Tuesday, October 9, 2018

INFORMED CONSENT IN SOUTH AFRICAN LEGISLATION AND THE HPCSA


UNDERSTANDING INFORMED CONSENT

One of the first principles of medical law is that a competent adult patient must give consent to medical treatment. Simply touching a patient without their consent, however benevolently, is prima facie unlawful[1]. For consent to be valid, it must be given voluntarily by someone who has the capacity to act and whom understands what the treatment involves.

One of the central issues of informed consent to medical treatment is working out exactly how much information patients need to be properly or adequately informed. Not informing a patient in broad terms about the treatment they are about to receive could constitute assault and make you criminally liable. Not providing adequate informed consent might also expose you to an action for damages based on clinical negligence. The move away from the Bolam Test, which advocated that the standard set by reasonable medical opinion was the basis on which to test clinical negligence versus that of the reasonable patient test which assesses clinical negligence on the patients’ need to know, has placed a greater burden on health professionals to understand a patient’s needs and to act accordingly.

In the past medical professionals were under no duty at all to provide patients with information about their prognosis, or advantages and disadvantages of different treatments. The assumption was that a doctor would exercise her customary care and skill on deciding on the best course of action for a patient. The classic Hippocratic Oath assumes that treatment decisions are for the doctor alone “I swear by Apollo and Aesculapius that I will follow that system of regimen which according to my ability and judgment I consider for the benefit of my patients”

Until relatively recently, it would not have occurred to medical professionals that patients might be well placed to make their own choices about their medical care. It was thought that informing patients about a poor prognosis, possible side effects, or availability of alternative treatments would be likely to cause distress and confusion and might jeopardise the patient’s recovery.

It is trite that the doctor patient relationship involves a major imbalance of power, some of which stems from social norms. A patient expects to be disadvantaged because of their lack of knowledge, their lack of training and because we desperately want to believe our treating professional is all knowing and all powerful and therefor will make the correct diagnosis and provide a complete cure[2].

Emily Jackson argues that while it is true that there is significant information imbalance in the doctor patient relationship, it is important to also remember that medical professionals are not always all-knowing and all-powerful. In addition to the problem of false positives and false negatives and the inevitability of human error, medical knowledge itself is often uncertain and tentative. Telling patients, the truth might force doctors to explain what they do not know and what is uncertain[3]. That does not excuse us from telling patients the truth to empower them to make their own decisions.

CONFIDENTIALITY

Unlike patient autonomy, which is a relatively recent preoccupation of medical law and ethics, a doctor’s duty to respect her patients’ confidentiality has its origins in the first codes of medical ethics[4] and reserves unqualified protection in the modern version of the Hippocratic Oath “I will respect the secrets which are confined in me, even after the patient has died”.

Both deontological (duty-based) and teleological (consequentialist) reasoning can be used to justify the existence of a duty of confidence between patients and doctors. Deontological argument would be to emphasize the patient’s right to privacy and her interest in controlling access to what will be often sensitive and personal information. The consequential argument for respecting patient confidentiality is that high quality care depends upon a patient being honest with their doctors.

There are two reasons why it is important for doctors to respect their patient’s confidentiality. Firstly, information about a patient’s health is private, and she should have the right to control who has access to it. Secondly, without a guarantee of confidentiality, a patient might withhold information that is necessary to diagnose and treat her appropriately.

PROTECTION OF PERSONAL INFORMATION

Data protection is another important consideration and the Protection of Personal Information Act (POPIA)[5] has specific and stringent guidelines on protecting patient information and disclosure thereof to third parties.

Without express consent no information on a patient can be shared, bar specifically allowed for by law. Both the National Health Act (NHA)[6] and the Health Professions Council’s (HPCSA) Ethical Rules of Conduct: Informed Consent[7] stipulates when and how patient information may be distributed without consent by law. The legal duty of confidentiality is not absolute. The reality of modern medical treatment is that patient information will be shared among a team of health care professionals and is provided for in the NHA and the HPCSA Guidelines.

Rule 13 of the Ethical Rules of the HPCSA states that a practitioner may divulge information regarding a patient only if this is done: 

·        In terms of a Statutory provision,

·        at the instruction of a court,

·        in the public interest,

·        with the express consent of the patient,

·        with the written consent of a parent or guardian of a minor under the age of 12 years,

·        in the case of a deceased patient with the written consent of the next of kin or the executor of the deceased’s estate. 

Disclosures in the public interest would include but not be limited to situations where the patient or other persons would be prone to harm because of risk related contact.

Patients have a right to expect that information about them will be held in confidence by healthcare practitioners. Confidentiality is central to trust between practitioners and patients. Without assurances about confidentiality, patients may be reluctant to give practitioners the information they need to provide good care. 

