ANALYSIS: Explaining proposed amendments to South Africa’s Health Act

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Covid-19 in South Africa state of disaster finished end of March 2022. The government is now looking to add some of the regulations used to manage the pandemic to existing law – the National Health Act.

Proposed changes are open for public comment until July. But the controversy has not been far behindand changes can be contested in to research. Scientists have also weighed.

The Democratic Alliance (DA), the official opposition to South Africa’s ruling African National Congress, also opposed the proposed regulations.

Beginning of April the party tweeted: “🚨 What do you think of the forced vaccination against Covid-19? Don’t let NDZ and the Minister of Health take away your power and normalize the state of disaster! »

NDZ stands for Nkosazana Dlamini-Zuma, Minister of Cooperative Governance and often the public face of pandemic rules.

Michele Clarke, the DA’s shadow minister for health, told Africa Check that the proposed regulations would be introduced “on top of existing legislation and regulations”, and “would include Covid-19 as a notifiable medical condition”. .

This “would allow regulation to restrict and limit certain rights as well as impose certain practices on those who test positive for Covid-19,” Clarke said. Claims about what the proposed regulations entail have also spread over WhatsApp, Facebook and Twitter.

Africa Check recently debunked the claim that regulation would trump the right to privacy. In this analysis, we explain what the National Health Act is and what the proposed regulations would change.

Background: National Health Act

the National Health Act (NHA), implemented in 2003, sets out the laws that govern South Africa’s healthcare system.

“It is national legislation that covers the functioning of several areas of what we classically call the ‘health sector’”, Petronell Krugersenior researcher at Wits University Center for Health Economics and Decision Sciencetold Africa Check.

But the proposed 2022 regulations are not amendments to the NHL itself. Instead, they are offered changes to rules added at the NHA in 2017. Existing regulations relate to the monitoring and control of reportable medical conditions.

“The purpose of the 2017 regulations is to manage and control diseases identified as reportable – as provided for in the National Health Act,” Leslie London, Professor of Public Health Medicine at the School of Public Health and Family Medicine from the University of Cape Town. City, told Africa Check.

“The 2022 amendments are, presumably, intended to incorporate the specific measures deployed during the Covid-19 outbreak into the 2017 regulations.”

The health department defines reportable medical conditions as diseases “of public health importance because they pose significant public health risks that can lead to disease outbreaks or epidemics with a high case fatality rate”. The Covid-19 was declared a reportable condition in May 2020.

The Health Act allows for the addition of new regulations. This is known as deferred legislation and allows for more responsive rule-making, Kruger told Africa Check.

Specialized areas of the law can be updated without relying on the sometimes slow process of passing new legislation through parliament, she said. “This is both normal and desirable in South Africa, as well as in other countries.”

The 2017 regulations and the proposed 2022 amendments are deferred laws.

Experts tell us that means the proposed changes can only be read in the context of the NHL and its 2017 rules. law that ‘gave’ it birth,” Kruger said.

But what about claims that the regulations allow the government to impose vaccinations or other medical treatments on citizens?

The proposed amendments would not revoke the protections

the proposed settlement let’s say a person who has, is believed to have, or has been in contact with someone else with a notifiable medical condition – like Covid-19 – may be subject to certain requirements.

These include having to undergo a medical examination, being admitted to quarantine, undergoing “compulsory prophylaxis” or other treatment, and more.

Prophylaxis is the prevention or control of the spread of a disease, and includes measures such as vaccination. The AD has quoted this wording as evidence that the regulations would allow compulsory vaccination.

“The only prophylaxis or treatment, at this stage, for Covid-19 is vaccination,” Clarke told Africa Check.

But experts say the proposed regulations should be read as amendments to existing regulations. This means that they are subject to certain requirements.

London pointed out, for example, that the 2017 regulations “clearly state that the need for any mandatory action should be ‘determined on a case-by-case basis and tailored to the risk to public health and the individual circumstances of the individual in question'”.

This restriction would also apply to new regulations. Thus, the application of any “compulsory action” such as vaccination or any other medical treatment would require a court order.

“This naturally makes widespread application of these regulations impossible and should allay many fears people might have about abuse of power, as the courts are charged with applying the Bill of Rights in all their exercises of power,” said Kruger told Africa Check.

The DA’s Clarke acknowledged that “no legislation can ever override constitutional rights.” But she pointed out the Bill of Rights, Article 36 of the South African constitution, allows rights to be limited in “reasonable and justifiable” cases. This was demonstrated by the restrictions imposed during the Covid-19 pandemic.

“It is not just the regulations that are of concern, but also the complete lack of control over the minister to implement any of these regulations,” she said.

Clarke did not mention requirements such as the need to obtain a court order or that the application of restrictions be determined “on a case-by-case basis”.

But that doesn’t mean the proposed regulations are perfect. The experts we spoke to had several criticisms. What are the problems ?

Project “poorly written” and seems to conflict with previous regulations

The draft does not explicitly mention that existing requirements such as court orders would be necessary to enforce mandatory action. “This means the amendment contradicts existing regulations,” London said.

The draft also does not specify when the regulations would apply, or how they would apply to Covid-19 when the pandemic ends.

“Technically, once applied, it would be permanent or until the regulations are changed,” London said.

Kruger told Africa Check that the project was “unclear” on the process required for a person to be vaccinated. The phrase in the draft that prohibits people from refusing prophylaxis could be interpreted as grounds for mandatory vaccination, she said, but the draft “appears to be a poor vehicle for a vaccination mandate.”

This was the case for other aspects of the regulations, such as quarantine. London said that under 2017 regulations, requirements such as quarantine or isolation should be dropped “once someone no longer poses a threat to public health”.

“Given the limited duration of contagiousness of Covid-19, obtaining a court order may take longer than is practical to enforce a quarantine.”

Several prominent scientists have detailed the weaknesses of the proposed rules. You can read their analysis here.

Conclusion: Proposed regulations are flawed, but would not replace existing requirements

So, do the proposed regulations make compulsory vaccination, medical treatment and quarantine possible? According to experts, this would be difficult to apply.

Each of these measures would require a case-by-case assessment followed by a court order. But that’s not immediately clear when the proposed regulations are read on their own.

Experts took issue with other aspects of the proposed regulations, such as poor wording and inconsistencies. Ambiguous rules, especially around health and Covid-19, can damage public trust and provide fertile ground for misinformation.

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