¹ Kiwara, A. D., “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.Google Scholar

² Turshen, M., The Political Ecology of Disease in Tanzania, New Brunswick, 1984, 55–100.Google Scholar

³ ibid., at 149–153.

⁴ For a history of colonial medicine in the region, cf. Beck, A., A History of the British Medical Administration of East Africa, 1900–1950, Cambridge, MA, 1970.Google Scholar

⁵ Ujamaa may be loosely described as “African socialism”: a programme of welfarist measures and nationalizations instituted by the TANU party and its leader, Dr Julius K. Nyerere, in the Arusha Declaration of 1967. A subsequent stage involved the replacement of existing settlements in the countryside with ujamaa villages in an effort to improve productivity and standards of living.

⁶ For a discussion of these proposals, see generally, Gish, O., Planning the Health Care Sector, London, 1974.Google Scholar

⁷ 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.

⁸ ibid..

⁹ Kiwara, op. cit. at 278.

¹⁰ Cf. United Republic of Tanzania, op. cit. at 20.

¹¹ Kiwara, op. cit. at 275.

¹² Private Hospitals (Regulation) Act, 1977, ss. 5 and 6.

¹³ Private Hospitals (Regulation) (Amendment ) Act, 1991, ss. 5 and 6.

¹⁴ United Republic of Tanzania, op. cit. at 33.

¹⁵ Interviews also confirmed this low level of litigation, albeit only anecdotally. Among the respondents in this regard were leaders of the Medical Association of Tanzania, staff at the Attorney General's chambers, the Secretary of the Tanganyika Law Society and civil servants at the Ministry of Health.

¹⁶ I was informed of difficulties encountered in this regard by the Medical Council of Tanganyika in the exercise of its disciplinary jurisdiction by the Registrar of the Council. It appears that, in one case, it has not yet been possible to proceed against a doctor who (unlawfully) carried out an abortion which led to the death of the patient. Not only have the patient's family been reluctant to facilitate the initiation of disciplinary proceedings, but the local police have also been unwilling to proceed with criminal prosecution against the doctor. It is the Registrar's opinion that the scarcity of medical practitioners in the particular area has been a significant factor in the reluctance to complain on all sides.

¹⁷ These statistics are reproduced in Twaib, F., The Legal Profession in Tanzania. The Law and Practice, Bayreuth, 1997, 110–113.Google Scholar

¹⁸ For this aspect of colonial medicine, see Vaughan, M., Curing Their Ills, London, 1991, 29–53;Google Scholar for the ujamaa period see Turshen, op. cit. at 193–209. The brutally coercive nature of public health campaigns in the colonies is recorded in relation to the sleeping sickness epidemic in the Belgian Congo in Lyons, M., The Colonial Disease. A Social History of Sleeping Sickness in Northern Zaire 1900–1940, Cambridge, 1992.CrossRefGoogle Scholar

¹⁹ Mamdani, M., Citizens and Subjects. Contemporary Africa and the Legacy of Late Colonialism, London, 1996, 124–128.Google Scholar

²⁰ Twaib, op. cit. at 94–97; for a discussion of the general “crisis of law” in the “developmental state”, see Ghai, Y., “The rule of law, legitimacy and governance” (1986) 14 International Journal of the Sociology of Law, 179–208, 194.Google Scholar

²¹ See Vaughan, op. cit. 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 Therkildsen, O. and Semboja, J., Service Provision Under Stress in East Africa, London, 1995, 179–191.Google Scholar

²³ I am grateful to Dr Rose Megiro of the Faculty of Law for providing me with information in this regard.

²⁴ 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; Judicature and Application of Laws Ordinance, 1964, s. 2(2); and 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.

²⁵ Lochgelly Iron Co. v. McMullan [1934] AC 1 (per Lord Wright at 25).

²⁶ Bourhill v. Young [1943] AC 92 (HL); Nova Mink v. Trans-Canada Airlines [1951] 2 DLR 241 (SCC).