Guideline 4 of the HPCSA deals with retaining confidentiality. Where healthcare practitioners are asked to provide information about patients, they should seek the consent of patients to disclosure of information wherever possible, whether the patients can be identified from the disclosure or not.

Comprehensive information must be made available to patients about the potential for a breach of confidentiality with ICD10 coding. Anonymise data where unidentifiable data will serve the purpose must be utilised. Keep disclosures to the minimum necessary. Healthcare practitioners must always be prepared to justify their decisions in accordance with these guidelines.

Healthcare practitioners should make sure that patients are aware that personal information about them will be shared within the healthcare team - and patients must be told the reasons for this. It is particularly important to check that patients understand what will be disclosed if it is necessary to share personal information with anyone employed by another organisation or agency providing health or social care. Practitioners cannot treat patients safely, nor provide continuity of care, without having relevant information about the patient's condition and medical history. 

In some circumstances where patients have consented to treatment, express consent (orally or in writing) is not usually needed before relevant personal information is shared to enable the treatment to be provided. For example, express consent is not needed before a general practitioner discloses relevant personal information to a medical secretary so that she can type a referral letter. In such circumstances, when the practitioner informs the patient that he or she is referring the patient to somebody else, the patient is assumed to have given implied consent to such disclosure being made to the secretary. 

The healthcare practitioner must make sure that any recipient to whom personal information about patients is disclosed, understands that it is given to them in confidence, which they must respect. Anyone receiving personal information to provide care is bound by the legal duty of confidentiality - whether they have contractual or professional obligations to protect confidentiality.

Circumstances may arise where a patient cannot be informed about the sharing of information, for example because of a medical emergency. In these cases, the healthcare practitioner should disclose the relevant information promptly to those providing the patients' care and explain the situation to the patient after the emergency has passed.

The Constitution of the Republic of South Africa[8] Chapter 2 The Bill of Rights, which is the highest law in the land, protects a person’s Right to Human Dignity[9] and the Right to Privacy[10] and by extention the need for privacy and consent to medical procedures. The provisions of the Bill of Rights are codified in several statutes.

BIOETHICAL CONSIDERATIONS

Medical ethics has a long history unlike bioethics which is a more recent phenomenon. In the past conscientious medical professionals were trained to act paternalistically towards patients, to treat patients according to the medical professional’s judgment and not what would be best for the patient with little regard for each patient’s perspective or preference[11]. Problems arise due to intimate and central aspects of a patient’s life, such as disability, sexuality, psychological well-being, life style, self-image and bodily integrity, to name but a few. It is not within the medical professional’s scope to make choices that rest within a patient’s value system[12].

Medical paternalism is being challenged the world over as patient autonomy is on the rise, rejecting the medical professional’s superior medical knowledge and increasingly insisting on their own rights[13].  The culmination of this was the case of Montgomery v Lanarkshire Health Board[14] in which the following was stated

“it has become increasingly clear that the paradigm of the doctor-patient relationship implicit in the speeches in that case has ceased to reflect the reality and complexity of the way in which healthcare services are provided, or the way in which the providers and recipients of such services view their relationship. One development which is particularly significant in the present context is that patients are now widely regarded as persons holding rights, rather than as the passive recipients of the care of the medical profession. They are also widely treated as consumers exercising choices: a viewpoint which has underpinned some of the developments in the provision of healthcare services.”[15]

“The social and legal developments which we have mentioned point away from a model of the relationship between the doctor and the patient based upon medical paternalism. They also point away from a model based upon a view of the patient as being entirely dependent on information provided by the doctor. What they point towards is an approach to the law which, instead of treating patients as placing themselves in the hands of their doctors (and then being prone to sue their doctors in the event of a disappointing outcome), treats them so far as possible as adults who are capable of understanding that medical treatment is uncertain of success and may involve risks, accepting responsibility for the taking of risks affecting their own lives, and living with the consequences of their choices”.[16]

The HPCSA Guidelines reiterate that patients have a right to information about the healthcare services available to them, presented in a way that is easy to follow and use.

The National Health Act provides that healthcare providers, this includes healthcare practitioners, must inform patients of the following:

·        The patient’s health status except in circumstances where there is substantial evidence that the disclosure of the patient’s health status would be contrary to the best interests of the patients;

·        The range of diagnostic procedures and treatment options generally available to the patients;

·        The benefits, risks costs and consequences generally associated with each option; and 

·        The patient’s right to refuse health services and explain the implications, risks and obligations of such refusal.

Patients also have a right to information about any condition or disease from which they are suffering. Such information should be presented in a manner easy to follow and use, and should include information about the diagnosis, prognosis, treatment options, outcomes of treatment, common and serious side-effects of treatment, the likely time frames of treatment, and the expected costs, where relevant. 

