Добірка наукової літератури з теми "Medical laws and legislation – moral and ethical aspects"

Introduction. Moral, ethical, and professional deontological rules have a substantial impact on the social relations of legal regulation regarding liability for abuses and violations of citizens’ rights – people taking medication – patients as part of the health care system. The identification of the place and role of moral norms, ethics, and professional deontology, their quality as specific non-traditional primary sources in the development of the health care system, and the sub-branch of pharmaceutical law in the Republic of Moldova were the focus of the present study. Material and methods. The secondary descriptive synthesis study of normative-legal acts as primary specific non-traditional sources, viewed through the lens of the protection of the rights of the consumer of medicines, the patient – the ultimate beneficiary of the social relations in the field of health care – spanned the years 1991 to 2021. The most relevant sources subject to analysis are the Constitution of the Republic of Moldova, the Code of Ethics for doctors and pharmacists in the Republic of Moldova, laws, and sub-legislative acts, etc. The study is based on the use of several recognized techniques and methods of analysis: systemic approach, synthesis, logical-legal deduction, content and comparative analysis, etc. Results. Both the literature and recognized authors state that respect for moral, ethical, bioethical, and professional deontological norms in the field of health care has always been highly appreciated in society, which has led to the recognition of the nobility of medical and pharmaceutical activity. The results presented in this paper have made it possible to highlight aspects that recommend that the investigation of the role of legal regulation in medical and pharmaceutical activities also question the place and role of moral, ethical, and bioethical norms, as they generally have the same thematic orientation and influence on law, legislation, the practice of applying the law, and vice versa. Conclusions. The accomplished study allowed the identification of the dialectical and organic unity between moral, ethical, bioethical, and deontological sources with the rules of law - the moral-legal foundation of medico-pharmaceutical law. The consolidation of legal and moral norms demonstrates the structuring of the sub-branch of medico-pharmaceutical law. The analysis of the normative-legal acts in the Republic of Moldova confirms both the functionality of the „moral-ethics-deontology-law” system and the importance given to the protection of the rights of the consumer of medicines, the patient, as the ultimate beneficiary of social relations in the field of health care.

Confidentiality is a central bioethical principle governing the provider–patient relationship. Dating back to Hippocrates, new laws have interpreted it for the age of precision medicine and electronic medical records. This is where the discussion of privacy and technology often ends in the scientific health literature when Internet-related technologies have made privacy a much more complex challenge with broad psychological and clinical implications. Beyond the recognised moral duty to protect patients’ health information, clinicians should now advocate a basic right to privacy as a means to safeguard psychological health. The article reviews empirical research into the functions of privacy, the implications for psychological development and the resigned sentiment taking hold regarding the ability to control personal data. The article concludes with a call for legislative, educational and research steps to readjust the equilibrium between the individual and ‘Big Data’.

The article covers the study of some aspects of protecting the intellectual property rights in the areas of biology, medicine and pharmacy including biotechnological inventions. The rapid progress of science and technology, the generation and accumulation of knowledge, the possibilities to process large amounts of various data further stimulate the development of all social areas and unprecedentedly contribute to the emergence of innovations, in particular in the area of biotechnology. Intellectual property rights have a direct impact on the progress of medical and biological research, but increasingly require coordination with the ethical and moral principles of the society regarding the patentability of inventions in biology, medicine and pharmacy.The article analyzes the modern trends in the protection of intellectual property rights to biotechnology inventions at an international level, and forecasts the likely subsequent development in legal protection of intellectual property rights in the areas of biology, medicine and pharmacy in view of the ever increasing ethical and law controversies of medical and biological research in some areas, the emergence of big data, use of artificial intelligence, etc.The national legislation refers to the term «biotechnology» in the Law of Ukraine «On Environmental Protection», while not giving any legal definition of “biotechnology” in any laws. The Ukrainian intellectual property and health care legislation require reformation to get properly updated to respond to the ongoing challenges. There is a whole layer of gaps regarding the legal regulation of using biotechnology in Ukraine, and this extends to all areas where biotechnology is actually integrated. The use of biotechnology in biology, medicine and pharmacy requires a systemic and multi-aspect study in order to develop the appropriate legal norms.To ensure the stability of the pharmaceutical market, which is focused on the national manufacturer, it is necessary to create the proper conditions for the development of a high-tech research environment in Ukraine. It is necessary to improve nationallegislation in the field of biobanking and the legal regime of human biological material for the purpose of using it in research.

