Discuss the Consumer Protection Act to the extent that the provisions of the Act directly affect the validity of exclusion clauses; 22 MN Slabbert, B Maister, M Botes and MS Pepper “The application of the Consumer Protection Act in the South African healthcare context: concerns and recommendations” (2011) CILSA 168, 182.
THE NATURE OF THE RELATIONSHIP BETWEEN THE DOCTOR AND THE PATIENT – HOW DOES THE PATIENT ENTER INTO THE CONTRACT WITH PATIENT – HOW DOES THE PATIENT ENTER INTO THE CONTRACT WITH
THE CONTRACTUAL/CRIMINAL RELATIONSHIP BETWEEN THE DOCTOR/HOSPITAL AND THE PATIENT DEFINED AND EXPLAINED 2.1 INTRODUCTION. In either case, the patient has a “contract” with different entities, and to the extent that offer and acceptance apply, it is important to understand which party is making the offer and which party is accepting the offer.
THE CONTRACTUAL RELATIONSHIP BETWEEN THE HOSPITAL AND THE PATIENT (PUBLIC AND PRIVATE HEALTH SECTOR) PATIENT (PUBLIC AND PRIVATE HEALTH SECTOR)
Carstens and Pearmain37 argue that to suggest that there is a contractual relationship between a patient and a public health care provider would amount to a purchase and sale agreement, which would in turn affect the legal and social responsibilities of the parties. However, such a contract would depend on the intention of the parties involved, as not every contract amounts to a commercial transaction.
NATURE OF THE CONTRACT (PUBLIC AND PRIVATE SECTORS)
Not only oral consent, but also written consent confirming the intention of the respondents.39. In practice, however, many patients seem to sign the contract without reading the terms due to exigent circumstances.
CONTRACTUAL FORMALITIES IN THE HOSPITAL/PATIENT RELATIONSHIP (PUBLIC AND PRIVATE) RELATIONSHIP (PUBLIC AND PRIVATE)
The patient would be bound by the terms of any contract he/she signs with the hospital authority. The patient must be legally competent to enter into the contract (not mentally incompetent).
THE DELICTUAL RELATIONSHIP BETWEEN THE HOSPITAL AND THE PATIENT (PUBLIC AND PRIVATE) PATIENT (PUBLIC AND PRIVATE)
Unless expressly stated otherwise, the healthcare authority does not guarantee that the patient will be cured. Healthcare authorities will always act in the best interests of the patient. In the medical law context, Carstens and Pearmain68 are of the opinion that unlawful claims are largely based on the balance of power between the healthcare provider and the patient.
THE HOSPITAL’S GENERAL DUTIES TO ITS PATIENTS
A health care provider boasts a much more extensive knowledge of medical procedures compared to a patient, making it less likely that the patient will challenge the health care provider's opinion. The patient will always be in a vulnerable position compared to the doctor due to lack of knowledge, skills and understanding of medical concepts and procedures.
THE PATIENT’S DUTIES
Advise health care providers of his/her wishes regarding his/her death; When a doctor accepts a person as his/her patient, and when such a patient agrees to be treated in a hospital, the patient is owed a duty of care.
CONCLUSION
The patient refuses any further treatment and is legally able to withdraw his/her consent; The doctor has decided to discontinue the practice and has informed the patient of his/her intention to stop practicing, and may even refer the patient to another doctor to continue treatment.
INTRODUCTION
THE LAW OF CONTRACT AND EXCLUSIONARY CLAUSES
The appellant sought to avoid vicarious liability on the basis of the release clause signed by the respondent. The court found that the exemption clause, which formed the heart of the case, was ambiguous in its meaning and the clause did not exclude from its meaning liability for negligent driving on public roads.
THE LAW OF DELICT AND EXCLUSIONARY CLAUSES
Because this action is tied to the person of the injured party, it cannot be assigned to someone else.125. The plaintiff patient would then bring an action based on the actio iniuriarum for satisfaction and the actio Legis Aquilae for the actual costs of the expenses.127. The cause of action for pain and suffering and contractual actions coincide when there is a breach of contract and a wrongful, culpable violation of the plaintiff's physical mental integrity.133 The example given by Neethling and Potgieter is where a surgeon contractually performs an operation which negligently affects the patient's health.
