International volunteerism is growing amongst healthcare workers. Although there are ethical principles governing medical volunteering, errors do occur and may in fact be increased in this setting. This article discusses the various legal challenges surrounding medical volunteering. Legal frameworks governing medical volunteering are unclear and vary between legal jurisdictions. Evidence suggests that the incidence of a practitioner being held liable for medical malpractice is increasing. Despite this, the availability of malpractice insurance is limited, indicating an important gap in the support services for personnel working in the humanitarian sector. Both practitioners and management involved in medical volunteering in developing countries need to consider the legal ramifications of their work in order to be well prepared in the field.
Keywords: medical malpractice, medical liability, humanitarian missions, volunteerism, medical missions.
About the author: Dr. Sharif Elgafi, BSc(Med), MB BS FACEM MIPH MICHA CCPU, is a Senior Consultant Emergency Physician in Liverpool Hospital’s Emergency Department in Sydney, Australia.
Volunteering is generally described as an activity through which someone gives his or her time and skills, unpaid, to benefit the environment or groups other than close relatives. The United Nations has a longer definition of volunteering that involves three fundamental characteristics: the action is not primarily undertaken for financial reward, the action is undertaken without compulsion (i.e. voluntarily) and, finally, the action is of benefit to someone other than the volunteer.1
Medical volunteerism is growing. A recent survey of medical graduates from the Association of American Medical Colleges demonstrates that 27 percent of medical graduate students have had international experience during their four years of medical school, up from 6 percent in 1982.2 A 2008 study by the World Health Organization (WHO) found that volunteer organizations are significant healthcare providers in developing countries, providing, for example, 40% of health services in sub-Saharan Africa.3
Medical volunteering clearly has benefits, but it also has the potential to cause harm. Limited accountability as well as inadequate knowledge, preparation or resources can lead to poor outcomes for the recipient population as well as increased chances of litigation for the practitioner. And, despite its increasing popularity, there are many legal and ethical issues surrounding medical volunteerism and medical humanitarian missions that remain unclear.
Volunteers constitute a critical component of any response to disasters and emergencies, and given the difficult circumstances in which many operate, it is important to assess the legal protections afforded to them. This article aims to describe the current ethical and legal environment in which medical volunteering takes place. This article will first explain the various ethical issues present in medical volunteering, and then demonstrate how legal frameworks attempt to and in some cases fail to address these issues, before reviewing the limited options available for reducing risk liability.
II. Ethical Issues in Medical Volunteering
The rights of a person in need of help
Numerous human rights treaties as well as other international legal instruments contain provisions aimed at protecting the right to health and healthcare. For example, the Universal Declaration of Human Rights (1948) affirmed the following:
“Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.”4,5,6 (emphasis added)
This and other treaties imply that victims of a natural disaster or conflict have a right to the necessary measures being taken to safeguard, protect and improve their lives if threatened and that it is the duty of others to take these measures, notably the state under which they live, but also other actors should the state fail to do so.7
The ethical rules of conduct for healthcare workers
There are ethical rules of conduct that should direct a healthcare worker’s actions in humanitarian efforts. These have their basis in the fundamental principles of medical ethics. The foundational basis for the Ethical Care of International Patients is in the World Medical Association’s (WMA) Declaration of Helsinki.10 First adopted in 1964 and revised a number of times since then, the Declaration states, “it is the duty of the physician to promote and safeguard the health of patients, including those who are involved in research. The physician’s knowledge and conscience are dedicated to the fulfillment of this duty.”
