/ 5 November 2021

Healthcare professionals want culpable homicide laws reviewed

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Healthcare organisations representing doctors have urged the department of justice and correctional services to review culpable homicide law and its application in the health sector.

Coordinated by the international nonprofit, the Medical Protection Society, the coalition of nine organisations wrote a letter to Justice Minister Ronald Lamola asking for a review to be conducted by the South African Law Reform Commission. 

The coalition consists of: the Association of Surgeons of South Africa, the Federation of South Africa Surgeons, the Radiological Society of South Africa, the South African Medical Association, the South African Medico-Legal Association, the South African Private Practitioners Forum, the South African Society of Anaesthesiologists and the South African Society of Obstetricians and Gynaecologists.

Out of more than 500 doctors in South Africa who took part in a survey by the Medical Protection Society, almost nine in 10 (88%) said they were concerned about facing an investigation after the death of a patient during their career. About 90% said their mental health was affected by the prospect of facing a criminal investigation.

According to the coalition, there is a low threshold in South African law for blameworthiness when a patient dies while under medical care, which has resulted in errors of judgment in complex healthcare environments being criminalised, and healthcare professionals being convicted regardless of their intent.

“No clinician intentionally wants to harm a patient or have a patient die. Death and complications are hard on the treating clinician too because we want our patients to be well,” said one of the doctors who asked not to be named.

“Facing criminal charges due to a complication that happened despite my best efforts is ludicrous and I don’t want to practice in an environment where that would put me in jail.”

Although the coalition acknowledges that healthcare professionals should be held accountable, it believes that criminalising errors of judgment — particularly in the fast moving and complex healthcare environment — seems unreasonably severe. 

In 2020, the constitutional court set aside the conviction and sentence of culpable homicide against Dr Danie van der Walt, who had been found guilty after the death of a patient in 2015. The Witbank regional court ruled that he had acted negligently in the care of his patient, who died after giving birth. 

The constitutional court referred the matter to the director of public prosecutions to decide on whether Van der Walt should be re-arraigned.