TYPES OF EXCLUSIONARY CLAUSES IN MEDICAL CONTRACTS
I hereby indemnify the hospital against any claim, award judgment, costs and expenses that may be incurred or awarded and incurred by the hospital as a result of or in connection with the treatment of the patient.142. The only type of conduct that does not fall within the scope of the exclusion clause is an intentional omission by the hospital or its employees. The use of the clause also highlights the reason why statutory laws, protecting the rights of consumers, were needed in South Africa.
ETHICAL CONSIDERATIONS
It is argued that it would be a difficult task to prove that the doctors deliberately harmed the patient. Their reasoning is that an exclusion clause is intended to protect the hospital/physician from any liability should harm be caused to the patient. However, in terms of the codes of ethics, a doctor is supposed to act in the best interests of the patient, maintaining a certain degree and standard of care.
EXCLUSIONARY CLAUSES IN FOREIGN JURISDICTIONS
It is further argued that it is crucial for the Court to understand the patient's position at the time of. The High Court found in favor of the defendant and confirmed the exclusion clause which was signed by the deceased on admission to the hospital. In the Cudnick case, the Court had to decide on the validity of the exclusion clause.
CONCLUSION
An exclusion clause would generally be illegal or inapplicable because of the unequal bargaining advantage the hospital would have over the patient. However, it is argued that for an exclusion clause to be legal and binding in India, it must pass judicial scrutiny in terms of the Indian Contract Act or the Indian Consumer Protection Act, whichever is applicable. The next chapter covers the principles underlying the key cases in South Africa, and how they have dealt with the interpretation of exclusion clauses to date.
PUBLIC POLICY
The plaintiff thus argued that the contra bonos mores disclaimer was alternatively against public policy. In Naidoo v. Birchwood Hotel214, the court held that any contractual term that deprived a party of "judicial relief" was prima facie contrary to public policy. The court held that to allow such an exclusion clause to be enforceable would be contrary to the notions of fairness and justice, and then ruled that the clause was unenforceable.215.
UNEQUAL BARGAINING POWER
The court ruled that the clause was not contrary to public order.222 The premise of the case is that a clause that limits a party's ability to seek redress from the court would generally be considered contrary to public order. are considered. The patient will never be in a position to debate the terms of the disclaimer – it is ultimately a lose-lose situation for the patient in that if they choose to refuse to abide by the disclaimer, they will not receive medical treatment. It is argued that Brand JA's decision did not in any way further the patient's bargaining situation, but in fact aggravated the situation.
MISREPRESENTATION
In the Afrox239 case, the respondent argued that he was not bound by his signature as the hospital never informed him of the existence of the disclaimer. He argued that if they had informed him of the clause, he would not have signed the contract. It found that the respondent's subjective expectations had no influence on the responsibility of the hospital staff.
STARE DECISIS AND THE CONSTITUTION
When the Common Law is developed, the aim is to promote the spirit, thrust and objectives of the Bill of Rights. Mavundla AJ observed in the court a quo in Strydom v Afrox Healthcare Limited248 that Section 39 of the Constitution does not merge with the principle of stare decisis when interpreting an indemnity clause, and found that the indemnity clause was unenforceable. He opined that lower courts should not blindly follow higher court decisions that are not in line with the provisions of Article 39 of the Constitution.
PRINCIPLES OF GOOD FAITH
THE LANGUAGE USED IN EXCLUSIONARY CLAUSES AND FREEDOM OF CONTRACT CONTRACT
In the Rosenblaum case,262 the court held that the language of the clause must be read in the context of the agreement, the applicable common law, and the Constitution. All the above decisions emphasize the importance of the language used in the clause and the validity of its applicability. But it begs the question that if the clause is clear and unambiguous, it will be considered valid and enforceable.
