The practise of medicine in South Africa has entered into a dark realm of Criminalisation.
It appears to be “too late”. #defensivemedicine #OnThebackFoot #theDeathofMedicine
If any legally trained person or member of the public would want to ask for clarity on why the health profession is concerned about the use of the “criminal principle of dolus eventualis” in medical negligence or error, consider having this discussion with the next doctor you consult before you start telling them why you are seeking their medical assistance. Be it in an emergency situation, prior to an elective procedure, or as some people like to call it a “Routine” treatment/surgery.
The service of the medical profession can not recover from this as long as the NPA does not recognise that with any medical intervention by a doctor or surgeon even in the best of hands and with the most diligent of care, there will always be a risk: Any patient can complicate at any time. Not matter what they do. If a healthcare professional can foresee the risk of any intervention causing death, then we should not be intervening AT All? Should we be allowing nature to take it’s course? #dropitandwait #useYourLogic #SurelyNot
In essence based on the legal principle used below:
If a doctor can foresee their treatment can result in death and they continue with the treatment, they can be held accountable for Murder, if the patient passes away.
“Doctors who work inside the law have nothing to fear” – NPA 19 Sep 2020 (reference below)
Yes, if that doctor acted within the law and was reasonable then fair enough: the inquest, civil case and/or hpcsa hearing after much detailed investigation and complex review of the evidence and timeline will be able to “clear” the action, there would be no risk of criminal charges.
-Which is not the case with Dr Dayanand, Prof Beale or the late Dr Munshi, which forms a main pillar of the problems at hand for the medical profession. There is no formal discussion, communication or regulations advised by the NPA, it seems off the cuff and at their discretion, who gets charged and when they are charged. “They can do it, they allowed to do it.” Is the response.
The other pillar is worrying at many levels to ALL of South Arica: #defensiveMedicine #hhhbeforeabc #BeforeItIsTooLate
Which doctor in their right mind will take the risk of treating a patient knowing that if that patient complicates, under South African criminal law interpretation by the NPA, they can be arrested (at any time) and have to go through the public/social media frenzy, personal mental anguish and prolonged public confrontation of a criminal court room just to wait for judgment on whether their actions were reasonable or not?
Then what?
What about the patients loved ones answers?
What about the doctors future, their willingness to continue working or trusting patients?
You are killing the profession and interfering with doctors abilities to save lives.
How does the public, patients and profession trust the legal system that is meant to be fair and protect everyone? #scienceMustjudge1st
Doctors consent and inform patients prior to any treatment. It needs to be noted if that patient passes on, they are not there to verify their consent process, their loved ones are most often the primary channel that lays the complaint with the saps for whatever reason. Most often out of frustration at the time it takes to scientifically review the complexities of the case, the lack of apparent attention given to their questions and grief or be it to put pressure on the other medical enquiry processes, maybe. If so it is naive on their behalf. Criminalization of the matter with further delay and cloud the process, because by moving the case into the dark criminal realms of murder or homocide, it becomes a stand off for survival rather than a process that should allow the loved ones the ability to make informed decisions given all the answers they have received from the medical inquiry. #mediation #EffectiveDebriefing #communication #traumacounselling #ImprovePeerReviewfunding #ImproveAnsweringComplaintsAngerGrief
Healthcare workers are not bound to involve families with the consent process unless requested or allowed by the patient. There are even laws that can get healthcare workers arrested if they do divulge patients confidential information or personal information to third parties without their prior consent. Sometimes loved ones are not present or only start “worrying” about their loved ones when something goes wrong well after the consent process was completed with the patient. #damnedifyoudodamnedifyoudont
Patients and their families attend a doctor wanting help.
Death is a complication that can occur because the basic practise of medicine is defying Natures will.
The human body is as fallible as the human being tasked to treat it. It is not black and white, it is not as clear cut this was right and that was wrong. #LawisBlackandwhite
Other countries National prosecution agencies have learnt, educated and conformed their legal systems so that the practise of medicine and the treatment of patients is better protected and regulated to avoid exactly what is happening currently in South African criminal courts, why are we so behind. #theReserchIsthere #thereAreExperts #AskForhelp
Why are we so intent on weaponising the criminal charges against the essential practice of medicine? Who benefits?
The public, media, law society and medical profession should be asking this question?
Some already are!
Understand, recognise that this legal principle needs urgent reform… especially when relating it to the practise of medicine and the interpretation of medical errors resulting in death or as interpreted now as Murder.
Dayanand and is expected to be tried under the dolus eventualis principle or legal intention — the perpetrator objectively foreseeing the possibility of their act causing death — the same principle raised in the murder trials of musician Jub Jub and Paralympian Oscar Pistorius.
Dayanand, who is on R10,000 bail, appeared briefly in the Richards Bay magistrate’s court this week, where the case was adjourned to November 8 for representations to be made to the director of public prosecutions, Elaine Zungu, by his attorney, Yolanda Gielink.
Gielink said the state was pursing a charge of murder based on legal intention.
“I spoke to the state advocate and asked him how he is going on a murder charge and not culpable homicide and he said they’re going on dolus eventualis,” Gielink said.
