The current law in South Africa dictates that to prove healthcare practitioners are guilty of culpable homicide, it must be shown they deviated from their duty of care, leading to the foreseeable death of a patient. The prosecutor additionally is required to prove both unlawfulness and negligence on the part of the practitioner. This may sound like a heavy burden of proof, but in reality it is a low threshold for criminal culpability. And one that is undoubtedly sure to unsettle healthcare practitioners in a country where inadequate infrastructure and understaffing are just two of the unfortunate circumstances almost guaranteed to culminate in inevitable errors. The two recent court verdicts in respect of healthcare practitioners in the US raise several questions. For one, the cases highlight the unjust and injurious difference between standards to which physicians are held and standards to which nurses are held. If nurses in South Africa, acting in good faith, are convicted for minor or unintentional errors – as opposed to, of course, reasonably admonished, but more importantly assisted in such a way as to prevent such errors – our already frail healthcare system is in even deeper trouble. This article by veteran journalist Chris Bateman signals a legal system in dire need of an overhaul. This article first appeared on Medbrief Africa. – Nadya Swart
US healthcare worker court verdicts – lessons for SA
By Chris Bateman
Two recent US verdicts on healthcare workers charged with murdering patients have highlighted the untenable legal situation of their South Africa counterparts.
Medbrief Africa spoke to two of South Africa’s leading experts in the medico-legal and ethical fields about lessons the verdicts may have for local doctors.
Professor Willem Landman, founding CEO of the Ethics Institute of South Africa, and Dr Graham Howarth, Africa chief for the Medical Protection Society agree; local healthcare practitioners fear practising normal medicine because of the growing tendency to criminalise unintentional error and the lack of legal clarity around the treatment of afflictions leading to death, especially end-of-life choices.
The US cases involve an award-winning ICU physician at Ohio’s Mount Carmel Hospital, Dr William Husel, and an ICU nurse at Tennessee’s Vanderbilt University Medical Centre, RaDonda Vaught.
After a lengthy trial that hinged on intent, Husel was this April acquitted of 14 murder charges arising from his administration of dozens of fatal fentanyl overdoses to ICU patients over a protracted period. Vaught on the other hand, was convicted of criminally negligent homicide and gross neglect of an impaired 75-year-old woman suffering a brain bleed. She accidentally administered a paralytic medication, vecuronium, instead of a sedative. On Friday (13 May), she was sentenced to three years of supervised probation after being struck off the nurses’ roll. As things stand, she will be a convicted felon for the rest of her life. However, the judge granted her a judicial diversion (equivalent to an appeal to another court), which could result in her conviction being dismissed after a successful probationary period.
The case hinged on her use of a computerised device that dispensed a range of drugs. Evidence was that she initially tried to withdraw Versed from a cabinet by typing ‘VE’ into its search function without realising she should have been looking for its generic name, midazolam. When the cabinet did not produce Versed, she triggered an override that unlocked a much larger swathe of medications, and then searched for ‘VE’ again. This time, the cabinet offered vecuronium.
The criminal cases took between four and five years to complete.
US nurse verdict has chilling effect
While both illustrate the trend towards criminalising healthcare workers instead of setting up systems and controls to minimise errors and abuses, the Vaught conviction and sentence have had a particularly chilling effect on healthcare workers and caused outrage among her colleagues in the US.
Says Landman, “While I don’t have all the facts in front of me, my first reaction is that in every human and/or professional practice, we admit that there are errors and abuse. It’s par for the course. But if and when that happens, we don’t abandon the practice; rather we set up systems and controls to minimise errors and abuses.”-
He believes that what was striking about the Vaught case was she was called upon to both dispense and administer drugs, which enlarged the scope for error. Even in regular, commercial pharmacies, double controls applied to dispensing, with juniors checking prescriptions with seniors.
“The question then becomes do we approach this in a litigious frame of mind or say errors happen and deal with it creatively to make sure the error isn’t repeated? We’re all trying to do our best under pressure and faults creep in, as with any system. We should say let us try and creatively do better,” he says.
Howarth adds that the fear of facing a criminal investigation was widespread among South African healthcare workers, with justifiable reason. “Sadly, yet again we see a case, (Vaught), where systemic failure seems to have played a significant part in medical error for which an individual healthcare worker is held to account.”
He notes; “Criminalising unintentional error in a fast-moving and complex healthcare environment cannot be right. As well as families losing a loved one through tragic circumstances, a healthcare worker loses their career and liberty.”
