Browsing by Author "McQuoid-Mason, David Jan."

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Apart from medical emergencies, when is it justified for gynaecologists, and obstetricians to deviate from informed consent without reverting back to their patients?
(2018) Naidoo, Loshinee.; McQuoid-Mason, David Jan.
Medical care relies on a bond of trust between the patient and caregiver and on the patient’s ability to make free and informed choices, to understand and guide the course of their care. Informed consent is the foundation of this trust, ensuring that the patient is adequately informed so as to best understand their options and decide their treatment path. Informed consent is an express legal mandate granted by a patient to a healthcare practitioner after consultation. The patient relies on the provided information when choosing to accept, reject, or seek to modify a proposed intervention. The patient is protected by Statutes that dictate the manner in which informed consent must be obtained, requiring that relevant information be provided in such a way that the patient understands the nature, intended effect, and risk or consequence associated with the intervention. In many cases, it must be established if the patient has the legal capacity to consent or not. This research topic will consider how proper enforcement of informed consent practices, procedures, and the implementation of current policies and rules in gynaecology and obstetrics may prevent cases of gross negligence, unlawful assault or the compromising of patient rights under the Constitution, the common law and specifically, the criminal law. The study aimed at: 1. Investigating under which circumstances, despite current legislation, policies and procedures, health practitioners choose and still adopt a paternalistic approach towards patients in their care in the field of gynaecology and obstetrics, which leads to deviations from the requirements of informed consent; 2. Obtaining explanations for cases where doctors, particularly in gynaecology and obstetrics, neglect patient autonomy and the need for informed consent, and are seen to deviate from their ethical and legal obligations, and actively make decisions that properly belong to the patients.
A black market perspective on organ trafficking : suggestions for possibly preventing the illegal organ trade.
(2012) Doodnath, Arvitha.; McQuoid-Mason, David Jan.
No abstract available.
A comparative analysis of the legal status of cryopreserved embryos, resulting from in-vitro fertilisation, for the purpose of custody issues during divorce proceedings.
(2014) Moodley, Kamini.; McQuoid-Mason, David Jan.
The process of cryopreservation of embryos is a relatively new concept in the field of in vitro fertilisation (IVF) treatment. South African law is silent on the manner in which these cryopreserved embryos should be disposed of; in instances of divorce. During the course of this paper, comparisons will be made between South Africa and countries that have already dealt with custody disputes of these cryopreserved embryos during divorce. The United States of America (USA); Unoted Kingdom (UK) and Australia are countries that have already dealt with these issues in their courts. The analogies made between these countries and South Africa will illustrate the deficiencies in South African law. The USA, UK and Australia will also be compared with each other to demonstrate which country has the most accurate approach in dealing with these matters. To this end, cases that have been dealt with in each of the countries’ jurisdictions will be examined and critiqued. The validity of surrogacy agreeements, both under the common law and under the Children’s Act 38 of 2005 (The Children’s Act), will also be discussed. The purpose of this discussion is to comment on the similarities between surrogacy agreements, and embryo disposition agreements, and argue that laws similar (to those regulating surrogacy agreements) should be promulgated to govern and regulate embryo disposition agreements. The submission that I will make in conclusion is that in the event of not enacting legislation to specifically govern embryo disposition agreements, the legislature should amend the Children’s Act to include the regulation of embryo disposition agreements. The amendment of the Childrens Act is the most practical approach to remedy the lacuna.
Constitutional reform in Africa: positioning the new constitutional court of Zimbabwe in the transformation of civil and political rights.
(2019) Tembo, Simbarashe.; McQuoid-Mason, David Jan.; Singh, Annette.
