The Constitution of South Africa outlines the way in which the country should be run and lays down different levels of government and their powers. Most importantly it sets out a list of human rights in the Bill of Rights. These rights belong equally to all individuals. Stigmatization and discrimination of people on the basis of their HIV status is a violation of their basic human rights. In South Africa a person can have his or her rights upheld in court if they are violated or threatened by an individual or institution (whether the state, private company or any other organization). Enforcing the rights of people living with HIV/AIDS and/or their families, as well as countering and redressing discriminatory action, is a matter of accessing existing procedural, institutional or other resources that comprise the societal gains of democracy. However, the biggest challenge currently has to do with ordinary people's lack of awareness about their rights, and this pertains particularly to those millions of South Africans living with HIV/AIDS. This study sets out to examine the knowledge levels of para-legals currently advocating for the rights of people living with HIV/AIDS and/or their families in KwaZulu Natal. With an infection rate estimated to be in the region of 36% of the adult population, it is essential that providers of legal advise and advocacy in this province have sound grasp of HIV/AIDS issues. It should be noted that this study attempts to move beyond a documentation of knowledge by exploring what such para-legals perceive their actual needs for more effective management of HIV/AIDS to be. The study seeks to make recommendations towards a better and more relevant training of para-legals, one that is needs-driven and more attuned to the context and lived realities of the people whom they seek to serve. / Thesis (M.Dev.Studies)-University of Natal, Durban, 2004.

This study was conducted using a qualitative descriptive approach. It was based on an analysis that was done to determine awareness and attitude of patients in end of life issues. The semi-structured interviews were conducted for data collection. A sample of ten patients, five inpatient and five outpatient, was purposively chosen. Permission was obtained from the hospital superintendent and heads of departments, and also consent from patients, for the study. Data was analyzed, using the NVIVO program, a computer software, for data coding, and a conceptual model for categorization. From the findings, the researcher concluded that poor communication causes lack of knowledge in patients, which in turn limits the capacity for decision making in patients. The researcher also noted that participants were not aware of their autonomy in decision-making. / Thesis (M.Cur.)-University of Natal, Durban, 2002.

HIV/AIDS has been an obstacle to socio-economic development and a major cause of loss of human life. It has also caused vast inequities and frustration to the public health sector. One of the significant efforts made by the public health sector to combat the epidemic is the implementation of a mandatory HIV/AIDS testing policy to scale-up HIV treatment. This dissertation examines the impact of this policy on the human rights of people infected with and affected by HIV/AIDS. Coercive government policies aimed at controlling the AIDS pandemic often infringe on the rights of individuals known to be or suspected of living with HIV/AIDS and this decreases the effectiveness of public health measures. The research methodology involved the study of written literature and a comparative literature study of the law and practice obtaining in South Africa, Uganda and Canada. It revealed that voluntary testing is effective and suitable in South Africa. This dissertation aimed to show that any public health approach that aims to achieve a comprehensive prevention strategy must be consistent with respect for human rights as enshrined in regional and international human rights law. Public health and human rights should, therefore, not be regarded as opposing forces; rather they should be seen as a unified system of protection of human welfare under the Bill of Rights and the Constitution. The solution to the crisis lies not only in testing every single person but also requires a shift of focus to more pressing issues that include gender equality, stigma and discrimination; prioritizing human rights, institutional capacity and resources; and an end to extreme poverty. A human rights-based approach to HIV/AIDS testing, such as the Voluntary Counselling and Testing (VCT) is recommended. Therefore, failure to adhere to the core principles of testing - which are informed consent, counselling and confidentiality of the test result - will only hinder the global fight against HIV/AIDS. The rights of those affected by HIV/AIDS need to be protected in order to address public health imperatives. This can be done through the use of the law as an instrument of social change as well as education and awareness. Key words, HIV/AIDS, mandatory testing, Voluntary Counselling and Testing, public health, human rights-based approach.