Almost at the onset of surrogacy as a method of ART, it has been attracting the attention of society as the way to fulfill the issue of high priority – procreation and family. Surrogacy has become one of the main research objects of bioethics that studies the ethical and moral aspects of the use of new biological and medical technologies. The main issue of this article is the identification and comparative analysis of the features of the legal regulation of the method of surrogacy in Ukraine and other countries. The particular importance lies in specifying those prohibitions and restrictions, who they are applied to, and how they relate to the human right to procreation. The comparison to the laws of other countries that have a better legal surrogacy regulation will take place. The theoretical and practical significance of the work is reflected in the fact that the results can be used in the further theoretical development of the legal issues related to surrogacy as one of the methods of human assisted reproduction. The research made it possible to find out the basic terms that are used in the legal regulation of surrogacy. In the course of the research, it was found out that legal regulation of the use of the ART methods in the word, including surrogacy, varies depending on the jurisdiction. Each country has their laws. Nowadays it is possible to divide legal regulation of the use of the surrogacy method into four basic legal regimes: – regime of permission; – regime of restriction; – regime of complete prohibition (in any form); – regime of uncertainty. Ukrainian legislation is considered to be very liberal in relation to surrogacy. Major types of surrogacy, including commercial surrogacy, are permitted and widely used. Moreover, in Ukraine, legislation does not allow traditional surrogacy, and also does not allow couples who do not have a registered marriage, single people, and same-sex couples, to use this method. It should also be borne in mind that the method of surrogacy can only be used for medical reasons. In Ukraine, taking into account the peculiarities of notarization, agreements (contracts) on commercial surrogacy should be preferably signed by a notary. However, in the legislative norms there is no direct reference to the notarized form of such an agreement.The obtained research results indicate that Ukrainian surrogacy legal regulation is lacking a special law and thus remains fragmented. According to the author, only through the adoption of a special law in Ukraine, it will be possible to make proper legal regulation of basic reproductive human rights, including the application of the method of surrogacy, the peculiarities of concluding surrogacy agreements, post-mortem human reproduction and delayed parenthood.

Mandatory vaccination laws require children to be vaccinated against certain communicable diseases to attend school. These laws also provide exemptions to school vaccination requirements. All states exempt children from vaccination requirements for medical reasons, and most states also provide an exemption for religious and/or other personal reasons. Seven states include an educational component in their religious or philosophical exemption process, requiring that parents receive information regarding the benefits of vaccination and the risks of not being vaccinated. Of these seven states, five require that information regarding the social benefits of vaccination will be provided to parents. This type of legislation is part of an overall trend to tighten the vac- cine exemption process, which is reflected in the vaccination laws of an increasing number of states. Tightening the vaccine exemption process through the addition of administrative requirements has been proven to decrease exemption rates. But this is not the focus of this Article. Instead, the Article focuses on one aspect of the educational component of the legislation—educating parents regarding the social benefits of vaccines. The Article explores the nature of the obligation to be educated regarding the social benefits of vaccines and the potential influence of this legislation on parents’ vaccination decision making. I claim that this legislation should be conceptualized and under- stood through the concept of solidarity. Following this conclusion, I will explore the potential effects of solidarity legislation on parents’ vaccination behavior. For this purpose, two aspects of the legislation will be addressed. First, I will discuss the language included in these laws, which explicitly declare that vaccines have social benefits. I will explore the expressive functions of this language and their potential influence on parental attitudes, beliefs, and behaviors. I will continue by addressing the educational process that this legislation requires. Addressing this aspect of the legislation, I will examine whether providing parents information regarding the social benefits of vaccines through educational encounters is expected to increase their motivation to vaccinate their child.

Background: Ambulance professionals often address conflicts between ethical values. As individuals’ values represent basic convictions of what is right or good and motivate behaviour, research is needed to understand their value profiles. Objectives: To translate and adapt the Managerial Values Profile to Spanish and Swedish, and measure the presence of utilitarianism, moral rights and/or social justice in ambulance professionals’ value profiles in Spain and Sweden. Methods: The instrument was translated and culturally adapted. A content validity index was calculated. Pilot tests were carried out with 46 participants. Ethical considerations: This study conforms to the ethical principles for research involving human subjects and adheres to national laws and regulations concerning informed consent and confidentiality. Findings: Spanish professionals favoured justice and Swedish professionals’ rights in their ambulance organizations. Both countries favoured utilitarianism least. Gender differences across countries showed that males favoured rights. Spanish female professionals favoured justice most strongly of all. Discussion: Swedes favour rights while Spaniards favour justice. Both contexts scored low on utilitarianism focusing on total population effect, preferring the opposite, individualized approach of the rights and justice perspectives. Organizational investment in a utilitarian perspective might jeopardize ambulance professionals’ moral right to make individual assessments based on the needs of the patient at hand. Utilitarianism and a caring ethos appear as stark opposites. However, a caring ethos in its turn might well involve unreasonable demands on the individual carer’s professional role. Since both the justice and rights perspectives portrayed in the survey mainly concern relationship to the organization and peers within the organization, this relationship might at worst be given priority over the equal treatment and moral rights of the patient. Conclusion: A balanced view on ethical perspectives is needed to make professionals observant and ready to act optimally – especially if these perspectives are used in patient care. Research is needed to clarify how justice and rights are prioritized by ambulance services and whether or not these organization-related values are also implemented in patient care.

