Criminalising medical practice won’t make healthcare safer

By Dr Brenda Kubheka

A Richards Bay surgeon recently appeared in court on a charge of murder relating to the death of a patient. https://www.facebook.com/groups/92643598408/permalink/10159356866558409/

Blame and arrest of medical professionals following adverse events, including death, undermine patient safety, which should be a societal value, writes Dr Brenda Kubheka.

The practice of medicine is inherently risky and, lately, can land the doctor up in jail. Previously, the risk to the professional ranged from reputational, medicolegal, and financial risks.

Doctors are held in high regard in society because of the considerable responsibility of saving lives and improving the quality of life of their patients. Be that said; they are human beings that are fallible hence the common saying, "the practice of medicine is a science practised by mortal and fallible humans, not superhumans".

The arrest of a KwaZulu-Natal surgeon following a patient's death has caused an outcry in the medical fraternity. The outcomes of clinical practice are the sum of the processes, resources, expertise, and patient factors too.

Some deaths are unavoidable

Medicine is a self-governing profession where peers assess cases against similar cases, practice standards and context-specific issues. The critical point is the differentiation between unavoidable and preventable deaths in healthcare. Some deaths are unavoidable because of the progression of a medical condition, unexpected

We are in a country where the Constitution protects the right to approach courts. At the same time, we need to appreciate the harm that may result from the criminalisation of medical practice. When things go wrong in medicine, we experience the "blame and claim" phenomenon while advocating for open disclosure to uphold the value of truthfulness and rebuild trust where it is threatened. We will not debate the various reasons why patients or family members approach courts following unexpected clinical outcomes.

A learning culture that acknowledges errors and investigates the root causes of adverse events is the foundation for building a safer health system.

Blame and arrest of professionals following adverse events, including death, undermine patient safety, which should be a societal value. Fear of arrest will further promote defensive medicine, which is inefficient, costly, and may even cause practitioners to avoid treating high-risk cases, called "cherry picking". The few who will remain to attend to such cases will face litigation and criminal proceedings. We know of obstetrics and gynaecologists who have stopped practising obstetrics because of fear of litigation and the exorbitant costs of malpractice insurance.

Criminalisation of medical practice will discourage open disclosure of errors and even near misses, which becomes a missed opportunity for learning and strengthening the system. The system should make it difficult to commit errors and have early warning signs to minimise or prevent harm.

In a book by Runciman, Merry and Walton (2016), titled Safety and Ethics in Healthcare: A guide to getting things right, they mention that "In healthcare, you may be exposed to risk by things going wrong when having appropriate investigations and care. Risk is influenced by exposure." Healthcare interventions come with corresponding benefits and risks. Schimmel, in 1964 stated, "Healthcare used to be safe and ineffective and now highly effective but potentially hazardous".

Medicine is a self-governing profession where concerns need to be investigated by peers before engaging the legal system. The self-blame, emotional burden, and depression, to name a few, are experienced by practitioners following these events.

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I believe practitioners leave home planning to save lives, and I expect that none of them leaves their homes and goes to work planning to harm a patient.

The clinicians blame themselves for failing their patients and the profession and doubting their competence. Practitioners must account for their recklessness and mechanisms to explore what constitutes expected complications and unexpected clinical outcomes due to patient, practitioner, and other relevant factors. Adverse events must first be subjected to professional adjudication to benefit the profession, the health system and society.

- Dr Brenda Kubheka, Founder and MD of Health IQ Consulting focusing on Clinical risk, healthcare ethics and research.