David Jan McQuoid-Mason

Mandatory reporting of sexual abuse under the Sexual Offences Act and the 'best interests of the child'

It may not be necessary for doctors to report cases of consensual sexual penetration in terms of the Criminal Law (Sexual Offences Act and Related Matters) Amendment Act, where the children involved are under16 years old and their age difference is not more than 2 years, if such a requirement is unconstitutional. The mandatory reporting provision regarding such conduct may be unconstitutional if it violates the constitutional ‘best interests of the child’ principle and unreasonably and unjustifiably limits the constitutional rights of children to bodily and psychological integrity and privacy. It may also undermine the provisions of the Choice on Termination of Pregnancy Act regarding terminations of pregnancy by girl children, the confidentiality provisions of the Children’s Act regarding the distribution of condoms and contraceptives to sexually active children and their testing for HIV, and the efficacy of the Child Justice Act which aims to divert children away from the criminal justice system. It will also be unnecessary to report such conduct in terms of the Children’s Act if the doctor concerned does not believe on reasonable grounds that child abuse has occurred and the doctor is acting in the ‘best interests of the child’ as required by the Constitution and the Children’s Act.

Ethical and legal controversies in cloning for biomedical research--a South African perspective.

Therapeutic embryonic stem cell research raises a number of ethical and legal issues. The promised benefits are new and important knowledge of human embryological development, gene action, and the production of transplantable tissue and organs that could be effective in reversing or curing currently irreversible disease processes. However, this research involves the deliberate production, use, and ultimate destruction of cloned embryos, hence re-awakening the debate on the moral status of the embryo. Other moral anxieties include the possibility that women (as donors of ova) would be exploited, that this research would land on the slippery slope of reproductive cloning, and that promises made too early could lead to false hope among sick patients. It also raises the question of intellectual and actual property rights in human cell lines and the techniques by which they are produced. Review of legal systems internationally reveals that there is no global consensus on therapeutic embryonic stem cell research. Legal considerations are very much influenced by ethical deliberations on the moral status of the embryo. The South African parliament is promulgating legislation permitting therapeutic cloning, thereby demonstrating a commitment by the state to act in the best interests of patients and of regenerative medicine.

The impaired practitioner - scope of the problem and ethical challenges.

Practitioner impairment occurs when a physical, mental or substance-related disorder interferes with his or her ability to engage in professional activities competently and safely. The Health Professions Council of South Africa makes reporting of impaired colleagues and students mandatory. The ethical dilemma faced by many colleagues on the issue of reporting an impaired practitioner is that of having to choose between protecting the privacy of the practitioner and the safety of patients. However, medicine as a profession with an acknowledged fiduciary relationship has a clear responsibility to assure the public, and all patients, that its practitioners and institutions are trustworthy. An awareness of and sensitivity to physician vulnerability and early detection and prevention of impairment is important.

Routine testing for HIV - ethical and legal implications : medicine and the law : SAMJ forum

It is submitted that routine testing for HIV infection using an opt out approach is consistent with the basic biomedical ethical principles of patient autonomy beneficence non-maleficence and justice. Such testing is also in line with the Constitution and other laws. Even if it were argued that an opt out approach violated the Constitutional rights to bodily integrity and privacy such infringements would be reasonable and justifiable and therefore in accordance with the Constitution. As stated by Judge Cameron in all instances the testing procedure and its outcome must be subject to the usual rules regarding confidentiality. (excerpt)

The effect of the new Children's Act on consent to HIV testing and access to contraceptives by children

On 1 July 2007 a number of sections of the Childrens Act came into effect that impact on the capacity of children to consent to HIV testing and to access contraceptives. The Act also provides that where HIV testing of children is done for foster care or adoption purposes the state must pay the cost of such tests where circumstances permit. The present provisions of the Child Care Act regarding consent to medical treatment by children over the age of 14 years and surgical operations by persons over the age of 18 years still stand. However the latter is now academic because the provisions regarding the lowering of the age of majority from 21 years to 18 years also came into effect in July 2007. When Section 129 of the Childrens Act is brought into effect there will be drastic changes to the capacity of children to consent to medical treatment and surgical operations. In both instances the age of consent -subject to certain conditions -will be reduced to 12 years on similar grounds to those for HIV testing of children. The provisions allowing consent to a termination of pregnancy by girls of any age in the Choice on Termination of Pregnancy Act are not affected by the Childrens Act. (excerpt)

What does professionalism in health care mean in the 21st century? : editorial

Central to health care practice and the moral contract between the public and the profession lies professionalism and professional integrity. The purpose of health care practice is to always care for the ailing and the sick, promote health interests and well-being and strive towards healing environments. Professionalism, which sets the standard of what a patient should expect from his or her health care practitioner, is an ideal that should be sustained. Health care practitioners are important agents through which scientific knowledge is applied to human health, thereby bridging the gap between science and society.

Is the mass circumcision drive in KwaZulu-Natal involving neonates and children less than 16 years of age legal? What should doctors do?

As a result of the revival of male circumcision among Zulu males as a cultural practice and an attempt to reduce the incidence of HIV infection, the KwaZulu-Natal government has implemented a programme of mass circumcision of Zulu males. The question arises whether the implementation of such a programme on neonates and children under 16 years of age is legal in terms of the Constitution and the Childrens Act. The answer hinges on whether the circumcision is done as a cultural practice or for medical reasons. Doctors are provided with guidance as to what they should do when faced with neonates or males under 16 years of age being presented for circumcision.

Decriminalisation of consensual sexual conduct between children: What should doctors do regarding the reporting of sexual offences under the Sexual Offences Act until the Constitutional Court confirms the judgement of the Teddy Bear Clinic case?

In the Teddy Bear Clinic case, the High Court declared some sections of the Sexual Offences Act unconstitutional, a decision which is still to be confirmed by the Constitutional Court. However, until the Constitutional Court pronounces on the matter, doctors faced with child patients who have been involved in ‘consensual sexual penetration’ or ‘consensual sexual violations’ with other children would be fully justified in not reporting such conduct to the authorities because ( i ) the High Court has judged the criminalisation of such conduct as unconstitutional, which is likely to be upheld by the Constitutional Court; and ( ii ) there is no duty to report consensual sexual activities involving children if this would violate the constitutional ‘best interests of the child’ principle.

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.

UKZN Anniversary Symposium on the Medico-Legal and Ethical Implications of Human Tissue Use

The University of KwaZulu-Natal recently hosted a Symposium on Medico-Legal and Ethical Implications of Human Tissue Use, which coincided with recent discussions on proposed amendments to Chapter 8 of the National Health Act 61 of 2003. The Symposium made a number of recommendations regarding: (i) how to overcome the shortage of donations of human tissue; (ii) the need to update the current policy and regulations regarding the use of human tissue; (iii) whether a human tissue co-ordinating body should be established; (iv) the need for national guidelines for the use of human tissue in teaching and research; and (v) how legacy collections involving human tissue should be dealt with.