Background: Providing oncological care to children is demanding and ethical issues concerning what is best for the child can contribute to moral distress. Objectives: To explore healthcare professionals’ experiences of situations that generate moral distress in Swedish paediatric oncology. Research design: In this national study, data collection was conducted using the Swedish Moral Distress Scale-Revised. The data analysis included descriptive statistics and non-parametric analysis of differences between groups. Participants and research context: Healthcare professionals at all paediatric oncology centres in Sweden were invited to participate. A total of 278 healthcare professionals participated. The response rate was 89%. Ethical considerations: In its advisory statement, the Regional Ethical Review Board decided that the study was of such a nature that the legislation concerning ethical reviews was not applicable. All participants received written information about the aim of the study and confidentiality. Participants demonstrated their consent by returning the survey. Findings: The two situations with the highest moral distress scores concerned lack of competence and continuity of personnel. All professional groups reported high levels of disturbance. Nurses rated significantly higher frequencies and higher total Moral Distress Scale scores compared to medical doctors and nursing assistants. Discussion: Lack of competence and continuity, as the two most morally distressing situations, confirms the findings of studies from other countries, where inadequate staffing was reported as being among the top five morally distressing situations. The levels of total Moral Distress Scale scores were more similar to those reported in intensive care units than in other paediatric care settings. Conclusion: The two most morally distressing situations, lack of competence and continuity, are both organisational in nature. Thus, clinical ethics support services need to be combined with organisational improvements in order to reduce moral distress, thereby maintaining job satisfaction, preventing a high turnover of staff and ensuring the quality of care.

Medical practice is connected with the greatest social values - people's health and life. Its subjects and objects are people with numerous social and biological differences and characteristics. It is obvious that under such circumstances it is impossible to normalize all situations of this practice. Therefore, this involves the wide application of moral laws in health care, supplementing the mechanisms of legal regulation of the relationship between the medical worker and the patient with the norms of medical ethics and deontology. That is why none of the professional communities has at the world, regional and national levels so many conventions, codes, declarations, oaths of a moral and ethical plan, which are an integral part of the regulatory and legal framework of medicine. But ethics and law are not identical. Quite often ethics declare standards of behavior higher than the law. There are known cases where ethics require that doctors not obey laws that require unethical behavior (WMA, 2009). Medical ethics puts the patient and his safety above other criteria for the quality of medical care, above the interests of medical workers. None of these moral and ethical documents bypasses the issue of patient safety, starting with the Hippocratic one: "refraining from causing any harm" and ending with the Code of Ethics of a doctor of Ukraine, which emphasizes that "a doctor must carefully analyze the mistakes made and discuss them with colleagues and guidance for the prevention of similar cases in the clinical practice of other doctors." Patient safety is considered an ethical imperative (Vicki D. Lachman, 2007). This is consistent with the concept of safety culture developed by the IAEA after the accident at the Chernobyl nuclear power plant (IAEA, 1991) to prevent emergency situations in the nuclear power sector. The concept of safety culture is considered as a mechanism for identifying hidden safety deficits and puts its level above the requirements of legislation and regulatory bodies (ILO, 2001). The World Health Organization declared its commitment to safety culture principles in 2005 and called on national health care systems to follow suit. In a recent document, the Global Alliance for Patient Safety (HURST, Samia, et al., 2013) emphasizes the need to consider ethical issues in patient safety research. Considering the above, the concept of safety culture, based on the principles of medical ethics, is at the same time its section in the part related to the formation of a safe hospital environment. Today, many countries have successful experience of using safety culture in medicine, and using it and developing it is an urgent task of the domestic medical community. No conflict of interests was declared by the authors.