Healthcare practitioners should always give patients basic information about the treatment they propose to provide but should respect the wishes of any patient who asks not to be given detailed information. The latter requests place a considerable onus upon health care providers because, without such information, patients cannot make proper choices as partners in the health care process.

DISCLOSURE OF INFORMATION OTHER THAN FOR TREATMENT OF INDIVIDUAL PATIENTS[17]

Information about patients is requested for a wide variety of purposes including education, research, monitoring and epidemiology, public health surveillance, clinical audit, administration and planning, insurance and employment. Healthcare practitioners have a duty to protect the privacy of patients and respect their autonomy.

Seeking consent of patients to disclosure is part of good communication between healthcare practitioners and patients and is an essential part of respect for the autonomy and privacy of patients.

The following principles should be applied:

·        Healthcare practitioners must obtain express consent where patients may be personally affected by the disclosure, for example when disclosing personal information to a patient's employer or to a medical scheme for ICD-10 coding. 

·        When seeking express consent, health care practitioners must make sure that patients are given enough information on which to base their decision, the reasons for the disclosure and the likely consequences of the disclosure. 

·        Healthcare practitioners should also explain how much information will be disclosed and to whom it will be given. 

·        If the patient withholds consent the healthcare practitioner should first attempt to persuade the patient to consent. 

·        If the patient continues to refuse consent, or consent cannot be obtained, the consequences of disclosure and non-disclosure should be explained to the patient. Disclosures may be made only where they can be justified in the public interest.

Obtaining consent where the disclosure is made for research, educational, training, efficient administration of health services or clinical audit purposes has its own set of rules to consider. If identifiable data is to be used this can only be done with informed consent of the patient. The following guidelines are given;

·        Use of identifiable patient data is permitted for purposes of the efficient                            administration of health services and for clinical audit, with the proviso that only information relevant to the purpose of disclosure is revealed, and disclosure is only made to personnel with a direct interest in that information.

·        Where de-identified information can serve any of the above purposes, it is incumbent on the healthcare provider to de-identify these data as soon as possible before making use of the data.

·        Where healthcare practitioners have control of personal information about patients, they must not allow anyone access to that information for study, research or medical audit unless the person obtaining access has been properly trained and authorised by a health establishment, a healthcare provider or comparable body and is subject to a duty of confidentiality in their employment or because of their registration with a statutory regulatory body.

Disclosures in the public interest:

·        In cases where healthcare practitioners have considered all the available means of obtaining consent, but are satisfied that it is not practicable to do so, or that patients are not competent to give consent, or exceptionally, in cases where patients withhold consent, personal information may be disclosed in the public interest where the benefits to an individual or to society of the disclosure outweigh the public and the patient's interest in keeping the information confidential, (e.g. endangered third parties such as the spouse or partner of a patient who is HIV positive, who after counselling refuses to disclosure his or her status to such spouse or partner; or reporting a notifiable disease). 

·        In all such cases the healthcare practitioner must weigh the possible harm (both to the patient, and the overall trust between practitioners and patients) against the benefits that are likely to arise from the release of information.

·        Examples of circumstances to protect the patient or other persons from death or serious harm, include, but are not limited to:

o   Access to prophylactic treatment for a person who has had contact with an infectious disease, or

o   An employee with a health condition which may render him or her unable to work safely posing a danger to co-workers or clients 

o   A driver of a vehicle who requires medication to control an illness that might impair his or her driving ability. 

Professional organisations and Government regulatory bodies that monitor the public health or the safety of medicines or devices, as well as registries of notifiable conditions, rely on information from patients' records for their effectiveness in safeguarding public health. For example, the effectiveness of the system of notifiable conditions depends on information provided by clinicians.

Healthcare practitioners must co-operate by providing relevant information wherever possible. The notification of some communicable diseases is required by law and in other cases healthcare practitioners should provide information in anonymised form when that would be sufficient.

Where personal information is needed, healthcare practitioners should seek express consent before disclosing information, whenever that is practicable. For example, where patients are receiving treatment there will usually be an opportunity for a health care practitioner to discuss disclosure of information with them.

Personal information may sometimes be sought about patients with whom healthcare practitioners are not in regular contact. Practitioners should therefore make sure that patients are given information about the possible value of their data in protecting public health in the longer-term, at the initial consultation or at another suitable occasion when they attend a health establishment. It should be clear that they may object to disclosures at any point. The healthcare practitioner must record any objections so that patient’s wishes can be respected. In such cases, the practitioner may pass on anonymised information if asked to do so.

Where patients have not expressed an objection, healthcare practitioners should assess the likely benefit of the disclosure to the public and commitment to confidentiality of the organisation requesting the information. If there is little or no evident public benefit, they should not disclose information without the express consent of the patient.

