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Urgent legislation needed to protect doctors at risk of legal challenge when treating Covid-19 patients

01 February 2021

The Medical Protection Society (MPS) has urged the Government to introduce Covid-19 disaster legislation to protect healthcare professionals in South Africa from legal challenge relating to clinical resourcing decisions they may have to make during the crisis.

MPS – the world’s leading protection organisation supporting over 30,000 healthcare professionals in South Africa – said many healthcare professionals are concerned about having to make extremely difficult decisions on how limited resources are allocated and feel vulnerable to the risk of prosecution for unlawful killing.

Dr Graham Howarth, Head of Medical Services – Africa at MPS, said: “Doctors have a range of guidance they can refer to on administering and withdrawing treatment, whether it be from the HPCSA, their employing hospital, specialty society or a local ethics committee.  The Critical Care Society of Southern Africa has also published guidelines dealing with the allocation of scarce resources for situations in which critically ill Covid-19 patients require ICU admission. However, while this guidance is incredibly valuable, it neither provides nor claims to provide legal protection. It does not provide a clear statement of law.

“As a result, not only might a huge humanitarian burden be placed on doctors that may cause moral injury and long-term psychological damage, but they also face the risk of personal accountability if and when legal challenges arise.

“We are calling on the Government to urgently consider introducing legislation or regulations as part of the disaster management programme in South Africa which would enable healthcare workers to know they are legally protected – with a statutory defence – when making difficult decisions in very challenging circumstances.

“Let us be clear – healthcare professionals should not be above the law, and the legislation we propose should only apply to decisions made in good faith, in circumstances beyond their control and in compliance with relevant guidance – it would not apply to wilful or intentional criminal harm, or reckless misconduct.

“We appreciate that given the Constitution the introduction of such legislation may indeed be complex, and the Disaster Management Act may be the best place for this provision to sit. Legislation to protect doctors during the pandemic is not without international precedent. In New York state, for example, The Emergency Disaster Treatment Protection Act grants temporary immunity from civil and criminal liability to New York healthcare professionals for the purpose of ‘promoting the public health, safety and welfare of all citizens’ during the state of emergency there.

“We do not underestimate how difficult this issue is. The range of ethical and legal challenges that have and will be been raised by this pandemic will involve difficult discussions over time including consideration of a wide range of different perspectives. In the meantime, this crisis is upon us and healthcare professionals need support now.”

ENDS

About MPS

The Medical Protection Society Limited (“MPS”) is the world’s leading protection organisation for doctors, dentists and healthcare professionals. We protect and support the professional interests of more than 300,000 members around the world. Membership provides access to expert advice and support and can also provide, depending on the type of membership required, the right to request indemnity for any complaints or claims arising from professional practice.

Our in-house experts assist with the wide range of legal and ethical problems that arise from professional practice. This can include clinical negligence claims, complaints, medical and dental council inquiries, legal and ethical dilemmas, disciplinary procedures, inquests and fatal accident inquiries.

Our philosophy is to support safe practice in medicine and dentistry by helping to avert problems in the first place. We do this by promoting risk management through our workshops, E-learning, clinical risk assessments, publications, conferences, lectures and presentations.

MPS is not an insurance company. All the benefits of membership of MPS are discretionary as set out in the Memorandum and Articles of Association.