The article examines the issues of glocalization and regulation of communicative interaction based on the material of the speech act of defamation. It is shown that countries, when legislating public relations in this area, proceed from the interests dictated by their own information security policy. Using the example of some post-Soviet states, which historically have common sources of law, evidence is presented of the refusal of states to unify legal norms in the field of regulating public communication activity: the speech act of defamation as an illegal and criminally punishable act is excluded from the legislation of Estonia; in Azerbaijan, Latvia, Lithuania, Tajikistan it does not have the status of a serious crime, unlike The Republic of Belarus and the Russian Federation. However, this approach does not exclude the emergence of problems, primarily of a methodological nature. As an actual example, fragments of Belarusian legislation are analyzed, which reveal a terminological lacuna in understanding the categories of honor, dignity and business reputation as a triad of intangible subject rights, the attempt on which is realized through a speech act of defamation. The relevance of the legal linguistic interpretation of the designated content of the concepts is substantiated: honor as moral and ethical qualities of a person in the assessment of others; the introverted phenomenon of dignity as a social self-esteem of a person; business reputation as a set of professional and/or service qualities of a person. Based on the material of the Belarusian legislation, a meaningful detailing of the signs of the implementation of a speech act of defamation is given according to the parameters 1) factual nature, 2) object composition, 3) type of information and 4) channel of information dissemination.

The global market for commercial surrogacy is growing at a significant pace. Every year, thousands of wom- en agree, for a fee, to bear a child for another woman. As a result, thousands of children are born conceived by one woman, but claimed by another. The central argument of this article is that surrogacy should be ap- proached as a complex commercial, ethical, legal relationship. At the moment, there is an active international trade in uterus, sperm and eggs. There are rapidly advancing medical technologies that have undoubtedly in- creased both the demand for surrogacy services and the supply from surrogate mothers. But the fundamentals of the market rule governing surrogate motherhood, norms, laws are developing much more slowly. Some states, such as the USA, France, Germany, Austria regulate issues related to surrogacy mainly in the form of a ban; other states create the most liberal legislation, such as India, Russia, Kazakhstan. In the article, the au- thor concluded that he divided the ethical and moral issues of surrogacy into two camps of all countries in the world: supporters and opponents who compare it with the slavery of women. The necessity of establishing se- curity measures to ensure that there will be no exploitation of women in a difficult financial situation in this transaction is justified.

This thesis seeks to demonstrate, by way of a multidisciplinary study, that consent is, despite its legal definition which refers to the free and enlighted expression of individual will, in fact, at times limited if not eliminated, by social considerations, arising from the medical, economic and legal context. These considerations reflect what one might call the social norm. An appropriate understanding of consent serves, therefore, to express the social norm as a constraint, which, in turn, acts as a measure of what it means to belong in society. Thus, while consent is often presented as the fundamental principle to be respected in biomedical research, it is in reality, merely one principle to respect among others. These limitations connected to consent are exacerbated in emergency situations where consent is sometimes reduced to mere signature, and in some cases it has been recognized that research can be undertaken without the subject's prior consent.

Given the considerable advances in the field of biotechnology in the last decades, new issues of scientific, social, legal and ethical nature have been raised, particularly concerning inventions making use of living material, and their patentability.
Notwithstanding some reluctance at the outset, most of patent offices as well as courts and tribunals in the United States, Canada and Europe have finally accepted patentability of living organisms. Oppositions are however numerous and, more than a criticism towards the patent system itself, it is genetic engineering that is put into question.
Europe has recently regulated the legal protection of biotechnological inventions. Being a text of compromise, the Directive is already subject of controversies. The United States and Canada have not yet decided to explicitly legislate in this field. Some decisions taken in particular cases allow to determine the state of the question in these two countries. It is however not certain that they can be satisfied with an unregulated technology that raises so many moral questions.
The question of the foremost importance concerns the research branch, as well as the use that will be done with inventions emerging from the biotechnology industry. Patent law being unable to prevent technological creations, it is above all the utilisation of it that will allow to retain the most beneficial inventions for humankind and its environment.

