South Africa: Consumerism And Healthcare

Last Updated: 7 March 2012
Article by Neil Kirby

It is trite that Healthcare in South Africa is highly regulated by a number of statutes. These statutes are primarily designed to be consumer orientated. The Medical Schemes Act No. 131 of 1998, as amended ("the MSA") and the Medicines and Related Substances Act No. 101 of 1965, as amended ("the Medicines Act") are good examples. In both of these statutes, the issue of consumer rights stands at the forefront of what these statutes are designed to achieve. This is evident from their objectives. The MSA provides in sections 7(a) and (d) that the functions of the Council for Medical Schemes shall be to "protect the interest of the beneficiaries at all times ... investigate complaints and settle disputes in relation to the affairs of medical schemes as provided for in this Act". The Medicines Act states that "[i]n determining whether or not the registration or the availability of a medicine is in the public interest, regard shall be had only to the safety, quality and therapeutic efficacy thereof in relation to its effect on the health of man or any animal, as the case may be."

Objectives of the CPA

The consumeristic nature of both the MSA and the Medicines Act is now to be tested against the provisions of the CPA. This is because the CPA is designed exclusively to promote the rights of South African consumers. The CPA's objectives deal with various types and classes of consumers. Therefore, the CPA is arguably designed to protect the rights of the consumer in all instances where there is a transaction as this term is defined in the CPA.

The objectives of the CPA are set out in section 3(1):

"The purposes of this Act are to promote and advance the social and economic welfare of consumers in South Africa by –

(a) establishing a legal framework for the achievement and maintenance of a consumer market that is fair, accessible, efficient, sustainable and responsible for the benefits of consumers generally;

(b) reducing and ameliorating any disadvantages experienced in accessing any supply of goods or services by consumers –

  1. who are low-income persons or persons comprising low-income communities;
  2. who live in remote, isolated or low-density population areas or communities;
  3. who are minors, seniors or other similarly vulnerable consumers; or
  4. whose ability to read and comprehend any advertisement, agreement, mark, instruction, label, warning, notice or other visual representations limit by reason of low literacy, vision impairment or limited fluency in a language in which the representation is produced, published or presented;

(c) promoting fair business practices;

(d) protecting consumers from –

  1. unconscionable, unfair, unreasonable, unjust or otherwise improper trade practices; and
  2. deceptive, misleading, unfair or fraudulent conduct;

(e) improving consumer awareness and information and encouraging responsible and informed consumer choice and behaviour;

(f) promoting consumer confidence, empowerment, and the development of a culture of consumer responsibility, through individual and group education, vigilance, advocacy and activism;

(g) providing for a consistent, accessible and efficient system of consensual resolution of disputes arising from consumer transactions; and

(h) providing for an accessible, consistent, harmonise, effective and efficient system of redress for consumers."

The provision of a healthcare service to a patient in exchange for remuneration and an expected positive outcome would fall within this scope and ambit of the definition of the term "transaction" in the CPA. Therefore, on the face of it, the CPA applies to healthcarerelated transactions. Accordingly, this brings into sharp focus the manner in which one would apply the CPA in instances where a healthcare related transaction occurs.

Healthcare related transactions

For purposes of this paper, a healthcare related transaction includes the provision of a hospital service, an emergency service, and an ambulance service or a consultation or a related healthcare service that has as its desired outcome the improvement of the health of the patient. In each of these instances, the transactions are primarily controlled by healthcare legislation on the basis that:

  • the healthcare service is to be provided by a duly qualified healthcare provider and in accordance with the obligations imposed upon the healthcare provider, both ethically and legally, to provide the service correctly and without harming the patient. Provisions of such legislation as the Allied Health Professions Act No. 63 of 1982, as amended and the Health Professions Act No. 56 of 1974 as amended or the HPA, all find relevance to the transaction that occurs;
  • the sale of medicines equally is controlled by the Pharmacy Act No. 53 of 1974, as amended and the Medicines Act, which require that medicines be sold in a particular manner by a person duly authorised in law to dispense such medicines;
  • the provision of private medical scheme cover is also dealt with exclusively in the MSA and the transaction that occurs is required to comply with the provisions of this Act, which would include the rules of a particular medical scheme;
  • other pieces of healthcare-related legislation deal with the manner in which hospital services are provided and how healthcare services in general are to be provided including such issues as informed consent, the consent of minors and the consent of vulnerable persons – all dealt with in the National Health Act No. 61 of 2003 ("the NHA").