It also states that for a physician, the health of his patient will be his first consideration.Although the specific purpose of the Declaration is to provide ethical standards for the conduct of research, it also addresses the general ethical responsibilities of physicians toward their patients. The implication of this Declaration is that a physician has a similar ethical duty to all patients, regardless of locality or circumstances.11 A physician is thus bound by common ethical principles of autonomy, beneficence, non-malfeasance, and justice when caring for patients during international humanitarian medical missions.12
The risk of error in medical volunteering
Medical volunteering has the potential to cause harm. This risk can operate through a number of vectors, not all of which may be fully understood by the volunteer community. Unfamiliarity with the patient population, the language and the common health problems in the region visited, as well as the short-term nature of many trips, can lead to inappropriate treatments.3
There are several other reasons volunteer healthcare workers may have an increased risk for committing medical errors, including unavailability of or inadequate health records, laboratory testing, emergency services, examination facilities and referral services for adequate follow-up. Language barriers and limited time with the patient further inhibits the ability to perform a proper medical assessment. Furthermore, the visiting provider is most likely unfamiliar with the standard of practice in the host country while, similarly, the host country providers may be unfamiliar with medications and treatments provided by volunteer healthcare workers.13
Limited accountability and liability, as well as inadequate knowledge, preparation or resources to meet the needs of the community can lead providers to practice beyond their scope of training. The increased popularity of students participating in medical missions as part of their educational programs may contribute to this problem. Student volunteers are often at the early stages of their training and may take advantage of the unregulated environment to attempt to practice skills and techniques that are beyond their scope and level of training.13
The right to compensation in case of malpractice
In any legal system the failure to respect a commitment, contract or treaty creates a liability on the part of the defaulting party. Generally, there arises a duty to provide compensation for any resulting damage. The International Court of Justice considers that the consequence of an unlawful harmful act is the duty to provide compensation.8 The evolution of international criminal law and international humanitarian law since the Second World War has demonstrated that international law applies not only to states but also to non-state entities and, in particular, to individuals.8
Any successful negligence claim must include the following three elements:
(1) The organization has a legal duty to conform to a certain standard of care,
(2) The organization fails to meet that standard, and
(3) An injury has occurred as a result of this failure.
If a duty is owed, the standard of care is generally determined by what a reasonable and prudent organization under similar circumstances would do. The relevant standard of care for medical volunteers relates to standards used by the international development community as a whole.9
III. Legal Frameworks for Volunteering in Emergencies
The approach to legal protection of volunteers in emergencies is non-uniform amongst various jurisdictions. In some states third party claims may be indemnified by the state itself. In certain countries specific legislation covers volunteering or disasters, while in other countries volunteer work is covered by general laws. Only a small number of countries have specific legislation regarding volunteering in emergencies. Additionally, some countries have laws that only relate to volunteer work by their own citizens, not providing any regulation for foreign nationals. Generally speaking, however, the legal position remains largely uncertain, as only a few cases of alleged malpractice in an emergency have ever been brought before federal courts.
At the broad, doctrinal level, there is a general legal obligation in many civil law systems, which are common in Continental Europe, Latin America and Africa, to assist a person in danger and failure to do so may result in criminal liability for the volunteer. The only exception is that no person is bound to act in ways that endanger his or her own life, or that of others, while providing rescue. Where a volunteer represents a particular organization, the organization itself may be held liable in some jurisdictions (because the volunteer is considered their agent). The volunteer may, however, be solely liable even in such cases if they act in disregard of the tasks or duties assigned to them.
Additionally, there are many differences between countries regarding volunteers and their legal status.14 Some jurisdictions require registration and/or accreditation of volunteers in emergencies. France and Brazil, for example, require a contract or written documentation between the volunteer and the organization, which may have implications regarding liability and insurance.14
Many jurisdictions also have exemptions from liability for acts carried out in “good faith”. For example, the Punjab Emergency Services Act of 2006 in Pakistan states that an act or omission committed by a volunteer in good faith for the purpose of exercising functions relating to the emergency shall not subject the volunteer personally to “any legal action, liability, claim or demand”.14 Australia provides us with another example after passing legislation (the Civil Liability Act of 2002) protecting volunteers from liability, including in an emergency response: “A volunteer incurs no personal liability for an act of omission done or made in good faith and without recklessness in the course of carrying out community work for a community organization,” including governmental and non-governmental organizations (NGOs).16
The United States has a similar law, the Volunteer Protection Act of 1997, which shields volunteers from certain forms of liability, excluding acts of criminal or gross negligence. Protection does not extend to crimes of violence or hate, sexual offenses or civil rights violations, or acts committed under the influence of alcohol under this piece of legislation.17 South Africa also provides some protection for volunteers acting in emergencies under the Disaster Management Act of 2002.14 According to the author Kuhn, “no malpractice claim has ever been filed against any American healthcare worker providing humanitarian services without charge in the developing world.”29 He states that the malpractice risk is almost nonexistent as long as the practice is limited to the local population and that care is provided at minimal or no charge. Further, “extensive searches of U.S. and international case law have yielded no active or past cases of medical malpractice against a physician who has volunteered internationally.”17 For the most part, volunteers are protected if they can show that they acted in “good faith”, meaning without any indirect or improper motive.14
Negative effects of (over) regulation
Although many jurisdictions lack specific legislation relating to medical volunteering, over-regulation may also come at a cost. On June 21, 2012, the Philippine Professional Regulatory Commission (PRC) issued regulations for issuing temporary permits for the conduct of humanitarian missions by foreign medical professionals within the Philippines. Each medical volunteer is required to purchase liability insurance in the Philippines, prepare specific documentation, and pay administrative fees. Additionally, the healthcare worker and host organization is required to assume full responsibility for the outcome of the mission. In other words, they are held accountable for any post-operative follow–up and the financial costs of any post-operative complications. As a result of this unilateral PRC decision, several groups have cancelled their forthcoming medical mission projects to the Philippines.18
IV. The Risk of Liability
A 2008 survey of full-time medical missionaries, serving in twenty-nine different countries as part of a Christian organization, was conducted by the Center for Medical Missions .19,20 Of the 56 physicians who responded to the survey, 20 percent stated that they had liability coverage, either through the organization or through conventional medical liability insurance. One in five also stated that he or she had been sued while working in the mission field. Settlements were generally in the thousands of dollars. The largest settlement cited was for $100,000 to $200,000 USD in Taiwan. There was one pending case in Kenya where the demand appeared to be $500,000 USD. Almost all of the respondents thought that they would be involved in a medical negligence lawsuit within the next five years.
