Sufficient informed consent to medical treatment of adults legal and ethical perspectives from Malawi

This special communication discusses the current legal and ethical requirements for informed consent to medical treatment of adults in Malawi. It analyzes the scope of the laws and code of ethics on professional discipline, including criminal privilege for surgeries and clarifies when insufficient disclosures entitle patients to compensation under civil law. Inconsistencies and uncertainties in the law are made apparent. It evaluates to which degree disclosure standards of other Commonwealth jurisdictions (e.g. the case of Montgomery) would be suitable for the health care setting of a country like Malawi that is characterized by shortages of resources, high illiteracy rates and a communitarian cultural context. Doctor-patient communication is not alien to African culture and part of sufficient informed consent. In order to balance the need for efficiency in health care delivery, accountability for quality care, fairness and effective patient-doctor communication the authors suggest to adopt the reasonable patient test only, if a defence of heavy workload on case-to-case basis is introduced at the same time. This does not dispense the need for organisational diligence on part of the institutional health care provider within its capacity

A Bioética global e os direitos humanos para o desenvolvimento sustentável / Global Bioethics and human rights for sustainable development

Tomar decisões criticamente fundamentadas entre o que podemos fazer e o que devemos evitar, ou o que é melhor fazer quando surgem alguns dilemas,é crucial para o discernimento ético e político. A legitimidade das decisões humanas sobre as aplicações da ciência e da tecnologia para promover a vida, a saúde e o bem-estar dos povos é possível graças à cooperação internacional e à protecção do direitocomo instrumento de protecção e garantia do bem comum, da dignidade e bens fundamentais da pessoa, isto é, o que chamamos de direitos humanos. A Bioética Global propõe uma articulação adequada entre as questões bioéticas e os direitos humanos como paradigma ético universal que deve ser levado em consideração nas decisões, públicas e privadas, no campo das ciências da vida e da saúde. O desafio ético e político é saber como equilibrar ointeresse legítimo da indústria por lucros e o desenvolvimento econômico com inovação científica e tecnológica prudente e para o bem das pessoas e comunidades. O reconhecimento mútuo está na base da relaçãoque nos permite dar a cada um o que é seu e promover a convivência pacífica na nossa casa comum. Se realizada de acordo com os imperativos morais de solidariedade e justiça, atentando para a minimização das distâncias entre pobres e ricos e entre as regiões Norte e Sul Global, a ciência e a tecnologia contribuirão para o desenvolvimento humano de forma eficaz e eticamentesustentável.

Making critically informed decisions between what we can do and what we should avoid, or what is best to do when some dilemmas arise, is crucial for ethical and political discernment. The legitimacy of human decisions on the applications of science and technology to promote life, health and people's well-being is possible thanks to international cooperation and the protection of law as an instrument toprotect and guarantee the common good, dignity and fundamental goods of the person, that is, what we call human rights. Global Bioethics proposes an appropriate articulation between bioethical issues and humanrights as a universal ethical paradigm that should be taken into consideration in decisions, public and private, in the field of life and health sciences. The ethical and political challenge is how to balance the legitimate interest of industry for profits and economic development with prudent scientific and technological innovation for the good of people and communities. Mutual recognition is at the basis of the relationship that allows us to give each his due and to promote peaceful coexistence in our common home. If carried out in accordance with the moral imperatives of solidarity and justice, paying attention to minimizing the gaps between the poor and the rich and between the Global North and South, science and technology will contribute to human development in an effective and ethically sustainable manner

COVID-19: What should employers do if employed health professionals such as doctors and nurses refuse to treat COVID-19 patients despite being provided with the required personal protective equipment?

At some health establishments, doctors and nurses employed there are refusing to treat COVID-19 patients ­ even when they have been provided with the necessary personal protective equipment. Such conduct would appear to be in breach of the World Medical Association International Code of Medical Ethics, the International Council of Nurses Code of Ethics for Nurses, the Rules of Conduct of the Health Professions Council of South Africa (SA), the SA Nursing Council and some of the provisions of the SA Constitution and of the relevant labour legislation. Guidance is provided to employers on how to deal with the situation based on ethical and legal considerations

May a sample be legally removed or an autopsy undertaken without an advance directive or proxy consent to determine whether a critical care patient at risk of COVID-19 infection has died as a result of the virus?

