Submission on the Draft National Health Bill, 2002
The AIDS Law Project (ALP), AIDS Consortium (Consortium) and the Treatment Action Campaign (TAC) welcome the release of the draft National Health Bill (the NHB or the Bill), published for public comment on 9 November 2001, and to be tabled in Parliament later this year. In taking this opportunity to make representations on the proposed Bill, we recognise that the establishment of a national health system to “encompass public, private and non-governmental providers of health services” and the provision of “the best possible health services that available resources can afford” are essential components in addressing the apartheid legacy of injustice and inequity.
That the state has positive obligations to realise the right of access to health services is expressly recognised in the NHB. In developing the legislative framework that is intended to form an integral component of the state’s constitutional obligations in respect of health care services, the Bill recognises the need to “[e]stablish a health system of decentralised management, governance, research, enquiry and advocacy which encourages participation by everyone”, as well as to “[p]romote a spirit of co-operation and shared responsibility among public, non-governmental and private health professionals and providers and other relevant sectors”. Central to the concept of the co-operative management of health services is the recognition that national government is responsible for the development of “national guidelines, norms and standards”, with “each province, municipality and district . . . address[ing] questions of policy and delivery of services”.
To the extent that such issues are addressed, the NHB will go some way towards the progressive realisation of the right of access to health care services. In particular, the ALP, Consortium and TAC recognise the important role to be played by the following Provisions:
- the rights and duties of both health care providers and users;
- the Minister’s obligations regarding the rendering of basic health services;
- the codification of legal requirements relating to informed consent and patient confidentiality;
- the duties of users, particularly the requirement that health care providers be treated with dignity and respect;
- the codification of the rights of health care providers to a safe working environment and non-discrimination on the basis of health status;
- the establishment of crucial health structures such as the national and provincial health authorities, the National Health Management Committee, provincial inspectorates for health establishments, the Essential National Health Research Committee and the National Health Ethics Council, to name but a few;
- the requirements relating to the preparation of national and provincial health plans;
- the establishment in law of the district health system;
- the recognition that “a co-ordinated relationship between private and public health establishments in the delivery of health services” is crucial;
- the codification of a non-profit blood transfusion service;
- the setting of criteria by which health research priorities are to be determined; and
- the national health department’s acceptance of responsibility for norms and standards of health care for convicted personsand persons awaiting trial.
It is our submission, however, that in key respects the NHB not only undermines the right of access to health services, as entrenched in section 27 of the Constitution and as understood in the light of the Constitutional Court decisions in Soobramoney v The Minister of Health, Kwazulu Natal and Government of the Republic of South Africaand Others v Grootboom and Others, but also the Bill’s stated objectives. Further, numerous provisions of the NHB raise concerns relating to constitutionally entrenched rights to privacy, bodily and psychological integrity, and academic freedom and freedom of scientific research. In addition, many provisions raise rule of law concerns. It is in respect of such provisions that this submission is primarily concerned.
Before analysing the NHB in detail, we believe that attention needs to be drawn to section 2 of the Bill which states that “where a conflict arises between the provisions of th[e NHB] and those of any other health legislation, with the exception of legislation that expressly amends th[e NHB], the provisions of th[e NHB] will apply.” This provision arises in the context of legislation that fails to mention which statutes it repeals or amends. This is quite unusual, given that draft bills published for comment usually detail the extent to which they repeal or amend existing legislation.
In the absence of such a provision, the effect of the NHB is to render certain provisions of other health legislation of no force and effect, although still valid. This introduces into health legislation an unacceptable level of confusion, in conflict with the rule of law, which at minimum requires that rules are sufficiently clear to enable the reasonable person to regulate his or her conduct accordingly. This will hopefully be resolved when the Bill is tabled, setting out the extent to which existing health legislation is repealed or amended.