Strong warning from SAMA on criminalisation of medical decisions

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The SA Medical Association has warned of "immense knock-on effects" to society if doctors fear that their medical judgements may be criminalised, despite them acting on the basis of "reasonable and good intent", writes MedicalBrief.

SAMA said in a statement that such a criminalisation of medical practice does not prevent human error, and that a transparent, fair, and consistently applied process must be used to investigate medical errors, and to respond accordingly to the results. It was responding to recent developments where doctors have been arrested and summoned to appear in court, without proper medical investigations first proceeding these events.

SAMA recommends:

Opposing the criminalising medical judgement;
Opposing the criminalising of medical decisions, including a doctor’s variance from guidelines and standards;
Implementing action plans to alert leaders, elected officials, and the media about the detrimental effects on healthcare that result from criminalising medical decision making;
Supporting doctors’ right to professional autonomy and self-regulation;
Developing a culture of shared accountability and leadership; and
Developing a framework to be utilised in future to protect doctors and their patients.

SAMA said that doctors took a sacred oath to “first do no harm” and that understood the pain of losing a loved one. "Doctors too, are traumatised by the loss of a patient," it noted.

"The mandate of the medical profession is to intervene in the natural course of a disease or trauma in the best interests of patients. With any form of intervention, especially those involving surgery, the patient (or family or society) agrees to that their doctor will perform a necessary controlled injury to the body, with the aim of producing a cure. The potential risks are carefully weighed against the benefits and found to be acceptable to the patient, guardian, and society at large.

"For this benefit to society, the State concedes to suspend the usual laws that criminalise one person inflicting physical injury on another, on the basis of reasonable and good intent. This transaction of reasonability is what makes the practice of medicine possible.

"But should this transaction of reasonability not be present,= and doctors start to feel either unsafe or that the potential for a possible adverse outcome may constitute an unavoidable risk to themselves, or if they feel that there is a significant risk of criminal charges being laid, despite following accepted practice, the knock on effects are immense."

They would influence the decision of prospective and current doctors to either enter or stay in the medical profession. There would be a "significant danger" that doctors would become risk averse and avoid intervention, resulting in life-saving procedures being withheld, as well as "excessive diagnostic interventions and an increase in the cost of healthcare"

It would also mean "the potential refusal of doctors to provide interventions when necessary. This type of healthcare risks doctors becoming paralysed in their decision making."

SAMA emphasised that doctors who committed criminal acts which are not part of patient care had to remain liable to criminalisation, as are all other members of society. "Serious abuses of medical practice must be subject to the law, usually through professional regulatory processes."

SAMA noted that countries such as the United Kingdom classify a separate level of Gross Negligence which implies a severe deficiency in the expected level of care provided by a doctor. However, events that cause, or may cause, patient harm should be reported promptly and investigated thoroughly using established techniques to identify all possible causes and contributory factors.

"Medication facilities, risk management, patient factors and organisational leadership are all partially accountable in determining whether negligence has taken place and to help determine the appropriate actions to help prevent further human error and ensure safe patient care," SAMA said.


Full SAMA media release


See also from MedicalBrief Archives:


Murder of charged anaesthetist brings pressure for legislative change


Munshi: Reflecting on a tragedy


Murder of Munshi: HPCSA calls on government not to ‘criminalise medicine’


Prosecuting healthcare professionals for culpable homicide – who benefits?


ConCourt ruling: Conviction overturned – but what now for the profession?


Being a doctor is a mug’s game in SA


Legal ‘jumble’ behind gynaecologist’s 5-year jail sentence


Gynaecologist’s jail sentence for negligence a worrying precedent — SASOG

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