Privatizing scarcity: Civil liability and health care in Tanzania

Journal of African Law

Volumn 42, Issue 2, 1998, Pages 147-171

  Harrington, John A ^a  

^a UNIVERSITY OF WARWICK   (United Kingdom)

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EID: 84993769471     PISSN: 00218553     EISSN: 14643731     Source Type: Journal    
DOI: 10.1017/S0021855300011803     Document Type: Article

References (119)

1. A. D. Kiwara, “Health and health care in a structurally adjusting Tanzania,” in L. A. Msambichaka et al, Development Strategies for Tanzania. An Agenda for the Twenty First Century, Dar es Salaam, 1994, 269–290 at 270.
2. M. Turshen, The Political Ecology of Disease in Tanzania, New Brunswick, 1984, 55 100.
3. The Political Ecology of Disease in Tanzania, at 149–153.
4. For a history of colonial medicine in the region, cf. A. Beck, A History of the British Medical Administration of East Africa, 1900–1950, Cambridge, MA, 1970.
5. For a discussion of these proposals, see generally, O. Gish, Planning the Health Care Sector, London, 1974.
6. Between 1989 and 1993, for example, 89% of the government's recurrent health care budget was spent on curative services, while only 4% was spent on preventive services; see United Republic of Tanzania, Proposals for Health Sector Reform, Dar es Salaam, 1994, 4.
7. Proposals for Health Sector Reform.
8. Kiwara, Proposals for Health Sector Reform. at 278.
9. Cf. United Republic of Tanzania, Proposals for Health Sector Reform. at 20.
10. Kiwara, Proposals for Health Sector Reform. at 275.
11. Private Hospitals (Regulation) Act, 1977, ss. 5 and 6.
12. Private Hospitals (Regulation) (Amendment) Act, 1991, ss. 5 and 6.
13. United Republic of Tanzania, Private Hospitals (Regulation) (Amendment) Act. at 33.
14. These statistics are reproduced in F. Twaib, The Legal Profession in Tanzania. The Law and Practice, Bayreuth, 1997, 110–113.
15. For this aspect of colonial medicine, see M. Vaughan, Curing Their Ills, London, 1991, 29–53
16. for the ujamaa period see Turshen, Curing Their Ills. at 193–209.
17. The brutally coercive nature of public health campaigns in the colonies is recorded in relation to die sleeping sickness epidemic in the Belgian Congo in M. Lyons, The Colonial Disease. A Social History of Sleeping Sickness in Northern Zaire 1900–1940, Cambridge, 1992.
18. M. Mamdani, Citizens and Subjects. Contemporary Africa and the Legacy of Late Colonialism, London, 1996, 124–128.
19. Twaib, Contemporary Africa and the Legacy of Late Colonialism. at 94–97
20. for a discussion of the general “crisis of law” in the “developmental state”, see Y. Ghai, “The rule of law, legitimacy and governance” (1986) 14 International Journal of the Sociology of Law, 179–208, 194.
21. See Vaughan, International Journal of the Sociology of Law. at 55–75.
22. A brief history of church-state relations in Tanzania is provided in J. C. Sivalon, “The Catholic Church and the Tanzanian state in the provision of social services,” in O. Therkildsen and J. Semboja, Service Provision Under Stress in East Africa, London, 1995, 179–191.
23. Note that the common law of England as it stood in 1920 was carried over into and remains part of the law of Tanzania: see Tanganyika Order in Council 1920
24. Judicature and Application of Laws Ordinance, 1964, s. 2(2)
25. Constitutional (Consequential, Transitional and Temporary Provisions) Act, 1984, s. 5. However, the greater bulk of the English courts' medical law jurisprudence dates from after 1920. It is therefore not binding, but only persuasive in contemporary Tanzania.
26. Lochgelly Iron Co. v. McMullan [1934] AC 1 (per Lord Wright at 25).
27. Bourhill v. Young [1943] AC 92 (HL)
28. Nova Mink v. Trans-Canada Airlines [1951] 2 DLR 241 (SCC).
29. See J. Montgomery, Health Care Law, Oxford, 1997, 167–169.
30. E. J. Weinrib, “The case for a duty to rescue,” (1980) 90 Yale LJ, 247–293.
31. Bamett v. Chelsea and Kensington Hospital Management Committee [1968] 1 All ER 683 (QBD).
32. Cassidy v. Ministry of Health [1951] 2 KB 343 (KBD).
33. Wisher v. Essex AHA [1986] 3 All ER 801 (HL).
34. For a comprehensive discussion of these duties, in both common law and civil law systems, see D. Giesen, International Medical Malpractice Law, Tuebingen, Dordrecht, Boston, 1988, at paras. 109–126.
