Ethico-legal issues in the criminal prosecution of negligent medical doctors in South Africa

Abstract

Iatrogenic deaths are deaths that arise in the course of medical treatment and are regarded as unnatural deaths in South Africa. Several statutes regulate the medicolegal investigation of unnatural deaths. Should there be evidence of negligence, then a doctor may be criminally charged with culpable homicide. Only a handful of doctors in South Africa have been criminally prosecuted and fewer still have been found guilty or imprisoned. Despite the low conviction rate the use of criminal law in response to iatrogenic deaths has been criticised by doctors. The South African Medical Association argue that criminalisation negatively affects patient safety and have called for a review of the law of culpable homicide. They have also called for the introduction of special legislation to address criminal medical negligence. To address these arguments the report evaluates the current legal framework of the criminal justice system. The report addresses the ethical issues around patient safety when doctors are prosecuted for criminal medical negligence. The study is normative and reviews the existing literature, current legal framework and ethical principles to defend a thesis as to why it is justifiable to hold medical doctors criminally liable for the deaths of patients under their care. This research report concludes that when the law is used judiciously and sparingly it is helpful for progressing and improving patient safety.