Doctor’€™s conscience in court Living with AIDS # 326

Written by Health-e News

After what he calls ‘€œmany years of government stalling’€, this week the Labour Court finally heard the case of a former Mpumalanga doctor. Dr Malcolm Naude is challenging the Mpumalanga Department of Health for dismissing him, he alleges, on the grounds that he provided antiretroviral treatment to rape survivors.

KHOPOTSO: In 2001, Dr Malcolm Naude, a young doctor who had just completed his community service claims he was ‘€œunfairly’€ dismissed from his new post as a medical officer at Rob Ferreira Hospital in Mpumalanga province. His axing followed his support of a programme called GRIP, the Greater Nelspruit Rape Intervention Programme, which had started offering post-exposure prophylaxis, which included antiretroviral medication that reduces the risk of HIV infection in people who have been raped. Naude remembers that the provincial MEC for Health at the time was Sibongile Manana.    


Dr MALCOLM NAUDE: Round about October of 2000, the MEC started to take exception to doctors who were prescribing antiretrovirals as part of a post-exposure prophylaxis programme to these survivors’€¦ and it eventually led to the eviction of GRIP in February of 2001 from the Rob Ferreira Hospital, thus limiting the effectiveness of the whole rape crisis intervention. Basically, that led to me signing an affidavit in June 2001 and a couple of weeks after that I heard via the grapevine that I was not in the employ of the Department anymore. And it took another five months to get an official answer from the Department of Health that I was not employed anymore.  


KHOPOTSO: Dr Naude’€™s axing came at a time when government policy was against the provision of antiretrovirals in the public health sector. After six years of his dismissal, he’€™s still pursuing the case. Why is that?


Dr MALCOLM NAUDE: I think the important thing for me is that it’€™s the right thing to do. Doctors, no matter who they work for and what kind of environment they’€™re in, should be able to make decisions that have their patients’€™ best interests at heart, and if that’€™s in contradiction to national policy or a regional whim, doctors should be able to make decisions that look after their patients and make sure that they have the best possible medical care.        


KHOPOTSO: Naude’€™s attorney, Dan Pretorius, nods in agreement.


DAN PRETORIUS: I think it is an issue for us now that there seem to be a number of reprisals, almost, by the Department of Health against people who speak out and who obey their consciences and who feel forced to think about what would be best for their patients.


KHOPOTSO: Pretorius says her client might be prepared to settle his dispute with the Department of Health and part of what he is seeking from the Department is simple.


DAN PRETORIUS: What we’€™re looking for is an acknowledgement that doctors have to obey their own consciences; that doctors have ethical responsibilities; that doctors should put the interests of their patients first. The ordinary way of looking at those is by saying that any civil servant must obey the Batho Pele principles.


KHOPOTSO: The case could have wide implications for doctors working in the public sector. Naude’€™s attorney says they want the Labour Court to pronounce that it is unfair to dismiss health professionals who act in accordance with their professional ethics, which require doctors to do no harm and act in the best interests of their patients.


DAN PRETORIUS: When it comes to doctors their main code of ethics is the ancient Hippocratic Oath, and so far we haven’€™t managed to get the Department of Health to sign an acknowledgement saying that those things apply to doctors in state hospitals. And that’€™s a settlement proposal that we’€™ve got and they haven’€™t agreed to make that acknowledgement.          


KHOPOTSO: Dr Naude wasn’€™t the only one to take the chop in the Rob Ferreira matter. The hospital superintendent at the time, Dr Thys von Mollendorf, was also fired.


Dr MALCOLM NAUDE: He also approached the courts for redress. An out-of-court settlement was reached and he was supposed to be paid out a certain amount in compensation, and that still hasn’€™t happened on the side of the Department of Health. So, it seems like it’€™s one of their operating tactics ‘€“ to delay and weigh you down until, they hopefully, think you’€™ll go away. But I don’€™t think this is going to happen.


KHOPOTSO: Naude’€™s turn to argue his case before the court came late, but he’€™s still happy that it’€™s here. On Tuesday, his legal representative agreed to a postponement. The case will be heard again on the 06th of December.


Dr MALCOLM NAUDE: I’€™m trying to make it easier for doctors who get into my position later on not to have to go through the same thing; not to fear a reprisal that they might lose their job; that they might lose a promotion if they are going to differ from their employer on an ethical or a medical issue like this.                                          


KHOPOTSO: After his dismissal, Dr Naude went to work overseas but is now back in  South Africa working with rape survivors in the private health sector.



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