tag:theconversation.com,2011:/us/topics/medical-negligence-12027/articlesMedical negligence – The Conversation2023-04-11T14:35:17Ztag:theconversation.com,2011:article/2018982023-04-11T14:35:17Z2023-04-11T14:35:17ZSouth African doctors are bound by many rules. Criminal charges for mistakes may have unintended consequences<figure><img src="https://images.theconversation.com/files/517947/original/file-20230328-4538-eylan5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p><em>Claims for financial compensation for medical mistakes in South Africa have been <a href="https://theconversation.com/legal-claims-for-medical-mistakes-are-on-the-rise-in-south-africa-whats-behind-the-trend-187393">on the rise since 2007</a>. Recently, however, criminal charges for medical errors have also become more prevalent. One such case is that of <a href="http://www.saflii.org/za/cases/ZACC/2020/19.html">Dr Danie van der Walt</a>, who was ultimately acquitted on a charge of negligently causing the death of a child. Another example is the case of <a href="https://ewn.co.za/2023/02/01/paediatric-surgeon-charged-with-murder-and-culpable-homicide-returns-to-court#:%7E:text=JOHANNESBURG%20%2D%20Murder%2Daccused%20paediatric%20surgeon,surgery%20Beale%20performed%20on%20him.&text=Beale%20was%20subsequently%20charged%20with,charge%20was%20upgraded%20to%20murder">Dr Peter Beale</a>, who was charged with, but not yet tried of, causing the death of a 10-year-old. Yet another is the ongoing case and charge of murder brought against <a href="https://www.news24.com/news24/southafrica/news/surgeon-faces-shock-murder-charge-after-death-of-patient-20220905">Dr Avindra Dayanand</a> for the death of a 35-year-old patient.</em> </p>
<p><em>These cases have raised questions about how the medical profession is regulated in South Africa. Is the regulation effective in preventing harm? How are medical practitioners held accountable for harm suffered? What are the consequences of the regulatory environment? The Conversation Africa’s Ina Skosana spoke to Larisse Prinsen, a medical law specialist, about what’s in place.</em></p>
<hr>
<h2>How is the medical profession in South Africa regulated?</h2>
<p>South Africa has a comprehensive framework for the regulation of the healthcare environment. </p>
<p>Healthcare in South Africa is overseen by the <a href="https://www.health.gov.za/">National Department of Health</a> along with its provincial departments. The medical profession is regulated by numerous authorities and pieces of legislation. </p>
<p>Practitioners, depending on their branch of medical practice, are regulated by certain bodies that have been created by legislation. These statutory authorities provide field-specific regulation. </p>
<p>They include the <a href="http://www.hpcsa.co.za/">Health Professional Council of South Africa</a>, which is perhaps the primary regulator of the medical profession. The council has professional boards which are responsible for various aspects of the profession. For example, the boards determine standards of education and training for practitioners, and set and maintain standards of ethical professional practice as empowered by the <a href="https://ethiqal.co.za/wp-content/uploads/2019/08/health_professions_act.pdf">Health Professions Act of 1974</a>. The professional boards, such as the Professional Board for Emergency Care Practitioners, also license practitioners and keep registers of them. </p>
<p>Health products are regulated by the <a href="https://www.sahpra.org.za/">South African Health Products Regulatory Authority</a>. And medical research is overseen by the <a href="https://www.samrc.ac.za/">Medical Research Council</a>.</p>
<p>These statutory bodies and professional boards also have the power to establish disciplinary committees and disciplinary appeals committees.</p>
<h2>Which laws are in place?</h2>
<p>Healthcare in South Africa is also regulated by the <a href="https://www.justice.gov.za/legislation/constitution/saconstitution-web-eng.pdf">Constitution</a>, medico-legal codes of conduct, the common law and precedents set by case law.</p>
<p>In addition, numerous acts of parliament exist which represent binding regulatory instruments. The <a href="https://ahpcsa.co.za/wp-content/uploads/2015/10/The-Allied-Health-Professions-Act-63-of-1982-_as-amended.pdf">Allied Health Professions Act</a> of 1982, <a href="https://sadtc.org.za/wp-content/uploads/2019/01/DENTAL-TECHNICIANS-ACT-1979-ACT-No.-19-OF-1979-as-amended-1.pdf">Dental Technicians Act</a> of 1979, Health Professions Act, <a href="https://www.gov.za/sites/default/files/gcis_document/201505/act-101-1965.pdf">Medicines and Related Substances Act</a> of 1965 and its 2002 amendment, <a href="https://www.gov.za/sites/default/files/gcis_document/201409/a33-050.pdf">Nursing Act</a> of 2005, <a href="https://www.gov.za/sites/default/files/gcis_document/201505/act-53-1974.pdf">Pharmacy Act</a> 53 of 1974 and <a href="https://www.samrc.ac.za/sites/default/files/attachments/2016-06-10/MRCAct.pdf">South African Medical Research Council Act</a> of 1991 regulate medicine and the medical profession.</p>
<p>Some of the most prominent pieces of legislation regulating the practice of medicine are the <a href="https://www.parliament.gov.za/storage/app/media/ProjectsAndEvents/womens_month_2015/docs/Act92of1996.pdf">Choice on Termination of Pregnancy Act</a> of 1996, <a href="https://www.gov.za/sites/default/files/gcis_document/201505/act-58-1959.pdf">Inquests Act</a> of 1959, <a href="https://www.gov.za/sites/default/files/gcis_document/201504/act-28-1974.pdf">International Health Regulations Act</a> of 1974, <a href="https://www.gov.za/sites/default/files/gcis_document/201409/a17-02.pdf">Mental Health Care Act</a> of 2002 and its 2014 amendment, <a href="https://www.gov.za/sites/default/files/gcis_document/201409/a61-03.pdf">National Health Act</a> of 2003 and the 2013 amendment and <a href="https://www.gov.za/sites/default/files/gcis_document/201409/a22-07.pdf">Traditional Health Practitioners Act</a> of 2004.</p>
<p>In theory, South Africa has a sound healthcare regulatory framework. However, as is often the case, its efficacy can be undermined by human factors. These may include ignorance of the law, poor implementation, lack of resources, breaking of the law or even the wrongful assumption of being above the law. All these factors may contribute to the rise in criminal charges now being brought against medical practitioners, as well as the <a href="https://theconversation.com/south-african-doctors-call-for-law-reform-fearing-a-harsh-penalty-if-patients-die-175185">shock and pushback this has generated in the medical profession</a>. </p>