This thesis investigated the prospects of the transformation of civil and political rights through the courts in Zimbabwe. The arguments made were based on the concepts of transformative adjudication and transformative constitutionalism as contemplated by Karl Klare. The adoption of a new Constitution in 2013 and the subsequent establishment of the Constitutional Court as the highest court in Zimbabwe made this study necessary. It is argued that the Constitution adopted in 2013 is transformative and the courts must ensure that the hopes and aspirations of the people embodied in the Constitution are realised. This argument is based on the understanding that there is a lack of political will to drive transformation through political or other legislative processes. Zimbabwe’s constitutional history was explored to make a case for transformation. Therefore, the views of scholars on constitutional transformation and transformative adjudication were considered. It was observed that court-led transformation would be an ambitious project given the volatile political situation in Zimbabwe where the denial of civil and political rights is used as a tool for silencing opposition and maintaining power by the political elite. It may be ambitious, but not impossible, for the Zimbabwean judges to take the lead on the transformation of civil and political rights. Lessons were drawn from the discussions of the South African Constitutional Court, and the Kenyan Supreme Court to carve a path for judiciary-led transformation. The study recommended a change of attitude and interpretative methods by Zimbabwean judges. The thesis also recommended that whilst engaging in judiciary-led transformation, judges should consider other adjudication methods to avoid conflict with the political arms in Zimbabwe.
A critical analysis of exclusionary clauses in medical contracts.
(2013) Ramkaran, Tasveera.; McQuoid-Mason, David Jan.
Exclusionary clauses in South Africa have thus far been interpreted narrowly by the South African Courts. It has been accepted that where a patient enters into a medical contract/agreement with a hospital that includes a clause excluding the hospital and its employees from any form of liability whether negligently or not, the patient has no form of recourse against the hospital for any damages caused except that caused by gross negligence; the hospital will be absolved of any form of liability. The term caveat subscriptor applies – “let the signer be aware” that he/she is bound by the agreement signed by him/her whether or not it was read and understood. The leading case in South Africa dealing with exclusionary clauses in medical contracts is Afrox Healthcare Limited v Strydom. Since that decision the Consumer Protection Act has came into existence. My research question involves determining the impact an exclusionary clause would have, when analysed in terms of the provisions of the Consumer Protection Act with particular reference to its applicability and enforcement in medical/hospital contracts. The Afrox case has in itself been a controversial decision, with many legal writers of the opinion that the principles laid down by the case need to be overturned as the judgement is not in line with public policy. It is argued that with the Consumer Protection Act in place, it can be assumed that exclusionary clauses in medical/hospital will no longer be valid. The Act is a step in the right direction towards patient/consumer protection and awareness.
Developing and applying a constitutional rights-based approach to the regulation of the modifiable risk factors for noncommunicable diseases in South Africa.
(2022) Karim, Safura Abdool.; McQuoid-Mason, David Jan.
Non-communicable diseases (NCDs) caused by unhealthy diet, contribute significantly to South Africa’s burden of disease and are preventable. Policies and laws offer an evidence-based mechanism improve diet and prevent NCDs. However, the adoption of these measures is complex, often facing opposition from many actors. To address these challenges to the adoption of these interventions, scholars have looked to develop human rights-based (HRbased) approaches to the prevention of obesity and diet-related NCDs. These approaches have the advantages of supporting and guiding government action on NCDs, holding various actors accountable and providing a means to manage the competing rights implicated in NCD prevention efforts. However, to fully realise the benefits of an HR-based approach to NCDs, there is a need to anchor the approach in context-specific rights married with concrete and enforceable obligations. This thesis seeks to develop an HR-based approach to NCDs under the rubric of the South African Constitution. Often the right to health or the right to food can form the basis of an HR-based approach to NCDs. However, the peculiarities of section 27 of the Constitution require that the content of these rights be further developed to encompass NCD prevention, particularly where the interventions sit outside the healthcare system and are not biomedical in nature. This thesis explores and develops the content of the right to healthcare and the right to sufficient food to identify obligations that could support action on NCD prevention. Recognising that NCD prevention interventions may limit individual rights, this thesis then explores the relationship between public health and HR through the lens of colliding rights and section 36. Since many NCD prevention interventions may be novel, there arise implications for the section 36 limitations analysis. This thesis therefore addresses the application of section 36 analysis to novel NCD prevention interventions, outlining the kinds of considerations influencing whether the limitation of rights by a public health intervention can be found to be justifiable. This thesis with recommendations on how this HR-based approach may be used in South Africa to prevent NCDs.
Dignity in death and physician-administered euthanasia: the South African journey so far and likely journey in future.
(2021) Omodan, Olayinka Olayemi.; McQuoid-Mason, David Jan.
