his consent. Failure to obtain his consent would infringe on his constitutional right to bodily integrity.
Ethical decisions
Decisions that the law leaves to the medical profession to regulate. Reflection on corporate morality of the profession. The profession requires that certain decisions are made in certain ways: if a doctor does not conform, action with professional consequences (but not legal) will be taken (e.g. HPCSA proceedings) Such decisions are made by the medical profession as a whole, rather than by medical individuals.
Important distinction: fact that we can identify an ethical element to a case does not mean that it is appropriate to consider the decision to be best made by professional medical ethics. Ethical issues contain elements other than issues turning on the appropriate exercise of technical medical skills – medical practitioners have no unique competence in the resolution of ethical issues – this is when a law becomes important.
Hippocratic Oath
International Code of Medical Ethics of the World Medical Association
Moral decisions
- Decision which is entirely uninhibited by anything other than the conscience of the individual doctor. May, or may not accord with the view of the medical profession as a whole. The law sometimes expresses respect for moral decisions (e.g. conscientious objection to abortion)
- Most moral decisions will not harm the patient - the patient will be protected by alternative means. Protected rights relate not to the patient but to the doctor and his/her conscience.
Conscientious objection to abortion, the law and its implementation in Victoria, Australia: perspectives of abortion service providers - Keogh, L.A., Gillam, L., Bismark, M. et al.
Many laws regulating abortion were reformed, provide for doctors with a conscientious objection to abortion to refer women to another provider.
Viewed as a mechanism to protect women’s right to abortion, rather than doctors’ rights. Most doctors would not let moral or religious beliefs impact their patients – all could detail negative experiences e.g. directly contravened the law by not referring, attempted to make women feel guilty, attempted to delay women’s access, or claimed an objection for reasons other than conscience.
MEDICAL VS HEALTHCARE LAW - DEFINITIONS
Medical Law
=Medical law is the branch of law which concerns the prerogatives and responsibilities of medical professionals and the rights of the patient. It should not be confused with medical jurisprudence, which is a branch of medicine, rather than a branch of law.
Health Law
=Health law is the area of law concerned with the health of individuals and populations, the provision of health care, and the operation of the health care system.
Medical law vs Healthcare law in history
-During the first part of the 20th century “medical law” primarily focussed on issues of medical malpractice and negligence. Towards the end of the 20th-century scope was broadened to also involve abortion, euthanasia, and organ transplants and was increasingly referred to as “health law”.
Health law now includes a range of professions wider than just medical practitioners and nurses, but also a complex group of professions dealing with public health, biotechnological advancements, etc.
THE RELATIONSHIP BETWEEN MEDICAL LAW AND MEDICAL ETHICS.
-Problems concerning consent, confidentiality, resource allocation, the withdrawal and withholding of treatment, reproductive technology, and the use of body parts will generally have significant ethical components.
Which should take the lead? Law or professional medical ethics?
Sometimes dangerous philosophical pass-the-parcel, with law passing the buck to ethics, and ethics handing it back again.
The law should take the lead.
Law has a definitive place, but bioethics not. Regulatory guidelines and codes of professional bodies are often intelligent, thoughtful, and useful documents, compiled after wide consultation, which may be disproportionately affected by the representations of vocal pressure groups, can never be equal to the transparent process of examination that occurs in a public courtroom.
Regulatory organizations may have their own internal politics or ethical presumptions, - luxuries denied to judges – gives credibility to an Act of Parliament or a judicial decision reached after prolonged public deliberation
Ethics, even when embodied in a formal code that purports to circumscribe acceptable professional conduct, will necessarily be unable to be as prescriptive as to the law. Ethics will have to take into account the penumbra of acceptable opinion.
The law has a final, decisive advantage – power - the authority to decide and the obligation to do so.
There is nothing unreal about the power of the HPCSA to strike a doctor’s name from the register, but the HPCSA is still a creature of the Health Professions Act 29 of 2007 and subject to the powers allowed therein
Sources of the authority of medical law
Constitution is divided into the National Health Act [NHA] and Medicines and Related Substances Act [MRSA]
NHA = into Mental Health Care Act and Occupational Health and Safety Act
MRSA = into Health Professions Act
Children’s Act branches
- Choices on Termination of Pregnancy Act [Further into Promotion of Access to Information Act and Criminal Procedure Act] and
- Nursing Act [Into Protection of Personal Information Act]
The constitution of the Republic of South Africa
A Brief overview
- The Constitution of South Africa is the supreme law of the Republic of South Africa.
- It provides the legal foundation for the existence of the republic, it sets out the rights and duties of its citizens and defines the structure of the Government
Chapter 2 - Of Constitution
-Also known as the Bill of Human Rights which enumerates the civil, political, economic, social, and cultural human rights of the people of South Africa.
Human rights that are important for medical practitioners include:
Sections 9-16, 24-37
Sections 10-16
Section 10 - the right to human dignity.
Section 11 - the right to life
Section 12 - the right to freedom and security of the person, including protection against arbitrary detention and detention without trial, the right to be protected against violence, freedom from torture, freedom from cruel, inhuman, or degrading treatment, the right to bodily integrity, and reproductive rights.
Section 13 - freedom from slavery, servitude, or forced labor.
Section 14 - the right to privacy, including protection against search and seizure, and the privacy of correspondence.
Section 15 - freedom of thought and freedom of religion.
Section 16 - freedom of speech and expression, including freedom of the press and academic freedom. Explicitly excluded are propaganda for war, incitement to violence, and advocacy of hatred based on race, ethnicity, gender, or religion.
Section 24-28
Section 24 - the right to a healthy environment and the right to have the environment protected.
Section 25 - the right to property, limited in that property may only be expropriated under a law of general application (not arbitrarily), for a public purpose, and with the payment of compensation.
Section 26 - the right to housing, including the right to due process with regard to court-ordered eviction and demolition.
Section 27 - the rights to food, water, health care, and social assistance, which the state must progressively realize within the limits of its resources.
Section 28 - children’s rights, including the right to a name and nationality, the right to family or parental care, the right to a basic standard of living, the right to be protected from maltreatment and abuse, the protection from inappropriate child labor, the right not to be detained except as a last resort, the paramountcy of the best interests of the child and the right to an independent lawyer in court cases involving the child, and the prohibition of the military use of children
Section 9 - Equal before law and discrimination prohibited
-Everyone is equal before the law and has the right to equal protection and the benefit of the law. Prohibited grounds of discrimination include race, gender, sex, pregnancy, marital status, ethnic or social origin, color, sexual orientation, age, disability, religion, conscience, belief, culture, language, and birth.
