Medico-Legal Summit 09 & 10 March 2015 Commission 6 ACCESS TO JUSTICE

QUESTIONS FOR CONSIDERATION How do we achieve compensatory justice for patients? Are the courts the only vehicle for access to justice? What are the alternative forms of compensation for medico-legal claims? Mechanisms that will achieve speedy resolution of cases? Is no fault compensation a viable option? 2

ACHIEVE COMPENSATORY JUSTICE How do we achieve compensatory justice for patients? Constitution the point of departure Sect 10: Everyone has inherent dignity and the right to have their dignity respected and protected. Sect 12: Everyone has the right to bodily integrity. Sect 27: Everyone has the right to have access to health care services. 3

ACHIEVE COMPENSATORY JUSTICE (2) People’s rights and public interest are paramount These rights are also protected in terms of the common law Can therefore claim in terms of the common law as well as constitutional law Key concern: how does one achieve sustainable compensatory justice for patients? In practice: claims for negligence usually brought as delictual claims 4

ACHIEVE COMPENSATORY JUSTICE (3) Problem: the current system of dealing with medical legal claims is not affordable or sustainable. Proposal: deviation from the common law advisable for dealing with medical legal claims. However: extent and manner of deviation will have to be investigated and determined. Comparison with RAF legislation with regard to the principle of deviating from the common law. 5

ACHIEVE COMPENSATORY JUSTICE (4) However: RAF legislation not viable as a model for medical legal claims legislation in SA. Take lessons learnt from RAF model Look at legislation dealing with medical legal claims in other countries. Other examples suggested for purposes of research: CCMA model, MBOD. 6

ACHIEVE COMPENSATORY JUSTICE (5) Look into possibility of specialised courts for medical legal claims Adversarial system v inquisitorial system: consider applying the inquisitorial system for dealing with medical legal claims. Ombudsman/mediation as compulsory initial steps. Look into possibility of establishing a statutory body / tribunal with own experts to investigate and deal with medical claims. 7

COURTS THE ONLY VEHICLE? Are the courts the only vehicle for access to justice? Litigation costly and time-consuming. Address problems with the Medical Professions Council – will also reduce number of claims Establish additional avenues resolving claims to keep it out of the courts: – Independent medical ombudsman (binding decisions) – Mediation – Look at CCMA model 8

ALTERNATIVE FORMS OF COMPENSATION What are the alternative forms of compensation for medico-legal claims Free medical treatment in state hospitals not an option (RAF court case) Monetary compensation remains the most viable option Manner in which compensation is paid could be different Take payments from other sources into consideration 9

ALTERNATIVE FORMS OF COMPENSATION (2) Prove claim in the usual manner, but pay periodically or structure payments over the lifetime of the claimant. Periodic payments will do away with difficult and sometimes speculative life expectancy evidence. Passive permutation Payments to children or mentally disabled: create trust / pay into guardians fund / appoint curator bonis. Fairness and equity in payment of claims 10

MECHANISMS FOR SPEEDY RESOLUTION First principle: if there is no negligence, there is no claim. Start at the beginning: If hospitals are properly managed and run (also RWOPS), effective communication is in place, procedures are in place and implemented, staff trained, proper records kept and maintained, complaints dealt with effectively and timeously, most claims will be avoided. Do not defend unwinnable cases – settle as many cases as possible as early as possible. 11

MECHANISMS FOR SPEEDY RESOLUTION (2) Instil ethics of care in health care staff There are suggestion boxes; existing structures for resolving complaints in hospitals; reporting requirements from national Departments etc, BUT this has to be strengthened and properly managed, otherwise it just becomes a paper exercise. The more complaints resolved at grassroots level, the less complaints that will eventually result in claims. 12

NO FAULT COMPENSATION? There are examples of no fault compensation in other jurisdictions such as New Zealand and Scandinavian countries. However: these are affluent countries with small populations and strong social support systems – not viable for SA due to cost implications and size of population dependant on public health care. Capping / no fault compensation will require proper and thorough investigation. Other possibility: capping of claims – courts however not amenable to this. 13

CAVEAT No single solution – problem requires a multi- disciplinary approach Look at variety of possible solutions: – Immediate: improved hospital processes and management, mediation – Short-term: Ombudsman, Medical Professions Council – Medium-term: Legislative amendments, training – Long term solutions: Comprehensive new legislation Do not over-legislate: keep legislation practical, affordable, implementable. 14

CAVEAT (2) Do not over-legislate: keep legislation practical, affordable, implementable. Do not create additional structures that will lengthen processes and use resources without adding value. Source of funding for a central fund / statutory body to be created to address medical legal claims a concern: will it be funded by government or an additional tax or levy? 15