Andra le Roux-Kemp
University of Lincoln, Law School, Faculty Member
- Public Law, Medical Law, Health Law, Public Health Law, Medical Anthropology, Bioethics, and 27 moreMedical Ethics, Medical and Research ethics, Criminal Justice, Health Policy, Law of Evidence and Proof, Expert evidence, Forensic Genetics, Forensic Law, Identication Evidence, Facial Comparison, Neuroscience, DNA Evidence and Databases, Forensic psychiatry, Forensic Psychology, Public Health, Criminal Procedure, Medical Pluralism, Law and Ethics in Forensic Science, Anthropology, Health and Human Rights, Applied Ethics, Philosophy of Science, Forensic Science, Law of evidence, African Philosophy, Evidence and Proof in Law, and Southeast Asian Studiesedit
- My research focus and interest are in Global and Comparative Law, and my primary fields of inquiry are Criminal Justi... moreMy research focus and interest are in Global and Comparative Law, and my primary fields of inquiry are Criminal Justice (including Forensic Law), and Medical- and Health Law (including Medical- and Bio-ethics). I explore the situatedness of law, and the theoretical and practical dynamics of legal change in its various spatial and temporal localities. With a keen interest in legal theory and having been trained in many different (legal) research methodologies as well as subject disciplines, my scholarly approach can be described as transdisciplinary; celebrating the intrinsic complexity of law and legal systems, whilst also recognising the inevitable and reciprocal synergy of law with other knowledge spheres.edit
This article focusses on the development and current state of the relationship between the English legal profession and higher education institutions invested in the education and training of its members. A historiography in Parts 2 and 3... more
This article focusses on the development and current state of the relationship between the English legal profession and higher education institutions invested in the education and training of its members. A historiography in Parts 2 and 3 reveals the development of an originally unintended relationship that came about by chance and out of necessity and ultimately gave rise to a peculiar mix of practical legal training and university education that exist to this day. It is against this background and with reference to the Larson/Abel market control theory and Clark’s triangle heuristic, that the analysis in Part 4 explores how the English legal profession continues to exert control over its market by adopting the credentials of education institutions in the training and accreditation of its own members (control over the production of producers), and by also prescribing to its members the scope and nature of the services they may provide (control over the production by producers). The organisational alliance that has so been forged between the English legal profession and higher education institutions is critically reflected upon, also in terms of how higher education institutions can possibly consider more fundamentally their stake in the maintenance of this legal professional enterprise.
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This article provides a comprehensive overview and analysis of the adoption and regulation of telehealth and telemedicine services in the United Kingdom, and specifically with reference to its National Health Service (“NHS”). The... more
This article provides a comprehensive overview and analysis of the adoption and regulation of telehealth and telemedicine services in the United Kingdom, and specifically with reference to its National Health Service (“NHS”). The discussion and analysis reveal waxing and waning ambitions on the part of the government over the past century, resulting in a patchwork of telemedicine services and light touch and disparate laws and regulations. More recently, however, and in the wake of Covid-19, the Department of Health and Social Care has committed to fundamentally and completely “digitally transform” health and social care in the United Kingdom. This ambition will be the most profound transformation of health and social care in the United Kingdom since the establishment of the NHS in 1948. Such a transformation does not only require a robust technological foundation, but also an extensive, comprehensive, and integrated legislative and regulatory framework.
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Little is known about the substance, nature, and procedure of early Chinese law. This is lamentable as it is generally accepted that the Chinese legal tradition is one of the oldest enduring legal systems of the world. To address this... more
Little is known about the substance, nature, and procedure of early Chinese law. This is lamentable as it is generally accepted that the Chinese legal tradition is one of the oldest enduring legal systems of the world. To address this lacuna, available records and literature on the earliest known Chinese dynasties — the Xia Dynasty (夏, c. 2000–1600 B.C.) and the Shang Dynasty (商, c. 1600–1100 B.C.) — are surveyed, with the goal to cautiously and judiciously explore the social and legal life of the earliest of Chinese civilizations. Given that penal law (punishment) constituted the essence of early imperial Chinese law, the important legal principles and practices with regard to the criminal and penal laws of that time are identified and explained, and its legal development from approximately 2000 to 1100 B.C. outlined. Particular attention is paid in the analysis and discussion of this article to two early relics from the Chinese legal tradition — the Five Punishments (五刑), and respect for filial piety (孝). Despite the fact that so little is known about the early Chinese criminal and penal laws, it is shown in this article that these two relics from the early of Xia and Shang Dynasties have had a lasting influence on the subsequent development of Chinese law, not only in the imperial times, but also to this day.
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While the full impact of the Fourth Industrial Revolution remains uncertain, it is by now generally accepted that highly intelligent technologies and their applications-such as robotics, artificial intelligence (AI), machine learning,... more
While the full impact of the Fourth Industrial Revolution remains uncertain, it is by now generally accepted that highly intelligent technologies and their applications-such as robotics, artificial intelligence (AI), machine learning, digitisation, and big Data-will continue to fundamentally transform all aspects of our occupational and personal lives. Yet, in the realm of higher education policy and specifically with regard to non-STEM disciplines like law, thorough-going engagement with this most recent wave of technological development remains lacking. It is the aim of this article to set a policy agenda for undergraduate legal education and training that is sensitive to the opportunities and potential negative outfall of the Fourth Industrial Revolution (now exacerbated by COVID-19), while also taking into consideration the distinctive nature of legal education and training in England and Wales. Set against the higher education policy landscape of England and Wales, a number of concrete recommendations are made for bringing undergraduate legal education and training into the age of the Fourth Industrial Revolution. These include, for example, a call for the radical transformation of the traditional, linear, and monodisciplinary LLB degree, addressing current and projected skills gaps and skills shortages by way of, inter alia, curriculum reform, and working towards greater mobility of law graduates between different legal jurisdictions and also within one jurisdiction but amongst different roles. These changes are necessary as legal education and training in England and Wales currently leave law graduates ill-equipped for the future labour market and do not adequately value and build on the job-tasks that legal professionals uniquely supply.
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Law schools are peculiar places occupied by, dependent on, associated with, and exerting influence on a myriad of institutions and stakeholders. From law students' efforts at mastering the allusive skill of legal reasoning to the... more
Law schools are peculiar places occupied by, dependent on, associated with, and exerting influence on a myriad of institutions and stakeholders. From law students' efforts at mastering the allusive skill of legal reasoning to the challenges both tenured and untenured academic staff face in the neoliberalist higher education model where the legal profession and the consumers of the law school product exert increasing-and sometimes even impossible-demands, law schools and its populace have always been contested, hierarchical and image-conscious spaces. Indeed, as Ralph Shain noted in the Journal of Ideology in 2012, “[a]nyone who has suffered through law school would be grateful to have a good polemic against the institution”. This article offers such a polemic against legal education in the Hong Kong Special Administrative Region. Over a period of four years, a selec- tion of postgraduate law students from one of the (three) higher education institu- tions responsible for legal education and training in Hong Kong were asked to reflect upon their legal studies and future roles as legal professionals with refer- ence to the 1983 self-published pamphlet by Duncan Kennedy, entitled “Legal Education and the Reproduction of Hierarchy: A Polemic Against the System”. Kennedy’s essay offered a critical analysis of the role of legal education in Amer- ican social life at that time, and the manner in which it reproduced hierarchy in law, legal education, the legal profession, as well as in society generally. The narratives informing this article show that almost 40 years subsequent the publi- cation of Kennedy’s text, and in a jurisdiction with an altogether different social context and facing its own political turmoil and civil rights’ aspirations, many parallels can be drawn with what Kennedy had observed in 1983. Part I of this article sets the scene with a detailed overview of the legal education and training landscape of the Hong Kong Special Administrative Region from a legal-historical perspective to date. The discussion and analysis then turn to the narratives of Hong Kong law students, offering a window into their experiences as (unintended) participants in the hierarchies of law and legal education in Hong Kong. Much more, however, can be gleaned from these narratives than just how these students perceive their present legal studies and future roles as legal professionals in the Hong Kong Special Administrative Region. These narratives also offer a critical reflection on Hong Kong’s colonial past and present status as a Special Administrative Region of the People’s Republic of China under the principle of “one country two systems” (Part II). Culture-specific values impacting on these students’ legal studies and career decisions are revealed (Part III), and troublesome shortcomings in the current legal education and training landscape vis-à-vis the legal professional fraternity and political and socio-economic reality of Hong Kong are laid bare (Part IV). Much like Kennedy’s 1983 essay failed to bring about any real change in how law schools go about their business as cogs in the apparatus of social hierarchy, the narratives informing this article also conclude on a rather sombre and futile note. Be that as it may. At least their voices have been heard and the seemingly inescapable power struggles noted. This too is an important function of the law and legal discourse.