Overall, medical malpractice laws are weak in the developing world. Patients in developing countries often have problems with access to justice. Pertinent issues include massive case backlogs, weak judicial institutions, inadequate legal infrastructure, corruption, and other problems endemic in the developing world. For many of these reasons, parties in developing countries often prefer to settle their disputes informally.21,27
Medical malpractice insurance
Most traditional professional liability insurance policies do not cover actions abroad. Such coverage is only available in the form of specialized policies. These policies have limitations in the form of high premiums, limited coverage and lack of availability in certain locations.22 The scope of the available policies varies, and the coverage can be purchased for both short and long-term missions.23
Companies such as Adams and Associates International offers this insurance at $4.35 to $8.75 per day on a per diem basis. The cost of insurance for those stationed abroad is $700 to $1,800 USD per year. Lloyd’s of London offers “claims-made” coverage to humanitarian organizations, but this often costs several thousand dollars. The insurance is backed by a trust through the International Helpers (Guernsey) Trust. They will insure physicians, other medical personnel, and mission-sending organizations.24 It is unclear whether the limited availability of malpractice insurance has been an impediment to volunteering thus far, but this question would merit further research.
Coverage by sponsoring organizations is inconsistent. Most organizations do not provide medical malpractice coverage, and some go as far as to state that coverage is not necessary because the likelihood of a lawsuit is negligible. Some organizations recommend that volunteers should consider carrying malpractice coverage while overseas.Many non-profit organizations that send physicians abroad have volunteers sign a waiver stating that no medical liability insurance is available within the program.17 A few organizations, such as Doctors Without Borders, will provide professional liability coverage for all field staff in addition to health insurance, accident insurance, private liability, repatriation and flight insurance.25
Another organization, Partners in Health, indemnifies its Directors and Officers against any legal action taken against them whilst in office except if they have been shown not to have acted in good faith. The board of directors may vote to extend similar indemnification to other employees and agents 28; in other words, indemnification is not automatic.
Thus, the most common scenario currently is that the health care provider travels without liability coverage. In addition, many agencies proactively offer affected families settlement for adverse events, eliminating the need for litigation.
Steps to reduce liability
There are a number of steps that can be taken to reduce the risk of medical liability. Organizations and volunteers adhering to the fundamentals of medical ethics, namely autonomy, beneficence, non-malfeasance, and justice when caring for patients is a major factor. One way to reduce the risk of liability is for volunteers to undergo pre-employment screening (including qualifications check, psychological testing and verification of prior experience) before they are deployed in an emergency. They should be provided with proper equipment and undergo adequate briefing, including of their legal rights and responsibilities.26
Adequate pre-deployment training for volunteers is an important aspect of risk management. Indeed, some volunteer organizations do not allow deployment of volunteers until they have completed mandatory training.
Volunteers should also be briefed on the expectations and limitations of their roles. Organizations should ensure that healthcare providers only practice within their scope of training. Students should be given clear instructions on what they may or may not be allowed to do and ideally should be assigned a local or volunteer mentor. As part of this, organizations should of course ensure that volunteers follow standard safety guidelines and work closely with host country providers and translators for improved communication. In essence, all providers (including students) need to be aware of and follow best practices and the highest standards of healthcare ethics whether practicing at home or abroad.13 Following best practice guidelines will improve safety and minimize risks to all parties. Organizations should also consider acquiring liability insurance for their volunteers if available.
