In late November, The Egyptian Cabinet, unexpectedly, approved a new draft law aiming to regulate medical liability and enhancing patient protection. The Senate’s Health and Population Committee approved the bill in principle on Monday Dec 19th.

The draft comes 20 years after demands were made to list it on the health reform agenda, as one of the basic pieces of legislation that is indispensable in the medical system, an important step forward long demanded by various bodies and civil society organizations concerned with health, and also one of the National Dialogue’s demands.

The bill aims to ensure and regulate the basic rights of those who receive medical service, while standardizing the frameworks governing the civil and criminal liability of the health service providers. EIPR welcomes the latest version of the law, but it rejects prison sentences for medical providers and calls for their repeal.

Since 2015, and perhaps before, those concerned with  health rights have shared multiple copies of proposals for this long-awaited and repeatedly demanded law. EIPR participated in several relevant sessions and drafted many copies and proposals. However, the law was not issued nor was it put up for discussion. Many lost hope since it was dropped out of discussion in the wake of the Covid-19 pandemic.

The draft law approved by the government provides for the establishment of a higher committee under the Prime Minister called the Supreme Committee for Medical Liability and Patient Protection. It includes mechanisms for compulsory insurance for medical facilities and service providers through a government fund that contributes to compensation due for medical errors. The fund, according to the bill, may also contribute to covering damages that may occur during/due to the provision of medical service, and is not related to medical error.

However, EIPR noticed that versions of the draft law which were made public, insisted on imposing prison sentences on health service providers. This is the biggest risk and disadvantage of this law, which must be addressed and amended urgently. Medical errors are characteristically "errors" and should not be punishable with custodial penalties by any means. This may place severe restrictions on health providers and may cause them to be reluctant to take basic measures to protect the health and lives of their patients, fearing that they might be imprisoned if they make any unintentional error. The guarantees stipulated in the law to compensate patients in the event of medical errors, while protecting the service providers at the same time, are the most important gains of this law, without the need to establish custodial penalties related to such highly complex professional issues.

If the harm caused to the patient is intentional or due to gross and deliberate negligence, the criminal law tackles these violations, which do not fall under the definition of medical errors.

The vision reflected in this statement is in line with the Doctors Syndicate’s stance, which completely rejects the draft law because it legalises imprisonment in cases of medical error, and in cases other than gross medical negligence. The syndicate demanded that imprisonment be replaced with compensation "like all countries of the world in general, and the Gulf countries in particular, where half of Egypt's expatriate doctors work". Moreover, justifications for pretrial detention are not available in professional cases.

For its part, the Federation of Medical Professions Unions issued a statement rejecting the draft law for the same reasons. It stressed “the need to distinguish between scientifically recognized medical complications and cases in which harm occurs to the patient while the doctor has no liability, and complications that may occur as a result of an error by the service provider”. It also emphasized the importance of “clarifying the concept of civil liability assumed by a doctor if he commits an error but works in his specialty and is committed to the rules of the profession”, suggesting that “the punishment here should be compensation only and not imprisonment”.

EIPR had previously recommended that a full and clear text of the Egyptian patient's rights declaration be included in the law in a unified and explicit manner. This will ensure a broad consensus about the law and make sure it will truly protect service providers while safeguarding the patients' rights.

While EIPR reiterates its call for abolishing the prison sentences for medical providers stipulated in articles 26 to 28 of the latest version of the draft law, it proposes some additional amendments to be made before the draft law is ratified:

1. One of the articles (Article 14 in the latest version) provides for the examination of patients’ complaints by medical liability subcommittees. We suggest adding the phrase "and their representatives" after "complainants" in order to ensure the right of lawyers to be present to represent their clients.

2. Regarding Article 15 on amicable settlement, which states that "the Medical Liability Subcommittee may propose amicable settlement of the complaint to the parties concerned", we suggest adding the phrase "provided that this does not conflict with criminal and disciplinary liability, as the case may be".

3. Article 21 mentions the cases to be compensated by the medical malpractice insurance fund, including "death, disability and bodily injury to the recipient of the service". We suggest adding the phrase "and cases of a mental illness or disorder".

4. With regard to Article 24, which states that "whoever insults by reference, speech or threat a service provider during the performance of their job or because of their performance of it shall be punished by imprisonment for a period not exceeding six months or a fine not exceeding ten thousand pounds", we suggest deleting the penalty of imprisonment, as how come we impose a custodial penalty for a word or verbal assault on any person?

The discussion and promulgation of this law is a long-awaited positive response. In fact, medical practices lacked such binding legislation, relying only on ethical or regulatory frameworks with limited impact, which are not very reliable in the practice of medical professions and patient protection. These frameworks have not deterred many practices that contradicted the objectives of this humanitarian profession. These practices have increased in recent decades for many social, economic and cultural reasons.

After making the proposed amendments and abolishing the custodial penalties, the Medical Liability Law will become the best solution to determine all the rights of patients and the duties of service providers in a binding, tight and legal manner, allowing justice mechanisms to decide on cases related to the profession, which is one of the professions most related to human life and rights.