Where it is not practicable to seek the consent of patients for disclosure of personal information for these purposes, or where patients are not competent to give consent, health care practitioners must consider whether the disclosures would be justified in the public interest, by weighing the benefits to public health of the disclosure against the possible detriment to the patient.  

The automatic transfer of personal information to a registry, whether by electronic or other means, before informing the patient that information will be passed on, is unacceptable, save in the most exceptional circumstances. These would be where a court has already decided that there is such an overwhelming public interest in the disclosure of information to a registry that rights of patients to confidentiality are overridden; or where healthcare practitioners are willing and able to justify the disclosure, potentially before a court or to the HPCSA, on the same grounds. 

Healthcare practitioners must obtain express consent from patients before publishing personal information about them in media to which the public has access, for example in journals or text books, whether the practitioners believe the patients can be identified or not. Express consent must, therefore, be sought to the publication of, for example case-histories about, or photographs of patients. Where health care practitioners wish to publish information about a patient who has died, they should consider the guidelines in this booklet before deciding whether to do so.

Situations arise where healthcare practitioners have contractual obligations to third parties, such as companies or organisations, as well as obligations to patients. Such situations occur, for example when practitioners:

·        Provide occupational health services or medical care for employees of a company or organisation;

·        Are employed by an organisation such as an insurance company;

·        Work for an agency assessing claims for benefits;  

·        Provide medical care to patients and are subsequently asked to provide medical reports or information for third parties about them;

·        Work as district medical officers or forensic pathologists;

·        Work in the armed forces;

·        or Work in correctional services.

If healthcare practitioners are asked to write a report about or examine a patient, or to disclose information about a patient from existing records for a third party to whom the practitioners have contractual obligations, they must:

·        Be satisfied that the patient has been told at the earliest opportunity about the purpose of the examination or disclosure;

·        the extent of the information to be disclosed;

·        and the fact that relevant information cannot be concealed or withheld.

·        Healthcare practitioners should show the form to the patient before they complete it to ensure that the patient understands the scope of the information requested;

·        Obtain, or have seen, written consent to the disclosure from the patient or a person properly authorised to act on the patient's behalf.   

·        Disclose only information relevant to the request for disclosure. 

·        Include only information that they can substantiate, and ensure that it is presented in an unbiased manner;

Patients may wish to see reports written about them before they are disclosed, in all circumstances healthcare practitioners should check whether patients wish to see their reports - unless patients have clearly and specifically stated that they do not wish to do so.

Disclosure of personal information without consent may be justified where failure to do so may expose the patient or others to risk or death or serious harm. Where third parties are exposed to a risk so serious that it outweighs the patient's right to confidentiality, healthcare practitioners should seek consent to disclosure where practicable. If it is not practicable, they should disclose information promptly to an appropriate person or authority. They should generally inform the patient before disclosing the information. Such circumstances may be:

·        A person who is placing co-workers at risk because of illness or some other medical condition. If healthcare practitioners are in doubt about whether such disclosure is justified, they should consult an experienced colleague or seek advice from a professional organisation. The safety of persons must come first always;

·        A patient who continues to drive, against medical advice, when unfit to do so: In such circumstances healthcare practitioners should consider disclosing the relevant information to the patient’s next-of-kin or the traffic authorities or police. Where such a patient is employed as a professional driver the employer should be informed.

·        A disclosure that may assist in the prevention or detection of a serious crime: In this context, serious crimes, means crimes that will put someone at risk of death or serious harm, and will usually be crimes against the person, such as abuse of children.

·        Healthcare practitioners may be required to disclose information to satisfy a specific statutory requirement, such as notification of a notifiable disease or suspected child or elder abuse.

·        Healthcare practitioners must also disclose information if ordered to do so by a judge or presiding officer of a court. They should object to the judge or the presiding officer if attempts are made to compel them to disclose what appear to them to be irrelevant matters, for example matters relating to relatives or partners of the patient, who are not parties to the proceedings.

Healthcare practitioners should not disclose personal information to a third party such as a lawyer, police officer or officer of a court without the patient's express consent, except in the circumstances described above.

Healthcare practitioners may disclose personal information in response to an official request from a statutory regulatory body for any of the healthcare professions, where that body determines that this is necessary in the interests of justice and for the safety of other patients. Wherever practicable they should discuss this with the patient. There may be exceptional cases where, even though the patient objects, disclosure is justified.

 In all cases, should healthcare practitioners decide to disclose confidential information they must be prepared to explain and justify their decisions.

THE NATIONAL HEALTH ACT

The National Health Act requires that healthcare providers (which includes health care practitioners) and health care establishments are responsible for personal information about their patients and must make sure that such information is effectively protected against improper disclosure always. For example, this means that employees such as clerks and receptionists must also be trained to respect the confidentiality of patients when dealing with personal information.

