The Doctor and SA Law

15/01/2024
Dr K. K. Hlaise.
 Main areas for discussion
 The Doctor and SA Law.
 The constitution and health care services.
 SA Court System.
 The SA health System.
 Statutory framework for the regulation of the medical profession.
 Acts regulating the performance of clinical forensic examinations.
 Acts regulating the performance of academic / natural death post-
mortem examinations.
 Acts regulating the performance of forensic post-mortem
examinations.
 Dr-Pt relationship, Consent, confidentiality, vicarious liability, Legal
aspect of consent on HIV.
 Professional regulations, ethical and moral guidelines for health
profession - HPCSA, SAMA, SAMR and others.
 Evidence and testimony.
 Conclusion
 Guideline to reading Acts

 No one remembers Acts or sections of Acts word by word;

even legal professionals and legal students.
 No one will ask you to write an Act or section of an Act
word by word.
 All Acts need to be read for understanding and application
in their specific contexts.
 Students must just understand the Act or Section of an
Act and if asked in an assessment describe the issues as
you understand them using your own words.
 In Manual; I first explain the Act or Section of an Act in
arial font and below that I have pasted the Act or Section
of Act as it is for easy of reference in Italics.
 Law and Medicine
 Medicine is practiced within a legislative framework
establish by an act of Parliament. In SA; the relevant laws
are – National Health Act; and Health Professions Act.
 What is law? Law binds all citizens and is enforced by
government. Law is not same as morals (= Ethics).
Morals do not bind everyone and are not enforced by
government.
 Law is not justice; we can have unjust laws. Justice is
about equality and fairness.
 Every right is limited in content, scope and to some
degree by context.
 For every right there is a corresponding responsibility.
 Law is there to maintain peace and order in society; and
to balance interests of individuals, communities and
public as represented by government.
 Sources of SA Law.
 Authoritative and persuasive sources
 Indigenous African Law – existed before arrival of Dutch in 1652. Is
unwritten. Applicable since the interim constitution of 1993.
 Customary Law – unwritten laws, develops from customs in
community, transmitted from generation to generation.
 Common Law –originating from Roman-Dutch and English laws.
 Statutory Law – Enacted by parliament out of a need to control and
regulate certain practices not covered by common or customary
law, and includes Constitution, Acts, Ordinances (by-laws), Rules
and Regulations.
 Case law – established by Judicial precedence.
 International law to a limited extend, some countries do not enforce
and or abide by these laws.
 Persuasive – Foreign law (laws of other / foreign countries) and
academic sources (journals, books and experts)
 Origins of SA Law.
 Roman-Dutch Law – brought to SA by the Dutch in 1652.
 English Law – brought by the English when they ruled since
1800s.
 Common Law - based on Roman-Dutch and English Laws.
 Customary law – established by customs and traditions,
transmitted from genenration to generation.
 Indigenous African Law – based on traditional and cultural
practices of indigenous communities in SA together with their
relevant traditional laws.
 Constitution – Supreme law in SA. All laws in SA must comply
with constitutional provisions.
 Criminal and civil Law – similar but differ in ways prosecution
is conducted.
 Criminal and Civil cases.
 Criminal case – Public prosecution to serve
public interest, must be proved beyond
reasonable doubt.
 Civil case – private litigation between
individuals and or legal intities, must be
proven on balance of probabilities.
 SA Court System
 Judicial precedence – lower courts are bound by previous
decisions of the higher courts.
 Constitutional Court – Adjudicates over constitutional matters
and matters it deems relevant.
 Supreme Court of Appeal – highest court that adjudicates
over all legal matters except constitutional matters.
 High Court – adjudicates over cases from magistrate courts,
serious cases and or rand amounts involved or type of case.
 Magistrate Courts – most cases start here except those
assigned for High court.
 Specialised Courts e.g. Family Courts, Sexual offences
courts, children’s courts etc.
 SA Court System
 The Magistrates’ Courts are the lower courts which deal with less serious criminal and civil cases. They are divided into Regional
Courts and District Courts. In Criminal Courts the state prosecutes people for breaking the law. Criminal Courts can be divided into
two groups:
 Regional Magistrates’ Courts
Ordinary Magistrates’ Courts (also called District Courts)
 Currently, Regional Magistrates’ Courts only deal with criminal cases whereas the District Magistrates’ Courts deal with criminal
and civil cases. The Magistrate makes the decisions in a Magistrates’ Court; sometimes with the support of lay assessors.
Magistrates’ Courts can be divided into either criminal courts or civil courts.
 The Regional Magistrates’ Courts deal with more serious cases than the ordinary Magistrates’ Courts - for example, murder, rape,
armed robbery and serious assault.
In terms of the Criminal Law (Sentencing) Amendment Act (No 38 of 2007) a Regional Magistrates’ Court can sentence a person
who has been found guilty of offences that include murder or rape to imprisonment for life. The Court can also sentence people
who have been found guilty of certain offences such as armed robbery or stealing a motor vehicle to prison for a period up to 20
years. A Regional Magistrates’ Court can impose a maximum fine of R300 000.
Regional Courts now have civil jurisdiction to the extent that divorce matters can now be heard there.

