CERTIFICATE OF NEED.NATIONAL HEALTH ACT

Transcription

1 5/6/2014 CERTIFICATE OF NEED.NATIONAL HEALTH ACT Read against Constitution of the Republic of South Africa; Promotion of Administrative Justice Act; Protection of Personal Information Act; Promotion of access to information Act; Promotion of Equality and Prevention of Unfair Discrimination Act; Consumer Protection Act; Health Professions Act; and Old Health Act Adv Willem Smit Cell:

2 CHAPTER ONE TABLE OF CONTENTS INTRODUCTION 1 1 Introduction Section 36 of the National Health Act The meaning of the words health agency, health care provider, health establishment, 1 health services and certificate of need CHAPTER TWO PURPOSE OF ARTICLE 2 1 Introduction 2 CHAPTER THREE INTER-RELATIONSHIP OF PATIENTS / CONSUMERS AND HEALTH CARE PROVIDERS CONSTITUTIONAL RIGHTS AND LAWS 3 1 Introduction Freedom of trade, occupation and profession of health care providers Judicial review The National Health Act 61 of 2003 as read with the Constitution The constitutional rights of patients / consumers Patients (consumers) right to access information The purpose and policy of the Consumer Protection Act The Department of Health s goal in the issuing or denying of a Certificate of 11 need Existing patients constitutional rights 11 i

3 Health care providers and health establishments also regulated by the 13 Consumer Protection Act Unsolicited services under the Consumer Protection Act The handing over and the supplying of existing patients (consumers) with their 14 medical records Section 36 of the National Health Act forbid further medical services The infringing of existing health care provider s patients constitutional rights Section 3 (o) of the Health Professions Act and Section 22 of the Constitution Introduction Health care providers freedom of trade, occupation and profession Health care providers regulated by the Health Professions Act Health care providers must respect patients constitutional rights The obligation of the Health Professions Council of South Africa (HPCSA) under 19 the Health Professions Act 3 5 Health care providers to discriminate against fellow health care providers Introduction The sale of health establishments before the 1st of April The sale of health establishments after the 1st of April Constitution protects law and constitutional rights under Consumer Protection Act 22 CHAPTER FOUR REGULATION FIRST TO BE PROMULGATED BEFORE THE DEPARTMENT OF HEALTH CAN ENFORCE THE STIPULATIONS OF SECTIONS 36 TO 40 UNDER THE NATIONAL HEALTH ACT 4 1 Introduction The obtaining or renewal of a certificate of need 23 ii

4 4 3 The word prescribed is defined First to wait for regulation before application for a certificate of need Regulation to be published for comment at least three months before commencement 24 CHAPTER FIVE THE CONSIDERATION OF AN APPLICATION FOR A CERTIFICATE OF NEED BY THE DIRECTOR GENERAL OF THE DEPARTEMENT OF HEALTH 5 1 Introduction Section 3 of Promotion of Administrative Justice Act Executing an administrative action as an organ of state Existing health establishments under consistent municipal planning erected Director-General can be forced to give reasons No prescribed procedure for existing patients to be heard Section 4 of Promotion of Administrative Justice Act Introduction Chance to be given to existing patients to be heard 30 CHAPTER SIX REMEDIES AVAILABLE TO PATIENTS, HEALTH ESTABLISHMENTS AND HEALTH CARE PROVIDERS 6 1 Introduction Unconstitutionality of Sections 36 to 40 of the National Health Act Section 27 (2) of the Constitution of South Africa: reasonable legislative 31 measures iii

5 Patients make use of health care services in areas where they work The Constitution of South Africa s Section 36 versus Sections 36 to of the National Health Act (36 v 36) The stipulations of section 36 (2) of the Constitution Neglect by the Department of health Section 93 (2) of the National Health Act read with section 44 of Health 34 Act 63 of Sections 36 to 40 of the National Health Act read with Sections 3 and 94 of the 36 Consumer Protection Act 6 4 Sections 6, 7 and 8 of the Promotion of Administrative Justice Act 37 CHAPTER SEVEN CONCLUSION 7 1 The national legislative authority Nearly certificate of needs to be processed The way forward39 BIBLIOGRAPHY iv

6 CHAPTER ONE INTRODUCTION 1 1 Introduction On the 21 st of March 2014, under proclamation by the President of the Republic of South Africa 1, in terms of section 94 of the National Health Act 2, the President determined the 1 st of April 2014 as the date on which Sections 36, 37, 38, 39 and 40 of the National Health Act, shall come into operation. 1 2 Section 36 of the National Health Act Section 36 of the National Health Act stipulates inter alia the following: 36 Certificate of need (1) A person may not (a) establish, construct, modify or acquire a health establishment or health agency; (b) increase the number of beds in, or acquire prescribed health technology at, a health establishment or health agency; (c) provide prescribed health services; or (d) continue to operate a health establishment or health agency after the expiration of 24 months from the date this Act took effect, without being in possession of a certificate of need. 1 3 The meaning of the words health agency, health care provider, health establishment, health services and certificate of need The meaning of the words health agency, health care provider, health establishment, 1 South African Government National Health Act: Commencement of certain sections < (accessed ) 2 South African Government National Health Act, Act 61 of 2003 <[PDF] National Health Act [No. 61 of 2003] - South African...> < (accessed )

7 health services and certificate of need are all defined in the National Health Act. 3 Each and every health agency, health care provider and health establishment, as defined under the National Health Act, are obliged to apply for a certificate of need to the Director- General in the prescribed manner and must pay the prescribed application fee for permission to continue with the delivery of health services before the 1 st of April CHAPTER TWO PURPOSE OF ARTICLE 2 1 Introduction With this article the purpose is to investigate and discuss: The possible consequences and obstacles which patients, health establishments and health care providers might have to deal with in the future as stipulated under section 36 (1) (c) and (d) of the National Health Act; and How sections 36 to 40 of the National Health Act are infringing certain constitutional rights of existing patients (consumers) of existing health establishments and heath care providers as stipulated and enshrined under the Constitution of the Republic of South Africa 5 ; and How sections 36 to 40 of the National Health Act are going to infringe patients (consumers) consumer rights and constitutional rights as stipulated under the Consumer Protection Act 6, the Promotion of access to information Act 7, the Protection of Personal Information Act 3 See footnote 2 4 Timeslive Docs to be told where to work < (accessed ) 5 South African Government Constitution - South African Government < (accessed ) 6 Creamermedia Consumer Protection Act, Act No. 68 of 2008 < (accessed ) and South African Government Consumer Protection Act, Act No. 68 of 2008 < (accessed ) 7 DFA Promotion of access to information Act, Act 2 of 2000 < (accessed ) 2

8 (POPI) 8, the Promotion of Equality and the Prevention of Unfair Discrimination Act and the Health Professions Act if the Department of Health is going to deny in future to issue a certificate of need to an existing specific health care provider to continue to provide prescribed health services or to continue to operate a health establishment at the location where he or she supplied health care services in the past at his or her resident practice address; and If Parliament act in accordance with and within the limits of the Constitution when they promulgated Sections 36 to 40 of the National Health Act. CHAPTER THREE INTER-RELATIONSHIP OF PATIENTS / CONSUMERS AND HEALTH CARE PROVIDERS CONSTITUTIONAL RIGHTS AND LAWS 3 1 Introduction The National Health Act 61 of 2003 was passed by Parliament to give effect to the right of everyone to have access to health care services. This right is guaranteed by section 27 of the Constitution, which places express obligations on the state to progressively realise socio-economic rights, including access to health care 9 by making use of reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of the rights as enshrined under Section 27 of the Constitution. 8 KPMG Protection of Personal Information Act (POPI) Act 4 of 2013 < (accessed ) President Jacob Zuma signed the Protection of Personal Information Act ( POPI ) into law on 27th November The actual commencement date of the Act is still to be determined by the President in the Government Gazette. From this date, organisations will have one year to demonstrate compliance with the legislation. 9 The Constitution of the Republic of South Africa Section 27: Health care, food, water and social security 27. (1) Everyone has the right to have access to (a) health care services, including reproductive health care; (b) sufficient food and water; and (c) social security, including, if they are unable to support themselves and their dependants, appropriate social assistance. (2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights. (3) No one may be refused emergency medical treatment 3

9 3 1 1 Freedom of trade, occupation and profession of health care providers Persons (Health care providers ) registered in terms of the Health Professions Act have exercised their freedom of choice concerning their Freedom of trade, occupation and profession as enshrined in the Constitution 10 under section 22 which stipulates that every citizen has the right to choose their trade, occupation or profession freely. It also stipulates that the practice of a trade, occupation or profession may be regulated by law. The potentially wide scope of section 26(1) under South Africa s previous Constitution of 1993 which was subjected to the complex internal limiter contained in s 26 (2) 11 has been replaced by a narrower formulation by section 22 in South Africa s latest Constitution which is based more closely on comparative precedent. 12 As in South Africa, the German Basic Law, provides that all Germans have the right freely to choose their trade or profession although the practice thereof may be regulated by law. 13 Litigation based in the past upon these section of the German law may affords some guidance to the scope of section 22 of the Constitution of the Republic of South Africa. In the German Pharmacy Case 7 BVerfGE 377 (1958) the facts were as follows 14 : Bavaria restricted the number of pharmacies licensed in any given community. The state's Apothecary Act provided for the issue of additional licences only if the new pharmacies would be commercially viable and cause no economic harm to nearby competitors. In 1955 Bavaria invoked this statute to deny a licence to a person who had recently migrated from East Germany where he 10 The 1996 Constitution of the Republic of South Africa: Section 22: Freedom of trade, occupation and profession Section 22. Every citizen has the right to choose their trade, occupation or profession freely. The practice of a trade, occupation or profession may be regulated by law. 11 The 1993 Constitution of the Republic of South Africa: Section 26: Economic activity 26 (1) Every person shall have the right freely to engage in economic activity and to pursue a livelihood anywhere in the national territory. (2) Subsection (1) shall not preclude measures designed to promote the protection or the improvement of the quality of life, economic growth, human development, social justice, basic conditions of employment, fair labour practices or equal opportunity for all, provided such measures are justifiable in an open and democratic society based on freedom and equality. 12 Dennis Davis, Halton Cheadle and Nicolas Haysom Fundamental rights in the constitution Commentery and cases A commentery on Chapter 3 on Fundamental Rights of the 1993 Constitution and Chapter 2 of the 1996 Constitution (1997) Juta & Co Ltd 208 to See footnote See footnote 12 4

