Julian Botha

This communique has been prepared by medical practice legal advisor, Julian Botha*, in response to queries raised by healthcare practitioners who have been approached or who are considering volunteering their services to assist in either the public or the private healthcare sectors…

The COVID-19 pandemic is unprecedented in its scope and impact on a global scale. While every effort appears to be made by governments to stem the spread of the disease, it is ultimately the healthcare practitioner and other health workers who will be on the front lines of the battle against COVID -19. South Africa is yet to endure the full force and impact of this disease and it is reasonable to anticipate that the healthcare system in this country will be severely constrained or even overwhelmed in the coming weeks and months.

Calls for Volunteers

Calls are already being made for healthcare practitioners to make themselves available to render service in both private and public institutions. Even retired and non-practicing practitioners are being encouraged to volunteer. In deciding whether to volunteer one’s services, several important considerations must be taken into account.

Voluntary or Mandatory

Firstly, it must be emphasized that the choice to volunteer to assist is, as the word suggests, voluntary. No practitioner can be compelled or forced to assist in this crisis. In the private hospital environment, a number of hospital groups have developed, or are in the process of developing, their plans to respond to the incident. As part of this incident response, some hospital groups have already sent out requests to practitioners to volunteer their services and to confirm their availability and willingness to participate in these plans.

The efforts of private hospital groups in this regard must be commended and is in line with the social responsibility that all persons and entities have in this crisis. The correspondence to practitioners that we have had sight of in this regard confirms that their call is for volunteers to avail themselves and assist. There is no hint in the correspondence that the participation of practitioners will become mandatory. Nevertheless, rumours abound – notably that practitioners who elect not to volunteer will be forced to work in the public sector and may have their admission privileges to the private hospitals revoked. As with most rumours, there is no evidence or fact to support this.

Practitioners are not employed by the hospital group and are not subject to the control and direction of those groups. Even where there are those practitioners who are, in fact, employed by the hospital group (in other capacities), they could still not be compelled to participate as this would fall outside the terms and conditions of their employment. While the intention of the hospital group to organise the healthcare resources to which they have access is laudable, there is no authority vested in them to compel practitioners to participate. While we have not had sight of the contracts that each practitioner entered into with Mediclinic with regard to admission privileges etc, we are fairly confident that there is no provision dealing specifically with the current unprecedented situation.

With regard to the rumours that practitioners who do not volunteer from this initiative will be “co-opted” to work in the public sector, we have reviewed the provisions of the Disaster Management Act. No provision is made for such co-option or “conscription” of healthcare practitioners. These powers do not exist in the current legislation.

HPCSA

The operation of the Health Professions Act and Regulations as well as the Ethical Guidelines of the HPCSA have not been relaxed. On 26 March 2020, the HPCSA did send out a communique to practitioners acknowledging the COVID-19 crises and drawing attention to the HPCSA Guidelines on Telemedicine. Importantly, this communique stated that the application of this Guideline would only be applicable during the COVID-19 crisis. The HPCSA concluded by reminding practitioners to adhere to the provisions of Ethical Rule 27A that places an obligation on every medical practitioner to act in the best interests of his or her patients.

Scope of Practice

Regulation 14(1)(a) of the Regulations Relating to the Specialities and Subspecialities in Medicine and Dentistry states that a registered specialist must confine their practice to the speciality in which s/he is registered. Ethical Rule 21 states that a practitioner must perform professional acts for which s/he is adequately trained and sufficiently experienced and under proper conditions and in appropriate circumstances. The Rule does state that this applies except in an emergency. The leads to a logical interpretation that it may be permissible for specialists to practice outside their registered field of speciality under emergency circumstances. It is reasonable to assume that the current COVID-19 crises would be considered an emergency and it is unlikely that volunteering practitioners would be hauled before the HPCSA for acting outside of their registered scope of practice. However, this remains an assumption and the HPCSA has, to date, been silent on this issue.

Safety of Practitioners

The personal safety of practitioners is of paramount importance. Before deciding to volunteer consideration must be given to factors such as age, any relevant underlying medical conditions (such as a compromised immune system). Should a practitioner wish to participate, certain assurances would be required from the healthcare institution. For instance, the provision of adequate protective equipment and processes for the practitioners and sufficient resources (medicines, equipment etc). A participating practitioner will still be held liable for their professional conduct, there is no relaxation of the clinical and ethical standards governing the profession, current circumstances notwithstanding.

Indemnity Cover

At this stage it is not clear whether indemnity carriers will cover practitioners who work outside of their usual scope of practice during this pandemic. All practitioners are urged to contact their individual professional indemnity insurance carrier to obtain written confirmation before deciding whether or not to volunteer.

Conclusion

Each practitioner must decide for him/herself whether or not to participate taking into consideration their personal circumstances and their ethical obligations and moral imperatives. This is the individual’s choice and must not be influenced by any other party.

* Julian Botha, Chief Legal Officer, Xpedient; and former Senior Legal Advisor, SA Medical Association (SAMA)

SOURCE: SAPPF/HealthMan