In so far as healthcare services have been provided to date in terms of the existing statutory matrix of applicable healthcare legislation, the question is whether or not the provision of those services is, in accordance with that healthcare matrix, sufficient to promote and protect consumer rights. This question arises primarily due to the directive contained in section 2(9) of the CPA about how one is to interpret the CPA when it is interacting with an existing piece of legislation. The general principle is that the CPA will apply in circumstances where it does a better job, through its application, of advancing and protecting consumer rights than the piece of legislation with which it is being compared. This is not a self-evident comparison as one needs carefully to understand not only the provisions of the CPA in so far as they protect consumer rights, but whether or not arguably they do so in a better way than older pieces of legislation including existing provisions of healthcare legislation.

Consumer rights, statutory tribunal and alternative dispute resolution

On the face of it, the CPA contains a number of consumer rights that are not expressly found in other pieces of healthcare legislation. I say "expressly" as the healthcare legislation to which I have referred is not necessarily as dedicated and as focused on consumer rights as the CPA. Therefore, the more pronounced and clearer rights contained in the CPA may very well trump the manner in which existing healthcare legislation endeavours to promote, advance and provide for consumer rights. The comparison that must occur would conceivably have to determine the substantive nature of the consumer right that is being advanced and protected. Therefore, one would be required to draw comparisons between, for example, the National Patients' Rights Charter, which appears as part of the publications published by the Health Professions Council of South Africa (HPCSA), and the consumer rights contained in the CPA.

Therefore, a consumer's right to information about a product, service or information that is provided in a clear, plain and understandable way would need to be compared to rights contained in the NHA concerning the manner in which informed consent must be provided to a patient prior to that patient receiving treatment. In so far as the informed consent provisions of the NHA fall short of the consumer rights contained in the CPA, then conceivably, the CPA would apply. In such circumstances the CPA would impose consumer rights into the healthcare transaction and require a new evaluation of that transaction on that basis - healthcare legislation aside.

The provisions contained in healthcare legislation that create statutory tribunals for the resolution of disputes between consumers and healthcare providers, most notably, those contained in section 47 of the MSA and the dispute resolution mechanisms contained in the HPA, which allow consumers to refer disputes about healthcare practitioners to the HPCSA, would also need to be evaluated on the basis of whether or not those tribunals are effective for purposes of enforcing consumer rights. The CPA, as part of its dispute resolution mechanism processes, recognises the ability of accredited institutions to resolve consumer complaints with reference to the provisions contained in the CPA. However, in order to resolve such disputes, with reference to the provisions of the CPA, the dispute resolution tribunal in question must be accredited by the Minister of Trade and Industry in terms of the CPA. I am not aware of any such accreditations having occurred to date for any of the tribunals that are currently functioning within the healthcare arena.

The provision of alternative dispute resolution mechanisms is an important part of the CPA. The CPA is designed to be accessible to the ordinary man and woman in the street. Therefore, its provisions allow for complaints to be lodged, without the intervention necessarily of the legal fraternity, directly by the consumer with such bodies as the National Consumer Commission or an accredited Ombudsperson who is authorised to deal with such disputes. Therefore, existing dispute resolution mechanisms also need to be evaluated in relation to their effectiveness to resolve consumer disputes between patients and healthcare providers with reference to the provisions contained in the CPA.

The power and influence of the CPA should thus not be underestimated. In accordance with the provisions of South African law, conflicts between pieces of legislation are resolved in accordance with the principles of the interpretation of statutes. One of these principles states that more recent legislation trumps the provisions of older legislation where there may be a conflict. The fact that the CPA was enacted in 2010 and its citation refers to the fact that it was proposed in 2008, indicates that it will trump the majority of existing healthcare legislation – in so far as I am not aware of any healthcare legislation that was enacted after the CPA came into effect, even in circumstances where the CPA was brought into force gradually and then finally on 1 April 2010.

Interaction in the UK

These are uncertain times in relation to the interaction between the CPA and its creation of consumer rights and interaction with existing healthcare legislation. The interaction between healthcare legislation and consumer protection legislation has already received attention in the United Kingdom which possesses similar legislation to that of the CPA. This interaction is examined in a publication by Margaret Brazier entitled Medicine, Patients and the Law (third edition) at page 198.

The examination occurs most usefully in relation to the imposition of product liability principles in respect of the sale of medicines and medical devices. Currently, in South African law, medicines are controlled in our marketplace – in respect of their distribution, manufacture, sale and dispensing – in terms of the Medicines Act and the Pharmacy Act. Medical devices have, to date, received less attention but regulations are pending for purposes of controlling medical devices.

