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Ethics and law

Ethics and law. Ethics and the law cannot be separated . There are similarities between ethics and law, as both strive to determine what is right in human interaction and society.

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Ethics and law

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  1. Ethics and law • Ethics and the law cannot be separated. • There are similarities between ethics and law, as both strive to determine what is right in human interaction and society. • The difference however is that lawis a public and political process whilst ethics is the emanating of personal values (internal versus external pressure). 2009 ETHICS AND JURISPRUDENCE Dr N Nortje

  2. Three broad categories of ethics exist: 2009 ETHICS AND JURISPRUDENCE Dr N Nortje

  3. Morality vs. Ethics Morality is defined as belief-derived Ethics as derived from principles. The difference is not a function of what, but rather of how derived. Morality: shared by cultural, religious, secular (e.g. Humanist) and philosophical communities who share concepts and beliefs, by which people determine whether given actions are right or wrong. 2009 ETHICS AND JURISPRUDENCE Dr N Nortje

  4. INTERNATIONAL CODES • Hippocratic Oath (4th Century BCE) • The Nuremberg Code (1947) • The 1948 Universal Declaration of • Human Rights • The Declaration of Helsinki (1964) 2009 ETHICS AND JURISPRUDENCE Dr N Nortje

  5. THEORIES Libertarian theory Communitarian theory Egalitarian theories (Deontology) Consequentialism (Utilitarianism) Principilism 2009 ETHICS AND JURISPRUDENCE Dr N Nortje

  6. PRINCIPILISM 2009 ETHICS AND JURISPRUDENCE Dr N Nortje

  7. THE LAW South African health care system non-socialised system (private and public sectors). Department of Health: 75-80% of population have limited access to health services. Patient and health professional enter into contract. The law has placed important limitations upon the terms of the contract between health professional and patient. 2009 ETHICS AND JURISPRUDENCE Dr N Nortje

  8. THE BILL OF RIGHTS (BOR) • Chapter 2 of the Constitution of the Republic of South Africa (1996): The Bill of Rights • The prohibition of unfair discrimination (Section 9) • Prohibits discrimination on the ground of disability • Schedule to Act 4 of 2000: • subjecting persons to medical experiments without their informed consent; • unfairly denying or refusing any person access to health care 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. 2009 ETHICS AND JURISPRUDENCE Dr N Nortje

  9. BOR The right to life (Section 11) Section 11 provides that everyone has the right to life. This right is, of course, also protected by common law. Choice on Termination of Pregnancy Act 92 of 1996: The word ``everyone'', does not include a foetus. 2009 ETHICS AND JURISPRUDENCE Dr N Nortje

  10. BOR The right to freedom and security of the person (section 12) Provides the following in 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. 2009 ETHICS AND JURISPRUDENCE Dr N Nortje

  11. BOR • The right to privacy (Section 14) • Section 14 protects the right to privacy in general terms, and confidentiality. • The Act stipulates that all information concerning a user, including information relating to his/her health status, treatment or stay in a health establishment, is confidential. Such information may not be disclosed unless: • (a) the patient consents in writing to disclosure • (b) a court order or any law requires that disclosure • non-disclosure presents a serious threat to public • health. 2009 ETHICS AND JURISPRUDENCE Dr N Nortje

  12. The right to health care (Section 27) Section 27 (dealing inter alia with health care) provides inter alia that: (a) everyone has the right to have access to health-care services, including reproductive health care (s 27(1)(a)) (b) no one may be refused emergency medical treatment (s 27(3)) BOR • The right to health care (Section 27) • Section 27 (dealing inter alia with health care) provides inter alia that: • everyone has the right to have access • to health-care services, including reproductive health care (s 27(1)(a)) • (b) no one may be refused emergency • medical treatment (s 27(3)) 2009 ETHICS AND JURISPRUDENCE Dr N Nortje

