Search

The purpose of this article is to address the questions as to whether a criminal conviction of a healthcare practitioner should affect his or her professional standing, and whether such conviction constitutes ‘unprofessional conduct’ in terms of the Health Professions Act. The article also explores a related matter, namely whether the Health Professions Council of South Africa (HPCSA) has a legal duty to refer complaints regarding unprofessional conduct that displays criminal elements for criminal prosecution. After considering relevant case law on these issues, the article concludes that a practitioner, after being convicted of an offence, should be afforded an opportunity to explain him- or herself to the board, not only in extenuation of the conduct in question, but also in response to the question of whether the conduct constitutes improper or disgraceful conduct. Moreover, the article explains why the HPCSA and professional boards have a legal duty to refer matters of unprofessional conduct with criminal elements in terms of section 34 of the Prevention and Combating of Corrupt Activities Act to law enforcement agencies.

Private medical aids are essentially non-profit organisations that aim to deliver speedy treatment and should prevent members from unexpected, out of pocket expenses for medical care. However, although the latest statistics show that 16.2% of individuals in South Africa were members of medical aid schemes, making the promise of private healthcare accessible to a small percentage of the population, they are not without their own unique set of challenges. The restrictions that exist within the private sector have a direct bearing on the types of healthcare services patients can access, which in turn impacts on the fundamental right to access healthcare. Using a recent High Court Case decision, this article seeks to explore whether there is justice in the provision of healthcare services, specifically within the private sector in South Africa.

IntroductionRecent HIV key populations (KP) surveillance studies in South Africa, including female sex workers (FSW) and men who have sex with men (MSM), demonstrate the disproportionate burden of HIV they bear compared to the general population. The national response for KP has lagged due to relatively scarce KP data focused narrowly on urban areas. We adopted a participatory data triangulation approach with stakeholders to overcome the challenges of KP program planning in KP data-scarce districts. Here we describe our methodology for achieving consensus on population size estimates (PSE) and treatment cascade indicator estimates derived from FSW and MSM surveillance data and applied across the country.MethodsThe South African National AIDS Council (SANAC) convened the group; technical advisors from the University of California San Francisco (UCSF) facilitated; and stakeholders from government, non-government, academic, and KP-led advocacy organizations involved in program implementation and research provided input through three in-person meetings covering four phases of work: surveillance data analysis; cascades data extraction; presentation for feedback; and data extrapolation.ResultsTechnical advisors presented eight cascades (three FSW, five MSM) to stakeholders, recommending data-informed extrapolation factors for each population. Stakeholders adopted recommendations by consensus with few adjustments. FSW cascades displayed high awareness of HIV status and steep breakpoints towards ART uptake; MSM cascades displayed less HIV status awareness, but relatively good ART uptake, with metropolitan areas displaying better uptake than rural districts.ConclusionThe participatory process enabled KP stakeholders to vet disparate data sources against programmatic experience and recommend consistency in cascades data; participatory triangulation of additional surveillance and program data will follow. The considerable time and resource investments in this process had downstream benefits, including consistency in sub-national HIV implementation plans. We recommend this consensus-based approach as a transparent, consistent, and sound methodology for cascades construction in KP data-scarce environments.

The debate over whether there should be a property or non-property approach with regard to human tissue is only the tip of the iceberg, because the issues involved are very complex, reflecting profound considerations on the nature of the self and the structuring of society; the balance of power between the citizen, the government and commercial interests; and human beings' perceptions of themselves and their bodies. This article responds to a publication by Donrich Jordaan titled 'Social justice and research using human biological material: A response to Mahomed, Nöthling-Slabbert and Pepper' in the July 2016 SAMJ. The original article to which Jordaan's critique refers and that provides the source for his response appeared in the South African Journal of Bioethics and Law in 2013, titled 'The legal position on the classification of human tissue in South Africa: Can tissues be owned?'. It is our contention that Jordaan's critique is based on a misinterpretation of the issues raised relating to the ownership of human tissue, an issue extensively debated in the academic sphere for many years. Jordaan's critique focuses on selected aspects of the original article and draws unjustifiable inferences from these. The purpose of this article is to contextualise Jordaan's critique and reaffirm the validity of the arguments made in the original article in 2013. There are, however, certain aspects of Jordaan's critique that we as authors of the original article acknowledge and appreciate in the spirit of academic discourse.

