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Unlawful practice in unregistered facilities – why Medical Protection is unlikely to assist

23 April 2021

Dr Graham Howarth, head of medical services (Southern Africa) at Medical Protection, looks at a doctor’s obligations to practise in an appropriate, registered setting


As a responsible organisation Medical Protection cannot be seen to be encouraging or supporting unlawful behaviour. It is clear that unattached theatres must be registered and failure to do so places those involved at risk of being criminally prosecuted. Assistance in defending a criminal prosecution of this nature is unlikely to qualify for assistance under Medical Protection membership.

In the practice of medicine, patient safety is of paramount importance, and this extends to the facility in which patients are being treated. One particularly important area is Rule 21 of the HPCSA’s ethical rules of conduct, which states under the heading Performance of Professional Acts: “A practitioner shall perform, except in an emergency, only a professional act (a) for which he or she is adequately educated, trained and sufficiently experienced and (b) under proper conditions and appropriate surroundings.”

Where Medical Protection can and cannot assist

Ensuring the facility in which you work – whether registered or not – is proper and appropriate for patient safety requires compliance with the relevant safety guidelines. Equally, Medical Protection would expect members to work within the scope of their training and competence, and in clinically safe and appropriate environments. Providing these guidelines have been followed, and the member is in the appropriate category of membership, members may ask Medical Protection for assistance with civil claims for clinical negligence arising from treatment provided in an unregistered facility or theatre.

However, owning, operating or rendering a service in an unregistered unattached theatre is unlawful and runs the risk of criminal prosecution. It is therefore unlikely that the benefits of Medical Protection membership would extend to assisting a member with any criminal prosecution that is brought in relation to the owning or operating of, or the rendering of a service in, an unregistered unattached theatre.

Medical Protection is also unlikely to assist with any regulatory matter at the HPCSA where a breach of the regulations on unattached theatres forms the basis of the complaint.