  13. BOR The rights of children (Section 28) Section 28 (children) provides inter alia that every child has the right to basic health-care services. The right to information (Section 32) Section 32 (access to information) provides as follows in subsection (1): Everyone has the right of access to: (a) any information held by the state; and (b) any information that is held by another person and that is required for the exercise or protection of any rights. 2009 ETHICS AND JURISPRUDENCE Dr N Nortje

  14. BOR The rights of prisoners (Section 35) Section 35, dealing with the rights of arrested, detained and accused persons, provides inter alia that such persons have the right to conditions of detention that are consistent with human dignity, including the provision of adequate medical treatment at state expense. The section also guarantees the right of a detained person to communicate with and be visited by that person's chosen medical practitioner. 2009 ETHICS AND JURISPRUDENCE Dr N Nortje

  15. Kohlberg's Theory of Moral Development 2009 ETHICS AND JURISPRUDENCE Dr N Nortje

  16. CASE STUDY APPROACHES 2009 ETHICS AND JURISPRUDENCE Dr N Nortje

  17. AUTONOMY Autonomy = Greek autos (self) and nomos (rule) The argument of autonomy Kantian philosophy (_________) Immanuel Kant, all persons have unconditional worth, the capacity to determine their moral destiny and individual rights 2009 ETHICS AND JURISPRUDENCE Dr N Nortje

  18. AUTONOMY “…to respect an autonomous agent is, at a minimum, to acknowledge that person’s right to hold views, to make choices, and to take actions based on personal values and beliefs…It also requires more than non-interference in other’s personal affairs.” Beauchamp and Childress (2001:63) 2009 ETHICS AND JURISPRUDENCE Dr N Nortje

  19. AUTONOMY John Stuart Mill (the father of the utilitarian school of thought) supports Kant in his concern that society should allow a person to develop according to his or her own views as long as that person's expression of freedom does not interfere with the freedom of expression of another person. 2009 ETHICS AND JURISPRUDENCE Dr N Nortje

  20. AUTONOMY • Personal autonomy (Beauchamp and Childress (2001:58): • is a minimum self-rule • free from both controlling interference by others • well informed about the dangers and • consequences • choices can make an unbiased • without being pressured into any specific camp • full disclosure of all available information to the • individual (adverse or not) 2009 ETHICS AND JURISPRUDENCE Dr N Nortje

  21. AUTONOMY Properly informed individual can give informedconsent on a voluntary basis, by a competent individual. 2009 ETHICS AND JURISPRUDENCE Dr N Nortje

  22. CONSENT Consent (MRC (2002b:13)), may not be induced, as pointed out by the by fear, force, threats, duress, coercion, compulsion, deceit, fraud, undue influence, perverse incentives or financial gain. Hence there should be no personal gain or loss if the individual decides to participate or not to participate in the research. 2009 ETHICS AND JURISPRUDENCE Dr N Nortje

  23. CONSENT Although consent in writing facilitates subsequent proof and is most desirable in the case of serious procedures, it would be impractical for the health care provider to obtain written consent from the patient with each treatment. 2009 ETHICS AND JURISPRUDENCE Dr N Nortje

  24. CONSENT Consent generally takes place by way of a request made by the patient for a specific form of treatment or an operation. It takes place just as often by mere tacit submission to the treatment. 2009 ETHICS AND JURISPRUDENCE Dr N Nortje

  25. CONSENT The health care professional's duty to inform the patient To be legally valid, consent must be based on substantial knowledge concerning the nature of the act consented to. Major debate = what are the criterion (or criteria) for the amount of information that a health care professional must convey to his or her patient concerning the diagnosis and in particular the risks attendant upon the proposed treatment or operation? 2009 ETHICS AND JURISPRUDENCE Dr N Nortje

  26. CONSENT Although there is no need for the health care professional to meticulously point out all the conceivable complications that may arise the patient should at least be informed of the serious risks involved in the operation. Where the risk of a particular form of treatment is extremely uncommon, the health care professional cannot be held liable for failure to mention such possibility to the patient. 2009 ETHICS AND JURISPRUDENCE Dr N Nortje

