The therapeutic privilege is a defence in terms of which a doctor may withhold information from a patient if disclosure of such information could harm the patient. This study explores the defence of therapeutic privilege and provides a critical evaluation. A comparative investigation is undertaken, while arguments springing from a variety of disciplines are also incorporated. A number of submissions are made for limiting the ambit of the defence. The main submission is that the therapeutic privilege should comply with all the requirements of the defence of necessity. In addition, it should contain some of the safeguards afforded to the patient by the requirements of the defence of negotiorum gestio so that therapeutic privilege is out of the question if medical treatment is administered against the patient's will, or the doctor has reason to believe (or knows) that the patient will refuse to undergo an intended intervention once properly informed. / Jurisprudence / L.L.M. (Jurisprudence)

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

Thesis (MBA (Business Management))--University of Stellenbosch, 2007. / ENGLISH ABSTRACT: The democratic government of South Africa inherited a healthcare system that was fragmented and inequitable. The Department of Health was mandated by the Constitution and the Bill of Rights to implement a system whereby quality, affordable healthcare could become available to all citizens of the country within the constraints of the available resources. The objective of government, through reform legislation, is to establish a social health insurance (SHI) system for the country which will ultimately lead to the implementation of a national health insurance (NHI) system in order to achieve universal coverage. Medical schemes have been identified as an important component of this transformation process. The private healthcare industry, represented largely by medical schemes, acknowledges that SHI is the ideal pathway chosen by government to achieve universal coverage, but is concerned with the process being used to achieve this aim, the pace at which transformation is occurring, and the effect of this on medical schemes. The movement towards an equitable healthcare system required the introduction of reform legislation necessary for the establishment of an enabling environment. The implementation of community rating, open enrolment and prescribed minimum benefits (PMBs) reforms, succeeded in ending the risk-rating of those medical schemes that were excluding members who were considered vulnerable. However, these legislations were not followed by a risk equalisation mechanism in the form of a proposed risk equalisation fund (REF) for the South African environment. The main purpose of this fund is to ensure that equity within the medical schemes industry is maintained through the equalisation of the risks that had resulted from the implementation of the first components of reform legislation. The research into the experiences of other countries shows that South Africa is the only country in the world that has implemented the above legislation without a system of risk equalisation. All indications are that the proposed implementation of the REF has been delayed to beyond 2009. In addition, the reform legislation regarding the statutory solvency ratio requires medical schemes to maintain this ratio at 25 percent. This, together with the delay in REF is placing financial pressure on medical schemes. Low income medical schemes (LIMS) legislation is pending implementation. Its purpose is to provide basic medical cover to the lower income market until such time that the components of SHI have been fully negotiated; it is thus an interim measure, but no indication to implement LIMS has yet been given. The average number of years for a country to implement SHI is 70. The South African situation is only 13 years old and though some success has been achieved during this relatively short period, much more still needs to be accomplished. The research shows that, the approximate timelines and intended sequence of implementing the reform legislation were perhaps too ambitious. This