Abstract:
The advancement of medicine around the world is happening at a rapid speed. There is not a day that one does not hear about a disease being cured or a wonder-drug being developed. Medicine has always been a field that treated a sick patient to bring that person back to “normal” function, which could be said to be the state he or she was in before acquiring the disease in question. However, due to scientific breakthroughs humanity is in a position that historically it has never been before. A place where a person can increase their mental and physical performance using pharmaceuticals to a level where genetics and upbringing alone would not have allowed.
Pharmaceuticals have been created which can do for the brain what has been done for the body. These drugs provide an avenue in which a person’s cognitive functions can be increased beyond what was otherwise possible. The ethical and legal dilemmas posed by prescribing or allowing people to use nootropics is hotly debated. Greely, a leading figure in the bioethical debate, in connection with nootropics, has stated that the ethical concerns comprise three main aspects: safety, fairness and coercion., It is clear that these three aspects cover a wide ambit. The arguments for and against nootropics will not merely be rehashed but rather placed into the South African context to ascertain how best to provide for the ethical concerns relevant to South Africa. The ethics of nootropic use will be examined through the lens of the Beuchamp Childress model which determines ethical problems using the principles of autonomy, justice, beneficence and non-maleficence.
The aim and contribution of this thesis will be to build a legal framework for the use of nootropics in South Africa, to create this one must ascertain what the current legal position is. Law is built from precedent in context of case law and legislation. The current law will be examined to see what can be used, what may need to be discarded and what would need to be added. A layered approach is used to determine what the legal position in South Africa currently is. A layered approach looks at the constitution and proceeds to legislation, case law, and legal articles and books. A major aspect around the use of nootropics will be informed consent and how it relates to the use of nootropics especially with regards to adolescents i.e. under 18 years of age. This thesis follows an MPhil in Medical Law and Ethics which outlined the doctrine of informed consent in South Africa and thus allows for the application of this doctrine to a pressing issue in South African society.