<p>This is not only a South African trend but an <a href="https://scholarship.kentlaw.iit.edu/cgi/viewcontent.cgi?article=3817&context=cklawreview">international one</a>. For example, in the UK <a href="https://www.theguardian.com/uk-news/2018/aug/13/dr-hadiza-bawa-garba-wins-appeal-against-decision-to-strike-her-off">Dr Bawa-Garba</a> was convicted of culpable homicide over the death of a six-year-old patient. However, countries such as New Zealand, Australia and England require <a href="https://docs.mymembership.co.za/docmanager/1e9aea2c-b58d-4aed-b5a2-96187d705aee/00159348.pdf">gross negligence</a> when prosecuting doctors in negligence cases.</p>
<h2>How are medical practitioners held accountable?</h2>
<p>Healthcare practitioners may be held accountable through internal disciplinary action, civil claims or criminal charges. </p>
<p>The Health Professions Council of South Africa, and other bodies and professional boards, have the power to establish <a href="https://www.gov.za/sites/default/files/gcis_document/201409/a22-07.pdf">disciplinary committees</a>. These committees most often deal with instances of “unprofessional conduct” or conduct which is “improper or disgraceful or dishonourable or untrustworthy”.</p>
<p>An example of this type of conduct would be persuading patients to invest in a distressed company of which the medical practitioner is a director. These were the facts of a case involving <a href="https://www.medicalbrief.co.za/sca-doctor-must-face-hpcsa-over-investments-solicited-from-patients/">Dr David Grieve</a>. The
doctor tried and failed to appeal a decision by the health professions council. </p>
<p>This means that medical practitioners may be held accountable by way of internal procedures. These may lead to fines, suspensions or the loss of their licences. The precise number of instances where doctors have been struck off is unknown since the majority of these matters are dealt with behind closed doors.</p>
<p>Civil or criminal processes may be based on malpractice or negligence. For a civil claim of negligence, it <a href="https://www.medicalprotection.org/southafrica/casebook-and-resources/news/news-article/2020/01/21/prosecuting-healthcare-professionals-for-culpable-homicide-who-benefits">must be shown</a> that the healthcare practitioner owed a duty of care to the patient, that this duty of care was breached, and that the breach was responsible for the harm suffered. If this is shown on the balance of probabilities, the patient is entitled to compensation. The test applied here asks if a <a href="http://www.medicalacademic.co.za/post-summary/?post_refered=21564">reasonable medical practitioner</a> in the same position would have foreseen the possibility of harm and have taken steps to guard against it. If so, negligence is shown.</p>
<p>For criminal cases of negligently causing the death of another person – culpable homicide – the same requirements are used. But it must be proven beyond reasonable doubt. This is a <a href="https://www.medicalbrief.co.za/prosecuting-healthcare-professionals-for-culpable-homicide-who-benefits/">higher burden of proof</a>. </p>
<p>Criminal charges should be carefully considered. Medical practitioners should not be held liable for mere <a href="http://www.samj.org.za/index.php/samj/article/view/13491/10022">errors in judgment</a>. In South African law, you are either negligent or you are not. There are no degrees of negligence. The distinction between acceptable errors in judgment or punishable negligence will have to be decided case by case, taking all the facts into consideration. </p>
<p>Criminalisation of medical judgment may interfere with <a href="https://www.wma.net/policies-post/wma-statement-on-medical-liability-reform/">appropriate medical decision making</a>. It may discourage doctors from specialising in higher risk, yet much needed, fields already suffering from skills shortages – such as obstetrics or neurosurgery. It may also lead to the practice of <a href="https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3728884/">defensive medicine</a> – recommending diagnostic testing or treatment paths which are not necessarily the best available option but primarily serve to protect doctors against potential litigation or criminal charges.</p><img src="https://counter.theconversation.com/content/201898/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Larisse Prinsen does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Criminalisation of medical judgment may interfere with appropriate medical decision making.Larisse Prinsen, Senior lecturer in law, University of the Free StateLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1873932022-08-15T14:57:14Z2022-08-15T14:57:14ZLegal claims for medical mistakes are on the rise in South Africa: what’s behind the trend<figure><img src="https://images.theconversation.com/files/478507/original/file-20220810-13-is5je2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Quality of care thresholds at health facilities in South Africa are on the rise</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>Medico-legal claims – claims based on medical negligence or malpractice – have skyrocketed in South Africa. Recent figures indicate a <a href="https://www.sanews.gov.za/south-africa/plans-curb-medico-legal-claims#:%7E:text=The%20National%20Treasury%20has%20unveiled,said%20claims%20had%20increased%20rapidly">growth rate of 23%</a> for medico-legal claims in the public sector since 2014. In the past financial year, more than <a href="https://www.spotlightnsp.co.za/2022/02/01/analysis-is-there-a-way-out-of-sas-medico-legal-morass/">R6.5 billion</a> (over US$390 million) was awarded in medico-legal claims. </p>
<p>This is not just a South African issue but a global and regional one. In <a href="https://allafrica.com/stories/202109170506.html#:%7E:text=There%20are%20increasing%20reports%20of,lost%20to%20payment%20of%20damages">Ghana</a> and <a href="https://times.mw/crackdown-on-doctors/">Malawi</a> litigation for medico-legal issues has also become more prevalent. </p>
<p>The number of claims as well as their value have increased. One possible reason could be that medical and technological advances are increasing life expectancy. These advances are good in general. But they may inflate the size of claims as factors such as future maintenance, loss of income and future healthcare are considered when calculating damages.</p>
<p>The cause of the sharp increase in claims – and how to address it – has been investigated and debated by various scholars and authorities in South Africa. This is important because money spent on these claims from the health budget is money not being spent on essential healthcare priorities. </p>