Although the acceptance of physician assisted suicide and euthanasia has gained acceptance in some countries with different safeguards, it is still not accepted in South Africa either by omission or commission. Some of the arguments for euthanasia are to relieve patients of extreme pain and it protects the dignity of terminally ill patients, who do not wish that their lives be devalued. The major arguments against the practice are based on perspectives from moral, religious and ethical views. This research examined euthanasia and its position in South Africa and other countries. It also studied how the Constitution in relation to the request for physician assisted suicide protects the right to life, the right to human dignity of persons and respect for patient’s autonomy among others. Its aim is to further promote public awareness on the topic. The research was achieved by reviewing literature. The law in South Africa accepts the practice of passive euthanasia which includes the withdrawal or withholding of life sustaining medications where the physician feels that the treatment if continued would be futile. In such case, the doctor is free from criminal liability. Also, they will not be liable when they dispense pain relieving drugs which may later cause the death of a critically ill patient. The stand in South Africa is not static since a patient is permitted by law to stop or refuse the continuation of a life prolonging treatment even if it could lead to his or her death. The few recommendations from the South African Law Commission are yet to be looked into by the Parliament and this has caused a huge setback on reaching a final conclusion about the legality of the practice in South Africa. In cases regarding euthanasia or physician assisted suicide, the courts have decided that each case should be determined by its own merits. The courts have also shifted the responsibility to decide on the topic to the Parliament, being the representative of the people. This has poised a great threat. Result has shown that physician-administered euthanasia, though not legalised in South Africa is not strange to the practice and the courts could be approached. It is an infringement of a person’s dignity not to allow a suffering terminally ill person to be euthanased by their doctor to alleviate their unbearable suffering.
Do the words ‘a public official or other person acting in an official capacity’ in s 3 of the Prevention and Combatting of Torture of Persons Act 13 of 2013 conflict with s 12(1)(d) of the Constitution of the Republic of South Africa?
(2017) Larkin, Marc Jonathan.; McQuoid-Mason, David Jan.
No abstract provided.
The doctrine of informed consent and mandatory testing for HIV : legal and ethical implications.
(2014) Naidoo, Amanda.; McQuoid-Mason, David Jan.
This paper investigates the doctrine of informed consent and mandatory testing with reference to the legal and ethical implications for HIV. The doctrine of informed consent is entrenched in South African law through the constitution, legislation and the common law. The doctrine provides that medical treatment can only be administered to a person if he has given informed consent according to certain requirements. These requirements have also been endorsed in the rules of medical professional bodies. The doctrine of informed consent is applied to testing for HIV and the rules to be followed when a person is tested for HIV. Recognition is given to the fact that there are exceptions to informed consent. These exceptions are examined, one of them being mandatory testing. Mandatory testing is an exception to informed consent where the rights of a third party stand to be infringed. Due to the high HIV infection rate in South Africa, this paper examines whether there is a need to implement legislation for mandatory testing for HIV without the option to opt-out. Focus is placed on the need for testing with an opt-out option for all persons requiring medical treatment. This has to be done in the context of the constitution, legislation and the common law. The impact that a mandatory testing policy may have on the freedoms and rights of the patient, is also investigated such as the right to privacy, confidentiality, and bodily integrity. This paper concludes that South Africa has the highest rate of HIV infection in the world and exceptionalism, poor uptake of voluntary counselling and testing and extensive informed consent rules have hindered progress in the fight against HIV/AIDS. This paper recommends opt-out testing for all persons requiring medical treatment, a multi-layered approach to HIV testing and a simplified informed consent process without compromising patient autonomy. The introduction of new laws for mandatory testing for HIV is not recommended as it is a violation of a person‟s constitutional rights and freedoms.
The doctrine of therapeutic privilege and its place in South Africa.
(2014) Appana, Kerina.; McQuoid-Mason, David Jan.
