Don’t charge us for life-and-death decisions, beg SA’s frontline ...

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Don’t charge us for life-and-death decisions, beg SA’s frontline doctors

Medical body urges prosecutors to understand the pressures facing doctors who treat Covid-19 patients

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In the face of a Covid-19 surge, doctors will need to decide who gets beds and ventilators and who does not, decisions that could open them up to litigation.
PRESSING MATTERS In the face of a Covid-19 surge, doctors will need to decide who gets beds and ventilators and who does not, decisions that could open them up to litigation.
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SA’s front-line doctors fear life-and-death decisions they may be forced to make for Covid-19 patients if the pandemic reaches crisis proportions could land them behind bars.

This concern has pushed the Medical Protection Society (MPS), an international medical defence body representing medical professionals in SA, to call on prosecutors to show restraint if they are considering charges of culpable homicide in relation to patient deaths during “this unprecedented time”.

“In extreme cases doctors could have to make heart-rending decisions to withhold treatment if the demand for ventilators temporarily exceeds supply.

“Working in these especially challenging circumstances, doctors are concerned they remain vulnerable to criminal charges.

“Prosecutors must reflect fairly on the circumstances in which these decisions are made,” said Dr Graham Howarth, head of MPS’s medical services in Africa.

Doctors must be allowed to focus on providing care to patients and make clinical decisions free from fear of criminal charges, he said.

Figures presented by the health department to the portfolio committee on health last month showed that SA had about 3,216 ventilators, with most in the private sector at the time.

In Italy, medical professionals have been forced to make difficult ethical choices when the demand for medical gear outstripped supply, while doctors in New York have indicated they, too, feared they would have to make difficult decisions about who should stay on or come off ventilators.

Howarth said while the spread of the virus has been better contained in SA than other parts of the world, localised outbreaks could see demand for medical services exceed supply.

“With the virus being contained for the time being, now is the time to take action to protect health-care workers by providing clear national guidelines before pressure continues to grow,” he said.

“Prior to Covid-19, after media interest in high-profile culpable homicide cases, doctors were concerned about being prosecuted for decisions they have to make in very challenging circumstances.

In extreme cases doctors could have to make heart-rending decisions to withhold treatment if the demand for ventilators temporarily exceeds supply.
Dr Graham Howarth

“The Covid-19 crisis has brought this to the fore.”

Dr Mvuyisi Mzukwa, national vice-chair of SA Medical Association, said the prosecution of doctors in SA is a “reality”.

“Doctors are not coping well because there is limited availability of personal protective equipment, shortages of staff and health-care professionals dying from Covid 19.

“This is made worse by the fear that your clinical judgement may be challenged.”

“The virus is spreading at an alarming rate and our thought process should assume the same.

“For a game to be considered fair, its rules must be predetermined. It would be seen to be supportive of doctors to know that they can give their best shot without any legal threats,” he said.

Dr Ramlingum Naidoo, an anaesthetist, said for some doctors, including himself, the fear of death and possible transmission to families outweighed concerns about litigation.

However, Naidoo added: “This concern (about legal action) may have been relevant pre-Covid, but under the current circumstances, if the public feels the need to be litigation prone, then doctors will have to be cautious of acting upon clinical protocols or ignoring them, because they could be held liable either way.

“This defaults the clinician back to the basics of medicine, which is to do what’s is in the best interest of the patient and let the ethics deal with the consequences.” He believes the MPS’s call is “valid”.

Dr Rinesh Chetty, specialist orthopaedic surgeon and founder of Facebook group SA Doctors United, said: “With the predicted loss of life and difficult situations we will be faced with, the amount of litigation will increase and the use of premature criminal prosecution will be used as a threat on a pandemic scale.”

Bulelwa Makeke, spokesperson for the National Prosecuting Authority (NPA), said in the face of the pandemic, the body was “sensitive to the fact that it will have to be more discerning in weighing up the interest of justice and public interest in every prosecutorial decision it takes in such cases, that is, in addition to the evidentiary test (reasonable prospect of a successful prosecution), there is also — and important in this context — the public interest test.

“This will also be guided by prosecutorial directives that the national director of public prosecution (NDPP) may issue,” said Makeke.

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