<h2>What’s driving the rise in claims</h2>
<p><a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2693960">Scholars</a> and the <a href="https://www.justice.gov.za/salrc/dpapers/dp154-prj141-Medico-Legal-Claims.pdf">South African Law Reform Commission</a> have identified a variety of factors driving the rise in medico-legal claims.</p>
<p>The first and most obvious cause relates to the quality of healthcare services and clinical errors. Cerebral palsy-type claims make up <a href="https://www.justice.gov.za/salrc/dpapers/dp154-prj141-Medico-Legal-Claims.pdf#page=197">around half</a> of medico-legal claims in South Africa. <a href="https://www.cdc.gov/ncbddd/cp/facts.html">Cerebral palsy</a> refers to a group of disabilities caused by damage to the brain. It’s widely <a href="https://www.justice.gov.za/salrc/dpapers/dp154-prj141-Medico-Legal-Claims.pdf#page=197">assumed</a> that where there is poor healthcare provision, there are high numbers of cerebral palsy cases. While poor quality of care during labour is indeed one risk, there are multiple other potential causes of cerebral palsy. </p>
<p>Other medico-legal claims include negligence in <a href="https://www.saflii.org/za/cases/ZASCA/2016/176.html">applying proper care</a>, failure to take reasonable steps to <a href="https://www.saflii.org/za/cases/ZASCA/2016/166.html">prevent stillbirth</a>, <a href="http://www.saflii.org/za/cases/ZAWCHC/2016/74.html">misdiagnosis</a> and delayed treatment. </p>
<p>But issues in the healthcare system go beyond individual negligence. Healthcare practitioners are expected to perform their duties according to the degree of care and skill reasonably expected of them. This may not always be possible due to environmental factors. For example, equipment may be old and deficient, or facilities may be understaffed.</p>
<p>The quality of care is affected by a number of factors. Maladministration and mismanagement have the biggest impact. The availability of resources in already strained national and provincial health budgets also affects care.</p>
<p>The legal profession, too, has been identified as contributing to the rise in claims. Arguments have been made that malpractice legal practitioners are actively encouraging and targeting the public to seek legal recourse in the event of something going wrong.</p>
<p>It has also been argued that the 2008 amendments to the <a href="https://www.gov.za/documents/road-accident-fund-amendment-act-0">Road Accident Fund Act</a> are a contributing factor as they reduced the payout levels. This could have pushed legal practitioners towards new avenues of personal injury law in the form of malpractice litigation. </p>
<p>The <a href="https://www.gov.za/documents/contingency-fees-act">Contingency Fee Act</a> of 1999 may be another contributing factor. The Act provides for a “no win, no fee” system. This allows people who would not normally be able to afford litigation to do so. It may also lead to inflated claims.</p>
<p>Other developments – such as a much more patient-centred approach to healthcare – have made patients more aware of their rights. Patients also have higher expectations. They are demanding more of their doctors and are less likely to tolerate indifference or poor management of any complications.</p>
<h2>Possible solutions</h2>
<p>Because there is no single cause, there is no single solution. This is a complex matter.</p>
<p>The South African Law Reform Commission has proposed a three-tiered strategy to reduce medico-legal litigation.</p>
<p>The first is at the primary level. In a bid to improve the quality of care the government has regulated <a href="https://www.idealhealthfacility.org.za/">a set of care standards</a>. These span a wide spectrum from clinical standards to the working environment, infrastructure, human resources and technology to ensure better and safer patient experiences and clinical outcomes. Healthcare facilities will have to develop quality improvement plans. </p>
<p>Secondary prevention relates to the management of complaints and the importance of early engagement. It includes establishing an independent health complaints committee, strengthening systems to monitor adverse outcomes, moving from a culture of blame to one of learning and receiving feedback from medico-legal claims.</p>
<p>Tertiary prevention, lastly, would entail:</p>
<ul>
<li><p>Professional and comprehensive management of all medico-legal litigation </p></li>
<li><p>Fast-tracking the resolution of low-value claims with minimal expenditure </p></li>
<li><p>Just compensation of injured patients or bereaved families </p></li>
<li><p>Assisting plaintiffs “in kind”, for example by securing school placement of disabled minors </p></li>
<li><p>Securing settlement awards in trusts to ensure appropriate accounting and payment of funds for future medical care </p></li>
<li><p>Return of unspent funds to the national health department in the event of premature death </p></li>
<li><p>Challenging false or opportunistic practices which artificially drive up the value of claims </p></li>
<li><p>Ensuring that all public money spent on settlement of valid claims is just and appropriate.</p></li>
</ul>
<p>More could be done. For example, the government should publish annual medico-legal claims reports with relevant data. This would make it possible to identify trends that can guide future policy.</p>
<p>An obvious solution is improving the healthcare system and quality of care. The government could implement its own <a href="https://www.spotlightnsp.co.za/wp-content/uploads/2020/08/2030-HRH-strategy-19-3-2020.pdf">Human Resources for Health Strategy 2030</a>, which might alleviate the understaffing of many healthcare facilities.</p>
<p>Reducing claims also requires the government to ensure that healthcare facilities are properly funded and staffed. And it should suspend medical licences in instances of gross negligence resulting in death. Charges of culpable homicide might even be considered.</p>
<p>Legislation alone cannot address the causes of the rise in claims. But some legal reform and the development of fit-for-purpose legislation might be helpful. This would address procedure, create bodies or authorities to deal with some of the causes, create novel interventions and change the method and timing of compensation. </p>