10 had been a licensed pharmacist. The aggrieved applicant filed a constitutional complaint against the decision of the Bavarian government and the statutory provision under which the action was taken. 15 The court found against the applicant but in so doing set out the following principles: For it is clear from the text of article 12(1) that occupational choice is to remain "free" while the practice of an occupation may be regulated. This language does not permit an interpretation that assumes an equal degree of legislative control over each of these "aspects". The more legislation affects the choice of a profession, the more limited is the regulatory power. This interpretation accords with the basic concepts of the Constitution and the image of man founded on those concepts. The choice of an occupation is an act of selfdetermination, of the free will of the individual; it must be protected as much as possible from state encroachment. In practising an occupation, however, the individual immediately affects the life of society; this aspect of [vocational activity] is subject to regulation in the interest of others and of society. The legislature is thus empowered to make regulations affecting either the choice or the practice of a profession. The more a regulatory power is directed to the choice of a profession, the narrower are its limits; the more it is directed to the practice of a profession, the broader are its limits.... (c)... The general principles governing the regulation of vocational activity may be summarized as follows: The practice of an occupation may be restricted by reasonable-regulations predicated on considerations of the common good. The freedom to choose an occupation, however, may be restricted only for the sake of a compelling public interest; that is, if after careful deliberation the legislature determines that a common interest must be protected, then it may impose restrictions in order to protect that interest-but only to the extent that the protection cannot be accomplished by a lesser restriction on freedom of choice. 15 See footnote 12 5

11 In the event that an encroachment of freedom of occupational choice is unavoidable, lawmakers must always employ the regulative means least restrictive to the basic right.' (Cited by Kommers op cit at ) It is submitted that these principles should be used, albeit cautiously, in the interpretation of the scope of section 22. In short, an unreasonable legal restriction on the rights enshrined in section 22 should be subject to some measure of scrutiny, if only to test that the practice is regulated rather than the right curtailed or negated. 16 Die measure of scrutiny is built inter alia into the following stipulations of the Constitution of the Republic of South Africa of which certain parts read as follows: Section 27: Health care, food, water and social security Section 27 (2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights. Section 36: Limitation of rights Section 36 (1) The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including (a) the nature of the right; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the relation between the limitation and its purpose; and (e) less restrictive means to achieve the purpose. (2) Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights. 16 See footnote 12 6

12 Sections 36 to 40 of the National Health Act has to do with the following words as stated above: The practice of an occupation may be restricted by reasonable-regulations predicated on considerations of the common good. Sections 36 to 40 of the National Health Act are not passing the test of reasonable-regulations predicated on considerations of the common good against the background of all the grounds and reasons as to be discussed in this article Judicial review In the book of Van Wyk, Dugard, De Villiers and Davis Rights and Constitutionalism The New South African Legal Order (1994) Juta & Co Ltd, Lansdowne, South Africa, the authors wrote on page 116 the following about functional / process approaches to judicial review to be followed by South African courts in the reviewing of unreasonable legislative and other measures by the state / government by discussing the way in which the FCC (The Federal Constitutional Court of Germany) has dealt with the review of unreasonable legislative and other measures by the state / government: The FCC distinguishes between three levels of review: 17 mere control of manifest (Evident) infringements; 18 control of the justifiability (Vertretbarkeit) 19 of state action; and intensive control of the content of the regulation. 20 The FCC determined that the intensity of judicial scrutiny depends on the nature of the material regulated by the legislation, 21 the intensity of BVerfGE (Mitbestimmung), 18 This level of scrutiny requires a manifest infringement of a right without a rational justification before the court will invalidate the legislation. See 36 BVerfGE 1 17 (Ostpolitik, 'offensichilich'); 56 BVerfGE ('evident'). 19 The court reviews whether the legislative decision is objectively justifiable (25 BVerfGE 1 12,17; 39 BVerfGE both cases deal with the free exercise of a profession art 12 GG). In these instances the court does not review the content of the legislation in detail, but rather considers whether the legislature has 'applied its mind properly'. 20 The court will determine the facts and make a prognosis for itself. In matters concerning life or the elementary freedoms of the individual the state is not allowed to experiment. See 7 BVerfGE (pharmacies and national health), 39 BVerfGE 1 46, 51 (abortion); 45 BVerfGE (lifelong imprisonment); Zeidler op cit (n 437) 523; Philippi op cit (n 460) 188; Schuppert op cit (n 574) The more intense the scrutiny, the less room for the legislature to manoeuvre. 21 With regard to economic legislation the court will exercise even more restraint than its normal minimum rationality scrutiny ( 39 BVerfGE legislation must be 'clearly missing its purpose'); 18 BVerfGE ; cf the US Supreme Court's deferential attitude in the area of economic regulations. 7

13 the legislative invasion, 22 the importance of the legal goods in question, and the possibility (or impossibility) of making clear and straightforward decisions. 23 The principle of proportionality has therefore not been the only yardstick to determine the constitutionality of Grundrecht limitations The National Health Act 61 of as read with the Constitution 26 Section 27 of the Constitution obviously refers to health. 27 But all the rights in our Constitution are indivisible, interrelated and mutually supporting. This means that it is important to achieve the realisation of some rights in order to enjoy other rights. 28 For example: Human dignity, equality and privacy are denied to those who have no or limited access to health, food and shelter; Patients should be afforded the necessary privacy when being examined and should not be physically exposed in front of others. Their medical information should not be disclosed to others. 29 In terms of section 9, everyone has the right to equality, including access to health care services, which means that individuals should not be unfairly excluded in the provision of health care. 22 The greater the legislative invasion, the more compelling justifying grounds are required (7 BVerfGE ; 50 BVerfGE ). 23 So, for example, the court stressed the importance that the Basic Law attaches to marriage and the family (76 BVerfGE 1, (1988) 41 NJW 626). 24 Proportionality remains the most important tool to control state, especially administrative, action. So, for example, the administration has to show in order to justify banning an assembly that the prohibition of the demonstration is necessary to protect legal interests as important as the right of assembly. In practice the state normally passes this hurdle easily, but the difficulty lies in showing that the threat to the other legal interests is immediate enough to warrant the limitation of the right of assembly. See Rautenbach & Watney op cit (n 445) See footnote 2 26 See footnote 5 27 RuDASA National Health Act Booklet_Summary 2013.pdf [PDF] <2. National Health Act Booklet_Summary 2013.pdf - RuDASA> and < > (accessed ) 28 See footnote See footnote 27 8

14 Security of the person also means that patients and health care providers and health establishments should have sufficient security in facilities. In other words, the imperatives of section 27 should not be seen in isolation but as a necessary part of the achievement of all the rights of all South African citizens in the Bill of Rights. Importantly, the right to human dignity and bodily integrity, equality (which includes the full and equal enjoyment of all rights and freedoms of each and every South African citizen), 30 freedom and security of the person, privacy and access to information as enshrined under sections 9, 10, 12, 14 and 32 of the Constitution. 3 3 The constitutional rights of patients / consumers Are the constitutional rights of patients / consumers to human dignity and bodily integrity, equality (which includes the full and equal enjoyment of all rights and freedoms), freedom and security of the person, privacy and access to information as enshrined under sections 9, 10, 12, 14 and 32 of the Constitution of an existing specific health care provider and or health establishment going to be infringed if and when the Department of Health denied the issuing of a certificate of need as defined in the National Health Act, to that existing specific health care provider or health establishment to: continue to provide prescribed health services; or continue to operate a health establishment at the location where he or she supplied medical services in the past at his or her resident practice address till up to the date of the denial of the certificate of need? Patients (consumers) right to access information Patients (consumers) do have the right to access information that is held by another person if it is required for the exercise or protection of a right this may arise in relation to accessing one s own medical records from a health facility for the purposes of lodging a complaint or for giving consent for medical treatment. 30 See footnote 27 9

15 This right also enables people to exercise their autonomy in decisions related to their own health, an important part of the right to human dignity and bodily integrity in terms of sections 9, 10 and 12 respectively. 31 The ethical rules of the HPCSA are very strict on the keeping of Medical records and they do have certain strict reasons why documents and medical records should be retained The purpose and policy of the Consumer Protection Act It is also clear when reading the purpose and policy of the Consumer Protection Act 33 as well as those of the Promotion of access to information Act, the Protection of Personal Information 31 See footnote HPCSA GUIDELINES FOR GOOD PRACTICE IN THE HEALTH CARE PROFESSIONSGUIDELINES ON THE KEEPING OF PATIENT RECORDS < (accessed ) 1 DEFINITION OF A HEALTH RECORD A health record may be defined as any relevant record made by a health care practitioner at the time of or subsequent to a consultation and / or examination or the application of health management. A health record contains the information about the health of an identifiable individual recorded by a health care professional, either personally or at his or her direction. 3 WHY DOCUMENTS OR MATERIALS SHOULD BE RETAINED 3.1 Documents and materials should be retained in order to: Further the diagnosis or ongoing clinical management of the patient Conduct clinical audits; Promote teaching and research; Be used for administrative or other purposes; Be kept as direct evidence in litigation or for occupational disease or injury compensation purposes; Be used as research data; Be kept for historical purposes; Promote good clinical and laboratory practices; Make case reviews possible; Serve as the basis for accreditation. 33 In the preamble of the Consumer Protection Act the following words appear: The people of South Africa recognise That apartheid and discriminatory laws of the past have burdened the nation with unacceptably high levels of poverty, illiteracy and other forms of social and economic inequality; That it is necessary to develop and employ innovative means to (a) fulfil the rights of historically disadvantaged persons and to promote their full participation as consumers; (b) protect the interests of all consumers, ensure accessible, transparent and efficient redress for consumers who are subjected to abuse or exploitation in the marketplace; and (c) to give effect to internationally recognised customer rights; That recent and emerging technological changes, trading methods, patterns and agreements have brought, and will continue to bring, new benefits, opportunities and challenges to the market for consumer goods and services within South Africa; and That it is desirable to promote an economic environment that supports and strengthens a culture of consumer rights and responsibilities, business innovation and enhanced performance. For the reasons set out above, and to give effect to the international law obligations of the Republic, a law is to be enacted in order to promote and protect the economic interests of consumers; improve access to, and the quality of, information that is necessary so that consumers are able to make informed choices according to their individual wishes and needs; protect consumers from hazards to their well-being and safety; develop effective means of redress for consumers; promote and provide for consumer education, including education concerning the social and economic effects of consumer choices; facilitate the freedom of consumers to associate and form groups to advocate and promote their common interests; and 10

