LCR4802
MEDICAL LAW
Study Unit 1: The Constitution and medical law
A significant number of the provisions of the Bill of Rights may come into play in various
situations pertaining to medical law.
1. The prohibition of unfair discrimination
• Section 9 of the Constitution deals with equality.
• Unfair discrimination on certain grounds, inter alia the ground of disability,
is prohibited.
• Discrimination on the ground of disability is unfair unless it is established
that it is fair.
• Depending on the final interpretation of this provision by the Constitutional
Court, this provision may be relied upon, for example by someone with
epilepsy challenging discrimination in respect of employment.
• The Promotion of Equality and Prevention of Unfair Discrimination Act
4 of 2000 gave effect to section 9.
• This Act contains a comprehensive list of grounds on which discrimination
is prohibited.
Section 9 of the latter Act prohibits discrimination on the ground of disability, including
➔ denying a disabled person any supporting facility necessary for his or her
functioning in society.
➔ contravening the code of practice of the South African Bureau of Standards
that govern environmental accessibility.
➔ failing to eliminate obstacles that unfairly limit or restrict persons with
disabilities from enjoying equal opportunities.
,Section 34 of Act 4 of 2000 states that:
• there is ‘‘overwhelming evidence’’ of the impact of HIV/AIDS on society and
the prejudice and discrimination against people on this ground, and
• therefore, compels the authorities to consider additional measures in this
regard.
• The courts are, however, empowered to decide that HIV/AIDS is a
prohibited ground of discrimination.
The ‘‘Code of good practice: Key aspects of HIV/AIDS and employment’’ published
(in GN R1298 GG 21815 of 1 Dec 2000) under the Labour Relations Act 66 of 1995
and the Employment Equity Act 55 of 1998 seeks inter alia to eliminate unfair
discrimination in the workplace based on an employee’s HIV status.
The Schedule to Act 4 of 2000 contains a list of examples of unfair practices in the
health care sector, such as:
• subjecting persons to medical experiments without their informed consent.
• unfairly denying or refusing any person access to healthcare facilities or
failing to make health care facilities accessible to any person.
• refusing to provide emergency medical treatment to persons of particular
groups identified by one or more of the prohibited grounds.
• refusing to provide reasonable health services to the elderly.
The Act read with the Bill of Rights it is clear, however, that there is no duty upon
private practitioners or hospitals to give access to these facilities or render these
services free of charge.
Unfair discrimination is however not solely prohibited to protect patients. In terms
of the National Health Act 61 of 2003 (s 20) unfair discrimination against health
care personnel on the grounds of their health status is also prohibited.
,2. The Right to Life
Section 11 of the Constitution provides that everyone has the right to life.
Abortion
In Christian Lawyers Association of SA v Minister of Health 1998 a
provincial court ruled that the Choice on Termination of Pregnancy Act 92
of 1996, governing abortion, was not in conflict with the constitutional right
to life.
The Act was challenged on the ground that it allows the termination
of human life.
The court, however, held that the word ‘‘everyone’’ does not include a
foetus.
‘‘The value of life: Christian Lawyers Association of SA v Minister of
Health 1999 criticises this finding.
She convincingly argues that an investigation into the
constitutionality of the Act may not be reduced to the question
whether the foetus is vested with the right to life.
The state has a duty to promote the right to life, and to her mind that
means that the state probably has a justiciable duty to enact
legislation which properly protects foetal life.
In Stewart v Botha 2008 (6) SA 310 (SCA) the Supreme Court of Appeal
rejected the action for wrongful life.
In this type of action the disabled child (or his or her parents on behalf
of the child) claims from the doctor on the grounds that the doctor’s
behaviour (usually an omission or failure to act) was the reason that the
parents of the child were denied the choice during the period that the
mother was pregnant with the child to have the child aborted because
of his or her disability.
The court argues that in this type of action the courts are expected to
weigh life as a disabled child up against no life.
Such an action can only succeed if the court finds that it would have
been better for the disabled child never to have been born.
, This finding implies that life as a disabled person is in itself regarded
as damage.
To choose no life above life as a disabled person violates the
sanctity of human life, and therefore the court rejected the action.
The court referred to the sanctity of human life and section 11 of the
Constitution in the same breath, and it is clear that the court sees a close
link between the concept of sanctity of human life and the
constitutional right to life.
We submit that this decision supports the idea that the state has a
duty to honour, protect and promote the value of life.
Johannesburg Country Club v Stott 2004 (5) SA 511 (SCA) the defendant
alleged that the indemnity clause excludes liability towards the dependant
of a person who died as result of the defendant’s negligence.
The court did not need to decide on this point, but Harms JA made the
following statement obiter:
A final consideration is the radical nature of the exclusion of liability for
damages for negligently causing the death of another.
It is arguable that to permit such exclusion would be against public policy
because it runs counter to the high value the common law and, now, the
Constitution place on the sanctity of life.
3. The right to freedom and security of the person
Section 12 of the Constitution subsection 2:
Everyone has the right to bodily and psychological integrity, which includes the
right –
(a) to make decisions concerning reproduction;
(b) to security in and control over their body; and
(c) not to be subjected to medical or scientific experiments without their
informed consent.