In British Columbia, individuals with a mental disorder can be hospitalised against their will under the Mental Health Act (1999), when a physician determines that "protection of the person or others" is an issue. Involuntary psychiatric hospitalisation involves a major infringement of an individual's civil liberty. When patients or their representatives disagree with the treatment teams about their involuntary hospitalisation, they can apply for an appeal hearing named the review panel under the Mental Health Act (1999). From a theoretical perspective, the traditional medical model and the social constructionist model, which offer different views concerning individuals with mental illness who are hospitalised against their will, are presented. This theoretical contrast underscores a major dilemma faced by mental health professionals in fostering client self-determination, while they are providing services on the principle of beneficent protection. An empowerment model of social work practice is then described to illustrate how services can be provided to help mental patients regain a sense of control over their lives. Concerns about the current legislation regarding involuntary hospitalisation are also discussed. To supplement the limited number of studies currently available on review panels, a quantitative descriptive study was conducted at Riverview Hospital, the only tertiary psychiatric hospital in British Columbia, surveying the experiences of 39 social workers and physicians with review panels. A questionnaire consisting of 22 Likerttype items was used. Four categories were identified: (a) patient-related issues, (b) effects of review panels on treatment teams, (c) role conflicts, and (d) operational issues. Despite the apparent lack of formal training, social workers and physicians generally reported having adequate knowledge of review panels. Social workers and physicians who were involved more frequently with review panels appeared to have more positive attitudes towards them. Their training pertaining to the Mental Health Act was also significantly related to their attitudes. Neither patients nor their families reportedly had adequate knowledge of the review panel process. Although some positive effects of review panels were acknowledged, staff generally had mixed attitudes about review panels. Guided by an empowerment model, these findings have important implications for social work practice. These include the need for further professional training, improved communication between health professionals and legal advocates, education for patients and families, and the support of patients' collective action, so that review panels can be a more empowering experience for mental patients.

In British Columbia, individuals with a mental disorder can be hospitalised against their will under the Mental Health Act (1999), when a physician determines that "protection of the person or others" is an issue. Involuntary psychiatric hospitalisation involves a major infringement of an individual's civil liberty. When patients or their representatives disagree with the treatment teams about their involuntary hospitalisation, they can apply for an appeal hearing named the review panel under the Mental Health Act (1999). From a theoretical perspective, the traditional medical model and the social constructionist model, which offer different views concerning individuals with mental illness who are hospitalised against their will, are presented. This theoretical contrast underscores a major dilemma faced by mental health professionals in fostering client self-determination, while they are providing services on the principle of beneficent protection. An empowerment model of social work practice is then described to illustrate how services can be provided to help mental patients regain a sense of control over their lives. Concerns about the current legislation regarding involuntary hospitalisation are also discussed. To supplement the limited number of studies currently available on review panels, a quantitative descriptive study was conducted at Riverview Hospital, the only tertiary psychiatric hospital in British Columbia, surveying the experiences of 39 social workers and physicians with review panels. A questionnaire consisting of 22 Likerttype items was used. Four categories were identified: (a) patient-related issues, (b) effects of review panels on treatment teams, (c) role conflicts, and (d) operational issues. Despite the apparent lack of formal training, social workers and physicians generally reported having adequate knowledge of review panels. Social workers and physicians who were involved more frequently with review panels appeared to have more positive attitudes towards them. Their training pertaining to the Mental Health Act was also significantly related to their attitudes. Neither patients nor their families reportedly had adequate knowledge of the review panel process. Although some positive effects of review panels were acknowledged, staff generally had mixed attitudes about review panels. Guided by an empowerment model, these findings have important implications for social work practice. These include the need for further professional training, improved communication between health professionals and legal advocates, education for patients and families, and the support of patients' collective action, so that review panels can be a more empowering experience for mental patients. / Arts, Faculty of / Social Work, School of / Graduate

An advance directive is an instruction made by a competent person about his or her preferred health care choices, should the person become incapable to make treatment decisions. Legal recognition of advance directives has developed over the last half century in response to medical advances that can prolong the life of a patient who is no longer sentient, and who has decided to forego some or all treatment under such circumstances. Two types of directive have emerged in the law: an instructional directive, in which a person sets out treatment choices, and a proxy directive, which enables the person to appoint a proxy to make treatment decisions. Development of the law has been impeded by fear that advance directives diminish regard for the sanctity of life and potentially authorize euthanasia or assisted suicide. In Canada, this fear explains the continued existence of outdated criminal law prohibitions and contributes to provincial advance directive legislation that is disharmonized and restrictive, in some provinces limiting personal choice about the type of advance directive that can be made. The British Columbia Representation Agreement Act (RAA)1 is an example of such restrictive legislation. The RAA imposes onerous execution requirements, is unduly complex and restricts choice of planning instrument. Respect for patient autonomy requires that health care providers honour patients' prospective treatment preferences. Capable persons must have ready access to a choice of health care planning instruments which can be easily executed. B.C. should implement advance directive legislation that meets the needs and respects the autonomy of B.C. citizens. The Criminal Code must be amended to eliminate physicians' concern about potential criminal liability for following an advance directive. Advance directive legislation across Canada should be harmonized. Finally, health care providers should receive training on effective ways to communicate with patients about end-of-life treatment decisions to ensure that patients' health care choices are known and respected. / Law, Peter A. Allard School of / Graduate

