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Medical Protection to Government: Patient safety compromised as doctors at risk of unlawful killing accusations

04 March 2021

Medical Protection Society (MPS) has called on the Government to protect patient safety by committing to a review on the threshold for criminal charges brought against doctors.

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.

Medical Protection – the world’s leading protection organisation supporting over 30,000 healthcare professionals in South Africa – recently 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, Medical Protection 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 Medical Protection, 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.

“Medical Protection 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 Medical Protection 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 Medical Protection, 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.”

ENDS

For press queries contact: E: Suzi Salleh Suzi.Salleh@medicalprotection.org T: +44 (0)779 080 7722.

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.