Legislation: Don't make us criminals for judgment errors – doctors

Doctors are calling on government to review the culpable homicide law and its application in a healthcare setting. A TimesLIVE report says in a letter to Justice Minister Ronald Lamola, the coalition of nine healthcare bodies said there was ‘a very low threshold in SA law for blameworthiness when a patient dies while under medical care, which has resulted in errors of judgment in complex healthcare environments being criminalized and healthcare professionals being convicted regardless of their intent’. The letter was coordinated by the Medical Protection Society, which represents healthcare professionals, and signed by the Association of Surgeons of SA, Federation of SA Surgeons, Radiological Society, the SA Medical Association, SA Medico-Legal Association, SA Private Practitioners Forum, SA Society of Anesthesiologists and SA Society of Obstetricians and Gynaecologists.

It calls for the review to be carried out by the Law Reform Commission. ‘The system stands in the way of patients receiving an early apology and a full explanation of events, and thereby denies closure. A recent survey of more than 500 doctors conducted by the MPS showed that almost nine in 10 (88%) are concerned about facing an investigation following an adverse patient outcome during their career, and 90% think the prospect of facing criminal investigation or charges impacts on their mental health. The survey also revealed that the prospect of criminal investigation means nearly one in two doctors in SA have considered leaving the profession. The reality of healthcare provision is that complications occur despite best intentions and care. Concerningly, four in five doctors surveyed think the criminal justice system has an inadequate understanding of medical practice. Healthcare professionals need to be held accountable. However, criminalizing errors of judgment – particularly in this fast-moving and complex healthcare environment – seems unreasonably severe.’

SA Medical Association head of legal Dr William Oosthuizen said criminal investigations and charges are becoming more common. A Business Day report says in some other jurisdictions, an elevated threshold is required for conviction, such as gross negligence. However, in SA law, the ‘severity’ of the negligence is considered only when sentencing the doctor. In SA, you are convicted and found guilty if mere negligence is proven, but the sanction is adjusted according to the ‘degree’ of the negligence, Oosthuizen said. ‘The entire criminal process can almost feel like punishment itself for a doctor who was in almost all cases looking to do right by the patient.’ The Covid-19 pandemic means doctors work under increased pressure. CEO of the SA Society of Anesthesiologists Natalie Zimmelman, who signed the letter, said: ‘Covid-19, which has increased demands on doctors also led to the need to urgently address this issue.’ She said that while the letter was sent last week, the issue had been a concern to doctors ‘for over two years’.