District Courts try the less serious cases. They cannot try cases of murder, treason, rape, terrorism, or sabotage. They can
sentence a person to a maximum of 3 years in prison or a maximum fine of R100 000.

Ordinary Magistrates’ Courts can hear civil cases when the claims are for less than R100 000. They cannot deal with certain
matters, such as:
 Divorces;
 Arguments about a person's will;
 Matters where it is asked if a person is mentally sane or not.
 Serious criminal matters are heard in the High Court. There are also a number of Magistrates’ Courts that are specialised to be
better able to deal with certain types of matters, such as the Children’s Courts and Sexual Offences Courts.
Small Claims Courts have jurisdiction to hear any civil matter involving less than R 12 000 (unless both the person suing and the
person being sued agree to limit the claim to less R12 000). But some cases cannot be taken to the Small Claims Court even if
they are for R12 000 or less.
Examples of these claims are:
 SA Court System
 Divorces
 Matters concerning a will
 Malicious prosecution
 Wrongful imprisonment
 Seduction
 Breach of promise to marry

There is no Magistrate or Judge in the Small Claims Court, but the presiding officer is a Commissioner who is usually a practicing
advocate or an attorney who acts as a commissioner free of charge. The Commissioner listens to both sides and asks all the
questions since lawyers cannot be used in the Small Claims Court, but citizens can obtain advice from a paralegal advisor or a
lawyer to prepare for their cases.
No appeals may be filed against the judgment or order of the Small Claims Courts. The court proceedings may however be
referred to the High Court for review on three grounds, namely: absence of jurisdiction by the court; interest in the cause, bias,
malice or corruption on the part of the commissioner and gross irregularity with regard to the proceedings. Small Claims Court can
be contacted through Magistrates’ Courts.
Community Courts can be described as “District Courts” that deal with similar cases as normal Magistrates’ Courts; the difference
being that they only deal with petty crimes such as shoplifting cases, petty theft, petty gambling offences, petty traffic offences,
drunkenness, drinking in public, riotous behaviour, failure to comply with a lawful instruction of a police officer, various train-related
offences, common assault etc.
Community Courts should not be confused with Traditional Courts that are found mostly in rural areas and which assist in
resolving less serious disputes. There are three Community Courts that have been established in the Western Cape namely:
Mitchell’s Plain; Cape Town and Fezeka (Gugulethu). These courts practice restorative justice and many diversion and alternative
sentencing options are applied in Community Courts.
The accused is assessed as soon as possible (usually within 48 hours of arrest) to decide on suitability for diversion from the
criminal justice system. Legal Aid attorneys are available on request.
 SA Court System
Equality Courts have been set up to help people who believe that they have suffered unfair discrimination, hate speech or harassment.
These courts make it is easy for persons with such cases to bring their matters to court and that the matters are finalised quickly.

