A “massive engagement between all parties” which would include the NPA, the HPCSA and the doctor groups, must be made to close the loop and implement the necessary administrative and legislative changes to address the prevalence and severity of the criminalisation of medical errors.

“The net negative effect of doctors being found guilty of manslaughter or murder is that doctors will stop doing interventional procedures and become a risk averse profession,” Dr Mark Human, SA Medical Association (SAMA) Human Rights, Law and Ethics Committee chair, warned during the association’s recent virtual conference.

Accountability, he acknowledged, is paramount, but accountability has many different spheres: “In the UK, for example, they distinguish between negligence and gross negligence – 2nd, 3rd, 4th degree negligence, which can be from simply forgetting to prescribe something to amputating the wrong limb!”

Negligence, MPS head of African services, Dr Graham Howarth agreed, was the problem threshold of criminal accountability in South Africa: “Things go wrong on a daily basis, it’s part of the human condition. A doctor is negligent inadvertently not on purpose, an oversight, not something active, but can be held criminally liable for that mistake.”

In repeating SAMA’s call for a meeting of all parties, including the NPA and the HPCSA, to address and resolve these uncertainties, Human made four recommendations that should be considered when this transpires, namely:

·         Creation of a No-Fault Compensation Fund

·         Creation of an Independent Patient Complaints Agency

·         Formalisation of Peer Review processes

·         Make Mediation Mandatory

“Patients have no voice. This would add impetus. Forming a patient agency would give civil society a voice to apply pressure to change this,” said Human.

Peer review, he added, now had to be done by people “who are really important”, relevant – not, for example, a panel of GPs dealing with an orthopaedic issue, or worse still, an “HPCSA panel of lawyers and accountants!”

Formalisation of the peer review processes, said Human, should take place under SAMA: “We need to look after our own colleagues, what is good and what is bad – a colleague making the same mistake…”

And on making mediation mandatory: “We must stop fighting each other!” he stressed, expressing the need for all parties to sit down together to resolve the issues at hand.