Thesis (MPhil)--University of Stellenbosch, 2002.
ENGLISH ABSTRACT: The implementation of eugenic policies reached its peak during the zo" century when thousands of people with intellectual disabilities and other "undesirable qualities" were involuntary sterilized. Although most of the eugenic policies have been removed, countries such as South Africa, still make legally provision for the involuntary sterilization of people with intellectual disabilities. Torbjërn Tannsjë (1998) used the "argument from autonomy" to argue that involuntary sterilization practices are wrong because it involves compulsion. According to him, society should never interfere with people's reproductive choices and people should never be required to qualify for the right to have children. The aim of this assignment was to systematically assess the "argument from autonomy" as far as the policy of involuntary sterilization of people with intellectual disabilities is concerned. To this end, the concept of autonomy and the principle of respect for autonomy are discussed and applied to the intellectually disabled. It is argued that autonomy and respect for autonomy are useful concepts to apply to some people with intellectual disabilities. These individuals should not be automatically assumed to be incompetent, but their competence needs to be determined on an individual level, with reference to the complexity of the decision to be made. Special effort is needed from health care professionals to obtain (where possible) informed consent from people with intellectual disabilities. The application of the principle of respect for autonomy to matters of reproduction leads to the conclusion that people with severe to profound levels of disability, are unable to provide informed consent for sexual intercourse. Therefore some form of paternalistic protection is needed for these individuals. People with mild to moderate intellectual disabilities who are however competent to consent to sexual intercourse should never be prohibited from procreation by means of involuntary sterilization. State interference in matters of reproduction should be limited to interventions where (i) children are seriously harmed by parents and (ii) to protect those who are incompetent to consent to sexual interactions with others. Apart from these exceptions, the intellectually disabled is entitled to the same procreative rights as all other citizens.
AFRIKAANSE OPSOMMING: Die implementering van eugenetiese beleid het gedurende die 20 ste eeu 'n hoogtepunt bereik met die onwillekeurige sterilisering van duisende persone met intellektuele gestremdhede en ander "ongewensde kwaliteite". Alhoewel meeste van die eugenetiese wetgewing verwyder is, maak lande soos Suid-Afrika steeds wetlik voorsiening vir die onwillekeurige sterilisasie van persone met intellektuele gestremdhede. Torbjërn Tannsjo (1998) maak gebruik van die "outonomie argument" om te argumenteer dat onwillekeurige sterilisasie praktyke onaanvaarbaar is omdat dit dwang bevat. Hy voer aan dat die samelewing nooit in die reproduktiewe keuses van mense behoort in te meng nie en dat dit nooit vir mense nodig moet wees om vir ouerskap te kwalifiseer nie. Die doel van hierdie werkstuk was om sistematies die "outonomie argument" te analiseer ten opsigte van die beleid van die onwillekeurige sterilisasie van persone met intellektuele gestremdhede. Met hierdie doel voor oë word die konsep outonomie en die beginsel van respek vir outonomie bespreek en toegepas op die intellektueel gestremde persoon. Daar word aangevoer dat outonomie en respek vir outonomie nuttige beginsels is om in ag te neem in kwessies rakende intellektueel gestremdes. Hierdie individue moet nie outomaties as onbevoeg beskou word nie, maar hul bevoegdheid moet eerder op 'n individuele basis beoordeel word, inaggeneem die kompleksiteit van die besluit wat geneem moet word. Voorts word daar van gesondheidsorgpersoneel verwag om moeite te doen met die verkryging van oorwoê toestemming (waar moontlik) by persone met intellektuele gestremdhede. Die toepassing van die beginsel van respek vir outonomie op aspekte rakende reproduksie, lei tot die gevolgtrekking dat persone met ernstige intellektuele gestremdhede nie in staat is om toestemming tot seksuele omgang te verleen nie. Dus, is 'n vorm van paternalistiese beskerming in hierdie gevalle aangedui. Persone met intellektuele gestremdhede wat egter wel bevoeg is om toestemming tot seksuele omgang te verleen, moet nooit weerhou word van voortplanting deur middel van onwillekeurige sterilisering nie. Inmenging deur die staat in kwessies rakende reproduksie moet beperk word tot intervensies waar (i) kinders ernstige skade berokken word en (ii) die beskerming van persone wat onbevoeg is om toestemming tot seksuele interaksies met ander te verleen, benodig word. Afgesien hiervan, is die intellektuele gestremde persoon geregtig op dieselfde reproduktiewe regte as alle ander landsburgers.

Aim: The 1996 Choice on Termination of Pregnancy Act decriminalized abortion in South Africa and the South African Medicines Control Council in 2000 approved the dispensing of emergency contraceptive methods by pharmacists to women without a doctor's prescription. This legislation has been hailed as among the most progressive in the world with respect to women's reproductive justice. However the realisation of these rights in practice has not always met expectations in part due to medical practitioners' ethical objections to termination of pregnancy and the provision of related services. The aim of this study was to interpret the varying ways in which medical practitioners frame termination of pregnancy and emergency contraceptive services, their own professional identities and that of their patients/clients. Methods: Sample of 58 doctors and 59 pharmacists drawn from all nine provinces of South Africa. Data collected using an anonymous confidential internet-based self-administered questionnaire. Participants were randomly recruited from online listings of South African doctors and pharmacists practicing in both private and public sectors. Data were analysed using theoretically derived qualitative content analysis. Results: Participants drew on eight frames to justify their willingness or unwillingness to provide termination-of-pregnancy related services: the foetal life frame, the women's rights frame, the balancing frame, the social justice frame, the do no harm frame, the legal and professional obligation frame, the consequences frame and the moral absolutist frame. Conclusion: Health professionals' willingness or unwillingness to provide termination of pregnancy related services is highly dependent on how they frame or understand termination of pregnancy, and how they understand their own professional identities and those of their patients/clients.

