Please read the abstract (Summary) in the section 21backb of this document / Thesis (LLD (Private Law))--University of Pretoria, 2007. / Private Law / LLD / unrestricted

published_or_final_version / Law / Doctoral / Doctor of Philosophy

The aim of this study was to document the safeguards inherent in the Mental Health Act (MHA) of 1973, and to examine the extent " to which these are observed in practice. The research was conducted at Lentegeur Hospital in Mitchells Plain, Cape Town. The population consisted of 726 certified patients who were admitted involuntarily (i.e. under sections 9 and 12 of the MHA) from 01 January 1990 to 31 December 1990. Data for each of these patients was collected from the admission register, clinical files, administrative files, and the certified post book. In addition, the official hospital statistics were examined. Measurements obtained included demographic data, the validity of the document contents, the validity of the certification process, and an overall measure of the validity of each of t he certifications taking into account both document contents and observance of the time strictures set out in the MHA. Twenty nine patients (4,0%) were admitted by Urgency (Section 12), and 697 (96,0%) on Reception Order (Section 9). The study focused mainly on the Section 9 patients, because of the small sample size for Urgency admissions. It was found that 609 (87,4%) of the 697 admissions were legally flawed in terms of document contents criteria and the time limits in the certification process. Document content criteria were not fulfilled in: 3,0% of the Applications for Reception Order; 32,1% of Medical Certificates; 20,1% of Reception Orders; and 3,6% of Reports to the Attorney-General. In 40,0% of certifications the Report to the Attorney-General (G2/28) could not be traced. Examination of temporal safeguards revealed that the least satisfactory aspect was the delay in the completion of the post-admission Report to the Attorney-General. It was found that 32,3% of these Reports were not submitted on time. Reasons for the discrepancy ("gap") between legal standards and actual practice are discussed. Recommendations are made which could help minimise or eradicate this "gap". These include suggestions for changes in the document format, for the use of a certification booklet, for stricter control of late and inadequate documentation, and for inservice training of all those involved in the certification process. / Thesis (M.Med.)-University of Natal, Durban, 1993.

Thesis (M.Tech.: Emergency Medical Care)-Durban University of Technology, 2007 xiv, 116 leaves / The Professional Board for Emergency Care Practitioners (PBECP), a division of the Health Professions Council of South Africa, regulates the scope of practice and publishes guidelines and protocols that advanced life support (ALS) practitioners are required to follow. These define an acceptable, standardised approach to each commonly encountered emergency. Non compliance with the guidelines and protocols regularly occurs, which could impact on the quality of care delivered and may result in further injury or death of the patient. This study investigated the reasons for non-compliance by ALS practitioners and explored how compliance could be improved.

Thesis (M.Tech.: Emergency Medical Care)-Durban University of Technology, 2007 xiv, 116 leaves / The Professional Board for Emergency Care Practitioners (PBECP), a division of the Health Professions Council of South Africa, regulates the scope of practice and publishes guidelines and protocols that advanced life support (ALS) practitioners are required to follow. These define an acceptable, standardised approach to each commonly encountered emergency. Non compliance with the guidelines and protocols regularly occurs, which could impact on the quality of care delivered and may result in further injury or death of the patient. This study investigated the reasons for non-compliance by ALS practitioners and explored how compliance could be improved.

