Understanding your legal and professional responsibilities

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Because the practice of medicine is so intimately concerned with people’s bodies, personal vulnerabilites and well-being, it is subject to legal and ethical restrictions, all of which have evolved or been designed to protect patients’ interests.

They constrain healthcare practitioners to behave competently and ethically, and to conduct themselves with probity. Although in many respects intertwined, there are three distinct sources of legal and ethical principles that inform medical practice:

• The Constitution, and all the statutes and regulations stemming from it that embody its principles

• Case law

• The Health Professions Council of South Africa, which is mandated to set and maintain standards.

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Under the Constitution, all citizens enjoy certain rights, and – as a doctor – you have a responsibility to ensure that those rights are respected

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Patients’ constitutional rights

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The Constitution is the supreme law of the Republic. Therefore all statutes and conduct must support and reflect its principles and aims. Under the Constitution, all citizens enjoy certain rights, and – as a doctor – you have a responsibility to ensure that those rights are respected; patients also have responsibilities, which are set out in the Patient’s Charter. The Patient’s Charter is an explicit statement of the rights and responsibilities implied by the Constitution.

 

 

Patients’ rights include:

• “A healthy and safe environment

• Participation in decision-making

• Access to health care services which include:

  • Receiving timely emergency care

  • Treatment and rehabilitation

• Confidentiality and privacy

• Informed consent

• Refusal of treatment

• Be referred for a second opinion

• Continuity of care

• Complain about health services.”

 

The Promotion of Access to Information Act of 2000, for example, gives everyone a right of access to their records (including health records) if they need them to exercise or protect their rights

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Patients’ responsibilites include:

• Taking care of their health

• Not abusing the healthcare system

• Providing healthcare providers “with the relevant and accurate information for diagnostic, treatment, rehabilitation or counselling purposes”

• Telling their healthcare providers what their wishes are regarding their death

• Complying with treatment

• Taking care of health records in their possession.

 

Many of the principles and ideals expressed in the Constitution have been encoded in legislation, some of which has a direct bearing on the work and business of general practice. The Promotion of Access to Information Act of 2000, for example, gives everyone a right of access to their records (including health records) if they need them to exercise or protect their rights, even if the holder of the information is a private business.

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Other statutes and regulations that may affect general practice (see Table 1) include the Children’s Act, which clarifies children’s rights and parental responsibilities; the Communicable Diseases Regulations, which set out medical practitioners’ responsibilities regarding notifiable diseases; and various regulations under the Health Professions Act governing the licensing of practices, among other things.

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Table 1: Examples of statutes and regulations relevant to healthcare

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• Abortion and Sterilisation Act 1975

• Children’s Act Regulations 2010

• Choice on Termination of Pregnancy Act 1996

• Communicable Diseases Regulations 2008

• Criminal Law (Sexual Offences and Related Matters) Amendment Act 2007

• Domestic Violence Act 1998

• Health Professions Act 1974

• Mental Health Care Act 2002

• National Health Act 2003

• Older Persons Act 2006

• Promotion of Access to Information Act 2000

• Sexual Offences Act 2007

 

Case law

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Case law – or common law – is the body of written opinions made by judges when they make their rulings. The case law with most relevance for medical practitioners is that derived from civil claims alleging medical negligence, and the most relevant of these are those that define or clarify a breach of duty of care or causation.

An allegation of negligence will only succeed if the plaintiff can satisfy the court, on a balance of probabilities, that all three of the following conditions apply:

1. the plaintiff was owed a duty of care by the defendant

2. the duty of care was breached

3. harm resulted from the breach (causation).

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It must be demonstrated that the practitioner’s actions fell short of the standards the law considers reasonable

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Assuming that the first criterion is established (which is usually the case), the plaintiff must then present convincing evidence that the healthcare professional concerned could reasonably have foreseen the consequences of his or her action and did not guard against such an eventuality; moreover, it must be demonstrated that the practitioner’s actions fell short of the standards the law considers reasonable.

The test of reasonable conduct was set out in the judgment of the 1924 case Van Wyk v Lewis, as follows:

“[In] deciding what is reasonable the court will have regard to the general level of skill and diligence possessed and exercised at the time by the members of the branch of the profession to which the practitioner belongs.”

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If a doctor’s management of a patient is considered reasonable by a responsible body of his or her peers, a court would be unlikely to find him guilty of negligence

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This means that, if a doctor’s management of a patient is considered reasonable by a responsible body of his or her peers, a court would be unlikely to find him guilty of negligence.

It does not always follow that a breach of the duty of care results in harm to a patient. In fact, there are many instances in which the outcome would have been the same for the patient whether the breach of duty had occurred or not. For example, a delay in diagnosing an already untreatable tumour is unlikely to affect the outcome for the patient. This is where the testimony of expert witnesses can be crucial for arguing the causation element of a claim. What it often comes down to is if the judge prefers one expert’s opinion over another’s.