16 Act (POPI) and the Promotion of Equality and Prevention of Unfair Discrimination Act 34 that the purpose and policy of all these acts are to express and adhere to the rights and freedoms of patients (consumers) and health care providers as enshrined under sections 9: equality 35, section 10: human dignity 36, section 12: freedom and security of the person 37, section 14: privacy 38 and section 32: access to information 39 of the Constitution The Department of Health s goal in the issuing or denying of a certificate of need When reading the stipulations of Section 36 of the National Health Act it is clear that the Department of Health s goal, in the issuing or denying of a certificate of need is to allow certain health establishments or health care providers to continue to provide prescribed health services and / or to close down other health establishments or health care providers to continue to provide prescribed health services at a specific place / location and or from certain rooms Existing patients constitutional rights promote consumer participation in decision-making processes concerning the marketplace and the interests of consumers. 34 Acts Promotion of Equality and Prevention of Unfair Discrimination Act, Act No. 4 of 2000: To give effect to section 9 read with item 23(1) of Schedule 6 to the Constitution of the Republic of South Africa, 1996, so as to prevent and prohibit unfair discrimination and harassment; to promote equality and eliminate unfair discrimination; to prevent and prohibit hate speech; and to provide for matters connected therewith < (accessed ) 35 The Constitution of the Republic of South Africa Section 9: Equality 9. (1) Everyone is equal before the law and has the right to equal protection and benefit of the law. (2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken. 36 The Constitution of the Republic of South Africa Section 10: Human dignity 10. Everyone has inherent dignity and the right to have their dignity respected and protected. 37 The Constitution of the Republic of South Africa Section 12: Freedom and security of the person 12. (1) Everyone has the right to freedom and security of the person, ; (2) Everyone has the right to bodily and psychological integrity, which includes the right (a) to make decisions concerning reproduction; (b) to security in and control over their body; and 38 The Constitution of the Republic of South Africa Section14: Privacy 14. Everyone has the right to privacy, which includes the right not to have (d) the privacy of their communications infringed. 39 The Constitution of the Republic of South Africa Section 32: Access to information 32. (1) Everyone has the right of access to (a) ; and (b) any information that is held by another person and that is required for the exercise or protection of any rights. (2) National legislation must be enacted to give effect to this right, and may provide for reasonable measures to alleviate the administrative and financial burden on the state. 11

17 It is also obvious that the forced closing down of certain health establishments and health care providers rooms, through the denying of a certificate of need to continue to provide prescribed health services at a specific place / location and or from certain rooms, are going to be done in future, without considering or keeping in mind that existing patients (consumers) who attend and made use of a specific health establishment s or health care provider s prescribed health services at a specific place / location and or certain rooms in the past, till up to the date of the denial of the certificate of need, do have the constitutional right as enshrined under sections 9, 10, 12, 14 and 32 of the Constitution; and under the stipulations of section : Consumer s right to select suppliers, section 19: Consumer s rights with respect to delivery of goods or supply of service, section 21: Unsolicited goods or services and section 68: Protection of consumer rights under the Consumer Protection Act, to claim, that a specific health establishment 41 [Rooms 42 ] or health care provider, who they attend to in the past till up to the date of the denial of the certificate of need and which / who provided prescribed health services they made use of in the past, till up to the date of the denial of the certificate of need, and where all their medical records are kept as agreed between them and the health establishment or health care provider, to continue to provide prescribed health services at a specific place / location 43 and or from certain rooms as agreed upon between them in the past till up to the date of the denial of the certificate of need. 40 The Consumer Protection Act : Part C: Consumer s right to choose : Section 13: Consumer s right to select suppliers 13. (1) A supplier must not require, as a condition of offering to supply or supplying any goods or services, or as a condition of entering into an agreement or transaction, that the consumer must (a) purchase any other particular goods or services from that supplier; (b) enter into an additional agreement [ to deliver Medical Services in future from another location] or transaction with the same supplier or a designated third party; or (c) 41 The National Health Act: Definition: health establishment means the whole or part of a public or private institution, facility, building or place [Location], whether for profit or not, that is operated or designed to provide inpatient or outpatient treatment, diagnostic or therapeutic interventions, nursing, rehabilitative, palliative, convalescent, preventative or other health services. 42 The Health Professions Act, Act 56 of 1974: Ethical rules of conduct for practitioners registered under the Health Professions Act: Definition of rooms means a physical structure, with an exclusive entrance and walled all round for the privacy of patients, the preservation of their confidentiality and the safe keeping of records, where a practitioner conducts his or her practice; resident practice means a place where a registered health practitioner conducts his or her practice on a daily basis. 43 The Consumer Protection Act : Part C: Consumer s right to choose: Section 19: Consumer s rights with respect to delivery of goods or supply of service 19. (2) Unless otherwise expressly provided or anticipated in an agreement, it is an implied condition of every transaction for the supply of goods or services that (a) the supplier is responsible to deliver the goods or perform the services (i) on the agreed date and at the agreed time, if any, or otherwise within a reasonable time after concluding the transaction or agreement; (ii) at the agreed place of delivery or performance; and (iii) at the cost of the supplier, in the case of delivery of goods; or (b) the agreed place of delivery of goods or performance of services is the supplier s place of business, if the supplier has 12

18 Section of the Consumer Protection Act stipulates that if a consumer (patient) exercised, asserted or sought to uphold any right set out in the Consumer Protection Act or in an agreement or a transaction with a supplier, the supplier must not, in response discriminate directly or indirectly against that consumer, compared to the supplier s treatment of any other consumer who has not exercised, asserted or sought to uphold such a right or penalise the consumer or alter, or propose to alter, the terms or conditions of a transaction or agreement with the consumer to the detriment of the consumer or take any action to accelerate, enforce, suspend or terminate an agreement with the consumer Health care providers and health establishments also regulated by the Consumer Protection Act Prescribed health services delivered to patients (customers) by health care providers and health establishments are also regulated by the Consumer Protection Act. 45 one, and if not, the supplier s residence; and (c).; (3) If an agreement does not provide a specific date or time for delivery of any goods or performance of any services, the supplier must not require that the consumer accept delivery or performance of the services at an unreasonable time. (4) ; (5) ; (6) If the supplier tenders the delivery of goods or the performance of any services at a location, on a date or at a time other than as agreed with the consumer, the consumer may either (a) accept the delivery or performance at that location, date and time; (b) require the delivery or performance at the agreed location, date and time, if that date and time have not yet passed; or (c) cancel the agreement without penalty, treating any delivered goods or performed services as unsolicited goods or services in accordance with section The Consumer Protection Act: Section 68: Protection of consumer rights 68. (1) If a consumer has exercised, asserted or sought to uphold any right set out in this Act or in an agreement or transaction with a supplier, the supplier must not, in response (a) discriminate directly or indirectly against that consumer, compared to the supplier s treatment of any other consumer who has not exercised, asserted or sought to uphold such a right; (b) penalise the consumer; (c) alter, or propose to alter, the terms or conditions of a transaction or agreement with the consumer, to the detriment of the consumer; or (d) take any action to accelerate, enforce, suspend or terminate an agreement with the consumer. 45 The Consumer Protection Act, Act 68 of 2008 : Definitions service provider means a person who promotes, supplies or offers to supply any service; service includes, but is not limited to (a) any work or undertaking performed by one person for the direct or indirect benefit of another; (b) the provision of any education, information, advice or consultation, except advice that is subject to regulation in terms of the Financial Advisory and Intermediary Services Act, 2002 (Act No. 37 of 2002); (e) the provision of (v) access to or use of any premises or other property in terms of a rental; irrespective of whether the person promoting, offering or providing the services participates in, supervises or engages directly or indirectly in the service; 13