Any person can bring a matter to the Equality Court, even if they are not directly involved in what happened. This means a complaint to
the court can be lodged against someone or an organisation believed to have failed to respect the rights of another person.

Equality Courts deal with complaints that are about unfair discrimination, hate speech or harassment. A case can be lodged if a person
believes that they or someone else was treated badly because of hatred or bias based on any one of the following basis:
 Race
 Gender
 Pregnancy
 Marital status
 Ethnic or social origin
 Colour of skin
 Sexual Orientation
 Age
 Disability
 Religion, conscience & belief
 Culture
 Language
 Birth
 Nationality
 HIV status, or perceived status
 Economic or social status or
 Family responsibility and status
Equality Courts seek to achieve the expeditious and informal processing of cases, which facilitates participation by the parties to the
proceedings; and they also seek to ensure access to justice to all persons in relevant judicial and other dispute resolution forums. You
can take your complaint to your nearest Equality Court.
 SA Court System
Child Justice Courts
Prior to 1 April 2010, children who committed crime were dealt with, in terms of the Criminal Procedure Act, 1977 (Act 51 of 1977) which also deals with adults
who commit crime. The aim of the CJA is to set up a child justice system for children in conflict with the law. This means that children under the age of 18, who
are suspected to have committed crime, will not be dealt with in terms of the normal criminal procedure which is used for adults, but the child justice process
will be followed.
The CJA seeks to ensure that child justice matters are managed in a rights-based manner and to assist children suspected of committing crime to turn their
lives around and become productive members of society by engaging with the child in restorative justice measures, diversions and other alternative sentencing
options.
Maintenance Courts
Maintenance Courts are situated in Magistrates’ Courts. Mothers or fathers who do not get support for their children from the other parent can approach
Maintenance Courts to claim maintenance from that parent.
There are Maintenance Officers in charge of maintenance matters at Magistrates Courts. It is not necessary to have an attorney to claim maintenance.
Maintenance Officers are always on hand to help those in need to complete the necessary forms.
In the case where one of the parents of the child refuses to pay maintenance; then the case must go to the Maintenance Court. In this case, the Maintenance
Officer will provide details to the parties on when to appear in court and which court to go to.
Sexual Offences Courts
As part of responding to the problem of sexual offences, special sexual offences courts are set up across the country. They are built in such a way that children
and victims get the necessary care, respect and support at the court.
For example, there is a waiting room to make sure that the woman or child, who is a victim of e.g. rape, does not come in contact with the accused person.
Toys are also available to make sure a relaxed atmosphere is created for a child. In some cases television is used to make sure that evidence by the victim in
given in a comfortable way.
The other programmes that is also implemented is that it is now made easier for victims to lay a charge by opening a case at a one-stop centre called a
Thuthuzela Care Centre which is at a hospital.
Children’s Courts
Children’s Courts have been established for circumstances where for example, a person or parent has the responsibility to look after the daily needs of a child
(child custody). That means they will provide a home for the child, feed and support them, look after their daily needs and make sure they get an education.
Courts for Chiefs and Headmen
These courts have jurisdiction to hear certain matters at the level of Magistrates’ Courts. They are designed to deal with customary issues in terms of
customary law. An authorised Headman or his deputy may decide cases using indigenous law and custom (for example, disputes over ownership of cattle or
lobolo), brought before him parties within his area of jurisdiction. These courts are commonly known as Chief’s Courts. A person with a claim has the right to
choose whether to bring it to a Chief’s court or in a Magistrates’ Court. Any person who is not satisfied with the decision in a Chief's or Headman's court can
take their matter to the ordinary courts.
Legal Aid South Africa