<p>Lastly, the method of compensation might also be reconsidered. It could move away from lump-sum payments to structured settlements consisting of payment for harm already suffered, periodic payments for future medical or other costs, or even payment in kind, such as healthcare services provided by the state.</p><img src="https://counter.theconversation.com/content/187393/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Larisse Prinsen does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The number and value of medico-legal claims has increased.Larisse Prinsen, Senior lecturer in law, University of the Free StateLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1751852022-02-21T14:14:40Z2022-02-21T14:14:40ZSouth African doctors call for law reform, fearing a harsh penalty if patients die<figure><img src="https://images.theconversation.com/files/445416/original/file-20220209-17-1rcsuts.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>In November 2021 the South African Medico-Legal Association joined other with leading healthcare organisations in South Africa in <a href="https://www.medicalprotection.org/southafrica/casebook-and-resources/news/news-article/2021/11/05/press-release-south-africa-healthcare-leaders-unite-in-call-for-review-of-culpable-homicide-law">urging the government</a> to review the culpable homicide law and its application in healthcare settings.</p>
<p>The <a href="https://medicolegal.org.za/">South African Medico-Legal Association</a> represents medical and legal practitioners, many of whom also belong to the other healthcare bodies involved in this matter. They wrote to the Minister of Justice and Correctional Services, suggesting that the <a href="https://www.justice.gov.za/salrc/about.html">South Africa Law Reform Commission</a> should review this complex area of law. Such a review would benefit healthcare professionals as well as patients.</p>
<p>The current law in South Africa to prove that healthcare practitioners are guilty of culpable homicide is set out in the common law and the <a href="https://www.gov.za/documents/national-health-act">National Health Act No. 61 of 2003</a>. It must be shown that they deviated from their duty of care, leading to the foreseeable death of a patient. In addition, the prosecutor needs to prove <a href="https://www.myacademic.co.za/product/criminal-law/">unlawfulness and negligence</a>. </p>
<p>This is a low threshold for criminal culpability. Even if the healthcare practitioner acts in good faith, or the error of judgement is slight, it can be relatively easy for the prosecution to formulate charges and secure a criminal <a href="https://www.medicalacademic.co.za/ethics/doctors-and-culpable-homicide/">conviction</a>. </p>
<p>Even if the healthcare practitioner is acquitted on the charge, he or she suffers a huge reputational risk. This can have an adverse affect on their practice.</p>
<p>Practitioners fear arrests and being charged with culpable homicide even for minor mistakes, including slips and lapses. This may happen even to the best trained practitioners. And in the <a href="https://journals.co.za/doi/10.10520/EJC-d1f07f9d9">public sector</a>, inadequate infrastructure, including obsolete medical equipment, and understaffing may increase the risk of healthcare practitioners making mistakes.</p>
<p>Practitioners are also <a href="https://www.medicalprotection.org/southafrica/casebook-and-resources/news/news-article/2020/01/21/prosecuting-healthcare-professionals-for-culpable-homicide-who-benefits">concerned</a> that a culture of fear, where prosecutions appear to be indiscriminate, may result in an exodus of practitioners – something South Africa cannot afford. </p>
<p>We are seeking support from politicians to bring about law reform in South Africa. </p>
<h2>Recent prosecutions</h2>
<p>Until recently, prosecutions of healthcare practitioners were sparse in South Africa. But law enforcement agencies, including the South African Police Service and the National Prosecuting Authority, now appear to be more eager to proceed with such cases. In 2019 there were two separate cases in which the state showed its intent. </p>
<p>The first case involved Dr Daniel van der Walt, an obstetrician and gynaecologist. He was convicted of culpable homicide and sentenced to five years in prison but <a href="http://www.saflii.org/za/cases/ZACC/2020/19.html">successfully appealed</a> to the Constitutional Court.</p>
<p>The second case was that of Professor Peter Beale, a paediatric surgeon, and Dr Abdullah Munshi, an anaesthetist. They were charged with culpable homicide for the death of a patient. Munshi then died in what was perceived to be an <a href="https://www.news24.com/news24/southafrica/news/killing-of-dr-abdulhay-munshi-is-outrageous-and-deplorable-sama-20200917">assassination</a>. The charge against <a href="https://www.timeslive.co.za/sunday-times-daily/news/2022-02-07-paediatric-surgeon-peter-beale-stripped-of-licence-to-operate/">Beale</a> has since been changed to murder. </p>
<p>These cases have highlighted to doctors the very real <a href="https://www.timeslive.co.za/news/south-africa/2020-09-21-we-cant-practise-in-this-climate-doctors-write-to-cyril-ramaphosa/">prospect</a> of facing criminal charges when they have acted in good faith, in a complex and challenging environment. </p>
<p>As members of the South African Medico-Legal Association, we are very concerned about the present law in assessing the criminal culpability of healthcare practitioners in South Africa. As a coalition, we cannot see who benefits from the current system. Doctors risk losing their careers and liberty. The fear of criminal charges also has a negative knock-on effect on patient care. Practitioners may resort to defensive medicine, referring patients to others for diagnosis (and adding to treatment costs). Surgeons may lose the confidence they need in difficult circumstances. And the health professions, already short of practitioners, may become less attractive as a career.</p>
<h2>Law reform</h2>
<p>The <a href="https://www.medicalprotection.org/southafrica/casebook-and-resources/news/news-article/2021/11/05/press-release-south-africa-healthcare-leaders-unite-in-call-for-review-of-culpable-homicide-law">letter</a> to the minister, Ronald Lamola, was signed by the Medical Protection Society, Association of Surgeons of South Africa, Federation of South African Surgeons, Radiological Society of South Africa, South African Medical Association, South African Medico-Legal Association, South African Private Practitioners Forum, South African Society of Anaesthesiologists and South African Society of Obstetricians and Gynaecologists. </p>
<p>The letter stresses the importance of achieving a long-term solution for healthcare professionals and patients alike.</p>