Therapeutic privilege is an exception to informed consent and used as a defence when the doctor decides to withhold relevant medical information from the patient, because they are of the opinion that such disclosure could harm the patient. This study explores and provides a critical evaluation of the defence of therapeutic privilege since the boundaries and the practical application in the South African legal system are uncertain, resulting in many gaps in the law that require attention. Thus it is unclear as to when the defence is legally justified. A comparative investigation is undertaken and various arguments springing from ethical and legal disciplines are also incorporated from which pertinent principles, requirements and recommendations are suggested. There are a number of submissions, but the main submission is that the doctor must look for alternatives before resorting to therapeutic privilege. If all fail, then he/she can resort to the use of therapeutic privilege as a last resort. However the reason for non-disclosure must fall within the precise best interest standards stipulated and the physician must satisfy certain requirements to justify the invocation of the defence in order to escape liability. The defence of therapeutic privilege will only be legally justified when the above principles and requirements are met.
E-Mail privacy : does the government have the right to intercept and or monitor private e-mail communications?
(2003) Majola, Zanele Precious.; McQuoid-Mason, David Jan.
Section 14 of the Constitution provides for the right to privacy, which includes the right not to have the privacy of communications infringed. The right is also protected at common law - a breach of a person's privacy constitutes an iniura. E-mail communications are therefore protected by both, the common law and the Constitution. The question that this work seeks to answer is, whether the Government has the right to intercept and/or monitor private e-mail communications. The right to privacy is not absolute, case law and legislation show that this right can be limited. At common law, a valid defence will negate the unlawfulness of the invasion. In terms of the Constitution, the right to privacy can only be limited in accordance with the limitation clause section 36. For each case, courts will have to balance, the government's interest in combating crime and that of the citizen to the privacy of their e-mail communications. In seeking to answer the question, this work considers the protection afforded by the common law and the Constitution. It also considers statutes which limit the right to privacy, including whether these statutes are applicable to e-mail communications and if they are, whether they constitute a justifiable limitation of the right, for example: the Regulation of Interception of Communications and Provision of Communication-Related Information Act and the Criminal Procedure Act - which was enacted when the 'cyber-world' was non-existent. All statutes, applicable to e-mail communications, provide for some form of requirements or guidelines before communications can be intercepted or/ and monitored. The right to privacy is also protected in foreign jurisdictions and is not absolute. There is protection only against unreasonable invasions of privacy. In conclusion, both statutory law and common law permit the government, within limitations, to intercept or/ and monitor private e-mail communications. Where there are guidelines, regulating this power, the circumstance under which and when it can be exercised. This will amount to a reasonable and justifiable limitation and therefore the right will not be violated.
Electronic health records : what measures health professionals can take to protect patient data?
(2017) Mohanlal, Rakesh.; McQuoid-Mason, David Jan.
Electronic health records use in South Africa is limited. Globally, increased efforts are being made to digitalise medical records into one interoperable system.. Due to the nature of the transmission and storage of such confidential information via electronic means, the issues of privacy, informed consent and the security of such systems have given rise to legal-ethical debate. Other issues such as ownership of such records and their security have not been entirely resolved. However, in both South Africa and internationally, it is accepted that negligent or unlawful disclosure of confidential medical information can violate a person’s right to privacy and impair their dignity. The use of electronic means has been implicated in changing the doctor-patient relationship by adding business efficiencies such reliability, accuracy and speed. Other issues include whether additional contracts are required between the stakeholders when electronic health records and electronic means are used. Contractual terms such as the use of exemption clauses and the legal implications of use thereof need further consideration. Health records are an ancient art that has transcended into a contemporaneous record that can include various digital and electronic elements. Developed countries such as the United States of America and United Kingdom have more experience in the use of electronic health records systems and their associated security than places like South Africa. The academic literature thus focuses on the legal and ethical implications of electronic health records in these developed countries. A brief comparative analysis was undertaken of a few selected medical professional bodies in the United States and United Kingdom. A comprehensive evaluation was conducted of South African statutory law in relation to the use of electronic health records. The Tshalabala-Msimang case that discussed the theft and publication of health records provided the foundation for the development of measures for the use of electronic health records in South Africa. An evaluation of the Cybercrimes and Cyber Security Bill assisted in advocating a model of measures that can be employed when electronic health records are used.
Equality before the law and access to justice in criminal proceedings under a bill of rights.
(1994) Nkutha, Mathobela Shadrack.; McQuoid-Mason, David Jan.