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The participation of lay persons in the adjudication of legal disputes is generally regarded as a necessary and effective constituent for a credible and independent judicial system. This is exemplified in the trial by jury in... more
The participation of lay persons in the adjudication of legal disputes is generally regarded as a necessary and effective constituent for a credible and independent judicial system. This is exemplified in the trial by jury in jurisdictions with legal systems following the common law tradition, and the participation of lay assessors sitting together with (a) professional judge(s) in mixed-court tribunals in jurisdictions with legal systems following the civil law tradition. This article offers a comprehensive, legal-historical and comparative analysis of the respective modes of adjudication adopted in the People’s Republic of China and its Special Administrative Region of Hong Kong, for as far as these make provision for the participation of ordinary citizens in the adjudication of criminal legal proceedings. The focus on lay participation in the criminal legal proceedings of these two jurisdictions serves as an example of legal transplants from other “Western” jurisdictions to the “East” through conquest, colonization, and legal reform. The critical analysis and review of these legal transplants as provided for here, not only elucidate the unique laws and legal systems of these two jurisdictions operating under the one country two systems principle, it also raises questions with regard to the true value and suitability of the respective lay participation models with reference to its distinct, contemporary Chinese context. The question remains, from medieval “West” to the present-day “East”, whether the participation of lay persons in the adjudication of legal (criminal) disputes is not overestimated, and whether it is truly a guarantor of (or at least contributing to) a credible and independent judicial system.
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It is a foundational principle of modern criminal justice systems that accused persons must possess the necessary faculties to effectively and meaningfully participate in criminal proceedings. In the laws of England and Wales, formal... more
It is a foundational principle of modern criminal justice systems that accused persons must possess the necessary faculties to effectively and meaningfully participate in criminal proceedings. In the laws of England and Wales, formal statutory recognition of this fair trial right first appeared in 1800 and has since remained an ongoing legislative project keeping abreast with contemporary understandings and awareness of mental health and cognition and reflecting interminable efforts to develop procedures that embolden fairness and justice. In this article, the legislative framework for "fitness to plead and stand trial" in the Hong Kong Special Administrative Region, is critically analysed with reference to the ongoing law reform and development in England and Wales. While the primary aim of this article is to critically evaluate whether and to what extent the relevant legislative framework of Hong Kong fosters or impedes the fair trial rights of accused persons suffering from a mental, intellectual, or other cognitive impairment, the discussion and analysis will also provide an opportunity for meaningful reflection on the evolution of fair trial rights for vulnerable accused in light of the adoption of the United Nations Convention on the Rights of Persons with Disabilities. Thus, in addition to revealing the current shortcomings of the Hong Kong legislative scheme, this article prompts renewed attention on the importance of fairness and equality in criminal proceedings involving vulnerable accused.
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As a result of a complex environment, overwhelmingly large patient volumes and the high unpredictability of emergency medicine, the professional roles of emergency nurses are continuously evolving and the risk for negligence and... more
As a result of a complex environment, overwhelmingly large patient volumes and the high unpredictability of emergency medicine, the professional roles of emergency nurses are continuously evolving and the risk for negligence and malpractice suits continues to escalate. Although the judicial system offers a fair and just means of resolution, it may not be the best solution in managing healthcare disputes. In this article, the role of emergency nurse practitioners is considered and the data of a legal empirical inquiry on the role of mediation as a viable alternative to settling healthcare disputes are presented. The data show that most emergency nurses perceive a moderate to high level of risk in their everyday work environment and activities and they are also of the opinion that mediation may be a viable alternative to settling healthcare disputes. Yet, very few emergency nurses have received appropriate mediation training or have participated in mediation. Curiously, while a significant percentage of the participants in this legal empirical inquiry agreed that mediation was a suitable means to settle healthcare disputes, only 44 per cent of emergency nurses were willing to participate in mediation. The data presented in this article show that the development of healthcare mediation is still in its infancy and support the notion that much more effort is required to clarify misconceptions and uncertainties around mediation, among practitioners and patients alike, before alternative dispute resolution mechanisms, like mediation, can further develop in the context of healthcare.
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Kenya's recently promulgated 2010 Constitution has been met with much enthusiasm and expectation after a difficult and protracted history of constitutional development and reform. This article considers and evaluates the key... more
Kenya's recently promulgated 2010 Constitution has been met with much enthusiasm and expectation after a difficult and protracted history of constitutional development and reform. This article considers and evaluates the key constitutional provisions with regard to the recognition of health rights in Kenya together with other health-related provisions, and with specific reference to the realisation and enforceability thereof. This evaluation will be conducted from a comparative perspective with references made to other African constitutions and case law. It is the objective of this article to offer a critical evaluation of the health rights included in the Kenyan Bill of Rights in relation to its African counterparts and to consider the possibilities and potential obstacles for the realisation and enforcement thereof. It is evident from this comparative evaluation that the Kenyan Bill of Rights contains pioneering provisions with regard to the right to health that can bring about meaningful changes for Kenyan citizens through effective socio-economic rights jurisprudence.
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Hong Kong is a particularly interesting locus for the study of the seemingly existential crisis of the concept “Rule of Law”, as it presents various dichotomies for comparison; “East” versus “West”, common law versus civil law, and... more
Hong Kong is a particularly interesting locus for the study of the seemingly existential crisis of the concept “Rule of Law”, as it presents various dichotomies for comparison; “East” versus “West”, common law versus civil law, and Western-style democracy versus the Chinese one-party socialist government. In this Chapter it will be shown with regard to how the Rule of Law and its discourse have been conceptualised and utilised in the context of Hong Kong, that an exclusively legal and positivist analysis precludes a proper understanding of how the law and its subjects participate in the (legal) fabrication and contestation of this concept.
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This article presents an argument for the return to the original meaning of the concept value. This is achieved by revisiting the genealogy of the concept and by placing in perspective and questioning the common parlance thereof in... more
This article presents an argument for the return to the original meaning of the concept value. This is achieved by revisiting the genealogy of the concept and by placing in perspective and questioning the common parlance thereof in contemporary legal discourse. The approach is decidedly against the often casual way in which courts and commentators treat the concept, seemingly as concretisation, validation, exegesis or reinforcement of fundamental norms, but without paying attention to its original meaning and use. It is submitted that we confine our talk of values to the products of valuation, that is, the taste, the will, the esteem and/or perspective of some individual or group. Yet, it is not suggested that we completely discard the use of values discourse in law, the goal is rather to restate the inherent relativity of values language in legal discourse. This will bring necessary order to the current conceptual disarray and will foster mutual understanding and alliance.
