Because the practice of medicine is so intimately concerned with people’s bodies, personal vulnerabilities and wellbeing, it is subject to legal and ethical restrictions, all of which have evolved or been designed to protect patients’ interests. They constrain healthcare practitioners to behave competently and ethically, and to conduct themselves with probity.

Although in many respects intertwined, there are three distinct sources of legal and ethical principles that inform medical practice:

1. the Constitution, and all the statutes and regulations stemming from it that embody its principles
2. case law
3. the Health Professions Council of South Africa, which is mandated to set and maintain standards.

Patients’ constitutional rights

Under the Constitution, all citizens enjoy certain rights, and – as a doctor – you have a responsibility to ensure that those rights are respected; patients also have responsibilities, which are set out in the Patient’s Charter.

The Patient’s Charter is an explicit statement of the rights and responsibilities implied by the Constitution.

Patients’ rights include:

• a healthy and safe environment
• participation in decision-making
• access to health care services which include:
• receiving timely emergency care
• treatment and rehabilitation
• confidentiality and privacy
• informed consent
• refusal of treatment
• be referred for a second opinion
• continuity of care
• and the right to complain about health services.
  
  

Patients’ responsibilities include:

• taking care of their health
• ·not abusing the healthcare system
• providing healthcare providers “with the relevant and accurate information for diagnostic, treatment, rehabilitation or counselling purposes”
• telling their healthcare providers what their wishes are regarding their death
• complying with treatment
• taking care of health records in their possession.

Many of the principles and ideals expressed in the Constitution have been encoded in legislation, some of which has a direct bearing on the work and business of general practice. The Promotion of Access to Information Act of 2000, for example, gives everyone a right of access to their records (including health records) if they need them to exercise or protect their rights, even if the holder of the information is a private business.

Other statutes and regulations that may affect medical practice include the Children’s Act, which clarifies children’s rights and parental responsibilities; the Communicable Diseases Regulations, which set out medical practitioners’ responsibilities regarding notifiable diseases; and various regulations under the Health Professions Act governing the licensing of practices, among other things.

Case law

Case law – or common law – is the body of written opinions made by judges when they make their rulings. The case law with most relevance for medical practitioners is that derived from civil claims alleging medical negligence, and the most relevant of these are those that define or clarify a breach of duty of care or causation.

An allegation of negligence will only succeed if the plaintiff can satisfy the court, on a balance of probabilities, that all three of the following conditions apply:

1. the plaintiff was owed a duty of care by the defendant
2. the duty of care was breached
3. harm resulted from the breach (causation).

Assuming that the first criterion is established (which is usually the case), the plaintiff must then present convincing evidence that the healthcare professional concerned could reasonably have foreseen the consequences of his or her action and did not guard against such an eventuality; moreover, it must be demonstrated that the practitioner’s actions fell short of the standards the law considers reasonable.

It does not always follow that a breach of the duty of care results in harm to a patient. In fact, there are many instances in which the outcome would have been the same for the patient whether the breach of duty had occurred or not. The plaintiff’s case will only succeed if the judge finds that a breach of duty did result in harm to the patient.

In addition to facing a civil claim in negligence, doctors whose practice falls short of acceptable standards may face disciplinary action by the Health Professions Council.

The role and powers of the Council

The Health Professions Council of South Africa (the Council), is mandated, under the Health Professions Act 56 of 1974 to regulate registered healthcare practitioners. The Medical and Dental Board regulates medical and dental practitioners. It does this by:

• Setting and maintaining standards of training and practice for healthcare professionals, and disciplining those who fall short of those standards, if necessary.
• Setting and monitoring mandatory requirements for the continuing professional development of all registered practitioners and ensuring that training institutions adhere to the Council’s standards
• Setting professional and ethical standards and publishing guidelines for practitioners to follow.

The ethical rules cover almost every aspect of practice, from advertising and financial probity to patient confidentiality and relationships with professional colleagues.

A practitioner shall at all times:

a. act in the best interests of his or her patients;

b. respect patient confidentiality, privacy, choices and dignity;

c. maintain the highest standards of personal conduct and integrity;

d. provide adequate information about the patient’s diagnosis, treatment options and alternatives, costs associated with each such alternative and any other pertinent information to enable the patient to exercise a choice in terms of treatment and informed decision-making pertaining to his or her health and that of others;

e. keep his or her professional knowledge and skills up to date;

f. maintain proper and effective communication with his or her patients and other professionals;

g. except in an emergency, obtain informed consent from a patient or, in the event that the patient is unable to provide consent for treatment himself or herself, from his or her next of kin; and

h. keep accurate patient records.

(HPCSA, Ethical Rules of Conduct for Practitioners Registered under the Health Professions Act, 1974 (as amended by Government Notice No. R 68 of 2 February 2009, para. 27a.)

The Medical and Dental Board of the Council may discipline a doctor for infringing any of the ethical rules, and lists the following examples:

• Unauthorised advertising
• Overservicing of patients
• Criminal convictions
• Improper relationships with patients
• Improper conduct of practitioners
• Operational procedure without patient’s permission or consent
• Disclosure of information regarding patient without their permission
• Incompetence regarding treatment of patients
• Excessive fees charged/overcharging
• Insufficient care towards patients
• Racial discrimination
• Rude behaviour towards patients
• Prescriptions to already addicted patients
• Perverse incentives and kickbacks.

The Board has the power to impose a wide array of penalties on doctors whose professional conduct is found wanting. The most severe is to have the doctor’s name removed permanently from the register, but other sanctions range from an admonishment, to fines and occasionally suspension from practice.