This work seeks to critically examine the right to legal representation in the South African criminal justice system under a future constitutional dispensation. Extensive attention has been given to how the right to legal representation has been interpreted under the common law. Reference has been made to the united States 6f America's approach to the due process and equal protection clauses in shaping the substantive and procedural content of the right to counsel in criminal proceedings. The importance of legal representation is examined during the pre-trial, trial and sentencing stages of criminal proceedings. A brief comparative examination has been made of the right to legal representation in other foreign jurisdictions, and how the courts have dealt with indigent accused persons facing criminal charges. Proposals from different quarters in South Africa have been discussed in the hope that these proposals may still find a place in the country's final constitution. Finally, the practical implications of a qualified right to free legal representation as provided by the Interim South African Constitution is discussed. Suggestions are also made concerning the approach to be adopted by the courts in the face of judicial precedents which would be in conflict with a new value system under a Bill of Rights after 27 April 1994.
Food labelling legislation.
(1990) Lakhani, Chaya Pranlal.; McQuoid-Mason, David Jan.; McGill, A. E. J.
Food labelling serves to (a) inform consumers about the attributes of a food product so that they can make rational and well-informed choices; (b) assist manufacturers in marketing their product; and (c) warn consumers about the inherent risks of certain products, or ingredients in the product. The costs of labelling products fully and informatively are borne by consumers, but the benefits of labelling outweigh the costs. To understand the role of labelling in an regulatory system it is vital to consider the arrangement of the provisions protecting consumers generally before considering food laws and the labelling regulations. Furthermore, due to food being an international product, it is necessary to consider foreign countries and the manner they go about in protecting consumers. The United Nations, under the auspices of the Food and Agriculture Organization (FAO) and the \Vorld Health Organization (WHO), established a Joint FAO/WHO Food Standards Programme, called "Codex Alimentarius". The aim of the programme is to establish standards that can be used internationally to narrow the gap between developed countries and developing countries. To establish a standard various organs of the Codex Alimentarius are consulted. In addition, the standards have to comply with a prescribed format and follow a specified procedure. For the standard to be observed the member country has to incorporate the standard into its domestic laws. One of the advantages of the Codex Alimentarius is that the procedure to establish a standard is flexible. Australia, United Kingdom and the United States of America are member of the Codex Alimentarius. Australia, a federation of states, protects consumers by legislating either state and/or Commonwealth laws. Often there is a combination of statutes. Examples of subjects that are governed by both Commonwealth and states include false or misleading trade practices, and weights and measures. Commonwealth laws only deal with the freedom of information. Food laws are governed exclusively by state legislation. A significant area for future reform is uniformity of the state food laws. There are also other areas for future reform (eg date marking). England and Wales protect consumers by enacting statutes that relate to private and public rights. The important Acts that protect public rights are the Trade Descriptions Act, Weights and Measures Act, Consumer Protection Act, Fair Trading Act and Food Act. One of the provisions of the Criminal Courts Act is to protect personal rights when a consumer suffers personal injury, loss or damage as a result of the offender committing an criminal offence. Food labelling is governed by regulations, that are progressive. A fundamental criticism of the legislation and regulations is the lack of appropriate enforcement of the laws. The enforcement of most of the above Acts is delegated to the local weights and measures authorities. A further complication is the United Kingdom's membership of the European Economic Community. The United States of America enacts federal and state legislation. In protecting consumers in respect of food, it enacts federal legislation. The important Acts include the Fair Packaging and Labelling Act, the Meat Inspection Act, the Poultry and Poultry Products Inspection Act and the Federal Food, Drug and Cosmetic Act. The United States government also encourages openness, with regards to its public agencies, by creating the Freedom of Information Act. The class action is an innovative remedy established in terms of the Civil Procedure Act. The enforcement of food laws is delegated to the Food and Drug Administration (FDA). The protection afforded by the United States government is complex and sophisticated. Its laws serve as model for many countries. The common law of South Africa has limited value in safeguarding consumers. Consumer protection arise mostly by way of legislation and regulations. Consumers are protected generally by the Measuring Units and National Measuring Standards Act, Trade Metrology Act, Trade Practices Act and Harmful Business Practices Act, Standards Act, Dairy Industries Act and the Marketing Act. Consumers are protected against harmful and injurious foodstuffs by the Foodstuffs, Cosmetics and Disinfectants Act, and the regulations promulgated in terms of the Act. There are several problems with the laws, eg lack of enforcement, lack of consumer awareness and education, and so on. An analysis of the foreign countries discussed in Part II result in the indication of twel ve themes. Part III examine the twelve themes and present solutions. Some of the solutions are based on comparisons with foreign countries discussed in Part 11. The main issues that need to be addressed in the short-term are the lack of consumer education and problems of enforcement of consumer protection. Long-term issues include the feasibility of introducing a department of consumer affairs and the provision of statutory civil remedies for consumers.
