Medical Law

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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.
An examination of the availability and accessibility of health care services in the rural area of Shongweni.
(2004) Ntoa, Ntefeleng.; Singh, A.
The study examines the availability and accessibility of health care services in rural areas in relation to the right to health. The area that has been selected for the purpose of this study is the Shongweni area in the Province of KwaZulu - Natal. The area is situated on the border of Mpumalanga and Durban Region under the Outer - West City Council.
Justice and equity in the allocation of health resources for mental health in the eThekwini health district.
(2006) Phehlukwayo, S. M.; Joubert, Robin Wendy Elizabeth.
Aim The aim of the study was to establish if resources for health care were distributed in a manner which reflected justice and equity for people with mental illness at primary health care (PHC) level where mental health services were integrated into general health services. This was done by establishing if relevant South African health policy and legislation makes relevant provisions for the transformation of health care service in line with primary health care principles. Selected health care system delivery strategies were analysed to establish if these reflect justice and equity in the distribution of health resources within a particular health district. Finally, an appropriate workload criteria was used to establish how currently employed health personnel were allocated in terms of skill mix per population size within a selected health district. Methodology The study was conducted in eThekwini District in the Durban Metropolitan area. A combination of descriptive and analytic study designs were adopted using the Health Systems Research(HSR)l as the framework for the study. The descriptive component was used to set the context for the study. The analytic component was used to establish the causal link between mental health policy provisions and the current distribution of health resources. Human resource allocation was used as the indicator for mental health resource allocation.2 Simple random sampling method was used to select six sampling units of Primary Health care (PHC) areas from the sampling frame of three Sub-Districts which constituted eThekwini District; namely North, South and West Sub-Districts. Mental Health Policy and related Legislation was analysed to establish how these made provisions for resource allocations in mental health care. The South African Workload ratios from Rispel et.al. in WHO (2003) 3 were used to determine personnel allocation per level of care and per population size served. The distribution of personnel was calculated using the fulltime equivalent scale (FTE).4 The geographical location of health facilities was established from the District maps to determine the location of mental health personnel. Results At policy level, even though relevant health legislation makes specific provisions for the development, distribution and management of human resources, the literature review indicated that there are still gaps in policies for human resource production, distribution, management and health service delivery. At implementation level research findings indicated marked understaffing across all primary health care levels. Results also showed that the total number of currently employed health personnel in most sample PHC areas fell below the norm recommended for the population size. In addition, integrated primary health care service was mainly offered by one health discipline compared to the recommended personnel skill mix of eight health disciplines. On the other hand, there was also an underlying historical over-concentration of health facilities in urban-based areas compared to rural based areas.
DNA profiling as a means of establishing paternity in South African law.
(1994) Singh, Divya.; Zaal, Frederick Noel.
The pathetic cry 'Who is my father?' has been asked time and again the world over. Discovery of paternity, linked as it is with the processes - legal and scientific - of establishing the alleged father's relationship on a balance of probabilities is a very real problem in the field of family law in South Africa. Blood tests have proved to be one aid in its solution. However, the application of such tests carry with them their own specific difficulties, most notable from the point of view of the lawyer is the extent of the authority of the court to order such tests, the interpretation of the test results and the role and emphasis that should be given to the results of the blood tests in the final determination of each case. Lawyers have to be wary and avoid falling into the trap of the layman who has the distinct tendency to accept unquestionably anything backed by scientific authority.
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 implementation of HIV/AIDS policies in primary schools in the Umgeni North ward.
(2008) Nagesar, Narendranath.; Raniga, Tanusha.
The 2003 UNESCO report indicated that the HIV/AIDS pandemic contributes to rapid breakdowns of existing structures that traditionally took care of the development of young children. There must be strategies to provide support, care and guidance to young children, families, parents and care givers that are directly or indirectly affected by HIV/AIDS. This is classified as interventions at the local level. There must be a conducive policy environment that allows safety nets and strategic interventions to take place, to grow and be inclusive (UNESCO, 2003:18). The death of parents and other family members leave children in a vulnerable state, some of whom enter the school system and are at the mercy of others. School based HiV/AIDS policies and programmes are necessary to protect these children. A two phase research design incorporating quantitative and qualitative methods was utilized in this study. The first part of this study was quantitative (audit of HIV/AIDS policies in 23 schools) and the second was qualitative, which comprised 2 focus group interviews. Findings from the quantitative audit from phase one of the study indicated that while primary schools attempted to comply with the National Schools policy on HIV/AIDS (DoE 1999), policy formulation, policy involvement, policy implementation (action plan) and policy review have not been conducted as per policy directives. Four major themes and various sub-themes emerged from the phase two qualitative focus group interviews with participants from two primary schools. Process of policy formulation and implementation, school based HIV/AIDS action plans, support mechanisms and challenges emerged as the factors associated with the formulation and implementation of school based HIV/AIDS policies in the Umgeni North Ward. Much of the phase one data is triangulated with data from phase two, hence the triangulated methodology. This study confirmed that in some schools, a fragmented relationship between the important stakeholders exists. This leads to the needs of those infected and or affected by the epidemic being treated in a vacuum. Hence, other intervention strategies are necessary. Institutional resources (educator support teams, funding, human resource and school nurse) as well as working closely with other departments are support mechanisms that can assist schools where children are infected and affected by the epidemic. In light of this, HIV/AIDS related problems pose a dilemma for educators to handle. Educators feel insecure as a result of lack of training, lack of support, poor policy directives and a lack of support mechanisms in the school environment to deal with HIV/AIDS related problems in the school context.
