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Medical Law

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Browsing Medical Law by Author "Botes, Wilhelmina Maria."

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    Affording patients the right to access experimental stem cell treatment: a comparative analysis of the legal and ethical consequences.
    (2021) Gosai, Yadhna.; Botes, Wilhelmina Maria.
    Despite revolutionary advances in the medical field, with specific reference to stem cell technologies and therapies, South African laws do not adequately address gaps that currently exist when it comes to legally accessing the various forms of experimental therapy. The Constitution of South Africa does make provision for the right to access health care, however most stem cell therapies are not yet approved or registered by the relevant authorities and can therefore not be considered as accessible health care. Patients are increasingly becoming aware of their rights when it comes to health care which may be partially linked to the advances in, and knowledge of medical professionals diagnosing and treating auto immune and other previously incurable diseases. While conventional treatments yield positive results, there are a number of incurable and novel diseases that cannot be managed with approved treatments. Stem cell therapies, currently still in its experimental phase have shown some great promise in treating and managing various diseases. The fact of the matter is that that access to such experimental therapies is limited. The rationale behind this is reasonable and justified. The safety and interests of patients are protected by numerous laws and ethical principles as such, if the safety and efficacy of medical treatments have not been clinically proven, it is not in the patient’s best interests to be subjected to such treatment. However, the principle of patient autonomy does support the position that a patient should be able to choose whether or not he or she wishes to be subjected to experimental medicines, such as stem cell therapies or not, on condition that they are fully informed about the risk and consequences of doing so. Against this background, other countries, such as the United States, have enacted laws to address the lack of access to potentially lifesaving treatments. Considering that the benefits of stem cell therapies are becoming more and more evident, access to these therapies whilst not yet fully clinically approved and registered as a medicine or therapy, should, in certain circumstances, be an option for those patients who have exhausted all legally available medicine and treatments without success. Laws that afford access to experimental medicine are seen as both controversial and progressive. A balance must therefore be struck between the individual patient’s right to access and his or her safety. Although expanded access programs have been around for a while, the restrictive nature of these programs often does not necessarily result in access to experimental therapies. It is important that there are viable, legal and ethical ways to access experimental stem cell therapies, whether through right to try laws or through expanded access programs.
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    A critical analysis of the South African government’s management and response to Covid-19 in the context of its constitutional commitments to its citizens based on the Social Contract Theory.
    (2021) Narismulu, Dhisha.; Botes, Wilhelmina Maria.
    Despite the South African Constitution having been promulgated to redress the injustices of the Apartheid regime by entrenching access to socio-economic rights, the government has failed in its responsibility to fulfil such rights. Such failings have been highlighted and heightened since the outbreak of the SARS-CoV-2 or Covid-19 where large portions of the South African population have been unable to comply with basic non-pharmaceutical measures. This is largely due to the inadequacies in access to water and sanitation, food and nutrition, healthcare and adequate forms of education. A syndemic approach to the fulfilment of socio-economic and other rights, as well as public health emergencies may avoid such shortfalls. This is due to the approach considering more than just the biological factors. A syndemic would also consider socioeconomic concerns, looking at sociobehavioural issues, the physical environment, socio-marginalisation issues and government policies The South African government should take their responsibility of realising socio-economic rights and other human rights as stipulated in the Constitution, seriously, and accordingly adequately respond to ongoing public health concerns such as the human immunodeficiency virus and tuberculosis epidemics and any future public health outbreaks.
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    A critical examination of the State Liability Amendment Bill (2018) and its implications for medical negligence litigation in South Africa.
    (2021) Yenkanna, Huben.; Botes, Wilhelmina Maria.
    Medical negligence litigation in South Africa is an ever-growing problem that places a great burden on public hospitals and threatens their ability to render health care services. The number and monetary value of these claims against the State have reached alarming levels. The causes of this increase in claims are multifactorial, but they appear to follow a similar global trend of increasing medical negligence litigation. While other countries have developed legislation to deal with this problem, South Africa has yet to pass legislation to solve the problem. The State Liability Amendment Bill (2018) aims to make changes that would help mitigate the financial burden arising from this litigation against the Department of Health. The Bill’s provisions appear to favour the State at the expense of compromising the rights of victims of medical negligence. These provisions include replacing lumpsum payments in favour of periodic payments and having public healthcare facilities render future medical care instead of awarding monetary damages. So far, the State Liability Bill has not been kindly received by various legal commentators, and it is unlikely to withstand the inevitable constitutional scrutiny it will face if passed. The recent Constitutional Court ruling in Member of the Executive Council for Health, Gauteng Provincial Government v PN obo EN (Member of the Executive Council for Health, KwaZulu-Natal Provincial Government and other as Amici Curiae) [2021] JOL 49995 (CC) will allow for greater use of the Public Healthcare Defence and Undertaking to Pay Defence which will help lessen the financial impact of successful claims against the Department of Health. This will allow the State more time to give greater thought and consideration into making the State Liability Amendment Bill a fairer proposition for all parties involved in medical negligence litigation.