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MBBCh 3- Themes > INTRODUCTION TO LAW: HEALTH AND THE LAW > Flashcards

INTRODUCTION TO LAW: HEALTH AND THE LAW Flashcards

1
Q

Why do I have to consider Health Law?

CONSIDER THE FOLLOWING: (5)

A
  • When should it be decided to withdraw efforts to save a patient’s life and give only comfort care?
  • Should an expectant mother be restrained from taking drugs / smoking / consuming alcohol?
  • Should a physician respect a patient’s confidentiality if this would put his partner’s life at risk?
  • Who should receive the life-saving organ transplant?
  • Should we be allowed to edit genes?
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2
Q

What is the law?

A
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3
Q

What is the relationship between state and subject in public law?

A
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4
Q

What is the relationship between state and subject in private law?

A
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5
Q

What is substantive law?

A

Tells us what the law actually is. Substantive law is the set of laws that governs how members of a society are to behave.

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6
Q

What are the types of Substantive law? (2)

A

Public law and Private law

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7
Q

What are the types of public law? (3)

A
  • Constitutional Law
  • Administrative Law
  • Criminal Law
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8
Q

What are the types of private law? (5)

A
  • Law of Patrimony
  • Law of Persons
  • Family Law
  • Law of Personality
  • Indigenous Law
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9
Q

What is Adjectival/Procedural Law?

A

Mechanism of enforcing substantive law.

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10
Q

What are the types of Adjectival/Procedural Law? (4)

A
  • Law of Criminal Procedure
  • Law of Civil Procedure
  • Law of Evidence
  • Legal Interpretation.
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11
Q

What are the types of law of patrimony? (4)

A
  • Law of obligations
  • Property Law
  • Law of Succession
  • Law of Intellectual Property
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12
Q

What are the types of the law of obligations? (2)

A

Law of Contract
Law of Delict (negligent behaviour eg. medical practice)

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13
Q

What is the South African law of delict?

A

The South African law of delict engages primarily with ‘the circumstances in which one person can claim compensation from another for harm that has been suffered’.

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14
Q

Criminal case:

WHEN?

A

A wrong against the state has been committed

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15
Q

Criminal case:

PURPOSE?

A

The STATE wants to punish / prosecute or charge the ACCUSED

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16
Q

Criminal case:

OUTCOME?

A

ACCUSED is found guilty or not guilty

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17
Q

Criminal case:

PROOF?

A

Guilty beyond a reasonable doubt (high standard of proof)

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18
Q

What is a crime?

A

A CRIME IS A WRONG AGAINST THE STATE FOR WHICH THE WRONGDOER IS PUNISHED BY THE STATE.

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19
Q

Civil case:

WHEN?

A

An individual’s rights have been infringed by another
individual / parties cannot come to an agreement

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20
Q

Civil case:

PURPOSE?

A

To claim damages / compensation for injuries / damages suffered

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21
Q

Civil case:

OUTCOME?

A

Remedies are granted / compensation is provided

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22
Q

Civil case:

PROOF?

A

On a balance of probabilities (the facts given should be
more true than not true)

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23
Q

What is a civil wrong?

A

A CIVIL WRONG IS A WRONG AGAINST AN INDIVIDUAL FOR WHICH THE WRONGDOER MUST PAY COMPENSATION TO THE INJURED PERSON

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24
Q

What are primary sources?

A

All legal research starts with primary sources Primary sources are binding.

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25
Q

What are secondary sources?

A

Secondary sources are merely persuasive Secondary sources are not binding.

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26
Q

PRIMARY SOURCES:

Where do I find the law? (6)

A
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27
Q

SECONDARY SOURCES:

Where do I find the law? (3)

A
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28
Q

Primary Sources: Legislation

FIRST STEP:

A

Seek what legislation is applicable to the problem you are dealing with

29
Q

What is the constitution?

A

All law, and not only legislation is always subject to the Constitution.

The Constitution is the Supreme (highest) law of the land and no other law may be in conflict with it

30
Q

What is the KEY legislation?

A

National Health Act 61 of 2003; Children’s Act 38 of 2005; Mental Health Act 17 of 2002; Medicines and Related Substances Control Act 101 of 1965; Choice on Termination of Pregnancy Act 92 of 1996

31
Q

What is the parliament?

A

Highest law-making body in the country

32
Q

What is authority?

A

Legislation is the quickest and most effective way to amend old laws and create new ones.

33
Q

When do we need legislation?

A

Gaps present, needs of modern society, loopholes.

34
Q

Legislation - branches of law?

A

Legislature creates laws whereas judiciary tests laws

35
Q

What is the hierarchy of law in SA? (4)

A
36
Q

How is a Law made?

A
37
Q

The Constitution: THE BILL OF RIGHTS and Health

A
38
Q

Primary Sources: Case Law

SECOND STEP:

A

If there is no legislation on a specific topic. Seek what case law is applicable to the problem you are dealing with.

39
Q

What is the role of the the Courts (Judiciary)?

A

The Courts are institutions that apply the law on a daily basis. When people cannot solve their problems themselves or when they are suspected of committing a crime, such cases may end up in court.

The court will then ascertain the law, apply it to the case and give judgment

40
Q

Primary Sources: Case Law

Published decision, consists:

A

facts, arguments, reason for decision

41
Q

Primary Sources: Case Law

Reasons for the decision:

A

Sets out the relevant legal rules, creates a precedent - binding other courts.