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An overview of the use and development of Forensic DNA technologies and databases in the BRICS countries reveal the following: South Africa has been conducting DNA profiling since 1991 and established a DNA database in 1997, but it only... more
An overview of the use and development of Forensic DNA technologies and databases in the BRICS countries reveal the following: South Africa has been conducting DNA profiling since 1991 and established a DNA database in 1997, but it only recently promulgated legislation - the South African Criminal Law Forensic Procedures Amendment Act 37 of 2013 - for the formal recognition and regulation of its DNA database. In 2008, Russia adopted the National Genetic Registration, the Russia Federal Act N242-FZ, enabling Russian law enforcement to create genome record databases of convicted offenders. This Act only came into operation in 2010. Brazil, in turn, promulgated legislation (Law No. 12654) for the establishment and regulation of a DNA database and DNA profiling on May 28th, 2012, while India is still in the planning stages of its national DNA framework and enabling legislation (Draft Human Profiling Bill 2012), despite India already being well-established for performing DNA profiling for other jurisdictions in the Southeast Asia region.
The primary focus of this article is on China and one of its special administrative regions, Hong Kong. First, a general introduction to Forensic DNA Typing will restate the rudiments on which the application of DNA technology in the realm of law enforcement and criminal justice is based. This background is necessary for the discussion on database design in the final part of the article. The Forensic DNA Databases and related legislative frameworks of China and Hong Kong will then be considered and the relevant scientific and legislative features contextualized. Finally, the article will explore two distinct features with regard to the database design of the Forensic DNA Databases of China and Hong Kong, namely the population size of DNA Databases and the possibilities for cross-border collaboration. The discussion here will be supplemented with references to related developments in BRICS countries as well as selected references and comparisons with jurisdictions having more developed Forensic DNA Databases, particularly that of the UK and the USA.
The primary focus of this article is on China and one of its special administrative regions, Hong Kong. First, a general introduction to Forensic DNA Typing will restate the rudiments on which the application of DNA technology in the realm of law enforcement and criminal justice is based. This background is necessary for the discussion on database design in the final part of the article. The Forensic DNA Databases and related legislative frameworks of China and Hong Kong will then be considered and the relevant scientific and legislative features contextualized. Finally, the article will explore two distinct features with regard to the database design of the Forensic DNA Databases of China and Hong Kong, namely the population size of DNA Databases and the possibilities for cross-border collaboration. The discussion here will be supplemented with references to related developments in BRICS countries as well as selected references and comparisons with jurisdictions having more developed Forensic DNA Databases, particularly that of the UK and the USA.
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Much has already been written on this most recent EVD outbreak—evaluating and dissecting the contributions and failings of the various role-players involved, and considering what can be done differently in future. This article will... more
Much has already been written on this most recent EVD outbreak—evaluating and dissecting the contributions and failings of the various role-players involved, and considering what can be done differently in future. This article will contribute to this important and ongoing debate and will specifically focus on the international, operational, and national legal frameworks in terms of which large-scale health crises like that of Ebola play out. It will be argued that the very culture and architecture of this transnational legal and operational framework for public health emergencies is isolated from the national realities in which it operates and merely offers a hierarchical authority of what legally ought to be done, with little regard to what is actually necessary and possible on the ground. In considering the most recent Ebola outbreak, and juxtaposing it with the Severe Acute Respiratory Syndrome (“SARS”) outbreak of 2003, it will be shown that a more nuanced transnational legal understanding of public health emergencies is indeed needed—a holistic approach that goes beyond biomedical/scientific and legalistic confines in dealing with disease outbreak and control. It is again important to emphasise here, for the sake of clarity, that this article is exclusively focused on the transnational legal and operational framework in which public health emergencies play out. International humanitarian responses, general public health considerations, as well as other national systemic considerations—like those relating to health systems—although important, will not be considered here.
A brief interlude on the methodology of this article also deserves a place here. As already indicated above, much literature exists on the Ebola outbreak, and with the attention now shifting to the Zika virus, it is important to further distinguish the contribution of this article. This article utilises a primarily transdisciplinary lens in narrating the rise and fall of two notable epidemics of the modern world. A variety of sources, from different disciplines and bases, are used in presenting an easily accessible text that recounts key themes of both epidemics—highlighting similarities and differences, and raising important questions for the future. As with most narrative research methodologies, reliance is also placed on newspaper articles in constructing an account of how the two epidemics played out, each in its own particular time and space. The disease narrative ultimately presented in this article, therefore simultaneously serve as a chronicle of the two epidemics, while also reflecting why a more nuanced transnational legal understanding of public health emergencies is indeed needed.
To facilitate this discussion and analysis, the content of this article is divided into four parts. First, in Part II, the lifecycle of two epidemics will be considered, Ebola, and the 2003 SARS outbreak. Considering these two outbreaks and the international legal responses thereto provides a valuable lens through which the multiple layers of disease outbreaks and control from the past to the present can be observed. In Part III, this paper provides an overview of the international legal and operational framework for public health emergencies, confined to references and examples from the two outbreaks selected for and discussed in Part II. Part IV considers the national legal responses of those countries most affected by the recent Ebola outbreak and the 2003 SARS outbreak. Part V discusses the question of whether to quarantine or not. Part VI discusses lessons to be learned, and why knowledge production beyond disciplinary confines is necessary. And finally, Part VII of this article concludes with a critical analysis of two observed failings of the current international legal and operational framework for public health emergencies. In considering the shortcomings of the current framework it will be argued that a more holistic approach to disease control is required that looks beyond disciplinary confines.
A brief interlude on the methodology of this article also deserves a place here. As already indicated above, much literature exists on the Ebola outbreak, and with the attention now shifting to the Zika virus, it is important to further distinguish the contribution of this article. This article utilises a primarily transdisciplinary lens in narrating the rise and fall of two notable epidemics of the modern world. A variety of sources, from different disciplines and bases, are used in presenting an easily accessible text that recounts key themes of both epidemics—highlighting similarities and differences, and raising important questions for the future. As with most narrative research methodologies, reliance is also placed on newspaper articles in constructing an account of how the two epidemics played out, each in its own particular time and space. The disease narrative ultimately presented in this article, therefore simultaneously serve as a chronicle of the two epidemics, while also reflecting why a more nuanced transnational legal understanding of public health emergencies is indeed needed.
To facilitate this discussion and analysis, the content of this article is divided into four parts. First, in Part II, the lifecycle of two epidemics will be considered, Ebola, and the 2003 SARS outbreak. Considering these two outbreaks and the international legal responses thereto provides a valuable lens through which the multiple layers of disease outbreaks and control from the past to the present can be observed. In Part III, this paper provides an overview of the international legal and operational framework for public health emergencies, confined to references and examples from the two outbreaks selected for and discussed in Part II. Part IV considers the national legal responses of those countries most affected by the recent Ebola outbreak and the 2003 SARS outbreak. Part V discusses the question of whether to quarantine or not. Part VI discusses lessons to be learned, and why knowledge production beyond disciplinary confines is necessary. And finally, Part VII of this article concludes with a critical analysis of two observed failings of the current international legal and operational framework for public health emergencies. In considering the shortcomings of the current framework it will be argued that a more holistic approach to disease control is required that looks beyond disciplinary confines.
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The judgement by the Supreme Court of Appeal of South Africa in South African Dental Association v Minister of Health [2015] ZASCA 163 concerns a seemingly technical question about the statutory professional recognition of dental... more
The judgement by the Supreme Court of Appeal of South Africa in South African Dental Association v Minister of Health [2015] ZASCA 163 concerns a seemingly technical question about the statutory professional recognition of dental assistants, and therefore provides an opportunity for legal-historical analysis of how a health/medical profession is "made". The primary locus of this article is South Africa. However, the value of the analysis is not confined to jurisdictional boundaries, as the reader is invited to reconsider how and when a vocation or occupation becomes a profession. The underlying question of professionalisation, incidental to the Supreme Court of Appeal's reasoning, informs and guides an important debate with relevance not only for the parties before the Court, but also for the contemporary notion of professional practice. It is argued that the power of professionalisation deserves to be demystefied in order to make legal sense and to affect legitimacy and trust in the eyes of the public at large.