Thesis (LLM)--University of Stellenbosch, 2004.
ENGLISH ABSTRACT: The monitoring of electronic communication is likely to face all employers sooner or later. The rapid advancement in technology aimed at helping to monitor electronic communication, makes it easier than ever before for employers to monitor the electronic communications of their employees. There are important questions to consider when dealing with the topic of monitoring electronic communication. Examples include "mayan employer legally monitor electronic communications?" and "how does monitoring affect the employee's right to privacy?" This thesis is an attempt to answer these and other related questions by analysing, inter alia, South African legislation, the Constitution and case law, as well as comparing the law as it applies in the United Kingdom and the United States of America. The analysis and conclusion offered in this thesis aim to provide theoretical consideration to academics and practical application for employers that are faced with the reality of monitoring electronic communications.
AFRIKAANSE OPSOMMING: Alle werkgewers sal waarskynlik die een of ander tyd met die monitering van elektroniese kommunikasie gekonfronteer word. Die snelle voortuitgang in tegnologie wat daarop gemik is om te help met die monitering van elektroniese kommunikasie, maak dit vir werkgewers makliker as ooit tevore om sodanige kommunikasies van hulle werknemers te monitor. Daar is egter belangrike vrae wat oorweeg moet word wanneer die onderwerp van monitering van elektroniese kommunikasie ter sprake kom. Voorbeelde hiervan is "mag 'n werknemer regtens elektroniese kommunikasies monitor?" en "hoe raak monitering die werknemer se reg tot privaatheid?" Hierdie tesis is 'n poging om hierdie en ander verwante vrae te beantwoord deur die ontleding van, onder andere, Suid-Afrikaanse wetgewing, die Grondwet en die reg soos deur hofuitsprake ontwikkel, sowel as vergelyking van die reg soos wat dit van toepassing is in die Verenigde Koninkryk en die Verenigde State van Amerika. Die ontleding en gevolgtrekking wat in hierdie tesis aangebied word, is gemik op die verskaffing van teoretiese oorweging aan akademici en praktiese toepassing vir werkgewers wat met die realiteit van die monitering van elektroniese kommunikasies gekonfronteer word.