MEDICAL LAW
Study Unit 1: The Constitution and medical law
A significant number of the provisions of the Bill of Rights may come into play in various
situations pertaining to medical law.
1. The prohibition of unfair discrimination
• Section 9 of the Constitution deals with equality.
• Unfair discrimination on certain grounds, inter alia the ground of disability,
is prohibited.
• Discrimination on the ground of disability is unfair unless it is established
that it is fair.
• Depending on the final interpretation of this provision by the Constitutional
Court, this provision may be relied upon, for example by someone with
epilepsy challenging discrimination in respect of employment.
• The Promotion of Equality and Prevention of Unfair Discrimination Act
4 of 2000 gave effect to section 9.
• This Act contains a comprehensive list of grounds on which discrimination
is prohibited.
Section 9 of the latter Act prohibits discrimination on the ground of disability, including
➔ denying a disabled person any supporting facility necessary for his or her
functioning in society.
➔ contravening the code of practice of the South African Bureau of Standards
that govern environmental accessibility.
➔ failing to eliminate obstacles that unfairly limit or restrict persons with
disabilities from enjoying equal opportunities.
,Section 34 of Act 4 of 2000 states that:
• there is ‘‘overwhelming evidence’’ of the impact of HIV/AIDS on society and
the prejudice and discrimination against people on this ground, and
• therefore, compels the authorities to consider additional measures in this
regard.
• The courts are, however, empowered to decide that HIV/AIDS is a
prohibited ground of discrimination.
The ‘‘Code of good practice: Key aspects of HIV/AIDS and employment’’ published
(in GN R1298 GG 21815 of 1 Dec 2000) under the Labour Relations Act 66 of 1995
and the Employment Equity Act 55 of 1998 seeks inter alia to eliminate unfair
discrimination in the workplace based on an employee’s HIV status.
The Schedule to Act 4 of 2000 contains a list of examples of unfair practices in the
health care sector, such as:
• subjecting persons to medical experiments without their informed consent.
• unfairly denying or refusing any person access to healthcare facilities or
failing to make health care facilities accessible to any person.
• refusing to provide emergency medical treatment to persons of particular
groups identified by one or more of the prohibited grounds.
• refusing to provide reasonable health services to the elderly.
The Act read with the Bill of Rights it is clear, however, that there is no duty upon
private practitioners or hospitals to give access to these facilities or render these
services free of charge.
Unfair discrimination is however not solely prohibited to protect patients. In terms
of the National Health Act 61 of 2003 (s 20) unfair discrimination against health
care personnel on the grounds of their health status is also prohibited.
,2. The Right to Life
Section 11 of the Constitution provides that everyone has the right to life.
Abortion
In Christian Lawyers Association of SA v Minister of Health 1998 a
provincial court ruled that the Choice on Termination of Pregnancy Act 92
of 1996, governing abortion, was not in conflict with the constitutional right
to life.
The Act was challenged on the ground that it allows the termination
of human life.
The court, however, held that the word ‘‘everyone’’ does not include a
foetus.
‘‘The value of life: Christian Lawyers Association of SA v Minister of
Health 1999 criticises this finding.
She convincingly argues that an investigation into the
constitutionality of the Act may not be reduced to the question
whether the foetus is vested with the right to life.
The state has a duty to promote the right to life, and to her mind that
means that the state probably has a justiciable duty to enact
legislation which properly protects foetal life.
In Stewart v Botha 2008 (6) SA 310 (SCA) the Supreme Court of Appeal
rejected the action for wrongful life.
In this type of action the disabled child (or his or her parents on behalf
of the child) claims from the doctor on the grounds that the doctor’s
behaviour (usually an omission or failure to act) was the reason that the
parents of the child were denied the choice during the period that the
mother was pregnant with the child to have the child aborted because
of his or her disability.
The court argues that in this type of action the courts are expected to
weigh life as a disabled child up against no life.
Such an action can only succeed if the court finds that it would have
been better for the disabled child never to have been born.
, This finding implies that life as a disabled person is in itself regarded
as damage.
To choose no life above life as a disabled person violates the
sanctity of human life, and therefore the court rejected the action.
The court referred to the sanctity of human life and section 11 of the
Constitution in the same breath, and it is clear that the court sees a close
link between the concept of sanctity of human life and the
constitutional right to life.
We submit that this decision supports the idea that the state has a
duty to honour, protect and promote the value of life.
Johannesburg Country Club v Stott 2004 (5) SA 511 (SCA) the defendant
alleged that the indemnity clause excludes liability towards the dependant
of a person who died as result of the defendant’s negligence.
The court did not need to decide on this point, but Harms JA made the
following statement obiter:
A final consideration is the radical nature of the exclusion of liability for
damages for negligently causing the death of another.
It is arguable that to permit such exclusion would be against public policy
because it runs counter to the high value the common law and, now, the
Constitution place on the sanctity of life.
3. The right to freedom and security of the person
Section 12 of the Constitution subsection 2:
Everyone has the right to bodily and psychological integrity, which includes the
right –
(a) to make decisions concerning reproduction;
(b) to security in and control over their body; and
(c) not to be subjected to medical or scientific experiments without their
informed consent.
