Foundations of Medical Law

There are four units which are spread over 8 weeks.

The first session in week 1 will be an orientation session on the course structure, deadlines, assessment requirements and contact persons for assistance with the course and with Aspire. The participants will also receive orientation on working within the learning management system: uploading their files, using the discussion forum, submitting written work etc. This will be a synchronous recorded session.

There are four units which are spread over 8 weeks.

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Unit 1: THE LEGAL FRAMEWORK IN SOUTH AFRICAN MEDICAL LAW: Weeks 1 and 2

• Introduction to the South African legal system and sources of law
• The Constitution and the place of the Constitution in the South African legal framework
  • Access to treatment, emergency care, privacy, informed consent, progressive realization and limitation of rights
• National Health Act 61 of 2003

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Unit 2: 2SELECTED ISSUES IN MEDICAL LAW AND LANDMARK JUDGMENTS: Weeks 3, 4 and 5

Week 3:

• Reproductive Health
• Assisted reproduction
  • Wrongful life, pregnancy, birth & sterilisation
  • Termination of pregnancy
• Children’s rights

Week 4:

• Public health
• Mental health

Week 5:

• End of life decision-making
• Legal use and disposal of human tissue and remains

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Unit 3: MEDICAL MALPRACTICE IN SOUTH AFRICAN LAW: Week 6

• The law of contract, delict and criminal law relating to medical malpractice
• Negligence, misdiagnosis, errors of judgement

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Unit 4: THE HEALTH WORKER AS EMPLOYEE: Weeks 7 and 8

• Use of social media
• Conscience-based refusals to perform procedures
• The disciplinary process at the Health Professions Council of South Africa

Statement of purpose

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The purpose of this course is to equip health practitioners with the knowledge and application of the foundational principles of South African medical law. The participants will be introduced to the nlinkages between medical law and the professional ethical guidelines in the South African health context for the enhanced provision of legally compliant health services in their workplaces.

Course outcomes

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1. Demonstrate integrated knowledge of the legislation, policies and legal framework relating to medical law in South Africa.
2. Integrate legislation, policies and legal framework and apply to the selected issues.
3. Identify and critically evaluate the landmark judgments in medical law in South Africa.
4. Critically evaluate proposals to deal with the medical malpractice crisis in South Africa.
5. Explain the complaints and disciplinary process at the health professionals’ regulatory body.
6. Critically interrogate the law and guidelines governing health employees.

Entry level requirements

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•  Health-related undergraduate degree or 3-year diploma.
• Law graduates who wish to gain an understanding of medical law are also eligible.
• Applications for RPL will be subject to the UWC RPL selection process.

Planned course dates

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• 18 September 2023

This will take place through analysis of course completion rates, assignment and test results and
participant feedback questionnaires. The evaluation results will be disseminated to the faculty in order to improve the curriculum, increase participant enrolment and respond to any changes in the legal environment.

Assessment criteria

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• Answer MCQ and short answer class tests based on the application of the law to medical law scenarios
•  Meaningfully participate for marks in online interactive discussion forum by commenting during specific weeks on medico-legal news items posted by the lecturers from the Medicalbrief newsletter
• Apply the knowledge from the prescribed reading on selected issues to the topic allocated to the participant and create an explanatory video, infographic or slide presentation for uploading into the course webpage
• Group work: Divide the facts and ratio decidendi of the allocated court judgments between the group members and present these to the class during the webinar
  Write down a summary of a proposal to deal with the crisis using the South African Law Reform Commission (SALRC) report and include participants’ own suggestions and critiques of the report
• Using a given set of facts, draft an infographic / mindmap with timelines of a complaint and disciplinary process against a health professional from inception to issuing of summons
• Participants in pairs to debate the arguments for and against: (i) permitting conscience-based refusals in the state sector, (ii) holding health workers criminally liable for negligent acts resulting in harm to patients

Assessment methods

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Assessment will be continuous and will focus on the application of the learning to situations that arise in the health care setting i.e assessment will test the ability of participants to practically apply theoretical knowledge and interactive learning in real-life scenarios.

• 3 x class tests (MCQ and short answer) to be completed by the end of those weeks. Three attempts allowed. 30%
• Compulsory participation in 4x discussion forums: the lecturer will set out a scenario and pose open-ended questions or base the discussion on an uploaded article from Medicalbrief. Every participant must make a meaningful contribution to the online discussion by responding to the question, substantiating their answer and giving their opinion on the matter (50 words). 10%
• Written assignment 600 words: Each participant will research the medical malpractice situation in South Africa and write down a summary on different aspects of the topic: causes, suggestions by the SALRC, critiques and ideas from international jurisdictions. 20%
• Mindmap / infographic / slide show assignment and timeline for HPCSA disciplinary process. 10%
• Group assignment on medical law court judgement during a synchronous recorded webinar. 10%
• Group debates on conscience-based refusals or criminal liability for negligence discussed during a synchronous recorded webinar. 10%
• Video/infographic/slide presentation on selected issue for upload onto the class webpage. Each participant will be allocated a selected issue and upload a 15-minute video/slide presentation or infographic on the legal and ethical dilemmas arising in that topic. 10%

TOTAL: 100%

Teaching & learning strategies

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The teaching and learning strategy for this course aims to use the tools of a student-centred interactive learning approach in an online course using both synchronous and asynchronous learning, teaching and assessment. Technology, the university’s learning management system will be used to interact with other participants, and with the lecturer.