Ideally all nations, particularly those prone to disasters, should develop clear laws regarding volunteers, both local and from abroad. These laws should not only facilitate volunteering but also provide clear guidelines regarding the limits of liability for the practitioner as well as the rights of the person affected by medical malpractice.
Medical volunteers are active in many different countries and constitute a critical component of any response to disasters and emergencies. The legal environment is an important determinant in creating a favorable climate for volunteers to act. The legal framework may provide protection and facilitate volunteering efforts, or may inhibit or create barriers to volunteering.
As I have shown, jurisdictions adopt a varied and inconsistent approach to the legal protection of volunteers in emergencies. Some countries have legislation in place applicable specifically to either volunteering or disasters, whereas in others, legal issues surrounding volunteering in emergencies is covered by general laws. Malpractice liability in volunteer medical missions is therefore a complex field due to the lack of uniformity throughout various legal jurisdictions and general lack of guidance for clinicians. There has been limited experience to date with litigation due to the small number of cases actually being tried in court. Thus, the exact legal position often remains uncertain. Most cases of adverse events, if indeed settled, are settled through financial payment to the victim or their family without litigation. Medical malpractice insurance is generally of limited availability to clinicians although the implications of this to the practice of volunteering are not yet known.
Although the current number of recorded cases is small, there is concern that this may increase in the future, thereby potentially jeopardizing some humanitarian missions. It is to the benefit of both affected communities and volunteers for the various jurisdictions to undertake an assessment of their legal framework in regard to volunteers, and particularly those active in emergencies. Additionally, assessing the adequacy of such a framework in strengthening the legal protection of volunteers whilst at the same time providing adequate protection to the local community is crucial for an operation to be sustainable. This will aid in ensuring that this valuable work continues. It should be apparent that the legal framework for the protection of the patient from medical malpractice is also unclear, although it has not been the subject of this paper.
Lastly, it should be of some comfort to the clinician to know that in the event of an adverse outcome, in most jurisdictions, the practitioner should be considered non-liable if certain conditions apply, including that they were acting in good faith within the scope of his or her responsibilities as defined by the organization, that they are properly licensed and certified to perform the task required, that there is no willful or criminal misconduct and, finally, that they were not under the influence of drugs or alcohol at the time of the incident.
1. United Nations Volunteers Report, prepared for the UN General Assembly Special Session on Social Development, Geneva, Feb 2001 . Available at: http://www.ocva.org.uk/sites/ocva.org.uk/files/Definitions%20of%20volunteering%2009.pdf.
2. Association of American Medical Colleges. 2006 Medical School Graduation Questionnaire, All Schools Report. Available at:http://virtualmentor.ama-assn.org/2006/12/fred1-0612.html.
3. Hawkins.J. Potential Pitfalls of Short-Term Medical Missions. Journal of Christian Nursing, October/December 2013. Available at: http://www.nursingcenter.com/lnc/CEArticle?an=00005217-201312000-00023&Journal_ID=642167&Issue_ID=1602350#P20.
4. UN General Assembly, “Universal Declaration of Human Rights”, 10 December 1948, 217 A (III), Available at: http://www.un.org/en/documents/udhr.
5. Additionally, the Constitution of the World Health Organization provides that “the enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition”. The International Covenant on Economic, Social and Cultural Rights, article 12, recognizes the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.
6. UN General Assembly, “International Covenant on Economic, Social and Cultural Rights”, 16 December 1966, United Nations, Treaty Series, vol. 993, p. 3, Available at: http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx.
7. Aginam O. “Health and Human Security in Emergencies”. United Nations University. Available at: http://unu.edu/publications/articles/health-and-human-security-in-emergencies.html.
8. Mongelard E, “Corporate civil liability for violations of international humanitarian law”. Volume 88, Number 863: September 2006. International Review of the Red Cross. Available at: http://www.icrc.org/eng/assets/files/other/irrc_863_mongelard.pdf.
9. Klamp C., “Legal Liability in the Humanitarian Sector”, June 19, 2012. Available at: http://www.hg.org/article.asp?id=27150.
10. World Medical Association, “Declaration of Helsinki: Ethical Principles for Medical research Involving Human Subjects”, June 1964. Available at: http://www.wma.net/en/30publications/10policies/b3/.