²⁷ See Montgomery, J., Health Care Law, Oxford, 1997, 167–169.Google Scholar

²⁸ Weinrib, E. J., “The case for a duty to rescue,” (1980) 90 Yale LJ, 247–293.CrossRefGoogle Scholar

²⁹ Barnett v. Chelsea and Kensington Hospital Management Committee [1968] 1 All ER 683 (QBD).Google Scholar

³⁰ Cassidy v. Ministry of Health [1951] 2 KB 343 (KBD).Google Scholar

³¹ Wisher v. Essex AHA [1986] 3 All ER 801 (HL).Google Scholar

³² For a comprehensive discussion of these duties, in both common law and civil law systems, see Giesen, D., International Medical Malpractke Law, Tuebingen, Dordrecht, Boston, 1988, at paras. 109–126.Google Scholar

³³ R. v. Cambridge Health Authority, ex parte B [1995] 1 WLR 898Google Scholar (CA); R. v. Central Birmingham Health Authority, ex park Walker (1987) 3 BMLR 32 (CA).Google Scholar

³⁴ So named after the case in which it was first adumbrated: Bolam v. Fnern Hospital Management Committee [1957] 2 All ER 118 (MCNAIR, J.).Google Scholar

³⁵ Hunter v. Hanky [1955] SC 200; note that this Scottish authority has been accepted as representing the law in England on the point: see Davies, M., Textbook on Medical Law, London, 1996, 82–83.Google Scholar

³⁶ Maynar v. West Midlands Regional Health Authority [1984] 1 WLR 634 (HL).Google Scholar

³⁷ 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 i n the relevant profession or trade”: Rogers v. Whittaker [1992] 175 CLR 479 (HC of Aus at 487); sec also Reibl v. Hughes [1980] 114 DLR (3d) 1 (SCC).

³⁸ The difficulties of the plaintiff side in obtaining expert witnesses was attested to by several members of a “medico-legal” audience at a seminar hosted by the British Council in Dar es Salaam in April 1997, to which I presented some interim results of my research.

³⁹ This test is exemplified in “textbook manner” in the (medical negligence) case of Barnett v. Chelsea and Kensington Hospital Management Committee, op. cit.

⁴⁰ Wibher 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. Hotson v. East Berkshire AHA [1987] At: 750 (HL) no recovery where breach of duty only deprived patient of a 25% chance of recovery.Google Scholar

⁴¹ The test is that laid down in Overseas Tankship v. Morts Dock and Engineering Co (The Wagon Mound I) [1961] AC 388 (PC).

⁴² (1971) High Court Decisions 88.

⁴³ (1971) High Court Decisions 88 at 91.

⁴⁴ [1980] Tanzania Law Reports 98 (HC).

⁴⁵ [1980] Tanzania Law Reports 98 at 110 (HC).

⁴⁶ Civil Appeal No. 49 of 1992, decision dated 15 July 1994 (CA), unreported.

⁴⁷ P. 11 of transcript.

⁴⁸ P. 10 of transcript.

⁴⁹ Civil Case No. 14 of 1991, decision dated 20 August, 1992 (HC at Tabora), quoted at p. 19 of transcript of Court of Appeal decision.

⁵⁰ 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, op. cit. at 275.

⁵¹ (1971) High Court Decisions 88.

⁵² Civil Appeal No. 49 of 1992, op. cit.

⁵³ [1980] Tanzania Law Reports 98 (HC).

⁵⁴ (1971) High Court Decisions 88 at 90.

⁵⁵ The letter is reproduced in [1980] Tanzania Law Reports 98 at 104 (HC).

⁵⁶ Civil Appeal No. 49 of 1992, op. cit. at p. 10.

⁵⁷ 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.

⁵⁸ 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 Yougolo, 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.

⁵⁹ Cassidy v. Ministry of Health [1951] 2 KB 343 (CA).Google Scholar

⁶⁰ Bull v. Devon Area Health Authority [1993] 4 Med LR 117 (CA).Google Scholar

⁶¹ Davies, op. cit. at 63–64.

⁶² Teff, H.; Reasonable Care, Oxford, 1994, 24.Google Scholar

⁶³ The National Insurance Corporation of Tanzania offers liability insurance specific to medical malpractice. However, vicarious liability is excluded from coverage.