is an autonomous body established by the Legal Aid Act (Act 22 of 1969) and the Legal Aid Act (Act 20 of 1969). The objective of Legal Aid South Africa is to
render or make available legal representation to indigent persons at State expense as contemplated in the Constitution of the Republic of South Africa (Act 108
of 1996), which affords every citizen access to justice. This means that Legal Aid is provided by Legal Aid South Africa to persons who cannot afford it in terms
of a means test
(e.g. earning less than R5 000).
 The Constitution and health care:
Bill of Rights
 The constitution – Preamble; 14 chapters; and 7
schedules.
 Bill of rights – Chapter 2.
 Every SA citizen has right to human dignity, equality
and freedom.
 State has to respect these rights.
 The Rights in Chapter 2 can’t be violated except
through Section 36 of Bill of Rights.
 Non-derogable (Non-annullable) rights (even in a
state of emergency) – Right to life, dignity, equality,
freedom and security of the person, no slavery, no
servitude and no forced labour, rights of children,
arrested, detained and accused persons.
 The Constitution and health care:
Bill of Rights
Limitation of rights
36. (1) The rights in the Bill of Rights may be limited only in
terms of law of general application to the extent that the
limitation is reasonable and justifiable in an open and
democratic society based on human dignity, equality and
freedom, taking into account all relevant factors, including —
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose.
(2) Except as provided in subsection (1) or in any other provision
of the Constitution, no law may limit any right entrenched in
the Bill of Rights.
 The Constitution and health care:
Bill of Rights
 Everyone is equal before the law.
 Everyone has inherent dignity and right to
have their dignity respected and protected.
 Everyone has right to freedom and
security of person.
 Every human being has a right to life.
 Every human being has a right to health;
food and social security.
 Children’s interests take precedence over any
other matter concerning children.
 The Constitution and health care:
Bill of Rights
 Everyone has a right to information held by
state or any other person required for
exercising or protecting any rights.
 Everyone has right to have access to
adequate housing.
 Everyone has right to live in non-harmful
environment.
 The state has a responsibility to protect these
rights.
 The state has a responsibility to provide basic
health care services.
 The South African Health System.
 Private and public health sectors.
 The National Health Act is central Act that regulate the
health industry, together with supporting statutes that
regulate various aspects of the health system.
 Most sections of NH Act have not been implemented, still
awaiting publication of their regulations.
 National Government is responsible for setting and
monitoring Health Policies, while provinces for
implementation.
 Public Health services are mainly provided by Provincial
governments, supported by local governments who play
a minor role.
 New developments: NHI, Tertiary (Academic) hospitals to
be managed by NDoH.
 Statutory framework for the
regulation of medical profession
 The medical profession is practiced within a
certain medico-legal framework - regulated by
certain laws, regulations, and ethical and moral
guidelines.
 Central Act governing the medical profession is
the Medical, Dental, Supplementary Health
Service Professions Act 56 of 1974, as amended,
which establishes the HPCSA.
 Parallel Act is the Traditional Health Practitioners
Bill / Act – establishes the Interim Traditional
Practitioners Council of SA i.e. ITPCSA
 Objectives of HPCSA.
 Promotes the health of the SA population.
 Determines standards of professional education &
training.
 Sets and maintains fair standards for professional
practice.
 Adjudicates any violations of minimum standard of
practice through disciplinary committees.
 Through Section 48 of HPA Act (as amended), to declare
certain types of deaths as unnatural deaths, i.e. - ‘death
of persons undergoing a procedure of a therapeutic,
diagnostic or palliative nature, or as a result of a
procedure of a therapeutic, diagnostic or palliative
nature, or of which any aspect of such a procedure has
been a contributory cause, shall not be deemed to be a
death from natural causes as contemplated in the
Inquests Act & Births and Deaths registration Act’.
 Acts regulating certain clinical and
forensic clinical examinations.
 National Health Act.
 Choice of Termination of Pregnancy Act.
 Children’s Act 38 of 2005.
 Aged Persons Act.
