'Urgent legislation' call to protect doctors at legal risk over COVID-19 decisions

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TheMedical Protection Society has urged theSouth African government to introduce COVID-19 disaster legislation to protect healthcare professionals from legal challenge relating to clinical resourcing decisions they may have to make during the crisis.

The call follows on the heels of a similar campaign by a coalition of influential medical and health organisation in the United Kingdom, calling for emergency legislation for protection from “inappropriate” legal action over critical COVID-19 treatment decisions made amid the pressures of the pandemic, writes MedicalBrief. That campaign, co-ordinated by the MPS, and included the British Medical Association and Doctors’ Association UK, the Royal College of Surgeons of Edinburgh, the Royal College of Surgeons of Edinburgh, the British Association of Physicians of Indian Origin and Medical Defence Shield.

MPS – which supports over 30,000 healthcare professionals in South Africa – said in a statement that many healthcare professionals are concerned about having to make extremely difficult decisions on how limited resources are allocated and feel vulnerable to the risk of prosecution for unlawful killing.

Dr Graham Howarth, head of medical services – Africa at MPS, said: “Doctors have a range of guidance they can refer to on administering and withdrawing treatment, whether it be from the Health Professions Council of South Africa (HPCSA), their employing hospital, specialty society or a local ethics committee. The Critical Care Society of Southern Africa has also published guidelines dealing with the allocation of scarce resources for situations in which critically ill COVID-19 patients require ICU admission. However, while this guidance is incredibly valuable, it neither provides nor claims to provide legal protection. It does not provide a clear statement of law.

“As a result, not only might a huge humanitarian burden be placed on doctors that may cause moral injury and long-term psychological damage, but they also face the risk of personal accountability if and when legal challenges arise.

“We are calling on the Government to urgently consider introducing legislation or regulations as part of the disaster management programme in South Africa which would enable healthcare workers to know they are legally protected – with a statutory defence – when making difficult decisions in very challenging circumstances.

“Let us be clear – healthcare professionals should not be above the law, and the legislation we propose should only apply to decisions made in good faith, in circumstances beyond their control and in compliance with relevant guidance – it would not apply to wilful or intentional criminal harm, or reckless misconduct.

“We appreciate that given the Constitution the introduction of such legislation may indeed be complex, and the Disaster Management Act may be the best place for this provision to sit. Legislation to protect doctors during the pandemic is not without international precedent. In New York state, for example, The Emergency Disaster Treatment Protection Act grants temporary immunity from civil and criminal liability to New York healthcare professionals for the purpose of ‘promoting the public health, safety and welfare of all citizens’ during the state of emergency there.

“We do not underestimate how difficult this issue is. The range of ethical and legal challenges that have and will be been raised by this pandemic will involve difficult discussions over time including consideration of a wide range of different perspectives. In the meantime, this crisis is upon us and healthcare professionals need support now.”


TimesLIVE reports that in December, as COVID-19 cases escalated in the Western Cape and hospital beds ran out, public sector doctors were forced to make life-and-death decisions.

The report notes that at the time, they had to apply strict criteria which meant that some COVID-19 patients were not admitted to intensive care units (ICU). To assist doctors in making decisions about who was eligible for ICU, the department had established ethics committees to support the clinical decision-making.


Full TimesLIVE report (Open access)



See also from MedicalBrief archives:


UK coalition seeks emergency indemnity over COVID-19 treatment decisions


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