Murder of charged anaesthetist brings pressure for legislative change

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The killing of a Johannesburg anaesthetist who along with a colleague had been arrested and charged for culpable homicide following the death of a child during surgery, has rocked the South African medical community, writes MedicalBrief. A slew of organisations have warned that such violence  and the “criminalisation of medicine” had dire implications for the profession and for patients.

SA Health Minister Dr Zweli Mkhize said he was “shocked and dismayed” by the murder of Dr Abdulhay Munshi, who was shot dead on Wednesday night (16 September) in what the Health Professions Council of SA (HPCSA) described as a “vigilante killing” and the SA Medical Association (SAMA) called an “assassination”.

Munshi’s vehicle was rear-ended. When he got out, he was shot several times, dying at the scene. The other vehicle sped off. No arrests have yet been made.

Munshi’s colleague, paediatric surgeon Dr Peter Beale, is believed to be in hiding. The family that accused the two doctors of culpability in their child’s death have denied any involvement.

Munshi and Beale had been charged with culpable homicide in the death of 10-year-old Zayyan Sayed shortly after an operation October 2019 and were on R10,000 bail each. The child’s death took place hours after Beale performed what was meant to be a routine laparoscopic operation to stop reflux.

The boy’s father, Mohammadh Sayed laid culpable homicide charges against the doctors and the incident featured prominently in the media, which led to further allegations against the doctors. The Economic Freedom Fighters took up the case demanding immediate HPCSA and police action. The December 2019 arrest of the two doctors, unusual in such a case, caused consternation in the medical fraternity.

This week, medical professional organisations expressed concern over a trend towards physical violence directed at doctors and nurses if procedures go awry. There is also disquiet over the readiness of the police and prosecutorial agency to respond to public pressure and institute criminal charges of culpable homicide – with the spectacle of handcuffs and public arrests – over and allegation of medical negligence that had not first been processed through the normal channels of an HPCSA inquiry.

HPCSA chairperson Dr Kgosi Letlape said due process needed to be followed in the medicine field within a sector that is self-regulated. The inquiry into Beale and Munshi was interrupted by the decision to press charges, instead of leaving the matter to “independent structures”.

Letlape said that health professionals should stand together to protect the profession. “It is extremely dangerous if healthcare professionals are going to be treated like criminals … We do not want to practise under those circumstances or have a climate of fear when we have a solemn duty and an oath to uphold to put our patients first.”

“What is impacting on our ability to do our job is that… there is an unlawful process that is happening in the courts of law.” Letlape said the HPCSA was “painfully aware of the contagion of legalisation” in the field and was seeking to rewrite regulations to stop delays in investigations, turning current processes within the council “similar to the courts”.

In a TimesLive report Letlape was quoted as saying that the case had criminalised the medical profession and many doctors feared working in such conditions. “I am a practising doctor and I cannot practise under this climate where I may be killed for helping society. That is not the environment we want to practise in, where (by) my professional action, I can be treated as if I am a criminal when there is provision in the law in terms of how these matters should be handled. We are in danger.”

SAMA chair Dr Angelique Coetzee said that she deplored the violence that resulted in Munshi’s murder, and that it was a sad day when a country could not guarantee the safety of its healthcare workers. “We are all aware of the case that was against him and the paediatric surgeon and these charges were, according to our sources, about to be dropped, based on the postmortem evidence,” said Coetzee.

She said the whirlwind that came with this matter would lead to doctors being reluctant to treat certain patients. “The low point of this is that doctors will in future check if a patient is politically connected or may be a high profile person out there because of fear of themselves being targeted and that will lead to poorer intervention and care,” said Coetzee.

In an analysis on Medicalbrief, Dr Graham Howarth, Medical Protection Society head of Medical Services – Africa, writes that it may now be timely to re-examine SA law around culpable homicide.

“As matters currently stand, an error of judgement that results in a patient’s death exposes one to potential prosecution and imprisonment. To expect the profession to be exempt from such charges is also unrealistic – healthcare professionals need to be held accountable – but criminalising errors of judgement, particularly in the fast moving and potentially hazardous healthcare environment seems unreasonably harsh.”

The SA Society of Obstetricians and Gynaecologists (SASOG) and the Gynaecology Management Group (GMG) released a statement strongly condemning violent crime and appealing to the government to “step up efforts to manage this scourge and to protect its citizens”.

“This incident highlights an apparent escalating trend of violence against health care professionals, including a recent incident in which a female doctor was physically attacked by the male relatives of a patient who passed away.  This trend is of great concern to the SASOG and GMG because doctors are unable to practice their profession of healing when they are in constant fear of their lives.

“While the death of a patient is always tragic and highly traumatic, even when everything possible is done, medical outcomes are not always predictable and may be undesirable. While great strides have been made to improve the safety of operations and other medical interventions, some patients still become very ill and may even die. This does not mean that the doctor is at fault.

“We respect and fully support the rule of law and the regulatory processes guiding investigations and the quest for justice. We believe that professional bodies should lead in the prevention, identification and management of medical negligence and should lead investigations in this regard. In South Africa, it is the role of the HPCSA to investigate all matters of alleged medical negligence.  SASOG and GMG were therefore deeply concerned that Dr Beale and Dr Munshi were immediately ‘villainised’ in the media following the tragic passing of Zayyaan Sayed last year, before a proper investigation by the HPCSA could take place.

