Harm to patients and others caused by impaired junior doctors compelled to work 30-hour shifts or longer : can the minister of health, provincial MECs for health and public health officials be held liable?

• DOI: 10.10520/EJC-4b18a6b8e
• Date: 01 November 2016
• Record Number: m_sajbl_v9_n2_a2
• Pages: 52-56
• Author: D. McQuoid-Mason
• Published date: 01 November 2016

52 November 2016, Vol. 9, No. 2 SAJBL

ARTICLE

It is alleged that junior doctors were subjected to ‘forced labour’

and ‘slave labour’ by being compelled to work 30-hour shifts and

its dangers were identied.[1] The warnings and recommendations

seem to have been ignored by the health authorities, except in the

Western Cape where shifts have been reduced to 24 hours.[2] The

ancé of a woman who died as a result of a motor accident caused by

a medical intern (who also died), who was tired because of working

‘extraordinarily long hours’, was going to sue the Department of

Health for her death. The Department of Health responded that it is

‘thinking of reviewing the policy’.[3]

Can the minister of health, provincial members of the executive

council (MECs) responsible for health, or other public health officials

be held directly liable for harm to patients, third parties or the

junior doctors themselves, caused by impairment of junior doctors

being compelled to work 30-hour shifts? Direct liability differs from

vicarious liability as such officials can be sued personally,[4] and can

be criminally charged or disciplined by the Health Professions Council

of South Africa (HPCSA). In a civil claim they may also be subjected

to vicarious liability in their representative capacity. Civil liability can

be imposed, irrespective of fault on their part, where they are the

employers, provided the junior doctors acted in the course and scope

of their employment.[5] However, they cannot be charged personally

with a crime or disciplined by the HPCSA if they were not at fault.

To decide whether public health administrators can be held

directly liable for harm to patients, third parties and the junior doctors

themselves, the following must be considered:

Do 30-hour shifts cause impairment?

The HPCSA Handbook on Internship Training states that medical interns

should not work continuously for more than 30 hours,[6] similar to the

original limit of the US Accreditation Council for Graduate Medical

Education (ACGME), which was widely criticised for putting medical

interns and patients at risk of harm.[7]

Studies on sleep deprivation and impaired performance by medical

interns in the US show that:

• after 24 hours of continuous wakefulness impairments in perfor-

mance are similar to those induced by a blood alcohol level of

0.10%[8]

• medical interns working 24-hour shifts made 36% more serious

medical errors and 460% more diagnostic errors than those

working 16-hour or shorter shifts[9]

• those working 24-hour shifts also had a 61% chance of needlestick

and other sharps injuries[10]

• and the chances doubled of those working 24-hour shifts being

involved in motor collisions on the way home from work.[11]

The ACGME requirements have been amended so that the duty period

of rst-year medical interns does not exceed 16 hours and for other

interns does not exceed 24 hours.[12] The dangers to medical interns

and patients of the South African (SA) rule based on the criticisms of

the earlier 30-hour ACGME requirements in the US have been drawn

to the attention of the HPCSA, provincial MECs for health and the

minister of health by petitions from junior doctors. They requested

that there should be ‘an immediate 24-hour cap to all shifts with

further review and reduction to 16 hours in future’.[13]

Can junior doctors be compelled to work

30-hour shifts?

Junior doctors undertaking community service lack bargaining power

because they are compelled to work 30-hour shifts, failing which

This open-access article is distributed under

Creative Commons licence CC-BY-NC 4.0.

Harm to patients and others caused by impaired junior

doctors compelled to work 30-hour shifts or longer: Can the

minister of health, provincial MECs for health and public

health ocials be held liable?

D McQuoid-Mason, BComm, LLB, LLM ,PhD

Centre for Socio-Legal Studies, University of KwaZulu-Natal, Durban, South Africa

Corresponding author: D McQuoid-Mason (mcquoidm@ukzn.ac.za)

Junior doctors in most provinces in South Africa are compelled to work 30-hour shifts without a break. Shifts in excess of 24 hours can result

in serious bodily harm to patients, third parties and the doctors themselves. These risks have been drawn to the attention of the health

authorities but the 30-hour policy continues to be implemented in all provinces, except recently in the Western Cape.

Public health ocials may be held directly liable for the harm caused to patients, third parties or the junior doctors themselves, if it can be

shown that they are at fault and are acting unlawfully in violation of the Constitution. Where ocials carry out the unlawful orders of senior

ocials, including the minister of health and provincial members of the executive council (MECs) for health, they may not raise the defence

of ‘obedience to orders’ and may be held directly liable for harm caused. Superior ocials issuing such orders will also be held directly liable

for harm caused.

S Afr J Bioethics Law 2016;9(1):52-56. DOI:10.7196/SAJBL.495