19 3 3 5 Unsolicited services under the Consumer Protection Act If a patient s records are moved to a new location without his permission and he need certain documents and / or information from his records which were then forward and supplied to him at a new location without his permission, such patient can claim that he received in terms of section 21 of the Consumer Protection Act unsolicited services. There is no obligation on such patient (consumer) to pay for such unsolicited goods or services The handing over and the supplying of existing patients (consumers) with their records In a scenario where a certain health establishment and / or a health care provider is been denied a certificate of need to continue to provide any further prescribed health services (been forced by the Department of Health to immediately close its doors) the implications for existing patients (consumers) who attend and made use of that specific health establishment s prescribed health services in the past till up to the date of the denial of the certificate of need are going to find themselves in a very difficult situation. They are going to be in a position where they can t get hold of any of their medical records as been kept by this health establishments and / or a health care provider or any further advice or information for what so ever reason or purpose. Section 36 of the National Health Act is very strict in its stipulations that no prescribed health services are allowed and a health establishment is not allowed to continue to operate without being in possession of a certificate of need. 46 The Consumer Protection Act : Part C: Consumer s right to choose: Section 21: Unsolicited goods or services 21. (1) For the purpose of this Act, goods or services are unsolicited in any of the following circumstances, subject to subsection (2): (a) ; (b) ; (c) if a supplier delivers goods or performs services at a location, date or time other than as agreed, and the consumer has rejected that delivery or performance of services, as contemplated in section 19(6), those goods or services are unsolicited; (7) A person has no obligation to pay a supplier for unsolicited goods or services, or a deliverer for the cost of delivery of any unsolicited goods. (8) A supplier must not demand or assert any right to, or attempt to collect, any payment from a consumer in respect of any charge relating to unsolicited goods left in the possession of a consumer, or the delivery of any such goods, or unsolicited services supplied to or for the benefit of, a consumer, except as contemplated in subsection (4). (9) If a consumer has made any payment to a supplier or deliverer in respect of any charge relating to unsolicited goods or services, or the delivery of any such goods, the consumer is entitled to recover that amount, with interest from the date on which it was paid to the supplier, in accordance with the Prescribed Rate of Interest Act, 1975 (Act No. 55 of 1975) 14

20 The handing over and the supplying of existing patients (consumers) with their records, the giving of access to medical records falls under the definition of health services. 47 The HPCSA 48 did also promulgated strict ethical rules concerning the giving of access to medical records. 49 Without being in possession of a certificate of need a health establishment and / or a health care provider cannot continue to provide this health services. He / she cannot give any further future advice or information for what so ever request or purpose to a patient (consumer). If they did continue with this part of health services they are running the risk of being prosecuted for contravening the stipulations of Section 40 of the National Health Act 50 and a registered health care provider under the Health Professions Act, Act 56 of can also be prosecuted by the 47 See footnote HPCSA Conduct and Ethics section: Ethical rules, regulations and policy guidelines < (accessed ) 49 HPCSA GUIDELINES FOR GOOD PRACTICE IN THE HEALTH CARE PROFESSIONSGUIDELINES ON THE KEEPING OF PATIENT RECORDS < (accessed ) 11 ACCESS TO RECORDS 11.1 In terms of the law the following principles apply in regard to access to information in health records: A health care practitioner shall provide any person of age 12 years and older with a copy or abstract or direct access to his or her own records regarding medical treatment on request (Children s Act (Act No. 38 of 2005)) Where the patient is under the age of 16 years, the parent or legal guardian may make the application for access to the records, but such access should only be given on receipt of written authorization by the patient (Access to Information Act (Act No. 2 of 2000)) Information about termination of a pregnancy may not be divulged to any party, except the patient herself, regardless of the age of the patient (Choice on Termination of Pregnancy Act (Act No. 92 of 1996)) No health care practitioner shall make information available to any third party without the written authorisation of the patient or a court order or where nondisclosure of the information would represent a serious threat to public health (National Health Act (Act 61 of 2003)) A health care practitioner may make available the records to a third party without the written authorisation of the patient or his or her legal representative under the following circumstances: Where a court orders the records to be handed to the third party; Where the third party is a health care practitioner who is being sued by a patient and needs access to the records to mount a defence Where the third party is a health care practitioner who has had disciplinary proceedings instituted against him or her by the HPCSA and requires access to the records to defend himself or herself Where the health care practitioner is under a statutory obligation to disclose certain medical facts, (e.g. reporting a case of suspected child abuse in terms of the Children s Act, (Act No. 38 of 2005)) Where the non-disclosure of the medical information about the patient would represent a serious threat to public health (National Health Act (Act No. 61 of 2003)) In provincial hospitals medical records must be kept under the care and control of the clinical manager. Access to such records shall be subject to compliance with the requirements of the Access to Information Act and such conditions as may be approved by the superintendent. 50 National Health Act 61 of 2003: Section 40: Offences and penalties in respect of certificate of need 40: Offences and penalties in respect of certificate of need (1) Any person who performs any act contemplated in section 36(1) without a certificate of need required in terms of that section is guilty of an offence. (2) Any person convicted of an offence in terms of subsection (1) is liable on conviction to a fine or to imprisonment for a period not exceeding five years or to both a fine and such imprisonment. 51 Health Professions Act, Act 56 of 1974: Definition: this Act includes the regulations, rules and any proclamation or order issued or made under this Act. Definition: unprofessional conduct means improper or disgraceful or dishonourable or unworthy conduct or 15

21 HPCSA for unprofessional conduct Section 36 of the National Health Act forbid further medical services Health care providers and health establishments are going to find themselves in a very awkward situation. Section 36 of the National Health Act forbid him / her to practice any further medical services, which includes the further forwarding to or the supplying of existing patients (consumers) with their records, the giving of access to them to their medical records, without a certificate of need. If they did not adhere to the stipulations of Section 36 they are running the risk of being prosecuted for contravening the stipulations of Section 40 of the National Health Act. 53 On the other hand if they do deny existing patients (consumers) access to their medical records and decline to forward information to them on request, because of not being in possession of a certificate of need, they are running the risk of being prosecuted for contravening the stipulations of Section 90 of the Promotion of Access to Information Act, Act 2 of This whole scenario is contrary to the Hippocratic Oath 55 of health care providers and their professional ethical standards as prescribed and required by the HPCSA. 56 conduct which, when regard is had to the profession of a person who is registered in terms of this Act, is improper or disgraceful or dishonourable or unworthy. 52 See footnote South African Government National Health Act, Act 61 of 2003 <[PDF] National Health Act [No. 61 of 2003] - South African...> < (accessed ) Section Offences and penalties in respect of certificate of need (1) Any person who performs any act contemplated in section 36(1) without a certificate of need required in terms of that section is guilty of an offence. (2) Any person convicted of an offence in terms of subsection (1) is liable on conviction to a fine or to imprisonment for a period not exceeding five years or to both a fine and such imprisonment. 54 DFA Promotion of access to information Act, Act 2 of 2000 < (accessed ) Section 90 Offences 90 Offences A person who with intent to deny a right of access in terms of this Act (a) destroys, damages or alters a record; (b) conceals a record; or (c) falsifies a record or makes a false record, commits an offence and is liable on conviction to a fine or to imprisonment for a period not exceeding two years. 55 Wikipedia Hippocratic Oath < (accessed ) 56 HPCSA Conduct and Ethics section: Ethical rules, regulations and policy guidelines < (accessed ) Rule 27A. Main responsibilities of health practitioners A practitioner shall at all times - (a) act in the best interests of his or her patients; (b) respect patient confidentiality, privacy, choices and dignity; (c) maintain the highest standards of personal conduct and integrity; 16

22 3 3 8 The infringing of existing health care provider s patients constitutional rights Against the background of the above facts and arguments it is clear and a fact that the rights of existing patients / consumers concerning their human dignity and bodily integrity, equality (which includes the full and equal enjoyment of all rights and freedoms), freedom and security of the person, privacy and access to information as enshrined under sections 9, 10, 12, 14 and 32 of the Constitution of an existing specific health care provider are going to be infringed if and when the Department of Health denied the issuing of a certificate of need as defined in the National Health Act, to their existing specific health care provider to continue to provide prescribed health services or to continue to operate a health establishment at the location (his or her resident practice address) where he or she supplied medical services in the past till up to the date of the denial of the certificate of need. 3 4 Section 3 (o) of the Health Professions Act and Section 22 of the Constitution Introduction In the discussion of section 3 (o) of the Health Professions Act and section 22 of the Constitution the right of patients to access information held by a health care provider is of the utmost importance. As discussed earlier 57, patients (consumers) do have the right to access information that is held by another person if it is required for the exercise or protection of a right this may arise in relation to accessing one s own medical records from a health facility for the purposes of lodging a complaint or for giving consent for medical treatment. This right also enables people to exercise their autonomy in decisions related to their own health, an important part of the right to human dignity and bodily integrity in terms of sections 9, 10 and 12 respectively. 58 (d) provide adequate information about the patient's diagnosis, treatment options and alternatives, costs associated with each such alternative and any other pertinent information to enable the patient to exercise a choice in terms of treatment and informed decision- making pertaining to his or her health and that of others; (e) keep his or her professional knowledge and skills up to date; (f) maintain proper and effective communication with his or her patients and other professionals; (g) except in an emergency, obtain informed consent from a patient or, in the event that the patient is unable to provide consent for treatment himself or herself, from his or her next of kin; and (h) keep accurate patient records. 57 See paragraph See footnote 34 17

23 3 4 2 Health care providers freedom of trade, occupation and profession Persons (Health care providers ) registered in terms of the Health Professions Act have exercised their freedom of choice concerning their Freedom of trade, occupation and profession as enshrined in the Constitution 59 under section 22 which stipulates that every citizen has the right to choose their trade, occupation or profession freely. It also stipulates that the practice of a trade, occupation or profession may be regulated by law Health care providers regulated by the Health Professions Act The regulation of the Medical Profession is done through the Health Professions Act under supervision of the Health Professions Council of South Africa (HPCSA). It is a prerequisite that every Person (Health care provider) who do want to practice the practices as listed under section 17 of the Health Professions Act 60 must first register under the Health Professions Act as prescribed by the Act Health care providers must respect patients constitutional rights After registration, such person, do have an obligation to behave towards users of their health services in a manner that respects their constitutional rights to human dignity, bodily and psychological integrity and equality as stipulated under Section 3 (o) 61 of the Health Professions Act. 59 The Constitution of the Republic of South Africa: Section 22: Freedom of trade, occupation and profession Section 22. Every citizen has the right to choose their trade, occupation or profession freely. The practice of a trade, occupation or profession may be regulated by law. 60 HEALTH PROFESSIONS ACT 56 OF 1974: Section Registration a prerequisite for practising (1) No person shall be entitled to practise within the Republic - (a) any health profession registrable in terms of this Act; or (b) except in so far as it is authorised by legislation regulating health care providers and sections 33, 34 and 39 of this Act, any health profession the practice of which mainly consists of- (i) the physical or mental examination of persons; (ii) the diagnosis, treatment or prevention of physical or mental defects, illnesses or deficiencies in man humankind; (iii) the giving of advice in regard to such defects, illnesses or deficiencies; or (iv) the prescribing or providing of medicine in connection with such defects, illnesses or deficiencies, unless he or she is registered in terms of this Act. 61 HEALTH PROFESSIONS ACT 56 OF 1974: Health Professions Council of South Africa (HPCSA): Section 3 3. Objects and functions of council ( council means the council referred to in section 2) The objects and functions of the council are - (o) to ensure that persons registered in terms of this Act behave towards users of health services in a manner that respects 18