Many improper disclosures are unintentional. Healthcare practitioners should not discuss information about patients where they can be overheard or leave patients' records where they are vulnerable to disclosure, either on paper or electronically, where they can be seen by other patients, unauthorised healthcare personnel or the public. Healthcare practitioners should endeavour to ensure that their consultations with patients are private.

PATIENTS WHO LACK CAPACITY

Various aspects require consideration in instances where a patient lacks capacity to act. The Mental Health Care Act[18] makes provision for Respect, Human Dignity and Privacy for mental health care patients[19].  Every mental health user must be provided with care, treatment and rehabilitation services that improve the mental capacity of the user to develop to full potential and to facilitate his or her integration into community life[20]. Treatment must intrude as little as possible and must be in line with his or her mental health status[21]

Consent to care, treatment and rehabilitation services and admission to health establishments[22] is dealt with in Section (9) (1) A health care provider may provide care, treatment and rehabilitation services to or admit a mental health care user only if the user has consented to the care, treatment and rehabilitation services or to admission; authorised by a court order or a Review Board; or due to a mental illness in which the delay in providing care, treatment and rehabilitation services or admission may result in the- (I) death or irreversible harm to the health of the user; (ii) user inflicting serious harm to himself or others; or (iii) user causing  serious damage to or loss of property.

Disclosure of information is dealt with by section 13 (1) A person or health establishment may not disclose any information which a mental health care user is entitled to keep confidential in terms of any other law. (2) Despite subsection (1); the head of the national department, a head of provincial department or the head of a health establishment concerned may disclose such information if failure to do so would seriously prejudice the health of the mental health care user or of other people. (3) A mental health care provider may temporarily deny mental health care users access to information contained in their health records if disclosure of that information is likely to; seriously prejudice the user; or cause the user to conduct himself or herself in a manner that may seriously prejudice him or her or the health of other people.

Problems may arise if healthcare practitioners consider that a patient is incapable of giving consent to treatment or disclosure because of immaturity, illness or mental incapacity[23]. If such patients ask them not to disclose information to a third party, the healthcare practitioners should try to persuade them to allow an appropriate person to be involved in the consultation. 

If patients refuse to give consent and healthcare practitioners are convinced that it is essential and in the patient’s medical interests, they may disclose relevant information to an appropriate person or authority. In such cases the healthcare practitioner must tell the patient before disclosing any information and seek the consent of the person legally designated to give such consent in terms of the National Health Act. 

The National Health Act provides that if no person has been mandated or legally appointed to give consent, then in the following order of precedence, a spouse or partner, parent, grandparent, adult child or adult brother or sister may give consent. 

Rule 57 of the Supreme Court Rules sets out the procedure to be followed if a person does not have the capacity to act. The court is requested to address three aspects in its enquiry: (i) to declare the patient of unsound mind and incapable of managing his/her affairs; (ii) to appoint a curator ad litem; (iii) to appoint a curator bonis or curator personae or both. It is not essential that a person be declared mentally ill in terms of the Mental Health Care Act before a curator can be appointed to his estate.

A person that does not have the ability to make decisions over his own person, such as medical procedures and treatment, needs the assistance of a curator ad personae. The definition of a curator personae is the curator “over the person” of the patient and means the control over the patient's personal welfare. In the case of the application for curator personae the request is that the patient be declared unable to see to his personal needs. Only property of the patient is really the concern of the Master of the High Court due to his dealing with "estates" which are proprietary and not personal rights. A curator persona is appointed with far less formality. He/she is in practice responsible for all decisions where money is not involved.

The definition of “INCAPACITY” for legal purposes is function-based (i.e. ability to make specific decision at a specific point in time) and accommodates fluctuant and temporary incapacity in terms of cognitive functioning based on clinical evaluation. It is not equivalent to inability to communicate and does not regard illiteracy as inability to communicate or make decisions. It includes the safeguarding of interference in lives of eccentric persons. It is not based on a finding by a specific person or the court but by supporting clinical evidence of at least two medical professionals one of which should be an alienist (not having treated patient).

Best interests of the person are defined with reference to the least restrictive option, necessary only about individual circumstances and needs and an adult must be encouraged to participate. The person’s cultural environment, values and beliefs must be respected as far as is reasonable and practicable and past and present wishes and feelings need to be considered. Consideration must be given to the views of persons with an interest in the welfare of the adult or the proposed intervention.