Thesis (LLD (Public Law))--University of Stellenbosch, 2010. / ENGLISH ABSTRACT: The unique and intimate relationship that exists between a medical practitioner and his/her client is possibly one of the most important relationships that can come into being between any two people. This relationship is characterised and influenced by the qualities and attributes specific to the nature and historical development of medical care, as well as medical science in general. The doctor-patient relationship is also influenced by the social dynamics of a particular community, environmental factors, technological advances and the general social and commercial evolution of the human race. With regard to medical care and health service delivery, the doctor-patient relationship is furthermore vital to the quality of the care provided, as well as to the outcomes and relative success of the specific medical intervention or treatment. One of the distinct characteristics of the doctor-patient relationship is the power imbalance inherent in this relationship. The medical practitioner has expert knowledge and skill, while the patient finds himself or herself in an unusually dependent and vulnerable position. It is because of this important role that the doctor-patient relationship still plays in health service delivery today; the susceptibility of the relationship to a variety of influences, and the characteristic power imbalances inherent in this relationship, that a study of the doctor-patient relationship in South African medical- and health law is necessary. The characteristic power imbalances will be considered from a legal perspective in this dissertation. This study provides a comprehensive source of the doctor-patient relationship from a legal perspective. Where relevant, references are made to theories and principles from other disciplines, including sociology, economy and medical ethnomethodology. The prevalence and consequences of power imbalances in the doctor-patient relationship are identified and discussed with the aim of bringing these to the attention of both the legal fraternity, and medical practitioners. Specific problem areas are identified and solutions are offered, including the following: • The adverse consequences of power imbalances inherent in the doctor-patient relationship on the medical decision-making process are considered from various perspectives. With regard to these adverse consequences, the doctrine of informed consent is analysed and evaluated in great detail. • The influence of paternalistic notions in health service delivery; the business model of health service delivery and the effects of managed care and consumer-directed health care on the doctor-patient relationship and health service delivery in general are also analysed from a legal perspective, and specifically with regard to the power imbalances inherent in this relationship. • The role of autonomy, self-determination and dignity, as well as the principles of beneficence in medical practice, are reconsidered in an attempt to provide a solution for redressing the power imbalances inherent in the doctor-patient relationship. • The fiduciary nature of the doctor-patient relationship and the special role of trust in the relationship are emphasised throughout the dissertation as the focal point of departure in the doctor-patient relationship and the main constituent in any legal endeavor to redress the power imbalances inherent in it. / AFRIKAANS OPSOMMING: Die unieke en intieme verhouding wat bestaan tussen ‘n mediese praktisyn en ‘n pasiënt is wêreldwyd waarskynlik een van die belangrikste verhoudings wat tussen twee persone tot stand kan kom. Hierdie verhouding word gekenmerk en beïnvloed deur kwaliteite en eienskappe eie aan die besonderse aard en historiese ontwikkeling van gesondheidsorg, sowel as die mediese wetenskap in die algemeen. Die dokter-pasiënt verhouding word verder beïnvloed deur die sosiale dinamika van ‘n bepaalde gemeenskap, omgewingsfaktore, tegnologiese vooruitgang en die algemene sosiale en kommersiële ontwikkeling van die mensdom. Op die terrein van gesondheidsorg en mediese dienslewering is die dokter-pasiënt verhouding voorts ook sentraal tot die kwaliteit van die mediese sorg wat verskaf word, sowel as die uitkomste en relatiewe sukses van die spesifieke mediese behandeling. Een van die kenmerkende eienskappe van die dokter-pasiënt verhouding is die magswanbalans wat daar tussen dokter en pasiënt bestaan. Die mediese praktisyn beskik oor deskundige kennis en vaardighede, terwyl die pasiënt hom- of haarself in ‘n ongewone, afhanklike en kwesbare posisie bevind. Dit is dan veral weens die besondere rol wat hierdie verhouding steeds in hedendaagse gesondheidsorg speel, die beïnvloedbaarheid van hierdie verhouding deur ‘n verskeidenheid faktore, sowel as die kenmerkende magswanbalans inherent in die verhouding, dat ‘n ondersoek na die dokter-pasiënt verhouding in die Suid-Afrikaanse mediese reg noodsaaklik is. Hierdie kenmerkende magswanbalans sal vanuit ‘n regsperspektief verder in hierdie proefskrif ondersoek word. Hierdie studie bied ‘n omvattende bron van die dokter-pasiënt verhouding benader vanuit ‘n regsperspektief, terwyl verwysings na teorieë en beginsels van ander dissiplines soos die sosiologie, ekonomie en mediese etnometodologie ook waar nodig ingesluit word. Die voorkoms en gevolge van ‘n magswanbalans in die dokter-pasiënt verhouding word verder geïdentifiseer en bespreek ten einde dit onder die aandag te bring van beide regslui en medici. Spesifieke probleemareas wat geïdentifiseer is en die oplossings wat daarvoor aan die hand gedoen is sluit die volgende in: • Die nadelige gevolge van die bestaan van ‘n magswanbalans in die dokter-pasiënt verhouding op die mediese-besluitnemingsproses word bespreek vanuit verskillende persepktiewe. Met betrekking tot hierdie nadelige gevolge, word die leerstuk van ingeligte toestemming in besonder geanaliseer en geëvalueer. • Die invloed van ‘n paternalistiese benadering tot gesondheidsorg, die besigheids-model van gesondheidsorg, en die effek van bestuurde- en verbruikersgedrewe gesondheidsorg inisiatiewe op die dokter-pasiënt verhouding en die verskaffing van gesondheidsdienste in die algemeen word ook vanuit ‘n regsperspektief ge-analiseer. Spesifieke aandag word in dié verband gegee aan die invloede van hierdie benaderings en perspektiewe op die magswanbalans inherent aan die dokter-pasiënt verhouding. • Die besondere rol van autonomie, selfbeskikking en menswaardigheid, asook die beginsels van weldadigheid in gesondheidsorg, word heroorweeg in ‘n poging om ‘n meer gelyke distribusie van mag in die dokter-pasiënt verhouding te verseker. • Die fidusiêre aard van die dokter-pasiënt verhouding en die besondere rol wat vertroue in hierdie verhouding speel, word in hierdie proefskrif beklemtoon en word voorts as die basis van die dokter-pasiënt verhouding beskou. Vertroue, as ‘n kenmerk van die dokter-pasiënt verhouding, behoort ook die fokuspunt te wees van enige poging om die magswanbalans in die dokter-pasiënt verhouding aan te spreek.