24 It is the very essence of this obligation of persons (Health care providers), as registered in terms of the Health Professions Act, towards their existing old patients (consumers) as discussed above 62 that is now going to be unconstitutionally infringed, limit and overrun by the stipulations of sections 36 to 40 of the National Health Act if and when the Department of Health is going to deny the issuing of a certificate of need as defined in the National Health Act, to an existing specific health care provider to continue to provide prescribed health services or to continue to operate a health establishment at the location (his or her resident practice address) where he or she supplied medical services in the past till up to the date of the denial of the certificate of need. This situation, which is going to be caused, by the stipulations of section 36 to 40 of the National Health Act in the over regulation of persons (health care providers), as registered in terms of the Health Professions Act, gives light to yet another reason to be argued, that Sections 36 to 40 of the National Health Act are not going to stand the test of constitutionality under the Constitution of the Republic of South Africa The obligation of the Health Professions Council of South Africa (HPCSA) under the Health Professions Act When reading the stipulations of section 3 (o) 63 of the Health Professions Act and section of the Constitution, concerning the stipulations of sections 36 to 40 of the National Health Act, it is clear that the obligation of the Health Professions Council of South Africa (HPCSA) under the Health Professions Act is to ensure that persons, registered in terms of this Act (health care providers), behave towards users of health services in a manner that respects their constitutional rights to human dignity, bodily and psychological integrity and equality, and that disciplinary action is to be taken against persons who fail to act accordingly;..., but what is the Health Professions Council of South Africa (HPCSA) going to do if a person, as registered in terms of this Act can t continue to behave towards his or her old patients (customers) in a manner that respects their constitutional rights to human dignity, bodily and psychological integrity and equality as their constitutional rights to human dignity, bodily and psychological integrity and equality, and that disciplinary action is taken against persons who fail to act accordingly; See Chapter 3 63 See footnote See footnote 59 19

25 discussed above 65, because the Department of Health has forced him or her to close his or her practice by denying such person a certificate of need to continue to provide health services to his or her old patients (customers) as required by Section 3 (o) of the Health Professions Act? Health care providers to discriminate against fellow health care providers Introduction Are the implementation of sections 36 to 40 of the National Health Act going to result in future, after the 1 st of April 2016, in a scenario wherein a supplier ( health establishment or health care provider ) who do want to sell his health establishment or medical practice to a fellow health establishment or health care provider going to be forced to discriminate against certain potential buyers, because they are not in possession of a certificate of need from the Department of Health to run that health establishment or medical practice at that existing business address of such health establishment or medical practice? The sale of health establishments before the 1 st of April 2016 Section 8 67 of the Consumer Protection Act as read with section 9 of the Constitution of the Republic South Africa and Chapter 2 of the Promotion of Equality and Prevention of Unfair 65 See Chapter 3 66 See footnote Consumer Protection Act: CHAPTER 2: FUNDAMENTAL CONSUMER RIGHTS: Part A: Right of equality in consumer market: Protection against discriminatory marketing: Section 8 8. (1) Subject to section 9, a supplier of goods or services must not unfairly (a) exclude any person or category of persons from accessing any goods or services offered by the supplier; (b) grant any person or category of persons exclusive access to any goods or services offered by the supplier; (c) assign priority of supply of any goods or services offered by the supplier to any person or category of persons; (d) supply a different quality of goods or services to any person or category of persons; (e) charge different prices for any goods or services to any persons or category of persons; (f) target particular communities, districts, populations or market segments for exclusive, priority or preferential supply of any goods or services; or (g) exclude a particular community, district, population or market segment from the supply of any goods or services offered by the supplier, on the basis of one or more grounds of unfair discrimination contemplated in section 9 of the Constitution or Chapter 2 of the Promotion of Equality and Prevention of Unfair Discrimination Act. (2) Subject to section 9, a supplier must not directly or indirectly treat any person differently than any other, in a manner that constitutes unfair discrimination on one or more grounds set out in section 9 of the Constitution, or one or more grounds set out in Chapter 2 of the Promotion of Equality and Prevention of Unfair Discrimination Act, when (a) assessing the ability of the person to pay the cost, or otherwise meet the obligations, of a proposed transaction or agreement; (b) deciding whether to enter into a transaction or agreement, or to offer to enter into a transaction or agreement; (c) determining any aspect of the cost of a transaction or agreement to the consumer; 20

26 Discrimination Act 68 prohibit unfair discrimination by a supplier ( health establishment or health care provider ) who do want to sell his health establishment or medical practice to a fellow health establishment or health care provider. There is still at this stage a free flow of business surrounding the sale of health establishments or medical practices to fellow health establishments or health care providers The sale of health establishments after the 1 st of April 2016 The coming in operation of sections 36 to 40 of The National Health Act, is going to result in a situation that a supplier ( health establishment or health care provider ), who do want to sell his health establishment or medical practice to a fellow health establishment or health care provider, after the 1 st of April 2016, is going to be forced to discriminate against certain potential buyers who are not in possession of a certificate of need from the Department of Health to run that health establishment or medical practice at that existing business address of such health establishment or medical practice during his or her search for a potential buyer. (d) interacting with the consumer (i) in the supplier s place of business, or (ii) in the course of displaying or demonstrating any goods, testing or fitting any goods, or negotiating the terms of a transaction or agreement; or (e) selecting, preparing, packaging or delivering any goods for or to the consumer, or providing any services to the consumer; (f) proposing or agreeing the terms and conditions of a transaction or agreement; (g) assessing or requiring compliance by the person with the terms of a transaction or agreement; (h) exercising any right of the supplier under a transaction or agreement in terms of this Act or applicable provincial consumer legislation; (i) determining whether to continue, enforce, seek judgment in respect of, or terminate a transaction or agreement; or (j) determining whether to report, or reporting, any personal information of such person. (3) Subsections (1) and (2) also apply in respect of a consumer that is an association or juristic person, to prohibit unfair discrimination against that association or juristic person based on the characteristics of any natural person who is a member, associate, owner, manager, employee, client or customer of that association or juristic person. (4) Nothing in this section is intended to limit the authority of a court to (a) consider any conduct between a supplier and a consumer that is not contemplated in this section; or (b) find that any such conduct constitutes unfair discrimination within the meaning of the Constitution or the Promotion of Equality and Prevention of Unfair Discrimination Act. 68 Acts Promotion of Equality and Prevention of Unfair Discrimination Act, Act No. 4 of 2000 < (accessed ) Promotion of Equality and Prevention of Unfair Discrimination Act, Act No. 4 of 2000 : To give effect to section 9 read with item 23(1) of Schedule 6 to the Constitution of the Republic of South Africa, 1996, so as to prevent and prohibit unfair discrimination and harassment; to promote equality and eliminate unfair discrimination; to prevent and prohibit hate speech; and to provide for matters connected therewith. Chapter 2 : Prevention, Prohibition and Elimination of Unfair Discrimination, Hate Speech and Harassment Section 6 6. Prevention and general prohibition of unfair discrimination Neither the State nor any person may unfairly discriminate against any person. 21

27 When a supplier ( health establishment or health care provider ) do wants to hire the services of a locum (health care provider), after the 1 st of April 2016, he or she is going to find themselves in the same situation. 69 The locum must be in possession of a certificate of need which allows him or her to work at the place / location as required. This new state of affairs is totally contrary to the requirements and provisions of section 8 of the Consumer Protection Act as read with section 9 of the Constitution and Chapter 2 of the Promotion of Equality and Prevention of Unfair Discrimination Act which prohibit unfair discrimination during the above described transactions The Constitution protects law and constitutional rights under Consumer Protection Act Sections 7 70, 8 71 and 9 of the Constitution protects the law under section 8 of the Consumer Protection Act as read with Chapter 2 of the Promotion of Equality and Prevention of Unfair Discrimination Act by prohibiting the legislature, the executive, the judiciary and all organs of state to promulgated law which infringes citizens of South Africa s Constitutional rights as enshrined under the Constitution of the Republic of South Africa. It is clear that the legislature has now promulgated law in the form of sections 36 to 40 of the National Health Act which infringes certain citizens of South Africa s constitutional rights as enshrined under the Constitution of the Republic of South Africa. 69 Timeslive Docs to be told where to work < (accessed ) 70 The Constitution of the Republic South Africa: CHAPTER 2: BILL OF RIGHTS Rights: Section 7 7. (1) This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom. (2) The state must respect, protect, promote and fulfil the rights in the Bill of Rights. (3) The rights in the Bill of Rights are subject to the limitations contained or referred to in section 36, or elsewhere in the Bill. 71 The Constitution of the Republic South Africa: CHAPTER 2: BILL OF RIGHTS Application: Section 8 8. (1) The Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state. 22