<p>Our primary goal is to engage the South African Reform Commission. It must investigate the need for introducing legislation to stop the National Prosecuting Authority from instituting prosecutions against healthcare practitioners when complications occur despite best intentions and care. We believe the current measure to establish criminal culpability of healthcare practitioners is inappropriate.</p>
<p>Let us be clear, practitioners whose intentional or reckless conduct causes the death of patients should be punished. But fatalities brought about by errors of judgement in complex healthcare environments should not be viewed as culpable. This can be achieved with a raised threshold that includes either recklessness or gross negligence. A clear intention to cause harm should also be added.</p>
<p>We recommend a higher threshold as found in the <a href="https://www.lawscot.org.uk/members/journal/issues/vol-63-issue-09/medical-death-a-case-to-answer/">Scottish law</a> and in the <a href="https://www.legislation.govt.nz/act/public/1961/0043/latest/whole.html">New Zealand</a> legal system. </p>
<p>South Africa needs a system of greater openness, where practitioners are encouraged to report unintended and unexpected adverse events and apologise to the families of deceased patients. We should move away from a culture of blame and fear to a system of learning from mistakes.</p>
<p>New Zealand has a programme aimed at learning from adverse events, minimising repeat behaviour and ultimately improving patient safety. Prosecutions of healthcare practitioners have become <a href="https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6876437/">rare</a> there.</p>
<p>These changes can take place by developing South Africa’s common law or by legislative reform. The influence of the South African Law Reform Commission is vital. The commission researches the law on <a href="https://www.businesslive.co.za/bd/national/2022-01-24-no-need-to-wait-for-legislation-to-tackle-medical-negligence-say-experts/">issues in need of reform</a> to make recommendations to government. It relies heavily on the help of commentators who share their knowledge and experience. </p>
<p>Besides leading to greater consistency and fairer outcomes, reform will replace a measure that is overly punitive.</p>
<p>The South African Medico-Legal Association’s collaboration on this important issue is anchored in its <a href="https://medicolegal.org.za/">mission statement</a>, which encourages the inter-relationship between medicine and law, fostering dialogue between member professions and beyond, to promote justice, ethical practice and constitutional values.</p><img src="https://counter.theconversation.com/content/175185/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Ethelwynn Stellenberg received a NRF competitive grant in 2015 to investigate malpractice litigation in nursing practice in South Africa. The grant was not related to the topic of this article.</span></em></p><p class="fine-print"><em><span>Henry Lerm does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Doctors and nurses fear arrests and being charged with culpable homicide even for minor mistakes.Henry Lerm, Adjunct Professor in the Department of Criminal and Procedural Law, Nelson Mandela UniversityEthelwynn Stellenberg, Associate Professor in Nursing, Stellenbosch UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/839862017-09-26T16:44:15Z2017-09-26T16:44:15ZWhy mediation and arbitration offer a better route to solving medical disputes<figure><img src="https://images.theconversation.com/files/187037/original/file-20170921-8194-1g0yduo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p><em>A medical scandal in South Africa, that resulted in the deaths of 94 patients with mental health disorders after they were moved from the Life Esidimeni Hospital to unlicensed facilities, is taking a new turn. Retired Chief justice Dikgang Moseneke has been appointed to <a href="http://www.news.gauteng.gov.za/content/news/makhura-welcomes-the-announcement-of-the-life-esidimeni-alternative-dispute-resolution-process.html">arbitrate the dispute</a> between the Department of Health and the families of the patients who died. Judge Moseneke will make a binding award of compensation to avoid a costly legal battle. Health and Medicine Editor Candice Bailey spoke to Romany Sutherland about medical mediation.</em></p>
<p><strong>What is medical mediation?</strong> </p>
<p>Mediation is one of a few alternative dispute resolutions tools. The idea behind it is that as soon as a conflict or dispute arises, an independent person gets involved to facilitate conversation between the parties. The process is voluntary, confidential and “without prejudice” so nothing that is said or conceded can be used in court later. It offers a safe space for the parties. With the assistance of a mediator they discuss their concerns and interests.</p>
<p>Before medical mediation was allowed, the only redress in a dispute be it after a breakdown in the patient-doctor relationship, a dispute around accounts or allegations of negligence or misconduct – was via an attorney who would investigate and litigate. </p>
<p>But litigating a medical negligence dispute can take <a href="http://www.med.umich.edu/news/newsroom/Boothman%20et%20al.pdf">seven years</a> or even longer. And very often costs exceed the compensation sought. In addition, parties can be left despondent, emotionally exhausted and sometimes, financially ruined.</p>
<p>In most litigation matters there is also no platform to discuss what actually happened. Most patients pursuing litigation in medical matters need the three A’s: Answers, Accountability and Assurance – an explanation as to why the results were not as intended or predicted and what happens as a result. </p>
<p>The benefit of a medical mediation is that the emotional toll on both parties in the dispute is minimised.</p>
<p><strong>How big is it in South Africa and elsewhere in the world?</strong></p>
<p>Medical mediation is on the rise in South Africa. Roughly a quarter of all the mediators trained and working in the country are <a>medical mediators</a>.</p>
<p>There is a need to channel disputes towards mediators to try and find solutions inexpensively and quickly. This is particularly important because government health departments are in financial distress and are facing a medical malpractice litigation storm. In the country’s wealthiest province Gauteng for example, the department of health has had to pay out over <a href="http://www.news24.com/SouthAfrica/News/more-than-r1bn-paid-in-medical-negligence-payouts-by-gauteng-health-da-20170523">R1 billion</a> (US$75million) in medical negligence claims since January 2015. </p>
