FST354

ETHICAL & LEGAL ASPECTS IN PHYSIOTHERAPY

Presented by: Mr. A.P. Frewen

UFSapfrewen@yahoo.com

April 19, 2023

CONTACT DETAILS

• LECTURER: Adrian Frewen

• CONTACT DETAILS:

– E-mail:apfrewen@yahoo.com

frewenap@ufs.ac.za

– E-mail me your name, cell nr and enquiry

» I will revert back to you as soon as possible

GENERAL INFORMATION

• STUDY MATERIAL

• The studymaterial for this module is not available yet. You will however be informed as soon as it is available. The slides of today’s lecture contains sufficient information for test and exam purposes.

• At the end of each chapter, under “recap”, is everything that is expected of you to master in that chapter.

GENERAL INFORMATION

• Topics that we are planning to cover in this module, includes the following:

– Consent to treatment

– Liability of practitioners

– Rights of practitioners

– Rights of patients

– Patient’s right to privacy

– Medical records

COURSE DIVISION – FEBRUARY 2012

• Chapter 1:

– Introduction to the South African legal system

• Chapter 2:

– The influence of the Constitution

• Chapter 3:

– Civil liability

• Chapter 4:

– The right to privacy» a complete program for August 2012 will be made available later

Chapter 1:

INTRODUCTION TO THE LEGAL SYSTEM

IN SOUTH AFRICA

INTRODUCTION

• Many of you may be wondering what the law has to do with being a physiotherapist?

• The answer is very clear: you deal with human beings that are mostly in fragile states and you therefore open yourself up to liability and legal complication and therefore a basic knowledge of the law is essential.

• Remember that any medical procedure in which you touch the body of the patient is a violation of his right to security and physical integrity and amounts to the criminal action of assault UNLESS he has consented thereto (or action has been taken in an emergency situation).

• To put this more clearly: you assault people all day and it is only their consent thereto that prevents them from taking action against you! The law sets the limits for medical and associated professions and thereby establishes legal certainty for both practitioners and patients alike.

• NB!REMEMBER:

PLEASE KEEP THE CONCEPT OF CONSENT IN MIND THROUGHOUT THIS MODULE AS IT IS ONE OF THE MOST IMPORTANT ASPECTS OF MEDICAL INTERVENTION AS FAR AS THE LAW IS CONCERNED!

• Law is primarily concerned with the protection of man, his life, personality, physical integrity, health, respect and dignity.

• The patient’s consent (or emergency action in the interest of the patient and without his knowledge) prevents claims being instituted against the practitioner.

Voor ons aangaan met spesifieke bepalings en aspekte van die reg, is dit nodig om ‘n algemene begrip en

kennis van die Suid-Afrikaanse reg en howe te verstaan

Before we continue with the specific regulations and aspects of the law, it

is necessary to have a general understanding and knowledge of the South African law and court system

THE SOUTH AFRICAN LEGAL SYSTEM AND ITS IMPORTANCE TO PHYSIOTHERAPISTS

• South African law is only partly codified – – i.e: not all rules are provided by law (written in acts and legislation),

but also in unwritten rules (common law)• Codified law = statutory law (acts)

– National Health Act; Constitution• Unwritten laws = common law

– eg. murder

(WHY IS THIS IMPORTANT TO KNOW?)

• The law (common law & statutory law) is subdivided in 3 categories:

• Private law

• Public law

• Formal law

• PRIVATE LAW

– regulates relationships between subjects (legal persons)

– Aim to protect the private interests of individuals

• PUBLIC LAW

– regulates relationships between state (in its relationship of authority) against the subject, or between state organs (provincial governments; municipalities)

– Aim to protect public interest

• FORMAL LAW

– regulates the procedure in which court cases are brought up and dealt with

Constitutional Court

Supreme Court of Appeal

High Courts

Lower Courts

Regional court

District court

Small Claims court

• Constitutional court:

– only constitutional matters

– both criminal and civil matters

• Supreme Court of Appeal

– only appeals of matters that have already been heard (ie one of the parties are unhappy with the outcome of the matter)

• High courts

– Court of first instance (ie: you can institute the matter in these courts), but they also hear:

• Appeals or reviews of the lower courts

– Any matter pertaining to persons that are present or reside in the country, and any matter wherein the cause of action arose in SA

• Lower courts• DISTRICT COURT

– Civil matters: only to the amount of R100 000 (unless all parties consent)

– Some matters are excluded– Criminal matters (depending on the possible sentence)

• REGIONAL COURT– Civil matters: R300 000– Criminal matters (depending on the possible sentence)

• Small claims court– Quick, affordable access to a court– Only civil matters that do not exceed R12 000– No legal representation allowed

RECAP: (Chapter 1)

– Explain why it is important for a practicing physiotherapist to have knowledge about the law

– What prohibits a patient to lay a charge of assault against you?

