Criminal action against medical practitioners : a comparative analysis

Abstract

The doctor-patient relationship is a fiduciary bond that is created between the two parties as soon as there is contact. There is an ethical code of conduct which the medical practitioners have to abide with, whose essence is found in the Hippocratic Oath that is normally taken up by the practitioners when they start working within this profession. When this relationship is created, there has to be informed consent towards the treatment. This is a process whereby the patient is informed of the risks and also benefits of the treatment. Consent may be done away with in certain instances such as medical emergencies; it may be vitiated; or sometimes even overlooked. Medical errors often give rise to criminal investigations and charges against medical practitioners. The epitome of criminalising medical negligence lies with involuntary offences, which are those offences that emerge from a gross negligent act of the practitioner. This means that the doctor did not do what another professional would have done in that same situation. For there to be a possible conviction, there must exist a link of causality between the negligent act of the practitioner and the damage caused. Proving causality within a medical setting may prove to be difficult because of the number of factors that would be surrounding the case. A negligent act conducted by a doctor may not only harm the patient, but also a foetus and this may give rise to a charge of culpable miscarriage. The lack of definitions within involuntary offences gives rise to doubt, with the Courts having a great deal of discretion. Justice is being served, however it is time to have specific, more eloquent legislation that safeguards both the medical practitioner and the patient.