2024 MEDICAL LAW
ASSIGNMENT 2
QUESTION 1
In our constitutional dispensation all law is subject to the provisions of the Constitution
of the Republic of South Africa, 1996 (hereinafter 'the Constitution'. A significant
number of the provisions of the Bill of Rights may come into play in various situations
pertaining to medical law the Constitutional rights in the drop down list to the statutory
provisions, case law and rights listed on the left-hand side to which it pertains
Stewart v Botha 2008 (6) SA 310 (SCA) SECTION 11
Medical practitioners' right to just SECTION 33
administrative action by the Health
Professions Council of South Africa
The Promotion of Equality and SECTION 9
Prevention of Unfair Discrimination Act 4
of 2000
The liberal provisions of the Choice on 12(2)(a)
Termination of Pregnancy Act 92 of 1996
Soobramoney v Minister of Health, SECTION 27(1) ND (2)
KwaZulu-Natal 1998 (1) SA 765 (CC)
McDonald v Wroe [2006] 3 All SA 565 SECTION 12(2)(b)
(C)
Patient's right of access to his/her SECTION 32
medical records
Section 14 of the National Health Act 61 SECTION 14
of 2003
The right of HIV-positive prisoners to be SECTION 35
provided with prescribed antiviral
treatment at state expense
, Section 5 of the National Health Act 1 of SECTION 27(3)
2003
Queston 2
Gamete donation, artificial fertilisation and embryo transfer are regulated by
law. Which of the following are absolutely prohibited? Select one or more:
NOTE if the question says general prohibited / prohibited only we select all but
if say absolutely prohitbited den those 2 will b applicable
A. Pre-implantation and prenatal testing for selecting the sex of a child This
would be allowed in the case of a serious sex-linked or sex-limited genetic condition.
See 8.3.2.16.
B.. The use of a gamete from a gamete donor of whom the results of the tests for
sexually transmissible diseases, semen analysis or physical examination referred to
above are not available yet See 8.3.2.9 of the study guide
C. A gamete donor receiving any form of financial or other reward for a gamete
donation
D. Transferring more than three zygotes or embryos to a recipient during an embryo
transfer procedure See 8.3.2.15. Provision is made for an exception where there is a
specific medical indication to the contrary.
E. The use of a gamete from a gamete donor younger than 18 years of age Provision
is made for an exception where a medical indication exists. See 8.3.2.9 of the study
guide.
QUESTION 3
Dr Ngubeni, a specialist gynaecologist, performs a rather intricate
gynaecological operation on a patient, Funeka. He uses the services of Dr Seabi,
a general practitioner, to assist at the operation. Dr Ngubeni allows Dr Seabi to
do some of the surgery for which she has no experience independently. Dr Seabi
cuts Funeka’s uterine artery, leading to massive blood loss and necessitating
an emergency hysterectomy. Which of the following statements regarding this
scenario is/are correct? Select one or more:
,A. Dr Ngubeni can incur vicarious liability for the delict committed by Dr Seabi. Dr
Ngubeni can only incur direct liability based on his own negligence in choosing an
incompetent or inexperienced assistant. Culpa in eligendo is a form of direct liability,
not vicarious liability. Vicarious liability is a form of faultless liability. See 10.3.1 and
10.3.2 of the study guide.
B. Any lack of knowledge, skill or competence required on the part of Dr Seabi to be
able to perform the surgery involved will be reckoned as negligence and she will
automatically incur liability on that basis, there being no need for Funeka first to show
that Dr Seabi in fact knew or reasonably ought to have known that she was not equal
to the task.
C. If Dr Seabi knew or reasonably ought to have known that she (Dr Seabi) lacked the
necessary competence and experience to do the surgery, she can incur liability on the
basis of imperitia culpae adnumeratur. See 9.5.4 of the study guide.
D. If Dr Ngubeni knew that Dr Seabi had insufficient skill and experience to perform
the surgery which eventually led to the hysterectomy, Dr Ngubeni can incur liability
based on culpa in eligendo. See 10.3 of the study guide.
E. If the circumstances were such that the reasonable specialist gynaecologist would
not have engaged Dr Seabi to perform the surgery due to her lack of knowledge and
experience, Dr Ngubeni could incurB direct liability for Dr Seabi's delict based on his
own negligence. See Activity 6 on p 277 of the study guide, and the feedback thereto
on p 27
QUESTION 4
Death is an important concept in medical law. Which of the following statements
regarding death and its legal implications is/are correct? Select one or more
a. Causing a patient's death in a unlawful/wrongful and negligent way exposes a
doctor to both criminal and delictual liability.
