Certain provisions of the National Health Act No. 61 of 2003 are due to come into force on 2 May 2005. These provisions change fundamentally the manner in which health policy in this country is to be formulated, patients are to be treated and impose new obligations on those persons who provide healthcare services. This volume of Mediwerks explores certain of these changes and provides an overview of some of the most important changes, from a practical point of view, that affect directly the rights and obligations of patients and the healthcare workers, healthcare providers and health establishments that are providing health services under this new statutory regime.

Since 1977, the manner in which the policy concerning the country’s health and health infrastructure was determined was governed by the Health Act No. 63 of 1977. With effect from 2 May 2005, the National Health Act No. 61 of 2003 commences ("the NHA").

The NHA revolutionises the manner in which healthcare policy and healthcare treatment will be made and provided. The use of the word "revolutionises" is not altogether inaccurate. The NHA aligns the manner in which healthcare policy is to be formulated and treatment provided with the Constitution of the Republic of South Africa Act No. 108 of 1996 ("the Constitution"). This philosophy is set out in the preamble of the NHA, which is one of the sections that comes into effect on 2 May 2005. The preamble recognises the socio-economic injustices, imbalances and inequities in the manner in which health services were provided in the past. Consequently, the preamble confirms that the NHA is designed to unify the manner in which the various components of the national health system operate so as to provide for equitable, efficient and internationally recognised standardised healthcare to all South Africans. Certainly, the preamble is the stuff of inspiration but whether or not the NHA will achieve the lofty ideals in the preamble remains to be seen.

The NHA consolidates a number of pieces of health legislation: the Health Act No. 63 of 1977, the Human Tissue Act No. 65 of 1983, the National Policy for Health Act No. 116 of 1990 and the Academic Health Centres Act No. 86 of 1993. Therefore, within the eleven chapters of the NHA exist all of the principles, ideology, philosophy and policy that will henceforth govern the health sector in this country.

The proclamation signed by the State President and published in the Government Gazette on 18 April 2005 excludes chapters 6 and 8 of the NHA from coming into effect on 2 May 2005. The NHA therefore limps into existence with no indication of when the remaining chapters will become effective.

Chapter 6 deals with the controversial certificate of need. Fundamentally, section 36(1) prohibits anyone from operating a health establishment with effect from twenty-four months from the date on which chapter 6 becomes effective without a certificate of need. In addition, a hospital may not increase the number of beds it provides or require any prescribed health technology without such a certificate and any person who intends to provide or currently provides a prescribed health service will also be required to obtain such a certificate. It is expected that regulations will accompany the coming into effect of chapter 6. These regulations will, in all likelihood, prescribe the application procedures, forms and information that must be supplied by applicants in order to obtain a certificate of need. In so far as a certificate is not obtained, and one provides a service outside of the time period of the twenty-four months from the date upon which chapter 6 comes into effect, then the offences and penalties, set out in section 40, will be applicable.

Whilst the NHA is controversial, which is a characteristic of healthcare legislation generally in this country, it also formally introduces a number of novel and consumer orientated concepts into our statutory law. Therefore section 4 contemplates the creation of various categories "of persons eligible for free health services at public health establishments" and section 5 requires a healthcare provider, health worker or health establishment to provide any person who requires it with emergency medical treatment. It is not altogether clear what is meant by "emergency medical treatment" as it is not defined in the NHA. However, a definition is provided in the General Regulations promulgated in terms of the Medical Schemes Act No. 131 of 1998, as amended. In so far as we now have two different pieces of legislation dealing with the same issue, a potential for conflict arises between what constitutes emergency medical treatment if one is a member of a medical scheme and if one is not.

With immediate effect on 2 May 2005, the rights of patients lying in hospitals and those who may consult their general practitioners or dentists or homeopaths change. In so far as a patient intends to obtain a health service from any healthcare provider, he or she is entitled to certain information from that healthcare provider before any treatment is administered. This information must include -

  • the patient's health status except where such information would be contrary to the best interests of the patient;
  • the options for treatment that are available;
  • risks, benefits, consequences and costs of treatment;
  • an explanation of the implications, risks and obligations of any decision by the patient to refuse a recommended course of treatment;
  • advising the patient of his or her right to refuse any recommended or prescribed course of treatment.

