South Africa: Legal Ramifications And Recourse Of Medical Ill-Advice Regarding COVID-19 Vaccines

INTRODUCTION

Covid-19 vaccination is probably the most potent weapon available at present in the fight against the Covid-19 pandemic that has taken millions of lives, worldwide. As there is still no cure or treatment for the pandemic, it remains the government's prime objective that the country reaches herd immunity as soon as possible. To do this, it is critical that eligible (18 years and older) people vaccinate as soon as possible. If this objective is met, there can be more economic activity and we, as a nation, can have a taste of “normal life” – as we have seen in other countries, particularly the European countries. Therefore, conspiracy theories and other medical ill-advice regarding Covid-19 vaccines hinder the government's efforts in trying to curb Covid-19 infections and its concomitant grave ramifications. Whilst most people can easily escape the legal consequences of ill-advice and spreading “fake news” about the vaccines, it is crucial to consider the legal position when a medical person is involved. In view thereof, this piece will zoom into the following: instances where medical ill-advice may occur; legal implications where a person who was ill-advised subsequently passes on or suffers severe symptoms of Covid-19; and, lastly, the legal recourse available if the aforesaid occurs.

POSSIBLE MEDICAL ILL-ADVICE ABOUT THE VACCINES

There are several instances and contexts where medical ill-advice may take place. Whilst non-medical individuals can escape legal liability for spreading conspiracy theories and misinforming the public about the vaccines, this is not so for medical persons. Before diving into the legal liability of spreading conspiracy theories and misinforming the public about the vaccines, it is apposite to consider instances of how misinforming and spreading conspiracy theories can occur. Firstly, there may be legal consequences if a medical person intentionally or negligently provides inaccurate information around vaccines. This is because his or her views and, more so, experiences around this subject carries a hefty weight. Also, telling information that is not based on medical and/or scientific facts may have serious implications. Further, providing medical information and/or advice against the vaccine using cultural and/or religious views and opinions as a basis may also land one in ‘hot water'. These are but some of the instances where ill-medical advice may be given and where there may be legal implications. It is not a closed list. Whilst scrutinisation of the context and circumstances will be significant, medical personnel will find it hard to escape legal liability.

LEGAL IMPLICATIONS FOR THE MEDICAL PERSONNEL AND RECOURSE FOR THE VICTIMS

Legal and general implications

At least in theory, if, based on the incorrect advice, a person decides against the vaccine and subsequently dies of Covid-19, criminal charges may be laid against the relevant medical personnel for culpable homicide. If, however, a person does not die but instead suffers severe symptoms and complications, there may be criminal charges for attempted murder. The difficulty with criminal proceedings will be a high standard of proof which is beyond reasonable doubt. The facts and circumstances will dictate the outcome in this respect. The other possibility relates to a labour law aspect – the institution and/or the government may consider suspension or dismissal; revoking operating license; etc. Thirdly, there may be delictual claims against you – these are discussed in a greater detail below. Over and beyond the legal implications, perpetuating conspiracy theories and misinforming the public takes away the professional reliability and credibility that one may have worked tirelessly for. Further, it has an enormous potential to prejudice professional growth and prosperity.

Legal recourse for the victims

Firstly, as mentioned above, there may be criminal charges against the relevant medical professional. Secondly, there may be civil law remedies available to the victim. The advantage with a civil suit is that the standard of proof is lower i.e. a balance of probabilities. If the person decides against the vaccine and subsequently passes on from Covid-19, and it can be medically shown on a balance of probabilities that s/he would not have died had he taken the vaccine then the dependants may be able to sue the government or the relevant medical personnel for loss of support. Whether the government or the medical personnel is to be sued will be based on whether the institution is public or private. If, however, the victim does not die but, instead, suffers from severe symptoms and complications, then s/he may sue the person or the government for damages. Depending on the facts and the circumstances, one may sue for past medical expenses; future medical expenses; past loss of income; future loss of income (or earning capacity); and general damages. The applicability of each of these heads of damages will be bound upon the facts and circumstances of each individual case. The amount of compensation will also be different from one case to the next.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.