Opinion on Medical Malpractice by Samantha Varela, Senior Legal Risk Advisor at Aon South Africa

There is never a better time to be more aware of risk management than now. In an increasingly litigious society, medical practitioners are urged to stay up to date and informed of all the rules that regulate the profession. At Aon, we understand that this is no easy task. Following certain ethical queries raised by our clients, we provide a concise summary of the relevant rules from the HPCSA around what can and cannot be advertised by means of taking pictures and also sharing them on platforms such as social media, from a medical malpractice perspective.

The definition of social media is contained in rule 3.1 of booklet 16 - Guidelines on social media: “Social media describes the online tools and electronic platforms that people use to share content such as opinions, information, photos, videos and audio”

An example of one such question includes: Can I post/share pictures/ photos of my patients i.e. that come in for aesthetic treatment to showcase the progress and impact of treatment?

In order to answer these questions, an understanding of the rules, weighed up against what exact pictures are being posted, the platforms or ways in which the pictures are shared and the message communicated by such pictures, is crucial.

MAINTAINING PROFESSIONALISM

It is imperative for practitioners to always maintain the highest level of utmost professionalism. This must be highlighted and considered when practitioners consider engaging in social media:

Rule 7 of the Ethical Guidelines on Social Media (Booklet 16) sets out that:

• “7.1 Interaction between health practitioners and their patients on social media can blur the boundaries of the professional practitioner-patient relationship.
• 2 Health practitioners are advised not to interact with patients via social media platforms as a failure to maintain strictly professional relationships with patients could result in other ethical dilemmas.

THE IMPORTANCE OF THE CONCEPT OF PROFESSIONAL CONFIDENTIALITY

Patients maintain their right to confidentiality and the HPCSA specifically set out that it is imperative that practitioners obtain the express and written consent before disclosing any patient health information to any third party. The rule specifically sets out that:

“Rule 13 of the Ethical and Professional Rules of the HPCSA (booklet 2) details:

Professional confidentiality                                                                  

13. (1) A practitioner shall divulge verbally or in writing information regarding a patient which he or she ought to divulge only –

(a) in terms of a statutory provision;

(b) at the instruction of a court of law; or

(c) where justified in the public interest.

(2) Any information other than the information referred to in subrule (1) shall be divulged by a practitioner only –

(a) with the express consent of the patient;

(b) in the case of a minor under the age of 12 years, with the written consent of his or her parent or guardian; or

(c) in the case of a deceased patient, with the written consent of his or her next-of-kin or the executor of such deceased patient’s estate.

The importance of consent is reiterated in Rule 6.3 of the social media guidelines which sets out that:

“Health practitioners must obtain the written consent of the patient before publishing information (e.g. case histories and photographs) about them in media to which the public has access, whether or not the health care practitioner believes the patient can be identified by the data.”

Rule 3 - Canvassing and Touting

An unpacking of the understanding of what an Advertisement (also considered as making services known) exactly is in this context, has relevance:

3. (1) A practitioner shall be allowed to advertise his or her services or permit, sanction or acquiesce to such advertisement: Provided that the advertisement is not unprofessional, untruthful, deceptive or misleading or causes consumers unwarranted anxiety that they may be suffering from any health condition.

(2) A practitioner shall not canvass or tout or allow canvassing or touting to be done for patients on his or her behalf.

Canvassing can be described as the promotion of one’s professional goods and services by drawing attention to one’s personal qualities, superior knowledge, quality of service, professional guarantees, or best practice, this can be done either verbally or even by way of printed or electronic media. 

It is common cause that in a situation whereby a practitioner uses pictures of patients results, like for example aesthetic procedures performed, on social media, even if they obtain their patients consent, may (in certain circumstances) in fact potentially, amount to canvassing.

Touting is defined in booklet 2 as “conduct which draws attention, either verbally or by means of printed or electronic media, to one's offers, guarantees or material benefits that do not fall in the categories of professional services or items, but are linked to the rendering of a professional service or designed to entice the public to the professional practice.”

The following examples have reference: “I am the best Gynaecologist in town” or “I provide the best counselling services in town, compared to any other Psychologist”, or “free Wi-Fi inside our practice rooms” etc.

Maintaining a Professional Image

We highlight the following Paragraph 8 of the ETHICAL GUIDELINES ON SOCIAL MEDIA which speaks specifically to the health profession’s image. Clause 8.4 specifically sets out the following:

• “8.4 Social media activities health practitioners should avoid for example include:
• 4.1 Taking photographs during surgery and other forms of care or treatment”

Professional Indemnity Policy considerations:

Professional indemnity policies obtained through Aon, subject to the terms and conditions of the policy provide cover for representation at the HPCSA for regulatory or disciplinary enquiry or process, provided that the enquiry or process relates to their Services as defined in the policy schedule, keeping in mind that if fines and penalties are imposed that will not be covered in terms of the policy.

Conclusion

Practitioners are always advised to ensure that they keep up to date and informed of regulations applicable to them and that they seek clarity from the Health Professions counsel if they require any clarity.

It is very important for practitioners to keep in mind that the rules, regulations and legislation that apply to the profession must be read in conjunction with each other and can’t be read in isolation.

We draw attention to the guidelines on social media which should be read in conjunction with the ethical rules (Booklet 2) and the other ethical guidelines, which include but are not limited to Booklet 1, 4 and 5.

• Booklet 1 - General ethical guidelines for health care professions
• Booklet 4 - Seeking patients' informed consent: The ethical considerations
• Booklet 5 - Confidentiality:  Protecting and providing information

It is crucial to speak to an expert broker in the field of medical malpractice in order to have a clear understanding of the risks you may be faced with and what the best options would be to pursue to mitigate and manage your potential risk. Practitioners are reminded of the utmost importance of familiarising yourself with all the rules and guidelines of the HPCSA and to seek guidance where necessary.