<p>Legal claims are so high that obstetricians in the private sector have left the profession because they can’t afford indemnity cover <a href="https://www.medicalbrief.co.za/archives/sas-obs-gynae-crisis-innovative-risk-solutions-needed/">that exceeds</a> R850,000 (USD64,000) per annum.</p>
<p>The South African Constitution gives everyone the right to seek legal remedy for any dispute. But the country is in the process of introducing legislation that, if promulgated, may make medical mediation compulsory before litigation is commenced. </p>
<p>In the rest of the world, medical mediation and alternate dispute resolution are common. </p>
<p>In the US several medical centres have used mediation to divert potential litigation claims. The <a href="https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3314770/">University of Michigan</a> adopted mediation procedures in 2002 and included a premediation agreement at its teaching hospital. As a condition of treatment, patients agree to try mediation before pursuing litigation for any potential claim. As a result the university managed to drop claims by 60% and <a href="https://www.google.co.za/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=0ahUKEwjnl-vHsbjWAhUFPRoKHUJZD5wQFggkMAA&url=https%3A%2F%2Fwww.help.senate.gov%2Fimo%2Fmedia%2Fdoc%2Fboothman.pdf&usg=AFQjCNE2zrMx88h2NnswX0ed9myaBCQ_fQ">reduce claim processing</a> time from 20 months to nine over five years.</p>
<p>Australia, the UK and the US are among the few countries where sanctions are imposed if mediation doesn’t precede litigation. In India, the courts/judges facilitate mediation themselves.</p>
<p><strong>What is the difference between mediation and arbitration?</strong> </p>
<p>During mediation a trained mediator facilitates the conversation. The mediator is an independent third party with no vested interest in the outcome. The mediator doesn’t give advice or make a decisions on how the matter should be settled. The parties themselves make decisions about how the matter is settled. </p>
<p>Also, mediators aren’t allowed to give legal advice.</p>
<p>Arbitration can be used instead of mediation. As with mediation, the arbitrator is independent. But the arbitrator, like a judge, is given powers to make binding awards on the parties. </p>
<p>It’s preferable for all parties to have legal representation in all alternative dispute resolutions. This is important to ensure matters are not under-settled, that patients’ claim period doesn’t lapse and that legal advice is on hand. </p>
<p><strong>What are the dangers of mediation not being handled correctly?</strong></p>
<p>Mediation works well because the process is confidential. Documents, conversations, progress, process and the outcome of a mediation is totally confidential until both parties have agreed to the terms of settlement.</p>
<p>This is important because it means that none of the negotiations, agreements and concessions during the mediation are binding until the matter is finalised, reduced to writing and signed by both parties.</p>
<p>In most mediation agreements the terms will include a further confidentiality clause that covers the settlement terms after agreement has been reached.</p><img src="https://counter.theconversation.com/content/83986/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Romany Sutherland owns Romany Sutherland & Associates, Medical Mediation Consultants
She is affiliated with South African Medico-legal Association and well as Mediation in Motion. </span></em></p>Medical mediation has become a buzzword in health departments across the world as an alternative to taking legal action to solve disputes.Romany Sutherland, Part time lecturer in medical mediation, University of Cape TownLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/368532015-01-29T13:52:20Z2015-01-29T13:52:20ZPolice immunity from negligence persists, despite the murder of Joanna Michael<figure><img src="https://images.theconversation.com/files/70306/original/image-20150128-22302-1gwb5fl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Should the police be immune from legal action for negligence?</span> <span class="attribution"><a class="source" href="http://www.flickr.com/photos/joncandy/5560724445/in/photolist-aLfQyR-aLfQKK-9matQ6-c3vzq9-4k35Nt-9tra3Q-c9fE4u-8HqUHu-9toaDp-4ozcwq-4ozcjN-oRXb1v-93PJXo-9wXbuc-9Jsssg-fkKjjw-fkv8UT-9JssV6-6e8maS-drD4Ty-pmnFGk-p7qMyJ-p9r6eY-4TGbzy-9xZmWf-GB9ek-GB9et-8mxzUT-8dutaj-nzqixX-nxn7eo-nxnp2m-fdZjZ2-oRXy8X-8UdfUV-oRYei1-oRYHZN-oRXFQF-fkv8Qg-feeCaY-feeBfJ-fdZkex-feeAZC-98t4Ck-93PJF3-oRYzqo-p9c3ur-8KLy2m-oQ6x6k-c4fLnQ">Jon Candy</a>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span></figcaption></figure><p>The UK Supreme Court <a href="https://www.supremecourt.uk/decided-cases/docs/UKSC_2013_0043_Judgment.pdf">has ruled in favour of the police</a> in a case that questioned whether they should be liable for negligence after failing to prevent the murder of a woman in Wales in 2009.</p>
<p>The court confirmed that the police do not owe a common law duty of care to the public when investigating and preventing crimes. That means members of the public who suffer injury or loss as a result of police carelessness in carrying out their public functions cannot seek compensation.</p>
<p>This is the first time in seven years the court has reconsidered police immunity. By a majority of five to two, the judges opted to retain the status quo. Although the police can still be sued for “operational” negligence, they remain immune from claims arising from failings occurring in the course of the investigation or prevention of crime. This means the police may be liable for carelessly causing a road traffic collision or starting a fire, but not for failing to apprehend a suspect or prevent a third party from harming a victim.</p>
<h2>Landmark case</h2>
<p>The case before the court arose from <a href="http://news.bbc.co.uk/1/hi/wales/8192720.stm">the tragic death of Joanna Michael in August 2009</a>. Michael rang the police in the early hours of the morning after her ex-boyfriend had found her with another man and threatened to assault her.</p>
<p>Using her mobile phone, she dialled 999 but her call was picked up by Gwent Police in the neighbouring county and not South Wales Police, her local police force. Michael told the Gwent Police operator that her ex-boyfriend had threatened to hit her and may also have said that he was going to kill her. The Gwent Police operator referred the incident to South Wales Police and told Michael they would call her back.</p>
