SAOA update: Criminalisation of doctors 2023
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Response from the NPA:
Advocate Rodney de Kock
Deputy National Director Of Public Prosecutions: National Prosecutions Service
Prosecution of Health Practitioners
The Deputy National Director of Public Prosecutions (DNDPP) of the National Prosecution Service (NPS) responded to a request for a meeting by the SAPPF. This pertained to the arrest and subsequent institution of criminal proceedings against Professor Beale and Dr Munshi. In their response the NPS states the following:
In 2020 there were meetings between the HPCSA, represented by the then president Dr TKS Letlape, and the National Prosecuting Authority (NPA), represented by the DNDPP, Adv RJ De Kock.
In October 2020 the DNDPP advised the HPCSA in writing that section 4 of the Inquests Act 58 of 1959 stipulates that the police service is mandated to investigate the circumstances of an unnatural death or alleged death of any person. The police must then submit a report thereon, together with all relevant statements, documents and information, to the public prosecutor. If a prosecutor is of the view that there is a criminal case to be made in respect of the death of a person, the prosecutor is entitled by law to immediately institute criminal proceedings against the suspect without having the matter referred for an inquest to be held. Only in circumstances where a prosecutor decides not to institute a criminal prosecution, the prosecutor will rather refer the matter to the Inquest Magistrate for an inquest to be held. The DNDPP emphasised that not all matters where a patient succumbs during or after a medical procedure are being prosecuted summarily. The majority of such matters are normally being referred for inquests to be held first. A detailed discussion of the merits of the criminal case was provided to the HPCSA in order to indicate the expert nature of the evidence relied upon to make the initial decision to prosecute. The DNDPP recommended that a working group or a task team will be appointed to represent the HPCSA, the NPA and the SAPS so that a common understanding or approach can be reached between the parties on future matters with a resultant Memorandum of Understanding (MOU).
Having received no response from the HPCSA in respect of their letters dated 27 October 2020 and 04 February 2021, a follow-up letter dated 27 August 2021 was sent to the HPCSA in order to try and elicit a response from them.
As of 25/02/2023 the NPS still had not received a formal response from the HPCSA in this regard. Furthermore the NPS held that a meeting with other stakeholders, such as the SAPPF would be futile without the involvement of the HPCSA and requested that engagements on engagements on these matters be facilitated through the HPCSA who are mandated by law to consult and liaise with relevant authorities on matters affecting the professional boards in general.
Note that the NPS also stated that “The decision to charge the accused persons in question is in lieu of the fact that every case docket received is individually assessed to establish whether there is a reasonable prospect of a successful prosecution in a specific matter. If it appears that a medical practitioner acted in such a manner, which resulted in the negligent death of a person, it is the duty of the NPA, as with any other possible criminal conduct, to investigate such actions with the aim of deciding whether to institute criminal proceedings against such person or not. The Rule of Law applies to every person, equally, within the borders of the Republic of South Africa, guided by our Constitution. Criminal prosecutions have been instituted against other medical practitioners in the past, some of whom have been convicted of Culpable Homicide for example.”
My personal interpretation of this is that we need to be cognisant of the fact that as clinicians we may be criminally prosecuted if we act negligently. And while the HPCSA was given ample opportunity to engage with the NPA on this matter, they failed to do so (for almost 3 years).
Prof Len Marais
SAOA President 2023/2024
Sunday Tribune
02/10/2022
Another South African Doctor accused of murder
Full Interview: Rinesh Chetty
-Dr Avidra Dayanand performed a surgical procedure on a patient at a private hospital in Richards Bay in 2019. An inquest inquiry was held which would have had the SAPS and NPA's involvement and found no wrongdoing on the part of Doctor. The HPCSA holding its own inquiry and not yet found that the Doctor in question was negligent. What is your organisation's view on the about-turn done by the NPA in preferring murder charges against the Dr?
A surgical procedural post operative complication and especially an alleged complication that resulted in a death of a patient, is a highly complex enquiry, it requires numerous reports, expert witnesses and input from all service providers that have had contact or influence on the case.
This includes the patient’s own pre and post-operative decisions, symptoms, compliance and complaints.
It is important to “review the timeline” in relation to all parties involved from the time of developing symptoms or complaints, to ascertain if there were delays in recognizing or treating the complications. Did the doctors act in a reasonable manner with the information and clinical picture that was facing them at that time?
The question above is as complex as investigating a pilot’s maneuvers that could have lead to a plane crash or an engineer implementing a building plan that could have caused a collapse of a structure.
Indeed, the pilot, engineer or surgeon was in charge, but was it solely their actions that caused the failure at that time? That forms the key to answer negligence and it takes time, competence and experts to ask the relevant questions and obtain the correct answers.
The premature criminalization of medicine is negatively effecting healthcare workers abilities to save lives and negating the trust in the law to protect the public.
We as South Africa’s professionals are not handling procedural medical law, patients rights and the delivery of medical service correctly.
The medical community is paralyzed and silenced by the haphazard legal protocols used to judge mistakes and negligence. Which has an immediate impact on patient’s care and healthcare worker’s ability to save lives.
The legal fraternity is trying to push a complex scientific medical case into the same box as if it’s clear cut criminal act that occurs daily or as everyone likes to call it “ROUTINELY” . Which has an immediate impact on patient’s care and the trust in the law’s ability to protect lives.
The loved ones, public, patients and South Africa are watching this, we are experiencing this negative culture and influence in the hospitals and in court rooms.