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This article provides an overview of the constitutional provisions pertaining to the right to health and health-related rights in the Constitutions of countries on the African continent. The discussion will be based on a systematic review... more
This article provides an overview of the constitutional provisions pertaining to the right to health and health-related rights in the Constitutions of countries on the African continent. The discussion will be based on a systematic review of the Constitutions of States on the African continent. The Constitutions considered are divided into four categories based on the extent to which it makes provision for the right to health and health-related rights, as well as the scope thereof. The four categories are: Constitutions that make limited to no provision for the right to health or health-related rights; Constitutions that restrict the right to health and/or health-related rights to principles and objectives of State policy; Constitutions that do not provide for a right to health explicitly but provide for health-related rights; and finally, Constitutions that provide for a comprehensive right to health and health-related rights as well as measures to ensure the enforceability thereof. The objectives of this constitutional comparative analysis are modest, and do not advance any causal or normative claims. The primary contribution of this article is rather methodological in nature; providing a comprehensive, systematic overview of how, and to what extent, the right to health and health-related rights feature in Constitutions on the African continent. This is a valuable undertaking as human rights is generally regarded as the dominant rights discourse and ideology of our time and Constitutions as one of the main domestic instruments for its articulation.
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Shaken Baby Syndrome refers to the violent and repetitive shaking of an infant, and is a form of abusive head trauma. It was first described in 1974, and has since been the topic of intensive study and discussion. The syndrome has... more
Shaken Baby Syndrome refers to the violent and repetitive shaking of an infant, and is a form of abusive head trauma. It was first described in 1974, and has since been the topic of intensive study and discussion. The syndrome has classically been diagnosed with a triad of injuries, namely subdural haemorrhage, retinal haemorrhage and encephalopathy (brain abnormalities). However, recent publications have led to some doubt regarding the causation and diagnostic significance of the triad. It is now generally accepted that other conditions, even natural diseases, may cause the findings listed in the so-called "triad". To date, no reported case law is available on Shaken Baby Syndrome in South Africa; therefore this article focuses on cases in the United States and United Kingdom to delineate some of the issues associated with litigating the condition. This includes the obligation of expert witnesses to give independent, factual evidence about their areas of expertise. It is recommended that medical and legal professionals involved in cases of alleged child abuse should collect as much information as possible about the context of the case. Confessions by parents or caregivers should be treated with circumspection. Awareness campaigns should be aimed at informing the public of the dangers of shaking an infant. And with regards to Shaken Baby Syndrome an increased focus on evidence-based medicine is necessary to dissipate the uncertainty around the condition.
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Music, and especially singing, plays a central role in African cultures. Songs and rhythm have been described as 'a truly African way of communication' and it is therefore not surprising that music has played, and continues to play, an... more
Music, and especially singing, plays a central role in African cultures. Songs and rhythm have been described as 'a truly African way of communication' and it is therefore not surprising that music has played, and continues to play, an important role in African politics. This article will consider the important role that struggle music - also known as freedom songs – played in South Africa during the apartheid years and the struggle for liberation, and how it continues to play an important role in contemporary South African politics. First, the genre of struggle music will be circumscribed and differentiated from other politically motivated music. Then the discussion will turn to the struggle music of South Africa during the apartheid years, and how it is still being utilised in politics today. With regard to the contemporary use of struggle music in South African politics, the discussion will focus on the controversial struggle song Dubulu' iBhunu and the decision of the South African Equality Court in Afriforum & another v Malema and another (Vereniging van Regslui vir Afrikaans as Amicus Curiae) 2011 (12) BCLR 1289 (EQC) prohibiting the singing of the song in public and declaring its lyrics to be hate speech.
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Multi-culturalism and -ethnicity are key features of African societies and an understanding of traditional belief systems and cultural perceptions about health, illness and healing is therefore pivotal on the African continent. This is... more
Multi-culturalism and -ethnicity are key features of African societies and an understanding of traditional belief systems and cultural perceptions about health, illness and healing is therefore pivotal on the African continent. This is all the more true when it comes to mental health. Despite neuro-psychiatric disorders ranking third (after HIV/AIDS and other infectious diseases) in contributing to the overall disease burden in South Africa, mental health is still acutely stigmatized and is generally seen as a peripheral and isolated issue. This is partly due to the
various cross-cultural causal explanations and perceptions that exist amongst Africans with regard to their mental health. In many of the indigenous languages, no equivalent words for concepts like ‘counselling,’ ‘therapy’ or ‘depression’ exist and traditional beliefs in supernatural causes of, and remedies for mental conditions are rife. It is furthermore not uncommon for people to accept biomedical explanations and treatment for their condition, even while espousing more traditional and cultural (ethno-etiological) perceptions about their mental health, and utilizing the traditional treatment options and rituals provided by
traditional healers. This paper will consider some of these mental health ethnoetiologies in Southern Africa and will show how cultural, religious and spiritual beliefs about mental health can colour perceptions and influence communication. An argument will be made for a culture-sensitive understanding of mental illness in Southern Africa, the fundamental principles that underpin African beliefs with regard to health and illness will be considered, and a collaborative therapeutic approach that is culture-sensitive, pluralistic and patient-centred will be advocated.
The primary example that will be explored in this chapter is kufungisasa, a cultural construction of the mental illness generally known as depression in Western biomedicine.
various cross-cultural causal explanations and perceptions that exist amongst Africans with regard to their mental health. In many of the indigenous languages, no equivalent words for concepts like ‘counselling,’ ‘therapy’ or ‘depression’ exist and traditional beliefs in supernatural causes of, and remedies for mental conditions are rife. It is furthermore not uncommon for people to accept biomedical explanations and treatment for their condition, even while espousing more traditional and cultural (ethno-etiological) perceptions about their mental health, and utilizing the traditional treatment options and rituals provided by
traditional healers. This paper will consider some of these mental health ethnoetiologies in Southern Africa and will show how cultural, religious and spiritual beliefs about mental health can colour perceptions and influence communication. An argument will be made for a culture-sensitive understanding of mental illness in Southern Africa, the fundamental principles that underpin African beliefs with regard to health and illness will be considered, and a collaborative therapeutic approach that is culture-sensitive, pluralistic and patient-centred will be advocated.
The primary example that will be explored in this chapter is kufungisasa, a cultural construction of the mental illness generally known as depression in Western biomedicine.
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This article critically examines the role and responsibility of the judiciary in the realisation and concretisation of health rights in Nigeria. The gulf between the formal recognition of the right to health in international instruments —... more
This article critically examines the role and responsibility of the judiciary in the realisation and concretisation of health rights in Nigeria. The gulf between the formal recognition of the right to health in international instruments — such as the International Covenant on Economic, Social and Cultural Rights and the African Charter on Human and People’s Rights — and the Nigerian Constitution, and the enforceability thereof, will shape the thrust of the discourse. It is argued that the judiciary in Nigeria is not engaging meaningfully with the true substantive content of health rights, and adequate notice and guidance is not taken from the provisions of international human
rights instruments — like the ICESCR and the ACHPR. This is regrettable as courts can be valuable arenas and catalysts for the realisation and enforcement of health rights in the concrete contexts of specific cases.
rights instruments — like the ICESCR and the ACHPR. This is regrettable as courts can be valuable arenas and catalysts for the realisation and enforcement of health rights in the concrete contexts of specific cases.
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This paper considers the potential role that behavioural genetics can play in the sentencing stage of criminal proceedings in South Africa. The discussion specifically focuses on the propensity of offenders towards criminal behaviour... more
This paper considers the potential role that behavioural genetics can play in the sentencing stage of criminal proceedings in South Africa. The discussion specifically focuses on the propensity of offenders towards criminal behaviour within the context of South Africa’s ‘Fight Against Crime’ and the window of opportunity created by two legislative reforms: the minimum sentencing legislation and the establishment of a Forensic DNA Intelligence Database. The article also provides a general overview of Forensic DNA Phenotyping, and the application of behavioural genetics in the context of the law. Specific attention is then paid to the potential use of behavioural genetics as a mitigating factor in sentencing and in the rehabilitation of convicted prisoners. It is ultimately concluded that the multi-disciplinary approach already applied in the sentencing stage of criminal proceedings in South Africa be extended to also consider the potential role that behavioural genetics can play in this regard.