<p>The operator made no reference to a threat to Michael’s life when referring the call and, apparently as a result, South Wales Police informed its officers on patrol that the incident did not require an immediate response.</p>
<p>Approximately 20 minutes later, Gwent Police received another emergency call from Michael in which the operator heard screaming before the call was cut off. The operator upgraded the urgency of the incident but when officers arrived at Michael’s address they found her dead. Her ex-boyfriend was convicted of murder and her family sued the police for negligence.</p>
<p>The court held that Michael’s case was no exception to the rule that the police cannot be liable in negligence for failing to prevent a suspect causing injury to a third party.</p>
<h2>The dilemma</h2>
<p>The rationale for police immunity is that the prospect of legal action would transform the operational priorities of the police. Instead of focusing on their primary public function, the argument goes that fears about being sued might lead police officers to perform their duties with an unduly “defensive” frame of mind. They might, for example, waste time and resources in an effort to cover their backs rather than serve the public.</p>
<p>There is also a question of the fair allocation of resources. As a member of the court pointed out, it does not follow that taxpayers should fund a police force and then also foot the bill when something goes wrong because of the behaviour of a third party. If it did, the taxpayer would have to compensate the victim’s family for a situation ultimately caused by her ex-boyfriend.</p>
<p>Yet there are strong arguments for abandoning police immunity. Other public servants, such as doctors, teachers, and paramedics, can be sued for negligence and the services they provide are not crippled by litigation costs. It is also difficult to separate “defensive” practices from simply doing a good job. Bringing the police’s crime prevention and investigation functions within the law of negligence might even raise standards and would go some way towards harmonising the rules governing public-service defendants.</p>
<p>In some ways, Michael’s case bucks a recent trend. During the past decade, the court has restricted the scope of the <a href="http://ukscblog.com/case-comment-smith-ors-v-ministry-of-defence-2013-uksc-41/">combat immunity</a> enjoyed by the armed forces and abolished immunity for <a href="http://www.crownofficechambers.com/assets/docs/news/jones_v_kaney_article.pdf">expert witnesses</a> and <a href="http://www.bailii.org/uk/cases/UKHL/2000/38.html">barristers</a> in negligence claims.</p>
<p>The court’s reasoning on these issues may have raised doubts about the future of similar immunities enjoyed by the likes of the police and fire brigade. If expert witnesses, soldiers and barristers can function while subject to the law of negligence then surely the police and fire brigade could too?</p>
<p>But Michael’s case dispels any hopes of a new trend. There can be no doubt that we live in an era in which the conduct of the police is coming under closer scrutiny. High-profile examples of police failings, such as the <a href="https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/229038/0581.pdf">Hillsborough disaster</a>, the <a href="http://www.bbc.co.uk/news/uk-26466867">controversy surrounding the police investigation into the murder of Stephen Lawrence</a>, and <a href="http://www.bbc.co.uk/news/uk-13268633">the death of Ian Tomlinson</a>, make the case for maximising police accountability.</p>
<p>The Home Secretary’s <a href="https://www.youtube.com/watch?v=BmPNwf03qV0">infamous takedown of the Police Federation</a> last year shows that improving the operational standards of the police is also a political priority. Against this backdrop, the dismantling of police immunity from negligence liability may have seemed a logical step. That the Supreme Court has chosen to keep it suggests that police exceptionalism will survive for some time yet.</p><img src="https://counter.theconversation.com/content/36853/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>John Fanning does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The UK Supreme Court has ruled in favour of the police in a case that questioned whether they should be liable for negligence after failing to prevent the murder of a woman in Wales in 2009. The court…John Fanning, Lecturer in Law, University of LiverpoolLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/305182014-08-26T04:44:04Z2014-08-26T04:44:04ZDo we need a law to help people try experimental drugs?<figure><img src="https://images.theconversation.com/files/57321/original/mzjmtc4s-1409013619.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">People with life-threatening or incurable diseases may be willing to try experimental drugs and unproven treatments.</span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/wink/260268486">juicyrai/Flickr</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc-nd/4.0/">CC BY-NC-ND</a></span></figcaption></figure><p>People with life-threatening or incurable diseases may be willing to try experimental drugs and unproven treatments, but they face <a href="http://www.abc.net.au/news/2014-08-25/rogue-operators-charge-thousands-ineffective-stem-cell-treatment/5695360">the risk of exploitation</a>. Is the law the best avenue to ensure that they are protected while medical innovation is encouraged?</p>
<p>Protection of vulnerable people is a thread running through many laws, in Australia and elsewhere. In medical law, for instance, children and people with impaired decision-making capacity warrant special attention. </p>
<p>But what of the ordinary person diagnosed with a life-threatening disease? Such people are <a href="http://www.smh.com.au/national/stem-cell-treatment-warnings-after-australian-woman-dies-in-russia-20140728-zxrzt.html">vulnerable to harm</a> and potential exploitation when they <a href="http://www.ideal-collaboration.net/2014/02/what-is-surgical-innovation-a-qualitative-study-of-surgeons-views/">seek access to innovative</a>, experimental or unproven treatments that depart from the existing range of accepted medicine. </p>
<h2>Choice in medical decision making</h2>
<p>Personal autonomy is a well-entrenched <a href="http://www.austlii.edu.au/au/cases/cth/HCA/1992/58.html">guiding principle</a>
in medical decision making in Australia. An adult with the capacity to make decisions may refuse medical intervention if they wish, even if that treatment could preserve their life and be seen by doctors as being in their best interests. </p>
