Dr Graham Howarth | Head | Medical Services – Africa | Medical Protection Society (MPS) | mail me |
South Africa’s third wave of COVID-19 saw healthcare professionals put in tragic circumstances where they must, in some cases, choose which patients to try and save. Effectively who lives and who dies.
For healthcare professionals forced to make unenviable decisions about how to allocate clinical resourcing, this trauma is sadly compounded by the potential risk of being prosecuted for unlawful killing after being forced to make such decisions.
The factors leading to this situation are many and will no doubt be debated throughout and beyond the current stage of the pandemic. However, for healthcare professionals who are thrust into this position, the need for protection from potential prosecution is becoming more urgent each day.
Immense mental and emotional strain
Reports have emerged in recent weeks of hospitals in Gauteng that were so overwhelmed that healthcare professionals are having to choose which patients will benefit from beds, ventilators and oxygen. Doctors have anonymously stated that hospitals have been forced to turn patients away from ICU beds.
Similar news emerged of the immense mental and emotional strain on front line healthcare professionals.
While Gauteng was the pandemic’s epicentre at time of writing, the same challenge will likely be felt by healthcare professionals across much of South Africa before the current wave recedes.
We have warned since the pandemic’s first wave that healthcare professionals who are forced, by scarcity of clinical resources, to make life and death decisions are potentially vulnerable to legal challenges.
Last year, almost one in three doctors were either concerned or extremely concerned about facing an employer, criminal or HPCSA investigation for making a decision to withhold or withdraw life prolonging treatment, such as oxygen or ventilation. An even higher degree of concern was felt among certain specialties, such as anaesthetists and emergency medicine, where around one in two practitioners were concerned or very concerned about being investigated.
This fear is still present and may even be increasing. During a recent our webinar on the subject we asked attendees whether they were concerned about the potential legal consequences following a decision to withhold or withdraw life-sustaining treatment, due to capacity and resource constraints, during the pandemic.
Concerningly, of the nearly 300 respondents, 92 percent replied yes. While not a scientific result to the extent of previous surveys, the result of this poll demonstrates the extent of the profession’s anxiety on the matter.
The risk of unreasonable regulatory and criminal charges
Plainly, no healthcare professional should be above the law and, in cases of wilful or intentional criminal harm, or reckless misconduct, it is absolutely right that proportionate sanctions be applied.
However, the vast majority of healthcare professionals want the very best for their patients and are doing the best they can in especially challenging circumstances to ensure patients infected with COVID-19 get the best treatment possible. It cannot be right that doctors already under immense pressure also potentially face the risk of unreasonable regulatory or criminal charges due to circumstances imposed on them by the pandemic.
So, what changes are needed to ensure healthcare professionals can provide the best possible care without fear of unreasonable prosecution?
There must be a reassurance from both regulatory and prosecutorial bodies that they will exercise restraint when investigating and prosecuting healthcare professionals working in such a resource constrained environment.
No guidelines to refer to when making COVID-19 difficult decisions
Last year we called upon the Health Professions Council of South Africa (HPCSA) and Public Prosecutors to reassure healthcare professionals that they would exercise such restraint.
In response to this call, the HPCSA later clarified that complaints against doctors would be reviewed in the context of the conditions under which they are working. While this was a welcome step in the right direction, healthcare professionals remain potentially vulnerable to criminal charges and, given the gravity of the situation in this third wave, this reassurance must be supported in two key areas.
Firstly, the commitment to exercise restraint must be matched by Public Prosecutors. It is unreasonable for healthcare professionals already working under immense pressure to make heart-rending clinical decisions based on the hope that courts or Public Prosecutors will treat them favourably and protect them in future if their decisions and actions are challenged.
Secondly, there must be concrete and widely accepted guidance for healthcare professionals who are forced to make such decisions. Last year we called on the HPCSA to urgently clarify what guidelines healthcare professionals should follow when making decisions about resource allocation during the COVID-19 pandemic.
Despite the immense challenge being faced during the third wave, healthcare professionals still have no national guidelines, endorsed by the HPCSA, to refer to when making such difficult decisions.
The HPCSA’s booklet 7, entitled Guidelines for the Withholding and Withdrawing of Treatment refers to national criteria that would need to be agreed upon by the expert professional bodies in the relevant speciality, as well as the HPCSA.
Since the publication of this booklet in 2016, we are not aware of any subsequent comment from HPCSA to initiate putting such guidelines in place.
The Critical Care Society of Southern Africa (CCSSA) has produced guidance to support professional decision making in difficult rationing circumstances. This guidance is well-informed and many healthcare professionals will no doubt find it useful.
However, with so many fearful of regulatory and criminal recrimination, healthcare professionals need clear guidance that is supported by their regulatory body.
We have called on the HPCSA to either support the CCSSA guidance, or to issue its own guidance outlining its view as regulator. Such guidelines are needed now more than ever to enable doctors to focus on their patients with less fear of legal recriminations.
More robust assurances from prosecutors and regulators, along with widely accepted guidance, are urgently needed. However, even these steps would only go so far to protect healthcare professionals.
Crucially, and perhaps most challengingly, legislation could be considered to be part of the solution. At present there is no overarching law that protects healthcare professionals if they are forced to make a decision about withholding or withdrawing life prolonging treatment, because of a lack of clinical resources.
Guidance and reassurances do not provide a guarantee of legal protection and would be of little comfort to someone forced to defend a clinical decision to allocate a ventilator or a scarce supply of oxygen in a life or death situation. A clear statement of law would be helpful.
Protecting healthcare professionals from legal challenges
Earlier this year, we wrote to the Minister of Health calling for urgent legislation to protect healthcare professionals from legal challenges related to clinical resourcing decisions they may have to make during the crisis. Such a law would enable healthcare professionals to know they are legally protected – with a statutory defence – when making such decisions.
To reiterate, no healthcare professional should be above the law. The legislation we proposed would only apply to decisions made in good faith, in circumstances beyond a healthcare professional’s control and in compliance with relevant guidance – it would not apply to wilful or intentional criminal harm, or reckless misconduct.
With healthcare professionals across South Africa expected to face the immense burden that their colleagues in Gauteng are facing now, the need to care for those who care for us is more urgent than ever.
