Legal Update
LEGAL UPDATE
By Prof Pieter Carstens, Faculty of Law, University of Pretoria.
AIM OF LEGAL UPDATE:
The aim of this quarterly update is to provide an informational service to members of the SAMLS on legal developments (inclusive of legislation, case law and other noteworthy items) in the sphere of medical/health law. This update is in keeping with the mission and objectives of the society as formulated in its constitution and rules, in particular to promote continuing education in the area of medical/health law.
DISCLAIMER:
The opinions expressed in this update are my own and do not necessarily reflect the opinion of other members/executive committee of the SAMLS. Although every effort has been made in compiling, editing and checking the information given in this update to ensure that it is accurate, the author, publishers/web postmaster and their employees or agents shall not be responsible for the continued currency of information, or for any errors, omissions or inaccuracies in this update, whether arising from negligence or otherwise, or for any consequences arising therefrom. Comments and suggestions are, however, most welcome, and can be e-mailed to: pcarsten@hakuna.up.ac.za.
FOCUS OF THIS UPDATE:
In this update the focus is on new medical/health legislation, notably the controversial National Health Bill, as well as some related legislation such as The Promotion of Access to Information Act 2 of 2000, The Mental Health Care Bill, and Compulsory HIV Testing of Alleged Offenders Bill.
NEW NATIONAL HEALTH BILL National Health Act 61 of 20031
The entire text of the new National Health Bill of 2003 is attached hereto and readers are strongly advised to download the entire Bill (approximately 46 pages) for their own perusal, specifically the Memorandum on the Objects of the National Health Bill, 2003 (attached to the back of the Bill).
The controversial Bill has been approved by the National Assembly, despite vehement objections from the opposition parties. The DA, IFP, NNP and ACDP all voted against the measure, mainly because of the certificate need provisions, arguing that these were unconstitutional. In terms of the legislation (the Bill), health practitioners will have to obtain a certificate of need to provide health services, or to establish or operate a health establishment or agency, such as a clinic, hospital or surgery. The certificate of need is granted to a person and lapses when the individual dies or leaves the practice for whatever reason. The Department of Health’s Director General will issue certificates of need – valid for a maximum of 10 years – on the basis of a host of criteria. The Health Minister said the certificate of need was a ‘rational planning tool designed to promote good organization, efficiency and effectiveness, and prevent unnecessary duplication of care facilities and services’. (Sapa report on the Mail & Guardian).
It should be noted that this new legislation will repeal the Health Act of 1977 and all its amendments, The Human Tissue Act of 1984, The National Policy for Health Act of 1990 and the Academic Health Centres Act of 1993. All the mentioned legislation will be repealed in its entirety.
The new National Health Bill and the Mental Health Care Bill (also to be enacted during the course of 2003) are in ,structure and purpose, in line with the spirit of the Constitution of the Republic of South Africa, Act 108 of 1996, and provide for the right of everyone of access to health services, including mental health care and reproductive health care. It is envisaged that these controversial Bills will be subject to constitutional challenges. It has been argued that the certificate of need in terms of the National Health Bill will have two major consequences: a mass exodus of qualified doctors from South Africa; and a probably significant decline in the intake of talented new students by medical schools.
OTHER LEGISLATION
The Promotion to Access of Information Act 2 of 2000 came into operation on 9 March 2001. The purpose of this Act is to give effect to the constitutional rights to access of any information held by the state or public bodies or private bodies (information also refers to medical/patients’ records) that are required for the exercise or protection of any rights. The Act could be used to obtain information about discrimination, health and safety, environmental issues, unfair competition and commercial information (amongst others). In terms of the said Act, government departments, public and private companies, including registered close corporations and businesses, had until August 31, 2003 to compile and publish manuals of their records. The SA Human Rights Commission has, however, requested the Minister of Justice to exempt small businesses and private bodies from submitting information manuals for a period of two years. As a consequence, the Minister of Justice has exempted small businesses and private bodies from submitting the manuals for two years. The new deadline in 31 August 2005. Public companies – those with more than 50 shareholders – and government departments, still had to comply by 31 August 2003.