35. R. v. Cambridge Health Authority, ex parte B [1995] 1 WLR 898 (CA)
36. R. v. Central Birmingham Health Authority, ex parte Walker (1987) 3 BMLR 32 (CA).
37. So named after the case in which it was first adumbrated: Bolam v. Friern Hospital Management Committee [1957] 2 All ER 118 (McNair, J.).
38. Hunter v. Hanky [1955] SC 200
39. note that this Scottish authority has been accepted as representing the law in England on the point: see M. Davics, Textbook on Medical Law, London, 1996, 82–83.
40. Maynard v. West Midlands Regional Health Authority [1984] 1 WLR 634 (HL).
41. As it was put in the leading Australian case “the standard [of care] is not determined solely or even primarily by reference to the practice followed or supported by a responsible body of opinion in the relevant profession or trade”: Rogers v. Whittaker [1992] 175 CLR 479 (HC of Aus at 487)
42. see also Reibl v. Hughes [1980] 114 DLR (3d) 1 (SCC).
43. This test is exemplified in “textbook manner” in the (medical negligence) case of Bamett v. Chelsea and Kensington Hospital Management Committee, DLR.
44. Wilsher v. Essex AHA [1988] 1 All ER 871 (HL): no recovery where breach of duty to premature baby was only one of five possible causes of injury.
45. Hotson v. East Berkshire AHA [1987] AC 750 (HL) no recovery where breach of duty only deprived patient of a 25% chance of recovery.
46. The test is that laid down in Overseas Tankship v. Marts Dock and Engineering Co (The Wagon Mound I) [1961] AC 388 (PC).
47. (1971) High Court Decisions 88.
48. (1971) High Court Decisions 88 at 91.
49. [1980] Tanzania Law Reports 98 (HC).
50. [1980] Tanzania Law Reports 98 at 110 (HC).
51. In relation to the legal profession, and drawing upon the Tanzanian courts' medical jurisprudence, it has been stated that advocates too “must exercise reasonable skill and care in line with current professional standards”: Twaib, Tanzania Law Reports. at 275.
52. (1971) High Court Decisions 88.
53. Civil Appeal No. 49 of 1992, High Court Decisions.
54. [1980] Tanzania Law Reports 98 (HC).
55. (1971) High Court Decisions 88 at 90.
56. The letter is reproduced in [1980] Tanzania Law Reports 98 at 104 (HC).
57. Civil Appeal No. 49 of 1992, Tanzania Law Reports. at p. 10.
58. The legal basis of medical practice in Tanzania is the Medical Practitioners and Dentists Ordinance Cap. 409 enacted by the British administration in 1958, just prior to independence. This allows the profession a monopoly over the licensing of practitioners in Tanzania. It also establishes the Medical Council of Tanganyika which enforces professional discipline. To this extent the Tanzanian profession is closely modelled on that in the United Kingdom. Nursing and pharmacy are legally constituted as professions in a similar manner; see Nurses and Midwives Registration Ordinance Cap. 325 and the Pharmaceuticals and Poisons Act, 1978.
59. It is the practice of the Attorney General to settle cases which have a high probability of success. Thus liability was conceded in the matter of Ndatulu Samike v. HTZ longolo, Civil Case No. 33 of 1993. The plaintiff had suffered partial deafness as a result of the defendant pouring over-concentrated boric acid into his right ear. I am grateful to staff at the Attorney General's Office for providing me with a copy of the ex parte judgment of the District Court at Lindi, dated 10 November. 1994, ratifying the settlement.
60. Cassidy v. Ministry of Health [1951] 2 KB 343 (CA).
61. Bull v. Devon Area Health Authority [1993] 4 Med LR 117 (CA).
62. Davies, Med LR. at 63–64.
63. H. Teff, Reasonable Care, Oxford, 1994, 24.
64. See D. Serwadda et al, “HIVs and AIDS in East Africa,” in M. Essex et al (eds), AIDS in Africa, New York, 1994, 669–690.
65. Data obtained from G. M. Mahenge, “AIDS status and its epidemic impact in Tanzania,” in Report of the Third National Seminar on AIDS Research in Tanzania, 23–25 September, 1996, Mbcya, 31.
66. World Bank, Tanzania. AIDS Assessment and Planning Study, Washington D.C., 1992, xxi.
67. AIDS Assessment and Planning Study, at xxiv.
68. AIDS Assessment and Planning Study, at xxvii.
