The National Health Act 61 of 2003 - Section 27

1 The National Health Act61 of 2003A GuideEdited byAdila HassimHead of Litigation and Legal Services, AIDS Law ProjectMark HeywoodExecutive Director, AIDS Law ProjectBrian HonermannResearcher, AIDS Law ProjectFirst published in 2008bySiber Ink CCPO Box 30702, Tokai 7966, Cape Town, South Africafor theISBN 978-1-920025-25-0 Original materials copyrightc AIDS Law Project, 20086th Floor, Braamfontein Centre, 23 Jorissen Street, Braamfontein, 2092 Legislation curent as of 9 September, 2008 Distributed under Creative Commons Attribution-Share Alike SouthAfrica are free toShare:to copy, distribute and transmit the workTo Remix:to adapt the workSo long as youAttribute:The AIDS Law Project s original work and Siber Ink as theoriginal publisherShare Alike:If you alter, transform, or build upon this work, you maydistribute the resulting work only under the same or similar photo bySimon SephtonCover design byNic Jooste, Comet DesignTypesetting byBrian Honermann, AIDS Law ProjectPrinted and bound byCreda Communications (Pty) Ltd, Cape TowniiThe National Health Act: A GuideAcknowledgmentsThe publishing of this booklet was made possible through fundingprovided by the government of the Kingdom of Health Act 61 of 200311.

2 Definitions .. 101. Objects of Act, Responsibility for Health and Eligibil-ity for Free Health 212. Objects of Act .. 213. Responsibility for Health .. 224. Eligibility for free Health services in public healthestablishments .. 232. Rights and Duties of Users and Health Care 245. Emergency treatment .. 246. User to have full 257. Consent of 258. Participation in decisions .. 279. Health service without consent .. 2810. Discharge reports .. 2811. Health services for experimental or research pur-poses *.. 2912. Duty to disseminate 2913. Obligation to keep 3014. 3115. Access to Health 31v16. Access to Health records by Health care 3317. Protection of Health records .. 3318. Laying of complaints .. 3419. Duties of 3520. Rights of Health care personnel .. 363. National 3721. General functions of National department.

3 3722. Establishment and composition of National HealthCouncil .. 3923. Functions of National Health Council .. 4024. National Consultative Health Forum .. 424. Provincial 4325. Provincial Health services, and general functions ofprovincial departments .. 4326. Establishment and composition of Provincial HealthCouncil .. 4527. Functions of Provincial Health 4528. Provincial consultative 475. District Health 4829. Establishment of district Health 4830. Division of Health districts into 4831. Establishment of district Health councils .. 5032. Health services to be provided by municipalities .. 5233. Preparation of district Health 53viThe National Health Act: A Guide34. Transitional arrangements concerning municipal healthservices .. 536. Health Establishments *.. 5435. Classification of Health establishments * .. 5436. Certificate of need *.

4 5537. Duration of certificate of need * .. 5838. Appeal to Minister against Director-General s deci-sion * .. 5839. Regulations relating to certificates of need * .. 5940. Offences and penalties in respect of certificate ofneed * .. 6041. Provision of Health services at public Health estab-lishments * .. 6142. Clinics and community Health centre committees * .. 6343. Health services at non- Health establishments and atpublic Health establishments other than hospitals * .. 6444. Referral from one public Health establishment to an-other * .. 6545. Relationship between public and private Health estab-lishments * .. 6646. Obligations of private Health establishments * .. 6647. Evaluating services of Health establishments * .. 677. Human Resources planning and Academic Health 6748. Development and provision of human resources innational Health system.

5 67vii49. Maximising services of Health care 6850. Forum of Statutory Health Professional Councils * .. 6851. Establishment of academic Health complexes *.. 7352. Regulations relating to human resources .. 738. Control of Use of Blood, Blood Products, Tissue andGametes in 7553. Establishment of National blood transfusion 7554. Designation of authorised institution * .. 7655. Removal of tissue, blood, blood products or gametesfrom living persons * .. 7656. Use of tissue, blood, blood products or gametes re-moved or withdrawn from living persons * .. 7757. Prohibition of reproductive cloning of human beings *. 7858. Removal and transplantation of human tissue in hos-pital or authorised institution * .. 7959. Removal, use or transplantation of tissue, and ad-ministering of blood and blood products by medicalpractitioner or dentist * .. 8060. Payment in connection with the importation, acqui-sition or supply of tissue, blood, blood products orgametes *.