⁶⁴ See Serwadda, D.et al, “HIVs and AIDS in East Africa,” in Essex, M. et al. (eds), AIDS in Africa, New York, 1994, 669–690.Google Scholar

⁶³ Data obtained from Mahenge, G. M., “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.Google Scholar

⁶⁶ World Bank, Tanzania. AIDS Assessment and Planning Study, Washington D.C., 1992, xxi.Google Scholar

⁶¹ ibid., at xxiv.

⁶⁸ ibid., 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”: Caldwell, J. C.et al, “African families and AIDS: context, reactions, and potential interventions,” in Cabrera, C.et al (eds.), AIDS and the Grassroots, Gaberone, Goteborg and Nairobi, 1996, 99–116.Google Scholar

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 ibid..

⁷² Testimony ofJoseph B. Katto at ibid..

⁷³ G. Tibakweitira, “Sample cases on HIV/AIDS discrimination,” at ibid..

⁷⁴ Sec Medical Associatio n of Tanzania, Guiding Principles on Medical Ethics and Human Rights, Dar es Salaam, 1995. 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, op. cit.

⁷⁵ Medical Association of Tanzania, op. cit., principles 3 and 4 respectively.

⁷⁶ 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.

⁷⁷ See Kabudi, P. J., “The judiciary and human rights in Tanzania: domestic application of international human rights norms” (1991) 24 Verfassung und Recht in Uebersee, 271–281.CrossRefGoogle Scholar

⁷⁸ Civil Appeal No. 89 of 1988, decision dated 2 February, 1990 (HC at Mwanza), unreported.

⁷⁹ The case itself concerned a rule of Haya customary law preventing women from selling clan land which they have inherited: Rules of Inheritance GN No. 436 of 1963, s. 20. This was found to be inconsistent with the constitutional guarantee of equality; it was therefore modified so as to provide that women and men now have equal rights in this regard.

⁸⁰ 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.Google Scholar

⁸¹ This view is most succincdy advanced in Brazier, M., “Patient autonomy and consent to treatment: the role of the law?” (1987) 7 Legal Studies 169 185.CrossRefGoogle ScholarPubMed

⁸² This removes the requirement of proving causation which is a considerable obstacle in negligence cases, see Davies, op. cit., 148.

⁸³ 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), has been rejected by the House of Lords: Ref (A Mental Patient: Sterilization) [1990] 2 AC 1 (HL).Google Scholar

⁸⁴ See Feng, Tan Kang, “Failure of medical advice: trespass or negligence?” (1987) 7 Legal Studies 149–168.CrossRefGoogle Scholar

⁸⁵ Challerton v. Gerson [1981] 1 All ER 257 (QBD).Google Scholar

⁸⁶ See Grubb, A. and Pearl, D., Blood Testing, AIDS and DM Profiling, Bristol, 1990;Google ScholarKeown, J., “The ashes of AIDS and the phoenix of informed consent” (1989) 52 Modern Law Review 790–800.CrossRefGoogle Scholar

⁸⁷ For a brief discussion, see Montgomery, op. cit., 234—235.

⁸⁸ 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 410Google Scholar (victim lead to believe that sexual intercourse was in fact a medical procedure). 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.Google Scholar

⁸⁹ Note also that, in the case of a rural hospital, the knowledge that a blood dono r is HIV-positive is likely to spread rapidly, causing great harm to that person. Liability in battery would lead to compensation of the plaintiff for most of this harm, especially since forcseeability of the harm occurring on the part of the defendant does not have to be proven.

⁹⁰ [1985] 1 All ER 643 (HL).Google Scholar

⁹¹ Gold v. Hanngey AHA [1987] 2 All ER 888 (CA);Google ScholarBlyth v. Bloomsbury HA [1993] 4 Med LR 151 (CA).Google Scholar

⁹² For a critical review of the “patient autonomy” debate, see Harrington, J., “Privileging the medical norm: liberalism, self-determination and refusal of treatment” (1996) 16 Legal Studies 346–367.CrossRefGoogle Scholar

⁹³ The House of Lords' ruling in Sidaway was referred to by Katiti, J. at first instance in the case of Medical Officer in Charge ofManga Hospital v. Theodeolina Alphaxad, Civil Case No. 14 of 1991, decision dated 20 August, 1992 (H C at Tabora), discussed above. H e held tha t the medical staff at the hospital had failed to comply with thei r obligation to obtain the informed consent of the patient (in this case the patient's father). It is respectfully submitted, however, that the issue her e was no t the consent of the patient as such, but the level of care, including adequat e instructions, provide d by the hospital. As such it went to the general duty to avoid malpractice.Google Scholar

