Category Archives: Medical law

Children with disability or chronic illness

The South African Children’s Act ensures the safety of ALL children,including those with disability or chronic illness.

Many children (and their families) experience a sense of powerlessness in the beginning of dealing with a disability or chronic illness, and often feel very stressed at facing a future filled with unknowns. Every child has the right to health and safety, and in South Africa, the Children’s Act provides for the health and safety of ALL children, including children with disability or chronic illness. It is important that children who are disabled or live with a chronic illness know their rights; they should be informed and protected.

The law on children with disability

South African law states that due consideration must be given to children with disability:

  • The child must be provided with care and support as and when appropriate.
  • It must be made possible for the child to participate in social and educational activities, recognising their special needs and promoting self-reliance.

The law on children with chronic illness

According to South African law, the following must be evident when it comes to children with chronic illness:

  • The child must be provided with the necessary parental care and support services.
  • The child must be provided with conditions that ensure dignity, promote self-reliance and facilitate participation in the community.

A child with disability or chronic illness has the right not to be subjected to medical, cultural or religious practices that are detrimental to their health or dignity. Parents or guardians should do their best to protect the rights of their children, and also to listen to them and assist them where needed. However, it is important not to safeguard them in such a way as to alienate them from the rest of the world.

Reference:

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE).

HIV-testing for children

The Children’s Act provides that children cannot simply be tested for HIV,and that their status be held confidential

A child cannot merely be tested for HIV; a valid reason must be given in order to protect the child from being unnecesarily tested, potentially causing emotional or physical harm. According to the Children’s Act, no child may be tested for HIV, except when it is in the best interests of the child and consent has been given, or the test is necessary to establish whether someone may have contracted HIV from the child.

Consent for an HIV-test

Consent for an HIV-test on a child may be given by:

  • the child;
  • the parent or caregiver;
  • the provincial head of social development;
  • a designated child protection organisation arranging a placement of the child;
  • the superintendent or person in charge of the hospital; and/or
  • a children’s court.

Confidentiality of status

The law states that no person may disclose (without consent) that a child is HIV-positive, except when:

  • the law states that it is the person’s duty; and/or
  • it is necessary for legal proceedings.

Consent to disclose that the child is HIV-positive may be given by the same role players that are to give consent for the HIV-testing procedure.

Note that when it comes to the HIV-testing of a child, whether regarding the procedure of testing or the confidentiality of the child’s status, that there exist specific requirements for all potential role players to actually be granted as valid persons to be giving consent.

Reference:

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE).

Medical Negligence Claims

Medical negligence refers to a negative consequence of a medical treatment that could have been avoided by the medical practitioner. The Health Professions Act 56 of 1974 outlines South African medical law and it should be consulted by any person who suspects a case of medical negligence.

What is medical negligence?

Imagine breaking your leg and requiring surgery for it to heal correctly. After being admitted for surgery, the surgeon guarantees you that it is a routine procedure and that your leg will heal perfectly. However, after the surgery, you have no feeling in your one foot. It is possible that a nerve has been damaged. If the surgeon is the primary cause of this consequence, for example he/she was careless, then it is considered as medical negligence.

It is worth noting that a medical practitioner cannot be held responsible for unforeseen complications that arose from unavoidable treatments. If complications arose from unknown sources, even though the practitioner has performed the treatment perfectly, he/she cannot be held responsible.

Any complication that arose after a treatment could be a result of negligence. If you suffer from an unusual complication that you suspect arose from medical treatment, it is advised to get a second opinion. If you are certain that the medical practitioner was negligent, you should not wait too long before you consult a medical malpractice lawyer, because your case can weaken over time; witnesses may forget what happened and documents can go missing.

How Is It decided who was negligent?

If you believe that you have suffered because of negligence by a medical practitioner, you have the right to lay a claim in court against him/her. A Judge will hear arguments from both legal representations and then decide whether or not negligence has occurred. Usually other medical practitioners are consulted to provide their expert testimony for both cases. The Judge must evaluate all the evidence and then pass judgment on the claim.

  1. In South Africa, the Judge must decide first whether or not the medical practitioner is liable, and then to what extent the patient must be compensated.
  2. In extreme instances, a medical negligence case can turn into a criminal case if it is proved that the medical practitioner is guilty of criminal conduct.

Sometimes the medical practitioner may be completely accountable, for example he/she could have performed the medical procedure incorrectly out of ignorance. It could also be decided that the company is completely responsible, because it did not provide the adequate equipment for the procedure. A Judge may decide that both parties are guilty of negligence and then hold them equally or partially responsible.

How does the claiming process work?

If you are no longer in need of medical attention, the first person you should get in touch with is your legal adviser. Then it is necessary to inform the Health Professions Council of South Africa to lodge a complaint.

Your legal adviser will request all your medical records to review the evidence so he/she can send a letter of demand to the medical practitioner. The response to this letter will determine whether or not the matter will go to trial; the practitioner may decide to rather settle the matter out of court and to meet the demands. If the matter does go to court, you may be required to testify.

If your claim is successful, the Judge may grant you compensation in an amount that is equal to what he/she considers fair; this may include the legal costs, loss of income and any other cost you incurred.

Reference:

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE).