Friday, August 12 2022

As the COVID-19 pandemic spreads around the world, there has been a outpouring of gratitude and support for health professionals. The communities have made extraordinary efforts to support them. This includes ensuring they have personal protective equipment, meals and priority access to supermarkets. They have been given a break in benefit payments and will most likely be given priority for intensive care and ventilators if they fall ill themselves. This is because they risk their lives to save others. At the beginning of May, it was valued that more than 1,000 healthcare workers from 64 different countries had died.

The benevolence of civil society towards the health profession is justified. But how long will this last?

Doctors and hospitals have to make difficult decisions when treating patients with COVID-19. These include removing patients from ventilators. And patients with other conditions could suffer because care has inevitably been diverted to COVID-19. It is possible that patients or their families may sue.

In South Africa, the health profession operates in a highly contentious context during the last decade. One of the reasons is the growing awareness patient rights. This is accompanied by aggressive marketing by personal injury lawyers eager to capitalize on this awareness.

This is a concern for private and public hospitals, insurers and civil society because when doctors worry about the future dispute about the decisions they are forced to make during the pandemic, they will be forced to practice defensive medicine. Some were already doing this before COVID-19 – and it is inflating the cost of health care.

Based on malpractice claims, indemnity insurance coverage costs have spiral. This has forced many specialists to reduce their scope of practice or increase their consultation fees. For example, many physicians with degrees in obstetrics and gynecology no longer practice obstetrics due to compensation coverage and exorbitant claims in this field of practice. These demands are considerably higher than in other areas of work; one of the reasons is the lifetime cost of caring for a disabled person at birth.

This vicious circle of litigation and more expensive services has a negative impact on the delivery of health services. For one thing, spiral claims in the public health sector means that the health budget is spent on settling legal claims rather than on health care.

It is possible that the enormous pressures on the health system created by the COVID-19 pandemic will further aggravate the situation. As the number of patients increases, staff-to-patient ratios will deteriorate, as they have globally, which could affect the quality of care, despite the best efforts of highly skilled healthcare professionals. Hospital staff infection, pandemic-related fatigue and moral distress will also impact service delivery.

Why are doctors concerned?

If the number of cases increases significantly, specialists such as pediatricians, dermatologists or surgeons should work in emergency medicine or intensive care. Retired doctors and nurses are encouraged to help front-line healthcare professionals. Doctors without power re-registration status with professional bodies are permitted to continue practicing for the time being.

But if there is an allegation of negligence because of what they did or failed to do in these unusual circumstances, that Standard would be used to judge them?

The public health response to the COVID-19 pandemic requires extraordinary measures. Professional bodies worldwide, including the Health Professions Council of South Africa, recognized it. They have published updated guidance on practice outside one’s profession, telemedicine and registration extensions.

The biggest concern for healthcare professionals working in critical care is the need to remove ventilation because there are not enough ventilators available. The country Constitution asserts that a person’s rights – such as access to health care – can be limited. And withdrawal of care is accepted by the Health Professions Council of South Africa as set out in its published guidelines. But suspend or discontinue treatment refers to futile care. During COVID-19 care, futility may not be the reason patients are taken off a ventilator. It could rather be a deterioration of their condition while other patients with a better prognosis need intensive care. The guideline is therefore not fully applicable in the context of the COVID-19 pandemic.

Read more: Difficult choices about access to intensive care: ethical principles guiding South Africa

Protect healthcare professionals

The Governor of New York State issued directives granting temporary immunity from civil liability for injury and death as a result of an act or omission during the pandemic for a limited period. In the UK, the British Medical Association issued guidelines, but this was adhered to legal challenges.

The South African Health Professions Council recognize that its response to public complaints “will take into account the extraordinary circumstances in which practitioners work and the heavy demands placed on them during this time”. The Council’s mandate is to serve the profession and protect the public.

But Parliament has remained silent on any form of temporary statutory compensation for health professionals in South Africa. Gross negligence in the field of health care will in no way be excused. But we think the standards of reasonableness will certainly not be the same as before COVID-19.

National guidance (still awaited) on the allocation of scarce resources, when developed, could protect health professionals working in the public sector. It is unclear whether private sector physicians and independent practitioners will be included.

It is also unclear how the legal and professional systems in South Africa will deal with claims and negligence complaints from retired doctors and nurses returning to work during the pandemic or doctors working outside of their medical specialization. This is a legal vacuum that needs to be remedied urgently.


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