42
Q

Primary Sources: Case Law

Remarks in passing:

A

Do not create a precedent - not binding.

43
Q

Primary Sources: Case Law

Hierarchy of courts:

A

Courts are divided between high and lower courts.

44
Q

Hierarchy of Courts: (4)

A
  1. Constitutional Court
  2. Supreme Court of Appeal
  3. High Court
  4. Magistrates Court
45
Q

Constitutional Court =

A

THE HIGHEST COURT IN THE LAND

46
Q

Supreme Court of Appeal =

A

IT IS BOUND BY ITS OWN PREVIOUS JUDGMENTS UNLESS THEY ARE WRONG
THE JUDGMENTS OF THIS COURT BINDS ALL SUBORDINTE COURTS IN THE COUNTRY

47
Q

High Court =

A

BOUND BY THE JUDGMENTS OF THE S.C.A
IF THERE AREN’T ANY – BOUND BY THEIR OWN PREVIOUS JUDGMENTS UNLESS THEY ARE WRONG THE HIGH COURT IN A SPECIFIC PROVINCE IS NOT BOUND BY THE DECISIONS OF ANOTHER PROVINCE – ONLY PERSUASIVE VALUE

(One in each province; deal with any amount of money)

48
Q

Magistrates Court =

A

BOUND BY THE JUDGMENTS OF THE S.C.A IF THERE AREN’T ANY BOUND BY THE DECISIONS OF THE HC IN THEIR PROVINCE

Two types: District (claims up to and including R200k) and Regional (claims up to and including R400k) courts

49
Q

How to ‘read’ legislation:

A
50
Q

How to ‘apply’ legislation:

A
51
Q

‘Reading’ a case citation:

A
52
Q

WHAT ARE “HUMAN RIGHTS?” (3)

A
  • HUMAN RIGHTS PRIMARILY PROTECT INDIVIDUALS FROM STATE POWER
  • EVERY PERSON IS BORN WITH THESE RIGHTS
  • THEY ENSURE THAT ALL PEOPLE HAVE A BASIC CLAIM THAT THE GOVERNMENT SHOULD TREAT THEM WITH RESPECT AND CONCERN
53
Q

What are the THREE GENERATIONS OF HUMAN
RIGHTS?

A
  1. FIRST GENERATION RIGHTS – POLITICAL AND CIVIL RIGHTS
  2. SECOND GENERATION RIGHTS – SOCIO-ECONOMIC RIGHTS
  3. THIRD GENERATION RIGHTS – CULTURAL RIGHTS
54
Q

What are First Generation Rights?

A

First Generation Rights, also known as “Blue Rights,” encompass political and civil rights aimed at providing a shield for the individual against state authority and guaranteeing freedom from unlawful interference by the state.

55
Q

How do First Generation Rights operate?

A

First Generation Rights operate on a vertical level between the state and the individual.

56
Q

What are examples of First Generation Rights?

A

Examples of First Generation Rights include the right to freedom of speech, association, and religion, the right to be treated equally, the right to life, and the right to human dignity.

57
Q

What is the significance of First Generation Rights?

A

First Generation Rights are crucial in protecting individuals’ fundamental liberties and ensuring their dignity and autonomy.

58
Q

Can you attach a monetary value to First Generation Rights?

A

It is challenging to attach a monetary value to First Generation Rights as they are essential for safeguarding fundamental liberties, which transcend monetary considerations.

59
Q

What are Second Generation Rights?

A

Second Generation Rights, also known as “Red Rights,” encompass socio-economic rights that require the state to take positive action rather than refrain from specific actions.

60
Q

How do Second Generation Rights differ from First Generation Rights?

A

Second Generation Rights do not give the individual a shield against the state but rather a sword to demand socio-economic resources controlled by the state.

61
Q

What are examples of Second Generation Rights?

A

Examples of Second Generation Rights include the right to medical care, housing, and education.

62
Q

Can you attach a monetary value to Second Generation Rights?

A

It is challenging to attach a monetary value to Second Generation Rights as they involve access to essential socio-economic resources, which are not solely measured in monetary terms.

63
Q

What are Third Generation Rights?

A

Third Generation Rights, also known as “Green Rights,” pertain to cultural rights that focus on groups rather than individuals.

64
Q

How do Third Generation Rights differ from First and Second Generation Rights?

A

Third Generation Rights emphasize collective rights related to culture and environment, while First and Second Generation Rights focus on individual and socio-economic rights, respectively.

65
Q

What are examples of Third Generation Rights?

A

An example of a Third Generation Right is the right to a healthy living environment, which emphasizes the collective well-being and environmental sustainability.

66
Q

What is the significance of Third Generation Rights?

A

Third Generation Rights highlight the importance of preserving cultural heritage and environmental sustainability for present and future generations.

67
Q

The nature of the relationship between a healthcare practitioner / hospital and a patient can be based on a _____ or ____ or both.

A

contract
delict

68
Q

DUTIES TOWARDS THE PATIENT: (5)

A
  • Inform the patient of the treatment to be given
  • Receive consent
  • Exercise the patient’s instructions honestly, faithfully and with due care;
  • Complete the treatment once commenced;
  • Respect confidentiality
69
Q

PATIENT’S DUTIES: (3)

A
  • Make himself available for treatment;
  • Comply with the instructions of the healthcare practitioner;
  • Pay the medical bill once provided

MBBCh 3- Themes (27 decks)

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