[1] Medical Law: Text, Cases and Materials page 166
[2] Michael Jones – Informed Consent and Other Fairy Stories 1999 7 Medical Law Review 103-34, 129
[3] Medical Law: Text, Cases and Materials page 167
[4] The Hippocratic Oath – “whatever things I see or hear concerning the life of men, in my attendance on the sick or even apart therefrom, which ought not to be noised abroad, I will keep silence thereon, counting such things to be as sacred secrets”
[5] No 4 of 2013
[6] No 61 of 2003
[7] Booklet 4
[8] Act 108 of 1998
[9] Section 11
[10] Section 14
[11] Susan Sherwin – A Relational Approach to Autonomy in Healthcare
[12] Susan Sherwin supra
[13] Medical Law – Text Cases and Materials page 4
[14] [2015] UKSC 11 On appeal from: [2013] CSIH 3; [2010] CSIH 104
[15] Para 75 page 24 supra
[16] Para 81 page 26 supra
[17] http://www.hpcsa.co.za/Uploads/editor/UserFiles/downloads/conduct_ethics/Booklet%205.pdf
[18] Act 17 of 2002
[19] Chapter III (8) (1)
[20] (8) (2) supra
[21] (8) (3) supra
[22] Section 9 of Act 17 of 2002 supra
[23] http://www.hpcsa.co.za/Uploads/editor/UserFiles/downloads/conduct_ethics/Booklet%205.pdf

Monday, February 27, 2017

MEDICAL NEGLIGENCE CLAIMS: THE NEGATIVES, POSSIBLE SOLUTIONS THERETO AND THE POSITIVES - WHAT IT MEANS FOR THE DEVELOPMENT OF OUR LAW AND HUMAN RIGHTS

MEDICAL NEGLIGENCE CLAIMS: THE NEGATIVES, POSSIBLE SOLUTIONS THERETO AND THE POSITIVES - WHAT IT MEANS FOR THE DEVELOPMENT OF OUR LAW AND HUMAN RIGHTS
First Published on January 24, 2017 on LinkedIn

The negatives
In the last decade, medical negligence claims have absolutely skyrocketed. Not many reasons are proffered for this as it has been solely a blame game by the Department of Health ("DOH") and insurers such as the Medical Protection Society ("MPS") covering the claims of the private medical and allied health professions. Instead of finding a solution through training and better facilities as it relates to public health and fighting the spurious claims on the side of both public and private, a plaster is offered to treat a weeping sore so to speak.
MPS (and I'm sure others) keep increasing their premiums to the extent that many specialists are no longer prepared to continue practicing to foot the insurance bill and junior doctors choose less risky specialties to train in causing a brain drain in those very specialities. The blame for the enormous increase in claims in the private sector is, similarly to the public sector, put before the door of the attorneys who make it their business to seek out such claimants. The current Minister of Health, Dr Aaron Motsoaledi, ("the Minister") has been particularly scathing towards the medical negligence legal fraternity and many a journalist has jumped on the band wagon without properly considering the issue.
As in the private sector, the Minister tries to stem the flow of claims by simply putting a plaster on the festering sore in that talks are already afoot to limit claims (as with claims against the Road Accident Fund - "RAF") and provide an undertaking for medical expenses i.e paying for the treatment yourself before claiming the money back from what would have to be a dedicated claims department at the DOH. The impact of this, as in RAF claims, would be that those who cannot afford to pay first (e.g. indigent parents of children diagnosed with cerebral palsy after suffering from birth asphyxia) would be severely prejudiced as state health facilities only provide the most basic treatment for these kids (especially in poor areas), the parents often having to travel some distance to get to a treating facility and a family member giving up their own employment to act as caregiver. The child's chance of making a meaningful contribution to society through continuous treatment and skills training is forever lost.

Is there a solution?
So, how do to we treat the avalanche of claims? The DOH firstly would have to admit that their services to the public at large fall well short of a reasonable standard of care. (Please note that there are dedicated and hardworking medical personnel all over the health industry and their efforts should not be overlooked). Hospital buildings, equipment and ambulance services are either in a state of disrepair, non-existent or stuck with some committee or department that needs to make a decision. Medical personnel are in short supply and the predicted shortage in certain areas of expertise would have an impact on both the public and private sectors. An urgent need exists to involve the private sector in public health services in joint partnerships to assist in the overflow of patients and in particular in specialised fields. This would be especially helpful in the smaller communities. The establishment of non-profit organisations that can place medical personnel from across the world (in a GAP year) in mobile treatment units can also be explored. Last mentioned has been successful in the wild life industry in particular. The fact that medicine requires specialised skill cannot be ignored but it should not be impossible to extend such working visitors visas to doctors, nurses and the like.
One solution proffered to the private sector is to fight the ambulance chasers with all the might of the law in instances where there is no or little merit in the claim. Too many matters are settled that genuinely had a chance of success in a court of law. One just has to request statistics from insurers on how many matters are settled and how many proceed to trial to realise that the scales weigh heavily in favour of settlement. This has three negative outcomes, the lawyers become more motivated to institute action as they almost always get paid their fee up to 25% of the capital amount paid (see the Contingency Fee Act 66 of 1997 - "The Act")) at no or very little risk to themselves. Unscrupulous medical professionals become hired guns and the medical fraternity lose faith in the legal system and their own ability to perform up to standard affecting morale and by extension productivity and performance.
Defending worthwhile cases would not prevent the institution of litigation at the outset but would curb pay outs to non-deserving claimants and slowly but surely the legal fraternity would stop fighting claims with no or little merit as they stand to make substantial losses due to the capital input required to fight a medical negligence claim at their own cost (see The Act) thereby reducing the number of claims and the negative consequences thereof.
The second option, and probably the best option for both public and private, would be to ensure that the medical doctors and the medical facility subject all legal action to mandatory mediation prior to the matter proceeding to trial. The pre-trial courts already in place in all courts in RSA can simply refuse parties certification for trial (See Practice Directives available on https://johannesburgbar.co.za/ in re: certification) if meaningful mediation was not undertaken. The emphasis is important as matrimonial mediation has been failing divorcees for many years due to a lack of understanding of what mediation should be i.e guidance and not decision making for the parties and a general misunderstanding from both the public and the legal fraternity on what mediation is.
Legal costs would be substantially reduced and matters can be finalised much sooner if one considers that new trial dates are already being allocated into the end of 2018 and beyond in most divisions. The presence of legal representatives and experts should be encouraged due to the complexities of medical negligence disputes and the disparity in power between doctor/hospital and patient with their role reduced to giving guidance rather than fighting the fight for the patient as the decision to settle remains that of the parties and can't be forced upon them. Last mentioned would still be cheaper than full blown litigation. The very important underlying maxim of total confidentiality in mediation encourages honesty between the parties as nothing said in mediation (bar the final settlement agreement) can be used in a court of law.

The positives
It would be impossible to find something positive in this one would think, but that would be incorrect. The law is and always would be the tool to apply checks and balances and medical negligence litigation should certainly force the DOH to take a hard look at the manner in which their institutions are run, find inventive ways in which to solve their staffing, space and equipment problems so as to ensure that the poor in this country has adequate health care, a basic human right underlying all other human rights as it is a necessity for a life itself (See section 27 (1)(a & b) of the South African Constitution). Currently the-plaster-over-oozing-sore view of medical negligence litigation is hampering this positive and one could only hope that the DOH realises that they shouldn't blame the lawyers for what is clearly a disaster in public health care. One just has to look at the number of legitimate birth asphyxia matters in court on a daily basis and increasing exponentially to know that there is something seriously wrong in perinatal and neonatal care in the public sector at an estimated cost of R20 million per claim.
Placing the blame at the foot of the lawyers also loses sight of the right of the patient to defend those rights, another right protected by the South African Constitution (Access to Courts - Section 34) and to do so with legal representation. This is equally true for both public and private sector disputes, although privately insured doctors and hospitals may have those rights curtailed by an overzealous insurance provider with settlement fever.
Over-compensation in patient treatment is seen as a negative by the medical aid schemes in that it is one of the many things that is blamed for the higher than average medical inflation. I for one would prefer my doctor to rather overcompensate than just doing the basics to appease the medical aids and I would like to surmise that this very "problem" has probably led to many a diagnosis that may have been missed at first bat.
Medical Negligence litigation has contributed hugely in the last decade but in particular in the last year, to the development of the common law. Age old cases on the duty of care have been revisited and refreshed. The Consumer Protection Act (68 of 2008) (See my article in De Rebus June 2012 p22-25 "The Law of Contract, the Consumer Protection Act and medical malpractice law") has added a whole new dimension (albeit seriously underutilised in my opinion) to services and goods provided by medical health professionals and the like. The South African Constitution recently found in favour of cases arguing the provisions of the Prescription Act (68 of 1969) as it related to when knowledge is acquired of harm done and then there is now a veritable smorgasbord of case law on medical negligence that was once in short supply.
As such, from a legal standpoint, we should thank the personal injury practitioners for developing our law and protecting human rights, both from a plaintiff and defendant perspective and the public and private sectors should join hands to seek a solution to the problem that lies at the heart of the very healthcare provided.


