x Abu Dhabi, UAEFriday 28 July 2017

Protect patients – and doctors – in UAE with better health laws

The Karabus case leads a legal expert to some considerations about the best way to protect the health – and the rights – of medical patients.

The case of Cyril Karabus, the South African paediatric oncologist who was found guilty in absentia of manslaughter in 2004 - he was acquitted last month but remains in custody as prosecutors appeal the decision - has put a spotlight on medical liability laws in the United Arab Emirates.

The regulatory and compliance framework that Dr Karabus once worked under has changed dramatically in the past decade.

The most apparent development is the paradigm shift in the UAE towards regulation and compliance as a tool to minimise instances of avoidable medical errors. This shift is in keeping with apparent global trends which appeared on the cusp of the new millennium and following publication of the seminal To Err is Human: Building a Safer Health System by the US Institute of Medicine in 1999.

The federal Ministry of Health advises regulators across the emirates, though several jurisdictions have their own authority, such as the Dubai Health Authority and Health Authority-Abu Dhabi (Haad). Each of these has its own policies, regulations, mandatory reporting regimes and complaints procedures.

For instance, Haad introduced far-reaching regulations in 2011 (called the Standard for Adverse Events Management and Reporting) for all providers to devise, file and execute policies and procedures not only to document, report and act upon "adverse events" but also on "near misses". The definition of "adverse event" is given as "an event that causes harm, or has the potential to cause harm".

The mandatory duty to report adverse events applies to not only licensed corporate facilities but also to individual professionals. Failure to do so can result in disciplinary action including the restriction, revocation and suspension of operating licenses or of an individual physician's licence.

Surprisingly, the regulations are silent on how whistle-blowers should be dealt with and it remains to be seen how UAE labour law would react to a possible situation where a whistle-blower faces dismissal or other disciplinary action for making a report without theemployer's consent. Clearly, any mandatory reporting regime that does not recognise the inherent - and very human - instinct to try to limit or obfuscate one's own shortcomings has not fully addressed the realpolitik of the situation.

The regulations' objectives are to improve patient safety and raise medical standards, while at the same time working to ensure that all patients are treated with dignity, consideration and respect. Although the regulations give entitlements to access medical records, they fall short of imposing a "duty of candour" on the part of a medical service provider to a patient.

In other words, the requirement is only to report "adverse events" to the regulator and not to the patient or the patient's family or next of kin. This "duty of candour", viewed by some medical and legal professionals as an integral part of respectful treatment, has had limited traction in the West, although it is mandatory elsewhere.

There are some changes that would improve the regulatory framework to protect patients further in the UAE.

Regulations have not sought to make reporting of potential abuses anonymous - where the names of the patient and medical professionals are removed - and there are concerns that this may add to chronic underreporting. Without anonymity employees may feel that they are exposing themselves to possible criminal action, and this worry conflicts with the regulatory requirements placed upon them. The opportunity, therefore, to learn from and address system failures may be lost by a perceived overemphasis on focusing on an individual physician's failings.

Even negligence which is significantly less culpable than gross negligence or aggravated negligence can lead to a physician appearing in the dock and facing several years' imprisonment, fines or both. Although criminal prosecutions of physicians are relatively uncommon in the UAE, just as they are in most other parts of the world, the UAE legal and regulatory framework does little to discourage claims against physicians and civil claims for compensation can be filed by a plaintiff if he can afford the court filing fee.

Many jurisdictions (such as the UK) have introduced so-called "apology laws" in an effort to defuse situations where the patient or next of kin simply want to have formal recognition that something has gone wrong and that their feelings, pain and suffering are acknowledged. The main feature of such laws is that apologies may not be used as evidence of admission of liability in court proceedings. They have, according to some research, reduced the number of malpractice claims.

The ink is barely dry on the new Haad regulations from 2011, and it would be unfair to expect an immediate impact upon the relevant statistics. However, further refinement is desirable and may actually assist to achieve the stated objectives of protecting patients and medical professionals alike.

Imposing blanket anonymity in reporting adverse events, or encouraging whistle-blowers to come forward, may, one hopes, encourage a recognition of the human condition, and real honesty and transparency in the reporting process.

Moreover, by introducing duty of candour and apology laws, the UAE could demonstrate that it is at the very edge of innovation in this area and leading the way - globally - in the provision of quality health care services with a compassionate, legally responsible and totally transparent system that benefits everyone.

 

Stephen Ballantine is an expert in international medical law with he UAE-based firm Galadari Advocates and Legal Consultants