Risk of criminal charges follows us around like a heavy shadow: doctors

Criminalising errors in judgment by doctors in fast-moving and potentially hazardous environments is severe and impacts on patient safety.

That’s the word from the Medical Protection Society (MPS), which supports more than 30,000 health-care professionals in SA.

The body this week called on government to initiate a comprehensive review, led by the South African Law Reform Commission, on the threshold for criminal charges against doctors.

It has written to justice minister Ronald Lamola, arguing that the legal threshold “for blameworthiness for the death of patients under medical care is low in South African law, and that this is impacting on patient safety”.

In the letter, the MPS said the low legal threshold meant doctors, acting in good faith, are fearful of criminal charges and afraid to admit and learn from mistakes as a result.

We believe a system which doesn’t allow for openness and learning, but which is perceived to focus on blame, is one which ultimately compromises patient safety.

—  Dr Graham Howarth Medical Protection Society

The MPS’s Dr Graham Howarth, said: “As we have said many times, healthcare professionals should not be above the law.

“Healthcare professionals need to be held accountable. However, criminalising errors of judgement, particularly in a fast moving and potentially hazardous environment, is unreasonably severe and impacts adversely on patient safety.

“MPS recently called on the government to pass urgent legislation to protect doctors from legal challenges relating to clinical resourcing decisions they may have to make during the Covid-19 crisis.”

Howarth said while urgent legislation will address the problem facing doctors now, during the pandemic, “a long-term solution is needed to address the wider problem of how criminal law is applied to healthcare professionals.

“We believe a system which doesn’t allow for openness and learning, but which is perceived to focus on blame, is one which ultimately compromises patient safety. Therefore, we are calling for a review of the law to ease the pressure on doctors making complex decisions to the best of their abilities, with good intentions and often in extreme circumstances.

“Health-care professionals and patients alike want to ensure the highest level of safety for all patients in South Africa. This will, however, require replacing the current culture of blame and fear with one of learning.

“When healthcare professionals feel able and supported to apologise and learn from mistakes, this will help to reduce the number of errors and thus improve patient safety in the future.”

Howarth said they did not underestimate the complexity of the issue.

Surgeon Rinesh Chetty, founder of Facebook movement SA Doctors United, said the risk of legal backlash working with Covid-19 cases “is a catch-22 situation”.

“You are faced with the dilemma of treating patients without the proper quality personal protective equipment (PPE), putting yourself and those around you at risk versus choosing not to provide a service to a seriously ill patient who requires emergency medical care. Where do you draw the line?

“It goes against everything we stand for, but the risk of criminal charges is now a genuine concern that is following us around like a heavy shadow.”

Chetty said the public needed to understand that medicine “is not an exact science”.

“There is no such word as ‘routine’, especially when discussing surgery.

“Any procedure, whether termed major or minor, can encounter complications from almost anything relating to the patient, surgery or doctor. This is why patients, parents or family always sign detailed consent and indemnity forms prior to any surgery.

“Complications can and will occur, especially the longer you operate and if you operate in complex cases that no other surgeon has the experience to perform. No matter how ‘good’ a surgeon or doctor is, the human body is human after all. The risks of being human will always be a risk,” said Chetty.