Food legislation in third world countries : a case study of Zambia.
(1998) Nakazwe, Mbita.; McQuoid-Mason, David Jan.
Advances in the food industry have made food consumption increasingly complex. Varieties of foodstuffs that are available to consumers each day are on the increase. It is therefore essential that legislation in place ensures the heal th of unsophisticated consumers, in the face of a sophisticated food industry. The need for food safety legislation is even more crucial to Third World countries where literacy levels are low, poverty levels high, and chronic food shortages, prevalent. An important question that any developing country has to address is how it can better equip its food control system within its own limited resources? Does the answer lie in an increase in the amount of food safety legislation? Or in the improvement of enforcement mechanisms? This thesis investigates the existence and effectiveness of food safety legislation in typical Third World countries and for this purpose, Zambia has been chosen as a particular case study. The aim of the study is to analyse the existing legal framework and to assess the effectiveness of its enforcement. This has been done by way of library research and personal interviews. The Internet also proved to be a valuable research tool. From the findings of the study it is clear that although there exists within the country a legal framework controlling food quality and safety, the same requires urgent amendment and more effective enforcement. It was realised from the findings of this study that the situation that currently obtains in Zambia can only be left unattended at the nation's peril. It is imperative that legislation in operation is made more effective especially with regard to food imports where a notable lacuna exists. The enforcement of legislation is another area that desperately requires reform. The solution to the problem of food safety in Zambia does not lie in advocating an increase in the quanti ty of legislation but rather in its quality. There is a need to increase consumer awareness through food safety and quality consumer education programmes and the active participation of consumer groups in matters of food safety and control. Overcoming the problem of food safety requires the concerted efforts on the part of all key players, the government, industry and consumers themselves.
The future of clinical legal education in Lesotho : a study of the National University of Lesotho's legal education and its relevance to the needs of the administration of justice in Lesotho.
(2002) Letsika, Qhalehang A.; McQuoid-Mason, David Jan.
No abstract available.
Gender reassignment surgery : medical issues and legal consequences.
(2000) Dhai, A.; McQuoid-Mason, David Jan.
Gender reassignment procedures are performed for the treatment of the gender dysphoria syndrome (transsexualism). Although this modality of treatment is therapeutic in nature and therefore not contra bonos mores, the legal status of the post-operative transsexual remains that of his/her previous sex. The purpose of the gender reassignment procedures is that of acceptance within the community as a person of the sex indicated by his/her changed appearance. Nothing will be achieved by the successful completion of treatment if the person's changed sexual appearance is not recognised by the law as a change in sexual status as well. The law, by keeping aloof of the problem of the post-operative transsexual, has created a legal "vacuum" where there is social and judicial acceptance of reassignment procedures, but a refusal to give legal effect to the change in status that the transsexual obsessively desires and the operation simulates. This work will analyse the medical issues associated with gender reassignment procedures. The legal status of the transsexual after reassignment procedures will be explored, and in doing so, the human rights violations with which such people have to contend, will be highlighted. The constitutionality of the lack of a legal recognition of the post-operative transsexual's sexual status will be examined. It will be shown that there are compelling reasons for legislation to be introduced as a matter of urgency to safeguard the fundamental rights of the post-operative transsexual.
Human cloning : separating science from fiction : the ethics and legality of human cloning.
(2002) Matisonn, Lynn Joy.; McQuoid-Mason, David Jan.
No abstract available.
The Law of privacy in South Africa.
(1977) McQuoid-Mason, David Jan.; Lund, James Robert.
No abstract available.
The medico-legal and ethical issues surrounding the creation of a human embryo.
(2001) Reddy, Nilam,; McQuoid-Mason, David Jan.
No abstract available.