“Globally, reforms regarding medical culpable homicide have taken place or are under discussion in countries including India, New Zealand, Australia and the United Kingdom and SASOG is working with the Federation of South African Surgeons (FoSAS) and the South African Anaesthetic Society (SASA) to speed up these reforms in South Africa.”

Responding to criticism of the arrests, the National Prosecuting Authority on Sunday (20 September ) issued a statement saying that any decision to prefer criminal charges meant that an inquest hearing was not necessary. But doctors who executed their duties according to the law did not have to fear criminal prosecution.

“By law, an inquest shall be conducted in instances where criminal proceedings are not instituted and where a death has occurred and that such death was a result of unnatural causes. In this instance, the latter is not applicable,” said NPA spokesperson Phindi Mjonondwane.

In any case of potential negligent loss of life, the NPA is “duty bound to take action with the aim of deciding whether or not, criminal proceedings should be instituted against such a medical practitioner”.

A criminal charge of medical negligence was laid by the father of the deceased boy, Zayyan Sayed, in October 2019. The NPA assessed the case docket and established that there was a prima facie case..”

“The NPA, guided by Section 179(2) of the Constitution of South Africa which empowers the NPA to institute criminal proceedings on behalf of the State and to carry out any necessary functions incidental to instituting criminal proceedings, enrolled a case of culpable homicide against two medical practitioners, namely, Doctor Peter Beale and Doctor Abdulhay Munshi

“Furthermore, the NPA reiterates that the rights to equality before the law applies to every citizen within the borders of South Africa. It is therefore our view that, if medical practitioners, in the execution of their duties, act within the confines of the law, then they do not have to fear criminal prosecution.”

Medico-legal expert Donald Dinnie, a director of Norton Rose Fulbright SA, said that while there was no legal requirement for the NPA to await an inquest if it believed there was prima facie case of culpable homicide in an unnatural death, lacking the results of a post-mortem examination could be problematic. “It would be speculative to proceed in a criminal or civil case of medical negligence without having medically determined what the cause of death had been and whether the patient had any underlying conditions that were contributory.”

In an interview with the Sunday Times, Mohammadh Sayed, the father of the child who died, said rumours that the charges against the doctors were about to be withdrawn were “absolute hogwash”.

Sayed also released a press statement through his lawyers on Friday (18 September) denying involvement in the crime. “The inferences sought to be drawn in the media are irresponsible, reckless, speculative and sensationalist. Mohammadh Sayed denies any involvement in the crime and sincerely hopes that the perpetrators will be found and brought to justice as soon as possible,” read the statement.

Sayed was not being malicious in pursuing criminal charges against Munshi and Beale. It was “a matter of public record,” that he had followed a legal route “in pursuit of the truth,” regarding the death of his son.

“He has instructed his legal team to engage with the investigating and prosecuting authorities on a regular basis in his endeavours to ensure that justice is not only achieved but also done in a legitimate and transparent manner in this matter.

“The investigation thus remains in the hands of the police and the National Prosecuting Authority. He has endeavoured to hold the doctors involved accountable, criminally and before the Health Professions Council of SA. This is to ensure that no other parent suffers the pain and anguish that he and other parents endured before,” the statement read.

“He has instructed his legal team to engage with the investigating and prosecuting authorities on a regular basis in his endeavours to ensure that justice is not only achieved but also done in a legitimate and transparent manner in this matter,” the statement said.

An array of medical organisations have expressed concern over aspects of the Munshi Beale prosecutions.

Daphney Chuma, of the HPCSA, was quoted in the media as saying that if the legal approach used in the case of Beale and Munshi was perpetuated, the board was concerned that medical doctors would in future allow patients to die naturally without intervening, for fear of being criminally prosecuted.

The Association of Surgeons of South Africa said that surgery and anaesthesia were not precise arts. “The spectre of adverse events, including death, is ever-present. We will engage with the national minister of health to frame legislation providing immunity from criminal charges for surgeons and anaesthetists in all cases until due processes have been completed.”

Dr Moogandra Naidoo, chairman of the KZN Specialist Network, said as far as they were aware, there had never been a warrant of arrest issued for a healthcare practitioner in a criminal matter and such issues were normally handled via a summons or warning.

“Why is it necessary to treat medical professionals like common criminals, by handcuffing and then placing them in an overcrowded holding cell, pending their transfer to court in a police vehicle with sirens wailing?” Naidoo asked.

Dr Phillip Webster, president of the South African Orthopaedic Association, opposed the actions of the NPA, saying he believed it was creating a potentially dangerous precedent that could have serious repercussions for clinical autonomy in the future.

Dr Schalk Burger, president of the SA Spine Society, said such cases were generally complex. There was concern over the doctors being unable to generate an income while awaiting the conclusion of the process, as well as their grief, anxiety and the public humiliation that they faced.

 

Full report in TimesLIVE

 

News24 report

 

See also:

Munshi: Reflecting on a tragedy – MPS column

 

Murder of Munshi – MedicalBrief report

 

Criminal charges will have dire consequences – Analysis

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