Health Minister Aaron Motsoaledi needs to probe the true cause of the massive lawsuits channelled against his department, says the BLA.
Motsoaledi seeks to deny members of the public the right to be represented by the legal practitioners of their choice when seeking recourse or relief for the injustices (and to some extent the physical violation) they suffer in public hospitals
To accuse the legal profession for the problems the Department of Health finds itself in will not assist at all.
What the minister needs is to do self-introspection and investigate the true cause of the massive lawsuits channelled against his department, as opposed to finger-pointing. Blaming the legal practitioners for the offences will not vindicate the minister.
The most effective path the minister could pursue, in avoiding legal actions against his department, would be to inculcate a sense of accountability and duty of care in his employees, and provide correct and adequate medical machinery in the public hospitals.
The attitude adopted by the Department of Health towards the legal profession explains the disregard towards the legal system in general – legal practitioners in particular.
The minister’s main worry is the huge legal costs facing his department, arising from its disregard for the courts’ judgments.
In a democratic state, all are equal before the law. Even a government department must be subject to law. We expect the Department of Health to honour court orders, otherwise there will be execution of property and equipment.
The BLA would like to remind the minister that the right to have access to health care guaranteed to the people of South Africa, in section 27 of our constitution, means a right to have access to proper and adequate health care free from medical malpractice and other unethical practices.
The link between the right to have access to health care and human rights is inextricable, as a violation of health rights is therefore a violation of human rights.
Our members and members of the legal profession as a whole, as vanguards of human rights and dignity as well as protectors and promoters of the constitution, are within their rights and constitutional imperatives to pursue legal action against the Department of Health if their clients’ rights are violated.
The BLA finds it a serious setback and regrettable that our sister organisation, the South African Medical Association (Sama), has joined the fray in support of the minister in an orchestrated assault on the rights of the downtrodden and victims of malpractice in the public health-care system.
Sama, like the BLA, must be heard to campaign for higher professional standards by its members when treating members of the public. It sends frightening shockwaves for Sama to preach against accountability. In a way, it sounds as if medical malpractice must go unpunished.
We implore all involved not to create the impression that the medical and legal professions are antagonistic towards each other. The two professions need and complement each other.
If the minister of health succeeds with his intended scheme, it is the poor who are going to be the victims. It is mainly the poor who visit the public hospitals and who, in turn, are the victims of medical malpractice by poorly equipped hospital staff using inadequate medical equipment and medication.
These are the people who do not have access to medical insurance. To guarantee even the poor access to justice, legal practitioners take cases, including medical malpractice cases, on a contingency basis.
If the minister is proud of the service he is providing to the nation in the hospitals under his jurisdiction, he must not be worried by lawsuits against his department. Instead, he must welcome it as a constant reminder of the standards that need to be reaffirmed.
When, in March 2012, the Health Professions’ Council of South Africa (HPCSA) launched a nationwide campaign urging patients to report unethical conduct and other medical malpractice, it was aware of the fact that complacency and cover-ups do not do the medical profession any good. That is what we expect of the professional organisation.
In as much as it may promote the profession, it must as much as it can protect the interests of the members of the public.
It will be a dereliction of our duties and a sad day if legal practitioners were to abandon invoking legal remedies, in particular for the poor and downtrodden, flowing from the unreasonable apprehension that specialists in the medical profession will run dry for fear of legal suits.
We condemn the minister’s intended move as ill-conceived, for it does not address the problems in public hospitals. In a way, it exacerbates the already appalling situation.
Equally, it is important to engage with stakeholders before making sweeping generalisations against the profession.
*Mabunda is president of the Black Lawyers Association
** The views expressed here are not necessarily those of Independent Media.
Cape Times