Law expert says officials who tried to discipline doctor must face the music

It appears the functionaries who sought to discipline paediatric gastroenterologist Dr Tim de Maayer for highlighting problems at the hospital he worked in were guilty of violating the constitution and the relevant legislation affecting children, and should be disciplined, a law professor says.

This is the view of David McQuoid-Mason, professor of law at the University of KwaZulu-Natal, in an article published in the SA Medical Journal on Monday.

He said an analysis of the constitution, the National Health Act, the Children’s Act, the Health Professions Act and the rules and guidelines of the Health Professions Council of SA (HPCSA)  indicates that De Maayer acted both legally and ethically to protect the child patients at Rahima Moosa Mother and Child Hospital.

The question he asked was: “Is there a legal and ethical duty on public sector doctors whose complaints to hospital administrators have been ignored to inform the public about harm to child patients due to intentional maladministration, negligence or indifference at the local and provincial level?”

According to reports, De Maayer had written an open letter to the local and provincial health administrators in Gauteng, publicly disclosing that three child patients had died and other were being harmed at the hospital where he had worked since 2009.

The complaints that had been ignored were reportedly raised in 2016, 2021 and 2022 with both the local and provincial management.

They included the fact that the backup generator used when there was load-shedding was too small to warm incubators for newborns, that doctors were trying to intubate children and administer cardiopulmonary resuscitation by the light of cellphone torches because of continuous power failures, and that brain scans were not being done because the scanner had been broken for three months.

De Maayer was suspended, but this was lifted a few days later after a public outcry.

McQuoid-Mason said the constitution states that everyone has the right to life and the right to an environment that is not harmful to their health or wellbeing.

He said the constitution provides that the state must respect, protect, promote and fulfil the rights in the bill of rights. He said if the functionaries in the employ of the state fail in their constitutional duties, they can be held liable for such failures.

“There is no doubt that Dr De Maayer was trying to uphold the rights of child patients in the constitution to life and basic healthcare, as well as to an environment that is not harmful to their health or wellbeing.

“De Maayer had used the official channels to do so but had been ignored,” he said.

McQuoid-Mason said instead of letting the matter rest, he went further by alerting the public to the situation in the media.

“The irony is that it is not Dr De Maayer who violated the constitution, but the official functionaries who sought to discipline him, and it is they who should be disciplined for dereliction of duty and intentional maladministration, negligence or indifference.”

McQuoid-Mason said if they are registered with the HPCSA, they should be reported and disciplined for violating the council’s ethical rules of conduct and general ethical guidelines for healthcare practitioners.

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