Howarth says the fear of criminal charges created a culture of blame and fear that impeded learning from mistakes. “Indeed, the Vaught case presents a significant opportunity for quality and safety improvements in electronic prescribing and dispensing systems and processes, so they are failsafe, and errors are avoided in the future, protecting both patients and healthcare workers.”
SA doctors live in constant fear – MPS
Howarth says that in South Africa, “Ninety percent of doctors tell us the prospect of facing a criminal investigation impacts their mental health, and nearly one in two doctors have considered leaving the profession owing to this culture of fear. At MPS, we’ve urged the South African Government to initiate a review into culpable homicide law and its application in a healthcare setting. The importance of achieving a long-term solution for healthcare workers and patients alike, cannot be overstated.”
Landman says criminalising unintentional error and talking of homicide was heavy stuff. “We know healthcare workers do fear litigation and criminal and civil liability ; more and more so in our environment.”
Turning to the US doctor’s trial, he said that while unable to pronounce on the medical facts, the elevated dosages, seemingly without a stepped approach, was conspicuous.
Other salient factors would be the drug tolerances of individual patients, what other drugs they may have been on that impacted on the elevation of the dose, and the perennially vexed question of pain perception.
“If a patient pleads for pain alleviation, a doctor has to make some kind of subjective judgment on how they subjectively experience pain. Suffering is induced either by distress or pain, or both. It can be mental or physical and for various reasons. Doctors have to judge. I’m always very suspicious of the law putting its big foot in, especially in an area where all you want is good practice. Doctors don’t enter and practice medicine to kill patients. Were there any guidelines on pain management involved here? It’s not always clear with particular drugs and underlying conditions. Moral or legal judgements lean heavily on this and can only be as good as the facts.”
Double effect of pain relief
According to Landman, in terms of the Husel case there were some major factors involved that needed elaboration. The concept of ‘double effect’ meant that alleviating pain could shorten a life or that the doctor intentionally killed a patient (as in euthanasia).
“How do you distinguish? Our Supreme Court says that to kill in order to stop pain is murder, but if the inevitable result is death, you’re not criminally liable.”
“It depends on the mind of the doctor. Yes, there is causality; an act that led to death, but what is the doctor’s mindset?” Landman stressed.
He explains the most prominent current South African euthanasia court application was that of Dieter Harck who suffers from advanced motor neurone disease. Harck is asking to be allowed to be legally assisted with dying when the appropriate time arrives.
“The Supreme Court of appeal (SCA), has said that when an appropriate case comes before our courts, the common law will no doubt evolve to conform to our embedded Constitutional rights, which cover compromised autonomy, dignity and bodily integrity,” Landman says.
However, this had yet to happen because of various interruptions and delays in Harck’s application, including the death of the presiding judge. The case is due to resume on 31 May.
Landman reveals the courts would not interfere with the law-making role of parliament and would probably suspend judgment and tell MPs to rectify the current inappropriate common law to bring it into line with the Constitution.
Unfortunately, there was no effective alternative to putting assisted dying on the agenda of SA’s elected representatives other than via the courts. Civil society had negligible powers of persuasion.
Landman adds that this made the prospects dim, citing Professor Pieter Carstens, a constitutional law expert, who has bluntly said our Constitutional right to assisted dying faced “the hypocrisy and lack of courage to act by lawmakers and government”.
Landman’s authoritative contributions to the much-needed proposed legal amendments have been ignored by parliament.
- Willem Landman is on the board of Dignity SA and was the founding CEO of EthicsSA (2000–2010). He is an independent non-executive director of the Ethics Institute of SA (EthicsSA) and professor extraordinaire of philosophy at the University of Stellenbosch (since 2000). He has degrees from the universities of Stellenbosch, Oxford (South Africa-at-Large Rhodes Scholar) and South Africa (Unisa), in philosophy, political philosophy, theology and law.
- Graham Howarth is an obstetrician/gynaecologist with a master’s in bioethics. He was an associate professor in the Department of Obstetrics and Gynaecology at the University of Pretoria and is the founding head of the faculty’s virtual Bioethics Department.
Read Also:
Why NHI would be a nightmare – a rational case against universal healthcare in SA
South Africans tolerate regulatory overreach at our own peril – Vegter on new health regulations
Solidarity – standing up for South Africans, against ominous Draft Health Regulations
