Doctors and other healthcare practitioners need to be aware of regulations that apply to them during the outbreak of Covid-19 and national lockdown - particularly the risk of being held criminally liable for assault, attempted murder or murder if they intentionally expose others to Covid-19.
Inclusion of healthcare practitioners and staff as essential services
The Regulations to the Disaster Management Act do not specify which healthcare practitioners would be categorised as essential services, but simply refer to: "Medical, Health (including Mental Health), Laboratory and Medical Services and the National Institute for Communicable Diseases".
This definition is broad enough to include everyone involved in operating hospitals and medical practices, from doctors and other medical practitioners to support staff. There is no specification or limitation in the Regulations on what treatment healthcare practitioners may provide to their patients. The Regulations do, however, appear to limit what individuals may seek medical attention for during the lockdown: "emergency, life-saving or chronic medical attention".
The answer for members of the public asking: "Can I still go for my annual check-up with my GP now?" or "Should I take this time to see my dentist for that cleaning?" is “Yes”. Certain provinces have placed restrictions on elective surgeries, and, out of their own volition, medical practices have limited treatments their doctors and other medical practitioners may offer. Some practices are open for individuals to come in as usual, while other practices have decreased the number of staff members and limit doctors' visits to emergency situations.
Liability for assault or murder
For healthcare professionals to be held criminally liable for assault, attempted murder or murder if they intentionally expose others to Covid-19, it is necessary to demonstrate intention.
In the recent case of NEHAWU v Minister of Health and Others, an urgent application was brought by the union on the basis that the Minister of Health failed to take reasonable steps to minimise the risk of Covid-19 infection to healthcare professionals and support staff. The application was, however, dismissed due to a lack of evidence.
The Court confirmed the principle from the case of Joubert v Buscor Limited that an employer cannot be held liable for an employee who was injured on duty if the employer took reasonable care to prevent the risk of any illness or injuries at its workplace.
In the recent outbreak of Covid-19 at St Augustine’s Hospital after 66 people were found to have contracted the coronavirus, liability under the Act would require evidence that the management intentionally exposed its staff and did not take any reasonable steps to prevent risk to its employees. St Augustine's and a number of other hospitals have closed their doors after members of their staff contracted the virus. This is a proactive step in protecting their staff and patients. However, the steps taken prior to such closure and whether they sought to prevent avoidable risks may be considered, if these hospitals and their management were to face charges.
A further possibility, outside the Regulations, is the charge of culpable homicide, where a person negligently causes the death of another. Unlike the Regulations, culpable homicide contemplates negligence, not intention. There has been an increasing trend to charge doctors with culpable homicide, even where no inquests have been held to determine that the doctor in question did in fact cause that person's death. It is imperative that all medical practitioners and their practices take all possible precautionary measures to avoid any potential charges based on either intention or negligence.
Some healthcare practitioners and practices are doing patient surveys and pre-screening before patients enter their practices to decrease the risk of spreading or contracting Covid-19. They may also reduce the number of patients entering the practice simultaneously and require both practitioners and patients to follow social distancing guidelines and stricter hygiene measures.
Where practitioners may be required to depart from their established procedures, they should do so responsibly, reasonably, ethically, and in the best interests of their patients. An example would be the HPCSA's approval of telemedicine. However, telemedicine is only permissible when there is an already-established practitioner-patient relationship, except for telepsychology and telepsychiatry.
More stringent preventative measures, novel ways of consulting with patients, and the practice of what one could call "defensive medicine" make it business unusual for healthcare practitioners during the Covid-19 pandemic.