Doctor with conscience back in court Living with AIDS # 349

Doctor with conscience back in court   Living with AIDS # 349Dr Malcolm Naude, a former Mpumalanga doctor is back in court to force the government to settle a case dating back to 2001. He charges that the withdrawal of his offer of employment by Mpumalanga'€™s Rob Ferreira Hospital, was unfair and discriminatory.

Dr Malcolm Naude, a former Mpumalanga doctor is back in court to force the government to settle a case dating back to 2001. He charges that the withdrawal of his offer of employment by Mpumalanga’€™s Rob Ferreira Hospital, was unfair and discriminatory.

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KHOPOTSO: In papers lodged with the Labour Court in Johannesburg, Dr Malcolm Naude claims that in 2001 the Mpumalanga Department of Health discriminated against him and unfairly denied him a position as a junior medical officer at Rob Ferreira Hospital. He had applied for the post after serving as a community service doctor at the facility. Naude believes that the employment offer was withdrawn after he signed an affidavit in support of the Greater Nelspruit Rape Intervention Programme (GRIP). At the time GRIP provided antiretroviral medicine as post-exposure prophylaxis to prevent HIV infection in rape survivors. This wasn’€™t government policy at the time. The AIDS Law Project is representing Naude in the case. Here’€™s the ALP’€™s Mark Heywood.  


MARK HEYWOOD: He’€™s alleging that this is victimisation; that he’€™s been unfairly discriminated against because of his speaking out in defence – and speaking out because he felt that he has an ethical obligation as a doctor to follow his conscience and to advise on what he considers the best interest of patients.


KHOPOTSO: Naude’€™s conscience got him into direct conflict with the then provincial Health MEC, Sibongile Manana. He remembers that Manana was forceful in her opposition to antiretrovirals and the activities of GRIP at Rob Ferreira Hospital.


Dr MALCOLM NAUDE: 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, and 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: Naude, who is now working in the private health sector, firmly believes that had he not signed the affidavit in support of GRIP to provide ARVs to survivors of rape, the offer of employment as junior medical officer would have remained. More than six years after the withdrawal, he’€™s still pursuing the matter. However, he says the objective is not to have the offer reinstated if he wins the case.


Dr MALCOLM NAUDE: With this case, what we’€™re trying to do is (to) basically ensconce the right of a doctor to make the right decision for his patient without fearing reprisal from his employer if his employer’€™s views differ from what the doctor feels is the medically right thing to do’€¦

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: The case seeks to achieve a basic settlement, adds AIDS Law Project attorney Dan Pretorius.


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. When it comes to doctors their main code of ethics is the ancient Hippocratic Oath.


KHOPOTSO: When taking the Hippocratic Oath, doctors vow to do no harm and to act in the best interests of their patients at all times. 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. He reached an out-of-court settlement with the Department, but is yet to be paid compensation. Von Mollendorf is on the list of witnesses in Naude’€™s case. Although Naude was yet to be formally employed by the Mpumalanga Department of Health and doesn’€™t have an appointment letter to show that he was indeed employed, the case seeks to prove an act of unfair dismissal. Mark Heywood again.


MARK HEYWOOD: The offer of employment that he had at Rob Ferreira Hospital was withdrawn or disappeared and that effectively amounts to an unfair dismissal. One minute he thought that he was going to work at Rob Ferreira Hospital. Several months later it became clear that there was no longer a job on offer at all’€¦ Dr Naude was led to believe that his job would be confirmed’€¦ He never actually got it in writing, but there’€™s ample evidence that he was offered the job’€¦ Here in the court, for example, we have the former Superintendent of Rob Ferreira Hospital, Dr Thys von Mollendorf. He is telling the court that Dr Naude applied for the job, that Dr Naude was in fact offered the job, that his appointment was confirmed. So, there’€™s quite a lot of bits and pieces that show that he expected that he was going to get that job.


KHOPOTSO: It was not possible to get comment from von Mollendorf while the case is ongoing. The matter resumes in court tomorrow.