Gendered sexual vulnerabilities in the spread of HIV/AIDS : Clayfield (Phoenix) as case study.
(2007) Chetty, Parvathie.; Reddy, Vasu.
This dissertation focuses on how important factors such as gender inequalities and gender vulnerabilities contribute to fuelling the spread of HIV/AIDS. The study focuses on a community in Phoenix, called Clayfield. The study examines aspects of masculinity, sexual relations, socio-economic vulnerabilities and domestic violence and demonstrates how these elements predispose women and girls to HIV infection. As a result of gender inequalities and imbalances, women are vulnerable to HIV infection. The study also explores how risky behaviour, by both men and women, can escalate women's vulnerability to the disease. The central argument engages discussion on crucial issues around gender imbalances and vulnerabilities. The study concludes with recommendations pertinent to challenging present gender-based initiatives and interventions, and suggests possible gender-sensitive strategies that could assist in curbing the spread of the disease.
The Influence of Government policy of sentences in Magistrates' courts : as reflected in sentences relatng to certain sections of the Immorality Act 23 of 1957, dealing in and possession of dagga in contravention of the Abuse of Dependence-producing Substances and Rehabilitation Centres Act 41 of 1971 and the Stock Theft Act 57 of 1959.
(1987) Dlodlo, Andreas.; Newman, Ellie.
No abstract available.
The nature and scope of the problem of identifying unidentified bodies at medico-legal mortuaries in South Africa : a medico-legal perspective.
(2007) Naidoo, Poonithavathi.; McQuoid-Mason, David Jan.
In South Africa, the high rate of violent deaths, the lack of proper identification documents, and internal migration within the country stemming from the previous socio-political dispensation of society, has led to a high incidence of unidentified human bodies being found, a large proportion of which are skeletal remains, mainly of indigent Black persons. The low incidence of dental records, especially in disadvantaged, rural populations adds to the failure of identification. Without positive identification of individuals, an inquest or criminal case cannot succeed. In routine post mortem practice, only broad groupings of identity are recorded before disposal of remains. The basic rights of these deceased individuals to be properly identified with regards to police investigations and other legal, religious and cultural requirements are disregarded. Further, a large number of persons are reported missing on a daily basis in the country, some never to be found. This study suggests that national legislation be developed to allow for the administration of affairs in respect of missing persons and unidentified bodies, with regulations under this to provide for the mandatory preservation and storage of all medical and radiological records, a national policy and a national plan of action be established to deal with the burden of missing persons and found bodies, and the establishment of a central database of records of unidentified bodies and missing persons. The study also reviews the strengths and weaknesses of available human identification techniques that can be used to facilitate the identification of bodies, and by use of a case report, proposes to demonstrate to the South African Courts that frontal sinus radiographic identification comprises a useful, rapid and inexpensive method as an application in forensic science that can be compared to the individuality of fingerprints, and serves as a reliable additional method in establishing human identity.
The application, efficacy and relevance of existing public health legislation.
(2003) Mazibuko, Sitwell Jabulani.; Reddi, Managay.; Buthelezi, Michael Celemusa.
No abstract available.
Evaluating HIV/AIDS life skills programme : the case of Umbumbulu schools in KwaZulu-Natal.
(2005) Mbatha, Nelisiwe Joyce.; Geyevu, Samuel Agbeko.
No abstract available.
The world trade organization's trade agreements : a legal analysis of their impact on access to antiretroviral drugs and the human right to health/life in Zambia.
(2012) Pemba, Christine Mabvuto.; Mneney, Edith.
