One of the big challenges in curbing the Covid-19 pandemic worldwide has been the polarisation of beliefs around key issues such as vaccines, treatments, the implementation of precautionary measures such as the wearing of masks and the origin of the virus. Everyone seems to have an opinion with many of these beliefs unfortunately being based on misinformation and conspiracy theories. In the South African medical fraternity, the spreading of unfounded opinions by healthcare professionals, particularly around COVID-19 vaccines has caused a public outcry in recent weeks with professional organisations distancing them from these views, and a warning being issued by SAMA that it could lead to a conviction or a fine. However, where do you draw the line when healthcare professionals voice their personal opinions about such issues and in some cases even spreading it to their patients or discouraging them to get the jab?
MedBrief Africa approached medico-legal experts at professional indemnity provider, EthiQal to provide some clarity on what the law says about healthcare professionals spreading inaccurate and unscientific opinions in public or to their patients, what the implications for these providers may be and how the spread of misinformation can potentially be handled. The questions were answered by EthiQal’s senior lead of Clinical Risk Management, Dr Bettina Taylor, Medico-legal Risk Advisor, Dr Hlombe Makuluma and Senior Legal and Claims Manager JP Ellis.
Q: How do you define misinformation?
A: Misinformation refers to the spread of false or inaccurate information. This can be deliberate, with the intention to deceive. It can also be unintended and based on ignorance. There is furthermore the scenario where the spread of misinformation is aimed at driving political agenda, irrespective of the truth of the matter. It is different to the expression of scepticism which refers to the questioning of specific beliefs.
When assessing the legal and ethical implications of the spread of misinformation, together with potential ways of addressing this, it is not only important to differentiate in terms of above, but also to consider the following:
In medicine, it is common for key opinion leaders to have different opinions. What one may deem as true and accurate, another may deem as false and inaccurate. When accusing an individual of the spread of misinformation, it is important to understand the level of evidence underpinning the so-called true and accurate information, and to what extent such evidence has been accepted by trusted parties.
Information in medicine changes rapidly. A concept that was once accepted by the mainstream scientific community may become misinformation because of a later evaluation of previous research. This has been particularly marked during Covid, where new information emerges daily (whether it be on a new variant of the virus, a new drug, a new technology, another clinical study). Staying abreast of relevant developments is challenging.
There has been a growing distrust of big pharma and biotech companies before Covid, influenced by amongst other things data manipulation, withholding of scientific data and the influence of key opinion leaders to interpret data in a beneficial way. Thus, even within highly scientific communities there is often concern in terms of which data can be trusted.
Covid has fuelled distrust in many institutions following political interference, widespread corruption and irrational decision-making.
Medicine isn’t an exact science. We don’t have cures for everything and don’t know everything about the human body. That leaves a lot of room for misinformation.
The general public has difficulty distinguishing between science and its imitators.
Q: What does the law say about doctors spreading misinformation about evidence-based therapies or other interventions?
A: This is a complex question because doctors are professionals that are governed by a code of professional conduct. The transition into being a professional is through the public act of ‘oath taking’, where the doctor agrees to conform to certain standards of personal behaviour and codes of practice.
As a medical professional a doctor is expected to abide by a set of values, behaviours and relationships that underpin the trust society has in doctors. Society grants the profession autonomy of practice and self-regulation which includes its own disciplinary mechanisms. In South Africa, the legal and ethical aspect of the profession is governed by the Health Professions Council of South Africa (HPCSA).
In terms of patients’ rights, the National Patients Health Charter of 2008 states that “everyone has a right to be given full and accurate information about the nature of one’s illnesses, diagnostic procedures, the proposed treatment, and the costs involved for one to make a decision that affects any one of these elements.”
With regards to healthcare professionals’ obligations, rule 27A of the Ethical Rules of Conduct for Practitioners registered under the Health Professions Act, 1974, states that a practitioner shall at all times 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.
Thus, the law requires that patients must be given accurate and relevant information, including the material risks and consequences of different clinical management approaches, including no treatment.
Booklet 1 of the HPCSA’s Ethical Guidelines furthermore requires healthcare practitioners to always act in the best interests of their patients and regard the clinical needs of their patients as paramount. In addition, doctors must make sure that their personal beliefs do not prejudice their patients’ health care. If they feel that these might affect the treatment and advice they provide, they must explain this to their patients, and inform them of their right to see another healthcare practitioner. It also states that doctors should acknowledge the limits of their professional knowledge and competence and they “should not pretend to know everything”.
Rule 1 (a) of the Rules of Conduct pertaining specifically to the Medical and Dental Professions (Annexure 6 of the Ethical Rules of Conduct for Practitioners registered under the Health Professions Act, 1974) states that a medical practitioner or medical specialist shall perform professional acts only in the field of medicine in which he or she was educated and trained and in which he or she has gained experience, regard being had to both the extent and the limits of his or her professional expertise.