28 CHAPTER FOUR REGULATION FIRST TO BE PROMULGATED BEFORE THE DEPARTMENT OF HEALTH CAN ENFORCE THE STIPULATIONS OF SECTIONS 36 TO 40 UNDER THE NATIONAL HEALTH ACT 4 1 Introduction There is no obligation under section or section of the National Health Act on the Minister to make regulations under this sections of the Act, because of the word may which appear in Section 39 and Section 90 of the National Health Act. 4 2 The obtaining or renewal of a certificate of need A person who wishes to obtain or renew a certificate of need must apply to the Director-General in the prescribed manner and must pay the prescribed application fee. 4 3 The word prescribed is defined The word prescribed is defined in the act as: prescribed means prescribed by regulation made under section First to wait for regulation before application for a certificate of need Applicants who want to obtain a certificate of need from the Director-General must first wait for the Minister s regulation in which he has dealt with the prescribed manner in which applications must be forward to the Director-General and the prescribed application fee to be paid with an application. 72 National Health Act, Act 61 of 2003: Section Regulations relating to certificates of need (1) The Minister may, after consultation with the National Health Council, make regulations relating to 73 National Health Act, Act 61 of 2003: Section Regulations (1) The Minister, after consultation with the National Health Council or the Office, as the case may be, may make regulations regarding... 23

29 4 5 Regulation to be published for comment at least three months before commencement The Minister must publish all regulations proposed to be made under this Act in the Gazette for comment at least three months before the date contemplated for their commencement. 74 CHAPTER FIVE THE CONSIDERATION OF AN APPLICATION FOR A CERTIFICATE OF NEED BY THE DIRECTOR GENERAL OF THE DEPARTEMENT OF HEALTH 5 1 Introduction The stipulations of Promotion of Administrative Justice Act do play a role if and when the Director- General of the Department of Health is going to consider an application for a certificate of need. 5 2 Section 3 of Promotion of Administrative Justice Act Executing an administrative action as an organ of state If and when the Director-General of the Department of Health is going to consider an application for a certificate of need ( execute an administrative action 76 as an organ of state 74 National Health Act, Act 61 of 2003: Section Regulations (4) (a) The Minister must publish all regulations proposed to be made under this Act in the Gazette for comment at least three months before the date contemplated for their commencement. 75 Acts Promotion of Administrative Justice Act, 2000 (Act No. 3 of 2000) To give effect to the right to administrative action that is lawful, reasonable and procedurally fair and to the right to written reasons for administrative action as contemplated in section 33 of the Constitution of the Republic of South Africa, 1996; and to provide for matters incidental thereto. < (accessed ) 76 Promotion of Administrative Justice Act, Act No. 3 of 2000 administrative action means any decision taken, or any failure to take a decision, by- (a) an organ of state, when- (i) exercising a power in terms of the Constitution or a provincial constitution; or (ii) exercising a public power or performing a public function in terms of any legislation; or (b) a natural or juristic person, other than an organ of state, when exercising a public power or performing a public function in terms of an empowering provision, which adversely affects the rights of any person and which has a direct, external legal effect, 24

30 making a decision 77 ) he must comply with the strict stipulations of the Promotion of Administrative Justice Act, Act 3 of 2000 by considering and taking in account all the stipulations as prescribed by section 3 78 under this Act and the stipulations as prescribed under section 36 (3) of the National Health Act which consists of the following requirements: (a) the need to ensure consistency of health services development in terms of national, provincial and municipal planning; (b) the need to promote an equitable distribution and rationalisation of health services and health care resources, and the need to correct inequities based on racial, gender, economic and geographical factors; (c) the need to promote an appropriate mix of public and private health services; 77 Promotion of Administrative Justice Act, Act No. 3 of 2000 decision means any decision of an administrative nature made, proposed to be made, or required to be made, as the case may be, under an empowering provision, including a decision relating to- (a) making, suspending, revoking or refusing to make an order, award or determination; (b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission; (c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument; (d) imposing a condition or restriction; (e) making a declaration, demand or requirement; (f) retaining, or refusing to deliver up, an article; or (g) doing or refusing to do any other act or thing of an administrative nature, and a reference to a failure to take a decision must be construed accordingly; 78 Promotion of Administrative Justice Act, Act No. 3 of 2000: Section 3 3. Procedurally fair administrative action affecting any person (1) Administrative action which materially and adversely affects the rights or legitimate expectations of any person must be procedurally fair. (2) (a) A fair administrative procedure depends on the circumstances of each case. (b) In order to give effect to the right to procedurally fair administrative action, an administrator, subject to subsection (4), must give a person referred to in subsection (1)- (a) adequate notice of the nature and purpose of the proposed administrative action; (b) a reasonable opportunity to make representations; (c) a clear statement of the administrative action; (d) adequate notice of any right of review or internal appeal, where applicable; and (e) adequate notice of the right to request reasons in terms of section 5. (3) In order to give effect to the right to procedurally fair administrative action, an administrator may, in his or her or its discretion, also give a person referred to in subsection (1) an opportunity to- (a) obtain assistance and, in serious or complex cases, legal representation; (b) present and dispute information and arguments; and (c) appear in person. (4) (a) If it is reasonable and justifiable in the circumstances, an administrator may depart from any of the requirements referred to in subsection (2). (b) In determining whether a departure as contemplated in paragraph (a) is reasonable and justifiable, an administrator must take into account all relevant factors, including- (a) the objects of the empowering provision; (b) the nature and purpose of, and the need to take, the administrative action; (c) the likely effect of the administrative action; (d) the urgency of taking the administrative action or the urgency of the matter; and (e) the need to promote an efficient administration and good governance. (5) Where an administrator is empowered by any empowering provision to follow a procedure which is fair but different from the provisions of subsection (2), the administrator may act in accordance with that different procedure. 25

31 (d) the demographics and epidemiological characteristics of the population to be served; (e) the potential advantages and disadvantages for existing public and private health services and for any affected communities; (f) the need to protect or advance persons or categories of persons designated in terms of the Employment Equity Act, 1998 (Act 55 of 1998), within the emerging small, medium and micro- enterprise sector; (g) the potential benefits of research and development with respect to the improvement of health service delivery; (h) the need to ensure that ownership of facilities does not create perverse incentives for health service providers and health workers; (i) if applicable, the quality of health services rendered by the applicant in the past; (j) the probability of the financial sustainability of the health establishment or health agency; (k) the need to ensure the availability and appropriate utilisation of human resources and health technology; (l) whether the private health establishment is for profit or not; and (m) if applicable, compliance with the requirements of a certificate of non-compliance Existing health establishments consistent municipal planning erected Most, if not all health establishments or rooms of health care providers, till up to now, have been erected or established according consistent municipal planning under supervision of the Municipalities Urban and Regional Planners, specifically because of various factors surrounding the running of health establishments or rooms of health care providers. Special attention, during the considering of an application to the Municipality is been given, when an application is been forward to a municipality for the erection of a building in which a health establishment or room for a health care provider is going to be erected or established because of the fact that health establishments or rooms of health care providers generates Medical waste which can be a health risk for the surrounding population of health establishments or rooms of health care providers. 26

32 Medical care is vital for our life, health and wellbeing, but the waste generated from medical activities can be hazardous, toxic and even lethal because of their high potential for diseases transmission. The hazardous and toxic parts of waste from healthcare establishments comprising infectious, medical and radioactive material as well as sharps constitute a grave risks to mankind and the environment, if these are not properly treated / disposed or are allowed to be mixed with other municipal waste Director-General can be forced to give reasons Is the Director-General of the Department of Health, when considering an application for a certificate of need for an existing health establishment or health care provider going to infringe or overrun the past consistent health services development in terms of national, provincial and municipal planning which were followed till up to now surrounding all the factors as discussed above under paragraph 5 2 2? The end of the day it seems as if the Director-General of the Department of Health can be forced, when denying in future a certificate of need for an existing health establishment or health care provider, to give reasons why he is infringing and overrunning the past consistent Health services development in terms of the municipal planning under which the health establishment or health care provider was operating in the past No prescribed procedure for existing patients to be heard Section 3 (5) of the Promotion of Administrative Justice Act stipulates that where an Administrator (in this case the Director-General of the Department of Health) is empowered by any empowering provision to follow a procedure which is fair but different from the provisions of section 3 (2) of the Promotion of Administrative Justice Act, the administrator may act in accordance with that different procedure. 79 Waset Poor Medical Waste Management (MWM) Practices and Its Risks to Human Health and the Environment: A Literature Review < (accessed ) 27

33 Under sections 36 to 40 of the National Health Act is no procedure described, which empowered the Director-General of the Department of Health to follow, in giving existing patients / consumers (a certain part of the public), who s rights are going to be affected by his administrative action, as discussed in chapter 3 above, also a change to be heard. Section 36 (3) (e) of the National Health Act stipulates that the Director-General must consider 80 the potential advantages and disadvantages for existing public and private health services and for any affected communities;. This stipulation does make it very clear that existing patients of an existing health establishment or a health care provider must be heard when their existing health establishment or health care provider s application for a certificate of need is considered by the Director-General. Therefore he must, in connection with this aspect of his administrative action, adhere to the applicable stipulations under the Promotion of Administrative Justice Act to give effect to the right to procedurally fair administrative action. 5 3 Section 4 of Promotion of Administrative Justice Act National Health Act 61 of 2003: Section 36 (3) (e) 36 (3) Before the Director-General issues or renews a certificate of need, he or she must take into account (e) the potential advantages and disadvantages for existing public and private health services and for any affected communities; Promotion of Administrative Justice Act, Act 3 of 2000: Section 4 4. Administrative action affecting public (1) In cases where an administrative action materially and adversely affects the rights of the public, an administrator, in order to give effect to the right to procedurally fair administrative action, must decide whether- (a) to hold a public inquiry in terms of subsection (2); (b) to follow a notice and comment procedure in terms of subsection (3); (c) to follow the procedures in both subsections (2) and (3); (d) where the administrator is empowered by any empowering provision to follow a procedure which is fair but different, to follow that procedure; or (e) to follow another appropriate procedure which gives effect to section 3. (2) If an administrator decides to hold a public inquiry- (a) the administrator must conduct the public inquiry or appoint a suitably qualified person or panel of persons to do so; and (b) the administrator or the person or panel referred to in paragraph (a) must- (i) determine the procedure for the public inquiry, which must- (aa) include a public hearing; and (bb) comply with the procedures to be followed in connection with public inquiries, as prescribed; (ii) conduct the inquiry in accordance with that procedure; (iii) compile a written report on the inquiry and give reasons for any administrative action taken or recommended; and (iv) as soon as possible thereafter- (aa) publish in English and in at least one of the other official languages in the Gazette or relevant provincial Gazette a notice containing a concise summary of any report and the particulars of the places and times at which the report may be inspected and copied; and (bb) convey by such other means of communication which the administrator considers effective, the information referred 28

