Medical councils urged to handle malpractice complaints before criminal cases

Dr. Francis Luigi Adwok, Advocate and Head of the Immunity Lifting Committee at the South Sudan Bar Association, speaking during the South Sudan Doctors’ Union symposium at Juba Teaching Hospital.

A senior legal expert has called on medical councils and professional bodies to take the lead in handling complaints related to medical errors before any criminal proceedings are considered.

Dr. Francis Luigi Adwok, Advocate and Head of the Immunity Lifting Committee at the South Sudan Bar Association, says criminal liability can only arise when specific legal elements are present.

Speaking on Friday (Dec.19) at a one-day symposium organized by the South Sudan Doctors’ Union at Juba Teaching Hospital, Dr. Adwok said complaints arising from alleged medical errors should first be addressed by professional medical bodies with the technical expertise to assess them.

“There must be a medical council where the complaint is filed by the affected person. Regarding the legal framework, we have the Penal Code of 2008, which defines crimes and penalties. If there is no crime, the principle is acquittal.

“In the Penal Code, crimes, penalties, and details are clearly stated. As for medical liability, we must distinguish whether the doctor is responsible. Yes, a doctor may be criminally liable, civilly liable (contractual or tort liability), and administratively liable,” he said.

He explained that doctors are best placed to determine whether an error is medical in nature.

“The first element is the existence of an error, and this error must be determined by doctors, not by others. Second, there must be a patient who has suffered damage. Third, there must be a causal relationship between the error and the damage,” he sstated.

Dr. Adwok said victims seeking justice should first collect medical records and submit their complaints to the relevant medical councils or authorities, which can then advise on whether further legal action is necessary.

He noted that doctors may face civil, administrative, or disciplinary action depending on the nature of the case, adding that tort liability requires proof of error, harm, and a clear link between the two.

To highlight the importance of causation, he gave an example of cases where a patient dies following an ambulance accident, saying an autopsy is required to establish the direct cause of death before responsibility can be assigned.

Dr. Adwok also urged doctors and the public to clearly distinguish between medical errors and criminal responsibility, warning against criminalizing every medical mistake.

He explained that criminal liability can only exist when two key elements are present: a law that criminalizes the act and a mental element, commonly known as intent.

“For criminal liability to exist, there must be specific elements. There must be a criminal law, because if something happens and it is not criminalized by law, then it is not a criminal responsibility. The other element is what we call the mental element. If these two elements do not come together, then we cannot be facing any criminal liability,” he explained.

The symposium brought together doctors, legal experts, and union leaders to discuss growing concerns around medical malpractice, accountability, and legal protection for health professionals in South Sudan.