Dr Graham Howarth, Head of Medical Services – Africa for Medical Protection, explains the nitty-gritty of State indemnity, and its inadequacies.
Dr Howarth writes:
There appears to be an abiding myth that government-employed doctors have no need for any additional medico-legal indemnity as they are covered by the State. Like many myths there is a modicum of truth in the statement but, like all myths, it does not convey reality with complete accuracy. One of the problems related to, and not unusual for myths, is that it is passed down from generation to generation. Many senior State doctors will reassure their junior colleagues of their safety in relying upon the government should matters go amiss.
Now is a good time to reflect upon the myth. First, what about the modicum of truth? It is true that as a result of Treasury regulations the State is indeed responsible for your defence and paying out on claims of negligence against you while you are employed by the State. The issue is well explained in a Medical Brief article published in March 2021, however, in brief, where an employer is responsible for an employee in this manner it is referred to as vicarious liability. The vicarious liability offered by the State goes beyond that of an ordinary employee in the sense that as long as the relevant prerequisites are met, and in the absence of any extenuating circumstances, the State can also not seek reimbursement from the employee.
So on the face of it State indemnity looks like a great deal. There are some caveats – it is only for State employees managing State patients – so does not extend to any limited private practice. Likewise locums, supernumeraries, sessional doctors and university appointed staff without dual appointments may well not be covered. An additional problem – that can be extremely expensive to address and is definitely not covered by State indemnity – is when not only the State is sued but the healthcare worker is also a named defendant. This is expensive to address because it requires convincing the State Attorney that the State should accept the liability of the State doctor, even though the State-employed doctor is a named defendant.
As a medical defence organisation (MDO), clinical negligence claims form the minority of our work. Despite this, the State’s obligations are limited to assistance with claims. If a State practitioner requires expert medico-legal advice who do they turn to? Good early advice can prevent problems from occurring later. Who does the practitioner turn to for help in writing a medico-legal report? The State is unlikely to be able to assist in either scenario. An area where we also often give advice to State doctors is how to approach managers regarding concerning resource issues.
Sadly things occasionally go wrong and a patient, or their family, may complain. It is unlikely that the State will assist in responding to a complaint made to them by the patient or family about an employee. Indeed there may be a conflict between the practitioner and the State as the complaint may be generic but names the practitioner.
When the practitioner reviews the complaint it may be obvious that the complaint really revolves around resource issues. I don’t think I’ve ever met a State doctor who isn’t – at some point in their career – concerned about resourcing issues within State healthcare and how these issues impact on their clinical work. However, it is highly unlikely the State will respond to the complainant by acknowledging the resource constraints. External expert medico-legal advice may be needed to extricate the practitioner from the complaint; perhaps pointing out correspondence from the practitioner regarding resource complaints where we have previously given advice.
A complaint may lead to disciplinary action and the State is not going to assist an individual they are trying to discipline. While Medical Protection does help with disciplinary matters of a clinical nature the importance of belonging to an organisation that gives labour support cannot be over emphasised. In the early steps of the State’s disciplinary process, assistance is limited to a friend or labour representative – although if the disciplinary case is of a clinical nature we often provide supportive advice even during the early steps. By virtue of a member’s contract of employment and the State’s disciplinary process, Medical Protection will more often only be allowed to assist in the disciplinary process at a more advanced stage where things are more serious and a doctor’s ongoing employment is at stake.
What of the Health Professions Council of SA? A complaint to the HPCSA needs to be taken extremely seriously as the HPCSA can interfere with one’s registration and thus ability to work. The State will almost definitely not assist a State practitioner in that forum. A patient or family member may complain. Alternatively the complainant may be a disgruntled colleague or a hospital manager. We have numerous cases where hospital management has decided to complain to the HPCSA rather than use the internal disciplinary service. Given the legalistic nature of the HPCSA complaints process it is prudent to have lawyers with expertise in responding to the HPCSA and costs for those only relying on State indemnity can quickly escalate.
Should a patient die and an inquest follow, it is important to be legally represented at the inquest. While the State may represent a State doctor at an inquest it is important to remember that the lawyer instructed on behalf of the State will be primarily interested in protecting the State. If the State and the healthcare professional’s interests overlap, that is probably the best way to go. However, if there is any conflict between the State and the healthcare professional then prudence would dictate that the healthcare professional should be independently represented by their own lawyer. State doctors can otherwise become collateral damage in these situations. Sadly these conflicts are more likely in resource constrained services.
Criminalisation of healthcare professionals is a sad reality of contemporary medical practice in South Africa, something that Medical Protection has brought to the forefront and is addressing. The threshold for guilt in a culpable homicide case is low in the sense that, if a patient dies due to a practitioner’s negligence, the practitioner is vulnerable to a charge, and possibly conviction, of culpable homicide. One colleague has already spent time in prison after a conviction although the conviction was subsequently overturned, by Medical Protection lawyers, in the Constitutional Court. The State will definitely not assist an employee with criminal charges of this nature. Don’t believe it doesn’t happen – currently we are assisting a State doctor who is facing culpable homicide charges. Obviously our assistance is restricted to criminal charges related to clinical care.
So, yes the State may assist you if there is a claim in clinical negligence, although if you are a named defendant they will inevitably need some pressure to fulfil their obligations. However, they will not assist you with medicolegal advice, complaints, HPCSA matters, inquests where you are conflicted with them, or criminal matters. Additionally, despite the increasing mental health burden on healthcare professionals, the State will not offer the confidential counselling service that Medical Protection members can access 24 hours a day as part of their membership.
Now is perhaps an ideal time to reflect upon the myth, handed down from generation to generation of healthcare professionals, that State indemnity is adequate. What peace of mind do you have if you are only, at best, covered for claims in negligence?
In closing, it is perhaps also time to put a major misconception to bed. It is not true that the benefits of MDO membership differ substantially between State and private doctors. The only salient difference is that, as a result of the Treasury regulations, an MDO does not offer State claims indemnity to State doctors. For State doctors who perform limited private practice, Medical Protection can offer a product for claims relating to their limited private practice.
The overriding question for State doctors who rely on State indemnity is – how much risk are they willing to bear?
See other MPS columns in MedicalBrief: