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National Health

The Constitution provides that no one may be refused emergency medical treatment,1 that every child has the right to basic health care,2 and that everyone has the right to an environment that is not harmful to health or well-being.3 It also provides that the State must take legislative and other measures to achieve realisation of the right of the people to have access to health care services.4

These are the ideals, but achievement is proving difficult. That is not just because the country’s medical schools produce only 1 200 doctors annually, with half of these to emigrate at some time of their career.5 Put differently, in 2011, the Department of Health estimated a shortfall of 80 000 healthcare professionals.6 We have six doctors per 10 000 citizens;7 and the private sector enjoys 70% of the country’s doctors, yet serves only 16% of the population.8

But the battle is being waged. For example, in 2012 alone, nearly two thousand health facilities, and 49 nursing colleges were in different stages of planning, construction and refurbishment.9 By 2014, for example, immunisation programmes had resulted in a 70% decline in pneumococcal diseases10 in children under the age of five, and an equally high11 reduction in rotavirus hospitalisation.

The National Health Act 200312 is also part of the Government plan to promote and improve the national health system. Administered by the Minister of Health, it addresses a diverse range of issues such as eligibility for free health services, health establishments, blood transfusion and blood products,13 environmental health, the rights and duties of healthcare users and healthcare professionals, and so on.

A. Health officers and inspectors

One of the mechanisms for implementation of the aims of the National Health Act is the system of ‘health officers’, ‘inspectors’ and the ‘Ombud’. The function of the Ombud14 is to consider and dispose of complaints about health establishments, or any facility or place providing a health service. Health officers and inspectors actually carry out the investigations – their difference, for present purposes, is that a health officer can enter any premises to carry out inspections and conduct inquiries (although not a private dwelling) whereas an inspector can only enter a health establishment.15

  1. It is a crime to interfere with, hinder or obstruct the Ombud (or any person rendering assistance or support to the Ombud) when he is performing or exercising a function or power under the Act.16

  2. It is a crime to obstruct or hinder a health officer or an inspector (or any person rendering them assistance or support) who is performing a function under the Act.17

  3. If any person refuses to provide a health officer or an inspector with such information as that person is required to provide under the Act, he commits an offence.18

  4. If any person knowingly gives false or misleading information to a health officer or an inspector, he is guilty of a criminal offence.

  5. Any person who impersonates a health officer or an inspector contravenes the Act.19

  6. It is an offence to disclose any information acquired in the performance of a function in terms of the Act which relates to the financial or business affairs of any person.20

B. Health establishments21

  1. If any person prevents the owner of any premises, or any person working for the owner, from entering the premises in order to comply with a requirement of the Act, he commits an offence.22

  2. Any person who fails to comply with a compliance notice issued to him by a health officer or an inspector in terms of the Act commits a criminal offence.23

C. Health records

  1. The person in charge of a health establishment must ensure that a record is created and maintained, at that establishment, for every user there of health services.24 (The information that the record must contain is supposed to be prescribed, but no regulation has yet been promulgated.)25 That person must also set up control measures to prevent unauthorised access to this records, and it is an offence if he fails to perform this duty.26

  2. For obvious reasons, medical records contain important information, and so are treated very strictly by the Act. Accordingly, you may not (and commit a criminal offence if you do):
    • falsify any record by adding to or deleting or changing any information contained in that record;27
    • create, change or destroy a record without authority to do so;28
    • fail to create or change a record when properly required to do so;29
    • provide false information with the intent that it be included in a record;30 or
    • without authority, copy any part of a health record.31
  3. In the same vein (haha), the information in a health record is also sensitive and confidential. Therefore, if you connect the personal identification data with any element of that record that concerns the user’s condition, treatment or history, without authority, you commit a criminal offence.32

  4. You may not:
    • without authority, gain access to a record or record-keeping system;33
    • intercept information being transmitted from one person, or one part of a record-keeping system, to another;34
    • connect any part of a computer or other electronic system on which records are kept to any other computer or other electronic system;35 or
    • modify or impair the operation of any part of any programme or system on or by way of which a user’s records are kept,36

    and commit an offence if you do.

D. Certificates of need

  1. If you want to:
    • establish, construct, modify or acquire a health establishment or health agency;
    • increase the number of beds in a health establishment or health agency;
    • acquire prescribed machinery or equipment that may be for health establishment or health agency; or
    • provide health services that may be prescribed,
    • you must be in possession of a certificate of need. This you obtain, on application, from the Director-General in the Department of Health.37 If you perform any of those acts without having a certificate of need, you commit a criminal offence.38

E. Blood tranfusion and blood products

  1. Unless you have a licence,39 granted by the Minister of Health, it is a crime to provide a blood transfusion service in the Republic.40

  2. It is a crime to receive any form of financial or other reward for the donation of tissue, a gamete,41 or blood, or any blood product. (This does not include reimbursement for reasonable costs to provide the donation.)42

  3. If anyone sells, or trades in tissue, gametes, blood or blood products without the necessary authorisation in terms of the Act, he commits a criminal offence.43

F. Cloning

  1. It is a crime to engage in any activity for the purpose of the reproductive cloning of a human being.44

  2. It is an offence to import, or export, any human embryo without the prior written approval of the Minister of Health.45

  3. It is an offence to import or export any human zygote – which is the product of the union of the male sperm and female ovum (the gametes, as mentioned) without the prior written approval of the Minister of Health.46

G. Organs and organ transplants

  1. Any person who charges a fee for a human organ is guilty of an offence.47

  2. It is a crime to use human organs obtained from deceased persons (whether for treatment, transplant or training) otherwise than in the prescribed manner.48

  3. Any person who transplants an organ into a person who is not a South African citizen, or permanent resident, needs written authorisation from the Minister of Health. It is a crime to do otherwise.49

  1. Section 2793) of the Constitution. 

  2. Section 28(1) of the Constitution. 

  3. Section 24(a) of the Constitution. 

  4. Section 27(2) of the Constitution. 

  5. www.ahp.org.za ‘No People No Healthcare’. 

  6. Ibid. 

  7. https://www.timeslive.co.za/news/south-africa/2015-09-22-marshall-plan-needed-to-address-shortage-of-doctors-in-sa/ – ‘Marshall Plan needed to address shortage of doctors in SA.’ 

  8. Ibid. Part of the problem is that, every year, 1,2 million women fall pregnant in South Africa. www.gov.za/issues/health ‘Update on Progress and Achievements in 2014/2015.’ 

  9. www.gov.za/issues/health ‘Update on progress and achievements in 2014/2015.’ 

  10. For example, pneumonia and meningitis – the leading cause of death in children under five years of age – Ibid. 

  11. 66%, actually. 

  12. As amended; the latest amendment was effected by Act 12 of 2013. 

  13. This means any product derived from blood (including blood itself) such as plasma and progenitor cells. 

  14. Invitations to apply for the post of Ombud were published in Government Notice 1169 published in Government Gazette 39450 dated 25 November 2015 but as of 5 February 2016 no appointment had yet been made. 

  15. Section 82(1) of the Act. 

  16. Section 89(1)h. 

  17. Section 89(1)a. 

  18. Section 89(1)b. 

  19. Section 89(1)e. 

  20. This does not apply if the other person requires the information in order to perform a function in terms of the Act, the disclosure is ordered by a court of law, or the disclosure is in compliance with the provisions of any law. 

  21. A health establishment is, basically, any place where medical treatment of any sort is provided. See Section 1 for the full definition. 

  22. Section 89(1) d. 

  23. Section 89(1)f. 

  24. Section 13 of the Act. 

  25. See, however, Guidelines on the keeping of Patient Records issued by the Health Professions Council of South Africa. Available at www.hpcsa.co.za

  26. Section 17(2)a. 

  27. Section 17(2)b. 

  28. Section 17(2)c. 

  29. Section 17(2)d. 

  30. Section 17(2)e. 

  31. Section 17(2)f. 

  32. Section 17(2)g. 

  33. Section 17(2)h. 

  34. Section 17(2)h. 

  35. Section 17(2)i. 

  36. Section 17(2). 

  37. Section 36(1) and (2). 

  38. Section 40. 

  39. This is unlikely, for the Act provides only for a National Blood Transfusion Service, which is a non-profit organization. See section 53(1) of the Act. 

  40. Section 53(3). 

  41. These are the generative cells essential for human reproduction – basically the ovum and sperm. 

  42. Section 60(4)a. 

  43. Section 60(4)b. 

  44. Section 57(1) read with section 57(5). 

  45. Section 57(3) read with section 57(5). 

  46. Section 57(3) read with section 57(5). 

  47. Section 61(5)a. 

  48. Section 61(1) read with section 61(5)a. 

  49. Section 61(3) read with section 61(5)a.