In relation to the imposition of consumer protection principles in ordinary product liability law, with reference to a special commodity such as medicines and medical devices, Brazier argues that there is a complex interaction between the sale of medicines that cause injury to the person taking them and consumer protection legislation.

The interaction is complex to a point of deciding whether or not medicines fall within the scope and ambit of the English consumer protection legislation but nevertheless there is uncertainty on whether or not medicines would fall outside of such legislation. The prevailing view being that the legislation, in the form of the English Consumer Protection Act, applies to such goods. In this regard, Brazier cites the decision of Abouzaid v Mothercare Ltd in which a 12 year old boy had his eye damaged as a result of a strap slipping from his grasp and hitting him in the left eye after endeavouring to clip a sleeping bag to a push chair by passing elasticised straps around the back of the chair with a metal buckle. Brazier states "[t]he Court of Appeal found that the product was defective. There was a failure to provide instructions and the design of the product was unsafe because it could not be secured without risk. Consumers would properly expect that such a product could be used without that degree of risk. Relatively minor alterations in the design would eliminate that risk. The Mothercare judgment can be applied to make two key points about liability for drugs. (1) Instructions about the use of, and warnings concerning possible adverse effects of, drugs are crucial. Failure to warn of a known risk will, as argued earlier, render a drug defective. (2) Common sense will play its part in determining what 'people generally' may expect from a product." (at pages 209 to 210).

This point was then enforced in a further judgment in Richardson v LRC Products Ltd in which the plaintiff sued due to a defect in a condom, which caused her to become pregnant. Usefully, Brazier states the problem in the following assessment of the interaction primarily between the sale of medicines and consumer protection legislation: "Returning to drug-induced harm, consider the following examples in the light of the... cases. You purchase Ibuprofen in a supermarket. The packet clearly warns you not to take the medicine if you suffer from asthma. You ignore that warning and, despite your asthma, take several tablets. An acute attack of asthma lands you in hospital. Is that pack of Ibuprofen defective? You are prescribed a cream to cure acne. No warning accompanies the product. The cream causes the eruption of a rash all over your body. Evidence emerges that the product will produce just such an allergic reaction in about 2% of female users if they use the cream during pregnancy. Neither you nor your GP was aware you were pregnant at the time. Is the product defective?" (at page 210).

Conclusion

hat remains evident is there is a complex interaction between product liability and medicines and medical devices in South African law. The CPA also contains strict liability provisions for products that are unsafe or cause harm to consumers. Therefore, manufacturers, distributors, dispensers and anyone within the healthcare profession who recommends the use of a product, which ultimately causes the patient harm, may very well find themselves on the end of a product liability claim. A complex legal debate will then occur not only on the basis of who knew about what, but whether or not there was in fact a causal link between the harm suffered by the patient and the use and sale of the medicine in question. The twist in the introduction of the CPA is that the causal connection is something that must be approved by the defendant as opposed to the plaintiff along with other aspects concerning negligence. This is the effect of strict liability, which shifts the burden of proving that there was no negligence to the defendant as opposed to, as is traditionally the case, the plaintiff who is required to prove his or her case in court.

The effect of a comparison between legislation such as the MSA or the NHA and the CPA does reveal an interesting correlation between the rights contained in the CPA and those already contained in existing legislation. Such a comparison, albeit on very broad principles, is provided.

The difficulty remains, however, whether or not a patient will pursue his or her rights under existing healthcare legislation and nevertheless enjoy additional rights to pursue claims, on a far easier litigation basis, due to the effects of strict liability in the CPA: in terms of his or her rights under the CPA. This is enhanced by directions in the CPA that require a judge or a court, when dealing with the application of the CPA for purposes of deciding a consumer complaint, to interpret the legislation before him or her or the contractual terms of the transaction, as the case may be, in such a way as to favour the consumer.

The actual interaction between the CPA and existing healthcare legislation may be resolved in so far as statutory bodies, which are primarily responsible for the control and application of their various statutes, such as the Council for Medical Schemes or the HPCSA, obtain an exemption from the CPA for them to conduct their affairs in accordance with provisions contained in their existing legislation and of which they are the wardens. Applications for such exemptions will have to be made directly to the Minister of Trade and Industry and a careful analysis undertaken in order to show that consumers are equally protected under the existing healthcare legislation as they are under the CPA. Whether or not such exemptions will in fact be provided, remains a matter of speculation. Currently, however, consumers are king in so far as they enjoy rights under the CPA and, conceivably, under existing healthcare legislation.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions