Dr Graham Howarth, Medical South Africa Lead at Medical Protection, looks at what lies behind the arrest of a healthcare professional.

Averaged out over the last ten years Medical Protection has supported members with roughly one new case per month in South Africa that is criminal in nature and related to the practice of medicine. Although the number of criminal cases opened are a fraction of a percent, the consequences for the individual can be devastating.

For the vast majority merely the pressing of charges is a horrific experience, but other consequences include media attention with adverse publicity, loss of the ability to work with loss of admission privileges, loss of income, loss of ability to travel freely overseas and quite possibly the attention of the HPCSA. A conviction, even with a suspended sentence, is devastating but incarceration, as has happened in two cases, is worse.

The majority of criminal cases involving healthcare professionals revolve around allegations of a salacious nature or are related to culpable homicide. With respect to Medical Protection members being imprisoned, one spent a protracted time incarcerated following a guilty finding in a case of a salacious nature and another a shorter time having been found guilty of culpable homicide. Medical Protection pursued the culpable homicide case all the way to the Constitutional Court and the conviction was found to be unsafe, but sadly the judgement only came out after the member had served their jail sentence.

Those who attended the Medical Protection 2019 Ethics for All event will remember the harrowing introductory video where a doctor was arrested, charged and prosecuted. The video itself is available to members as part of Medical Protection’s online learning platform. When we planned the video the events were fictional but between the video being conceived and shot and the Ethics for All event, a Medical Protection member suffered a similar experience.

The issue of doctors being arrested was also played out earlier this year in arrests that sadly, and highly unusually, were widely distributed by the media. Perhaps it is important to understand the nuances of being charged and possibly arrested. Despite the media reports where one hears or reads that an individual has laid a charge at a police station, the terminology is not entirely correct. In reality a member of the public lodges a complaint at a police station. The complainant reports a perceived crime and makes a statement. The police open a police or criminal docket and then investigate the crime.

Once the police have advanced or completed their investigation, they approach a public prosecutor for a decision on whether or not an individual or individuals, if identified, should be charged. If there is not enough information to make a decision, they can ask for more information. If there is enough information, there is a reasonable chance of conviction, and prosecution is not contrary to public interest, then the prosecutor will likely progress charges. If any of the aforementioned criteria are not met, then charges will probably not be laid. These are complex decisions and quite rightly the public prosecutor has a degree of discretion. However, a decision may later be challenged on whether the discretion was reasonably applied.

Once the decision to lay charges has been made, another important decision has to be made – how to bring the charges to the attention of the person charged so they can answer the allegations. This can either be done by the serving of documents or alternatively – and far more invasively – by means of arrest. Arrest should be reserved for cases where it is necessary. Arrest may be without a warrant, when a person is arrested while perpetrating a crime, or following the issuing of a warrant of arrest. The decision to arrest is an important one as by arresting a person you are denying them their liberty and taking them into custody. Given the significance of arrest, more than one agency is involved.

The decision to charge is a difficult one and open to the discretion of the public prosecutor. It is difficult to challenge at the time as one is seldom aware of the contents of the police docket. Arrest should be a last resort to bring an individual to court and if it is thought necessary one would hope that in the case of a healthcare professional who is unlikely to pose a flight risk or ongoing risk to the public, that at worst it would be a low-key event.

Once arrested the individual has been denied their liberty and should have the option of applying for bail within 48 hours. The first court appearance is a bail hearing. It is unusual for doctors to be arrested for alleged profession-related crimes. When they are, they are usually prewarned, asked to present themselves to a police station where the arrest is a low-key event, and they are then taken to court and likely released on bail.

Early in the criminal process there are significant steps and decisions:

• The decision by the complainant to approach the police

•  The decision by the police to investigate a crime

•  The decision by the police to approach the public prosecutor to consider charges

•  The decision by the public prosecutor to lay charges or not

•   The decision on how to bring the alleged perpetrator to book – by means of summons or arrest

•  The decision by the magistrate on whether or not to issue a warrant of arrest

•  The decision by the police regarding the manner of the arrest

•   The decision by the prosecutor on whether or not to oppose bail or request bail conditions, and the decision by the magistrate on whether to grant bail or not and if so under what conditions.

Virtually all these decisions are complex. The system relies on the decision makers having the necessary information and, given the complexity, allows for considerable margins of discretion. It is, however, vital that the decisions are made on adequate information available, that decisions are rational and dispassionate, and any discretion is exercised justifiably and open to challenge ultimately. The maxim – innocent until proven guilty – holds true and the early steps in the criminal process should be administrative rather than punitive. Sanction should only follow conviction. Those making these important decisions need to know they too are not beyond the rules and the law.

The vast majority of readers will not find themselves in this position at any point in their career. However, the arrest of healthcare professionals can and does happen. If a member of Medical Protection is arrested for a matter relating to their practice of medicine, one of their first calls should be to us.