Recent amendments to the existing regulations of the National Health Act will not pass constitutional muster, not least because their overbroad and sweeping nature infringes upon the separation of powers, writes Lukas Muntingh and Jean Redpath.
At around midnight on Wednesday, 4 May, government published amendments to existing regulations to the National Health Act, which limit constitutional rights, albeit to a lesser degree than the proposed more extensive regulations published on 15 March 2022.
In order to be constitutional, such limits on rights must be "reasonable and justifiable in in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors" (in terms of the limitations clause). Both versions of amendments appear vulnerable to constitutional challenge; the 4 May amendments are already law and will remain in place unless challenged or withdrawn.
Regulations are also called "subordinate legislation" because the Minister, in this case the Minister of Health, is empowered by legislation made by Parliament to make such regulations, which is subordinate to the empowering legislation. Because of the principle of separation of powers, such empowering provisions are usually interpreted quite strictly, because it is democratically preferable that Parliament make essential laws, and not the executive. Subordinate legislation usually deals with detail within the broader laws provided by empowering legislation and should ideally be specifically and narrowly drafted.
Here the empowering section is section 90(1) of the of the National Health Act, which provides that the Minister, after consultation with the National Health Council and Office of Health Standards Compliance, may make regulations in relation to (j) communicable diseases (k) notifiable medical conditions and (w) "generally, any other matter which it is necessary or expedient to prescribe in order to implement or administer this Act."
"After consultation" implies that the Minister must consult, but need not heed, the advice of the relevant agencies. Section 90(4) goes on to provide that the Minister must publish draft regulations at least three months before their proposed implementation date; may alter the draft after comment without publishing changes; and may dispense with the three-month requirement, "if circumstances necessitate the immediate publication of a regulation."
Three month's notice needed
More extensive proposed regulations than those which were promulgated on 4 May, were published for comment on 15 March 2022, with only 30 days provided for comment. If the regulations actually published on 4 May are construed as alterations to the 15 March draft, this is still not three months' notice. The Minister must therefore be relying on the provision which provides for an exception where the "circumstances necessitate the immediate publication of the regulation".
Action for Freedom, an NGO, had taken the 15 March draft regulations to the Cape High Court on the basis of the apparently too short consultation period; although the judgment of Judge Hayley Slingers is not publicly available, she apparently found for the Minister, presumably on the basis that "circumstances necessitated" dispensing with the three-month requirement. In any event, the consultation period for the 15 March proposed regulations has been extended in a Notice also published on 4 May for a further 90 days.
The 4 May regulations, unless challenged on procedural or substantive grounds, will accordingly remain in effect permanently unless withdrawn or replaced by the Minister, perhaps with the 15 March proposed regulations. As they are amendments to existing regulations, they must be read in conjunction with the existing regulations promulgated in 2017.
These 2017 regulations already comprehensively provide the management of notifiable medical conditions and provide for offences in Regulation 20. The offence formulation is extremely broad, providing for a sentence of up to 10 years' imprisonment or a fine (no maximum specified) for any person who "fails to comply with a provision of these regulations". Accordingly, this will apply to the 4 May amendments and the proposed 15 March regulations too, should they be promulgated. We believe that using criminal law and criminal justice system processes to manage public health problems leads to absurdities and unintended consequences and is in general inadvisable, not least because public health should be built on trust and voluntary co-operation of the public.
The 4 May regulations require face masks indoors and on public transport. Mandatory mask-wearing is an infringement of the person's right to freedom and security, via the right to bodily integrity, which includes the right to security in and control over one's own body. Furthermore, the Constitution provides that the "best interests of the child" are paramount in every matter concerning the child in terms of section 28(2) of the Bill of Rights. It is not in the interests of children that they and their teachers wear masks in perpetuity.
However, these rights infringements may in certain circumstances, be justified in terms of the limitations clause. But, it is almost certainly unjustifiable when the risk of infection is low. The 4 May regulations therefore provide that the Minister may, by Notice in the Gazette, retract or reinstate the face mask requirement if it is no longer necessary or becomes necessary to contain the spread of Covid-19. This may make the provision more constitutionally tenable, although thus far, the requirement has remained in place even while hospitalisations and deaths have been low. Ideally, the formulation should include a threshold limit, such as a specific hospital bed occupancy level, in order not to be overbroad and survive a constitutional challenge.
The 4 May regulations provide for restrictions on gatherings, with a 50 percent limit even where participants are vaccinated or have a negative recognised Covid-19 test;
in the absence of these, gathering size is limited to 1 000 indoors or 2 000 outdoors. Schools are exempt from these restrictions in order to avoid rotational schooling, but universities are not. These restrictions will continue to have a negative impact on the economy and prevent the full resumption of student, sporting, and social life.
Infringemens on rights to bodily integrity
International travellers, with the exception of daily commuters from neighbouring countries and children under 12, must produce a vaccination certificate, negative PCR test within 72 hours, a negative antigen test within 48 hours, or a positive PCR test older than 10 days but less than 90 days old. If the traveller fails to do so, they must have an antigen test. If positive, they must self-isolate for 10 days; presumably, it also possible for the offence provision referred to above also to kick in.
The proposed 15 March regulations, by contrast, require a vaccination certificate to exit the country. This infringes both the right to bodily integrity and the right to freedom of movement contained in section 21(2) of the Bill of Rights of the Constitution, which provides that everyone has the right to leave the Republic; justifiability is unlikely.
