New health rules replacing state of disaster ‘risk’ failing constitutional test

The removal of the judicial oversight and mandatory counselling services in the draft regulations to the National Health Act has been red-flagged as a grave concern that raises the possibility of a constitutional challenge.

According to the health department, the proposed regulations seek to introduce control measures which include the surveillance and the control of notifiable medical conditions – like Covid.

The draft proposed regulations currently out for public comment forms part of the government’s transition from the national state of disaster for a specific legal instrument to manage current and future pandemics.

Out with national state of disaster

The proposed regulations seek to introduce a number of control measures which include the surveillance and control of notifiable medical conditions; public health measures in points of entry; management of human remains; and finally regulations relating to environmental health.

The Economic Freedom Fighters (EFF) said it would scrutinise the draft regulations but also called for vigilance to ensure government did not “smuggle regulations into law” giving them power to micro-manage the political terrain and enhance their ability to conduct illegal and corrupt procurement.

“[Covid] has exposed an incompetent government which is committed to corruption, even in the face of death,” the EFF said in a statement.

Specific concerns

The Democratic Alliance (DA) was more specific in its concerns with the regulations. The party’s MP Michele Clarke, in an open to health minister Joe Phaahla, pointed out that the draft regulations will ultimately enforce compulsory medical examinations, tests, and treatment for certain notifiable medical conditions (NMC).

She lamented that the draft regulations appeared to force people to get the Covid-19 vaccination and gave the health minister unchecked power to impose lockdowns and restrictions without the requirement of receiving advice from experts.

Clarke added that the draft regulations stipulate strict requirements for a self-isolation site/home, many of which are simply not an option for the ordinary South African.

Misplaced

But public health and constitutional law expert Petronell Kruger suggested the DA was making a lot of noise about nothing on its specific concerns.

She said the current version of the regulations relating to the surveillance and the control of NMCs already provided for the possibility of mandatory medical examination, prophylaxis, treatment, isolation and quarantine and has previously been employed by the government.

“Therefore, it was always theoretically possible to use the regulations to mandate vaccinations in certain circumstances even before this amendment,” Kruger said.

Constitutional challenge

She, however, said the major difference with the draft regulations was the removal of the court oversight procedure which she said posed a serious concern and raised the possibility of a constitutional challenge.

“The new amendment is even more far-reaching than the provision made under the national state of disaster. Another clear – and problematic – omission is the removal of mandatory counselling services. If we want to achieve public health goals in South Africa, sharing information and co-opting consent is an important value to strive for,” Kruger said.

A public law expert, who asked to remain anonymous as they had been involved in various government health related processes, agreed, saying the issues raised by the DA were actually part of the notifiable conditions regulations before Covid-19.

“It is inaccurate to say that these are new measures,” the law expert said.

In September, Safura Abdool Karim, public health lawyer at the University of the Witwatersrand, explained in an article published on the university’s website that in 2020, Covid became a notifiable condition under the Notifiable Medical Conditions Regulations, which have long been in place and are updated from time to time.

A notifiable condition is a disease that poses a considerable public health risk as it could lead to outbreaks that are fatal or severely affect many people; which in SA includes cholera, listeriosis and tuberculosis.

– siphom@citizen.co.za