Why do you think there so much anger, hate and mistrust? The pandemic has catalyzed the hate and mistrust across the board.
We as professionals are sworn to protect, preserve and uphold our ethical and moral codes be it in the court room or hospital. We need to put away the ego’s, learn, educate each other , ask for help, communicate, work together and start doing this right for the sake of the public we serve.
-Dr D was arrested while at his hospital-based private practice in full view of everyone, just as the the arrests of Dr Munshhi and Prof Beale became very public, yet we notice when politicians and other high-profile figures become accused in criminal matters, they have the opportunity to hand themselves over to the SAPS. Does your organisation believe there should be more consistency in the way the SAPS handles arrests, regardless of a person's profession or social standing?
As medical professionals we need clear and standard protocols relating to medical negligence that is published and followed across the board in South Africa.
In medicine we follow a peer review process and strive to always use internationally published research that guides our treatments, the NPA needs to seriously consider doing the same. If there is a lack of capacity within their department, they need to remedy that through better funding and staffing at the hpcsa and communication within their government departments.
Their own legal colleagues and profession are calling for clear protocols and reasoning behind the Dr Munshi, Prof Beale and now Mr Dayanand’s charges.
As doctors we will take the NPA guidance and conform our treatments, decisions and procedure consents according to their guidelines, which is not clear at present.
Interestingly the media and public have now picked up on the lack of clarity from the legal community, which hopefully will add to the voice of reason from the medical community.
-We have been informed that the State pathologist examined the deceased for a PM and found nothing untoward and the deceased's family then engaged a private pathologist to perform a PM. At this stage it is not clear on exactly what the State is basing it's murder charge...do you think it is possible the State pathologist could have missed something very important, which has led to the NPA taking this latest stance?
Correct according to the statement received from dr Dayanand’s legal team. The doctor was not asked for additional information and the post mortem was completed by the state, two years ago. This is cause of great confusion and concern across the board.
-We have been given to believe that this is the first time a doctor is facing a murder charge over a medical negligence allegation, Dr Munshi and Prof Beale were charged with culpable homicide, is there any truth to this assertion?
Prof Beale’s charge was changed to first degree murder and moved to the high court, it has been set to heard January 2023, Dr Munshi’s charge of culpable homicide was dropped following his murder 1 year after the charge. Mr Dayanand’s arrest and charge will be the first time a doctor was directly charged for Murder in South African law following a patients death.
Doctors are not above the law there have been other successful criminal cases against doctors.
There are a few reported judgments in South African law dealing with the criminal liability of a doctor for culpable homicide. Those and others that are unreported (to the extent they are publicised in the media) make up a handful of cases. The judgment of S v Kramer and Another [1987] is a good example of the application of the test for medical negligence in criminal law.
Pre-2010, there have been culpable homicide prosecutions for the negligent over prescription of medicine, a blood transfusion performed on the wrong patient, an excessive amount of contrast medium administered to a baby, failure to insert an endotracheal tube correctly and to monitor the patient properly during anaesthesia, and the failure of a general practitioner to call in a specialist obstetrician when complications set in during delivery.
In 2011, the appeal court overturned the finding of the high court convicting an anaesthetist for culpable homicide finding that there was no negligence as alleged in responding to the patient’s condition nor that his conduct had caused the death of the patient.
The case of Dr Van der Walt case was to be the first judgment in South Africa where a sentence of imprisonment has been imposed, without the alternate option of a fine or suspension of the sentence. He was a gynaecology charged with culpable homicide as he apparently failed in his duties of care towards patient that passed away.
Van der Walt was released on parole but later had his conviction overturned by the Constitutional Court after it found the magistrate who convicted him had used personal medical research she had conducted to reach her verdict, instead of the evidence presented before the trial.
-First Dr Munshi and Prof Beale, now a murder charge against Dr Dayanand, and we also have Gynaes and Obstetricians constantly walking on eggshells . What will be the reverberations in the medical fraternity resulting from this. Will doctors now be gripped by fear and trepidation in doing routine medical duties, let alone more complex ones or do they believe that this is a passing phenomenon?
The implementation of “Defensive medicine” has been global healthcare phenomenon that has taken over our abilities and decision making for the past 20years. Defensive Medicine is the Bane to Healthcare. The so-called noble profession has lost its glory due to the intrusion of an evil namely ‘defensive medicine.’
Defensive medicine in simple words is departing from normal medical practice as a safeguard from litigation. It occurs when a medical practitioner performs treatment or procedure to avoid exposure to malpractice litigation rather than to benefit of the patient and efficiency of care.
Eg: According to standard published research, this patient does not need an expensive Mri scan but we rather do the test in case the patient might have something we might miss in the most rarest of chances…. They could sue, so let’s be very sure (at the expense of the patient and health service).
Defensive medicine is damaging for its potential to poses health risks to the patient. Furthermore, it increases the healthcare costs. Not the least, defensive medicine also paves way for degradation of physician and patient relationship.
Similarly, Medicine is not a perfect science and errors will be made. As much as a patient is human, a doctor can be fallible after all. All doctors should know that they are not at risk of frivolous arrest for mistakes of judgement.
If this safety net is not in place, medicine risks becoming ‘overtly defensive’, with more examinations requested and performed.
Medical costs will spiral.
Healthcare will be less affordable and accessible as healthcare workers leave the profession, due to the inherent premature criminal dangers now apparent if a mistake or error occurs.
Fewer doctors and surgeons will be willing to intervene or operate in high risk circumstances, a trend we are already finding with many gynecologists no longer willing perform deliveries of babies.
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