 Criminal Law (Sexual Offences) Amendment Act.
 Domestic Violence Act.
 Prevention of Family violence Act.
 National Road Traffic Act.
 Criminal Procedure Act.
 Births and Deaths Registration Act.
 And other laws playing minor role.
 Acts regulating performance of
Academic (Natural deaths) autopsies.
 National Health Act.
 National Health Laboratory Services Act
i.e. NHLS.
 Acts regulating performance of
forensic autopsies.
 National Health Act.
Provides for establishment of Forensic Services.
 Criminal Procedure Act.
 The Births and Deaths Registration Act.
 Inquests Act 58 of 1959.
 Section 48 of the Health Professions Act.
 Correctional Services Act.
 The Occupational Diseases in Mines and Works
Act.
 National Health Act.
 Main Act that regulate health Services in SA.
 The relevant provisions are:
1. It establishes & regulates all health services.
2. It regulates medical ethical conduct.
3. It establishes and regulates forensic services
and other services.
4. And many other functions including health
administration etc.
 Choice of Termination of
pregnancy Act 92 0f 1996
 First 12 weeks – upon request.
 13th to 20th weeks – risk to mother, fetus, rape or incest,
or social / economic circumstance of mother.
 After 20 weeks – endanger woman’s life, malformed
fetus or result in injury to fetus.
 Performed by MP except below 12weeks, and performed
in designated facility.
 Consent of pregnant woman only - irrespective of age.
 Mentally disabled persons – consent from guardian or
two MP.
 Children’s Act 38 of 2005.
 Section 110: Notification of suspected abused
and neglected children - Any person in the care
of children (a child) who suspect abuse or
neglect, must report accordingly to relevant
authority.
 Section 129: consent to medical and surgical
treatment of children less than 12 years -
Parent.
Absence of guardian – minister of health.
In emergency – Superintendent of hospital.
Special situations - High court or Children’s court.
The aged persons amendment Act.
 Similar to provisions of Section 110 of
Children’s Act 38 of 2005.
 Abuse must be reported to relevant
authorities.
 Criminal Law (Sexual Offences)
Amendment Act 2009.
 Sexual penetration – penetration to any
extent whatsoever.
 Sexual violation – direct or indirect
contact.
 This Act establishes a number of sexual
offences.
 Criminal Law (Sexual Offences)
Amendment Act.
 1. Rape.
 2. Compelled rape.
 3. Sexual assault.
 4. Compelled sexual assault.
 5. Compelled self-sexual assault.
 6. Compelling or causing persons 18 yrs or older to witness sexual
offences, acts or self-masturbation.
 7. Exposure or display of or causing exposure or display of genital
organs, anus or female breasts to persons 18 yrs or older (flashing).
 8. Exposure or display of or causing exposure or display of child
pornography to persons 18 yrs or older.
 9. Engaging sexual services of persons 18 yrs or older.
 10. Incest, Bestiality, and Sexual acts against corpse.
 Sexual Offences against children
 Statutory rape.
 Statutory sexual assault.
 Sexual exploitation of children.
 Sexual grooming of children.
 Exposure or display of or causing exposure or display of
child pornography or pornography to children.
 Using children for or benefiting from child pornography.
 Compelling or causing children to witness sexual
offences, sexual acts or self-masturbation.
 Exposure or display of or causing of exposure or display
of genital organs, anus or female breasts to children
(flashing).
 Sexual offences against persons
who are mentally disabled
 Sexual exploitation of persons who are mentally
disabled.
 Sexual grooming of persons who are mentally
disabled.
 Exposure or display of or causing exposure or
display of child pornography or pornography to
persons who are mentally disabled.
 Using persons who are mentally disabled for
pornographic purposes or benefiting therefrom.
 Sexual offence is deemed
committed if:
 No consent.
 Child under 12 years.
 Coercive circumstances e.g. use of force, threat, abuse
of power or authority.
 False pretences or fraudulent means e.g.
misrepresentation, false act, failure to disclose life-
threatening sexual illnesses.
 Performed under Circumstances where victim is
incapable in law to appreciate nature of act: asleep,
unconscious, in an altered state of consciousness, under
influence of drugs, mentally impaired person, or below
age of 12 years.
 A marital relationship, previous or existing, is not a
defence to a charge of sexual offence.
 National Road Traffic Bill 2021 – Status of Bill unknown
currently vs National Road Traffic Act 93 of 1996

