Concerns over amendments to Health Act and how they could result in abuse of power

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Concerns over amendments to Health Act and how they could result in abuse of power.
Concerns over amendments to Health Act and how they could result in abuse of power.
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VOICES


The Young Nurses Indaba Trade Union (YNITU) has noted the proposed new amendments to the regulations relating to the surveillance and control of notifiable medical conditions. As a trade union representing at least 16 000 young health workers, we felt it was crucial for us to make submissions to the national health department on the proposals which government is making on the amendments.

The YNITU is mindful of the severe impact the Covid-19 pandemic has had on workers, patients and the public at large. Healthcare workers are at the coal face of the challenges and complications that this virus has brought on to an already overburdened healthcare system. So far, 100 000 people have died from Covid-19, including at least 1 300 health workers.

At the same time, the public healthcare system is drastically underresourced in terms of human resources. It is stretched to capacity and cannot keep up with the demands of providing quality care to a growing South African population.

Health Minister Joe Phaahla said in a press statement on April 14 that the purpose of the proposed changes is to manage the pandemic through “non-pharmaceutical means”.

READ: South African doctors call for law reform, fearing a harsh penalty if patients die

He also said that government has good intentions in the execution of its constitutional mandate to protect lives. However, as a trade union, we are concerned because it seems these changes will give the health minister more powers and may ultimately undermine the constitutional rights of individuals.

We have picked out five core issues which we have raised in our submission as issues that have the possibility of undermining the constitutional rights of patients:

1. We are concerned that the proposals made by the minister subvert the rights of patients. For example, the Patient Rights Charter clearly states that “a person may refuse treatment and such refusal shall be verbal or in writing”. Therefore patients should not be subjected to medical examinations, admissions, treatment or quarantining without their consent. It is our submission that there is no basis for contravening the rights of patients for a notifiable condition.

Notifiable conditions are not a new phenomenon and Covid-19 should not be the basis for any drastic amendments to the Health Act and its regulations. Therefore the proposal which is outlined in the bill, which threatens members of the public with court orders and imprisonment unless they comply and submit to receiving a particular type of treatment, is unnecessary and inhumane.

If patients choose not to comply, it is within their constitutional right. We would prefer an approach based on robust patient education when it comes to treating communicable diseases rather than draconian measures that are imposed on people as that would go against the spirit of our democratic dispensation.

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2. In the foreword by the minister, released in December 2017 (circular 1 434), it is stated that the regulations made in the schedule are derived from the National Health Act of 2003 in terms of section 90(1) (j), (k) and (w).

In the new proposed regulations, released in March 2022 (circular 1 882), an addition to section 90(4) (c) has been made which gives the health minister the right to immediately make changes to the regulations without any consultation, which is a contradiction to section 90(4) (a).

Our input is that the whole of section 90(4) should not be added as a reference in the amendments of the new regulations because it would mean the minister would have the power to make changes without consulting relevant stakeholders. This could possibly lead to an abuse of power. The powers of the minister must be balanced against the rights of individuals, as well as against workers’ and patients’ rights.

READ: Chronically ill patients fear for their lives

3. The government cannot give the health minister powers to decide when lockdown should be implemented and when it is to be lifted. Neither can it give the minister powers to determine whether people should be subjected to medical examinations, prophylaxis, treatment, quarantine and vaccinations.

By threatening people with court orders and imprisonment, the health minister is indirectly enforcing vaccinations as a “mandatory prophylaxis”. This means that these amendments are not democratic and smack of dictatorship. The Constitution is clear that individuals have the right to refuse vaccination, and as long as that clause exists, the right to refuse vaccination remains a constitutionally protected right.

4. People can generally maintain social distancing, however, overcrowding in public hospitals makes practicing social distancing virtually impossible. There is overcrowding in informal settlements, where the majority of the working class and the poor reside. Therefore, it is impractical to impose social distancing in hospitals or in public transport.

Why is government not building more healthcare facilities and ensuring that all medical staff vacancies are filled? Currently, we have more than 10 000 vacancies for nurses in public hospitals. This massive shortage of staff has a direct impact on our ability to treat the sick and to respond to future pandemics. Surely, it would make more sense to respond in this way to the challenge than to call for social distancing when we know that will not have a material impact on eradicating the virus.

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Filling vacancies would have an immediate positive impact on reducing Covid-19 cases and would have the overall impact of improving the quality of patient care.

This principle also applies to public transportation. We have seen evidence that the majority of the public do not maintain social distancing in taxis because they are filled to capacity. There is little to no enforcement of social distancing as a rule. Government should not try to impose this amendment when it is currently failing to ensure its implementation.

5. We are also questioning the rationale regarding the proposal to limit access to hospitals by visitors. We reject this clause because as healthcare professionals, we see the positive value of visitors and the role that family and loved ones play in improving the overall health and wellbeing of patients. There are numerous studies that talk about the benefits of family support when a patient is ill. Visitors should not be limited because the support of loved ones helps in the recuperation of patients and also assists in the surveillance of the treatment that a patient receives.

It is our considered view as the YNITU that the guidelines as they appear in the current regulations are sufficient to manage all communicable diseases. It is not necessary to take the National Disaster Act and make it find expression in the National Health Act. We must not allow a situation where our constitutional rights are undermined in the name of fighting a pandemic. These rights are sacred and any attempt to reduce or curtail them must be vociferously rejected.

Mthunzi is the general secretary of the YNITU


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