has caused the industry stakeholders to be disillusioned about the current state of affairs. Given the time that has elapsed, and considering the progress that has been made thus far, it is recommended that the existing plan be revised or even replaced with a more realistically timed one. This will restore some of the confidence into the “future healthcare vision of universal coverage” for South Africa intended by the government, through a system of social health insurance. / AFRIKAANSE OPSOMMING: Die demokratiese regering van Suid-Afrika het ‘n gesondheidsorgstelsel geërf wat gefragmenteerd en onregverdig was. Die Departement van Gesondheid het in die Grondwet en die Handves van Menseregte die mandaat gekry om ‘n stelsel te implementeer waarvolgens bekostigbare gesondheidsorg van goeie gehalte vir alle landsburgers beskikbaar kon word binne die beperkinge van die beskikbare hulpbronne. Die regering se doelwit met hervormingswetgewing is om ‘n maatskaplike gesondheidsversekeringstelsel (SHI) vir die land daar te stel wat uiteindelik sal lei tot die implementering van ‘n nasionale gesondheidstelsel (NHI) met die oog op universele dekking. Mediese skemas is geïdentifiseer as ‘n sleutelkomponent van hierdie transformasieproses. Die privategesondheidsorgindustrie, wat grotendeels deur mediese skemas verteenwoordig word, erken dat SHI die ideale weg is wat deur die regering gekies is om universele dekking te bereik, maar is besorg oor die proses wat gebruik word om hierdie doelwit te bereik, die pas waarteen transformasie geskied, en die uitwerking hiervan op mediese skemas. Die beweging na ‘n regverdige gesondheidsorgstelstel het vereis dat hervormingsgswetgewing ingestel word soos nodig vir die daarstelling van ‘n omgewing wat dit moontlik maak. Die implementering van gemeenskapsevaluering, oop lidmaatskap en hervorming van voorgeskrewe minimum voordele (PMB’s) was suksesvol vir die beëindiging van die risikoevaluering van daardie skemas wat lede uitgesluit het wat as kwesbaar beskou is. Maar hierdie wetgewing is nie opgevolg deur ‘n risikogelykstellingsmeganisme in die vorm van ‘n voorgestelde risikogelykstellingsfonds (REF) vir die Suid-Afrikaanse omgewing nie. Die hoofdoelwit van hierdie fonds is om te verseker dat gelykheid binne die mediesefondsindustrie gehandhaaf word deur die gelykstelling van risiko’s wat die gevolg was van die implementering van die aanvanklike hervormingswetgewing. Navorsing oor die ondervinding in ander lande toon dat Suid-Afrika die enigste land in die wêreld is wat sodanige wetgewing geïmplementeer het sonder ‘n stelsel van risikogelykstelling. Alle tekens dui daarop dat die voorgestelde implementering van die REF uitgestel is tot na 2009. Daarbenewens vereis die hervormingswetgewing ten opsigte van die statutêre solvensieverhouding dat mediese skemas hierdie verhouding op 25% handhaaf. Tesame met die vertraging in REF plaas dit finansiële druk op mediese skemas. Lae-inkomstemedieseskemas (LIMS) is verdere hervormingswetgewing wat wag op implementering. Die doel daarvan is om basiese mediese dekking te voorsien aan die laer-inkomstemark totdat die komponente van SHI ten volle onderhandel is. Dit is dus ‘n oorgangsmaatreël, maar daar is nog geen aanduiding gegee van die implementering van LIMS nie. Die gemiddelde tyd wat dit neem vir ‘n land om SHI te implementeer, is 70 jaar. Die Suid-Afrikaanse situasie is net 13 jaar oud, en hoewel daar heelwat sukses behaal is in hierdie relatief kort tydperk, moet daar nog baie meer bereik word. Navorsing toon dat die geskatte tydperk en voorgenome opeenvolging van die implementering van die hervormingswetgewing dalk te ambisieus was. Dit het veroorsaak dat die belanghebbers in die industrie ontnugter is oor die huidige stand van sake. Met inagneming van die tyd wat verloop het en die vordering wat tot dusver gemaak is, word daar aanbeveel dat die bestaande plan hersien word of selfs vervang word deur een met ‘n meer realistiese tydsbeperking. Dit sal ‘n mate van vertroue herstel in die Suid-Afrikaanse Regering se “toekomsvisie van universele gesondheidsdekking” deur ‘n stelsel van maatskaplike gesondheidsversekering.

