- Title
- The criminal liability of health care practitioners for culpable homicide
- Creator
- Dweba, Asavela
- Subject
- South Africa
- Date Issued
- 2022-04
- Date
- 2022-04
- Type
- Master's theses
- Type
- text
- Identifier
- http://hdl.handle.net/10948/55511
- Identifier
- vital:52594
- Description
- South African health societies and associations have allied to call for reform in the criminal law system involving the prosecution of health care practitioners, specifically on charges of culpable homicide. Warranted by the spate of criminal prosecutions against healthcare practitioners and the need for reform, this treatise investigates the criminal liability of healthcare practitioners for culpable homicide. Overall, this study aims to determine the recognition of criminal liability of healthcare practitioners, requirements for culpability, the level of negligence that constitutes culpable homicide, and whether the South African law can adjust the threshold for criminal liability in culpable homicide. An analysis of the consequences of legal literature concerning the offence of culpable homicide and medical negligence is provided. In addition, this study examines pertinent case law to devise a strategy for law reform in South Africa and the development of common law. The study includes a comparative study of foreign jurisdictions to incorporate the position in England, Scotland, New Zealand, India, and Canada from which South Africa can adopt some principles within the South African context. The analysis revealed that South Africa has a low threshold in the form of ordinary negligence required to establish criminal liability in cases of culpable homicide while a higher threshold is required for the selected foreign jurisdictions. Furthermore, this treatise contends that the current South African criminal justice regime is lacking in identifying the ideal degree of fault required for criminal conduct. Thus, reform of South Africa’s approach in dealing with healthcare practitioners suspected/ accused of causing the death of patients under medical care is necessary. This study recommends that the South African criminal law justice system should be developed by way of legislative intervention in which ‘gross negligence or recklessness’ will serve as a measure to criminalise the conduct of healthcare practitioners. This study acknowledges the noble role played by healthcare practitioners in the society and notes that medicine is not an exact science. Therefore, this treatise does not advocate a mandatory exoneration of criminal liability of healthcare practitioners. Rather, for a fair and evidence-based prosecution of reckless medical practices.
- Description
- Thesis (LLM) -- Faculty of Law, Department of Criminal and Procedural Law, 2021
- Format
- computer
- Format
- online resource
- Format
- application/pdf
- Format
- 1 online resource (137 pages)
- Format
- Publisher
- Nelson Mandela University
- Publisher
- Faculty of Law
- Language
- English
- Rights
- Nelson Mandela University
- Rights
- All Rights Reserved
- Rights
- Open Access
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NMU Department of Criminal and Procedural Law
| Thumbnail | File | Description | Size | Format | |||
|---|---|---|---|---|---|---|---|
| View Details Download | SOURCE1 | Dweba, A.pdf | 961 KB | Adobe Acrobat PDF | View Details Download |