 The National Road Traffic Amendment Bill 2021 prohibits alcohol consumption by all motor vehicle
operators on South African public roads by setting the legal blood-alcohol limit for drivers at 0%. This Bill
has not been approved by parliament.
 Section 65 of the principal Act is hereby amended— (a) by the substitution for subsections (2) and (3) of
the following subsections, respectively: ‘‘(2) No person shall on a public road— (a) drive a vehicle; or (b)
occupy the driver’s seat of a motor vehicle the engine of which is running, while [the] there is any
concentration of alcohol in any specimen of blood taken from any part of his or her body [is not less than
0,05 gram per 100 millilitres, or in the case of a professional driver referred to in section 32, not less than
0,02 gram per 100 millilitres]. (3) If, in any prosecution for an alleged contravention of a provision of
subsection (2), it is proved that [the] there was a concentration of alcohol in any specimen of blood taken
from any part of the body of the person concerned [was not less than 0,05 gram] per 100 millilitres at any
time within two hours after the alleged contravention, it shall be presumed, in the absence of evidence to
the contrary, that there was such concentration [was not less than 0,05 gram per 100 millilitres at the
time of the alleged contravention, or in the case of a professional driver referred to in section 32, not less
than 0,02 gram per 100 millilitres, it shall be presumed, in the absence of evidence to the contrary, that
such concentration was not less than 0,02 gram per 100 millilitres at the time of the alleged
contravention.] of alcohol in contravention of subsection (2).’’; and (b) by the substitution in subsection (5)
for the words following paragraph (b) of the following words: ‘‘while [the] there is any concentration of
alcohol in any specimen of breath exhaled by such person [is not less than 0,24 milligrams per 1000
millilitres, or in the case of a professional driver referred to in section 32, not less than 0,10 milligrams per
1000 millilitres].’’; and (c) by the substitution for subsection (6) of the following subsection: ‘‘(6) If, in any
prosecution for a contravention of the provision of subsection (5), it is proved that [the] there is a
concentration of alcohol in any specimen of breath of the person concerned [was not less than 0,24
milligrams per 1000 millilitres of breath] taken at any time within two hours after the alleged
contravention, it shall be presumed, in the absence of evidence to the contrary, that there was such
concentration of alcohol in contravention of subsection (5) [was not less than 0,24 milligrams per 1000
millilitres at the time of the alleged contravention, or in the case of a professional driver referred to in
section 32, not less than 0,10 milligrams per 1000 millilitres, it shall be presumed, in the absence of
evidence to the contrary, that such concentration was not less than 0,10 milligrams per 1000 millilitres at
the time of the alleged contravention]
 Criminal Procedure Act.
 Section 37(a): gives permission for police and
medical officials to perform certain acts on
accused for legal purposes e.g. age estimation,
ID, recovery of evidence, statutory examinations
of suspects.
 Section 37(b): gives permission for nurses and
medical practitioners to withdraw blood for
alcohol estimation in patients in hospital
suspected of criminal act.
 Section 4: medico-legal documents in affidavit.
Births and Deaths Registration Act
 Defines births and deaths and procedures to be
followed in respect of the following:
 Chapter III: Section 14, 15,16, 17,18,19,20 and
21.
 Section 14: Death due to natural causes
 Section 15: Certificate by medical practitioner.
 Section 16: Duty of Police officer on receipt of
certain information.
 Section 17: Death due to ‘other than’ natural
causes.
 Section 18: Still-births.
Births and Deaths Registration Act
 Section 19: Death outside the Republic.
 Section 20: Burial order
 Section 21: Burial register.
 Section 22: Issuing of death certificate.
National Health Act: Natural deaths
and autopsies.
 Section 66: Post-mortem examination of
bodies
1. Autopsy may be conducted if:
I. Person, while alive, gave consent.
II. A relative (spouse, partner, major child,
parent, guardian, major brother or major
sister – in that specific order) gave consent.
III. Such an autopsy is necessary for determining
the (NATURAL) cause of death.
2. Autopsy may not take place unless
authorised by authorised institution.
National Health Act: Natural deaths
and autopsies.
4. Tissue may not be removed if:
 It will affect outcome of autopsy.
 Tissue or body already been donated or
contrary to deceased’s wishes.
 Inquest Act.
 Objectives – all deaths due to ’other than natural
death’.
 Section 2 – when death happens: Report.
 Section 3 – Medico-legal investigation and
autopsies.
 Section 4. – Investigating Officer.
 Section 20, subsection 4 – no one may prejudice
or anticipate court findings.
 Section 21 – Arrests and criminal proceedings
can still occur, and when these are started the
Inquests proceedings must stop.
 Inquests Act.
 Other sections – Inquest Court procedures
and processes.
 Sect. 48 of Health Professions Act.
 The death of a person:
1. undergoing,
2. Or as a result of a procedure of a therapeutic ,
diagnostic or palliative nature
3. Or of which any aspect of such a procedure has
been a contributory cause
shall not be deemed to be a death from natural
causes as contemplated in the Inquests Act &
Births & Deaths Registration Act.
 For purpose of referral for medico-legal
investigation; it is irrelevant whether the patient
recovered or not from the anaesthetic.
 Inquest.
 Judicial officer – magistrate or judge.
 There is no accused.
 Object: investigate circumstance of death and record
following – identity, cause of death, date of death,
whether death brought by an act or omission involving
or amounting to an offence on the part of any person.
 In PRDS and so-called ‘medical negligence’ inquiries:
Court must establish following – Informed consent,
procedure necessary, screened before procedure, fit for
procedure, suitably prepare for procedure, suitable
anesthetic given, skill of anesthetist and surgeon,
emergency resuscitation anticipated, when emergency
developed was suitable resuscitation undertaken.
 Inquest
 Judicial officer may use assessors.
 Paper inquest and formal inquest.
 Report of findings of Inquest sent to DPP.
 Inquest.
 DPP may – institute criminal proceedings,
OR refer case to statutory body e.g.
HPCSA, OR departmental inquiry, OR take
no action OR confirm the Inquest
Magistrate’s findings OR refer case back to
Inquest Magistrate.
 Acts regulating performance of
autopsies in special circumstances.
 Occupational Diseases in Mines and Works Act
78 of 1973.
provides miners’ CR organs to be sent to NIOD.
Consent needed if natural death.
If unnatural, no consent needed.
 Correctional Services Act