It has recently been suggested that ethically and legally the obtaining of biological samples for research after death during the COVID-19 pandemic in South Africa justifies a waiver of consent followed by a deferred proxy consent. However, it is submitted that because deceased persons are not protected by the Constitution, and only partially protected by common law and statute law, such consent and the need for consent to autopsies may be dispensed with altogether under the common law doctrine of 'necessity'. It is pointed out that such information is in the public interest because it will inform critical care facilities on how to save lives of future patients and assist government in responding to the COVID-19 pandemic by adequate planning. It is also reasonably justifiable in the public interest to ascertain the COVID-19 status of deceased persons who may have been exposed to the virus, in order to protect their family, friends, healthcare practitioners, undertakers and staff members, and members of the public with whom they have been in contact. Finally, it is suggested that the law can be clarified by amending the Disaster Management COVID-19 regulations to do away with consent for such autopsies or tissue sample collections from deceased persons exposed to the risk of contracting the virus, subject to certain conditions

Criminalisation of transmission of SARS-CoV-2: A potential challenge to controlling the outbreak in South Africa

In March 2020, two cases of attempted murder were opened against people who had tested positive for COVID-19 and had not remained in quarantine. Criminal law has previously been used to criminalise intentional transmission of HIV in both South Africa (SA) and other countries. However, it has been found that criminalisation laws undermine public health and measures to control outbreaks by stigmatising those infected and deterring testing. This article explores whether SA's existing HIV criminalisation laws can be applied to the transmission of SARS-CoV-2, and the potential effect such measures could have on efforts to control the COVID-19 epidemic

CRISPR: Challenges to South African biotechnology law

Genome editing using newly discovered tools such as CRISPR-Cas9 offers the potential to modify the genetic make-up of plants, non-human animals and humans in exact ways. Such genetic modification can serve the purpose of correcting gene defects, and can enhance certain characteristics. Apart from reigniting old ethical debates, genome editing also poses a particular challenge to legal practitioners, as this new technology does not always fit into existing definitional moulds, and it lacks clear legal precedent. In this article, we identify the most salient areas of concern in the South African legal context

Legal responses to HIV and AIDS: lessons from Swaziland

Since 1999, the HIV and AIDS epidemic in Swaziland has been declared a national disaster, and today HIV and AIDS still pose a great threat to the survival and development of Swaziland and its people. The impact of the pandemic necessitated a multi-faceted response from the government. This paper critically evaluates the Swaziland legal response to HIV and AIDS. The objective is to assess whether and to what extent Swazi law addresses human rights issues related to HIV and AIDS. Through the application of a human rights based theory, the paper analyses the domestication of Swaziland's treaty commitments, and the constitutional and the statutory frameworks. The paper advances the importance of "law" as a tool that can create an enabling environment for a national response to HIV and AIDS. It analyses how the government has successfully crafted the normative framework so as to make it responsive to the fight against HIV and AIDS, and the shortcomings of the Swaziland legal system in this fight. The paper argues that even though a credible legal and policy environment is in place, some laws still need to be supplemented, reviewed and amended so that the legal system adequately addresses the human rights issues related to HIV and AIDS. The paper suggests improvements to the legal system which mainly relate to aligning the legal framework with the Constitution of Swaziland and international conventions to which Swaziland is party

Constitutional; Legal and Regulatory Imperatives for the Renewed Care and Prevention of Congenital Disorders in South Africa

Medical genetic services for the care and prevention of congenital disorders have declined significantly in recent years due to competing health priorities; with previously developed services becoming compromised. With an infant mortality rate of 28/1 000 live births; South Africa (SA) has passed the threshold of 40/1 000 when such services should be implemented. This article outlines the international background and SA legislative framework for medical genetic services and their implementation. International; regional and national conventions; legislation; and policy were studied for relevance to genetic services and their implementation was evaluated; including a comparison of sector capacity between 2001 and 2015. A comprehensive legislative and regulatory framework exists in SA for the provision of medical genetic services; but implementation has been fragmented and unsustained. Congenital disorders and genetic services are not prominent in national strategies and excluded from interventions aimed at combating child mortality and non-communicable diseases. Capacity today is at a lower level than in 2001. The failure to recognise the burden of disease represented by congenital disorders is the underlying reason for the implementation and service shortfall. Child mortality rates have stagnated since 2011 and can be significantly further reduced by prioritising healthcare issues other than HIV/AIDS; including congenital disorders. It is now an imperative that SA responds to World Health Assembly Resolution 63.17 and prioritises congenital disorders as a healthcare issue; providing services to uphold the dignity and human rights of the most vulnerable members of society

