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Legal “duty to act” explained

It is practically impossible to divorce law from the practice of dentistry. Every patient-oral health professional interaction has legal implications.

Say, for example, if an oral health professional stops at the scene of a motor vehicle accident to offer assistance – the health professional is acting out of concern for an accident victim. However, there could be dire consequences for an oral health professional.

Depending on the specific facts, merits and cause of action of the oral health professional, there could in theory be held liable for medical negligence or failing to act (commission vs omission). There is no legal obligation to assist a patient who is undergoing a medical crisis in the street.

According to the Oxford Dictionary, the legal term “duty to act” denotes a moral and legal obligation towards someone or something. The law is a set of norms (or rules) and standards that regulates human conduct in society. These norms are used to distinguish between good and bad. Morality is a broad philosophical concept that boils down to individual virtues or values (individual and community mores).

It may be conceded that personal moral compulsion could drive certain oral health professionals to act in a number of circumstances that may present within or outside the dental office.

As dental professional, they could fall foul of the law, depending on their actions – either under public (criminal) or private (delict) law. Consent is required from a patient in order to treat the patient. In a medical emergency that occurs inside the walls of their dental rooms, the oral health professional has a legal obligation to render life-saving treatment to the patient without consent if the patient is unable to give consent – if the patient is impaired or unconsciousness.

The obligation to render medical treatment (within their capabilities and training) is enshrined in their scope of practice. But it must be emphasised that there is no legal obligation to assist a patient who is undergoing a medical crisis in the street or a public place. In fact it may be detrimental to the practitioner’s health and safety to do so in uncontrolled circumstances or where they do not have the necessary personal protection equipment (PPE). Morally the practitioner may wish to assist.

Various laws, such as the constitution and other laws, guide the OHCW in intervening in medical emergencies. However, the concept of “boni mores” (the legal conviction of society to act) is often the founding principle in determining whether one should act or not. Following are some of the statutory sources that create a legal duty to act and the right to emergency treatment:

  • Section 2 of the Constitution – The constitution “is the supreme law of the Republic… and the obligations imposed by it must be fulfilled”;
  • Section 27(3) of the Constitution – “No one may be refused emergency medical treatment”;
  • The National Health Act 61 of 2003 also echoes these sentiments.

The oral health professional is protected by numerous laws and ethical guidelines. However, should they initiate a procedure or treatment modality that they are not sufficiently trained or equipped for then they may not be protected. The oral health professional can argue that they acted with good intentions, and despite these good intentions, the patient was harmed.

However, practitioners are practising outside of their knowledge, scope or competencies and if they are unable to justify their actions, various laws and prescripts (such as the Good Samaritan Act, an international law) may not provide them with the legal protection that they require. All oral health professionals are thus urged to carefully consider their moral and legal obligations and duties when faced with having to deal with a medical emergency occurring in or out of their practices.

Reference
Voorendyk V. (2013). The EMS worker’s legal duty to act in the context of SA Law. Sanguine; 3(2), 9-14, July-September 2013.

Last Updated on 1 July 2016 by HPCSA Corporate Affairs