Gb. A doctor can be convicted of culpable homicide for unlawfully and negligently
causing a patient to fall into a persistent vegetative state as this is tantamount to death.
c. A doctor can incur liability for the death of a patient if through his or her failure to
take positive action, the patient died and the boni mores demand that the doctor ought
to have acted in the particular circumstances in order to prevent the patient's death.
, See 5.6.1 and the Activities to study unit 5, Question 3 (c) on p 125-126 of the study
guide.
d. Legally speaking, the death of a patient whilst undergoing a procedure of
therapeutic, diagnostic or palliative nature is deemed to be a death from natural
causes. See 9.2 of the study guide. Section 56 of the Health Professions Act 56 of
1974 declares that the death of a person undergoing, or as a result of, a procedure of
a therapeutic, diagnostic or palliative nature, or of which any aspect of such a
procedure has been a contributory cause, shall not be deemed to be a death from
natural causes as contemplated in the Inquest Act 58 of 1959 or the Births, Marriages
and Deaths Registration Act 51 of 1992.
e. Criminal liability for the death of a patient can be excluded by means of an indemnity
clause.
f. A person can only ever be regarded as legally dead once his or her heart has
stopped beating
. g. E Kahn, The Sanctity of Human Life (Univ of the Witwatersrand 1984) 25 is of the
opinion that a doctor who, in genuinely and reasonably attempting to relieve the pain
of a terminally-ill patient, indirectly hastens the death of the patient, is not guilty of
murder, because the doctor's conduct is not intentional. Kahn is of the opinion that the
doctor should not be liable for murder because of the absence of unlawfulness. See
6.2.2 of the study guide.
h. The National Health Act 61 of 2003 defines the concept 'dead' in the definition
section (s 1) as 'brain dead'. See 6.3.2.2 (a)(i) of the study guide.
i. A doctor can incur criminal liability for performing an act before the birth of a baby
that leads to the death of the baby after its birth.
j. A doctor cannot incur criminal liability for causing the death of an unborn baby.
QUESTION 5
In which of the following cases did the defendant/accused incur liabitility for an
omission? Select one or more:
a. Seema v Executive Member, Gauteng 2002 (1) SA 771 (T)
ASSIGNMENT 2
QUESTION 1
In our constitutional dispensation all law is subject to the provisions of the Constitution
of the Republic of South Africa, 1996 (hereinafter 'the Constitution'. A significant
number of the provisions of the Bill of Rights may come into play in various situations
pertaining to medical law the Constitutional rights in the drop down list to the statutory
provisions, case law and rights listed on the left-hand side to which it pertains
Stewart v Botha 2008 (6) SA 310 (SCA) SECTION 11
Medical practitioners' right to just SECTION 33
administrative action by the Health
Professions Council of South Africa
The Promotion of Equality and SECTION 9
Prevention of Unfair Discrimination Act 4
of 2000
The liberal provisions of the Choice on 12(2)(a)
Termination of Pregnancy Act 92 of 1996
Soobramoney v Minister of Health, SECTION 27(1) ND (2)
KwaZulu-Natal 1998 (1) SA 765 (CC)
McDonald v Wroe [2006] 3 All SA 565 SECTION 12(2)(b)
(C)
Patient's right of access to his/her SECTION 32
medical records
Section 14 of the National Health Act 61 SECTION 14
of 2003
The right of HIV-positive prisoners to be SECTION 35
provided with prescribed antiviral
treatment at state expense
, Section 5 of the National Health Act 1 of SECTION 27(3)
2003
Queston 2
Gamete donation, artificial fertilisation and embryo transfer are regulated by
law. Which of the following are absolutely prohibited? Select one or more:
NOTE if the question says general prohibited / prohibited only we select all but
if say absolutely prohitbited den those 2 will b applicable
A. Pre-implantation and prenatal testing for selecting the sex of a child This
would be allowed in the case of a serious sex-linked or sex-limited genetic condition.
See 8.3.2.16.
B.. The use of a gamete from a gamete donor of whom the results of the tests for
sexually transmissible diseases, semen analysis or physical examination referred to
above are not available yet See 8.3.2.9 of the study guide
C. A gamete donor receiving any form of financial or other reward for a gamete
donation
D. Transferring more than three zygotes or embryos to a recipient during an embryo
transfer procedure See 8.3.2.15. Provision is made for an exception where there is a
specific medical indication to the contrary.
