Thursday, 11 August, 2022
HomeMedico-Legal AnalysisSA doctors victimised in a ‘public drama’ for perceived medical errors

SA doctors victimised in a ‘public drama’ for perceived medical errors

South African doctors are “far too often” victimised for perceived medical errors in a publicly played out drama, says Prof Gert Saayman, former head of Forensic Education at the University of Pretoria.

Saayman said there  often was “no clear evidence” that there was an error, with the “drama playing out in the public arena”, forcing colleagues into acting hesitantly or simply not engaging for fear of chastisement, censure or prosecution, writes Chris Bateman in Daily Maverick. Saayman – veteran of some 20,000 death investigations and post-mortems –was speaking at a webinar organised the Medical Protection Society (MPS), which provides legal indemnity cover for doctors in several countries, including South Africa.

While South African doctors remain in a legal wilderness around agonising end-of-life decisions, rapid, science-fiction-like advances in technology further complicate matters. The new technological challenges include online end-of-life directives and suicide notes, remotely controlled computer-driven pacemakers, pigs’ hearts, and most dramatically, neuro-links between human brains and computer circuitry (Elon Musk-driven).

He said cryogenics and suspended animation were already modern-day realities, as was the first human head transplant on corpses, (smaller rats’ heads transplanted on to the necks of bigger recipients lived for 36 hours).

Synthetic biology – the application of engineering principles and ideology to the construction of biological organisms with the intent being the creation of new life forms to improve functionality (rather than modification of existing creatures) – had “mind-blowing implications”, especially in the context of death, Saayman said.

The author and co-author of some 50 peer-reviewed global publications in forensic medicine and science, Saayman was a SAPS, National Prosecuting Authority (NPA) and Department of Justice adviser and has served as an expert witness in scores of high-profile cases.

SA doctors honour ‘Do Not Resuscitateʼ

In one of four fascinating anonymous polls of his doctor audience, a full 84% of respondents said it was “very important” for them to have clear, formal guidelines and/or legislation regarding end-of-life decisions. These included withholding treatment, assisted dying and/or advance directives. Only 14% said it was “moderately important” to them, with 6% regarding it as “not important”.

In a poll on whether they would honour a “Do Not Resuscitate” directive found on an incapacitated patient, (either legally or ethically), 53% of the respondents answered “yes” and 18% “no”, with 29% uncertain. Saayman juxtaposed this with an identical poll conducted in the US a few years ago in which respondents were split 50/50, “with no fence-sitters”.

Asked whether they would honour the express written and validated confirmed instruction (ie that he or she not be resuscitated or given lifesaving treatment) of a patient found in a comatose state as a result of suicidal self-harm, 56% said “yes”, 32% “no” and 12% were uncertain.

Saayman highlighted suicide in SA, saying it was growing proportionately faster than homicide, even before the COVID-19 pandemic struck in March 2020.

“It’s a tragedy and something we can’t afford. We have the sixth- or seventh-highest incidence of suicide in the world, mostly by young, economically active people. This could all be legislated and provided for,” he said.

In his experience, suicide was “generally not impulsive”, with previous attempts and long-term planning more common, rebutting the frequently held belief that suicidal people were “not of sound mind”.

Plenty of viable organs, little permission

The outcome of his fourth audience poll was even more intriguing: Should the instruction of an immediate family member not to use or remove tissue or organs from a confirmed donor be upheld? A full 72% of respondents answered no, 19% yes, and 9% were uncertain.

Saayman said this revealed “very liberal attitudes” among his audience.

“I’m not an ethicist or a lawyer, but we simply have to respect the fundamental principle of autonomy — it’s not a reason not to honour the deceased’s wishes just because they’ve died,” he said.

He urged doctors to conduct end-of-life planning with and on behalf of their patients to establish a clear legal policy directive by which they and their patients could act, while enrolling colleagues to witness this in writing.

As to when this should take place he said preferably before a patient was terminal

The same held true for organ and tissue donation, with such discussions common in the US, but very rare in South Africa, where the burden of life-ending trauma and family resistance to donation was frightening. Some 70,000 to 80,000 people in South Africa died unnatural deaths annually, creating an almost globally unmatched reservoir of viable organs and tissue, with procurement dramatically reduced by cultural and religious barriers as understandably hesitant transplant coordinators came up against reluctant relatives. Again, legislative support was urgently needed.

SAʼs miserable legislative void

Since the late 1970s, when the concept of “Do Not Resuscitate” was first raised in SA, the issue had remained problematic, with spurts of progress made by top ethicists and the SA Medical Association (SAMA), and a well-thought-through and substantive 1999 bill to regulate End-of-Life decisions eventually shelved.

In 2019, the National Health Amendment Bill was published with input from nationally respected Stellenbosch University ethicist Professor Willem Landman, but input from his landmark tome, entitled End-of-Life Decisions, Ethics and the Law, was excluded.

In the same year, a private MPʼs proposed bill amending the 2003 National Health Act definitions and providing for the legal recognition of a durable Power of Attorney for healthcare and a Living Will, while “not as encompassing as the previous bid, but on point”, came to nought. It would have allowed for a designated person to speak on behalf of an incapacitated patient.

Although lapsed, the bill was still available online, with links, and was currently, “as good as it gets for a guideline to a living will”, Saayman advised.

While he commended SAMA for its guidelines on withholding treatment, he strongly criticised the Health Professions Council of South Africa (HPCSA) for its lack of action – in flagrant violation of its credo of “guiding the professions and protecting the public”.

Likening doctors to expert cowboys wrangling a huge beast to the ground, he urged them to become activists for the cause.

“We’ve stood outside this arena for too long. It’s time to pressure our professional bodies. There are wonderful texts to guide us, we have superb ethicists, lawyers and human rights people – it’s time,” he said.


Daily Maverick article – Legislation on end-of-life decisions in South Africa ‘long overdue’ (Open access)


See more from MedicalBrief archives:


Sean Davison: ‘A victim of a failure of SA’s legal process’


Euthanasia: HPCSA says applicants exaggerating their symptoms


Doctor and patient in new SA bid to legalise euthanasia


Assisted death must be decriminalised – SA mental health practitioners


Bill seeks to provide legal certainty over 'living wills'


Pay-out after woman is kept alive for two years despite 'living will'


Following sharp decline in donations, Eye Bank Foundation of SA joins forces with Bone SA



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