Readers who are registered members of the South African Medical Association (SAMA) can obtain examples of the required manuals from the following e-mail address: karlienv@samedical.org
Other draft legislation to take note of:
· Compulsory HIV Testing of Alleged Sexual Offenders Bill (presently under parliamentary discussion and debate)(published in GG No 25029 of 21 February 2003): to provide for a speedy procedure by which a victim of an alleged sexual offence may apply for the compulsory HIV testing of the alleged offender; and for the disclosure of the test results to the victim and the alleged offender; and to provide for matters incidental thereto.
· New health draft legislation could force all suppliers of health services to provide emergency care for all patients. This will include private hospitals. The draft legislation also suggests access to healthcare and basic nutrition for all children under six “within available resources”. The aim of the proposed legislation is to create a spirit of “shared responsibility” between the state and private hospitals, meaning the state would not solely carry the cost for emergency treatment for people without medical aid. The Hospital Association of South Africa, the umbrella body for private hospital services, told a joint sitting of Parliament’s Health and Social Development Committees that such hospitals should be able to claim back the cost of emergency treatment from the state or the patient (from Sake Beeld report).
· Also in parliament were the hearings on the Alteration of Sex Description and Sex Status Bill, which will allow for the official changing of one’s sexual status in cases of transsexual surgery/allignment.
BY THE WAY …..
Litigation (National):
A 56-year-old former bank consultant is suing her surgeon for more than R2m in the Cape High Court for alleged negligence after two operations. Ms Coetzee alleges that operations to remove the lobes of thyroid glands in her throat went wrong to the extent that she now has hypoparathyroidism, muscular spasms and hypocalcemia. According to the Cape Times report, she says that she also suffers from sleeplessness, fatigue and chemical depression and that she struggles to concentrate. She claims that the surgeon was negligent in that he failed to inform her of the material risks of the proposed treatment and what the consequences were if she did not undergo surgery. She says that she would not have had the surgery has she been informed. The surgeon, however, denies that the damage could be attributed to any negligence, fault or breach of contractual obligations towards the patient. He also denies that he failed to inform her of the risks of the surgery.
Litigation (International):
In an unprecedented judgment, the New South Wales Supreme Court (Australia), has awarded a psychotic killer a $300 000 payout because a hospital negligently released him into the community. Justice Michael Adams said the hospital and the doctor who discharged Kevin Presland “materially contributed” to the victim’s death. The judgment has prompted speculation about whether parents and police will now be liable for negligence if people in their care commit crimes. Presland (45), now a full-time electrician who no longer requires psychiatric medication, killed his brother’s fiancée, Kelley Ann Laws, during a psychotic rage in her home in 1995. He had been released from a psychiatric institution just hours earlier, after being hospitalized. He was acquitted of the murder in 1996 because he was in a psychotic state. Presland then sued the Health Service and doctor who discharged him, for failing negligently to detain him as an involuntary patient under the Mental Health Act. (Report in The Australian).
Law Journals:
The enforcement of the right to healthcare in the context of HIV/AIDS and its impact on the separation of powers is among the offerings in the latest Journal for Contemporary Roman Dutch Law. In a compelling examination of the subject, Prof Christa Van Wyk (UNISA) concludes that the constitutional rights of access to health care services remains a “qualified” one that is highly dependant on the availability of resources (and probably also political commitment) in the public sector.
Medicinal Relief:
The Netherlands has become the first country to legalise the medical use of cannabis, allowing doctors to prescribe the narcotic as a pain killer for those who are seriously ill. Analysts said that Britain and parts of the USA, Australia and Canada were all considering following suit and were monitoring the Dutch experience. Chemists have already begun selling the drug for a price of between 40 and 50 Euros for a 5 kg bag. Although this is far more expensive than buying the drug in one of the country’s 1 500 coffee shops, the Dutch government said there was a huge difference in quality. It also said that the costs incurred by patients may be reimbursed by public health insurers. (Report in Mail & Guardian).
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