⁹⁴ Reibl v. Hughes op. cit.; and Rogers v. Whittaker [1992] 67 ALJR 47 (HC of Aus).Google Scholar

⁹⁵ See Chalmers, D. and Schwartz, R., “Rogers v. Whittaker and informed consent in Australia: a ‘fair dinkum’ duty of disclosure” (1993) 1 Medical Law Review 139–162.CrossRefGoogle Scholar

⁹⁶ 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).Google Scholar

⁹⁷ See Wacks, R., “Breach of confidence and the protection of privacy” (1977) 127 New Law Journal 328–330.Google Scholar

⁹⁸ Canadian courts, in particular, have been most ready to analyse the civil law obligations of doctors on this basis, see Mdmrney v. MacDonald [1992] 92 DLR 4th 449Google Scholar (SCC); Xorbetg v. Wynrib [1992] 93 DLR (4th) 415 (SCC).”Google Scholar

⁹⁹ Furniss v. Fitchell [1958] NZL R 396 (HC).

¹⁰⁰ As in the English case of X, v. Y. [1988] 2 All ER 649 (CA).Google Scholar

¹⁰¹ Note, however, that it remains open to the patient to complain that they did not consent to the testing, as opposed to the disclosure. Such a case would be considered on the basis of the principles of battery and negligence just discussed. Where ther e was only anonymous reporting it would probably be found that the plaintiff had not suffered harm and, therefore, that they could not sue in negligence.

¹⁰² Egdell, W. v. [1990] 1 All ER 835 (CA).Google Scholar

¹⁰³ See Montgomery, op. cit. at 260–261.

¹⁰⁴ Tarasoff v. “Regents of the University of California, 551 P2d 358 (Cal 1976).

¹⁰⁵ See Jones, M., Medical Negligence, London, 1969, paras. 2.77–2.86.Google Scholar

¹⁰⁶ For example, the National Workshop on Ethics, Law, Human Rights and HIV in Tanzania, 14January, 1997, held in Dar es Salaam, which was initiated by the UNDP and focused on the presentation of a report by a foreign legal consultant on these issues.

¹⁰⁷ Of course the African Charter is an exception to this. Nonetheless the bulk of its provisions reflect the contents of earlier United Nations codes of rights.

¹⁰⁸ This “paradox” of Western rights theory is discussed in de Cracmer, W., “A cross-cultural perspective on personhood” (1983) 61 Millbank Memorial Fund Quarterly 19–34, 21.CrossRefGoogle Scholar

¹⁰⁹ ibid.. 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; see, for example, Sandel, M., 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.Google Scholar

¹¹⁰ For example, see Cobban, J. A. M., “African values in the human rights debate” (1987) 9 Human Rights Quarterly 309–331.CrossRefGoogle Scholar

¹¹¹ The importance to Western legal theory of “the primitive” as elaborated in colonial anthropology is discussed in Fitzpatrick, P., The Mythology oj Modem Law, London and New York, 1992, 63–111.Google Scholar

¹¹² Mamdani, op. cit. at 37–61.

¹¹³ Christakis, N. A., “Ethics are local: engaging cross-cultural variation in the ethics of clinical research” (1992) 35 Social Science and Medicine 1079–1091, 1086.CrossRefGoogle ScholarPubMed

¹¹⁴ ibid..

¹¹⁵ Shivji, I., The Concept of Human Rights in Africa, Dakar, 1989.Google Scholar

¹¹⁶ A similar approach to rights and social struggle in the European and North American context is described in Hunt, A., “The politics of law and justice,” in Explorations in Law and Society: Toward Constitutive Theory of Law, New York and London, 1993, 90–116.Google Scholar

¹¹⁷ 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 Barry, M., “Ethical considerations of human investigation in developing countries: the AIDS dilemma” (1988) 319 New England Journal of Medicine, 1083–1085.CrossRefGoogle ScholarPubMed