Patients may no longer receive health services without first providing their informed consent. Therefore, additional administrative procedures must be completed by healthcare providers including hospitals and clinics before a patient is entitled to receive attention or treatment. Section 7 provides for certain exemptions to this general rule. Consent will therefore not be required in circumstances where -

  • the patient is unable to give consent but consent may be obtained from a person who is mandated by the patient, in writing, to provide consent or is authorised to do so in terms of a court order;
  • the spouse or partner of the patient is able to give consent, alternatively, the parent, grandparent, an adult child or a brother or a sister of the patient;
  • it is authorised by a court order;
  • the failure to treat the patient will cause a serious risk to public health; or
  • any delay in treating the patient may result in the patient's death or cause irreversible damage to his or her health "and the [patient] has not expressly, impliedly or by conduct refused that service."

Once one has completed the procedures referred to above and obtained the requisite information, a patient must be advised that he or she is entitled to participate in the decisions made about his or her treatment. This participation, for the purposes of section 8, is usually achieved by obtaining the patient's informed consent. Therefore section 8 requires a healthcare provider to obtain the patient's informed consent even if consent was obtained initially from another person, as referred to above, or if the patient is a minor or "lacks the legal capacity to give the informed consent" or if the patient was unable to furnish his or her consent before the procedure was performed or treatment provided, the patient's informed consent should be obtained after the procedure or treatment.

The confidentiality of a patient's health record is now protected through a number of sections of the NHA including sections 12, 13, 14, 15, 16 and 17 as read together with the definitions of "personal information" in section 1 of the Promotion of Access to Information Act No. 2 of 2000. The general principles for the disclosure of a health record are contained in sections 14 and 15, which provide for the disclosure of health related information to a third party only in circumstances where -

  • the patient has consented to the disclosure;
  • a court order exists;
  • the non-disclosure of the information constitutes a serious threat to public health;
  • a health worker of health provider discloses information to another health worker or provider for any legitimate purpose within the ordinary course and scope of his or her duties or where such disclosure is in the interests of the patient.

Section 17 protects health records and imposes severe penalties for any limitation of a patient’s right to privacy or the infringement of a patient’s confidentiality.

A patient is now entitled to a discharge report at the time of discharge from a health establishment. The information that will be included in such a report will be stipulated in regulations that are yet to be promulgated by the Minister of Health.

The NHA introduces a number of provisions, most of which have been dealt with above, in order to protect patients and advance their interests. However, the NHA also now requires patients to adhere to a number of obligations. The failure or refusal by a patient to adhere to these obligations may give rise to an offence in terms of section 89 of the NHA. Patients are required to;

  • adhere to the rules of a health establishment;
  • provide a healthcare provider with accurate information about his or her condition;
  • co-operate with the health care provider when utilising health care services;
  • treat health care workers with dignity and respect; and
  • sign a discharge certificate or release of liability if the patient refuses to accept a recommended course of treatment.

The rights of health care personnel are also included in the NHA. In this regard, section 20 protects health care workers from unfair discrimination on account of their healthcare status, allows the Minister to prescribe certain regulations in relation to the functions that he or she may perform in relation to his or her health status, require a health establishment to ensure the safety of their healthcare personnel and mitigate and prevent disease transmission and recognises the right of a healthcare worker to refuse to treat a patient who "is physically or verbally abusive or who sexually harasses him or her."

The NHA will also in due course, once the provisions of chapter 8 become effective deal with human cloning, human organ donation, post-mortem examinations and the allocation of human organs.

The NHA represents a paradigm shift in the manner in which health and ethical policies are to be formulated and enforced in South Africa. The effects of the legislation cannot, as yet, be measured but the outcome of the challenges that the NHA must meet and that will undoubtedly be made against the NHA, especially of a constitutional nature, will determine whether or not it cures our current state of disease.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.