Lawyers merely uphold patients’ rights
THE Black Lawyers’ Association finds the call by the Minister of Health, Aaron Motsoaledi, 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 the public hospitals, to be outrageous and repulsive.
To accuse the legal profession for the problems the Department of Health is finding itself in will not assist at all.
What the minister of health needs to do is investigate the true cause of massive lawsuits that are channelled to his department, as opposed to finger pointing. Blaming the legal practitioners for offences committed will not vindicate the minister.
The effective way for the minister to avoid legal actions against his department is to inculcate a sense of accountability and the duty of care in his employees, and by providing the correct and adequate medical equipment in public hospitals.
The attitude adopted by the Department of Health towards the legal profession explains a scant regard for the legal system in general and the legal practitioners in particular. The minister’s main worry is the huge legal costs bill 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 is 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 the constitution means a right to have access to proper and adequate health care, free from medical malpractice and other unethical practices.
Inextricable
The link between the right to have access to health care and human rights is inextricable. 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 lactions 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, has joined the fray in support of the minister in an orchestrated assault on the rights of the downtrodden victims of malpractice in public health care.
The Medical Association, like the BLA, must be heard to propagate for higher professional standards of its members when treating members of the public. It sends frightening shockwaves for it to preach against accountability and in a way that sounds as if medical malpractice should go unpunished.
The medical and legal professions must not be antagonistic. They 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 victims of medical malpractice.
These are people who do not have access to medical insurance. To guarantee even the poor access to justice, legal practitioners take cases – including medical malpractice – on a contingency basis.
If the minister is proud of the service he is providing, he should not be worried by lawsuits; he should welcome them as a constant reminder of standards.
In March 2012 when the Health Professions Council of South Africa launched a nationwide campaign urging patients to report unethical conduct and other medical malpractice, it was alive to the fact that complacency and cover-up do not serve the medical profession.