隨著社會變遷，近一二十年來，我國醫療糾紛有大幅增加之現象，而經由媒體的報導，醫療糾紛在我國亦經常成為眾所矚目、備受爭議的社會焦點。由於醫療行為所導致的損害，直接侵害病人之身體權、健康權、甚至生命權，對於病人及其家屬生活所造成之影響，難謂非為鉅大，故醫療糾紛之妥善處理，實係吾人從事醫療法律之研究者，應予正視並深入探討之議題。 我國醫療糾紛之處理，向以刑事訴訟為主要之救濟途徑，惟晚近醫界、法界均已達成共識，認為醫療糾紛應回歸至以民事程序為主之處理模式。惟吾人若欲藉由民事法律關係妥善處理醫療糾紛，則須注意醫療民事訴訟之特殊性，亦即，因醫病雙方專業知識上之落差，導致雙方在民事程序上處於武器不平等之地位。為衡平此一武器不平等，我國實務上部分法官在審理醫療民事訴訟時，曾打破傳統民事過失歸責原則，將消費者保護法無過失責任與民法第191條之3一般危險責任之規定適用於醫療行為，惟自民國93年醫療法第82條第2項修正之後，該法既規定「醫療機構及其醫事人員因執行業務致生損害於病人，以故意或過失為限，負損害賠償責任。」邇近之實務判決遂多採醫療行為過失責任之見解，也多排除民法第191條之3之適用。我國醫療訴訟醫病爭執之重點，乃於近年由實體法之無過失責任之採擇與否，轉換至程序法之舉證責任分配。 於醫療訴訟等現代型訴訟事件中，被害人時常發生舉證上之困難，倘若依照僵化固定的舉證責任分配規則，則不免有失公平正義。因此，舉證責任分配於醫療訴訟上應如何操作方屬適當，實為醫療民事訴訟中值得觀察的重點所在。基於上述之問題意識，本論文的研究架構共分為七章，其內容綱要如下： 第一章 緒論：闡釋說明研究動機，並指明目前民事醫療糾紛事件之問題重心在於「程序法」，特別係在「舉證責任之分配」。進而說明本論文之研究動機、研究目的、研究範圍與研究方法。 第二章 醫療糾紛之發生及其處理：本章由醫療糾紛之發生談起，進而說明醫療糾紛之法律關係，探討不同法領域下醫療提供者違反義務時之法律責任，包括民事責任、刑事責任及行政責任等，並論證醫療糾紛實應回歸至以民事程序為主之處理模式。最後，介紹醫療糾紛發生後，國內外現今法制上之醫療糾紛處理機制，並分析其優缺點。 第三章 醫療糾紛之民事法律關係與醫療民事訴訟之特殊性：本章聚焦於醫療糾紛之民事法律關係，探討醫療提供者之契約責任、醫療無因管理與醫療提供者之侵權責任等。同時，討論醫療民事訴訟之特殊性，分析醫療民事訴訟被害人舉證困難之原因，並分析加重醫療提供者民事責任之法理基礎、以及過度加重醫療提供者民事責任所可能導致之反效果。 第四章 民事訴訟舉證責任分配之學說：按我國關於民事舉證責任之立法明文，係規定於民事訴訟法第277條：「當事人主張有利於己之事實者，就其事實有舉證之責任。但法律別有規定，或依其情形顯失公平者，不在此限。」學者乃認為，在我國法制下，所謂舉證責任分配法則係一總體概念，而可區分為「舉證責任分配一般原則」與「舉證責任分配減輕」二者，而以前者為原則，後者為例外。本章即由舉證責任之基礎觀念出發，藉由介紹國內外之學說，而分別處理「舉證責任分配之一般原則」與「舉證責任分配之減輕」等概念。 第五章 醫療民事訴訟舉證責任分配規則之具體適用：本章集中討論醫療民事訴訟之舉證責任。本章前半段介紹醫療民事訴訟舉證責任分配之一般規則、以及比較法上(包括德國、美國與日本)醫療糾紛舉證責任減輕之具體規則，後半段則分析我國實務操作醫療糾紛舉證責任分配之問題。本文一共歸納出實務判決於適用舉證責任分配時共六個問題，並分別找出判決加以闡釋。於本章末，則提出將醫療糾紛類型化，應有助於解決我國實務之問題。 第六章 醫療糾紛之類型化與舉證責任分配體系之建構：本章先試從「法學思維」、「醫學思維」、以及「綜合醫學思維與法學思維」出發，分別建立三套操作模組，以將醫療糾紛類型化，並建構其各別之舉證責任分配體系。關於純粹由「法學思維」或「醫學思維」所建立之操作模組，本文將分析其操作上之侷限，而針對本文所建議「綜合醫學思維與法學思維」之操作模組，亦將於各醫療糾紛分類，舉實務案例諸例實際操作之，以驗證本文所建議操作流程之可行性。章末則另提出法院於適用舉證責任分配規則時，其他與客觀舉證責任分配無直接相關，但應予考量之事項，以助於更正確地適用舉證責任分配規則。 第七章 結論、建議與展望：綜合前開章節討論，針對醫療民事爭訟程序中之舉證責任分類體系與操作模式，做出總結。並提出其他相關建議，以終極落實醫療需求者憲法上基本權之保障。 / The number of malpractice claims filed in Taiwan against physicians has increased significantly in the recent decades. Medical malpractice litigations are characterized by a huge gap in medical knowledge between physicians and patients, leading to an unequal status between both parties in the trials. To ensure that the principle of equality of arms is upheld in civil procedures, the courts applied the strict liability embodied in Article 7 of the Consumer Protection Law and Article 191-3 of the Civil Code to malpractice cases. However, since the amendment and promulgation of Article 82 of the Medical Care Act, there has been a consensus that strict liability is no longer applicable in medical litigations, and negligence becomes an essential element for establishing the liability of medical practitioners. In addition to modifying liability rules, an alternative for achieving equality of arms is to relieve the plaintiffs from the burden of proof. However, the burden of proof should be adjusted with precaution, because an excessive shift might contribute to defensive medicine. Accordingly, this study aims to standardize the algorithm for allocating the burden of proof by classifying medical