Journal of African Law


Privatizing scarcity: civil liability and health care in Tanzania

John A. Harrington*

There has been no significant consideration of the civil liability of doctors under Tanzanian law, either in the decisions of the courts of that country or in legal scholarship. The most obvious explanation for this has been the infrequency with which issues of medical malpractice have been litigated. Society and politics in Tanzania have changed greatly over the past ten years, however, and there is some reason to expect that the volume of litigation will increase. This article sets out to explore the significance of such a “legalization” of therapeutic relationships for professionals, patients, the health care system as a whole and wider Tanzanian society. In order to establish the effects of growing legal intervention it is necessary to consider in some detail the applicable rules of liability. As awareness of the possibility of litigation grows, these rules will increasingly form part of the fabric of therapeutic relationships. The following discussion will, therefore, seek to identify these legal principles on the basis of reported Tanzanian cases and precedents from other common law jurisdictions. Three grounds of action will be considered in particular: medical negligence; failure to obtain the patient's consent to treatment; and disclosure of confidential information acquired by the doctor. The latter two types of action have come up for consideration in the context of discrimination against people infected with HIV. They will therefore be discussed here with reference to the special circumstances of the AIDS epidemic.


* School of Law, University of Warwick. Work on this article was made possible by a grant from the Research and Teaching Innovations Fund of Warwick University. Thanks are due to Ambreena Manji and Christian Mukoyogo for their support and advice, and to Gwakisa Mlawa for indispensable research assistance. An earlier version of this piece was presented to a seminar of the Institut fuer Afrikastudien, Universitaet Bayreuth. I wish to express my gratitude to all the participants for their helpful criticisms.