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A – Z of the National Health Act

01 September 2004 Angelo Coppola

(1.9.04) After many delays, South Africa has a new National Health Act. The framework legislation is due to become operational in the coming weeks, once signed into law by the President.

Health-e summarises the issues that the Act addresses. This is part one of a two part story on the new Act.

The Health Act of 1977, described by Health minister Dr Manto Tshabalala-Msimang as “the last vestige of apartheid in health policy”, has, after a long delay, been replaced by the National Health Act, Act 61 of 2003.

The Act is not yet operational and will become so by proclamation of the President within the next few weeks once the department has completed certain processes.

The National Health Act is framework legislation - it sets out broad legal and operational principles that must be fleshed out in regulations. This could see many sections of the Act being implemented only next year.

Health-e attended a briefing session by the Minister of Health where she highlighted the most critical points in the Act.

Chapter 1 establishes the National Health System. It gives the Minister of Health stewardship over the National Health System and the responsibility to protect, promote and maintain the health of the population.

It further consolidates the principle of free health care to those who cannot afford it, in particular women, children, older persons and persons with disabilities. This chapter will be implemented immediately after proclamation.

Chapter 2 begins to bring in some of the transformative elements of this Act which aim to restore dignity to citizens. The chapter gives emphasis to:

  • The right to emergency medical treatment;
  • The right to have full knowledge of one’s condition; 
  • The right to exercise one’s informed consent; 
  • The right to participate in decisions regarding one’s health; 
  • The right to be informed when one is participating in research; 
  • The right to confidentiality and access to health records; 
  • The rights of users to lay complaints about the service; and 
  • The rights of health workers to be treated with respect.

This chapter will be implemented immediately, except for section 11 (1) as the department will have to develop and publish regulations and guidelines as well as set parameters and criteria for doing experimental and research work in health establishments. Regulations are expected to be in place by early 2005.

Chapter 3 describes the general functions of the national Department of Health and the Director General. It establishes the highest policy body in health which comprises the Minister of Health, the MECs for Health and representatives of local government.

This body, which used to be known as the Health MinMec, will now be called the National Health Council.

In this chapter a National Consultative Health Forum is also established. The Minister of Health will consult with this forum of stakeholders in the health sector to promote and facilitate communication and the sharing of information on national health matters.

This chapter will also be implemented immediately after the proclamation.

Chapter 4 establishes provincial health services and outlines the general functions of provincial health departments. This chapter also comes into effect immediately after the proclamation.

Chapter 5 establishes the District Health System based on the principles of primary health care, promoting universal access to quality, equitable, responsive and efficient health care services that are accountable to the communities they serve. This chapter will come into effect immediately after proclamation.

Chapter 6 deals with some more interesting and innovative elements, but also some of the more controversial fundamentals, of the National Health Act.

They include classification of health establishments; the certificate of need; the establishment of boards for hospitals, clinics and community health centres; the relationship between the public and private health establishments.

According to Tshabalala-Msimang the following objectives were contemplated when writing this chapter into the National Health Act:

  • To ensure that each and every health establishment, whether public or private, is registered with the Department of Health;
  • To ensure that health establishments, whether public or private, are distributed equitably throughout the country to enable equitable access to health services for everyone;
  • To ensure greater public participation in the governance of health establishments, particularly, to improve local accountability and responsiveness to community health needs;
  • To establish a set of norms and standards and criteria to be met by all health establishments, whether public or private;

The minister acknowledged that there had been a great deal of speculation in some circles about the certificate of need.

“Some say that the certificate of need is going to force people to practice where they do not wish to practice and to force health establishments to move to rural areas.

“Others seem to think that it is a US concept that is going to be applied in South Africa in the same way that it is done in America. Others go as far as alleging that it is going to be used to shut down the private health sector,” she said.

Tshabalala-Msimang said that the Certificate of Need was just another term for the word “licence”.

“It is more descriptive than the term 'licence' and indicates one of the primary intentions behind the licencing system - to ensure that health establishments meet the needs of the communities they serve,” she explained.

Private hospitals and unattached operating theatres are currently licensed under the Health Act of 1977. This is nothing new to them. Their licences can be withdrawn if they do not pass the annual inspections to which they are currently subject.

The National Health Act extends the licencing process to all health establishments, including public health establishments.

Tshabalala-Msimang said the Certificate of Need also introduced into the licencing process certain factors which had to be taken into account in order to ensure that the policy objectives were met.

These policy objectives are - a structurally unified and integrated health system, equity in health care, improved access to health services, the implementation of norms and standards and optimal utilization of resources.

The regulations on the certificate of need will only be finalized for implementation during the first half of 2005.

Quick Polls

QUESTION

The second draft amendments to Regulation 28 will allow retirement funds to allocate up to 45% of their assets to SA infrastructure, with a further 10% for rest of Africa; but the equity & offshore caps remain unchanged. What are your thoughts on the proposal?

ANSWER

Infrastructure? You mean cash returns with higher risk!?!
Infrastructure cap is way too high
Offshore limit still needs to be raised
Who cares… Reg 28 does not apply to discretionary savings
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