<p>A <a href="http://www.austlii.edu.au/au/cases/nsw/NSWSC/2014/302.html">recent NSW case</a>, for instance, required the courts to comment on the request by a young man, who had suffered quadriplegia since age seven, that his life-sustaining mechanical ventilation stop on his 28th birthday. The court confirmed doctors would be acting lawfully if they did so. </p>
<p>Conversely, <a href="http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/1609.html">courts rarely compel</a> doctors to provide treatment requested by a patient if that treatment is futile, or hopeless.</p>
<p>But what does hopeless mean in this context? To a dying person, a remote chance may be infinitely preferable to no chance at all. </p>
<p>Consider someone suffering from a rare and probably fatal neurological disorder who wants <a href="http://www.stemcellfoundation.net.au/docs/patient-handbook/the-australian-stem-cell-handbook.pdf?sfvrsn=4">stem cell treatment</a>. Apart from one or two exceptions, <a href="http://exahttp://www.nhmrc.gov.au/_files_nhmrc/publications/attachments/rm01_stem_cell_treatment_quick_guide_131219.pdfmple.com/">such treatments</a> are currently unproven. Even if this person asks for early access to experimental treatment, it’s likely their [doctor will be cautious](http://es](https://www.mja.com.au/insight/2014/13/james-best-peddlixample.com/).</p>
<p>A medical professional may be concerned the treatment would do more harm than good by raising false hopes, or exposing patients to side effects. They may fear the impact of the person being diverted from partly beneficial conventional treatment or palliative care, or financial costs they would incur. Doctors may also worry about being sued if some of these risks eventuate. </p>
<p>Cases like these give rise to the question of whether the law strikes the right balance between encouraging medical innovation, promoting patient autonomy and protecting vulnerable people against harm and potential exploitation by maverick health-care providers. </p>
<h2>UK attempts at legalisation</h2>
<p>While not currently on the Australian law reform agenda, encouraging medical innovation has been the subject of wide public debate in England. It’s driven by the <a href="http://www.telegraph.co.uk/health/saatchi-bill/10870505/The-Saatchi-Bill-can-a-PR-guru-cure-cancer.html">sad personal story</a> of a man with a role in political life and a strong background in advertising. </p>
<p>Lord Maurice Saatchi lost his wife Josephine Hart <a href="http://www.cancerresearchuk.org/cancer-help/about-cancer/cancer-questions/primary-peritoneal-carcinoma"> to primary peritoneal cancer</a>. Writing in the <a href="http://www.dailymail.co.uk/news/article-2241693/Im-going-make-Parliament-cure-cancer-Lord-Saatchi-launches-bid-beat-disease-claimed-wife.html">Daily Mail newspaper</a> in late 2012, he wrote of his intention to introduce a Medical Innovation Bill, saying:</p>
<blockquote>
<p>The aim, in practical terms, is to change the way we treat patients, many of them terminally ill. The Bill’s ultimate goal is to help find a cure for cancer. </p>
</blockquote>
<p>The core of the suggested law reform is a provision that would not consider a doctor as being negligent if he or she departs from the existing range of accepted treatments, provided the decision follows an accountable, transparent process that considers all relevant matters. </p>
<p>The proposed <a href="http://medicalinnovationbill.co.uk/the-new-bill/">Medical Innovation Bill</a> has been through two drafts and a third may soon follow. The revisions all seek to give doctors more clarity and confidence if they wish to innovate. </p>
<h2>The challenge of balance</h2>
<p>Drafting the proposed law is difficult because of fears the reform will have the unintended consequence of protecting maverick, perhaps even exploitative, health providers who offer false hope to vulnerable patients as their lives draw to a close. </p>
<p>Many, including some <a href="http://www.aomrc.org.uk/doc_details/9752-academy-response-to-the-medical-innovation-bill-consultation">doctors groups</a>, particularly the <a href="bma.org.uk%20bmaresponselegislationencouragemedicalinnovation.pdf">British Medical Association</a>, and <a href="http://www.medicalprotection.org/uk/press-release/MPS-responds-to-DH-report-on-Medical-Innovation-Bill%E2%80%93the-Bill-is-still-unnecessary">insurers</a>, have questioned whether the bill is needed at all. </p>
<p>But the <a href="http://www.telegraph.co.uk/health/saatchi-bill/10798826/Saatchi-Bill-People-power-drives-the-fight-to-cure-cancer.html">strong public response</a> in support of the bill suggests the promotion of medical research and responsible innovation by treating doctors has widespread support. Perhaps the focus of the debate should shift to identifying and addressing practical barriers to medical innovation, such as adequate funding of medical research, rather than suspected but unlikely legal barriers.</p>
<p>Resources might be allocated to educating the public and assisting medical practitioners along the pathways to innovative practice, including participation in clinical trials (even trials involving only one person where this is clinically relevant and in the best interest of that patient) and existing ethical, legal and regulatory frameworks concerning medical research and innovation.</p>
<p>One example of this approach is the <a href="http://www.nhmrc.gov.au/media/releases/2013/nhmrc-warns-risks-associated-unproven-stem-cell-therapies-australia-and-overseas">recent publication</a> by the National Health and Medical Research Council (NHMRC) that provides practitioners with information to help them discuss stem cell treatments with patients. </p>
<p>In Australia, as in England, changing the law of medical negligence is probably not the best way to promote responsible medical innovation, even if the aim is to help people diagnosed with a life-threatening disease.</p><img src="https://counter.theconversation.com/content/30518/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Bill Madden is employed by and holds shares in a law firm that conducts medical litigation for patients.</span></em></p><p class="fine-print"><em><span>Tina Cockburn does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>People with life-threatening or incurable diseases may be willing to try experimental drugs and unproven treatments, but they face the risk of exploitation. Is the law the best avenue to ensure that they…Tina Cockburn, Associate Professor, Australian Centre for Health Law Research, Queensland University of TechnologyBill Madden, Adjunct Professor, Australian Centre for Health Law Research, Queensland University of TechnologyLicensed as Creative Commons – attribution, no derivatives.