Dr Graham Howarth, Medical South Africa Lead at Medical Protection, looks at the possible medicolegal implications of COVID-19.

South Africans have doubtless watched the horrific statistics from Europe and the United States with a sense of foreboding. Given the local statistics perhaps a sense of disbelief and an optimistic hope that South Africa will escape lightly. Those hopes may be tempered by reports of actuarial modelling, but the predictions differ widely and are after all just predictions – predictions of the future. Reality however is at now at hand.

There are likely to be two sequelae from a medicolegal point of view.

War is being used as a metaphor when confronting the virus. If hospitals are overwhelmed as predicted, then war may well be an apt metaphor to describe the battlefield type scenes anticipated. Staff will have to work outside their comfort zones or indeed many specialists will be working outside of their specialty. In war however battles are usually quickly won or lost so surges are intermittent and short lived. In the case of Covid-19 the battle is anticipated to be protracted – this means frontline staff will likely become exhausted and demoralised both by the decisions they have to make and sadly those they see dying around them.

Mistakes are inevitable

So let’s think of the medicolegal consequences of exhausted, demoralised healthcare staff working in resource-constrained circumstances outside of their comfort zones or speciality, on extremely sick patients suffering with what is still a new disease. Mistakes will happen; it is inevitable, and the consequences of those may be dire.

When the pandemic passes as it surely will, litigation is likely to follow, and we are left wondering how decisions by healthcare professionals be judged. Against a reasonable colleague? Or, at a minimum, will the locality rule be closely followed so they are judged against a reasonable colleague under similar circumstances? If so then who can act as an expert under the circumstances; they will be far and few between. We are asking healthcare workers to work under circumstances unlikely to be dissimilar to a battlefield but what extra protection will they be given?

The role of ethical guidelines

Perhaps more worrying are the potential consequences of difficult decisions regarding the allocation of scarce life-sustaining resources. Ethical guidelines which inform on ethically cogent decision making when it comes to withholding or withdrawing are available – such as those from the Critical Care Society of Southern Africa (CCSSA).  Like all ethical guidelines the CCSSA’s are open to debate but clearly well-informed experts have deliberated over them and offer prudent ethical advice. However, that is exactly what it is – ethical advice. The question has to be, for the individual practitioner, what will the legal consequences be if care is withheld, albeit on sound ethical grounds, and the patient subsequently dies. Now the practitioner has strayed into the ground of culpable homicide.

Surely the ethical guidelines, if followed, protect the practitioner?  The short answer is not necessarily, indeed probably not. The ethical guidelines will be based on concepts of distributive justice where a utilitarian or communitarian ethos prevails.  South African law has as its foundation the South African Constitution where the individual, particularly the vulnerable individual, is protected. While the guideline may advise that a particular decision is ethically sound the guidelines make no comment on the lawfulness of such decisions.  Likewise while ethical guidelines may advise on the withdrawing of life-supporting care, those guidelines are normally based on circumstances where withdrawal of life support can be justified as being in the patient’s best interest – or the patient is either clinically dead or the outcome is qualitatively or quantitatively futile.

While one can doubtless make a cogent ethical argument for withdrawing life supporting treatment from a patient who is unlikely to get better or whom a protracted time is required, for a patient with a far better chance of survival, it is unlikely those arguments would persevere legal scrutiny. If you were the one who turned off the ventilator you could face a charge of culpable homicide if not worse.

Doctors need protection from litigation

So with respect to complaints and litigation, doctors need some form of protection if and when working under battlefield like conditions. Clearly patients also need protecting.

Earlier this month, Medical Protection called for Public Prosecutors to provide urgent assurance that they would judge any case reasonably against the circumstances that doctors are working within to treat COVID-19 patients.

In an interview with a Sunday Times journalist I said doctors were concerned that they remained vulnerable to criminal charges and that prosecutors must reflect fairly on the circumstances in which clinical decisions are made.

Encouragingly, a spokesperson for the National Prosecuting Authority said, in the face of the pandemic, the body was “sensitive to the fact that it will have to be more discerning in weighing up the interest of justice and public interest in every prosecutorial decision it takes in such cases…”.

While this comment will provide some reassurance, if doctors are expected to ration life-sustaining resources then they also need clear guidelines on decision making and the legal consequences thereof. If doctors are expected to take a utilitarian approach then they need legal protection.

It is important to understand that ethics and law are not automatically synonymous.

For doctors to have certainty, clearly articulated national guidelines must be developed, debated and reflected upon by the profession and, ultimately, backed by law.

Agreeing such national guidelines will be complex and Medical Protection does not presume to have all the answers. We do however know that such guidelines are needed in order to enable doctors to focus on their patients with less fear of the legal recriminations. We will continue to push leaders on the need to ensure this is in place.