CONCLUSION
Apart from the language used, if the very nature of the clause is repugnant, how can it still be considered valid and enforceable, just by virtue of the language used. Freedom of contract does not give contracting parties the right to enter into any agreement regardless of terms and conditions. A young democracy involves building strong judicial precedents that are symbolic of the values enshrined in the constitution.
INTRODUCTION
DEFINITIONS
SECTIONS OF THE ACT WHICH APPLY TO MEDICAL OR HEALTH SERVICES SERVICES
Section 48(2) of the Act provides that a term or condition is unfair, unreasonable or unjust if... These would then be exemption clauses that exclude gross negligence on the part of the supplier (as in the Afrox case). Article 49(1) provides that certain parts of a contract must be brought to the attention of the consumer in a manner and form that meets the formal requirements of paragraphs (3) to (5) of the Act.
CONCLUSION
Kok refers to the criticism that many commentators were of the opinion that section 61 of the law is too broad, and will require additional costs and infrastructure to implement it. While consumer protection is the core purpose of the Act, it will also have an adverse effect on the patient if it causes an increase in the price of medical services or treatment. THE CONSTITUTIONALITY OF EXCLUSIVE CLAUSES AND THE IMPACT OF THE CONSTITUTION ON EXCLUSIVE CLAUSES IN MEDICAL.
INTRODUCTION
THE RIGHT OF ACCESS v THE RIGHT TO HEALTH CARE
While South Africans are afforded the right to access healthcare, this right may be limited in terms of Article 36 of the Constitution, the Limitations Clause. Should a person be denied access to a private health care facility, which is not legally justified, the private health care facility may be found guilty of unfair discrimination.330 It is argued that Carstens and Pearmain's comments on the right of access are in accordance with the scope and spirit of the Constitution which promotes equality, freedom and justice. It is argued that of extreme importance is the right to equality, justice and, above all, the patient's right to access healthcare services without discrimination on unlawful grounds.
THE RIGHT TO EMERGENCY MEDICAL TREATMENT
An exemption clause that would exclude the high liability of medical professionals would not be legally justified and would be contrary to the constitution. A medical institution cannot rely on such a refusal to deny a patient access to a medical service.
CONCLUSION
Criticize the exclusionary clauses against all of the above and provide a comprehensive discussion and opinion on the way forward;. The writer asserts that the importance of the Act lies in the assessment of patient consent. Exclusionary clauses excluding gross negligence are strictly prohibited within the meaning of the Consumer Protection Act – as they were at common law.
JOURNAL ARTICLES
Letzler M "The Law of Contract, The Consumer Protection Act and Medical Malpractice Law" (2012) De Rebus June, 22. Naude T "The consumer's right to fair, reasonable and fair provisions under the new Consumer Protection Act in comparative perspective" ( 2009) SALJ 505. 12. Slabbert MN, Maister B, Botes M and Pepper MS “The application of the Consumer Protection Act in the South African Health Care Context: Concerns and.
THESIS
McQuoid-Mason DJ “Hospital exclusion clauses limiting liability for medical malpractice resulting in death or physical or mental injury: What is the effect of the Consumer Protection Act SAJBL 65. Clauses for the exclusion of liability in South African contract law SA Merc Law LJ 496. A Look at Some of the Reasons Behind the Promulgation of the National Credit Act and the Consumer Protection Act' (2010) Obiter 217.
CASES
SOUTH AFRICA
INDIA
POLICY AND ETHICAL GUIDELINES
ACTS
SOUTH AFRICA
UNITED KINGDOM
EUROPE
INDIA
WEBSITE ADDRESSES
Kanamugire JC “The future of standard form contracts in South Africa with particular reference to recent developments in the law” (2013) Available at. 11.Naude T “Proposals For Amendment Of Consumer Protection Bill” Available at www.pmg.org.za/files/docs/080826proftjakiesub.doc (Accessed on 31 August 2013) 12.Ooosthuizen H “The New Act on Consumer Protection and the GP Anesthetist ". 14.Shyama N “Standard Form Contracts – A Comprehensive Analysis” Available at http://www.legalservicesindia.com/article/print.php?art_id=1161 (Accessed 19 October 2013).