This dissertation has been motivated by the prolonged deficiency of access to advanced regimens of Antiretroviral drugs(ARVs) and efficient health services by people living with HIV/AIDS (PLWHA) in Zambia, a least developed Member of the World Trade Organisation (WTO). Zambia‘s reality of dire provision of health services particularly essential medicines persists despite the urgent need for sustainable access to ARV drugs in poor African countries worst affected by HIV/AIDS, having been accentuated in the international declaration on Trade Related Aspects on Intellectual Property Rights (TRIPS) and Public Health. Furthermore, under international human rights law of treaties, access to medicines including ARV drugs, has been recognised as a core component of the right to health and or life which needs to be progressively realised by governments, even in the advent of globalisation of domestic health services including provision of medicines. Whilst the Zambian government has highlighted lack of funds as the foremost impediment to efficient supply of health services particularly essential medicines. Conversely the WTO has pronounced lack of legal adoption of a plethora of flexibilities envisaged in its relevant international agreements by most poor Members, as the foremost impediment to fostering efficient public health service delivery including access to ARV drugs and therapy for PLWHA. Thus to assist in ascertaining whether the issue of deficient access to ARV drugs as a health service is as a result of legal unpreparedness in poor countries specifically Zambia; or whether it is due to provisions in the WTO trade agreements that foster globalisation of health services through liberalised trade in services and pharmaceutical patent protection of essential drugs. This dissertation will analyse the WTO‘s multilateral trade agreements and their legal impact on access to ARV drugs as a health service and a human right to health in Zambia. The foregoing analysis will be conducted through a desk review of literature on the subject, making use of paper and electronic sources.
The right of access to health care services and the quality of care afforded to rural communities in South Africa within the confines of the state's resources.
(2001) Khumalo, Nondumiso Beatrice.; Nadasen, Sundrasagaran.; Mubangizi, John Cantius.
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.
The health needs of sex workers in the context of HIV/AIDS susceptibility : a legal perspective.
(2012) Baillache, Sheri-Leigh.; Perumal, Devina Nadarajan.
No abstract available.
Access to affordable life-saving medicines : the South African response.
(2012) Joseph, Coral Jade.; Vawda, Yousuf Abdoola.
Patent protection grants the patent holder with a market monopoly, free from market competition allowing the patentee to charge any price; therefore medicines are sold at prices much higher than the marginal cost of production and distribution. The connection between international trade and intellectual property has aggravated human rights and public health concerns surrounding the inaccessibility of essential medicines. The World Trade Organisation‘s Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement is an international instrument which has greatly impacted intellectual property rights protection and access to medicine. It has globalized intellectual property law by obliging all Members to subscribe to the minimum international standards of protection for intellectual property. South Africa is an example of the issues faced whilst attempting to bring their domestic laws into compliance with the Agreement. The government had to attempt to strike a balance between creating an effective intellectual property infrastructure whilst realizing the therapeutic needs of those affected by HIV/AIDS. The South African Patents Act 57 of 1978 did not comply with the Agreement and was subsequently amended in order to bring its patent legislation in full compliance with the Agreement. Currently, South Africa grants patents for new uses or formulations of existing medicines consequently lengthening the period of patent monopoly by allowing pharmaceutical companies to obtain new patents for slight modifications to existing medicines. It is submitted that South Africa‘s patent legislation is more extensive than is necessary under international law, examples of this being disclosure standards and the process for compulsory licensing. In addition, it has not made use of provisions in its existing law to take measures to improve access to essential medicines, nor has it implemented legislative amendments consequent to the flexibilities established in the Doha Declaration. This dissertation seeks to review the steps South Africa has taken in its compliance with the TRIPS Agreement with respect to the relevant intellectual property legislation that has been enacted, including its implications for access to essential medicines. The intention behind this dissertation is to assess the efficacy of the intellectual property legislation in South Africa and its impact on access to medicines.
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 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.
A critical review of torture legislation in South Africa.
(2014) Tularam, Ashwin S.; Naidoo, S.R.
The practice of torture is an affront to human dignity. Freedom from torture is an absolute human right. Laws that violated human rights and entrenched racial divisions characterized the apartheid era in South Africa. However, the transition from a repressive state to a democratic one, gave “birth” to a Constitution characterized by fundamental human rights, social justice and open democratic societal values. In order to have any real meaning, the human rights enshrined in the Constitution and various National and International instruments, needs to be realized in everyday life. These rights are valuable in that they provide the tools to empower victims, or rather, survivors of torture and other cruel, inhuman and degrading treatment. A Criminal Justice System that focuses on victims’ rights and empowerment has the ability to transform the current maze that one must navigate to access justice. In keeping with its obligations as a signatory in 1984 to the UN Convention against Torture, South Africa has 29 years later, in 2013, passed in its parliament the first Legislative Act creating the specific offence of torture. This paper critically appraises the current state of legislative and other provisions in the light of South Africa’s position against torture and analyses its fresh new law with the objective of establishing how effective these measures will be and what future recommendations are required for reinforcing its prevention.
Walking the tightrope : creating an ethical-legal framework for health research with children : balancing child protection and participation with the facilitation of appropriate health research.
(2013) Strode, Ann Elaine.; Vawda, Yousuf Abdoola.
Abstract not available.

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