• Interactive learning promotes flexible access and interaction with the learning material by a diverse
  student body.
• Lectures and videos: course content will also be covered in online videos and narrated lectures
  uploaded to Aspire, for participants, being busy professionals, to engage with the content in their
  own time and answer the weekly class tests.
• Court judgments: These will be uploaded from the UWC Law Library for the students and placed on
  the course webpage.
• Experiential learning: The participants will be given the tools to apply legal principles to medico-legal
  dilemmas that they experience or have observed in their contexts.

Course material & equipment

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The course timetable, assignments, schedule of activities, marking system and deadlines will appear on the course webpage. The course webpage will house the online discussion forum, lectures, videos, webinar recordings and links to Acts, regulations, court judgements, SALRC and HPCSA guidelines.

 Recommended reading:

• McQuoid-Mason, D: The A-Z of Medical Law (Juta, 2011).

Required reading:

Medicalbrief, a free weekly online digest containing, inter alia, the latest news on medico-legal policy matters, HPCSA disciplinary hearings and medico-legal matters in South African courts

Legislation:

• The Constitution
• National Health Act 61 of 2003:
• Births & Deaths Registration Act 51 of 1992
• Choice on Termination of Pregnancy Act:
• Children’s Act 38 of 2005:
• Medical Schemes Act 131 of 1998
• Mental Health Care Act 17 of 2002
• Traditional Health Practitioners Act 22 of 2007
• SA Law Commission Report on Euthanasia and the Artificial Preservation of Life, 1998
• Health Professions Council of South Africa: Ethical Guidelines for Good Practice in the Health Care Professions

Case law:

This list will be updated as new, relevant judgments are reported. The list will be extended as required by the numbers of class participants presenting judgments to the class for marks.

• Christian Lawyers Association v Minister Health, 1998
• Clarke v Hurst NO, 1992
• H v Fetal Assessment Centre, 2015
• Hay v B, 2003
• Jansen van Vuuren v Kruger, 1993
• Minister Justice v Estate Late Stransham-Ford, 2017
• NM v Smith, 2007
• S v Hartmann, 1975
• Soobramooney v Minister of Health, 1998
• Tshabalala-Msimang v Makhanya, 2008

Modes of delivery

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The distance learning online course will be hosted on the Pillar Seven Aspire learning management system with a semi-synchronous flow i.e course materials will be released on a fixed schedule and participants will receive emails when the course materials are uploaded. Participants can work on the course material in their own time.

An interactive learning approach will be used: participants will engage with the course content, with the lecturers and with each other using digital technology. Medical law, with its often controversial case law and ethical dilemmas arising in the health care setting, is especially amenable to interactive learning and in this course the interactive learning will take the form of an online class debate, online case law presentations and online discussion forums on newsworthy medico-legal events in South Africa.

Course venue

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University of the Western Cape, using the Aspire online learning management system.

Alignment with UWC mission & strategic initiatives

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This course, the Foundations of Medical Law aligns with the mission of UWC, especially the aims of being ‘responsive to the needs of a changing world’, ‘serving the greater public good’ and creating ‘productive partnerships and networks beyond the confines of disciplinary and geographic boundaries’.

Goal area 1: The student experience

The course will provide learners with exposure to the UWC student experience and lay the foundations to apply theoretical knowledge in their daily work life. The curriculum will be up-to-date and relevant, enabling growth and development at a personal level as well as in their institutional environments.

Goal area 2: Teaching and learning

The course will promote teaching and learning in an area where there is a growing need for a curriculum that is responsive to scientific developments in treatment and diagnosis. At the same time, the importance of health as a human right, directly affecting the enjoyment of other constitutional rights will be underscored in units that respond to the health context in South Africa. The course will aim to develop ‘ethical and caring global citizens’ with the inclusion of ethical guidelines in its curriculum.
Learners will attain the skills and knowledge required for constructive participation in their workplaces and healthcare institutions.

Goal area 4: Excellent talent

The online medical law course will promote learning in a specialised but much-needed area of law. The course will build talent by attracting a diverse group of professionals in this learning area to UWC and equipping them with the analytical skills and knowledge to promote safe, caring health care in their respective workplaces and institutions.

Goal area 5: Financial sustainability

This new course is an initiative to secure an income stream in a cross-cutting subject area where there is currently a lacuna in the Western Cape.

The course is further aligned with the following UN SDGs:

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SDG 3 is ‘health and well-being’. This is in recognition of the centrality of health and well-being for the attainment and enjoyment of other development goals. Capacitating health workers to gain an understanding of the legal framework and ethical requirements for health work is important for attaining this goal.

SDG 16 is aimed ‘peace, justice, inclusivity …accountable and inclusive institutions’. This course with its focus on health and human rights, medical law and ethical healthcare practises envisages the empowerment of participants to apply accountability in health work and consequently promote the rule of law in their respective workplaces.