The 4 May regulations classify Covid-19 as a Category 2 medical condition, which requires notification to the authorities within seven days of a diagnosis. The 4 May regulations don't provide for some of the more controversial proposed 15 March regulations, including those relating to social distancing in the workplace, but these are largely provided for in workplace safety regulation. While the 4 May regulations don't provide for the controversial mandatory testing, prophylaxis, quarantining and treatment provisions proposed in the 15 March regulations, these are already contained in the 2017 regulations.
Existing 2017 Regulation 14 is labelled "Voluntary medical examination, prophylaxis, treatment, isolation and quarantine" and already provides that a case, carrier or contact "must" subject him or herself to examination, and "must" comply, to the best extent possible, with all infection control measures given, including but not limited to prophylaxis, treatment, isolation or quarantine measures. However, existing Regulation 14(9) provides that for the above to apply, the notifiable medical condition must pose a public health risk and "the person who is a case, carrier or contact of a notifiable medical condition has been offered and encouraged to accept counselling services in order to assist him or her to understand the nature of the voluntary measures, the personal health risk and the public health risk."
Existing 2017 regulation 15 provides for "Mandatory medical examination, prophylaxis, treatment, isolation and quarantine." It provides for obtaining a court order should a 'carrier' refuse to submit to voluntary measures outlined above. Measures to prevent transmission can however take place in advance of the court order.
Open to constitutional challenge
However, such mandatory measures can only take place if the following conditions are met: the notifiable medical condition must pose a public health risk, the person must have expressly, impliedly or by conduct refused voluntary measures to protect public health, consent in terms of section 7 of the Act could not be obtained (section 7 provides for the situation of a person unable to give consent), and the person who is a case, carrier or contact of a notifiable medical condition has been offered and encouraged to accept counselling services in order to assist him or her to understand the nature of the voluntary measures, the personal health risk, the public health risk and the procedure that will be followed should he or she refuse voluntary measures.
These qualifications make these provisions somewhat more constitutionally tenable and apply to all notifiable medical conditions. However, many would be worried to discover that they are already law, and apply to 50 existing notifiable conditions, despite the qualifications, and may well be open to constitutional challenge too, because of their overbroad nature.
The 15 March proposed regulations, by contrast, would seek to provide that any person who is confirmed or suspected carrier or has merely been in contact with any person who is a carrier of a condition contained in categories 1 to 3 contained in Tables 1 – 3 of the 2017 regulations, may not refuse to submit to a) medical examination b) admission to a health establishment, quarantine, or isolation site c) mandatory prophylaxis, treatment, isolation or quarantine in order to prevent transmission, without the qualifications in the existing regulations.
In our submission on the 15 March regulations, we have argued that provisions like this actually undermine public health in practice. During the HIV/AIDS epidemic, it was debated whether HIV/AIDS should become a notifiable condition. It was argued strongly and convincingly that this would have a negative effect on public health inter alia because it would discourage people from seeking help, due to stigma of the disease and the consequences of contact tracing and other consequences of notifiable conditions for patients. To this day, HIV/AIDS has, correctly in our view, remained off the notifiable conditions list and is now a disease successfully managed with (truly) voluntary testing, counselling and treatment.
There is evidence that lockdown coercive provisions in relation to Covid-19 may have undermined public health by discouraging people from receiving a diagnosis and, therefore from receiving care. It can be theorised that because of stringent requirements of isolation, contact-tracing, rules against visiting in public hospitals and the like which were applicable to a Covid-19 diagnosis, people may have chosen not to seek medical attention in order to avoid a Covid-19 diagnosis and its associated implications which were prescribed by law. This possibility is strongly suggested by comparing the number of official Covid-19 deaths recorded in hospitals (100 000) and the number of excess deaths estimated by the SAMRC (approx.300 000).
Choosing to die at home, rather than a hospital
This suggests that some 200 000 people who were sick enough to die chose rather to die at home than seek medical care during the height of the Covid-19 pandemic. In other words, twice as many people died outside of places where they could receive a diagnosis as died in places where they could. This is also suggested by the large discrepancy between the number of official Covid-19 diagnoses (approximately 3.7 million, 6 April 2022) and the number of infections suggested by antibody testing (approximately 71 percent of the population, or 42 million people, November 2021); or the number of infections suggested by the estimated infection fatality rate (under 1 percent) and total deaths, the arithmetic of which suggests the entire population has probably been infected.
Any provision which discourages people from seeking medical care for Covid-19 undermines public health, because medical care does boost survival rates, as often it is the case that simply providing oxygen over a key period of infection can allow a patient to recover, in the case of Covid-19. As soon as it becomes known that a diagnosis of a notifiable medical condition can lead to involuntary isolation (which is a form of deprivation of liberty) not only of oneself, but also of one's family and friends with whom one has been in contact, there will be a strong disincentive for people to seek medical care, drastically undermining public health.
Indeed, the mere publishing of these draft regulations has likely already seriously undermined public health, as has the last two years' of similar provisions applicable under the State of Disaster. Furthermore, they likely will not pass constitutional muster, not least because their overbroad and sweeping nature infringes upon the separation of powers.
- Lukas Muntingh and Jean Redpath are with the Africa Criminal Justice Reform at the Dullah Omar Institute at the University of the Western Cape.
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