34 5 3 1 Introduction If and when the Director-General of the Department of Health is going to consider an application for a certificate of need ( execute an administrative action as an organ of state ) he must comply with the strict stipulations of the Promotion of Administrative Justice Act, Act 3 of by considering and taking also into account the stipulations of section 4 of this Act, because of the facts as discussed in chapter 3 above. It is clear and a fact that the rights of existing patients / consumers (a group or class of the public 83 ) concerning their human dignity and bodily integrity, equality (which includes the full and equal enjoyment of all rights and freedoms), freedom and security of the person, privacy and access to information as enshrined under sections 9, 10, 12, 14 and 32 of the Constitution of an existing health establishment or a specific health care provider are going to be infringed if and when the Department of Health denied the issuing of a certificate of need as defined under the National Health Act, to their existing specific health care provider to continue to provide prescribed health services or to continue to operate a health establishment at the location (his or her resident practice address) where he or she supplied medical services in the past till up to the date of the denial of the certificate of need. to in item (aa) to the public concerned. (3) If an administrator decides to follow a notice and comment procedure, the administrator must- (a) take appropriate steps to communicate the administrative action to those likely to be materially and adversely affected by it and call for comments from them; (b) consider any comments received; (c) decide whether or not to take the administrative action, with or without changes; and (d) comply with the procedures to be followed in connection with notice and comment procedures, as prescribed. (4) (a) If it is reasonable and justifiable in the circumstances, an administrator may depart from the requirements referred to in subsections (1)(a) to (e), (2) and (3). (b) In determining whether a departure as contemplated in paragraph (a) is reasonable and justifiable, an administrator must take into account all relevant factors, including- (i) the objects of the empowering provision; (ii) the nature and purpose of, and the need to take, the administrative action; (iii) the likely effect of the administrative action; (iv) the urgency of taking the administrative action or the urgency of the matter; and (v) the need to promote an efficient administration and good governance. 82 Acts Promotion of Administrative Justice Act, 2000 (Act No. 3 of 2000) To give effect to the right to administrative action that is lawful, reasonable and procedurally fair and to the right to written reasons for administrative action as contemplated in section 33 of the Constitution of the Republic of South Africa, 1996; and to provide for matters incidental thereto. < (accessed ) 83 Promotion of Administrative Justice Act, Act 3 of 2000 public For the purposes of section 4, includes any group or class of the public; 29

35 5 3 2 Chance to be given to existing patients to be heard In terms of section 4 (1) 84 of the Promotion of Administrative Justice Act, Act 3 of 2000, the Director-General of the Department of Health must before he consider an application for a certificate of need of an existing health establishment or a specific health care provider or any new application decides whether: (a) to hold a public inquiry in terms of subsection (2) 85 ; (b) to follow a notice and comment procedure in terms of subsection (3) 86 ; (c) to follow the procedures in both subsections (2) and (3); (d) where the administrator is empowered by any empowering provision to follow a procedure which is fair but different, to follow that procedure; or (e) to follow another appropriate procedure which gives effect to section 3 87, concerning the rights and interests of existing patients / consumers (a certain part of the public) who were going to be affected by his administrative action / decision. CHAPTER SIX REMEDIES AVAILABLE TO PATIENTS, HEALTH ESTABLISHMENTS AND HEALTH CARE PROVIDERS 6 1 Introduction There are certain remedies available to patients, health establishments and health care providers on how to approach the unreasonable and unconstitutional infringing effect of Sections 36 to 40 of the National Health Act and the role what section 94 of the Consumer Protection Act can play in the solving of this problem. 84 See footnote See footnote See footnote See footnote 78 30

36 6 2 Unconstitutionality of Sections 36 to 40 of the National Health Act Patients, health establishments and health care providers can approach any Division of the High Courts of South Africa with an application, based on the facts and authority as discussed above, wherein the Court is to be asked to declare the stipulations of Sections 36 to 40 of the National Health Act as being unconstitutional when read with the applicable stipulations, as discussed above, surrounding the Constitution of the Republic of South Africa Section 27 (2) of the Constitution of South Africa: reasonable legislative measures 88 The stipulations of Section 27 of the Constitution of South Africa is clear. The state is only allowed to take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of the rights as stipulated under section 27 of the Constitution of South Africa. There is an obligation that they must do it, they must only make use of reasonable legislative measures. The stipulations of sections 36 to 40 of the National Health Act are not reasonable, but extreme measures by the Department of Health in their effort to make medical services more available to all of South Africa s citizens over a broader spectrum at places where medical services are not readily available by forcing existing specific health care providers and health establishments at certain places to close down and or to move to other places wear medical services are not readily available without keeping in mind that existing patients (consumers) of that health services providers and health establishments rights concerning their Human dignity and bodily integrity, equality (which includes the full and equal enjoyment of all rights and freedoms), freedom and security of the person, privacy and access to information as enshrined under sections 9, 10, 12, 14, and 32 of the Constitution are going to be infringed; and Also their Constitutional right under section 27 (1) - Everyone has the right to have access to (a) health care services, 89 is going to be infringed and curtailed, 88 The Constitution of the Republic of South Africa Section 27: Health care, food, water and social security 27. (2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights. 89 The Constitution of the Republic of South Africa Section 27: Health care, food, water and social security 31

37 because they also do have now to move in future to other places to seek where medical services are readily available, whereas they did have it in the past readily available as existing patients of an existing specific health care provider and / or health establishment at a specific certain place. In fact and in truth, the Department of Health are going to shoot themselves in the foot with their extreme measures under sections 36 to 40 of the National Health Act, because on the one hand they are going to try to make medical services more available to a certain part of South Africa s citizens, but with the other hand they are going to take away the medical services of certain other South African citizens as discussed above Patients make use of health care services in areas where they work The Department of Health must keep in mind that many South African citizens who live in places where medical services are not readily available do work in places where medical services are readily available The Constitution of South Africa s section 36 versus sections 36 to 40 of the National Health Act (36 v 36) The stipulations of section 36 (2) of the Constitution The stipulations of section 36 and specific section 36 (2) of the Constitution is clear. 90 Except as provided in Section 36 (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights. 27. (1) Everyone has the right to have access to (a) health care services, 90 The Constitution of the Republic of South Africa: Section 36: Limitation of rights 36. (1) The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including (a) the nature of the right; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the relation between the limitation and its purpose; and (e) less restrictive means to achieve the purpose. (2) Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights. 32

38 The rights in the Bill of Rights of existing patients (consumers) of health care providers and health establishments concerning their human dignity and bodily integrity, equality (which includes the full and equal enjoyment of all rights and freedoms), freedom and security of the person, privacy and access to information as enshrined under sections 9, 10, 12, 14, and 32 of the Constitution and also their constitutional right under Section 27 (1) Everyone has the right to have access to (a) health care services, may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including the nature of the right; the importance of the purpose of the limitation; the nature and extent of the limitation; the relation between the limitation and its purpose; and less restrictive means to achieve the purpose. The stipulations of sections 36 to 40 of the National Health Act, as discussed above are not reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, but are extreme measures by the Department of Health in their effort to make medical services more available to all of South Africa s citizens over a broader spectrum at places wear medical services are not readily available by forcing existing specific health care providers and health establishments at certain places to close down and or to move to other places where medical services are not readily available. There are less restrictive means available which the Department can use and should have used in the past ten years to achieve the purpose of making medical services more available to all of South Africa s citizens over a broader spectrum at places wear medical services are not readily available. Sections 36 to 40 of the National Health Act exist now for 10 years, but were not signed into law until the 21 st of March Why was this sections not signed into law ten years ago? 33

39 Neglect by the Department of health If the Department of health started ten years ago, to manage the establishment of new health establishments and where new health care providers, are allowed to work, in the places where medical services are not readily available, then this extreme measures by the Department of Health is not necessary now in their effort now suddenly to make medical services more available to all of South Africa s citizens over a broader spectrum at places where medical services are not readily available, by forcing each and every existing health establishment and health care provider now, within the next two years, to apply, without also the necessary regulations in place, for a certificate of need to continue with his or her health care services Section 93 (2) of the National Health Act read with section 44 of Health Act 63 of 1977 From this above discussed neglect in paragraph by the Department of health arises a further question: Can the Director-General of the Department of Health expects and requires health establishments and health care providers, who already existed and who were already busy with the delivery of health care services, before the new National Health Act, Act 61 of 2003 came in operation, under the old Health Act, Act No. 63 of 1977, to also apply now afresh for a certificate of need? Under the new National Health Act appears a stipulation under section 93 (2) 91 which reads as follows: Anything done before the commencement of this Act under a provision of a law repealed by subsection (1) and which could have been done under a provision of this Act must be regarded as having been done under the corresponding provision of this Act. 91 National Health Act, Act 61 of 2003 Repeal of laws, and savings 93. (1) Subject to this section, the laws mentioned in the second column of the Schedule are hereby repealed to the extent set out in the third column of the Schedule. (2) Anything done before the commencement of this Act under a provision of a law repealed by subsection (1) and which could have been done under a provision of this Act must be regarded as having been done under the corresponding provision of this Act. 34

