The Bill of Rights enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom. The state must respect, protect, promote and fulfil the rights in the Bill of Rights. Every human being on earth has the right to life. In general, the state's positive and negative duties are set out in section 7(2) of the Constitution of South Africa, which requires the state to respect, protect, promote and fulfil all human rights. The Constitution of the Republic of South Africa adopted and in 1996 is the supreme law of the land and supersedes all other laws in the country. The main key to having a more eloquent and fulfilling governing system is to align it with the Constitution. This is empirical to developing and implementing health law and policy, which regulates in at least five important ways: • It regulates the structure of government. • It regulates the way in which various branches of government operate. • It sets out the framework for raising taxes and allocating revenue. • It guides the content of all laws and policies, primarily through the Bill of Rights. • It regulates the role of government and non-state actors such as private corporations in realising the right of access to health care services. Furthermore, it emphasizes that every person has the right “to have access to health care services, including reproductive health care”. / Mini Dissertation (LLM)--University of Pretoria, 2019. / Public Law / MPhil / Restricted

It has been suggested by some commentators that the ‘real’ damage (as opposed to that pleaded) in the cases of Rees v Darlington Memorial Hospital NHS Trust [2004] 1 AC 309 and Chester v Afshar [2005] 1 AC 134 was the claimant’s lost autonomy. Arguments have consequently been put forward that lost autonomy either already is or should be recognised as a new form of actionable damage in medical negligence cases. Given the value placed on respecting patient autonomy in medical law and bioethics, it might be thought that such a development should be welcomed. But if lost autonomy is accepted as a new form of damage in negligence, it will not be confined to the two scenarios that were present in those cases and it may be inconsistent with other established negligence principles. This thesis considers whether lost autonomy ought to be recognised as a new form of damage in negligence and concludes that it should not. A close textual analysis of Rees and Chester is undertaken in order to determine whether a ‘lost autonomy’ analysis actually provides the best explanation of those two cases. I then look at how the concepts of autonomy and harm should be understood to determine whether, ethically speaking, to interfere with someone’s autonomy is to cause them harm. The final part of the thesis considers important doctrinal tort law considerations that have been overlooked in the medical law literature. I argue that the nature of autonomy means that it cannot coherently be considered actionable damage within the tort of negligence and that recognising a duty of care to avoid interfering with people’s autonomy would be inconsistent with the restrictive approach the courts take to recovery for psychiatric injury and economic loss. My ultimate conclusion is that the benefits of allowing such claims do not outweigh the undermining of established principles that would ensue if lost autonomy were recognised as a form of actionable damage in negligence.