Spreading misinformation by a doctor will most likely be deemed to be unprofessional conduct that can attract sanction from the HPCSA.
In the context of Covid, doctors are also not exempt from the fines or imprisonment of up to 6 months that may be imposed under the Disaster Management Act as a result of the spread of Covid-related misinformation.
Q: There is sometimes a fine line between a doctor’s beliefs and knowledge and what he/she can/cannot do with that knowledge or belief system. In what instances can a doctor share his/her own opinions and how can it be done NOT to confuse patients who don’t have all the facts?
A: We must differentiate between facts and beliefs. Ethical guideline 5 of Booklet 1 of the HPCSA’s Ethical Guidelines states that doctors should make sure that their personal beliefs do not prejudice their patients’ health care. Beliefs that might prejudice care relate to patients’ race, culture, ethnicity, social status, lifestyle, perceived economic worth, age, gender, disability, communicable disease status, sexual orientation, religious or spiritual beliefs, or any condition of vulnerability. If doctors feel that their beliefs might affect the treatment they provide, they must explain this to their patients, and inform them of their right to see another doctor.
While a doctor is free to share personal opinions, this should always be within the confines of the law and ethical guidelines, taking into consideration the context in which this is provided (e.g., patient consultation, public platform, personal communication, academic debate). For example, ethical rule 8 of Booklet 16 which deals with social media states that if health advice is shared online, it must be evidence-based, scientifically sound and generic and the recipient must be directed to consult with a health practitioner in person before following through.
Where a practitioner differs in terms of the interpretation of scientific data and application thereof in public policy, reasons for this should be articulated clearly with the relevant supporting scientific facts and via the appropriate channels. Doctors should refrain from expressing controversial scientific opinions outside of their field of expertise where such opinion is likely to influence a patient’s decision or where it draws public attention.
Q: What if a healthcare professional keeps on spreading unfounded opinions about the vaccine even though the vaccine has been registered by SAHPRA and there is widespread acceptance by professional bodies and infectious disease specialists that the benefits outweigh any potential risks, and that widespread administration is important in terms of public health policy?
A: We need to establish why the practitioner is not accepting this view. Is there doubt in the scientific data? Does the doctor reject all vaccines because of religious beliefs? Is there a political agenda? If the practitioner’s conduct is deemed harmful, possible avenues include education, peer pressure, public distancing or confrontation and complaints to the HPCSA.
Q: In the US there are now measures being put in place that could see healthcare professionals losing their licences for spreading vaccine misinformation. Is it too harsh or what needs to be done to ensure that doctors stop doing it?
A: There is an implicit agreement between medicine and society entailing reciprocal rights and obligations which is called a social contract. Under the contract, doctors have convinced society that science-based medicine is superior to alternative therapies. Based on this, society has granted power to doctors to be the custodians of medicine. One of the obligations of the medical profession is to set standards of practice and to ensure that these standards are met, and to remediate or discipline unethical, immoral, or incompetent practices.
As society views doctors as a group, not as individuals, any doctor that spreads misinformation is breaching the professional code, where the misinformation will easily be misconstrued as a medical professional view or at worst will cause irreparable damage to the trust society has granted to the profession. Therefore, the profession must take appropriate steps to discipline members who spread potentially harmful misinformation. Any sanction must be determined by the disciplinary process, taking into consideration the specific circumstances and facts relating to a case of misinformation.
Q: Does the HPCSA have the necessary powers to stop healthcare professionals from spreading inaccurate information?
A: Amongst the most important functions of the HPCSA is the maintenance of standards in the fields of ethics and discipline. To fulfil its disciplinary remit, the HPCSA can charge the doctor with unprofessional conduct. Unprofessional conduct is defined as ‘improper or disgraceful or dishonourable or unworthy conduct by a person who is registered in terms of the Health Professions Act’. Sanctions are decided in relation to the gravity of the misconduct. The HPCSA could sanction the doctor with a fine, caution or reprimand or both, suspension for a period, or removal of his/her name from the register.
Q: What can happen to a doctor who tells a patient not to vaccinate and the patient becomes severely ill or dies?
A: If the doctor advises the patient not to vaccinate on the basis of misinformation rather than valid clinical reasons like, for example, previous severe allergic reactions to components of the vaccine, the doctor could be charged for unprofessional conduct by the HPCSA, irrespective of consequences to the patient.
Depending on the circumstances and assuming a patient’s decision not to vaccinate was demonstrably influenced by a practitioner’s direct sharing of misinformation, a patient or patient’s family may also institute a civil or criminal case of medical negligence against a practitioner. In a civil case the causal link must be proved on a “balance of probability” whereas in any criminal prosecution for culpable homicide, a causal connection must be proved between the death and the doctor’s conduct “beyond reasonable doubt” (i.e., a high degree of probability). The possibility of establishment of a causal link would depend on details relating to the specific case.