Legal experts and medical professionals have slammed the stream of sick notes being produced in South African courtrooms where a pattern has emerged over the years of key witnesses presenting dubious “medical certificates” in an apparent attempt to avoid taking the stand, writes MedicalBrief.
The issue has caused frustration for the judge and evidence leaders at the Madlanga Commission of Inquiry into alleged police capture, and has led to a former Health Ombud calling for a review of such sick notes.
After a total of nine commission witnesses suddenly became ill just before they were due to testify and handed over sick notes to excuse themselves, former Health Ombud Malegapuru Makgoba scathingly suggested the commission “assemble a three-person group of specialists to assess these sick notes”.
The Citizen reports that the latest witness who failed to appear was Independent Directorate Against Corruption (Idac) chief Andrea Johnson, whose representative produced a “doctor’s note” to excuse her absence.
“This is one of those co-called medical certificates, the nature of which I’ve previously said are useless, in the sense that they give no information whatsoever. It’s useless,” said a clearly outraged Justice Mbuyiseli Madlanga, chair of the commission.
His frustration was based on her “certificate” lacking any details about her medical condition, but wider frustration is from an apparent established pattern by highly placed public servants who use a loophole in South African law in terms of which a patient’s medical information cannot be shared by a medical practitioner without the patient’s consent unless a court orders the practitioner to disclose such information.
This section of the National Health Act was designed with the protection of ordinary citizens in mind, but has allowed public officials to avoid being held accountable and serves as the cornerstone of the “Stalingrad” legal tactic.
It highlights a fundamental shift in the use of medical certificates in general, and has been castigated by the commission, which has seen a recurring pattern of witnesses submitting these documents to weasel out of testifying, IOL reports.
Madlanga said Johnson’s certificate failed to provide sufficient information to justify postponing her testimony and reflected “a troubling trend” of frustrating last-minute postponements.
North West businessman Brown Mogotsi previously submitted a medical certificate that simply stated “medical condition”, which Madlanga dismissed as “useless”, prompting Mogotsi to later apologise publicly and explain the nature of his illness.
Businessman Suliman Carrim also missed several scheduled appearances after citing hospitalisation.
The commission eventually ordered an independent medical assessment and warned that continued failure to co-operate could lead to criminal prosecution.
Last month, Mike van Wyk was unable to testify after reportedly being admitted to the hospital, while Crime Intelligence head Major-General Feroz Khan failed to appear after being shot in Johannesburg.
With several key witnesses submitting medical certificates only hours before they were due to testify, the commission has made it clear that vague medical notes will face increasing scrutiny as it seeks to prevent further delays.
When ‘sick notes’ make society sick
Poor record-keeping, from illegible notes to mislabelled causes of death, threatens the trust between the judiciary, the public and a profession long regarded as noble, observed former Health Ombudsman Malegapuru Makgoba in an opinion article in News24.
Mkgoba is Emeritus Professor at the College of Health Sciences, UKZN, and former Vice-Chancellor & Principal at UKZN.
He wrote that when Madlanga criticised some certificates as “useless” because they were too vague, lacked substantive detail, and gave no meaningful information regarding a witness’ actual medical condition, “and chief evidence leader Advocate Matthew Chaskalson SC called for a witness’ medical records, it raises a concern that should trouble us all, both as the public and as health professionals”.
Quality health – with quality education – is the foundation of a successful individual and a nation, the bedrock of the country’s economy, development, global comparison, competition and vibrancy of its democracy.
“In the practics of medicine, health professionals prepare medical notes that become medical records of what and how they manage patients; they also certify death certificates and provide the cause of death, and are also called upon to provide medical certificates, often referred to as ‘sick notes’.
“Medical records are important for patient safety, legal protection for patients and health professionals, insurance billing, scientific research and as the true holistic history of the patient’s journey through any health system, and should be made available to work colleagues and to the national statistics office and the judiciary, should it become necessary.
“But when lawyers, magistrates and judges lose confidence or trust in the records or certificates provided by health professionals, something profound has taken root in such a society.”
Makgoba wrote that when such records or certificates become a liability or lack credibility, “this is a clear sign or indication of poor professional standards, lack of ethics in practice, or a form of corruption within the health profession”.
This merits a review and an investigation, he suggested, and this “noble profession” should confront the scourge and re-examine the conduct of some of its professionals.
Doctors are notorious for their bad handwriting, which is nevertheless accepted and tolerated by society. But, he wrote, “how does such bad handwriting advance record-keeping in a system where record-keeping is so essential? Why does society continue to tolerate such unacceptable conduct?”
The record a health professional creates in the patient’s file belongs to the health professional, the institution managing the patient and the legal system of that society. In today’s world of so many communication technologies, the concept of poor or illegible medical records should be obsolete.
No practising health professional should be allowed to leave notes that are but records in name only, because no one can read them, Makgoba added.
Pandemic of sick notes
The recent pandemic of “sick notes” from witnesses at the Madlanga Commission is just another signal that there are problems within the profession needing to be addressed in terms of codes of practice and ethics.
“The sudden emergence of this phenomenon is not only puzzling to ordinary people but also appears to defy statistical logic and norms.
“The purpose of a medical certificate is to provide official, verified and verifiable evidence of a person’s health status, injury or illness, issued by a licensed health professional. When such certificates raise doubts or appear below professional standards, society loses trust, respect and confidence in the profession.
“It is important that all such dubious medical certificates are subjected to independent medical specialists’ review to ensure their veracity.”
He suggested that perhaps the Madlanga Commission “should assemble a three-person group of specialists to assess these ‘sick notes’”.
“These inaccuracies render these systems unreliable and ineffective. Critically, their poor quality damages the trust relationship between the judiciary and the health profession. These have the potential to bring into disrepute the health profession and affect trust between the public and the profession.
“If the health profession can correct these deficiencies, the country’s statistics, planning, and judiciary would become more reliable and efficient.”
‘Fake’ sick notes draining economy
The rash of “sick notes” at the commission has highlighted the country’s massive absenteeism problem linked to this practice, which labour experts warn is costing the economy around R9bn each year.
Labour expert Andrew Levy said despite it being a criminal offence to knowingly submit a fake sick note, this kind of crime was happening every day, countrywide, where staff produced so-called medical certificates or sick notes to bunk work.
“If you go and see a doctor when you’re not really sick, and that doctor wants to earn his fee, he will give you that document. And unfortunately, an employer can do nothing about that. It comes from the doctor.”
He said bogus doctors were also dishing out illegal sick notes without examining patients, and that it was a worldwide problem.
Another labour lawyer, Michael Bagraim – DA spokesperson of employment and labour – said he sees invalid sick notes daily, often on stolen medical pads.
“Sometimes, we find that employees actually pay genuine doctors to give them illegitimate sick notes,” said Bagraim.
“I have been through at least a dozen arbitrations where it turned out that the sick notes came from proper medical practitioners who are put under pressure by patients.”
He said he had clients who hired private investigators to follow up on sick notes and it transpired that almost 30% of the notes were invalid.
News24 article – Malegapuru Makgoba | When ‘sick notes’ make society sick (Restricted access)
The Citizen article – Nine sick notes and one frustrated judge at Madlanga commission (Open access)
The Citizen article – Fake sick notes cost South Africa R18 billion every year (Open access)
See more from MedicalBrief archives:
Why the courts are sceptical about sick notes
HPCSA investigating doctors issuing false sick notes
Regulations address sick notes issued by traditional healers
Eastern Cape doctor arrested by Hawks for fake sick notes