Urgent call for legislation to protect doctors treating Covid-19 patients

Doctors 'face the risk of personal accountability when legal challenges arise'

Suthentira Govender Senior reporter
The Medical Protection Society has urged the government to introduce Covid-19 disaster legislation to protect health-care professionals in SA from legal challenges. File image.
The Medical Protection Society has urged the government to introduce Covid-19 disaster legislation to protect health-care professionals in SA from legal challenges. File image.

SA doctors feel vulnerable to the risk of prosecution if they have to make life-and-death decisions in the face of limited resources during the Covid-19 pandemic.

This is according to the Medical Protection Society (MPS), which represents 30,000 health-care professionals in South Africa.

The body urged the government on Monday to introduce Covid-19 disaster legislation to protect health-care professionals from legal challenges relating to clinical resourcing decisions they might have to make.

MPS said many health-care professionals were "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".

MPS's Dr Graham Howarth said: "Doctors have a range of guidance they can refer to on administering and withdrawing treatment, whether it be from the HPCSA [Health Professions Council of South Africa], 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 health-care workers to know they are legally protected – with a statutory defence – when making difficult decisions in very challenging circumstances."

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.

According to a TimesLIVE report 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.

Howarth said while health-care 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."

He said legislation to protect doctors during the pandemic is not without international precedent.

"In New York state, for example, the Emergency or Disaster Treatment Protection Act grants temporary immunity from civil and criminal liability to New York health-care 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 health-care professionals need support now."


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