References:
The dolus eventualis in a murder charge is that of dolus eventualis or legal intention. This is where an accused person can objectively foresee that his conduct is likely to cause the death of another, but proceeds to act regardless of the consequences of his conduct.- OSCAR PISTORIUS : DOLUS EVENTUALIS
Article by listed attorney: Fawzia Khan
It’s still not about dolus eventualis, but about intention to act unlawfully
By Nicholas Taitz
05 Nov 2015
Nicholas Taitz is a litigation attorney in Johannesburg, focussing on regulatory law. He is a director of the firm Knowles Husain Lindsay Inc, and holds the degrees of BA (Honours in Philosophy) LLB, all from Wits.
“In essence though, dolus eventualis is best understood in contrast to direct intention. Direct intention is where it is the aim and object of the person who is acting, to bring about the unlawful consequence that he or she brings about. This is their goal in their mind, and it is also their main goal in acting. In the case of murder, direct intention constitutes the subjective intention unlawfully to kill another person. Dolus eventualis, on the other hand, is a different type of intention which, also, will suffice for a conviction of murder, provided the other elements of the crime are proved. Dolus eventualis is where one foresees a risk of something happening, and flouts that risk, and it ends up happening.”
THE INTERPRETATION AND APPLICATION OF DOLUS EVENTUALIS IN SOUTH AFRICAN CRIMINAL LAW
by
LINUS TAMBU AWA
SUMMARY
An accused cannot be held criminally liable by a court until he is considered to be culpable, a process which entails establishing criminal capacity and intention (dolus) or negligence (culpa).
Determining a perpetrator’s necessary intent in the form of dolus eventualis has proved to be a predicament in South African jurisprudence. This type of intent occurs when a person does not aim to cause the unlawful act, however, he subjectively foresees the likelihood that in pursuing with his conduct, the unlawful result will possibly happen, and he reconciles himself to this possibility.
The problem with this form of intention, especially where the death of another is caused recklessly, is, amongst others, reservations as to whether the perpetrator’s foresight was of a real, reasonable or a remote possibility.
This research examines the imperatives and rationale for preceding and current interpretations and applications of dolus eventualis and associate concepts in South African as well as in selected foreign legal frameworks in order to provide a comprehensive perspective on the subject. In this regard, the study challenges conflicting judgments on the application of dolus eventualis in domestic courts, especially as regards homicide- and putative private defence cases, amongst others.
It is evidenced that in case law concerning dolus eventualis, legal rules were not properly articulated when determining this type of criminal intent. In this investigation, the legislative framework applicable to dolus eventualis under international law is also critically evaluated with the aim of facilitating the comprehension of this element in South African law.
As the concept of dolus eventualis is an indispensable concept in South African criminal law, recommendations are proposed on the application and interpretation of dolus eventualis suitable to the South African landscape, which includes possible law reform.
https://uir.unisa.ac.za/bitstream/handle/10500/26460/thesis_awa_lt.pdf?sequence=3&isAllowed=y
IS DOLUS EVENTUALIS A ‘WEAKER CURRENCY’ IN SENTENCING FOR MURDER?
Mr Reuben Govender
University of South Africa, College of Law
ABSTRACT
Culpability is an essential element for an accused to be held liable for a crime. The mental element or mens rea determines blameworthiness of an accused on a charge of killing a person.
The mens rea required for a conviction of murder is intent while culpable homicide requires negligence. Central to blameworthiness in mens rea is individual freedom and voluntariness. The test for intent is subjective and objective for negligence. Literature suggests that South African courts in the past have erred in the application of the test for intent in the form of dolus eventualis.
This paper reviews the concept of dolus eventualis, the test in judicial application, a review of decided South African cases on errors in application and finally, considerations for its correct application. Lastly, the „weight‟ of a dolus eventualis conviction in terms of sentencing will be reviewed to support the central question which is answered in the negative.
Coming into line with international practice on criminalisation of doctors
October 27, 2021
In South Africa, the clinician faces the possibility of culpable homicide charges and the possibility of a conviction.
While many may argue that this is appropriate, it is important to note that South African law is then out of step with the law in England and Wales, Scotland, New Zealand, Australia, Canada and many other countries. The degree of fault in most of these countries is gross negligence manslaughter, a far higher threshold than in South Africa. In Scotland, which shares the terminology of culpable homicide with South Africa, the threshold is even higher. There the threshold is recklessness. The threshold in Scotland for culpable homicide is not dissimilar to dolus eventualis in South African law, which in South Africa is used for murder charges.
So an inadvertent fault, under the wrong circumstances in the sense that a patient dies and the fault contributes significantly to the death, can mean a South African doctor could face a criminal charge, and subsequent conviction of culpable homicide far more easily than colleagues in England and Wales, Scotland, New Zealand, Australia, Canada or other countries. Likewise, a South African clinician may be more vulnerable to murder charges than colleagues in these countries.
Ideally South Africa would mimic Scottish law in restricting culpable homicide in clinical cases to where there was clear recklessness. Alternatively, the bar of criticisms from finding a doctor guilty if they did not do what the reasonable doctor would do under the circumstances, could be elevated. To criminalise an act, surely the bar should be raised such that conduct is not considered to be criminal unless the clinician does what no reasonable clinician would do under the circumstances?
This area requires serious consideration, including learning from other countries. This is without doubt a complicated area and it is important that there is a long-term solution for healthcare professionals and patients alike.
South African doctors call for law reform, fearing a harsh penalty if patients die
4 MAR 2022
BY: HENRY LERM AND ETHELWYNN STELLENBERG
https://m.bizcommunity.com/Article/196/330/225676.html
“Doctors who work inside the law have nothing to fear” – NPA 19 Sep 2020