I think we need to differentiate being accused of medical malpractice in criminal court and being held responsible or found guilty at the end of the day. And you will see that there are very few cases where a doctor is found guilty.
“So, in my opinion, the law as it stands does not require any intervention.”
Khan pointed out that if a doctor made a mistake, that did not automatically mean he was negligent.
The error must be one that a reasonable doctor in that particular doctor’s position would not have made.
Only if the standard falls short of the reasonable expert in that position will the conduct be criminalized, and that must be proven beyond a reasonable doubt in a criminal court.
“So it’s a higher standard than that used in civil court,” Khan said.
“In a civil court, if there is an action for medical negligence, it only has to be proven on a balance of probabilities. Whereas if a doctor is accused of wrongful death, for example, the negligence standard must be proven beyond a reasonable limit. doubt in a criminal court.”
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But Dhai is critical of the status quo.
He argued that the law, as it stood and as applied, could hinder patient safety and the achievement of a culture of safety (where systems thinking, rather than individual blame, is applied to learn from incidents to create better systems and provide safer care). .
“The criminal justice system often ignores systemic factors to focus on the individual who was holding the scalpel when the incident occurred,” Dhai said.
“The environment of fear and the threat of litigation and criminal proceedings can also discourage doctors from practicing in high-risk specialties or from operating on complex and difficult cases, thus preventing access to much-needed care,” he added.
Khan acknowledged that the argument of criminalizing medical errors encouraged defensive medicine, but “on the other hand,” he said, “the counterargument is that if we criminalize this, it sets the standard and would require doctors to act more prudently when performing these operations.” “.
Gross negligence
SAMA’s position is that the threshold for criminal prosecution should be raised from negligence to gross negligence and recklessness.
As Larisse Prinsen, a law professor at the University of the Free State, pointed out in an article published in The Conversation, gross negligence was the norm in countries such as New Zealand, Australia and England.
SAMA said investigators and the National Prosecuting Authority (ANP) should be specially trained to fully appreciate the complexities involved in medical errors and adverse events.
The NPA is responsible for criminal prosecutions in South Africa.
In addition to raising the threshold for prosecution from negligence to gross negligence or recklessness, Dhai argued there was much more to do.
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This includes better enforcement of the law, including better complaints management, alternative dispute resolution and support for affected patients and healthcare professionals.
Changes to relevant laws may be on the way.
The South African Law Reform Commission (SALRC) told Spotlight that it “received a request from a coalition of various healthcare bodies asking for the SALRC to conduct an inquiry to review the law of culpable homicide and its application in a healthcare environment.”
According to SALRC, the application was approved by the Minister of Justice and Correctional Services on June 27, 2023 and the investigation was ongoing as “Project 152 Criminal liability of healthcare professionals”.
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Although much of SAMA’s current attention is focused on the criminalization of medical errors, South Africa also faces a much broader challenge of medico-legal claims against provincial health departments.
The majority of these claims are for alleged medical negligence related to birth-related complications, particularly cerebral palsy.
Although the amounts paid are a small fraction of total claims, they amount to hundreds of millions a year and place a serious burden on provincial health budgets.
A bill aimed at addressing state responsibility in such cases was introduced in the last Parliament, but has not been passed.
The SALRC has also been looking at the issue of medico-legal claims for several years and published a discussion paper on the topic in November 2021, although more than two years later, its final report on the matter has yet to be published.
What about the HPCSA?
The Health Professions Council of South Africa (HPCSA) regulates health professions in the country. It involves, among other things, managing the licensing of doctors.
As Dr Yash Naidoo of the Medical Protection Society explains in an article, less serious complaints lodged with the HPCSA are handled through a mediation process.
If the complaints are more serious or if mediation fails, a formal complaints process is initiated. In some cases, this may turn into a formal professional conduct investigation.
“When a matter moves to a formal investigation, that is when the costs (money and time) begin to increase,” Naidoo wrote.
“Think of the investigation as if it were a typical court case on television. The plaintiff is represented by the HPCSA pro forma plaintiff, and the professional is the defendant, who may have his or her own legal representation.
“Each party may call witnesses and the investigation itself may last a day or more, depending on the number of witnesses and the complexity of the matter.”
As Naidoo said, sanctions could range from a reprimand or reprimand to high fines or removal from registration (which equates to the person no longer being able to work as a healthcare professional).
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Speaking to Spotlight, HPCSA acting head of corporate affairs division Priscilla Sekhonyana said HPCSA had a dedicated line for lodging complaints and investigative authorities and committees for adjudication of matters.
“The HPCSA has expert committees to decide matters and all rules of natural justice, including fairness, are observed.”
He added that he had engaged with various parties on criminalizing medical errors.
The HPCSA respects the country’s laws, Sekhonyana said, but also noted that practitioners were beginning to be discouraged from participating in what could be perceived as risky procedures.
“The HPCSA has engaged with the National Prosecuting Authority on the matter and unfortunately the situation remains the same.
“However, if there are activities aimed at legal reform, the HPCSA will participate in that process and make its views known at that time,” he added.
Spotlight made several attempts to obtain comment from the national Department of Health on the criminalization of medical errors.
The department had not provided a response at the time of publication.
*This article was published by Spotlight – public interest health journalism. Subscribe to the Spotlight newsletter.
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