The Realization of Children’s Rights to Participate in Selected Medical Decisions in South Africa

by | Sep 1, 2019 | SALJ V135 I1 2018

The Realization of Children’s Rights to Participate in Selected Medical Decisions in South Africa

Authors Hanneretha Kruger

ISSN: 1996-2177
Affiliations: Professor of Private Law, University of South Africa
Source: South African Law Journal, Volume 135 Number 1, May 2018, p. 73 – 100

Abstract

Article 12 of the United Nations Convention on the Rights of the Child, read with other relevant provisions of the Convention, allows for three levels of participation by children in medical decision-making: the right of all children to be informed (level 1), the right of all children capable of forming their own views to express those views (level 2), and the right of children capable of forming their own views to have the expressed views given due weight in accordance with their age and maturity (level 3). (The African Charter on the Rights and Welfare of the Child contains a similar provision in art 7.) This article examines the realization of this right in the context of selected medical decisions in South Africa. Consent to medical treatment and operations and termination of pregnancy are considered. The level of participation afforded to children in each of these cases is determined and recommendations are made for further enhancing the realization of art 12 in the context of medical decision-making in South Africa.

An Alternative Approach to Informed Consent

by | Sep 1, 2019 | SALJ V135 I1 2018

An Alternative Approach to Informed Consent

Authors Anton Loggerenberg

ISSN: 1996-2177
Affiliations: Advocate of the High Court of South Africa
Source: South African Law Journal, Volume 135 Number 1, May 2018, p. 55 – 72

Abstract

In this article I argue that the time-honoured approach to informed consent in South African medical law is unsound and fails to explain why liability is imposed as a consequence of a healthcare practitioner’s failure to obtain informed consent. I challenge this approach on the basis that a medical intervention performed with a patient’s express consent cannot amount to an assault merely because the healthcare practitioner omitted to disclose a material risk to the patient. Having regard to recent case law, an alternative approach is considered based on an omission which amounts to an actual wrong committed by a healthcare practitioner.

Further Reflections on Wrongfulness in the Law of Delict

by | Sep 1, 2019 | SALJ V135 I1 2018

Further Reflections on Wrongfulness in the Law of Delict

Authors Anton Fagan

ISSN: 1996-2177
Affiliations: W P Schreiner Professor of Law, University of Cape Town
Source: South African Law Journal, Volume 135 Number 1, May 2018, p. 18 – 54

Abstract

This article revisits the author’s article ‘Rethinking wrongfulness in the law of delict’, which was published in this journal in 2005. The author argues that the analysis in the original articles was misleading in two respects. On the one hand, it under-played the extent to which the determination of whether negligent harm-causing conduct was wrongful is regulated by law. On the other hand, it over-emphasised the degree to which that determination depends on the reasonableness of imposing liability. This article aims to correct these flaws. The article discusses the many legal rules which have to be applied in order to determine whether negligent harm-causing conduct was wrongful, before going on to discuss the deeper-lying considerations by which the wrongfulness of negligent harm-causing conduct is to be determined whenever it cannot be determined by application of the law alone, but must be determined also by the exercise of judicial discretion.

Whose Decisis Must We Stare?

by | Aug 26, 2019 | SALJ V135 I1 2018

Whose Decisis Must We Stare?

Authors Malcolm Wallis

ISSN: 1996-2177
Affiliations: Judge of the Supreme Court of Appeal
Source: South African Law Journal, Volume 135 Number 1, May 2018, p. 5 – 17

Abstract

The article explores the consequences for the application of the doctrine of precedent of the Constitution Seventeenth Amendment Act of 2012 and the Superior Courts Act 10 of 2013. It suggests that the effect of creating a single high court must be to require a reconsideration of the rules hitherto applied in relation to stare decisis, and formulates an alternative approach that is both consistent with the constitutional structure of the courts and provides the necessary flexibility to enable courts to engage in debates concerning the interpretation of novel legislation and the development of the common law.