The licensing of healthcare providers and professionalsi Regulators
Healthcare institutions include hospitals, clinics and other treatment facilities that provide a combination of acute, sub-acute, general and specialised services. Healthcare practitioners include general practitioners, specialists, nurses and pharmacists.
The relevant regulatory authorities include the Department of Health, the Health Professions Council of South Africa (HPCSA), the South African Nursing Council, the Allied Health Professions Council, the South African Pharmacy Council and the South African Dental Technicians Council.ii Institutional healthcare providers
The National Health Act defines a 'health establishment' as including the whole or part of a public or private institution, facility, building or place that is operated or designed, whether for profit or not, to provide inpatient or outpatient treatment, diagnostic or therapeutic interventions, nursing, or rehabilitative, palliative, convalescent, preventative or other health services.
Although the National Health Act provides that a certificate of need (the Certificate of Need) must be obtained prior to the establishment, construction, modification or acquisition of a private health establishment, the provisions relating to Certificates of Need are not yet in effect and consequently the practice is not being enforced by the Department of Health.
The licensing of private health establishments takes place at a provincial level, through the applicable provincial department of health, and pursuant to provincial legislation or the General Licensing Regulations, which govern private hospitals and unattached operating theatre units under the National Health Act.
Subject to certain exclusions, a 'private hospital' is broadly defined in the General Licensing Regulations and includes an institution, building, or place that provides treatment and care in cases requiring medical treatment.
Under the General Licensing Regulations, no person may erect, alter, equip or in any other way prepare any premises for use as a private hospital without first having obtained the written approval of the relevant provincial department of health.
It is anticipated that, going forward, the requirement to obtain a Certificate of Need will be enforced in respect of all health establishments and that the licensing framework in respect of private healthcare facilities will be implemented at the level of the National Department of Health.
Under the Medical Schemes Regulations, all healthcare providers who issue accounts to members of medical schemes must include their practice code numbers (Practice Codes) on their accounts.
Practice Code Numbers (PCNs) are issued to private health establishments by the Board of Healthcare Funders of Southern Africa (BHF). The BHF can only issue PCNs to private health establishments that are duly licensed with a relevant provincial department of health.iii Healthcare professionals
The Health Professions Act 56 of 1974 (HPA), and the regulations defining the scope of the profession of medicine published pursuant to the HPA (the HPA Regulations), set out the requirements for a medical practitioner to provide medical care in South Africa.
The HPA provides that no person shall be entitled to practise any registrable health profession within South Africa unless he or she is registered in accordance with the HPA.
The HPA Regulations set out the particular acts deemed to pertain to the medical profession in South Africa, including the physical medical or clinical examination of any person, managing the health of a patient (prevention, treatment and rehabilitation) and prescribing, administering or providing any medicine, substance or medical device.
The HPA Regulations specifically require any person who wishes to perform any of the above-mentioned acts to apply in the prescribed manner to the Medical and Dental Professions Board as a medical practitioner and submit proof of having complied with the registration requirements.
The application must include the qualification entitling the applicant to registration, together with such proof of identity and good character, and of authenticity and validity of the qualifications submitted, as may be required by the professional board concerned.
The HPA deals with, inter alia, the recognition by the Minister of Health, after consultation with the HPCSA, of foreign qualifications for purposes of registration as a South African medical practitioner.
Negligence liabilityi Overview
In South Africa, liability for medical malpractice depends on whether there was intentional or negligent wrongful conduct by the parties concerned, or whether they were vicariously liable for the wrongful acts or omissions of others.
These legal principles apply equally to the public and private healthcare sectors. The National Department of Health, provincial departments of health and private sector hospital bodies will be liable for the wrongful conduct of their administrators where, through maladministration, they have harmed patients by intentionally or negligently deviating from the standard of care that is required of them.Malpractice
Medical malpractice embraces professional medical misconduct committed either intentionally or negligently. It includes the concept of 'professional medical negligence', but goes further to include intentional conduct. The principles of delict govern medical malpractice claims.
To bring a successful delictual action, the plaintiff must prove that:
- there was a voluntary act or omission by the defendant;
- the conduct was unlawful or wrongful (i.e., the infringement of a lawful right, such as the right to life or bodily integrity);
- the defendant had legal capacity;
- the defendant was at fault in the form of intention or negligence;
- the act or omission caused the loss to the plaintiff; and
- the plaintiff suffered loss or damage.
Negligence in general means that a reasonable person would have foreseen the likelihood of harm and taken steps to guard against it. As a consequence, the conduct of the person in question falls short of the standard that the law expects of a reasonable person in the particular circumstances of the case.Professional negligence
Professional negligence occurs when medical practitioners or other healthcare professionals, acting negligently, fail to exercise the degree of skill and care of a reasonably skilled practitioner in their field of practice.
Greater skill and care is expected of specialists and particularly in more complicated medical procedures. Therefore, general practitioners would be negligent if they undertook work for which they did not have the required specialist skills, unless it was an emergency, when the standard of care may be relaxed. In emergencies, the test would be whether the practitioner reacted as a reasonable practitioner in that branch of the profession would have reacted in a similar situation; this only applies if the emergency was not created by the practitioner concerned.ii Notable casesAfrox Healthcare Bpk v. Strydom 2002 (6) SA 21 (SCA)
This case has produced South Africa's most controversial decision relating to healthcare exemption clauses, sparking debate in many quarters. The relevant exemption clause indemnified the hospital, its employees and agents against all liability for damage or loss of any nature whatsoever, including consequential damages or special damages arising from any direct or indirect injury caused to the patient by act or omission. This exclusionary clause was upheld by the South African Supreme Court of Appeal and, in short, the Court held that such clauses were the norm, not the exception, and, as such, were sound business practice and not contrary to public policy.MEC for Health and Social Development, Gauteng v. DZ obo WZ 2018 (1) SA 335 (CC)
The South African Constitutional Court was recently called upon to consider the application of the 'once-and-for-all' rule in the context of damages for medical negligence. The crisp legal question was whether this rule allows for payment of future expenses as and when the need arises, or by means of future provision of actual medical services. The Constitutional Court was also required to consider whether, alternatively, the rule should be developed or abolished. In response to these questions, the Court in its majority judgment confirmed that:
- damages due by law are to be awarded in money;
- the once-and-for-all rule requires that past and prospective damages be claimed and quantified in one action and that future damages may therefore not be paid in instalments; and
- a plaintiff may not be compensated by means of the actual rendering of medical services.