Patient and Practice Legal Guidelines

The relationship between the patient and the healthcare practitioner: the legalities

Mastering the theory of diseases and treatment, and the technical skills to perform intricate diagnostic and therapeutic procedures, is only one aspect of being a good doctor. True caregiving is rooted in a doctor-patient relationship that is based on empathy, mutual respect, trust and two-way communication. To ensure that patients’ rights are protected and their needs met in the best way possible when entering the healthcare system, there is a broad legal framework that governs the duties and conduct of those rendering services within it. 

The Constitution

Patients’ rights have their origin in the countries’ constitution. Those that are particularly relevant when it comes to the rendering of healthcare, and as stipulated in the Bill of Rights of the South African Constitution, include the following:

  • Section 9: Right to equality (non-discrimination)
  • Section 10: Right to dignity
  • Section 11: Right to life
  • Section 12: Right to bodily and psychological integrity
  • Section 14: Right to privacy
  • Section 27: Right to healthcare services
  • Section 27(3): No one may be refused emergency medical treatment
  • Section 33: Right to lawful, reasonable, and procedurally fair administrative actions

Ethical and professional rules of the HPCSA

The relationship between the patient and the practice is governed by law and the rules of the Health Professions Council of South Africa (HPCSA). The HPCSA’s mandate is to guide the professions and protect the public (patients). Rule 27A of the “Ethical and Professional Rules of the HPCSA” states that the main responsibilities of a health practitioner towards patients are to:

  • act in the best interests of his or her patients; 
  • respect patient confidentiality, privacy, choices and dignity;
  •  maintain the highest standards of personal conduct and integrity;
  • provide adequate information about the patient’s diagnosis, treatment options and alternatives, costs associated with each such alternative, and any other pertinent information to enable the patient to exercise a choice in terms of treatment and informed decision-making pertaining to his or her health and that of others;
  • keep his or her professional knowledge and skills up to date;
  • maintain proper and effective communication with his or her patients and other professionals;
  • except in an emergency, obtain informed consent from a patient or in the event that the patient is unable to provide consent for treatment himself or herself, from his or her next of kin; and 
  • keep accurate patient records

Legal aspects of the doctor-patient relationship

Doctor-patient contract

A patient who consults a doctor in private practice enters a contractual relationship with that practitioner. In return, the doctor owes the patient a duty of care, i.e. to treat the patient with the necessary skill and competence. In terms of this contract, the doctor is also entitled to payment for his or her professional service. If the doctor departs from the agreement with the patient, e.g. disregards the patient’s express instructions, or fails to treat the patient without good reason, or fails to satisfy a guarantee given to a patient, the doctor may be sued for breach of contract and may be denied the right to claim remuneration for services rendered.

Rights of patients

Patients have the right to be treated equally and not to be subjected to unfair discrimination and to have their dignity respected and protected. The right to bodily and psychological integrity includes the right to make decisions concerning reproduction, security in and control over their body, and not to be subjected to medical or scientific experiments without their informed consent. 

Duties of patients

Contractually, patients should make themselves available for treatment. However, if they fail to do so, they cannot be forced by a doctor to submit to treatment. A patient who fails to keep a scheduled appointment with a doctor, may in some instances, be held liable for the loss of that revenue by the doctor.

Confidentiality

A practitioner is required to treat all patient-related information as confidential unless a patient provides express consent for specific information to be shared with others.  There may also be instances where public interest justifies breach of confidentiality.  Occasionally, a court of law may rule that certain facts relating to patients should be divulged. In the case of a minor under the age of 12 years, the written consent of his or her parent or guardian must be provided. In the case of a deceased patient, the written consent of his or her next of kin or the executor of the deceased patient’s estate must be obtained.

Informed consent

To establish trust, practitioners must respect patients’ autonomy, which is their right to decide whether to undergo any medical intervention, even where a refusal of treatment may result in harm to themselves or their own death. Patients must be given enough information in a way that they can understand, to enable them to exercise their right to make informed decisions about their care. This is what is meant by obtaining proper informed consent. In surgical procedures or complex medical treatment, the consent of the patient must be in writing.

Treating patients ethically is not only the right thing to do, but it is also a legal requirement. Being respectful of patients’ needs and their right to privacy and choices, and communicating openly and transparently, will support the best clinical outcomes for patients, as well as protect doctors against future medicolegal challenges.

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