Legal health expert Elsabé Klinck has drafted
a document on the medico legal consequences of doing elective surgery during
the lockdown period. The document was made available to SAPPF members. The document concludes that, legally, it would
not be advisable or ethical, to, continue with any elective procedure in terms
of the COVID-19 regulations.


1.    Introduction

Although South Africa has seen an increase in Covid-19 cases, and has been in
Lockdown since 27 March 2020, and under physical distancing rules since 15
March 2020, there are still instances of healthcare in the ordinary sense of
the word being rendered. Below are the legal obligations of practitioners, and
the corresponding liability that would ensure should these obligations not be
met.

2.    The Disaster
Management Act, 2002 and Regulations published thereunder

A national disaster was declared in terms of section 27 of the Disaster
Management Act (DMA). Section 27(2) empowers regulations to be made on a number
of matters, including the release of national government resources, personnel
of the state to “render emergency services”, emergency procurement and “any
other steps necessary to prevent an escalation of the disaster, or to
alleviate, contain and minimise” its effect.

Pursuant to this statutory mandate, and apart from regulations relating to
travel and the closure of facilities, a set of general regulations were
released on 18 March 2020, and, on 23 March the so-called lockdown regulations.

The consolidated set of emergency regulations contain the following:

11B. (1) (b) During the lockdown, all businesses and other entities shall
cease operations, except for any business or entity involved in the
manufacturing, supply, or provision of an essential good or service, save where
operations
are provided from outside of the Republic or can be provided remotely by a
person from their normal place of residence.

An ‘essential service” is defined in regulation 11A, as the meaning attributed
to it in the Labour Relations Act, 1995, namely:


“essential service”
means—

(a) a service the interruption of which endangers the life, personal
safety or health of the whole or any part of the population

Therefore, only health services necessary for the protection of life or the
health or part of the population would be permissible under the Regulations.
Elective surgeries therefore can, be definition not continue and all such
business activities are subject to the lockdown. Only services that can, in
terms of regulation 11B(1)(b) be rendered remotely, can be done in that manner.
Surgery cannot be rendered in this manner.

Regulation 11G makes the seriousness of contravening regulation 11B(1)
abundantly clear, and it is know that the state is not hesitating in arresting
and prosecuting persons found to contravene the law:

11G. Offences and penalties.—For purposes of this Chapter any person who
contravenes regulation 11B (1) and (4), shall be guilty of an offence and, on
conviction, liable to a fine or to imprisonment for a period not exceeding six
months or to both such fine and imprisonment.

Therefore, not only is it prohibited to continue running one’s practice as
before (i.e. including elective cases, etc.), it is a criminal offence to do
so.

3.    The National
Health Act, 2003 (NHA)

The December 2017-Regulations on Notifiable Medical Conditions (NMCs) in terms
of  which Covid-19 cases, and all
contacts of a suspected case, have to be reported, are issued in terms of the
NHA. Of relevance in the current situation is the following, namely that apart
from reporting any NMC:

8(1) A health care provider must –  … (b) adhere to national
department guidelines on the surveillance and control of notifiable
medical conditions.
By letting a patient coming for elective surgery into the hospital setting, and
by using scarce resources, e.g. ventilators, should something go wrong during-
or after an elective procedure, the practitioner would not be adhering to
national guidelines relating to the control of the NMC. Under this regulation,
a failure to adhere to it could render a person is “guilty of an offence and is
on conviction liable to a term of imprisonment not exceeding 10 years, or
imprisonment and such fine as determined by a court of law.”

Section 20(3) of the NHA is also relevant:

Subject to any applicable law, every health establishment must implement
measures to minimise— (a) injury or damage to the person and
property of health care personnel working at that establishment; and
(b) disease transmission.

As it is known that older patients, and those with co-morbidities, including
those who are immune-compromised, are more vulnerable to the virus, and as the
full extent of the pandemic in South Africa is not yet known, it would be
virtually impossible to protect, or minimise risk of injury to elective
procedure patients. A practice, which is also a “health establishment”, and a
hospital would not be able to fulfil these duties under circumstances of
elective procedures. Not taking steps that are reasonable to protect a person
against such injury or disease transmission by one’s own actions could, of
course, lead to delictual (malpractice) liability.

A further really important matter relates to the 2012 Regulations under the NHA
relating to Blood and Blood Products. Rational use of blood is a critical
principle in this, but in the time of a pandemic, where all resources will be
scarce, the potential use of blood in elective cases where an emergency may
develop, would be a further contravention of the law.

4.    The Occupational
Health and Safety Act,1993 (OHSA)

The OHSA sets out the duties of employers towards their employees (e.g. a
hospital towards theatre staff and a surgeon towards an assistant), as follows:

8. General duties of employers to their employees.—(1) Every employer
shall provide and maintain, as far as is reasonably practicable, a working
environment that is safe and without risk to the health of his employees.
(2) Without derogating from the generality of an employer’s duties under
subsection (1), the matters to which those duties refer include in particular—
(b) taking such steps as may be reasonably practicable to eliminate or mitigate
any hazard or potential hazard to the safety or health of employees, before
resorting to personal protective equipment;

( f ) as far as is reasonably practicable, not permitting any employee to do
any work or to produce, process, use, handle, store or transport any article or
substance or to operate any plant or machinery, unless the precautionary
measures contemplated in paragraphs (b) and (d), or any other precautionary
measures which may be prescribed, have been taken;

(h) enforcing such measures as may be necessary in the interest of health and
safety;
There are also duties for the self-employed (e.g. anaesthesiologists and
surgeons), and duties of the above employers towards non-employees:

9. General duties of employers and self-employed persons to persons other than
their employees.
(1) Every employer shall conduct his undertaking in such a manner as to ensure,
as far as is reasonably practicable, that persons other than those in his
employment who may be directly affected by his activities are not thereby
exposed to hazards to their health or safety.
(2) Every self-employed person shall conduct his undertaking in such a manner
as to ensure, as far as is reasonably practicable, that he and other persons
who may be directly affected by his activities are not thereby exposed to
hazards to their health or safety.

The above is clear:

In non-emergency cases, and in not being required under the DMA to treat
Covid-19 or suspected Covid-19 cases, can one eliminate the risk of an elective
patient contracting the condition at a health facility, or before, during or
after an elective procedure? Yes, one can. And the way in which a medical
practitioner can do this, is by cancelling elective procedures as reasonable
step being taken under the OHSA’s legal obligations on employers and the
selfemployed towards others, whether they are patients, visitors or
accompanying persons, colleagues, or staff.

5.    Conclusion

Apart from the delictual law (malpractice) risk one faces should one’s decision
to do an elective case lead to harm (e.g. not only in the patient contracting
the virus, but in the effect of the pandemic causing an inability to provide
the patient with, for example, an ICU bed, a ventilator or life-saving blood),
the are numerous criminal sanctions that accrue as a result of contravention of
the DMA Lockdown Regulations, the NHA and the OHSA.

It is our conclusion that, legally, it would not be
advisable or indeed ethical, to, given the legal framework, continue with any
elective procedure.