Obtaining informed consent from potential research participants can be fraught with difficulty at the best of times. In emergency care research, consent procedures are particularly controversial as research subjects are usually unable to... more
Obtaining informed consent from potential research participants can be fraught with difficulty at the best of times. In emergency care research, consent procedures are particularly controversial as research subjects are usually unable to voice their wishes and unable to consider the material benefits and risks of the medical procedures, treatment and research. And, an added level of difficulty is the unique nature of the emergency situation, where time is of the essence and obtaining proxy consent from a legal representative or family member is not always logistically possible. This article will consider the deferred consent procedures and regulations of emergency care research in South Africa. A comparative overview will then be provided of the relevant procedures and regulations on emergency care research in the UK, continental Europe, and the USA. The important oversight role of Research Ethics Committees and Institutional Review Boards in emergency care research will be emphasized in terms of the difficult ethical and legal concerns that must guide them in their decision-making responsibilities.
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In a recent judgment by the South African Supreme Court of Appeal, Daffy v. Daffy, (659/2011) [2012] ZASCA 149; [28 September 2012] 4 All SA 607 (SCA); 2013 (1) SACR 42 (SCA) the question of what exactly constitutes a domestic... more
In a recent judgment by the South African Supreme Court of Appeal, Daffy v. Daffy, (659/2011) [2012] ZASCA 149; [28 September 2012] 4 All SA 607 (SCA); 2013 (1) SACR 42 (SCA) the question of what exactly constitutes a domestic relationship for the purposes of domestic violence came under scrutiny. This article will provide a short overview of the Daffy case and the South African Domestic Violence Act 116 of 1998. The bounds and limits of intra-family violence, domestic violence and what constitutes a domestic relationship in terms of South African law will be considered. While this article does not express an opinion on whether this particular case of sibling
conflict and alleged violence amounted to domestic violence as set out in the South African Domestic Violence Act, it does question the Supreme Court of Appeal’s constricted interpretation of these
concepts and place it within the broader realm of developments on domestic violence and research on family violence. The primary aim of this article is to challenge preconceived and constricted views of
what domestic violence entails and who it involves. It will provide the reader with pertinent questions that will, hopefully, instigate further debate about the conceptual structure and scope of domestic
violence.
conflict and alleged violence amounted to domestic violence as set out in the South African Domestic Violence Act, it does question the Supreme Court of Appeal’s constricted interpretation of these
concepts and place it within the broader realm of developments on domestic violence and research on family violence. The primary aim of this article is to challenge preconceived and constricted views of
what domestic violence entails and who it involves. It will provide the reader with pertinent questions that will, hopefully, instigate further debate about the conceptual structure and scope of domestic
violence.
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Child-headed households (CHHs) have become a common and integral part of South African society. Millions of children have lost their parents and/or primary caregivers due to a variety of reasons of which the HIV/AIDS pandemic can be... more
Child-headed households (CHHs) have become a common and integral part of South African society. Millions of children have lost their parents and/or primary caregivers due to a variety of reasons of which the HIV/AIDS pandemic can be singled out as a major cause. It is therefore not uncommon today to have minors (under the age of 18 years) care for their younger siblings and/or ill parents or family. A child-headed household (CHH) refers to a living situation/arrangement where a child has taken charge of a household in terms of decision-making responsibilities as well as the responsibility to provide for the physical, social and emotional needs of others living with that particular child, in that household, and regardless of familial relationship.
This paper is concerned with the legal and ethical dilemmas that arise in a therapeutic relationship where a minor is the primary caregiver of a patient unable to care for him-/herself. Where do a medical practitioner’s responsibilities lie in communicating important medical information about the patient’s condition to the patient’s minor caregiver? While the patient’s rights to privacy and confidentiality are important, the patient’s particular condition and medical care may also necessitate that certain information be disclosed to the minor caregiver. However, the minor caregiver may not always be a willing party to this collaborative therapeutic relationship and the ability of such a minor to consent to medical treatment on behalf of the patient, or take on responsibilities in terms of this therapeutic relationship can also be called into question. The various therapeutic approaches, roles, skills and conditions of this unique form of agency should therefore be given due consideration from both a legal and ethical point of view.
This paper is concerned with the legal and ethical dilemmas that arise in a therapeutic relationship where a minor is the primary caregiver of a patient unable to care for him-/herself. Where do a medical practitioner’s responsibilities lie in communicating important medical information about the patient’s condition to the patient’s minor caregiver? While the patient’s rights to privacy and confidentiality are important, the patient’s particular condition and medical care may also necessitate that certain information be disclosed to the minor caregiver. However, the minor caregiver may not always be a willing party to this collaborative therapeutic relationship and the ability of such a minor to consent to medical treatment on behalf of the patient, or take on responsibilities in terms of this therapeutic relationship can also be called into question. The various therapeutic approaches, roles, skills and conditions of this unique form of agency should therefore be given due consideration from both a legal and ethical point of view.
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This note considers the conditions of overcrowding in prisons and/or detention facilities and inmates' health and well-being. The article consideres the the South African case Lee v Minister of Correctional Services (CCT 20/12) [2012]... more
This note considers the conditions of overcrowding in prisons and/or detention facilities and inmates' health and well-being. The article consideres the the South African case Lee v Minister of Correctional Services (CCT 20/12) [2012] ZACC 30 (11 December 2012) and a case decided by the European Court of Human Rights, Kalashnikov v Russia [2002] ECHR 596 (2003) 36 EHRR 34. References are also made to how overcrowding in prisons in Canada, impact on the health and well-being of inmates. States responsibility to ensure that prisoners/detainees are kept under conditions that preserve their human dignity and meet their basic health rights and entitlements are emphasised in this article.
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The systemic consequences of the HIV/AIDS pandemic in South Africa are not only evident in demographic, economic and social trends, but it is also devastating on a micro- and personal level. Those infected with HIV are often the target... more
The systemic consequences of the HIV/AIDS pandemic in South Africa are not only evident in demographic, economic and social trends, but it is also devastating on a micro- and personal level. Those infected with HIV are often the target of intense discrimination and discriminatory behaviour including rejection, isolation and violence. It is especially because of these macro- and micro effects associated with HIV/AIDS, that the highest regard should be placed on the fundamental rights of infected individuals - specifically the rights to privacy and bodily and psychological integrity - when determining whether the disclosure of such persons’ status is necessary and justified. The primary aim of this article is to critically consider and describe the different contexts in which the disclosure of a person’s HIV/AIDS status will be relevant. The position of various role players in the economy, criminal justice system and in the health care arena will be considered with reference to relevant legislation, case law, guidelines and ethical codes. It will be clear from the discussion that no simple or single right answer exists. A patient-oriented approach, sensitive to Public Health goals and objectives, and based on human rights principles, is advocated for in this article.
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Science and technology have assumed a pivotal role in shaping all aspects of modern society. They are intertwined with wider socio-political issues, and feature in both civil and criminal courtrooms. The law, however, often lags behind in... more
Science and technology have assumed a pivotal role in shaping all aspects of modern society. They are intertwined with wider socio-political issues, and feature in both civil and criminal courtrooms. The law, however, often lags behind in adequately considering scientific and technological advances, social context, and the consequences of technological advances in a multicultural society. This article focuses on the moment of death, defined in the National Health Act 61 of 2003 as brain death. The development of death criteria will be considered, together with contemporary controversies surrounding brain death as the generally accepted death criterion. The pivotal role of social norms in determining the moment of death is discussed with specific reference to Jewish law, Japanese culture, and finally African indigenous traditions. It is argued that while it is important that the concept of death be ‘updated’ and redefined as science and technology provide for new possibilities, and social norms and belief systems change over time, it is only with due regard to societal norms and values that the law can truly give effect to the role of science and technology in shaping all aspects of modern society – including the medical and legal definitions of death.
