Should a provincial MEC responsible for health registered with the HPCSA, who publicly humiliates a vulnerable undocumented foreigner who has received urgent medical attention for childbirth from an understaffed government hospital, be disciplined for unp.

The Limpopo MEC for Health, during a hospital visit, was recently shown in a video to have humiliated a vulnerable undocumented Zimbabwean woman patient, resulting in the hospital workers present laughing at the unfortunate patient. The patient had arrived at a hospital in the province that was short-staffed and under-resourced because of failings on the part of the Department of Health. She wished to give birth to her child in a safe environment, because the shortage of proper facilities in Zimbabwe posed a threat to her and her unborn child. The conduct of the MEC is measured against the patient's rights under the Constitution of South Africa and the National Health Act 61 of 2003, and her conduct is discussed in the light of the Health Professions Act 56 of 1974 and the Ethical Rules of Conduct of the Health Professions Council of South Africa (HPCSA). The conclusion reached is that the MEC had breached the Constitution, the National Health Act, the Health Professions Act and the Ethical Rules of Conduct of the HPCSA, and should be disciplined by the HPCSA, as required by the Health Professions Act.

Assisted suicide and assisted voluntary euthanasia: Stransham-Ford High Court case overruled by the Appeal Court - but the door is left open.

Whether persons wishing to have doctor-assisted suicide or voluntary active euthanasia may make a court application based on their rights in the Constitution has not been answered by the Appeal Court. Therefore, if Parliament does not intervene beforehand, such applications can be made - provided the applicants have legal standing, full arguments are presented regarding local and foreign law, and the application evidence is comprehensive and accurate. The Appeal Court indicated that the question should be answered by Parliament because 'issues engaging profound moral questions beyond the remit of judges to determine, should be decided by the representatives of the people of the country as a whole'. However, the Government has not implemented any recommendations on doctor-assisted suicide and voluntary active euthanasia made by the South African Law Commission 20 years ago. The courts may still develop the law on doctor-assisted death, which may take into account developments in medical practice. Furthermore, 'the possibility of a special defence for medical practitioners or carers would arise and have to be explored'.

Postoperative care: From a legal point of view, whose responsibility is it?

An ear, nose and throat surgeon recently asked if anyone else would be responsible postoperatively for removing a patient's throat pack that had been negligently left in place by the anaesthetist. Generally, members of the operating or treatment team such as anaesthetists, surgeons and circulating nurses are not legally liable for one another's negligent acts or omissions in theatre or postoperatively. However, in situations where one or both of the other members of the team could have directly intervened to prevent harm to a patient and failed to do so, such team members could have legal liability imposed on them as joint wrongdoers, e.g. where a throat pack is negligently left in a patient by an anaesthetist.

When may doctors give nurses telephonic treatment instructions?

Doctors are expected to examine their patients before issuing telephonic instructions to nurses. However, in emergencies or when they are aware of the health status of their patients, it may be justified for a doctor to issue telephonic instructions to nurses without examining the patient. Doctors on call owe a special duty to patients, who they may have to examine or arrange for another doctor to do so before issuing telephonic instructions. In deciding whether doctors acted reasonably in issuing telephonic instructions to nurses, the courts will decide whether they exercised the same degree of skill and care as reasonably competent practitioners in their branch of the profession. Suggestions are made concerning doctors giving telephonic instructions to nurses regarding patients they have not examined.

When are doctors legally obliged to stop and render assistance to injured persons at road accidents?

Unlike the USA, South Africa (SA) does not have 'Good Samaritan' laws that oblige doctors to stop at road accidents. In SA, the conduct of doctors in such situations is governed by the common law. Doctors coming across injured people at a road accident should stop and render assistance, unless they are likely to be exposed to personal danger or injury, they are mentally or physically incapable of assisting, or other medical or paramedical practitioners are at the scene. Where there is the threat of personal danger to the doctor, they must immediately report the accident to the police, advise the police to send protection and call for urgent ambulance assistance. Doctors should remain in a safe place near the scene until the police and ambulance arrive and check that paramedics are available to stabilise the injured before departing. Where there is the threat of danger, if doctors are mentally or physically unable to assist or if other medical or paramedical practitioners are at the scene, doctors may or may not be required to stop.

Public health officials and MECs should be held liable for harm caused to patients through incompetence, indifference, maladministration or negligence regarding the availability of hospital equipment.

There have been several reports of state hospitals not having functional equipment such as radiological equipment. Where these are due to incompetence, Indifference, maladministration or negligence by the public officials concerned, they may be held personally liable for the resulting harm to patients. However, the courts have often observed that where the State has been sued vicariously for the wrongs of public officials, it has not obtained reimbursement from the offending official. It has therefore been suggested that irresponsible public servants should be sued in their personal capacity (in addition to the State), to prevent taxpayers always having to pay for their misdeeds. If an individual public official cannot afford to pay all the damages awarded, the injured party can recover the balance from the State by citing it as a vicarious joint wrongdoer.

Is it ever justified for doctors to sue their patients whose allegations against them have been dismissed by the courts or the Health Professions Council of South Africa?