Litigation involving social media is still very new in South Africa and only a few reported cases can be found. In this case discussion, a brief overview is given of the few cases already reported, but in the main the case of Isparta v Richter 2013 6 SA 4529 (GP) is discussed. In this case a South African court for the first time awarded damages to the plaintiff for defamatory comments made on Facebook. The questions that confronted the judge were whether the alleged defamatory statements did indeed relate to the plaintiff and whether the comments, individually or collectively, could be considered defamatory. The issue whether the "tagging" of another user of Facebook makes that user liable for the defamatory comments of the tagger is also addressed in the case. The case discussion concludes with a reference to other issues that could play a role in litigation involving Facebook, namely the Electronic Communications and Transactions Act 25 of 2002 and foreign law.

This article explores issues relating to discrimination against persons living with albinism, against the background of colour discrimination. It also addresses calls for ‘colourism’ to be recognised as a distinct form of discrimination. Although colour as grounds for discrimination is prohibited in the equality clause of the Constitution, it is conventionally grouped with race and ethnicity when unfair discrimination is interpreted. We argue that discrimination against persons living with albinism should be possible based on colour as a prohibited ground, independent from race or ethnic considerations.

Many medical practitioners in private practice use a locum tenens when they themselves are not available to practice. The locums are often appointed without consideration of the legal consequences or requirements. Legislation distinguishes between an employee and an independent contractor. If the locum is appointed as an employee the doctrine of vicarious liability comes into play which is not the case with an independent contractor. Contracts currently available to appoint a locum give the contracting parties a choice between being appointed as an employee or an independent contractor; this should be changed in that all locums should be appointed as independent contractors especially if the working of the Consumer Protection Act is also taken into consideration. Furthermore, according to the rules of the Health Professions Council of South Africa (HPCSA) the onus to ensure that the locum tenens is registered and fit to practice, rests with the principal.Keywords: Locum tenens, employee, independent contractor, vicarious liability, private practice, reality test.

The introduction of no-fault or strict liability by the Consumer Protection Act 68 of 2008 (CPA) poses serious problems in the health care context. With a patient as a consumer' in terms of the CPA, health care practitioners may find themselves as suppliers' or retailers' as part of a supply chain, and potentially liable for harm and loss suffered by a patient in terms of the new no-fault liability provision. The claimant (patient) can sue anyone in the supply chain in terms of this provision, which places the health care practitioner who delivered the care in a very difficult position, as he or she is the most easily and often only identifiable person in the supply chain. Although the causal link between the harm suffered by the complainant will still need to be established on a balance of probabilities, the traditional common law obstacle requiring proof of negligence no longer applies. The article argues that this situation is unsatisfactory, as it places an increasingly onerous burden on certain health care practitioners.

Currently any organ donation in South Africa, whether from a living or a dead donor, is donated altruistically, which means that it is the free choice of the donor or the family of the deceased to donate organs. There is no financial compensation for the donor. Nearly all religions support altruistic organ donations as it serves or promotes life. But, despite the positive attitude of the followers of different faiths towards organ transplantations, there is a worldwide shortage of transplantable organs, especially kidneys. Many patients die while waiting for a transplant organ from an altruistic donor. The question may therefore be asked whether the different religions should not also support the clamouring for the financial rewarding of an organ donor. In this article the emphasis is on the Christian and Muslim faiths to try and fathom their position in this regard. In conclusion, however, we argue that financial compensation to donors, as a general practice, should be allowed irrespective of religious arguments, as the decision to donate altruistically or to receive compensation is an expression of personal autonomy. Enige orgaanskenking in Suid-Afrika, hetsy n skenking van n lewende of n afgestorwe skenker, word tans op altruïstiese gronde gedoen. Dit beteken dit is die keuse van die skenker of die familie van die oorledene om n orgaan te skenk of nie. Daar is geen finansiële vergoeding vir die skenker nie. Byna alle ge-lowe regverdig altruïstiese orgaanskenkings, omdat dit lewens kan red en lewensgehalte kan verbeter. Ten spyte van die positiewe houding van die navolgers van verskeie gelowe ten opsigte van orgaanoorplantings, is daar steeds n wêreldwye tekort aan oorplantbare organe, veral niere. Baie pasiënte sterf terwyl hulle op n oorplanting wag. Die vraag kan daarom tereg gevra word of die verskillende gelowe nie die aandrang om finansiële vergoeding vir skenkers behoort te steun nie. In hierdie artikel val die klem op die Christen- en Moslemgelowe om hulle posi-sie in hierdie verband te probeer peil. Daar word tot die slotsom gekom dat n praktyk wat vergoeding aan skenkers toelaat moontlik moet wees, afgesien van godsdienstige beskouings daaroor, aangesien orgaanskenking n uitdrukking van persoonlike outonomiteit is. Dit is die uitdrukking van selfbeskikking wat aan 'n persoon die reg gee om self te besluit of hy/sy n orgaan altruïsties wil skenk of daarvoor vergoed wil word.