The Constitutional Court ruling setting aside the criminal conviction of obstetrician/gynaecologist Dr Danie van der Walt sets an uncomfortable precedent for the medical profession, writes Dr Graham Howarth, MPS Head of Medical Services – Africa.
Dr Howarth writes:
Late last month I welcomed the Constitutional Court judgment to set aside the conviction of Dr Danie van der Walt for culpable homicide.
Now that the relief of the Constitutional Court judgment success has sunk in it is perhaps a good time to reflect upon the judgment more carefully. For the individual concerned it is a victory in the sense that the conviction has been overturned. However, the Constitutional Court overturned the judgment as they felt that the defendant had not been fairly treated by the Regional Court and it was that unfairness that made the judgment unsafe. The Constitutional Court did not opine on the defendant’s guilt or innocence; they overturned the judgment and it is up to the Director of Public Prosecution’s discretion whether to pursue the matter again or not. So while the defendant remains not guilty – as one is innocent until proven guilty – we could conceivably go back to square one.
One could argue that a clear winner is the concept of justice. The Regional Court treated the defendant unfairly and found him guilty. The High Court did not acknowledge the unfairness as the appeal against the Regional Court’s judgment was not upheld. Likewise the Supreme Court of Appeal declined to accept a petition to hear the case. Justice eventually prevailed once the Constitutional Court reviewed the case. One could ask why so many legal minds with time and expertise on their side required so many steps to get it right. Perhaps it is a salient question from the medical fraternity – where we may be asked to make life or death decisions in seconds, in the absence of all the facts, under pressure and without assistance, and then if we get it wrong may be criminally prosecuted, convicted and go to jail. Perhaps one could ask is there ‘just’ in justice.
Part of the appeal to the Constitutional Court was on sentencing. Is it fair to sentence a medical practitioner – who makes a decision under the circumstances described above, and who is found guilty of culpable homicide – in the same way as one would sentence a negligent driver also found guilty of culpable homicide? Apparently, the answer is yes. Given doctors give themselves out to be experts and if, despite their expertise, they err and the error is considered to be negligent resulting in the foreseeable death of a patient, then yes they should be sentenced just like a negligent driver. That is unwelcome news and sets an uncomfortable precedent for the medical profession.
To reflect upon an article earlier this year, the legal principles of culpable homicide as it pertains to South Africa are clear. Negligence on the part of an individual, which results in the unlawful killing of a human being, is classified as culpable homicide. To prove negligence certain pre-requisites have to be met. In the healthcare arena, it must be shown firstly that the healthcare professional owed the patient a duty of care; secondly that the duty of care was breached – the care given was not of the standard expected under the circumstances. Finally, it must be shown that the breach of the duty of care was responsible for the harm caused. In civil litigation, if these tests are established, on the balance of probabilities, then a patient is entitled to compensation.
When prosecuting a medical case for culpable homicide the pre-requisites for negligence are the same, however, there is a major difference; the burden of proof is more stringent. The steps must be proved to a higher standard; beyond reasonable doubt. If you think the differences in the standard of proof are merely semantic think of the OJ Simpson case where the criminal case was unsuccessful while the civil case was successful.
As matters currently stand, an error of judgment that results in a patient’s death exposes one to potential prosecution and imprisonment. Indeed in the current Covid-19 pandemic clinicians may be at risk of charges related to decisions regarding withholding, or more likely withdrawing, life sustaining treatment.
Criminalisation in the absence of any intent to harm is harsh and healthcare professionals are at risk. To expect the profession to be exempt from such charges is also unrealistic – healthcare professionals need to be held accountable – but criminalising errors of judgment, particularly in the fast moving and potentially hazardous healthcare environment seems unreasonably harsh.
So, when would it not be unreasonable to hold a healthcare professional morally and criminally responsible for suboptimal care resulting in an adverse outcome? At what level would it not be unreasonable to consider culpability to be criminal in nature? Strict liability, or liability without fault, where the adverse outcome alone needs to be proved, is clearly too low and inappropriate. Likewise, negligence, the reasonable professional under similar circumstances, is clearly adequate in the law of negligence and compensation but is a low threshold for a criminal conviction. Similarly, gross negligence lacks intent. Slips, lapses and mistakes can happen even to the best trained and most experienced and any expert would be hard pressed to claim otherwise.
Reckless care, where the healthcare professional shows a total indifference to and disregard for the safety of the patient and where the recklessness is responsible for the patient’s death, is not an unreasonable level of culpability to hold a professional criminally responsible. To be held criminally culpable as a professional the case needs to be clear and unequivocal.
Perhaps we should be looking to a jurisdiction like Scotland who interestingly, like South Africa, also use the term culpable homicide, as opposed to the term manslaughter used elsewhere. In Scotland however, charges are only brought against doctors if an act is proved to be intentional, reckless or grossly careless. The Scottish law and its application is better suited to determining the culpability of a doctor in a patient death and indeed whether a prosecution is in the public interest.
While the recent Constitutional Court judgment represents justice for the individual concerned, the remainder of the profession remain at the same risk as before the judgment.
It is clear that the vast majority of healthcare professionals do not set out to harm patients and to criminalise mistakes while working under difficult and complex conditions is surely not right. Criminal charges would best be reserved for those who have been reckless and the recklessness is responsible for the patient’s death, or, those rare individuals who willfully harm patients.
It is hard to see who benefits from a system that goes against these principles – a family loses a loved one through tragic circumstances, a doctor may lose their career and face a jail sentence, and fear of personal recrimination becomes increasingly embedded across healthcare.
If it means changing the law, or how it is applied in a healthcare setting, so be it. Now is the time to debate this.
Full report on ConCourt overturns conviction of jailed gynaecologist
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