Need for national guidelines over criminal charges

Organisation: Position: Deadline Date: Location:

The “overwhelming feedback” from South African healthcare professionals is that they remain concerned about criminal and regulatory charges over COVID-19 treatment decisions, writes Dr Graham Howarth.

Dr Howarth, head of Medical Services, Africa for MPS, writes:

Last month I wrote about what might be next for doctors fighting COVID-19. Despite substantial efforts to both flatten the epidemiological curve and expand healthcare services, there remains a considerable risk of either localised outbreaks or nationwide spread.

Doctors are concerned about their vulnerability to criminal charges, which is why MPS called for Public Prosecutors to reassure doctors that they would judge any case reasonably against the circumstances in which clinical decisions are made.

It was encouraging that a spokesperson for the National Prosecuting Authority then said the body would have to be “more discerning in weighing up the interest of justice and public interest in every prosecutorial decision it takes in such cases…”.

However, for doctors who may be forced to make the most serious of decisions on withholding and withdrawing treatment, more certainty is a must.

The overwhelming feedback we’ve been getting from healthcare professionals is that they remain concerned about criminal and regulatory charges if they are placed in this unenviable position.

We recently held our third MPS webinar on the topic of withholding and withdrawing treatment. The issue is clearly front of mind for many, with more than 2,000 South African healthcare professionals in attendance across the webinars.

A recent survey of MPS members highlighted the same concern. Almost one in three (29%) respondents were either concerned or extremely concerned about facing an employer, criminal or HPCSA investigation for making a decision to withhold or withdraw life prolonging treatment. These concerns were backed by an earlier, larger, survey which showed an even higher degree of concern among anaesthetists (52%) and those working in emergency medicine (45%).

Despite facing these immense challenges, doctors currently have no national guidelines to refer to when making such difficult decisions,

The HPCSA’s booklet 7, entitled Withholding and Withdrawing of Treatment mentions national criteria and states such criteria would need to be agreed upon by the expert professional bodies in the relevant specialty, as well as the HPCSA.

However, since the booklet was published in 2016, no subsequent comment has been provided that we are aware of.

This is why MPS wrote to the HPCSA calling for the body to urgently clarify what guidelines healthcare professionals should follow when making decisions about the withholding and withdrawing of treatment.

With the death toll from COVID-19 continuing to rise, and the virus continuing to spread in many countries, national guidance is more pressing than ever.

In our letter to the HPCSA, we acknowledged that there are a variety of guidelines being developed at both hospital and regional levels. There are also excellent ethical guidelines available to doctors.

The Critical Care Society of Southern Africa (CCSSA) has written prudential ethical guidance, which will have been established and deliberated over by experts.

However, as I wrote last month, ethics and law are not necessarily synonymous. In writing to the HPCSA, we made clear that guidance must be unequivocal. With so many fearful of regulatory and criminal recrimination, healthcare professionals need clear guidance that is – crucially – supported by their regulatory body.

We called upon the HPCSA to either study the CCSSA guidance and issue a statement in support of the document, or to issue its own guidance outlining its view as regulator. When facing challenges and vulnerabilities unprecedented in recent times, doctors need to have the certainty of guidelines that are both national and legally supported.

It is particularly important that HPCSA makes its position clear to doctors in scenarios associated with withholding and withdrawing of treatment in respect of COVID-19 patients.

Healthcare professionals work best and deliver the optimum outcome for patients when they can focus on providing care and making clinical decisions free from fear of criminal charges or unreasonable regulatory recrimination.

Obviously, all doctors realise the need for the profession to be held to account. However, to be forced to make heart rending decisions on such a challenging area as withholding and withdrawing treatment, during a pandemic, and without clear national guidelines on which to base such decisions, is only adding to the immense burden already facing doctors in South Africa.

Agreeing national guidelines will be complex and we cannot presume to have all the answers. However, we do know that national guidelines, supported by the regulator, are an absolute must if doctors are to focus on their patients, not on avoiding prosecution.



See also

COVID-19: National guidelines needed to support medical profession


What next for the doctors fighting COVID-19?


Have a conversation while you can


MPS welcomes HPCSA Guidelines on telemedicine

Receive Medical Brief's free weekly e-newsletter

Related Posts

Thank you for subscribing to MedicalBrief

MedicalBrief is Africa’s premier medical news and research weekly newsletter. MedicalBrief is published every Thursday and delivered free of charge by email to over 33 000 health professionals.

Please consider completing the form below. The information you supply is optional and will only be used to compile a demographic profile of our subscribers. Your personal details will never be shared with a third party.

Thank you for taking the time to complete the form.