 Correctional Services Act 111 of 1998.

provides for reporting of deaths of
prisoners dying of unnatural causes.
 Doctor-patient relationship.
 Legal Contract: no guarantee for cure, Doctor
may not depart, once therapy commenced
may not abandon pt.
 Dr has no duty to treat. Refusal to treat must
be legally, ethically and morally reasonable.
Dr cannot refuse to treat in emergency.
 Dr has no right to treat without consent,
 treatment without consent is only applicable
in statutory examinations, and in patients who
are very young or mentally ill.
 Consent.
 Definition: Permission given to medical
professionals to perform legal medical
interventions on patients, with pt’s full
understanding of benefits and reasonable risks.
 Types: Written, oral or tacit (consent by
conduct).
 Duty of Doctor to ensure a legal consent is
obtained.
 Dr may be charged with assault if no consent.
 Consent
 Informed consent – pt knows benefit and
material risks, and has consented to potential
harm.
 Dr must give pt info: nature, scope, costs &
administration requirements, importance,
consequence, risks & dangers, disadvantages,
prognosis and alternatives to proposed
intervention.
 Dr has duty to warn patient about material risks.
 Dr has no duty to warn about remote risks.
 Dr has diagnostic and therapeutic privilege not
to disclose some information to patient if such
action will affect pt and her chance of recovery
negatively.
 Consent.
 Tacit consent should not be overstretched
i.e. serious treatment or operation need
written consent.
 Spouses can consent independently, but
in some situations the other spouse’s
permission may be sought.
 The court will not order medical treatment
against the will of the patient.
 Consent in cases of minors.
 Consent by parent or guardian.
 Consent to termination of pregnancy by
minors allowed irrespective of age
according to ‘The Choice of termination of
Pregnancy Act’
 Consent by Minister of Health.
 Consent by medical superintendent.
 Minors in institutions, and prisons.
 Consent in emergency.
 If patient cannot give consent e.g. shock
unconscious or intoxicated, Treatment can
be given in the interest of necessity.
 Necessity is not applicable in cases where
the patient, in full control of his senses,
refuses medical treatment unless the
community is at risk e.g. COVID-19.
 Other statutory provisions:
 Examinations without consent: statutory
examinations (Accused, drunk driving, etc).
 Duty to report certain clinical cases and deaths
to authorities: Notifiable illnesses, child abuse,
abuse of aged, Termination of pregnancy,
admissions and treatment in health institutions
without consent, psychiatric patients, maternal
deaths (NCCEMD), ‘other than natural’ deaths,
occupational diseases and injuries (NCOD).
 Confidentiality.
 Information obtained in a pt-Dr interaction is
confidential.
 Information can be given to third parties if:
1. Instructed by a court of law.
2. Act of parliament.
3. Ethical and moral obligations.
4. With patient’s consent.
 Outside of parameters given above, breach of
confidentiality is unlawful.
 HIV/AIDS: Medico-legal aspects.
 Criminal and or civil liability for infecting
others.
 Disclosure mainly to endangered third
parties.
 No Discrimination.
 HIV not a notifiable disease.
 HIV/AIDS: medico-legal aspects.
 Disclosing the HIV status of deceased persons
is allowed :
1. In death certificates.
2. As a result of court order.
3. In the interest of public.
4. If given to endangered third parties.
 Disclosure unlawful if given to insurance
companies or done without consent of relatives
or executor outside the circumstances above.
 Ethical guidelines for Medical
Practitioners.

