The South African medical association (Sama) will engage the Minsters of Justice and Health.

SAMA position statement on criminal charges

The South African Medical Association (SAMA) cautions against the criminal charging of medical personnel. SAMA emphasises that doctors take a sacred oath to “first do no harm”, which guides the practice of medicine and our noble profession.
 
SAMA understands the pain of losing a loved one and we sympathize with any families who have had to endure this trauma. As doctors, we too are traumatized by the loss of a patient.
 
The recent event of criminal charges being laid against doctors Beale and Munshee, without due process being followed, is most unusual and, in our view, dangerous. Questions need to be answered regarding the manner in which the Criminal Procedures Act has been applied, and the reasons therefore. Furthermore, we must question why the usual process of a Health Professions Council of South Africa (HPCSA) hearing was not followed? Instead an “Ad hoc review” was constituted, AFTER the doctors in question had already been arrested! This precedent would allow the HPCSA to further ignore its responsibilities and simply suspend anyone against whom criminal charges have been laid. Further the precedent will be set that any adverse outcome to a patient, the worst being death, could lead to criminal charges being laid as the primary form of investigation in suspected malpractice.
 
SAMA is of the view that due process should have been followed, before reaching the decision to criminally charge the doctors. This would typically consist of a comprehensive peer review of the facts of the case. Ordinarily this would have been managed by the HPCSA. SAMA notes, with dismay, the gross dysfunctionality currently existing at the HPCSA. We also note that very few of the Ministerial Task Team’s recommendations have been implemented in the 4 years since Professor Mayosi’s HPCSA report was published.
 
This regretful precedent opens the door for doctors to be arrested and imprisoned following any adverse outcome or complication a patient might encounter. It violates every standard of reasonability. Complications and adverse outcomes, which are inherent in the practice of medicine, may now be charged as a crime on the part of the treating doctor. Worse is that this may now happen even before the professional regulatory body has concluded their investigation.
 
If doctors do not feel safe that adverse outcomes are unavoidable and part of medical practice and there is a significant risk of criminal charges being laid following accepted practice, the knock on effects are legion: It will affect the decision to enter or stay in the profession, it will make doctors risk averse and avoid intervention resulting in life-saving procedures being withheld, it will lead to excessive diagnostic intervention and increase the cost of healthcare. Conversely doctors will be at risk for not intervening. Healthcare will be paralysed.
 
The mandate of our profession is to intervene in the natural course of a disease or trauma for the best interest of our patients. Surgery is an extreme form of intervention, where the patient (or family or society) agrees that a surgeon will perform surgical injury to the body, with the aim of producing a cure. The potential risks are carefully weighed up against the benefits and found to be acceptable to the patient, guardian, and society at large. For this benefit to society, the State concedes to suspend the usual laws that criminalise one person inflicting physical injuring on another, on the basis of reasonable and good intent. This transaction of reasonability is what makes the practice of medicine possible. If this concession has now been rescinded, should doctors in South Africa not be demanding a protocol for practice from the Minister of Justice before we accept care of another patient?
 
To this end SAMA will engage both the Ministers of Justice and Health to develop a framework which can then be utilised in the future to protect doctors and their patients.

SAMA will continue to work towards uniting doctors for the health of the nation.

Dr Mark Human
Chairperson of HRLE