69. It has been stated in this connection that, “although the family has provided the care and coping structure, the provision of care has been almost wholly an undertaking of females”: J. C. Caldwell et al, “African families and AIDS: context, reactions, and potential interventions,” in C. Cabrera et al (eds.), AIDS and the Grassroots, Gaberone, Goteborg and Nairobi, 1996, 99–116.
70. A. Mapunda, “Employment law and HIV/AIDS at places of work in Tanzania,” paper presented to National Workshop on Ethics, Law and Human Rights and HIV/AIDS in Tanzania, Dar es Salaam, 13–15 January, 1997.
71. M. C. Mukoyogo, “HIV/AIDS as a human rights issue. What are the challenges?” at paper presented to National Workshop on Ethics, Law and Human Rights and HIV/AIDS in Tanzania.
72. Testimony of Joseph B. Katto at paper presented to National Workshop on Ethics, Law and Human Rights and HIV/AIDS in Tanzania.
73. G. Tibakweitira, “Sample cases on HIV/AIDS discrimination,” at paper presented to National Workshop on Ethics, Law and Human Rights and HIV/AIDS in Tanzania.
74. See Medical Association of Tanzania, Guiding Principles on Medical Ethics and Human Rights, Dar es Salaam, 1995.
75. With some minor exceptions, the code is the same as that promulgated by the Commonwealth Medical Association. The Ministry of Health has also issued guidelines on the testing, control and management of HIV/AIDS. Their effectiveness has been doubted however: see Mukoyogo, Guiding Principles on Medical Ethics and Human Rights.
76. Medical Association of Tanzania, Guiding Principles on Medical Ethics and Human Rights, principles 3 and 4 respectively.
77. See, for example, Y.J.S. Mashalla, “Medical ethics and human rights in HIV/AIDS,” paper presented to the National Workshop on Ethics, Law, Human Rights and HIV in Tanzania, Dar es Salaam, 13–15 January, 1997.
78. See P. J. Kabudi, “The judiciary and human rights in Tanzania: domestic application of international human rights norms” (1991) 24 Verfassung und Recht in Uebersee, 271–281.
79. The Declaration was drafted and endorsed by the participants at the Intercountry Consultation on Ethics, Law and HIV, held at Dakar, Senegal from 27 June 1 July, 1994, and organized by the United Nations Development Programme. The Declaration is reproduced in World Health Organization Global Programme on AIDS, World AIDS Day Newsletter, Geneva, 1994.
80. This view is most succincdy advanced in M. Brazier, “Patient autonomy and consent to treatment: the role of the law?” (1987) 7 Legal Studies 169 185.
81. This removes the requirement of proving causation which is a considerable obstacle in negligence cases, see Davies, Legal Studies, 148.
82. Earlier English case law to the effect that such “hostile intent” had to be made out, e.g. Wilson v. Pringle [1987] QB 237 (CA)
83. has been rejected bv the House of Lords: Re F (A Mental Patient: Sterilization) [1990] 2 AC 1 (HL).
84. See Tan Kang Feng, “Failure of medical advice: trespass or negligence?” (1987) 7 Legal Studies 149–168.
85. Chatterton v. Gerson [1981] 1 All ER 257 (QBD).
86. See A. Grubb and D. Pearl, Blood Testing, AIDS and DNA Profiling, Bristol, 1990
87. J. Keown, “The ashes of AIDS and the phoenix of informed consent” (1989) 52 Modern Law Review 790–800.
88. For a brief discussion, see Montgomery, Modern Law Review, 234–235.
89. The criminal law authorities on this point seem to indicate that where the plaintiff was deceived as to the nature and purpose of the touching, the defendant will be guilty of battery: R. v. Flattery (1877) 2 QBD 410 (victim lead to believe that sexual intercourse was in fact a medical procedure).
90. Where, by contrast, the deception is as to an aspect of the defendant's conduct or as to an attribute of the defendant themselves, there will be no liability in battery: Hegarty v. Shine (1878) 14 Cox CC 145 (victim not informed that her sexual partner was infected with venereal disease). It may be important, therefore, to categorize the conduct of an AIDS test as changing the “nature and purpose” of the procedure.
91. [1985] 1 All ER 643 (HL).
92. Gold v. Hanngey AHA [1987] 2 All ER 888 (CA)
93. Blyth v. Bloomsbury HA [1993] 4 Med LR 151 (CA).
