Dr Graham Howarth, Head of Medical Services (Southern Africa) at Medical Protection, looks at the implications of Dr Munshi’s death for healthcare workers in South Africa

Everyone at Medical Protection was saddened and shocked to hear about Dr Abdulhay Munshi’s death. Our thoughts and deepest sympathies are with Dr Munshi’s family during this sad time.

Members will be well aware of the circumstances around these events, just as they will be aware of the circumstances around Dr Munshi’s arrest on charges of culpable homicide late in 2019.

I wrote in January 2020 about the vulnerability of South African healthcare workers to charges of culpable homicide, and the concern about the manner in which the arrests took place. I argued that criminal charges should be reserved for those who have been reckless and where the recklessness is responsible for the patient’s death.

Tragically, Dr Munshi will no longer have the chance to defend himself in court. For now the focus of South Africa’s healthcare community will rightly be on justice for Dr Munshi. It may also soon be timely to consider the law around culpable homicide.

What now for culpable homicide?

The tragedy has brought into sharp focus how the law around culpable homicide is being applied to healthcare professionals. Many healthcare professionals were already questioning who benefits from a system that criminalises error; many more will be doing so now.

As I previously wrote, it is perhaps important to distinguish between the manner in which the arrests occurred and the charges themselves. Despite the two doctors handing themselves willingly over to the SAPS, and being unlikely flight risks, they suffered the indignity of being handcuffed to one another and simultaneously exposed to the media. If it was hard to see at the time what was gained by the doctors’ exposure to the press; it is impossible now.

The doctors concerned were charged with culpable homicide with uncharacteristic haste. Charges of this nature should be considered carefully and should not be reactionary.

The legal principles of culpable homicide as it pertains to South Africa are clear. Negligence on the part of an individual, which results in the unlawful killing of a human being, is classified as culpable homicide. Culpable homicide is distinguished from murder by the fact that murder is killing that is not only unlawful but also intentional – so to be found guilty of murder, intent must be proved.

To prove negligence, certain prerequisites have to be met. In the healthcare arena, it must be shown firstly that the healthcare professional owed the patient a duty of care; secondly that the duty of care was breached – the care given was not of the standard expected under the circumstances. Finally, it must be shown that the breach of the duty of care was responsible for the harm caused. In civil litigation, if these tests are established, on the balance of probabilities, then a patient is entitled to compensation.

When prosecuting a medical case for culpable homicide the prerequisites for negligence are the same; however, there is a major difference – the burden of proof is more stringent. The steps must be proved to a higher standard of proof: beyond reasonable doubt. If you think the differences in the standard of proof are merely semantic, think of the OJ Simpson case – where the criminal case was unsuccessful while the civil case was successful.

Worries over prosecution and jail

Since last year’s arrests, healthcare professionals have been understandably concerned at the possibility of being prosecuted and jailed for culpable homicide. As matters currently stand, an error of judgement that results in a patient’s death exposes one to potential prosecution and imprisonment. Criminalisation in the absence of any intent to harm is harsh and healthcare professionals are at risk. To expect the profession to be exempt from such charges is also unrealistic – healthcare professionals need to be held accountable – but criminalising errors of judgement, particularly in the fast moving and potentially hazardous healthcare environment, seems unreasonably harsh.

So, when would it not be unreasonable to hold a healthcare professional morally and criminally responsible for suboptimal care resulting in an adverse outcome? At what level would it not be unreasonable to consider culpability to be criminal in nature? Strict liability, or liability without fault, where the adverse outcome alone needs to be proved, is clearly too low and inappropriate. Likewise, negligence, the reasonable professional under similar circumstances, is clearly adequate in the law of negligence and compensation but lacks any intent to harm, indeed on the contrary, and is a low threshold for a criminal conviction. Likewise, gross negligence lacks intent. Slips, lapses and mistakes can happen even to the best trained and most experienced, and any expert would be hard pressed to claim otherwise.

Reckless care, where the healthcare professional shows a total indifference to and disregard for the safety of the patient and where the recklessness is responsible for the patient’s death, is not an unreasonable level of culpability to hold a professional criminally responsible. To be held criminally culpable as a professional, the case needs to be clear and unequivocal.

Can we learn from Scotland?

Perhaps we should be looking to a jurisdiction like Scotland who interestingly, like South Africa, also use the term culpable homicide, as opposed to the term manslaughter used elsewhere. In Scotland, charges are only brought against doctors if an act is proved to be intentional, reckless or grossly careless. The Scottish law and its application is better suited to determining the culpability of a doctor in a patient death and indeed whether a prosecution is in the public interest.

It is clear that the vast majority of healthcare professionals do not set out to harm patients and to criminalise mistakes while working under difficult and complex conditions is surely not right. Criminal charges would best be reserved for those who have been reckless and the recklessness is responsible for the patient’s death, or those rare individuals who wilfully harm patients.

It is hard to see who benefits from a system that goes against these principles.