CONTINGENCY DEDUCTIONS IN ACTUARIAL CALCULATIONS 101


INTRODUCTION
On 1 August 2008, the new RAF Act changed the lives of many people in that there was no longer an automatic right to general damages for inter alia pain and suffering. This meant that clients whom had suffered a loss of earning capacity was suddenly left without compensation and many a matter was settled on the basis that the plaintiff was only entitled to an undertaking. The right to an undertaking and the admission that an undertaking is needed for future medical expenses can be a basis for an argument on loss of earning capacity as the plaintiff wouldn’t need cover for future medical expenses if there was nothing wrong with her and would further need time off work to attend to such treatment which would translate into a loss of earning capacity.
The traditional view of damages is that you cannot separate the different heads of damages in such a manner as to decide one before the other, this essentially comes from the point of view that a loss of earning capacity should be bundled under general damages. The now infamous Deysel v RAF matter (unreported Bizos AJ) was and still is widely used in SGHC by RAF counsel (and some Judges) to force a postponement until general damages is decided (where these have been referred to the HPCSA) or to state that a loss of earning capacity should only increase the amount of general damages as the plaintiff will ‘struggle’ to do their job and an actual loss of earnings cannot be demonstrated.
It is however not that simple, a loss of earning capacity goes to the heart of the client’s ability to earn a living and in particular to the possibility of future loss of earnings due to time of work for treatment or losing out on a promotion. As much of last mentioned is often a possibility as opposed to a probability which would show a direct loss based on the evidence at hand, it cannot be ignored for various reasons. The court in Southern Insurance v Bailey (SCA) clearly stated that one cannot adopt a non-possumus attitude to loss simply because it cannot be quantified in general terms. A loss of earning capacity can also not be ignored because of the maxim of the ‘once and for all rule’ which does not allow a claimant to return for another slice of damages at a later stage.
This means that any possibility of a future loss must be taken into consideration over and above normal contingencies which an actuary would already be applying. These ordinary contingencies would not be visible in a calculation to an untrained eye as it is normally done by means of various algorithms that are automatically applied. Robert Koch in his book, The Quantum of Damages has various tables for longevity which are implemented automatically by actuaries based on the earnings and economic circumstances as well as for instance HIV status of a plaintiff (last mentioned can be more complicated though as the CD 4 count is taken into consideration) Koch also refers to normal contingencies being 5% (but for the accident on past loss) and 15% (now that the accident has happened on future loss). There is a myriad of case law on this aspect and in particular an old argument that a ½% per year should be allowed till date of retirement from date of calculation as a normal contingency) There is also a school of thought that feels that there should be no pre-morbid deduction of 5% (I’m one of them) as there is no possibility of anything unforeseen happening as it’s already in the past.
The above 5% and 15% is deducted from what the plaintiff would have earned if the accident did not happen for future possibilities such as death. The deduction is found in the first column of an actuarial calculation (depending on the actuary’s style) and is referred to as a negative contingency as it reduces your loss (explained below in more detail). The amount to be deducted from the second column is called a positive contingency as it increases the loss and this deduction is based on possibilities for a future loss of earning capacity including the prospect of early retirement. If one starts on Koch’s 15% as a normal contingency it would mean that one can never go lower than 15% on the positive deduction as that would mean that the plaintiff now has a better chance of survival than before the accident. One also cannot simply manipulate the contingencies where the plaintiff’s earnings is subject to the RAF CAP (Sweatman v RAF – SCA) without getting another calculation done unless the plaintiff falls far below the CAP. Simply lobbing off an amount from the total and calling it a contingency is also incorrect as the loss lies in the percentage difference between the negative and positive contingency and as such without a negative contingency being applied a positive contingency would skew the loss in favour of the defendant (see below).
A negative contingency can also be applied if the plaintiff is placed in a very high pre-earnings scenario, but for the accident, which scenario is for the most part only a possibility.
THE CALCULATION SIMPLIFIED
The easiest way to look at how the loss is calculated is to use an amount of R1000 in earnings for a client that could show no probability of loss, only a possibility and as such his earnings is calculated as also being a R1000 after the accident in question. We will ignore past loss.
BUT FOR THE ACCIDENT                                               NOW THAT
Earnings                    R1000                                                R1000
Less Contingency    15%                                                    25%
Equals                       R150                                                  R250
Loss                           R850                          minus            R750              = R100          
Without contingencies, no loss.
The calculation of the loss is based on what is referred to as a contingency differential i.e. the 10% difference between the 15% and the 25% and because the positive contingency is higher than the negative contingency you show a loss.
If the scenario was the other way around, say for instance where you reflect a loss based on a loss of a promotion (which was only ever a possibility) you can apply a negative contingency which would looks as follows.
BUT FOR THE ACCIDENT                                               NOW THAT
Earnings                    R10 000                                             R1000                       
Less Contingency    20%                                                    25%
Equals                       R 2 000                                              R 250
Loss                           R8 000                       minus            R 750             = R7 250      
Without contingencies, the loss would be R 9000, hence the application of the higher but for contingency being referred to as a negative contingency as stated before, it reduces the loss.

CONCLUSION

An actuarial calculation can be manipulated in several different ways to ensure that client has the best and most reasonable outcome in any claim for damages. Aspects such as retirement age as well as the date on which a client will stop getting salary increases and the discount rate applied for capitalisation can all have an impact on the loss and will explain why on the same facts two actuaries with different instructions can come to a completely different conclusion.