– Can all rules and regulations be found in legislation (acts)?

– Know and understand the 3 categories in which the law can be divided, and when and/or where each will find application

– Know the hierarchy of courts in the RSA

– Know when you will approach which court for a specific matter

Chapter 2:

THE INFLUENCE OF THE CONSTITUTION

ON THE MEDICAL PROFESSION

AND/OR

PHYSIOTHERAPISTS

INFLUENCE OF THE CONSTITUTION

– 9: Equality

– 11: Life

– 12: Freedom and Security

– 13: Privacy

– 27: Health Care, food, water and social security

– 28: Children

– 32: Access to Information

– 33: Just Administrative Action

– 35: Arrest, detained and accused persons

– 37: State of Emergency

INFLUENCE OF THE CONSTITUTION

• Section 9: Equality

• Prohibits unfair discrimination

• Examples of unfair practices in health care:– Subjecting persons to medical experimentation without their informed

consent

– Unfairly denying / refusing access to health-care facilities

– Refusal to provide emergency medical treatment to persons or particular groups of persons

– Refusing to provide reasonable health services to the elderly

» Hoffman v South African Airways

INFLUENCE OF THE CONSTITUTION

• Section 11: Life

• Protects the right to life

» Christian Lawyers Association of SA v Minister of Health and Others

• All persons, especially those in the health care or associated professions, are obliged to protect others’ right to life

INFLUENCE OF THE CONSTITUTION

• Section 12: The right to freedom and security

• Protects the right of freedom and security of the person

• Section 12(2): Every person has the right to bodily and psychological integrity which includes the right:– to make decisions concerning reproduction

– to security and control over their body

– not to be subjected to medical scientific experimentation without their informed consent

INFLUENCE OF THE CONSTITUTION

• Section 14: Privacy

• Protects the right to privacy

• NB!! Medical records and information = private and confidential

» (We will deal with this right in more detail later in this course)

INFLUENCE OF THE CONSTITUTION

• Section 27: Health care, food, water and social security

• Everyone has the right to health-care services including reproductive health care

• May not refuse to provide emergency treatment

» Soobramoney v Minister of Health, Kwa-Zulu Natal

» Minister of Health and Others v Treatment Action Campaign

INFLUENCE OF THE CONSTITUTION

• Section 28: Children

• Protects the rights of children.

• Every child has right to basic health-care services

• Children under 6 years are currently receiving free health care

INFLUENCE OF THE CONSTITUTION

• Section 33: Access to information

• Everyone has right of access to:– Any information held by the state

– Any information that is held by another person and that is required for the exercise or protection of any right

Patients therefore have the right to access their medical records

» The Promotion of Access to Information Act

INFLUENCE OF THE CONSTITUTION

• Section 33: Just administrative action

• Section 33(1) – right to administrative action that is lawful, reasonable and procedurally fair

• Section 33(2) – written reasons must be given for administrative action that affects one’s rights adversely

• Section 33(3) – legislation must be enacted to give recognition hereto

» The Promotion of Administrative Justice Act

» This section is important, especially at state institutions where administrative action might be taken, so remember this section should you ever practice at a state institution

INFLUENCE OF THE CONSTITUTION

• Section 35: Arrest, detained and accused persons

• Arrested, detained and accused persons have the right to medical treatment at state expense

• Contact with and visited by such a person’s chosen medical practitioner

» Van Biljon and Others v Minister of Correctional Services

INFLUENCE OF THE CONSTITUTION

• Section 37: State of emergency

• With the declaration of a state of emergency a detained person can choose and be visited at any reasonable time by a medical practitioner.

RECAP: (Chapter 2)

• Know those sections of the Constitution that has had a big impact on the health care profession, ie also on you as physiotherapist.

• This chapter can be asked as follows:

– List the most important sections that has had an influence on the practice of physiotherapy.

– Briefly discuss one of the constitutional rights (eg: the right to freedom and security) for +- 3 to 4 marks