malpractice disputes. The thesis is composed of the following seven chapters: Chapter 1 Introduction: This chapter outlines the background of the present study, with a special emphasis on the pivotal role of the burden of proof in medical litigations. Also delineated in this chapter are the objectives and methodology of the present study. Chapter 2 The occurrence and resolution of medical malpractice disputes: In this chapter, the incidence of medical injury and medical malpractice is discussed first, followed by an analysis of the civil, criminal, and administrative liabilities of medical professionals. The plethora of resolutions for settling medical malpractice disputes are summarized at the end of the chapter. Chapter 3 Civil liabilities of medical malpractice and characteristics of medical litigations: This chapter focuses on the civil liabilities of medical malpractice, which arise from failure to undertake contractual duties or tort liabilities. The characteristics of medical litigations, such as the unequal status in arms between plaintiffs and defendants and the difficulties in concluding negligence or deciphering causation, are discussed in the second half of the chapter. Chapter 4 Theories and rules in allocating the burden of proof: The allocation of the burden of proof is determined according to Article 277 of the Taiwan Code of Civil Procedure: A party bears the burden of proof with regard to the facts which he/she alleges in his/her favor, except either where the law provides otherwise or where the circumstances render it manifestly unfair. Consequently, in principle, the burden of proof is allocated according to the “Normentheorie,” with specific rules applied to ease the plaintiff’s burden of proof under exceptional and unfair circumstances. Chapter 5 Rules for allocating the burden of proof in medical litigations: German, American, and Japanese rules for allocating or relieving plaintiffs from the burden of proof in medical litigations are introduced. The current problems in applying these rules to medical litigations in Taiwan are inspected. The solution to these problems relies on a precise classification of medical malpractice disputes. Chapter 6 Establishing the algorithm for allocating the burden of proof by classifying medical malpractice disputes: Three models for allocating the burden of proof are created on the basis of three classification systems: classification from a legal perspective, classification from a medical perspective, and classification from a combined medical-and-legal perspective. A comparison of these three models reveals that the last might be the best algorithm. Specific tips for an accurate application of this algorithm are also provided. Chapter 7 Conclusions: This chapter highlights the importance of an appropriate allocation of the burden of proof in medical litigations, as well as the algorithm for allocating the burden of proof established in the present study. Also included are suggestions on how to ameliorate Taiwan’s medical litigation system in the future.