E. The use of a gamete from a gamete donor younger than 18 years of age Provision
is made for an exception where a medical indication exists. See 8.3.2.9 of the study
guide.
QUESTION 3
Dr Ngubeni, a specialist gynaecologist, performs a rather intricate
gynaecological operation on a patient, Funeka. He uses the services of Dr Seabi,
a general practitioner, to assist at the operation. Dr Ngubeni allows Dr Seabi to
do some of the surgery for which she has no experience independently. Dr Seabi
cuts Funeka’s uterine artery, leading to massive blood loss and necessitating
an emergency hysterectomy. Which of the following statements regarding this
scenario is/are correct? Select one or more:
,A. Dr Ngubeni can incur vicarious liability for the delict committed by Dr Seabi. Dr
Ngubeni can only incur direct liability based on his own negligence in choosing an
incompetent or inexperienced assistant. Culpa in eligendo is a form of direct liability,
not vicarious liability. Vicarious liability is a form of faultless liability. See 10.3.1 and
10.3.2 of the study guide.
B. Any lack of knowledge, skill or competence required on the part of Dr Seabi to be
able to perform the surgery involved will be reckoned as negligence and she will
automatically incur liability on that basis, there being no need for Funeka first to show
that Dr Seabi in fact knew or reasonably ought to have known that she was not equal
to the task.
C. If Dr Seabi knew or reasonably ought to have known that she (Dr Seabi) lacked the
necessary competence and experience to do the surgery, she can incur liability on the
basis of imperitia culpae adnumeratur. See 9.5.4 of the study guide.
D. If Dr Ngubeni knew that Dr Seabi had insufficient skill and experience to perform
the surgery which eventually led to the hysterectomy, Dr Ngubeni can incur liability
based on culpa in eligendo. See 10.3 of the study guide.
E. If the circumstances were such that the reasonable specialist gynaecologist would
not have engaged Dr Seabi to perform the surgery due to her lack of knowledge and
experience, Dr Ngubeni could incurB direct liability for Dr Seabi's delict based on his
own negligence. See Activity 6 on p 277 of the study guide, and the feedback thereto
on p 27
QUESTION 4
Death is an important concept in medical law. Which of the following statements
regarding death and its legal implications is/are correct? Select one or more
a. Causing a patient's death in a unlawful/wrongful and negligent way exposes a
doctor to both criminal and delictual liability.
Gb. A doctor can be convicted of culpable homicide for unlawfully and negligently
causing a patient to fall into a persistent vegetative state as this is tantamount to death.
c. A doctor can incur liability for the death of a patient if through his or her failure to
take positive action, the patient died and the boni mores demand that the doctor ought
to have acted in the particular circumstances in order to prevent the patient's death.
, See 5.6.1 and the Activities to study unit 5, Question 3 (c) on p 125-126 of the study
guide.
d. Legally speaking, the death of a patient whilst undergoing a procedure of
therapeutic, diagnostic or palliative nature is deemed to be a death from natural
causes. See 9.2 of the study guide. Section 56 of the Health Professions Act 56 of
1974 declares that the death of a person undergoing, or as a result of, a procedure of
a therapeutic, diagnostic or palliative nature, or of which any aspect of such a
procedure has been a contributory cause, shall not be deemed to be a death from
natural causes as contemplated in the Inquest Act 58 of 1959 or the Births, Marriages
and Deaths Registration Act 51 of 1992.
e. Criminal liability for the death of a patient can be excluded by means of an indemnity
clause.
f. A person can only ever be regarded as legally dead once his or her heart has
stopped beating
. g. E Kahn, The Sanctity of Human Life (Univ of the Witwatersrand 1984) 25 is of the
opinion that a doctor who, in genuinely and reasonably attempting to relieve the pain
of a terminally-ill patient, indirectly hastens the death of the patient, is not guilty of
murder, because the doctor's conduct is not intentional. Kahn is of the opinion that the
doctor should not be liable for murder because of the absence of unlawfulness. See
6.2.2 of the study guide.
h. The National Health Act 61 of 2003 defines the concept 'dead' in the definition
section (s 1) as 'brain dead'. See 6.3.2.2 (a)(i) of the study guide.
i. A doctor can incur criminal liability for performing an act before the birth of a baby
that leads to the death of the baby after its birth.
j. A doctor cannot incur criminal liability for causing the death of an unborn baby.
QUESTION 5
In which of the following cases did the defendant/accused incur liabitility for an
omission? Select one or more:
a. Seema v Executive Member, Gauteng 2002 (1) SA 771 (T)