  27. CONSENT The wise health care professional will ensure that he does not overestimate the patient's intellectual level, and will avoid technical terminology in describing to the patient the nature and scope of the operation and any serious consequences or complications that may result from it. Although health care professionals will frequently inform the patient of the diagnosis, this is not considered an absolute requirement in law. But where the patient postulates information about the diagnosis as a condition to consent, this should be made known to him. 2009 ETHICS AND JURISPRUDENCE Dr N Nortje

  28. CONSENT Tests, including HIV/AIDS tests, and informed consent Urine or blood specimens (general) no obligation to explain what these samples will be tested for However, the taking of a blood specimen for purposes of testing it for HIV = informed consent. Also adequate counselling. There can only be consent if the person appreciates and understands what the purpose of the test is, what an HIV-positive result entails, and what the probability of AIDS occurring thereafter is. 2009 ETHICS AND JURISPRUDENCE Dr N Nortje

  29. SUBSTITUTED CONSENT • No consent and also no PROXY • 2. No consent but a PROXY has mandate 2009 ETHICS AND JURISPRUDENCE Dr N Nortje

  30. SUBSTITUTE CONSENT No consent and also no PROXY spouse or partner a parent grandparent an adult child a brother or sister Minister of Health 2009 ETHICS AND JURISPRUDENCE Dr N Nortje

  31. MINORS No consent but a PROXY has mandate Minors A parent or guardian subject to parental authority Parents refuse consent on religious or other grounds - section 39(1) of the Child Care Act 74 of 1983 The subsection provides that where a health professional is of the opinion that it is necessary to perform the operation or submit the child to treatment, and the parent or guardian refuses consent, the health professional must report the matter to the Minister, who may then consent in lieu of the parent or guardian. The same provision applies where the parent cannot be found, or is by reason of mental illness unable to consent, or is deceased. 2009 ETHICS AND JURISPRUDENCE Dr N Nortje

  32. MINORS Section 39(4) of the Child Care Act 74 of 1983: makes it possible for a minor who is 18 years or older to independently consent to a medical operation, and a child who is 14 years or older, to medical treatment. 2009 ETHICS AND JURISPRUDENCE Dr N Nortje

  33. MINORS A minor female may in terms of the Choice of Termination of Pregnancy Act 92 of 1996 consent independently to abortion. No age limit is prescribed by the Act. However, the intellectual maturity of the girl should be such as to enable her to appreciate the nature of the intervention. 2009 ETHICS AND JURISPRUDENCE Dr N Nortje

  34. MINORS Minors have to be 12 years of age in order to request - without parental consent - contraceptives 2009 ETHICS AND JURISPRUDENCE Dr N Nortje

  35. SPOUSE Spouses Spouses can consent independently to any type of medical intervention, even interventions affecting procreation, such as contraception, sterilisation or abortion, and even if they are married in community of property. The consent of a married woman's husband is not a requirement for artificial insemination, but in the absence of the husband's consent, the child born as a result of such artificial insemination may not be regarded as the legitimate child of the husband (see the Children's Status Act 82 of 1987). A husband has no right to force his wife to undergo an operation against her will or even to submit to medical examination. 2009 ETHICS AND JURISPRUDENCE Dr N Nortje

  36. CONFIDENTIALITY • Confidentiality / Invasion of privacy • A health care practitioner may only divulge information regarding a patient which: • The patient has consented to; • at the instruction of a court of law; • or where justified by public interest. 2009 ETHICS AND JURISPRUDENCE Dr N Nortje

  37. CASE STUDY APPROACH 2009 ETHICS AND JURISPRUDENCE Dr N Nortje

  38. CASE STUDY TUSKEGEE TERRY SCHIAVO 2009 ETHICS AND JURISPRUDENCE Dr N Nortje

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