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?

Abstract

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 officials 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 officials carry out the unlawful orders of senior officials, 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 officials issuing such orders will also be held directly liable for harm caused.