 HPCSA regulations and guidelines, information

booklet available are:
1. B2 – Generic Ethical rules.
2. B3 – National Patients’ rights charter.
3. B6 – Guidelines on overservicing, perverse
incentive and related matters.
4. B58 – General Ethical guidelines for
biotechnology research.
5. B9 – Research, development and use of
chemical and biological weapons.
 Ethical guidelines for Medical
Practitioners.
6. B10 – Seeking Patients’ informed consent –
ethics.
7. B11 – Confidentiality; protecting and providing
information.
8. B12 – Ethical guidelines for good practice with
regard to HIV.
9. B13 – Guidelines for the withholding and
withdrawing of treatment.
10. B14 – General Ethical guidelines for
reproductive health.
11. B15 – Guidelines on keeping of pt records.
 Ethical guidelines for Medical
Practitioners.

 SAMA guidelines - Doctors’ and Patients’

Rights and Responsibilities.
 SAMR guidelines in research – five booklets.
 WHO ethical guidelines.
 International oaths, declarations, vows and
codes, e.g.
1. Hippocratic oath.
2. Declarations of Geneva, Helsinki and Tokyo.
3. International code of Medical Ethics etc.
 Medical Professional associations etc.
Medical evidence, Professional and
Expert witness.
 Subpoena.
 Punctual and formally dressed.
 Take an oath – to tell the truth.
 State qualifications and work experience.
 Presiding officer – Judge is my lord, and
magistrate is Your worship, Advocates /
attorneys are Sir or Madam.
 Give objective medical facts / evidence.
 All opinions given must be in your area of
expertise.
 CONCLUSION.
 Medicine is practiced under very strict regulatory
framework (deals with human life).
 Medical Practitioners should be aware of all statutes,
ethical guidelines, regulations and policies governing
their areas of practice.
 No medical practitioner has a right to examine, or treat a
patient.
 Lack of ‘Record keeping’ is inexcusable in law.
 All medical practitioners should assist in the
administration of justice if/when requested.