University of Macau / Faculty of Law

The therapeutic privilege is a defence in terms of which a doctor may withhold information from a patient if disclosure of such information could harm the patient. This study explores the defence of therapeutic privilege and provides a critical evaluation. A comparative investigation is undertaken, while arguments springing from a variety of disciplines are also incorporated. A number of submissions are made for limiting the ambit of the defence. The main submission is that the therapeutic privilege should comply with all the requirements of the defence of necessity. In addition, it should contain some of the safeguards afforded to the patient by the requirements of the defence of negotiorum gestio so that therapeutic privilege is out of the question if medical treatment is administered against the patient's will, or the doctor has reason to believe (or knows) that the patient will refuse to undergo an intended intervention once properly informed. / Jurisprudence / L.L.M. (Jurisprudence)

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

Submitted in fulfillment of the requirements for the Degree of Master of Health Sciences in Radiography, Durban University of Technology, 2017. / Background The current scope of practice for diagnostic radiographers, does not allow them to administer intravenous contrast media (IVCM) since there are no formal training guidelines accredited by the Health Professions Council of South Africa (HPCSA) (Koch 2014: 26). In selected countries abroad, radiographers are allowed to administer IVCM and have thus received the necessary and accredited training to do so. In view of this, the South African radiographer’s scope of practice is not on par with the selected countries. The radiologists in South Africa (SA) who are currently responsible for the administration of IVCM have issued a position statement which supports, in principle, the idea of radiographers administering IVCM should they receive the necessary and appropriate training to do so (RSSA 2011: 1-2). The aim of this research study was, therefore, to investigate the radiologists’ perspectives regarding the theoretical knowledge, clinical competencies and medico legal responsibilities required by radiographers in order to effectively administer IVCM. This research study provides input for the development of national training guidelines for radiographers to administer IVCM. Research Methodology A quantitative, descriptive study was conducted by targeting qualified radiologists residing and practicing within the province of KwaZulu Natal (KZN). Ethical approval was obtained from the Durban University of Technology’s (DUT) Institutional Research and Ethics Committee (IREC). All the participants were contacted in their personal capacity. The research tool was an online survey administered through SurveyMonkey which included questions and statements relating to the administration of IVCM and was structured so as to meet the study objectives. The research tool was evaluated and amended by an expert focus group to ensure reliability and validity. Confidentiality was maintained and all the data obtained during this research study was password protected. Results and discussion Fifty-nine radiologists (60.8 percent) participated in this study. Twelve respondents, however, were excluded due to incomplete surveys. The final response rate, therefore, was 48.5 percent (n=47) of which 72.3 percent of the respondents were from the private sector. Results illustrated the radiologists’ agreement regarding the theoretical, clinical/practical and medico legal training components for inclusion in the further training of radiographers to administer IVCM. Most respondents supported the inclusion of three assessments: theoretical (87.2 percent), clinical (93.6 percent) and a record of clinical competencies (95.7 percent). The assessments were considered equally important in terms of percentage weighting. The overall results compared favorably to the current international trends and practice standards of radiographers administering IVCM. Conclusion and Recommendations The study, in providing key data for the development of training guidelines for radiographers to administer IVCM, has demonstrated the importance of higher education (HE) and training in addressing transformation in health services with particular reference to professional scopes of practice. Furthermore, it reinforces the need for local research that will inform HE and training and hence a scope of practice that meets local needs. It was recommended that future studies should include those HE institutions offering training in Radiography as well as their stakeholders for the design and transformation of a national curriculum for radiographers to administer IVCM. / M

The traditional health care system as it prevails in South Africa is part of African culture and intricately linked with the African world view. It embraces traditional norms and values that have survived to this day. In this sense it is more than a constituent part of medical pluralism which has become a global phenomenon. The role of the traditional healer is far more extensive than that of the modern medical doctor. He advises on all aspects of life, including physical, psychological, spiritual, moral and legal matters. He shares the client's world view. He understands the significance of ancestral spirits, the belief in supernatural forces and the reality of witches. It is in this context that modern scientific medicine has not been able to replace traditional medicine, and arguably never will. Traditional medicine is faced with enormous challenges at present. Firstly, the traditional social order is fast disappearing, making way for the state and the individual whose rights as contained in the Bill of Rights of the 1996 Constitution of the Republic of South Africa may seriously clash with traditional norms. Secondly, especially in an urban environment, the healer may encounter stiff competition from more progressive colleagues and modern physicians. Thirdly, scientific medicine basically regards traditional activities as unscientific, unregulated, often harmful and sometimes fatal. Fourthly, anti-witchcraft legislation hinders the traditional practitioner to deal with witches in the culturally appropriate manner. Traditional medicine will not go away. It is therefore necessary to find ways and means to see it practised in a safe and competent manner. As healers agitate for official recognition, it will be regarded as their corresponding duty to professionalise the traditional sector, create a traditional medical council and establish a register of bona fide healers who possess stipulated qualifications and are subject to rules of conduct and discipline. The modern and traditional sectors are essentially complementary and should be accommodated within a legal framework of official health care that protects healers and healed alike. The legal implications of this strategy are discussed in a global as well as regional African context. / Jurisprudence / LL.D.

Law / LL.M.