Thesis (LLD (Public Law))--University of Stellenbosch, 2010.
ENGLISH ABSTRACT: The unique and intimate relationship that exists between a medical practitioner and his/her client is possibly one of the most important relationships that can come into being between any two people. This relationship is characterised and influenced by the qualities and attributes specific to the nature and historical development of medical care, as well as medical science in general. The doctor-patient relationship is also influenced by the social dynamics of a particular community, environmental factors, technological advances and the general social and commercial evolution of the human race. With regard to medical care and health service delivery, the doctor-patient relationship is furthermore vital to the quality of the care provided, as well as to the outcomes and relative success of the specific medical intervention or treatment. One of the distinct characteristics of the doctor-patient relationship is the power imbalance inherent in this relationship. The medical practitioner has expert knowledge and skill, while the patient finds himself or herself in an unusually dependent and vulnerable position. It is because of this important role that the doctor-patient relationship still plays in health service delivery today; the susceptibility of the relationship to a variety of influences, and the characteristic power imbalances inherent in this relationship, that a study of the doctor-patient relationship in South African medical- and health law is necessary. The characteristic power imbalances will be considered from a legal perspective in this dissertation. This study provides a comprehensive source of the doctor-patient relationship from a legal perspective. Where relevant, references are made to theories and principles from other disciplines, including sociology, economy and medical ethnomethodology. The prevalence and consequences of power imbalances in the doctor-patient relationship are identified and discussed with the aim of bringing these to the attention of both the legal fraternity, and medical practitioners. Specific problem areas are identified and solutions are offered, including the following: • The adverse consequences of power imbalances inherent in the doctor-patient relationship on the medical decision-making process are considered from various perspectives. With regard to these adverse consequences, the doctrine of informed consent is analysed and evaluated in great detail. • The influence of paternalistic notions in health service delivery; the business model of health service delivery and the effects of managed care and consumer-directed health care on the doctor-patient relationship and health service delivery in general are also analysed from a legal perspective, and specifically with regard to the power imbalances inherent in this relationship. • The role of autonomy, self-determination and dignity, as well as the principles of beneficence in medical practice, are reconsidered in an attempt to provide a solution for redressing the power imbalances inherent in the doctor-patient relationship. • The fiduciary nature of the doctor-patient relationship and the special role of trust in the relationship are emphasised throughout the dissertation as the focal point of departure in the doctor-patient relationship and the main constituent in any legal endeavor to redress the power imbalances inherent in it.
AFRIKAANS OPSOMMING: Die unieke en intieme verhouding wat bestaan tussen ‘n mediese praktisyn en ‘n pasiënt is wêreldwyd waarskynlik een van die belangrikste verhoudings wat tussen twee persone tot stand kan kom. Hierdie verhouding word gekenmerk en beïnvloed deur kwaliteite en eienskappe eie aan die besonderse aard en historiese ontwikkeling van gesondheidsorg, sowel as die mediese wetenskap in die algemeen. Die dokter-pasiënt verhouding word verder beïnvloed deur die sosiale dinamika van ‘n bepaalde gemeenskap, omgewingsfaktore, tegnologiese vooruitgang en die algemene sosiale en kommersiële ontwikkeling van die mensdom. Op die terrein van gesondheidsorg en mediese dienslewering is die dokter-pasiënt verhouding voorts ook sentraal tot die kwaliteit van die mediese sorg wat verskaf word, sowel as die uitkomste en relatiewe sukses van die spesifieke mediese behandeling. Een van die kenmerkende eienskappe van die dokter-pasiënt verhouding is die magswanbalans wat daar tussen dokter en pasiënt bestaan. Die mediese praktisyn beskik oor deskundige kennis en vaardighede, terwyl die pasiënt hom- of haarself in ‘n ongewone, afhanklike en kwesbare posisie bevind. Dit is dan veral weens die besondere rol wat hierdie verhouding steeds in hedendaagse gesondheidsorg speel, die beïnvloedbaarheid van hierdie verhouding deur ‘n verskeidenheid faktore, sowel as die kenmerkende magswanbalans inherent in die verhouding, dat ‘n ondersoek na die dokter-pasiënt verhouding in die Suid-Afrikaanse mediese reg noodsaaklik is. Hierdie kenmerkende magswanbalans sal vanuit ‘n regsperspektief verder in hierdie proefskrif ondersoek word. Hierdie studie bied ‘n omvattende bron van die dokter-pasiënt verhouding benader vanuit ‘n regsperspektief, terwyl verwysings na teorieë en beginsels van ander dissiplines soos die sosiologie, ekonomie en mediese etnometodologie ook waar nodig ingesluit word. Die voorkoms en gevolge van ‘n magswanbalans in die dokter-pasiënt verhouding word verder geïdentifiseer en bespreek ten einde dit onder die aandag te bring van beide regslui en medici. Spesifieke probleemareas wat geïdentifiseer is en die oplossings wat daarvoor aan die hand gedoen is sluit die volgende in: • Die nadelige gevolge van die bestaan van ‘n magswanbalans in die dokter-pasiënt verhouding op die mediese-besluitnemingsproses word bespreek vanuit verskillende persepktiewe. Met betrekking tot hierdie nadelige gevolge, word die leerstuk van ingeligte toestemming in besonder geanaliseer en geëvalueer. • Die invloed van ‘n paternalistiese benadering tot gesondheidsorg, die besigheids-model van gesondheidsorg, en die effek van bestuurde- en verbruikersgedrewe gesondheidsorg inisiatiewe op die dokter-pasiënt verhouding en die verskaffing van gesondheidsdienste in die algemeen word ook vanuit ‘n regsperspektief ge-analiseer. Spesifieke aandag word in dié verband gegee aan die invloede van hierdie benaderings en perspektiewe op die magswanbalans inherent aan die dokter-pasiënt verhouding. • Die besondere rol van autonomie, selfbeskikking en menswaardigheid, asook die beginsels van weldadigheid in gesondheidsorg, word heroorweeg in ‘n poging om ‘n meer gelyke distribusie van mag in die dokter-pasiënt verhouding te verseker. • Die fidusiêre aard van die dokter-pasiënt verhouding en die besondere rol wat vertroue in hierdie verhouding speel, word in hierdie proefskrif beklemtoon en word voorts as die basis van die dokter-pasiënt verhouding beskou. Vertroue, as ‘n kenmerk van die dokter-pasiënt verhouding, behoort ook die fokuspunt te wees van enige poging om die magswanbalans in die dokter-pasiënt verhouding aan te spreek.

