An introduction to aspects of health law : bioethical principles, human rights and the law

• Pages: 7-10
• Date: 01 June 2008
• DOI: 10.10520/EJC64466
• Published date: 01 June 2008
• Author: David McQuoid-Mason

7 June 2008, Vol. 1, No. 1 SAJBL

Article

Bioethical principles,1 human rights and the law are interlinked.

Aspects of the principles of autonomy, benecence, non-ma-

lecence and justice are included in the South African Consti-

tution2 and the country’s statutory and common law. A breach

of these ethical principles and the Constitution may lead to an

action for medical malpractice or professional negligence.

In this paper, I explore the link between bioethical princi-

ples, human rights and the law.

Autonomy, human rights and the law

The principle of patient autonomy recognises the duty of health

professionals to respect the freedom of patients to make de-

cisions for themselves.1 Autonomy is recognised in the Con-

stitution in the provisions regarding the right to bodily and

psychological integrity;3 the right to privacy;4 the right to life5

(which includes the right of mentally competent patients not to

live by refusing treatment);6 the right to freedom of movement7

(e.g. the right of mentally competent patients to voluntarily dis-

charge themselves);8 and the right to freedom of religion and

belief 9 (e.g. respecting a mentally competent patient’s right to

refuse medical treatment for themselves on religious grounds

– but not necessarily to refuse treatment for their children in

life-threatening situations).10 Given that informed consent and

condentiality are cornerstones of medical practice, I shall fo-

cus on the right to bodily and psychological integrity and the

right to privacy.

Bodily and psychological integrity

According to the Constitution, everyone has the right to bodily

and psychological integrity, which includes the right: (i) to make

decisions about reproduction; (ii) to security and control over

their body; and (iii) not to be subjected to medical or scientic

experiments without their consent.3 An infringement of these

rights (e.g. by treating a person without his consent) would not

only be a breach of his constitutional rights but also a breach

of the National Health Act.11

The National Health Act5 provides that, as part of informed

consent, every health care provider must inform a user or

patient, in a language the user understands, of (i) the user’s

health status – except where it would be contrary to the best in-

terests of the user; (ii) the range of diagnostic procedures and

treatment options available to the user; (iii) the benets, risks,

costs and consequences generally associated with each op-

tion; and (iv) the user’s right to refuse health services, includ-

ing an explanation of the implications, risks and obligations of

such refusal.12

According to the National Health Act,13 patients may only

be treated without consent in emergency situations where: (i)

failure to treat the patient or a group of people which includes

the patient, will result in a serious risk to public health (e.g.

patients with extremely drug-resistant tuberculosis); or (ii) any

delay in the provision of treatment may result in the patient’s

death or irreversible damage to his health while he has not

expressly or impliedly or by conduct refused the service (e.g.

refusing a blood transfusion for religious reasons). The latter

provision mirrors common law.14

In common law, treating a patient without informed consent

would be unlawful and would constitute assault.15 In terms of

common law, informed consent means that the patient must

have: (i) the capacity to consent; (ii) knowledge of the nature

and extent of the harm or risk involved in the treatment or pro-

cedure; (iii) an appreciation and understanding of the nature of

the harm or risk; (iv) voluntarily consented to accepting the harm

or assuming the risk; and (v) given a comprehensive consent

extending to the entire transaction and its consequences.6

The term ‘risk’ in common law refers to ‘material risk’, which

means that: (i) a reasonable person in the patient’s position, if

warned about it, would attach signicance to it; and (ii) the at-

tending doctor should reasonably be aware that the patient, if

warned, would attach signicance to it.6

Privacy and condentiality

According to the Constitution, everyone has a right to privacy

which includes not having the privacy of their communications

infringed.4 A breach of condentiality by a medical practitioner

or other health care professional is clearly an impairment of a

patient’s right not to have the privacy of his communications in-

fringed. Likewise, obtaining information about a person without

his consent would amount to an invasion of privacy. For exam-

ple, the failure to obtain proper consent to test a person’s blood

after he had voluntarily given a blood sample, was held to be a

violation of the person’s constitutional right to privacy.16

An invasion of privacy would also be a contravention of the

National Health Act.5 According to this Act, all information con-

cerning a user of health services, including information relating

to his health status, treatment or stay in a health establish-

ment, is condential. Such information may not be disclosed

unless: (i) the user consents to the disclosure in writing; (ii) a

court order or any law requires the disclosure; or (iii) non-dis-

closure of the information would represent a serious threat to

public health.17

According to common law, it would amount to an action-

able invasion of privacy to obtain information about a patient’s

health status, or to make disclosures about a person’s health

status, without his consent. For example, a doctor was held

liable for invasion of privacy where, without the patient’s con-

sent, he disclosed the patient’s HIV status on a social occasion

to health professionals who were not treating the patient.18

Benecence, human rights and the law

The principle of benecence recognises the duty of health

professionals to do good for their patients.1 Benecence is

recognised in the provisions of the Constitution that state that

everyone has a right to life19 (e.g. patients should be provided

An introduction to aspects of health law: bioethical principles,

human rights and the law

David McQuoid-Mason, BComm LLB, LLM, PhD

Centre for Socio-Legal Studies, University of KwaZulu-Natal, Durban

mcquoidm@ukzn.ac.za