6 8061. Allocation and use of human organs * .. 8262. Donation of human bodies and tissue of deceasedpersons * .. 8263. Human bodies, tissue, blood, blood products or ga-metes may be donated to prescribed institution orperson * .. 84viiiThe National Health Act: A Guide64. Purposes of donation of body, tissue, blood or bloodproducts of deceased persons * .. 8465. Revocation of donation * .. 8566. Post mortem examination of bodies *.. 8567. Removal of tissue at post mortem examinations andobtaining of tissue by institutions and persons * .. 8668. Regulations relating to tissue, cells, organs, blood,blood products and gametes * .. 879. National Health Research and 9069. National Health Research 9070. Identification of Health research priorities .. 9171. Research on or experimentation with human subjects * 9272. National Health Research Ethics Council.

7 9373. Health research ethics committees .. 9574. Co-ordination of National Health information system .. 9675. Provincial duties in relation to Health 9676. Duties of district Health councils and municipalities .. 9610. Health Officers and Compliance 9777. Establishment of Inspectorate for Health Establish-ments * .. 9778. Office of Standards Compliance * .. 9779. Inspections by Office of Standards Compliance * .. 9980. Appointment of Health 10181. Duty of Health 10282. Routine inspections .. 102ix83. Environmental Health investigations * .. 10384. Entry and search of premises with warrant .. 10485. Identification prior to entry, and resistance against entry10686. Entry and search of premises without 10787. Disposal of items seized by Health 10888. Miscellaneous provisions relating to Health officers,inspectors and compliance 10889. Offences.

8 10911. 11090. 11012. General 11391. Minister may appoint 11392. Assignment of duties and delegation of powers .. 11493. Repeal of laws, and savings .. 11594. Short title and 115 Appendix A : Regulations published under the NHA117 Appendix B : Other Important Health Legislation andPolicy Documents119 Appendix C : Contact Information for Health Bodies129* Chapter or Section not yet proclaimedxIntroductionThe National Health Act 61 of 2003 (NHA) is arguably the mostimportant Act passed by Parliament to give effect to the rightof everyone to have access to Health care services. This rightis guaranteed by Section 27 of the Constitution of the Republicof South Africa, 1996 ( the Constitution ), which places expressobligations on the state to progressively realise socio-economicrights, including access to Health booklet aims to make the NHA accessible and easilyunderstandable, so that individuals, communities and organisationsare better able to enforce their Health rights.

9 While many criticalprovisions of the NHA have yet to be implemented, the Act in itscurrent form does provide significant opportunities for the enforce-ment of understand the utility and significance of the NHA it isimportant to understand the historical background to the Act. TheNHA is the culmination of key Health system policies dating from1994. It reflects elements of the ANC Health Plan of 1994 aswell as the 1997 White Paper on Health Systems of these elements include: the decentralisation of Health careservices through the district Health system, the need for improvingquality and standards of Health care in both the public and privatesectors, the need for human resources planning and development,and increasing access to heath care services for everyone. Howeveras described below, a number of these Health reforms remain to beproperly the NHA sets the foundation of the Health care system, itworks in combination with other pieces of legislation which relateto other areas of the Health care system such as the development,registration, regulation and access to medicines.

10 Most of these arexidescribed briefly in Appendix B , including: The Choice of Termination of Pregnancy Act 92 of 1996 The Health Professions Act 56 of 1974 The Medicines and Related Substances Act 101 of 1965 The Medical Schemes Act 131 of 1998 The Nursing Act 33 of 2005 The Traditional Health Practitioners Act 22 of 2007As always when dealing with matters of Health , rights andlaw in South Africa, it is necessary to return to Section 27 of theConstitution, which provides as follows: Health care, food, water, and social security(1) Everyone has the right to have access to -(a) Health care services, including reproductive healthcare;(b) sufficient food and water; and(c) social security, including, if they are unable to sup-port themselves and their dependents, appropriatesocial assistance(2) The state must take reasonable legislative and othermeasures, within its available resources, to achieve theprogressive realization of each of these rights; and(3) No one may be refused emergency medical NHA is meant to be one of the legislative measures that willfacilitate the progressive realisation of the right to Health .