Another South African surgeon arrested on a murder charge: Implications for healthcare delivery
The medical community was once again shocked to learn of a further arrest and brief period of incarceration of a surgeon on a charge of murder on 26 August 2022 following a post- operative death in 2019 in Richard’s Bay, KZN. If this action signals the intention of the Department of Public Prosecutions to pursue medical professionals for serious complications as criminal acts, it is of considerable concern. This poses a direct threat to the sustainability of the human resources that provide healthcare to the nation.
In 2020 SAPPF, SAMA, SASA and FoSAS (The Federation of South African Surgical Societies) approached the Minister of Justice and the National Director of Public Prosecutions calling for a review of culpable homicide law as it applies in the healthcare setting and a review of the arrest of a paediatric surgeon and anaesthesiologist in the same year.
The response received from the National Director of Public Prosecutions insisted that the actions followed by the authorities were absolutely in line with South African criminal law.
In South African law, there is a very low threshold for blameworthiness when a patient dies while under medical care, and this has resulted in errors of judgement in complex healthcare environments being criminalised. Healthcare professionals have been convicted regardless of their intent. Culpable homicide is classified as negligence on the part of an individual healthcare professional which results in the unlawful killing of a human being.
South African law does not recognise degrees of negligence. A conviction for murder requires intent as well. Errors of judgement, in potentially hazardous healthcare environments, are at risk of being criminalised with the risk of healthcare workers losing their career and liberty.
Concerns about the risk of criminal prosecution are undoubtedly contributing to emigration, influencing the choice of career of young healthcare professionals, and resulting in early retirement among senior doctors. #beforeitistoolate
The chief concerns are the institution of criminal proceedings against healthcare professionals before any findings have been determined in terms of the Inquest Act and the processes of the Health Professions Council of South Africa (HPCSA); and the issue of warrants of arrest for medical professionals where a simple summons would suffice.
The recent case highlights both concerns. An inquest may subsequently lead to criminal proceedings, but the initial arrest of a doctor necessarily terminates the inquest process.
The Medical Protection Society has previously called for a long-term solution in terms of the wider problem of how criminal law is applied to healthcare practice. #dropitandwait
This needs to involve the South African Law Reform Commission with a review of the threshold for criminal charges brought against doctors acting in good faith when delivering healthcare.
The Ministers of Justice and Health need to jointly lead this process and we would welcome the opportunity to engage with both at this time.
Leaders of the medical community must once again approach the Government authorities, insisting on a response and agreeing a long-term solution. In the short term we have called for the recent charges to be withdrawn to allow the inquest and HPCSA investigations to continue. -SAPPF
https://docs.mymembership.co.za/docmanager/1e9aea2c-b58d-4aed-b5a2-96187d705aee/00159184.pdf