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It is important to determine whether a foetus had been born alive since various legal consequences follow upon such a determination. This article is concerned with the determination of live birth in terms of section 239 of the Criminal... more
It is important to determine whether a foetus had been born alive since various legal consequences follow upon such a determination. This article is concerned with the determination of live birth in terms of section 239 of the Criminal Procedure Act 51 of 1977 and live non-birth, the latter concept as transpired in the case of S v Mshumpa 2008 (1) SACR 126 (E). The medico- legal importance and risks of the hydrostatic test in determining live birth will be considered and its novel application in determining breathing before birth (live non-birth) for the purpose of criminal proceedings will also be discussed. Reference will be made to case law and legislation from the United Kingdom and selected states from the United States of America in order to show that section 239 of the Criminal Procedure Act 51 of 1977, which requires only that it be proved that a foetus had breathed in order to establish live birth, does not take into consideration the present medical opinion on the matter, or the legal developments with regard to infanticide and the determination of live birth in other jurisdictions.
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“…human rights law has so far had only limited success in actually improving the lives of persons living with HIV/AIDS in sub-Saharan Africa.” Over the past fifty years many countries have experienced vast improvements with regard to... more
“…human rights law has so far had only limited success in actually improving the lives of persons living with HIV/AIDS in sub-Saharan Africa.”
Over the past fifty years many countries have experienced vast improvements with regard to national health indicators and the health status of their citizens, some of these improvements include an improved life expectancy and child mortality rates, the eradication and successful treatment of many communicable diseases and the improved provision of primary health care services to the broader population without discrimination. These achievements can, however, not be extended to all countries on the African continent: For some countries in sub-Saharan Africa the average age of death declined from five years to two years over this same period, and in post-apartheid South Africa the infant mortality in 2001 was five times higher among black persons than compared to white individuals. This article is concerned with these inequities in health outcomes — inequities that are especially evident on the African continent.
The crucial insight in this article is that certain obstacles to the realisation of the right to health on the African continent cannot be addressed without the assistance of committed and participating civil communities. However, such community-specific responses to health rights are, in turn, influenced and sustained by various social, material, organisational, religious and cultural conceptions, unique to and historically deeply imbedded in the social order of the particular community/society. The milieu of changing African societies and cultures can therefore not be separated from the civil society organisations operating therein. This article will focus specifically on the social and cultural milieu of health needs and rights in Malawi and Uganda. The choice of these two countries is informed by the fact that they share many of the same socio-economic challenges as highlighted by, for instance, studies on the realisation of the Millennium Development Goals. “Culture” in this article will refer to “…that complex whole which includes knowledge, belief, art, morals, law, custom, and any other capabilities and habits acquired by man as a member of society”.
Over the past fifty years many countries have experienced vast improvements with regard to national health indicators and the health status of their citizens, some of these improvements include an improved life expectancy and child mortality rates, the eradication and successful treatment of many communicable diseases and the improved provision of primary health care services to the broader population without discrimination. These achievements can, however, not be extended to all countries on the African continent: For some countries in sub-Saharan Africa the average age of death declined from five years to two years over this same period, and in post-apartheid South Africa the infant mortality in 2001 was five times higher among black persons than compared to white individuals. This article is concerned with these inequities in health outcomes — inequities that are especially evident on the African continent.
The crucial insight in this article is that certain obstacles to the realisation of the right to health on the African continent cannot be addressed without the assistance of committed and participating civil communities. However, such community-specific responses to health rights are, in turn, influenced and sustained by various social, material, organisational, religious and cultural conceptions, unique to and historically deeply imbedded in the social order of the particular community/society. The milieu of changing African societies and cultures can therefore not be separated from the civil society organisations operating therein. This article will focus specifically on the social and cultural milieu of health needs and rights in Malawi and Uganda. The choice of these two countries is informed by the fact that they share many of the same socio-economic challenges as highlighted by, for instance, studies on the realisation of the Millennium Development Goals. “Culture” in this article will refer to “…that complex whole which includes knowledge, belief, art, morals, law, custom, and any other capabilities and habits acquired by man as a member of society”.
Research Interests:
Since the first introduction of a provision dealing with the use of (lethal) force in effecting an arrest in South African criminal procedure in 1917, the provisions have been amended a total of four times with a possible fifth amendment... more
Since the first introduction of a provision dealing with the use of (lethal) force in effecting an arrest in South African criminal procedure in 1917, the provisions have been amended a total of four times with a possible fifth amendment soon to be passed in terms of the Criminal Procedure Amendment Bill B39 – 2010. In this article the wording, interpretation and development of the provisions from its common-law roots and the first provision in the 1917 Act to the latest proposed amendment will be analysed and compared.
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This article will focus on witness anonymity as a tool to encourage the reporting of criminal activities and criminal victimisation by victims and other witnesses, and as a mechanism to ensure that witnesses in criminal proceedings are... more
This article will focus on witness anonymity as a tool to encourage the reporting of criminal activities and criminal victimisation by victims and other witnesses, and as a mechanism to ensure that witnesses in criminal proceedings are duly protected. This will be juxtaposed against an accused’s right to a fair trial, in terms of s 35(3) of the Constitution of the Republic of South Africa, 1996 and relevant provisions of the Criminal Procedure Act,1 as well as the foundational principle of the criminal justice system that an accused has a right to confront witnesses testifying against him or her and that such testimony should be given in an open court and in the presence of the accused. Arguments in favour of witness anonymity, primarily based on the contention that the right of confrontation is not absolute, will be considered together with examples from other jurisdictions and arguments asserting that the curtailing of the right of confrontation to accommodate true witness anonymity are too extreme and inconceivable in terms of an accused’s right to a fair trial.
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The term garrotting, today, suggests a swift and fatal action that results in immediate death. We hear of financial or economic garrotting and the expression is particularly well-liked by politicians to express total cut-off. In Thomas... more
The term garrotting, today, suggests a swift and fatal action that results in immediate death. We hear of financial or economic garrotting and the expression is particularly well-liked by politicians to express total cut-off. In Thomas Hardy’s bibliography, mention is even made of literary garrotting: a term said to neatly combine censorship with economic strangulation (Millgate 2004). The image that comes to most people’s minds, however, is that of beheading and/or strangulation; not unlike the imagery of the infamous French Guillotine or the blue etched drawing by Goya entitled The Garrotted Man (El agarrotado [1778–1780] Francisco de Goya y Lucientes). This article will focus on this last associ- ation of the word “garrotting”.
Our aim in this article is to provide some insight into the method and manifestations of garrotting as a par- ticular form of ligature strangulation and asphyxiation. Starting with the history of this gruesome activity and the technique, the act and the instruments employed and the development and transformation of this prac- tice in different countries and in particular in Spain, where the practice was widely used – if not actually originating there – and India, Latin America and the UK. In light of their historical significance, specific reference is made to the thuggees of India and the “London Garrotting Panics” at the beginning of the 19th century. The subsequent discussion will focus on present manifestations of garrotting as a form of ligature strangulation and reference will be made to rel- evant practical, investigative and medico-legal con- siderations in handling cases of this nature, and observations pertaining to offender characteristics.
Our aim in this article is to provide some insight into the method and manifestations of garrotting as a par- ticular form of ligature strangulation and asphyxiation. Starting with the history of this gruesome activity and the technique, the act and the instruments employed and the development and transformation of this prac- tice in different countries and in particular in Spain, where the practice was widely used – if not actually originating there – and India, Latin America and the UK. In light of their historical significance, specific reference is made to the thuggees of India and the “London Garrotting Panics” at the beginning of the 19th century. The subsequent discussion will focus on present manifestations of garrotting as a form of ligature strangulation and reference will be made to rel- evant practical, investigative and medico-legal con- siderations in handling cases of this nature, and observations pertaining to offender characteristics.
