SA doctors have a constitutional duty of care, writes Dr Tony Behrman, consultant for the Medical Protection Society. But unlike some countries where if they provide emergency aid, Good Samaritan legislation protects doctors from subsequent litigation, SA has no such statute.So, what do do?
Luke 10 (New Testament) relates a parable where a passing traveller who was assaulted by locals and robbed of his possessions was assisted by a Samaritan of a different religious persuasion, hence the origin of the Good Samaritan act.
MPS offers assistance worldwide in the event that a member is involved in a Good Samaritan act. Whether you are in an aeroplane, cruise ship, foreign country, or at home, your MPS membership offers you the right to request assistance for legal actions that stem from performing Good Samaritan acts, worldwide, irrespective of your category of membership.
But in South Africa, are you legally obliged to offer Good Samaritan assistance? Could you be exposed to a possible negligence claim or even a criminal charge if you act and make a fundamental medical error when assisting under less than adequate circumstances, or when performing a procedure with which you were not familiar, despite the fact that society would demand that you assist?
In South Africa, there is no Good Samaritan law on the statute books, so in terms of the codified law, you are not obliged to stop and assist at the scene of a problem. Neither are you automatically protected by law should you stop and assist, as you might be in countries where Good Samaritan legislation is on the statute books. Having said that, the Health Professions Council of SA (HPCSA) has imposed a duty of care on a doctor at the scene of an emergency to stop and assist. So, despite your obligations, best efforts and ability, should you perform a negligent act, you could be sued or reported to the HPCSA. This could however, be mitigated by the lack of facilities and poor conditions in which you were working, as well as possible lack of training and expertise in the field of medicine required by the patient involved in the catastrophe.
Prior to the adoption of the SA Constitution in 1996, South African courts would look to the common law and the morality expected of a medically qualified citizen in emergency situations, as well as societies convictions and expectation (Referred to as Boni Mores) versus one’s own personal and moral conviction.
The Constitution of the Republic of SA, in Section 27(3) states that no one may be refused emergency medical treatment. This has been defined by the Constitutional Court in the Soobramoney case, as “a sudden catastrophe that calls for immediate medical attention.” The National Health Act, 61 of 2003, also refers to the right of everyone to receive emergency medical treatment.
The predecessor to the HPCSA (the SAMDC), in the late 1990s delivered a judgement stating that in cases of emergency a practitioner is obliged to render assistance in all circumstances.
Thus, the Constitution and the National Health Act and the SAMDC (now HPCSA) impose a duty of care on a doctor at the scene of an emergency to stop and assist.
In a comprehensive commentary in the SA Medical Journal, Professor McQuoid-Mason comments: “Doctors coming across injured people at a road accident should stop and render assistance, unless they are likely to be exposed to personal danger or injury, they are mentally or physically incapable of assisting, or other medical or paramedical practitioners are at the scene. Where there is the threat of personal danger to the doctor, they must immediately report the accident to the police, advise the police to send protection and call for urgent ambulance assistance. Doctors should remain in a safe place near the scene until the police and ambulance arrive and check that paramedics are available to stabilise the injured before departing. Where there is the threat of danger, if doctors are mentally or physically unable to assist or if other medical or paramedical practitioners are at the scene, doctors may or may not be required to stop.”
There are recurring themes as to why persons, including doctors may be reticent to stop and assist at the scene of an accident: lack of sufficient skills in life support; fear of being exposed to bodily fluids and/or toxic substances in a road spill and the absence of Personal Protective Equipment (PPE); fear of acting without the requisite consent; fear of acting outside of your scope of expertise
Fear of being sued for negligence; being personally under the influence of alcohol or drugs (after a party and the doctor is a passenger in a vehicle) or being physically unable to assist; your personal safety at the scene; the safety of your family in the unaccompanied vehicle; fear of being involved in a further accident should oncoming traffic or rubbernecking drivers cause further injury or death; and inconvenience and security of your possessions in your vehicle
As a rule of thumb, after having considered the above: ascertain if there are emergency personnel at the scene; is there a better qualified person present to treat the injured party in the immediate area; ensure that your safety is addressed; take consent from the injured person if they have the capacity to understand and agree; attempt to take as full a history as is possible under the circumstances; suggest options of treatment if the situation allows; work within the confines of your expertise unless in a critical emergency; hand over to a more experienced colleague as soon as possible and remain on the scene to offer ongoing assistance; and make comprehensive contemporaneous notes as soon as you are able to do so and take photographs of the scene if possible.
By your own estimation, should you or your family’s personal safety be in jeopardy it would be your duty to call ahead to the SA Police or secure the scene, and to the rescue services to dispatch, while you remain in the nearby vicinity and then commence emergency treatment once you and your family’s safety is secured.
Good Samaritan acts do not attract remuneration and no bill is expected to be sent to the patient.