11. UNESCO has ratified a Universal Declaration on Bioethics and Human Rights, stressing the need to reinforce international cooperation in the field of bioethics. This declaration takes into account, in particular, the special needs of developing countries, indigenous communities, and vulnerable populations.UNESCO, Universal Declaration on Bioethics and Human Rights 19 October 2005. Available at: http://unesdoc.unesco.org/images/0014/001461/146180e.pdf.
12. Holt R. “Ethical Conduct of Humanitarian Medical Missions: Informed Consent,” Arch facial plastic surgery/Vol 14 (No. 3), May/June 2012. Available at: http://archfaci.jamanetwork.com/article.aspx?articleid=1157668.
13. Gorske A. “Why patients are at much greater risk of serious harm from drugs in short-term missions”. The Center for the Study of Health in Missions.
14. “The legal framework for volunteering in emergencies”. International Federation of Red Cross and Red Crescent Societies, Geneva, 2011. Available at: www.ifrc.org/PageFiles/125640/legalframework.pdf.
15. Emergency Volunteer Health Practitioners Act 2007. Available at: http://www.uniformlaws.org/Act.aspx?title=Emergency%20Volunteer%20Health%20Practitioners
16. Tibbalis J. “Legal Liabilities for assistance and lack of assistance rendered by Good Samaritans and volunteers”. 2004. Available at: http://www.resus.org.au/policy/documents/good_samaritans_volunteers.pdf.
17. Marcus D Are you protected from liability when volunteering at home, abroad? AAP News 2010; 31:1.
18. Candari C. Medical missions to the Philippines may disappear, August 16, 2012. Available at: http://asianjournalusa.com/restrictive-rules-on-medical-mission-in-the-philippines-p12498-119.htm.
19. Lundy D. “Medical liability in the Developing World”. American Academy of Orthopedic Surgeons. Oct 2008. Available at: http://www.aaos.org/news/aaosnow/oct08/managing8.asp.
20. Christian Medical and Dental Association. Available at: http://www.cmda.org/wcm/CMDA/ISSUES_and_ETHICS/Healthcare/International_Healthcare/CMDA/Issues2/Healthcare1/International_Healthcare1/International_Health.aspx?hkey=3f0069dc-5eb3-452f-9e1f-652b8965108f. The survey does not mention whether the lawsuits were surgical, medical or anaesthesia-related but the incidents appeared primarily involve longer-term volunteers. The data was gathered through a survey of volunteers; 1,000 surveys were sent with only 59 responses, a 5.9 percent response rate, which raises questions about the validity of the survey.
21. Cortez N. “Medical Malpractice Model For Developing Countries?” Available at: http://www.academia.edu/3744350/A_Medical_Malpractice_Model_for_Developing_Countries.
22. Uejima T. “Medical Missions and Medical Malpractice: the current state of Medical Malpractice Overseas”. Americal Society of Anasthesiologists. Feb 2011, Available at: http://depts.washington.edu/asaccp/sites/default/files/pdf/Click%20here%20for%20_105.pdf.
23. “Legal Issues Facing Humanitarian Medical Missions Abroad”. The 9th International RAMA-RADA-RASA Medical and Scientific Conference November 9-11, 2012 Philadelphia, Pennsylvania, USA Available at: http://www.gellisgroup.com/publications/GAssociates_Humanitarian_Physicians_Abroad_Presentation_11-5-12.pdf.
24. Gallagher Charitable International Insurance Services. “Overseas medical professional liability referral”. Available at: http://www.aaintl.com/overseas_liability.cfm.
25. Medicin Sans Frontieres. “What does the MSF insurance policy cover?” Available at: http://www.msf.org.za/faq-page/what-does-msf-insurance-policy-cover.
26. Tan R, “The preparation of volunteers for deployment in emergencies”. Aust Journal of Emergency Management, Vol. 21 No. 4, November 2006.
27. Cranston R, “Access to Justice in South and South-East Asia, in Good Government And Law: Legal And Institutional Reform In Developing Countries”. 233 (Julio Foundez ed., 1997).
28. Partners in Health. “Amended and restated by-laws of Partners in Health, a nonprofit corporation”. Available at: http://act.pih.org/page/-/financials/PIH_By-laws%20_revised_9-2-08.pdf.
29. W. “Ted” Kuhn, “Medical Malpractice in the Developing World. Global Medical Missions”, (Winepress Publishing, 2007).
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