Research Interests:
During the course of legal proceedings, evidentiary material is analyzed and evaluated in order to make a final judgement whether the responsible party has discharged the onus of proof. The existence of a standard of proof against which... more
During the course of legal proceedings, evidentiary material is analyzed and evaluated in order to make a final judgement whether the responsible party has discharged the onus of proof. The existence of a standard of proof against which the presiding officer can measure the evidence submitted consequently plays a pivotal role. This standard of proof (bewysmaatstaf) represents the standard of guilt in legal science and has also been described as a standard of conviction. The standard of proof does not pertain to the inherent qualities of evidentiary material, but rather to the degrees of conviction of the presiding officer in a particular case. The function of the standard of proof is furthermore to provide presiding officers with a guideline/yardstick to measure the degree of conviction that the general public believe the presiding officer should have over the correctness of all the factual conclusions in the particular proceedings. In this article, the standard of proof in law will be discussed from a comparative point of view; different standards of proof from different jurisdictions will be considered and juxtaposed against similar standards used in the natural sciences.
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In this article, the regulation of African Traditional Medicine (ATM) is considered in terms of the law and the national health system of South Africa, and with specific reference to HIV/AIDS. The level of recognition that ATM enjoys in... more
In this article, the regulation of African Traditional Medicine (ATM) is considered in terms of the law and the national health system of South Africa, and with specific reference to HIV/AIDS. The level of recognition that ATM enjoys in the legal and healthcare systems at present is discussed and juxtaposed against the regulation of traditional medical practices in other African countries. The light in which these practises are viewed by indigenous peoples is also considered. The legal perspective(s) highlighted are analysed against the background of African governments ́ strategies to promote and preserve indigenous knowledge. Reference will consequently be made to the South African government ́s efforts to preserve (and promote) indigenous knowledge in the context of traditional medicine. A secondary theme is the existing competing discourses on HIV/AIDS and ATM in sub-Saharan Africa – ie how HIV/AIDS and ATM are generally perceived. It will be shown that specific discourses and perceptions hinder a true realisation of health rights for those infected with HIV/AIDS and also bar the full recognition and regulation of ATM practices. I argue for greater recognition for and regulation of ATM in South Africa’s legal and national health systems especially when considering the potential positive impact of ATM therapeutic properties in the context of HIV/AIDS.
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To determine the moment of death is very important for various purposes in medico-legal practice. The moment of death may not only assist and be regarded as valuable evidentiary material in criminal investigations but it is also important... more
To determine the moment of death is very important for various purposes in medico-legal practice. The moment of death may not only assist and be regarded as valuable evidentiary material in criminal investigations but it is also important in the context of organ transplantation, questions regarding euthanasia, insurance claims, the termination of a marriage or business partnership as well as in the legal domain of succession. A diagnosis of death is furthermore important and necessary for society to commence with religious and/or traditional rituals, burials etcetera (Farrell and Levin “Brain Death in the Pediatric Patient: Historical, Sociological, Medical, Religious, Cultural, Legal and Ethical Considerations” Dec 21(12) 1993 Crit Care Med 1951ff).
In order to determine the exact moment of death, however, is not an easy task, least of all a very simple and straightforward undertaking as Prof Christiaan Barnard suggested by asserting that a person is dead when the doctor says that the person is dead! (Barnard Good Life, Good Death: A Doctor’s Case for Euthanasia and Suicide (1980) 11.) To determine the exact moment of death, a definition of death is required as well as a standard to diagnose death – diagnostic criteria (Joffe “The Neurological Determination of Death: What Does it Really Mean?” 2007 23(2) Issues in Law & Medicine 120). This note will show that what initially may be regarded as general medical and legal requirements as well as basic semantics when referring to a definition of death, a concept of death and the criteria for the purposes of diagnosing death, is actually a very complicated, multifaceted and unsettled area of debate.
In order to determine the exact moment of death, however, is not an easy task, least of all a very simple and straightforward undertaking as Prof Christiaan Barnard suggested by asserting that a person is dead when the doctor says that the person is dead! (Barnard Good Life, Good Death: A Doctor’s Case for Euthanasia and Suicide (1980) 11.) To determine the exact moment of death, a definition of death is required as well as a standard to diagnose death – diagnostic criteria (Joffe “The Neurological Determination of Death: What Does it Really Mean?” 2007 23(2) Issues in Law & Medicine 120). This note will show that what initially may be regarded as general medical and legal requirements as well as basic semantics when referring to a definition of death, a concept of death and the criteria for the purposes of diagnosing death, is actually a very complicated, multifaceted and unsettled area of debate.
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The provision of health care services have changed rapidly and extensively over the past century, from the, what we now belief to be cruel and inhumane treatments of the past, to the brilliant advances in technology available already and... more
The provision of health care services have changed rapidly and extensively over the past century, from the, what we now belief to be cruel and inhumane treatments of the past, to the brilliant advances in technology available already and the promise by medical scientists of even greater evolution in the near future. However, despite this growing range of new and improved treatments, medicines and techniques, the provision of health care services are still hindered by problems with regard to the high cost of health care, the accessibility to health care services for all and the quality of health care available. Especially in developing countries one of the greatest obstacles in the provision of health care services is to ensure that quality services is also provided for in rural and isolated areas and that these services are accessible to all, including the very poor. This article focus on telehealth and more specifically telemedicine, a development in the health care industry which are incorporated on various levels of service providing and which may address some of the current problems areas in the industry. The article aims to provide the reader with some insight into the development and use of telemedicine services and more importantly, the legal consequences and how the use of telemedicine services may influence the healthcare industry specifically in South Africa.
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The consumption of intoxicating liquor while driving on a public road is regulated by legislators in many countries and states and the legal history of these legislative attempts are vast. Yet, the appearance of drunk driving cases in our... more
The consumption of intoxicating liquor while driving on a public road is regulated by legislators in many countries and states and the legal history of these legislative attempts are vast. Yet, the appearance of drunk driving cases in our courts, statistics on deaths due to drunk driving and other matters related to drunk driving are still a frequent topic of discussion in most jurisdictions and therefore remains a relevant subject matter in need of further research and debate. This article revisit the topic of drunk driving in South Africa by taking a closer look at the most important case law, relevant statutes and then also the more technical and scientific medical aspects concerning drunk driving. It is the aim and also rational of this article to provide a complete outline on the theme of drunk driving taking into consideration all the relevant factors to better equip the layman, jurist, medical practitioner or any other professional involved in the administration and management of drunk driving cases.
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Under the editorial guidance of Chih-yu Shih (Chair Professor at the National Taiwan University), the authors of the six chapters in Re-producing Chineseness in Southeast Asia: Scholarship and identity in comparative perspectives... more
Under the editorial guidance of Chih-yu Shih (Chair Professor at the National Taiwan University), the authors of the six chapters in Re-producing Chineseness in Southeast Asia: Scholarship and identity in comparative perspectives re-examine individual and group Chinese identity (p. 2).These essays were previously published as a special issue of the journal Asian Ethnicity (January 2015) and collectively challenge an essentialising assumption of China and being Chinese. Chih-yu Shih explains that being ethnic Chinese should not be the basis for predicting Chinese beliefs in identities, ideologies, loyalties, class and ethnic consciousness, religions, languages, customs, and most importantly, strategies of survival (p. 2). Shih submits that racial China is authentic China, and thus, “research that resists authentic China deconstructs the relevance of racial China in the practices of daily life” (p. 2). This is an important claim to grasp in the context of scholarly endeavours about China in the context of social science and humanities research. The contributors of the chapters in this book submit that research(ers) should not only convey correct knowledge on the objective conditions of China, but should also portray a distinct sensibility that is empathetic to the complex and constantly evolving nature of Chineseness (p. 2).
