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Understanding your legal and professional responsibilities

Because the practice of medicine is so intimately concerned with people’s bodies, personal vulnerabilites and well-being, 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:

  • The Constitution, and all the statutes and regulations stemming from it that embody its principles
  • Case law
  • The Health Professions Council of South Africa, which is mandated to set and maintain standards.
Under the Constitution, all citizens enjoy certain rights, and – as a doctor – you have a responsibility to ensure that those rights are respected

Patients’ constitutional rights

The Constitution is the supreme law of the Republic. Therefore all statutes and conduct must support and reflect its principles and aims. 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
  • Complain about health services.”
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

Patients’ responsibilites 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 general practice (see Box 1) 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.

Box 1: Examples of statutes and regulations relevant to healthcare

  • Abortion and Sterilisation Act 1975
  • Children’s Act Regulations 2010
  • Choice on Termination of Pregnancy Act 1996
  • Communicable Diseases Regulations 2008
  • Criminal Law (Sexual Offences and Related Matters) Amendment Act 2007
  • Domestic Violence Act 1998
  • Health Professions Act 1974
  • Mental Health Care Act 2002
  • National Health Act 2003
  • Older Persons Act 2006
  • Promotion of Access to Information Act 2000
  • Sexual Offences Act 2007

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).
It must be demonstrated that the practitioner’s actions fell short of the standards the law considers reasonable

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.

The test of reasonable conduct was set out in the judgment of the 1924 case Van Wyk v Lewis, as follows:

“[In] deciding what is reasonable the court will have regard to the general level of skill and diligence possessed and exercised at the time by the members of the branch of the profession to which the practitioner belongs.”

If a doctor’s management of a patient is considered reasonable by a responsible body of his or her peers, a court would be unlikely to find him guilty of negligence

This means that, if a doctor’s management of a patient is considered reasonable by a responsible body of his or her peers, a court would be unlikely to find him guilty of negligence.

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. For example, a delay in diagnosing an already untreatable tumour is unlikely to affect the outcome for the patient. This is where the testimony of expert witnesses can be crucial for arguing the causation element of a claim. What it often comes down to is if the judge prefers one expert’s opinion over another’s.

The plaintiff’s case will only succeed if the judge finds that a breach of duty did result in harm to the patient.

The number and value of clinical negligence claims brought in South Africa has been rising rapidly in recent years. In MPS’s experience alone, the estimated value of reported claims rose by 132% between 2008 and 2010. Most of these increases have been seen in the riskier specialties such as obstetrics, spinal surgery, neurosurgery and neonatology.

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.