The plaintiff’s case will only succeed if the judge finds that a breach of duty did result in harm to the patient.

The number and value of clinical negligence claims brought in South Africa has been rising rapidly in recent years. In MPS’s experience alone, the estimated value of reported claims rose by 132% between 2008 and 2010. Most of these increases have been seen in the riskier specialties such as obstetrics, spinal surgery, neurosurgery and neonatology.

In addition to facing a civil claim in negligence, doctors whose practice falls short of acceptable standards may face disciplinary action by the Health Professions Council.

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The role and powers of the Council

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The Health Professions Council of South Africa (the Council), is mandated, under the Health Professions Act 56 of 1974 to regulate registered healthcare practitioners. The Medical and Dental Board regulates medical and dental practitioners.

It does this by:

• setting and maintaining standards of training and practice for healthcare professionals, and disciplining those who fall short of those standards, if necessary

• setting and monitoring mandatory requirements for the continuing professional development of all registered practitioners and ensuring that training institutions adhere to the Council’s standards

• setting professional and ethical standards and publishing guidelines for practitioners to follow.

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The Ethical Rules cover almost every aspect of practice, from advertising and financial probity to patient confidentiality and relationships with professional colleagues

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The core document that all medical practitioners should be aware of is the Ethical Rules of Conduct for Practitioners Registered Under the Health Professions Act, 1974. It contains rules (not just guidelines) that medical practitioners are expected to adhere to (see Table 2 hereunder). If they don’t, they may be subject to discipline by the Council.

The Ethical Rules cover almost every aspect of practice, from advertising and financial probity to patient confidentiality and relationships with professional colleagues. These somewhat tersely stated principles have been further expanded into a series of 16 guidance booklets (see the list in Appendix 1), which practitioners can use to inform their practice and thus ensure that they are operating within the bounds of the Rules.

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If nothing else, all medical practitioners should read Guidelines for Good Practice

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If nothing else, all medical practitioners should read Guidelines for Good Practice, which sets out the 13 core values that should govern all medical professionals’ practice, and against which their conduct will be measured in the event of a complaint to the Council.

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Table 2: Main responsibilities of health practitioners

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A practitioner shall at all times

• act in the best interests of his or her patients;

• respect patient confidentiality, privacy, choices and dignity;

• maintain the highest standards of personal conduct and integrity;

• provide adequate information about the patient’s diagnosis, treatment options and alternatives, costs associated with each such alternative and any other pertinent information to enable the patient to exercise a choice in terms of treatment and informed decision-making pertaining to his or her health and that of others;

• keep his or her professional knowledge and skills up to date;

• maintain proper and effective communication with his or her patients and other professionals;

• except in an emergency, obtain informed consent from a patient or, in the event that the patient is unable to provide consent for treatment himself or herself, from his or her next of kin; and

• keep accurate patient records.

 

(HPCSA, Ethical Rules of Conduct for Practitioners Registered under the Health Professions Act, 1974 (as amended by Government Notice No. R 68 of 2 February 2009), para. 27a.)

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The Medical and Dental Board of the Council may discipline a doctor for infringing any of the ethical rules, and lists the following examples on its web page:

• Unauthorised advertising

• Overservicing of patients

• Criminal convictions

• Improper relationships with patients

• Improper conduct of practitioners

• Operational procedure without patient’s permission or consent

• Disclosure of information in regard to patient without his/her permission

• Incompetence in regard to treatment of patients

• Excessive fees charged/overcharging

• Insufficient care towards patients

• Racial discrimination

• Rude behaviour towards patients

• Prescriptions to already addicted patients

• Perverse incentives and kickbacks.

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The Board has the power to impose a wide array of penalties on doctors whose professional conduct is found wanting

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The Board has the power to impose a wide array of penalties on doctors whose professional conduct is found wanting. The most severe is to have the doctor’s name removed permanently from the register, but other sanctions include suspension from practice and fines (see Table 3 for examples of transgressions and the penalties they incurred).

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Table 3: Examples of cases of unprofessional conduct decided in 2011

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• A doctor was suspended from practice for 12 months for failing to provide follow-up care following an invasive procedure or to arrange for a postmortem examination following an unnatural death.

• A doctor who provided substandard care to a critically ill patient was fined R10,000.

• A fine of R10,000 was imposed on a doctor for disclosing confidential information without the patient’s consent.

• Another doctor’s practice was suspended for 12 months (with a further four-year suspension suspended provided he is not found guilty of a similar offence during that period) for entering into a sexual relationship with one of his patients.

• A doctor who employed a locum who was not registered with the HPCSA and also fraudulently claimed for professional services not actually rendered had his practice suspended for three years.

• The practice of a doctor who worked as a locum in private practice while his registration limited him to work in the public sector under supervision was suspended for 12 months.

• A doctor found guilty of indecently assaulting and sexually harassing a patient was removed permanently from the register.

 

(HPCSA, Finalised Matters January to December 2011)

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