The objective of this treatise is to establish whether a right to social security exists in South Africa, which would entitle HIV positive persons in South Africa citizens to medical care. A study was made of various articles in journals and on the Internet to determine the South African government's policy on a right to social security and to providing medical treatment. It was found that South Africa lacks an integrated, holistic approach to social security and does not guarantee the right to social security, merely the right to have access to social security. The same was found with the right to medical care. Although there seems to be a general right to medical care which extends to and includes HIV-positive patients, the state merely guarantees the right to apply for medical treatment but does not guarantee the granting thereof. It is submitted that the Department of Health's refusal to implement a vertical transmission prevention programme and the failure to offer treatment as an alternative, for whatever reason, is "penny wise and pound foolish". In the long run more money is spent dealing with pediatric AIDS. It was further found that although the government attempted to lay a groundwork with the formulation and acceptance of the national AIDS plan, the successful implementation thereof is seriously hindered due to the lack of inter- and intra-departmental collaboration, essential health services and funding.

Aim: The 1996 Choice on Termination of Pregnancy Act decriminalized abortion in South Africa and the South African Medicines Control Council in 2000 approved the dispensing of emergency contraceptive methods by pharmacists to women without a doctor's prescription. This legislation has been hailed as among the most progressive in the world with respect to women's reproductive justice. However the realisation of these rights in practice has not always met expectations in part due to medical practitioners' ethical objections to termination of pregnancy and the provision of related services. The aim of this study was to interpret the varying ways in which medical practitioners frame termination of pregnancy and emergency contraceptive services, their own professional identities and that of their patients/clients. Methods: Sample of 58 doctors and 59 pharmacists drawn from all nine provinces of South Africa. Data collected using an anonymous confidential internet-based self-administered questionnaire. Participants were randomly recruited from online listings of South African doctors and pharmacists practicing in both private and public sectors. Data were analysed using theoretically derived qualitative content analysis. Results: Participants drew on eight frames to justify their willingness or unwillingness to provide termination-of-pregnancy related services: the foetal life frame, the women's rights frame, the balancing frame, the social justice frame, the do no harm frame, the legal and professional obligation frame, the consequences frame and the moral absolutist frame. Conclusion: Health professionals' willingness or unwillingness to provide termination of pregnancy related services is highly dependent on how they frame or understand termination of pregnancy, and how they understand their own professional identities and those of their patients/clients.

Cancer is regarded as a global disease and one of the leading killer diseases in the world. The reason why cancer is so widespread and often misunderstood stems from multiple factors, namely, the lack of knowledge about cancer, unfair discrimination of persons living with cancer, inadequate or inappropriate treatment provided to patients, the stigma attached to cancer, misdiagnosis and late diagnosis of persons living with cancer, as well as the inadequate provision of screening programs to detect cancer at an early stage. The combination of these issues raises alarming medico-legal problems that merit further attention. The thesis will explore the origin, nature, philosophical and clinical aspects pertaining to cancer, as well as legal issues related to cancer and oncology. The study will conclude with recommendations aimed at mitigating and addressing the shortcomings that exist in the medico-legal framework. The study will also draw on a legal comparison of relevant South African, English and American laws and regulations. Since this thesis entails focussing on medico-legal principles, the study will draw on aspects of medical law, labour law, law of contract, law of delict, constitutional law and criminal law. / Private Law / LL. D.