Boni Mores and Consent for Child Research in South Africa

Consent is required for almost all health research. In order for consent to be valid a number of requirements must be met including that the consent cannot be contra bonos mores or contrary to public policy. This principle has its roots in the common law and it is used to ensure that the consent to harm; or the risk of harm; is permitted or ought to be permitted by the legal order. Recently; it has also become a statutory requirement embedded in the consent obligations relating to non-therapeutic health research with minors. Section 71 of the National Health Act provides that the Minister of Health (or potentially his or her delegated authority) must provide consent to non-therapeutic research with minors. However; such consent may not be granted if 'the reasons for the consent to the research or experimentation are contrary to public policy'. Limited work has been done on how to determine when consent to health research with children would be contrary to public policy. This article attempts to begin the debate by describing the boni mores principle; setting out some of the general factors that could be used to assess whether consent is consistent with it and suggesting how they could be applied to health research.The article concludes by stating that simply requiring proxy consent for non-therapeutic health research with children is insufficient as it cannot always be assumed that proxy consenters will act in the best interests of the child. Thus the boni mores principle acts as a limit on autonomy in order to protect the child participant. It is further submitted that establishing when consent to health research is consistent with public policy requires an assessment of whether the research is consistent with constitutional values; prevailing legal norms regarding children; and an assessment of the legal convictions of the community

Laws and Regulations Associated with Ownership of Human Biological Material in South Africa

Ownership with regard to human biological material (HBM) is addressed to some extent within South African law; specifically in chapter eight of the National Health Act (NHA) and its associated regulations. However; members of the legal fraternity struggle to conceptualise ownership of such materials without objectifying a person or people and risking reducing such individuals to a state of property. This then infers a reduction in human dignity by rendering one-self or parts of that same self as a commodity. The complexity of the issue raises much debate both legally as well as ethically

Data-Protection Standards and Confidentiality of HIV/AIDS Status in the Workplace : a South African Case Study

The article contextualises an emerging new regime for information privacy in South Africa (i.e. the draft Protection of Personal Information Bill). Subsequently; it discusses the possibility of successful implementation of international data-protection standards in an environment where there is an urgent need to balance HIV/AIDS confidentiality rights with public health requirements. Also; the article presents a preliminary assessment of the possible impact of professionalisation (and outsourcing) of workplace HIV/AIDS management on workplace data-protection practices; and it identifies some spaces for social dialogue on HIV/AIDS-data treatment in South Africa. The study methods comprise an analysis of legal documents (concerning international data-protection standards and the development of law governing data protection and HIV/AIDS confidentiality in South Africa) and interviews conducted with workplace health managers and trade union representatives; in Johannesburg; in 2007

Sex Work; Reform Initiatives and HIV/AIDS in Inner-City Johannesburg

The on-going criminalisation of sex work in South Africa; concurrent sexual partnerships; socio-economic vulnerability; migrant status and gender-based violence intensify sex workers' risk of contracting HIV. These factors combine to restrict the skills; ability and resources of sex workers to negotiate safer sex and to access HIV prevention; treatment and healthcare services. The paper situates the living and working conditions of sex workers in Hillbrow; an inner-city area of Johannesburg; within the South African legal context; especially in regard to current law reform initiatives regarding sex work; as well as the increasing anxiety about the influx of (sex) tourists during the 2010 FIFA World Cup. In addition; the paper describes an intervention by the Reproductive Health et HIV Research Unit at the University of the Witwatersrand; Johannesburg; an innovator in providing mobile healthcare services and education to hotel-based sex workers in Hillbrow. The paper contends that a legal-rights-approach to HIV risk and vulnerability; together with powerful public health considerations; render decriminalisation an imperative response to sex workers' material conditions

Corneal Transplants - an Overview with an Emphasis on Legal Aspects and Current Scenario in Mauritius

A healthy cornea is an essential component of clear vision. Any condition that distorts the clarity of the cornea to a greater extent has to be treated by keratoplasty. This article discusses by large about the various aspects of corneal transplants like modes of storage and their legal aspects with an emphasis on the scenario in Mauritius

Liability for Medical Negligence in Nigeria

The paper discusses professional negligence of Medical Practitioners and other Medical allied staff in the light of the general law of Negligence; the Rules of Professional Ethics of Medical and Dental Practitioners in Nigeria; the decisions of the Medical and Dental Practitioners Disciplinary Tribunal (MDPDT) and of the Appellate or Superior Courts of Nigeria

Medical testimony in Nigerian courts

This paper focusses on medical testimony in Nigerian courts. It summarises the nature of the Nigerian legal process and how medical practitioners are expected to prepare for court appearance. Finally it discusses how they are to present their expert testimonies in court