STUDY UNIT 4

Question 1

The breach of the duty:

Answer 1

the breach of the duty of care and negligence may underlie both contract and delict.

Question 2

If there is no contract:

Answer 2

if there is no contract between the parties, the relationship is then governed by the law of delict.

Question 3

REASONS FOR THE LACK OF CLARITY AS TO WHETHER HEALTH SERVICES ARE DELIVERED BY PUBLIC SECTOR PROVIDERS IN TERMS OF A CONTRACT AS OPPOSED TO SOME OTHER BASIS:

Answer 3

1. the fact that payment of fees is often required in terms of regulations which prescribe the terms and conditions of payment.
2. that the state provided health care services to the indigent from whom no payment is required.
3. that the intention of the state to contract is often very difficult to establish in the absence of hard evidence to this effect.

Question 4

The Law of Contract:

Answer 4

the Law of Contract protects contracting parties against clauses which are contrary to public policy.

Question 5

the Healthcare provider:

Answer 5

the Healthcare provider is not permitted to exploit superior knowledge for his own advantage at the patient’s expense.

Question 6

FUNDAMENTAL CONCEPTS:

Answer 6

1. Public interests
2. Good faith
3. Public policy
4. Reasonableness
5. Fairness

Question 7

FORMATION OF A CONTRACT:

Answer 7

the intention of the parties is paramount.

Question 8

In the context of public health service delivery:

Answer 8

in the context of public health service delivery, it is not easy to establish the nature of the parties’ intentions.

Question 9

The most common and normally helpful technique:

Answer 9

the most common and normally helpful technique to establish whether an agreement exist is to look for the offer and acceptance of that offer.
-contracts can be entered into without an offer and acceptance

Question 10

A statutory requirement:

Answer 10

a statutory requirement, whether express or tacit, merely restricts or specifies the legal mechanism in terms of which that relationship arises, or the transaction is effected.

Question 11

Informed consent:

Answer 11

informed consent from a contractual point of view is important to ensure consensus and that the parties are bound by the terms of their agreement.

Question 12

FREEDOM OF CONTRACT: GENERAL PRINCIPLE:

Answer 12

people cannot as a general rule be treated against their will even if there is an obligation to treat.

Question 13

The National Health Act:

Answer 13

The National Heath Act does not criminalize a refusal to render emergency medical treatment.

Question 14

A plaintiff who wishes to claim damages must prove:

Answer 14

1. that the breach was committed by the other party
2. the damage
3. a factual connection between the breach and the damage
4. that the breach was foreseeable.