The fastest growing field of law is undoubtedly that of Medical Law with the civil and disciplinary cases flowing from it. Globalization, international communication, development and evolution of Law as well as Medicine, cause this worldwide rising medical litigation. Humanitarian rights, post-modern scepticism and even iconoclastic attitudes contribute to this phenomenon. Medico-legal litigation and disciplinary complaints rise (in South Africa) up to 10 per cent per year. To assist the courts and legal profession, in medico-legal issues, helping the parties where the plaintiff has the burden of proof and the defendant for rebuttal, a medical expert witness must be used. The dilemmas and pitfalls arise, in that although knowledgeable medical experts could be used to guide the courts to the correct decision, the lack of a legal mind setting, court procedure and legal knowledge could affect the relevance, credibility and reliability, making the medical evidence of poor quality. The legal profession, deliberately, could “abuse” medical expert witnesses with demanding and coercion of results, which have unrealistic and unreasonable expectations. “Case building” occurs, especially in the adversarial systems of law, making the medical expert vulnerable under cross-examination, when it is shown that the witness has turned into a “hired gun” or is unfair. Thus, lacunae develop, making reasonable cases difficult and a quagmire of facts have to be evaluated for unreasonableness, credibility and appropriateness, compounded by the fact that seldom, cases are comparable. The danger is that the presiding officer could be misled and with limited medical knowledge and misplaced values, could reach the wrong findings. Several cases arguably show that this has led to wrongful outcomes and even unacceptable jurisprudence. The desire to “win” a case, can make a medical witness lose credibility and reasonableness with loss of objectivity, realism and relevance. With personality traits and subjectivity, the case becomes argumentative, obstinate and could even lead to lies. The miasmatic, hostile witness emerges, leading to embarrassing, unnecessary prolongation of court procedures. The medical expert witness should be well guided by the legal profession and well informed of the issues. Medical witnesses should have legal training and insight into the legal and court procedures. At the time of discovery of documents, via arbitration or mediation, medical experts should strive to reach consensus and then present their unified finding, helping the parties fairly and expediting the legal procedure and processes. / Private Law / LLM

University of Macau / Faculty of Law

The fastest growing field of law is undoubtedly that of Medical Law with the civil and disciplinary cases flowing from it. Globalization, international communication, development and evolution of Law as well as Medicine, cause this worldwide rising medical litigation. Humanitarian rights, post-modern scepticism and even iconoclastic attitudes contribute to this phenomenon. Medico-legal litigation and disciplinary complaints rise (in South Africa) up to 10 per cent per year. To assist the courts and legal profession, in medico-legal issues, helping the parties where the plaintiff has the burden of proof and the defendant for rebuttal, a medical expert witness must be used. The dilemmas and pitfalls arise, in that although knowledgeable medical experts could be used to guide the courts to the correct decision, the lack of a legal mind setting, court procedure and legal knowledge could affect the relevance, credibility and reliability, making the medical evidence of poor quality. The legal profession, deliberately, could “abuse” medical expert witnesses with demanding and coercion of results, which have unrealistic and unreasonable expectations. “Case building” occurs, especially in the adversarial systems of law, making the medical expert vulnerable under cross-examination, when it is shown that the witness has turned into a “hired gun” or is unfair. Thus, lacunae develop, making reasonable cases difficult and a quagmire of facts have to be evaluated for unreasonableness, credibility and appropriateness, compounded by the fact that seldom, cases are comparable. The danger is that the presiding officer could be misled and with limited medical knowledge and misplaced values, could reach the wrong findings. Several cases arguably show that this has led to wrongful outcomes and even unacceptable jurisprudence. The desire to “win” a case, can make a medical witness lose credibility and reasonableness with loss of objectivity, realism and relevance. With personality traits and subjectivity, the case becomes argumentative, obstinate and could even lead to lies. The miasmatic, hostile witness emerges, leading to embarrassing, unnecessary prolongation of court procedures. The medical expert witness should be well guided by the legal profession and well informed of the issues. Medical witnesses should have legal training and insight into the legal and court procedures. At the time of discovery of documents, via arbitration or mediation, medical experts should strive to reach consensus and then present their unified finding, helping the parties fairly and expediting the legal procedure and processes. / Private Law / LLM

Medical negligence is a growing concern within South Africa.1 The medical environment has great potential for conflict, because even the best trained physicians can commit errors that result in medical disabilities and sometimes in death.2 The conflicts that follow from these errors are mostly fuelled by emotions and they can become very expensive and time-consuming to settle using the litigation process.3 There is a growing recognition that alternative dispute resolution (ADR) systems in healthcare may alleviate some of the financial and psychological burdens on doctors and patients involved in medical negligence disputes. Mediation is a method of ADR that is flexible and it permits the parties to the dispute to have control over the resolution. A typical medical negligence dispute is driven by intensely emotional factors on the part of injured patients. Victims are not merely seeking financial compensation but they are also looking to understand the circumstances that brought on the event at hand. They want closure. A huge issue with regard to medical negligence litigation is the manner in which the claims are resolved. Litigation provides injured patients and caregivers with a traditional platform for addressing medical negligence claims. However, due to many reasons, this system seems not to be adequate for dealing with disputes arising from alleged medical negligence. Mediation offers a promising solution to the problems surrounding redress of medical negligence disputes. / Jurisprudence / LL. M.