40 Under the old Health Act regulations 92 were made and enforced: In respect of private hospitals, nursing homes, maternity homes or other similar institutions where nursing is carried on for the benefit of patients accommodated therein and where fees are charged by the owner or lessee of any such hospital, home or institution in respect of nursing services rendered to such patients or where contributions are made by such patients towards the cost of such services inter alia relating to the registration and inspection of such hospitals, homes or institutions; and In respect of any place, excluding a hospital, or a private hospital, nursing home, maternity home or other institution referred to in paragraph (a), where surgical or other medical activities are performed in respect of which special equipment or facilities are necessary inter 92 Ehrn Health Act, Act No. 63 of 1977 < (accessed ) Health Act, Act No. 63 of Regulations relating to private hospitals, nursing homes, maternity homes and places where surgical or other medical activities are performed.- (1) The Minister may make regulations- (a) in respect of private hospitals, nursing homes, maternity homes or other similar institutions where nursing is carried on for the benefit of patients accommodated therein and where fees are charged by the owner or lessee of any such hospital, home or institution in respect of nursing services rendered to such patients or where contributions are made by such patients towards the cost of such services- (i) regulating, restricting or prohibiting the establishment or running of such hospitals, homes or institutions; (ii) prescribing minimum standards with which such hospitals, homes or institutions shall comply; (iii) relating to the registration and inspection of such hospitals, homes or institutions; (iv) relating to patients who may be accommodated therein; (v) relating to the registration of persons in charge of such hospitals, homes or institutions, and the furnishing of returns or particulars of patients admitted thereto and persons employed therein; (vi) providing for the refusal to register, or the removal from the appropriate register of, any such hospital, home or institution which the Minister or any specified person or class of person may consider unsatisfactory on specified grounds; (b) in respect of any place, excluding a hospital, or a private hospital, nursing home, maternity home or other institution referred to in paragraph (a), where surgical or other medical activities are performed in respect of which special equipment or facilities are necessary- (i) prescribing the surgical or other medical activities which may be performed at such place; (ii) prescribing the standards in respect of space which shall be complied with, the equipment and other facilities which shall be provided at such a place, the records of such activities to be kept and the qualifications and number of nurses to be employed in connection therewith; (iii) providing for the registration of such places and the inspection of such places, equipment and facilities; (iv) prescribing the fees to be paid, the registers to be kept, the certificates to be issued and any other requirements to be complied with in connection with the registration of such places; and (v) providing for the refusal to register, or the removal from the appropriate register of, any such place which the Minister or any specified person or class of person may consider unsatisfactory on specified grounds. [Sub-s. (1) amended by Proclamation No. R.152 of 1994.] Wording of Sections (2) Regulations made under paragraph (b) (ii) of subsection (1) may prescribe different standards in respect of different categories of places specified therein. 35

41 alia providing for the registration of such places and the inspection of such places, equipment and facilities. Because of these above facts and law it seems as if the Director-General of the Department of Health can t expect and require health establishments and health care providers, who already existed and who were already busy with the delivery of health care services, before the new National Health Act, Act 61 of 2003 came in operation, under the old Health Act, Act No. 63 of 1977, to also apply now afresh for a certificate of need. 6 3 Sections 36 to 40 of the National Health Act read with sections 3 and of the Consumer Protection Act The National Health Act was finally drafted during 2003, with the Consumer Protection Act which was finally drafted during With the drafting of specific sections 36 to 40 of the National Health Act the Consumer Protection Act did not exist. With the Consumer Protection Act now in place it is clear from the facts and authority as discussed above that sections 36 to 40 of the National Health Act now falls within the scope of the stipulations of section 94 of the Consumer Protection Act which deals with the Promotion of legislative reform. 93 Consumer Protection Act, Act No. 68 of 2008: Section 3: Purpose and policy of Act 3. (1) The purposes of this Act are to promote and advance the social and economic welfare of consumers in South Africa by.; (2) To better ensure the realisation of the purposes of this Act, and the enjoyment of the consumer rights recognised or conferred by this Act, the Commission, in addition to its responsibilities set out elsewhere in this Act, is responsible to (a) take reasonable and practical measures to promote the purposes of this Act and to protect and advance the interests of all consumers, and in particular those consumers contemplated in subsection (1)(b); Section 94: Promotion of legislative reform 94. In order to better achieve the purposes of this Act in relation to laws that govern matters affecting consumers, the Commission must (a) identify any national or provincial legislation, or other public regulation, that (i) affects the welfare of consumers; and (ii) is inconsistent with the purposes of this Act; (b) consult with (i) relevant provincial consumer protection authorities; (ii) organs of state within the national sphere of government; and (iii) consumer protection groups, alternative dispute resolution agents and suppliers, with respect to legislation identified in terms of paragraph (a) with the object of developing proposals for reform of that legislation; and (c) report from time to time to the Minister with recommendations for achieving the progressive transformation and reform of law contemplated in this section. 36

42 There is an obligation on the Commission, under the Consumer Protection Act the Commission must 94, in order to better achieve the purposes of the Consumer Protection Act in relation to laws that govern matters affecting consumers (Sections 36 to 40 of the National Health Act), to identify any national or provincial legislation, or other public regulation, that affects the welfare of consumers and which is inconsistent with the purposes of the Consumer Protection Act. The Commission must consult with the relevant provincial consumer protection authorities, the organs of state within the national sphere of government and with consumer protection groups, alternative dispute resolution agents and suppliers with respect to legislation identified in terms of section 94 (a) with the object of developing proposals for the reform of that legislation and the Commission must report from time to time to the Minister with recommendations for achieving the progressive transformation and reform of law contemplated under section 94 of the Consumer Protection Act. Patients, health establishments and health care providers can approach the Commission, under the Consumer Protection Act to launch an investigation under Section 94 of the Consumer Protection surrounding the affects that the Department of Health are going to cause surrounding the welfare of existing patients (consumers), health establishments and health care providers when they are going to start to apply the stipulations of Sections 36 to 40 of the National Health Act by the forcing of existing specific health care providers and health establishments at certain places to close down and or to move to other places where medical services are not readily available and existing patients (consumers) also do have in future to move to other places to seek where medical services are readily available, whereas they did have it in the past / now readily available as existing patients of existing specific health care providers and health establishments at a specific certain place. 6 4 Sections 6, 7 and 8 of the Promotion of Administrative Justice Act If the Director- General of the Department of Health did not adhere to the stipulations, as discussed under Paragraph 5 above, when considering an application for a certificate of need, his decision 94 See footnote 93: Section 94 of the Consumer Protection Act, Act No. 68 of

43 can be taken on Judicial review to an applicable court in terms of Sections 6, 7 and 8 of the Promotion of Administrative Justice Act. CHAPTER SEVEN CONCLUSION 7 1 The national legislative authority When exercising its legislative authority, Parliament is bound only by the Constitution, and must act in accordance with, and within the limits of, the Constitution. 95 Against the background of what s been discussed in this article it is clear that Parliament did not act in accordance with and within the limits of the Constitution when they promulgated sections 36 to 40 of the National Health Act. 7 2 Nearly certificate of needs to be processed It is doubtful whether the Director- General of the Department of Health is going to succeed to process and consider about health care providers (dieticians, specialists, GPs, physiotherapists and occupational therapists) 96 and health establishments applications for certificate of needs before the 1 st of April 2016 because of the requirements surrounding certain applicable law as discussed above 97 which he does have to comply with when processing and considering a application for a certificate of need. It is also clear, seen in the light of the facts discussed in this article, that a "certificate of need" application, as prescribed, will consist of a hefty bundle. Within this bundle is going to be inter alia 95 The Constitution of the Republic of South Africa : Section National legislative authority (4) When exercising its legislative authority, Parliament is bound only by the Constitution, and must act in accordance with, and within the limits of, the Constitution. 96 Timeslive Docs to be told where to work < (accessed ) Casper Venter, director of the Healthman consultancy said : There are about dieticians, specialists, GPs, physiotherapists and occupational therapists who would all need certificates to open a new practice in private. The department is not geared for this kind of [action]. 97 See chapter five 38

44 a well-reasoned statement and evidence in support of the application. Is the office of the Director- General of the Department of Health geared to deal with this flood of applications he does have to process and consider in the near future? Sections 36 to 40 of the National Health Act exist now for 10 years, but were not signed into law until the 21 st of March Against the background of what has been discussed in this article it will be a wise thought for the Director- General of the Department of Health to rather let Sections 36 to 40 of the National Health Act further at rest. 7 3 The way forward In the case of SA Hunters and Game Conservation Association (SAHGCA) v Minister of Safety and Security 98, Case Nr /2009, SAHGCA went to court and succeed in getting an order from the court to stop the Minister of Safety & Security to force all old existing firearms licences holders to also have to comply with the stipulations of new Firearms Control Act, Act No. 60 of 2000 in the renewing of all old firearms licences afresh under the new Firearms Control Act. It seems as if this is also the only way forward for all health establishments and health care providers to proceed with. All health establishments and health care providers must come together and bring an application in the High Court of South Africa to stop the coming in operation of sections 36 to 40 on all the grounds and reasons as discussed in this article. There are less restrictive means available which the Department of Health can use to achieve the purpose of making medical services more available to all of South Africa s citizens over a broader spectrum at places wear medical services are not readily available than the extreme measures they implemented now with the promulgation of sections 36 to 40 of the National Health Act. In the light of all the facts and law, as discussed in this article, it is clear that the legislature has not 98 SAHGA SA Hunters and Game Conservation Association (SAHGCA) v Minister of Safety and Security, Case Nr /2009 < (accessed ) 39

45 applied its mind properly 99 when sections 36 to 40 of the National Health Act were promulgated. Adv. Willem Smit See footnote BA (Police Science)(UNISA), LLB (Stell), LLM (International Trade Law)(Stell), Advocate of the High Court of South Africa 40