Can Doctors take the Law into Their Own Hands?

Watch any medical drama or soap opera and you’ll quickly find yourself wondering, “Can a doctor really do that?”. Whether it’s treating patients who refuse to be treated or breaking into people’s homes to look for clues, TV doctors seem to get away with everything up to and including murder so long as they have a worthwhile excuse. But how realistic is this? Can doctors really break the law when they feel they need to and what sort of punishments could they face? Can Doctors take the Law into Their Own Hands?

The simple answer is no, doctors cannot break the law even when they feel like they have a good reason. At the end of the day, doctors do not receive special treatment from the legal system. In the same way that you may not, for example, rob a bank even if you have a good reason, doctors cannot ignore their legal duties even when it seems like the right thing to do.

Doctors have a strict code of legal and ethical conduct that is placed on them by both the Constitution of South Africa and the Health Professionals Council of South Africa (HPCSA). If they do not uphold these standards they may be guilty of medical malpractice or negligence which could have dire legal repercussions.

When is a Doctor Guilty of Medical Malpractice?

Medical malpractice occurs when a healthcare professional (doctor, nurse, etc.) treats their patient in an improper or negligent manner. In certain cases, this may allow the patient to make a medical malpractice claim against the guilty party. To do this, the claimant must show that –

• The hospital or healthcare worker took on a legal duty to care for the patient
• The accepted standard of medical care was not met
• The malpractice or negligence of the healthcare professional resulted in the patient being injured

The duty to care mentioned is quite broad and as such, there are many forms of malpractice that can take place. Oftentimes the legal process will involve determining whether or not a competent and reasonable healthcare professional would have acted differently in such a scenario. 

What kind of Malpractice Claims can be Made?

There are three main types of claims that may be made when dealing with cases of medical malpractice, they are –

• Compensation for past and future medical expenses
• Compensation for loss of income resulting from the injury
• Compensation for general damages (this includes things like emotional harm)

Do Doctors have to Treat Patients?

In most scenarios, doctors have the right to refuse patients whom they do not wish to treat, that said, during medical emergencies doctors are expected to treat patients regardless of their personal wishes.

One of the few instances in which a doctor may refuse to treat a patient during an emergency scenario is when they believe that doing so would put them in danger, although even in these situations doctors would still be expected to assist in any way possible, for example, they may call the police and treat the patient once the danger has passed. 

Is Failing to Act considered Malpractice?

Yes, a doctor who fails to act when they have a duty to do so (otherwise known as an act of omission) can be found guilty of malpractice.

How Long do you have to make a Malpractice Claim?

Normally, someone who has suffered from an act of malpractice has 3 years to claim when the incident occurred. However, it should be noted that there are some exceptions to this rule, such as when the malpractice caused injury to a minor.

Can a Doctor make a Decision for Me if I am not able to?

Generally speaking, doctors must receive informed consent from the patient before they begin treatment. This differs from general consent as the patient must first be informed of all the risks involved with the treatment, additionally, the healthcare professional must assess the patient’s ability to adequately understand what is being said and ensure that they are consenting voluntarily (ie, they are not consenting while under duress).

When the patient is unable to give informed consent (for example, when they are unconscious or extremely young), various other parties may be consulted to do so on the patient’s behalf. These parties are prioritised differently and thus healthcare professionals cannot simply ask the closest relative, they must instead follow procedure and seek out consent from the parties in the following order –

• A person whom the patient has stated (in writing) should make such decisions on their behalf
• A person authorised by a court or by the law to make such decisions
• The patient’s spouse or partner
• A parent
• A grandparent
• An adult child
• A sibling

If none of the above proxies exists or can be found to provide consent, the doctor in question must instead follow the ‘best interest principle’ which basically states that any act done on behalf of the individual must be done with their best interests in mind so long as this decision does not conflict with the stated wishes of the individual. Additionally, in an emergency situation in which there is no time to seek out the aforementioned proxies for consent, the doctor may once again act using the best interest principle.

At what age can you give Informed Consent for Medical Treatment?  

For most forms of medical treatment, patients must be at least 12 years old to be able to provide informed consent. That said, there are instances in which an even younger child may provide consent if a court determines that they have the capacity to make such a decision.

There are, however, some special cases that have different guidelines and laws attached, for example, there is no lower age limit when it comes to consenting to have an abortion.

Can a Doctor Refuse to Perform an Abortion in South Africa?

Much like with medical treatment in general, healthcare workers are usually able to refuse to take part in performing abortions in South Africa, that said, if it is a medical emergency in which the patient is at risk, they are obligated to act in order to save the patients life.

How must Consent be Given and Can it be Withdrawn?

For most medical treatments, consent will take the form of one or more written documents that must be signed by the patient or by a chosen proxy. That said, if obtaining written consent is impossible, the healthcare professionals may obtain verbal consent instead, although this must be done in front of independent witnesses and good reason must be given as to why written consent could not be obtained. Even when consent has been given, the patient or proxies may change their minds and withdraw their consent.

In Conclusion – Can a Doctor take the Law into Their Own Hands and What is considered Medical Misconduct?

There are many different rules and regulations imposed upon healthcare professionals along with their standard ethical codes, breaking these rules or providing treatment that does not live up to the standards specified may make a medical worker guilty of malpractice or negligence.

Generally speaking, malpractice claims can be made against either the doctor, hospital or government (in instances involving state hospitals) if the claimant can prove –

• That a legal duty to care for the patient was accepted by the medical worker or hospital
• That the standard of treatment was not met
• That the patient suffered injuries resulting from the misconduct of the healthcare worker.

Malpractice claims can be made for physical injuries and related damages as well as for emotional damages and pain caused.

Usually, doctors may treat patients at their own discretion and are entitled to refuse patients. The exception to this rule occurs when the patient is involved in a medical emergency. Likewise, in cases like abortion, doctors may generally refuse to partake in such practices but must act if the patient’s life is threatened.

Medical professionals must obtain informed consent in almost all cases. This must come from the patient in question but, if the patient is unable to properly provide consent, other parties such as spouses, parents and siblings can be approached on their behalf, although there is a prescribed order in which such parties should be consulted.

If no such proxies exist or if consent cannot be obtained in time, doctors must act with the best interests of the patient in mind so long as none of their actions conflicts with decisions made by the patient. Children on the other hand must be 12 years or older to provide informed consent although some children may be considered competent enough to provide consent at younger ages.

Consent should be obtained in written form but may be given verbally if this is impossible. If verbal consent is given, witnesses must be present and good reason must be given as to why written consent was not possible. Additionally, consent may be withdrawn after it is given. 

Disclaimer LAW101: All of our posts are for research purposes only. Law 101 aims to assist its readers with useful information on the laws of our country that can guide you to make decisions in line with the South African Governmental Laws currently in place. Although our posts cite the constitution in many instances, they are intended to assist readers who are looking to expand their knowledge of the law. Should you require specific legal advice we advise you to get in touch with a qualified legal expert.

Found this article interesting? Leave us your thoughts below.