The Criminal Culpability of Health-Care Practitioners in South Africa

Abstract

Health-care practitioners are not superhuman. They are fallible and prone to making mistakes that have legal consequences. Mercifully, given that medicine is not an exact science and that anything can happen during a surgical procedure or otherwise, mistakes are not a frequent occurrence. From a legal perspective, it remains a challenge to distinguish inadvertence from wilful disregard for consequences. Health-care practitioners are anxious about the perceived eagerness of the law-enforcement agencies, including the South African Police Service and National Prosecuting Authority, to attach criminal responsibility to health-care practitioners and to pursue criminal charges against them, apparently without regard to what type of mistake has been made, nor the degree of deviation from the expected standard of care. The circumstances under which health-care practitioners work are also relevant. This article argues that health-care practitioners, like other professionals such as engineers and architects, as well as members of the community such as motorists where the circumstances so warrant, are criminally accountable for their actions. However, our law, unlike other foreign jurisdictions, does not recognise degrees of negligence in determining criminal liability. As the law in South Africa currently stands, an accused is either negligent or they are not. Even the slightest degree of negligence would be sufficient for the National Prosecuting Authority to sustain a conviction on a charge of culpable homicide. This article advocates that the threshold for measuring criminal culpability is too low, and that, in order to avoid unfair and unreasonable results, it should be increased to the level of gross negligence or recklessness. To achieve this, it will be necessary to bring about law reform in South Africa in cases involving all forms of professional liability, and other forms of criminal liability such as that involving motorists. The South African Law Reform Commission has recently announced that it will be investigating the matter under Project 152 Criminal Liability of Healthcare Professionals. It is expected that the Commission will call for submissions from all interested parties to assist in its investigation. It is also anticipated that the Commission will explore whether the South African legal system is ripe for a paradigm shift, adjusting the threshold for criminal liability in cases of culpable homicide. What is suggested is that South Africa should follow the legal systems of Scotland, New Zealand, India and England, which have all changed in the last few decades. The reason these legal systems have been chosen stems from the fact that they all have the same common-law heritage. The inception and initial application of the law of negligence in those countries, especially in criminal-law matters, closely resemble steps in the South African legal system. Ordinary negligence was originally the yardstick by which criminal conduct was measured and judged. Unlike South Africa’s legal system, there have been distinct threads of development in the other legal systems. Because of the principles of fairness and public interests, countries like Scotland, New Zealand, India and England have all moved away from a low threshold involving ordinary negligence, to a high threshold that includes gross negligence or recklessness.