SA doctors protest at low bar for criminal charges

It is too easy to charge medical practitioners with culpable homicide if a patient dies, say doctors in nine professional organisations, which have written a letter to justice minister Ronald Lamola asking for a review of the law.

The letter is signed by the biggest state and private doctors’ societies and is being driven by the Medical Protection Society (MPS), a not-for-profit provider of legal advice and financial indemnity against medical complaints. Its head of medical services Africa, Dr Graham Howarth, said there is an increasing tendency to charge doctors with criminal sanction if a patient dies, and concerns among doctors in SA about the practice have been growing.

In a media statement, MPS said: “Healthcare professionals need to be held accountable. However, criminalising errors of judgment particularly in this fast-moving and complex healthcare environment seems unreasonably severe.”

Charges may be laid even if death is a likely outcome in a high-risk patient or compli

cations could not have been avoided, making doctors less likely to do high-risk lifesaving operations.

Howarth said it is easier to charge a doctor with culpable homicide in SA than it is in England, Canada, Scotland, Wales, Australia and New Zealand.

Negligence does not require intent to harm the patient or recklessness, but is described as a fault or error that a reasonable person would have foreseen and not made.

The letter reads: “We currently have a very low threshold in SA law for blameworthiness when a patient dies while under medical care.”

It calls for the review to be carried out by the SA Law Reform Commission.

In Scotland, charges against a doctor require recklessness and intent to harm a patient.

SA Medical Association head of legal Dr William Oosthuizen said “criminal investigations and charges following on the death of a patient are becoming more common”. In some other jurisdictions, an elevated threshold is required for conviction, such as gross negligence. However, in SA law, the “severity” of the negligence is considered only when sentencing the doctor. In SA, you are convicted and found guilty if mere negligence is proven, but the sanction is adjusted according to the “degree” of the negligence, Oosthuizen said.

“The entire criminal process can almost feel like punishment itself for a doctor who was in almost all cases looking to do right by the patient.”

MPS conducted a recent survey on the issue and concluded four out of five SA doctors fear criminal sanction if something goes wrong.

The Covid-19 pandemic means doctors work under increased pressure. CEO of the SA Society of Anaesthesiologists Natalie Zimmelman, who signed the letter, said: “Covid-19, which has increased demands on doctors also led to the need to urgently address this issue.”

She said that while the letter was sent last week, the issue had been a concern to doctors “for over two years”.

In 2016, Witbank obstetrician Danie van der Walt was sentenced to five years in jail after being found guilty of culpable homicide, as he was not present when his patient, who later died, gave birth. He was released after his conviction was overturned by the Constitutional Court on a technicality.

Prof Peter Beale faces murder charges after a child died in a routine operation for acid reflux. The child’s father is the COO of tobacco firm Carnilinx, Mohammadh Sayed. Abdulhay Mushi, the anaesthetist who assisted Beale, was shot and murdered in Johannesburg. No arrests have been made.

Howarth said a case of culpable homicide against another doctor is expected to be heard in the high court in Johannesburg early next year.