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Call for SA Law Reform Commission review on criminal charges against doctors

The Medical Protection Society (MPS) has called on the government to protect patient safety by committing to a SA Law Reform Commission review on the threshold for criminal charges brought against doctors.

The call follows an escalating pattern of criminal charges being brought against doctors over medical negligence accusations, writes MedicalBrief. The gunning down last year of anaesthetist Dr Abdulhay Munshi, who was facing a charge of culpable homicide after a patient’s death, besides raising the spectre of vigilante justice, has caused major concern in the medical profession, with some doctors in fear of their lives for doing their job.

MPS said in a statement that the proposed review would be led by the South African Law Reform Commission and would focus on the threshold for criminal charges brought against doctors who are acting in good faith when delivering healthcare.

MPS – which supports over 30,000 healthcare professionals in South Africa – wrote to the Minister of Justice and Correctional Services, Ronald Lamola, arguing that the legal threshold for blameworthiness for the death of patients under medical care is low in South Africa law, and that this is impacting on patient safety.

In the letter, MPS said the low legal threshold meant that doctors – who are acting in good faith – are fearful of criminal charges, and fearful to admit and learn from mistakes as a result.

Dr Graham Howarth, Head of Medical Services – Africa at MPS, said: "As we have said many times, healthcare professionals should not be above the law. Healthcare professionals need to be held accountable. However, criminalising errors of judgement – particularly in a fast moving and potentially hazardous environment – is unreasonably severe and impacts adversely on patient safety.

"MPS recently called on the Government to pass urgent legislation to protect doctors from legal challenge relating to clinical resourcing decisions they may have to make during the COVID-19 crisis.

"While urgent legislation would address the particular problem facing doctors now, during the pandemic, a long-term solution is needed to address the wider problem of how criminal law is applied to healthcare professionals.

"This is why MPS is calling on the Government to initiate a comprehensive review, led by the South African Law Reform Commission, on the threshold for criminal charges against doctors.

"At MPS, we believe that a system which doesn't allow for openness and learning, but which is perceived to focus on blame, is one which ultimately compromises patient safety. Therefore, we are calling for a review of the law to ease the pressure on doctors making complex decisions to the best of their abilities, with good intentions and often in extreme circumstances.

"Healthcare professionals and patients alike want to ensure the highest level of safety for all patients in South Africa. This will however require replacing the current culture of blame and fear with one of learning. When healthcare professionals feel able and supported to apologise and learn from mistakes, this will help to reduce the number of errors and thus improve patient safety in the future.

"Clinicians are fearful of facing criminal charges merely for admitting a mistake, and for this to change there must be explicit support from leaders who are committed to the principles of open disclosure.

"Removing the barriers to open disclosure will not be straightforward and we do not underestimate the complexity of the issue. However, to ensure patient safety for generations to come, long-term reform that shifts healthcare from a culture of blame to a culture of learning is an absolute must, said Howarth."

 

 

See also MedicalBrief archives:;

[link url="https://www.medicalbrief.co.za/archives/strong-warning-from-sama-on-criminalisation-of-medical-decisions/"]Strong warning from SAMA on criminalisation of medical decisions[/link]

 

[link url="https://www.medicalbrief.co.za/archives/the-arrest-of-a-health-professional-how-it-happens-and-why-it-should-only-be-a-last-resort/"]The arrest of a health professional — how it happens and why it should only be a last resort[/link]

 

[link url="https://www.medicalbrief.co.za/archives/munshi-reflecting-on-a-tragedy/"]Munshi: Reflecting on a tragedy[/link]

 

[link url="https://www.medicalbrief.co.za/archives/concourt-ruling-conviction-overturned-but-what-now-for-the-profession/"]ConCourt ruling: Conviction overturned – but what now for the profession?[/link]

 

[link url="https://www.medicalbrief.co.za/archives/criminal-proceedings-over-negligence-will-have-dire-consequences/"]Criminal proceedings over negligence will have dire consequences[/link]

 

[link url="https://www.medicalbrief.co.za/archives/concourt-overturns-conviction-of-jailed-gynaecologist/#:~:text=Obstetrician%20and%20gynaecologist%20Dr%20Danie,Constitutional%20Court%20ruling%2C%20writes%20MedicalBrief."]ConCourt overturns conviction of jailed gynaecologist[/link]

 

[link url="https://www.medicalbrief.co.za/archives/being-a-doctor-is-a-mugs-game-in-sa/"]Being a doctor is a mug’s game in SA[/link]

 

[link url="https://www.medicalbrief.co.za/archives/gynaecologists-jail-sentence-negligence-worrying-precedent-sasog/"]Gynaecologist’s jail sentence for negligence a worrying precedent — SASOG[/link]

 

[link url="https://www.medicalbrief.co.za/archives/need-for-national-guidelines-over-criminal-charges/"]Need for national guidelines over criminal charges[/link]

 

[link url="https://www.medicalbrief.co.za/archives/prosecuting-healthcare-professionals-for-culpable-homicide-who-benefits/"]Prosecuting healthcare professionals for culpable homicide – who benefits?[/link]

 

[link url="https://www.medicalbrief.co.za/archives/witbank-gynaecologist-sentenced-5-years-jail-gross-neglect/"]Witbank gynae gets 5 years jail for gross neglect[/link]

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