Gender reassignment procedures are performed for the treatment of the gender dysphoria syndrome (transsexualism). Although this modality of treatment is therapeutic in nature and therefore not contra bonos mores, the legal status of the post-operative transsexual remains that of his/her previous sex. The purpose of the gender reassignment procedures is that of acceptance within the community as a person of the sex indicated by his/her changed appearance. Nothing will be achieved by the successful completion of treatment if the person's changed sexual appearance is not recognised by the law as a change in sexual status as well. The law, by keeping aloof of the problem of the post-operative transsexual, has created a legal "vacuum" where there is social and judicial acceptance of reassignment procedures, but a refusal to give legal effect to the change in status that the transsexual obsessively desires and the operation simulates. This work will analyse the medical issues associated with gender reassignment procedures. The legal status of the transsexual after reassignment procedures will be explored, and in doing so, the human rights violations with which such people have to contend, will be highlighted. The constitutionality of the lack of a legal recognition of the post-operative transsexual's sexual status will be examined. It will be shown that there are compelling reasons for legislation to be introduced as a matter of urgency to safeguard the fundamental rights of the post-operative transsexual.
Thesis (LL.M.)-University of Natal, 2000.

This dissertation examines the legal position relating to the participation of children in research, especially in HIV preventive clinical research in South Africa. HIV/AIDS presents a real threat to humanity and particularly to the welfare of children. The participation of children in this type of trials is therefore vital. Children, as vulnerable participants, must also be protected from harm resulting from research. The study also considers the nature of HIV preventive clinical research, pointing to the inconsistencies in the legislation governing children’s participation in HIV preventive vaccine trials. The dissertation concludes that the question of the participation of children in HIV preventive clinical research poses many challenges, as the position in the South African law and relevant ethical guidelines are inconsistent and contradictory. The study recommends in the final instance that the relevant statutory provisions and ethical guidelines be harmonised in order to clear up the inconsistencies.
Jurisprudence
LL.M. (Legal Aspects of HIV/AIDS)

The dissertation critically examines and compares the decisions of the Constitutional Court and the High Courts in cases dealing with the right to life, as contained in section 11 of the Constitution of South Africa Act 108 of 1996. The dissertation analysis the issues of adjudication and the concept of justice in perspective. The main question is as follows: Are the Constitutional Court decisions objective, based on the interpretation of the constitutional text, or do they rather reflect the individual judge(s) personal perspective(s) or preference(s). The purpose of this dissertation is to undertake a comparative study and analysis of the Constitutional Court decisions on the right to life, same aspect from different perspective, and show that the right to life is not given proper effect to on account of the subjective approach to its interpretation undertaken by the judges. It examines and scrutinises the Constitutional Court’s adjudication process. It found that the law is indeterminable, because the court’s decisions are not based on the interpretation of the law, but on the individual judges’ background and personal preferences. This is so because the court uses the majority rule principle in its decisions: The perception of the majority of the judges becomes a decision of the court. It is argued that when taking a decision a judge does not apply the law but instead uses the law to justify his predetermined decision on the matter. The conclusion supports the critical legal scholars’ theory relating to the indeterminacy of the law. It tests the objectivity of the judges using their own previous decisions.
Criminal & Procedural Law
LLM

Assisted reproductive technology has introduced a large scope of medical solutions for infertile couples to found a family, however surrogacy seems to be the most debated, as it triggers many ethical and legal questions. The multicolor of legal reactions to this sensitive issue can be represented through the legislation of the three countries in the Central European region, despite the decision making ot the ECtHR and the continuously ongoing europeanization and unification of law in Europe. However, in this regard, the domestic legislation enjoys prime attention and significance, because the ECtHR approaches these cases with a relatively ,,open-mind“ by giving the member state a large margin of appreciation in their legislation of delicate topics. This carefulness of the ECtHR was represented in case of Austria, where it highlighted the importance of free discretion of the country to decide whether to constrain surrogacy or not. Austria with this validation could maintain its prohibitive legislation towards surrogacy, but could also permit certain assisted reproductive techniques. From the Slovak domestic legislation we can demonstrate how certain countries can take the path of the complete non-regulation of surrogacy methods. The lack of detailed regulation on ART, the implicit ,,ban“ on surrogacy arrangements, and the determination of motherhood on gestational basis all reflect and contribute to the conservative approach Slovakia generally demonstartes in the field of reproductive and sexual rights. One prime example of permitting legislation on surrogacy comes from Ukraine, where even commercial surrogacy has been acceptable since the 1990s. There, the domestic legislation tries to protect all the three subjects of the surrogacy arrangement, also lessens the complications when issuing the birth certificate of the child. Despite the complex legislation of ART, some key features and concepts are not taken into consideration in these laws, which may endanger the legal certainty of the parties. By examining all the three legal approaches (prohibition, permission, non-regulation) a state can chose in regulating surrogacy through the examples of Austria, Slovakia and Ukraine, we can conclude that neither of them may seem satisfactory. The lack of an European standard in this regard may cause serious inadequacies, on the other hand one shall respect the ethical and moral reasoning of the state when drafting a regulation on such a delicate issue. However, this free attitude may not be maintainable in the future, especially with the strong emergence of international surrogacy cases.