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"Statelessness’ is a legal status denoting lack of any nationality, a status whereby the otherwise normal link between an individual and a state is absent (Conklin, 2014)” With this seemingly cinch introductory statement, William Conklin,... more
"Statelessness’ is a legal status denoting lack of any nationality, a status whereby the otherwise normal link between an individual and a state is absent (Conklin, 2014)”
With this seemingly cinch introductory statement, William Conklin, in his monograph Statelessness: The Enigma of an International Community, opens the proverbial can of worms as he tackles some of the thorniest issues in contemporary international law.
With this seemingly cinch introductory statement, William Conklin, in his monograph Statelessness: The Enigma of an International Community, opens the proverbial can of worms as he tackles some of the thorniest issues in contemporary international law.
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Human Subjects Research Regulation: Perspectives on the Future is a volume of twenty-two essays by thirty-three cross-disciplinary authors tackling all the major issues in the regulation of human subject research in our current... more
Human Subjects Research Regulation: Perspectives on the Future is a volume of twenty-two essays by thirty-three cross-disciplinary authors tackling all the major issues in the regulation of human subject research in our current ‘twenty-first century university-industrial research complex’. The authors make recommendations, offer solutions and ask hard questions, including what the objectives of research regulation should be, and whether the current regulatory scheme still serves its intended purpose. The book forms part of The Basic Bioethics series by The MIT Press, and makes a valuable contribution to the existing collection of manuscripts, reference works and textbooks that engage with topics related to the philosophy of medicine, advances in genetics and biotechnology, end-of-life care, health and social policy, and the empirical study of biomedical life.
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With the collection of essays in When People Come First, the authors change the lens of analysis in global health discourse and champion the role of ethnography – a core anthropological methodology – in laying bare the stories of the... more
With the collection of essays in When People Come First, the authors change the lens of analysis in global health discourse and champion the role of ethnography – a core anthropological methodology – in laying bare the stories of the individuals and communities on whose lives the abstract and bureaucratic considerations of public policy impact. They argue that global health ‘overemphasise individual risk factors that ignore how health risks are shaped by law, politics, and practices ranging from industrial and agricultural polities, to discrimination, violence, and [a] lack of access to justice’ (p. 3) An integrated approach, that ‘recognize[s] the profound interdependence of health, economic development, good governance, and human rights’, is therefore essential for a ‘critical global health perspective’ (p. 4).
Mel Y. Chen’s Animacies: Biopolitics, Racial Mattering, and Queer Affect challenges our conventional divisions between the animate and inanimate. She not only builds on existing linguistic theory in which animacy plays a prominent role.... more
Mel Y. Chen’s Animacies: Biopolitics, Racial Mattering, and Queer Affect challenges our conventional divisions between the animate and inanimate. She not only builds on existing linguistic theory in which animacy plays a prominent role. (Because it is in language, after all, that basic categories of human cognition, including the animacy-inanimacy distinction, are expressed.) But she also takes us on a whirlwind tour of biopolitics in which she highlights the complexity of ongoing debates about sexuality, race, environment and affect, all the while playing on the linguistic recognition of the liveliness or sentient nature of the referent of a noun.
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Abstract: The Appellate Division in the case of Van Wyk v Lewis 1924 AD 438 held that the doctrine of res ipsa loquitur does not apply in medical negligence cases in South Africa. Res ipsa loquitur is a doctrine or maxim that functions in... more
Abstract: The Appellate Division in the case of Van Wyk v Lewis 1924 AD 438 held that the doctrine of res ipsa loquitur does not apply in medical negligence cases in South Africa. Res ipsa loquitur is a doctrine or maxim that functions in the realm of the Law of Evidence and ...
Abstract: The book attempts to provide the reader with an all-inclusive and detailed report on the basic principles underpinning medical law in South Africa. It discusses a diverse range of topics as well as the interesting dynamic... more
Abstract: The book attempts to provide the reader with an all-inclusive and detailed report on the basic principles underpinning medical law in South Africa. It discusses a diverse range of topics as well as the interesting dynamic between the general field of medical law and ...
This book sets out the basic principles of the Law of Evidence in Hong Kong, for both criminal and civil legal proceedings. To a large extent, the laws in Hong Kong still resemble those of England and Wales prior to the handover of Hong... more
This book sets out the basic principles of the Law of Evidence in Hong Kong, for both criminal and civil legal proceedings. To a large extent, the laws in Hong Kong still resemble those of England and Wales prior to the handover of Hong Kong to the People's Republic of China on 1 July 1997. However, the evidentiary principles and rules of Hong Kong law are not simply a derivative of English law; the Hong Kong Law of Evidence has also been guided in its development by comparable legal reforms in other commonwealth jurisdictions, notably Canada and Australia. These, and other unique developments with regard to the Law of Evidence in Hong Kong are fully reflected in this text. This book is the second volume in a series on criminal justice in Hong Kong - the other titles being on criminal procedure and criminal law (general principles and specific offences). The cross-references in the three volumes underscore the practical and theoretical interplay between the three subject areas, which will prove indispensable for academics, students, and practitioners alike.
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This book sets out the basic principles and practices of criminal procedure in Hong Kong, which is still to a large extent based on the laws of England and Wales. Criminal procedure in Hong Kong is best understood in the context of legal... more
This book sets out the basic principles and practices of criminal procedure in Hong Kong, which is still to a large extent based on the laws of England and Wales. Criminal procedure in Hong Kong is best understood in the context of legal developments in England and Wales and other commonwealth jurisdictions, notably Canada and Australia. However, criminal procedure in Hong Kong is not simply a derivative of English law; political and legal changes effected by the handover of Hong Kong to the Peoples’ Republic of China in 1997, and the concomitant advent of law reforms initiated by the government of the Hong Kong Special Administrative Region are also fully reflected in this text. This book forms the first part of a series on criminal justice in Hong Kong – the other titles being on the law of evidence and criminal law (general principles and specific offences). The cross-references in the three volumes underscore the practical and theoretical interplay between the three subject areas, which will prove useful for academics, students, and practitioners alike.
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Many challenges exist in clinical research with regard to the process and manner in which informed consent is obtained. This is especially problematic in developing countries like South Africa (van Loon & Lindegger, 2009:1). One such... more
Many challenges exist in clinical research with regard to the process and manner in which informed consent is obtained. This is especially problematic in developing countries like South Africa (van Loon & Lindegger, 2009:1). One such challenge manifest from the discrepancies and contradictions in the guidance documents and legislation that all clinical researchers in South Africa have to follow and adhere to. In this book the process and manner in which voluntary informed consent is obtained in clinical research is compared from an ethical perspective and in terms of the different guidance documents and relevant governing legislation currently effective and authoritative in the area of clinical and health research in South Africa. It was concluded that the South African specific guidance documents require urgent revision to be in line with each other and other international guidance documents and South African governing legislation and regulations in order to serve a good purpose to, legally and morally, protect South Africans better against research exploitation.
Research Interests:
The relationship between a patient and doctor is unique, unequal and intimate. Vulnerable individuals share their problems with persons regarded to have the required knowledge and skill necessary to treat these problems and to give... more
The relationship between a patient and doctor is unique, unequal and intimate. Vulnerable individuals share their problems with persons regarded to have the required knowledge and skill necessary to treat these problems and to give professional advice. The doctor-patient relationship is furthermore complex as it can give rise to many legal and ethical dilemmas. Le Roux-Kemp argues that the unique social dynamic of the doctor-patient relationship should be revisited in order to cast the legal rules and practices in a new ethical paradigm: one in which the power imbalances between doctor and patient is recognised; trust between patient and doctor is valued; and the ethos of a constitutional dispensation where dignity stands central is advanced and cultivated. This interdisciplinary study considers the legal- ethical aspects of the doctor-patient relationship as well as the various factors that influence it. References are made to theories and principles from sociology, economy and ethnomethodology. While the main focus is on the legal principles and examples of case law from South Africa, the UK and USA, the nature of this particular subject is universal.