Doctors should be cautious about suing their patients, because it may generate bad publicity. Where a criminal or civil case or complaint to the Health Professions Council of South Africa by a patient about a doctor's professional conduct is withdrawn or dismissed, a doctor may only sue the patient for defamation if it can be proved that the patient acted from malice, spite or an improper motive. Doctors may only sue patients for malicious prosecution or abuse of civil proceedings if such patients acted with 'malice' and 'without reasonable and probable cause'. If a doctor successfully defends a case against a patient, the court will usually order the patient to pay the doctor's costs.

Doctor-assisted suicide: What is the present legal position in South Africa?

In the recent case of Stransham-Ford v. the Minister of Justice and Correctional Services, the North Gauteng High Court held that a terminally ill patient who was experiencing intractable suffering was entitled to commit suicide with the assistance of his doctor and that the doctor's conduct would not be unlawful. The court was careful to state that it was not making a general rule about doctor-assisted suicide. The latter should be left to the Parliament, the Constitutional Court and 'future courts'. The judge dealt specifically with the facts of the case at hand. In order to understand the basis of the decision it is necessary to consider: (i) the facts of the case; (ii) the question of causation; (iii) the paradox of 'passive' and 'active' euthanasia; (iv) the test for unlawfulness in euthanasia cases; and (v) the meaning of doctor-assisted suicide. It is also necessary to clarify the present legal position regarding doctor-assisted suicide.

Must doctors disclose their fees before treatment?

The bioethical principles of patient autonomy, beneficence, non-maleficence and justice or fairness require doctors to disclose their fees before treating patients. The provisions regarding disclosures about fees in the Health Professions Act and National Health Act are in conflict. Those in the National Health Act are likely to be applied by the courts to impose a legal duty on healthcare practitioners to disclose their fees before treating patients. This is because the National Health Act is consistent with the access to healthcare provision in the Constitution, as the nature of the access is often determined by the patient's ability to afford the treatment. Given the unequal bargaining power between doctors and patients, very few patients may ask doctors what their fees are before being treated. It is feasible for doctors to provide such information, or an estimate, and ethically and legally they have a duty to do so.

Overturning refusal of a hospital to terminate life support for a brain-dead mother until the fetus was born: What is the law in South Africa?

In a Texas case the court granted a husband an order for the removal of life support from his brain-dead pregnant wife after a hospital tried to keep her on it until the fetus was born. In South Africa the court would have issued a similar order, but for different reasons. Here, unlawfully and intentionally subjecting a pregnant corpse to life-support measures to keep a fetus alive against the wishes of the family would amount to the crime of violating a corpse.

Can children aged 12 years or more refuse life-saving treatment without consent or assistance from anyone else?

The question of whether a child aged 12 years or more who is sufficiently mature and has the necessary mental capacity may refuse to consent to life-saving treatment without consent from a parent, guardian or caregiver or without the assistance of a parent or guardian is governed by the Constitution, the Children's Act, the National Health Act and the common law. The best interests of the child are paramount, and should the child unreasonably refuse to consent to life-saving treatment, the Minister of Social Development may give consent for such treatment in terms of the Children's Act. Otherwise, should a parent, guardian, caregiver or healthcare provider believe that such a refusal is not in the best interests of the child, he or she may approach the High Court for an order to provide such treatment.

Human tissue and organ transplant provisions: chapter 8 of the National Health Act and its Regulations, in effect from March 2012 - what doctors must know.

Where provisions that were in the Human Tissue Act have been left out of the National Health Act they have been included in its regulations. However, new provisions in the latter Act provide strict controls for the transplantation of organs into non-South African citizens or non-permanent residents, and outlaw the charging of fees for human organs. The provisions also expand the list of persons who can give consent to donations from deceased persons to include 'partners', who now take precedence over all other relatives except spouses. Some of the matters in the Human Tissue Act that were not covered by the National Health Act have now been included in the regulations, such as: (i) the parties responsible for determining death of a person whose organs are to be removed for transplantation purposes; (ii) the requirement that tissue must be harvested within 24 hours from donated bodies; (iii) the removal of eye tissue; (iv) the exclusivity of rights in respect of tissue donations; and (v) confidentiality and publicity regarding tissue and organ transplants.

Hospital-acquired infections - when are hospitals legally liable?

Hospital-acquired infections (nosocomial infections) are acquired in healthcare settings by patients admitted for reasons unrelated to the infection or not previously infected when admitted to the facility. Liability for hospital-acquired infections depends on whether the hospital: (i) has introduced best practice infection control measures; (ii) has implemented best practice infection control measures; or (iii) will be vicariously liable for negligent or intentional failures by staff to comply with the infection control measures implemented. A hospital and hospital administrators may be held directly liable for not introducing or implementing best practice infection control measures, resulting in harm to patients. The hospital may also be held vicariously liable where patients have been harmed because hospital staff negligently or intentionally failed to comply with the infection control measures that have been implemented by the hospital, during the course and scope of their employment.

Medical ethics and the payment of fees before treatment.

Whether it is ethically acceptable for doctors to require payment of fees before treatment depends on interpretation of the ethical rules of the profession, the circumstances of the doctor-patient relationship, the urgency of the patient's need for treatment, and whether refusal to treat before payment represents abandonment of a patient.