94. For a critical review of the “patient autonomy” debate, see J. Harrington, “Privileging the medical norm: liberalism, self-determination and refusal of treatment” (1996) 16 Legal Studies 346–367.
95. The House of Lords' ruling in Sidaway was referred to by Katiti, J. at first instance in the case of Medical Officer in Charge of Nkinga Hospital v. Theodeolina Alpfiaxad, Civil Case No. 14 of 1991, decision dated 20 August, 1992 (HC at Tabora), discussed above. He held that the medical staff at the hospital had failed to comply with their obligation to obtain the informed consent of the patient (in this case the patient's father). It is respectfully submitted, however, that the issue here was not the consent of the patient as such, but the level of care, including adequate instructions, provided by the hospital. As such it went to the general duty to avoid malpractice.
96. Reibl v. Hughes Civil Case.
97. Rogers v. Whittaker [1992] 67 ALJR 47 (HC of Aus).
98. See D. Chalmers and R. Schwartz, “Rogers v. Whittaker and informed consent in Australia: a ‘fair dinkum’ duty of disclosure” (1993) 1 Medical Law Review 139–162.
99. For a discussion of the general duty to “follow up” treatment of the patient with after-care and adequate information, see Naylor v. Preston Area Health Authority [1985] 1 WLR 958 (CA).
100. See R. Wacks, “Breach of confidence and the protection of privacy” (1977) 127 New Law Journal 328–330.
101. Canadian courts, in particular, have been most ready to analyse the civil law obligations of doctors on this basis, see Mclnerney v. MacDonald [1992] 92 DLR 4th 449 (SCC)
102. Norberg v. Wynrib [1992] 93 DLR (4th) 415 (SCC).
103. Furniss v. Fitcheu [1958] NZLR 396 (HC).
104. As in the English case of X, v. Y. [1988] 2 All ER 649 (CA).
105. W.v. Egdell [1990] 1 All ER 835 (CA).
106. See Montgomery, All ER. at 260–261.
107. Tarasoff v. Regents of the University of California, 551 P2d 358 (Cal 1976).
108. See M. Jones, Medical Negligence, London, 1969, paras. 2.77–2.86.
109. This “paradox” of Western rights theory is discussed in W. de Craemer, “A cross-cultural perspective on personhood” (1983) 61 Millbank Memorial Fund Quarterly 19–34, 21.
110. Millbank Memorial Fund Quarterly. 22–23. It must be acknowledged that a rival school of ethical and political theory has emerged in the West, partly in response to the perceived deficiencies of the prevailing individualist bias noted
111. see, for example, M. Sandel, Liberalism and the Limits of Justice, Oxford, 1982. This alternative approach remains, however, a subordinate, revisionist one. Indeed it gains its force from its rejection of liberal orthodoxy.
112. For example, see J. A. M. Cobban, “African values in the human rights debate” (1987) 9 Human Rights Quarterly 309–331.
113. The importance to Western legal theory of “the primitive” as elaborated in colonial anthropology is discussed in P. Fitzpatrick, The Mythology of Modern Law, London and New York, 1992, 63–111.
114. Mamdani, The Mythology of Modern Law. at 37–61.
115. N. A. Christakis, “Ethics are local: engaging cross-cultural variation in the ethics of clinical research” (1992) 35 Social Science and Medicine 1079–1091, 1086.
116. Social Science and Medicine.
117. I. Shivji, The Concept of Human Rights in Africa, Dakar, 1989.
118. A similar approach to rights and social struggle in the European and North American context is described in A. Hunt, “The politics of law and justice,” in Explorations in Law and Society: Toward a Constitutive Theory of Law, New York and London, 1993, 90–116.
119. An example of the relevance of resource allocation to ethical questions is provided by the abandonment in 1987 of research into HIV prevalence in a coastal district of Tanzania. The (American) researchers were required by their institution to obtain informed consent to testing, but the Ministry of Health in Dar es Salaam prohibited this. There was no conflict over ethics, however. The Ministry simply feared that knowledge of HIV status would lead to increased demands upon local health care services which could not be satisfied; see M. Barry, “Ethical considerations of human investigation in developing countries: the AIDS dilemma” (1988) 319 New England Journal of Medicine, 1083–1085.