National Health Act: Section 46

1. National Health Act: Section 46 Presentation to the Parliamentary Portfolio Committee on Health 5 June 2013

2. The National Health Act 61 of 2003 Section 46 46. Obligations of private health establishments Every private health establishment must maintain insurance cover sufficient to indemnify a user for damages that he or she might suffer as a consequence of a wrongful act by any member of its staff or by any of its employees.

3. The National Health Act : Section 46 Section 46 raises two questions: • Are individual / group medical practices included under the concept “Private Health Establishment”? • What type of damages and wrongful acts the insurance cover is required to provide indemnity?

4. The National Health Act : Section 46 Definitions: “private health establishment” means a health establishment that is not owned or controlled by an organ of state; “health establishment” means the whole or part of a public or private institution, facility, building or place, whether for profit or not, that is operated or designed to provide inpatient or outpatient treatment, diagnostic or therapeutic interventions, nursing, rehabilitative, palliative, convalescent, preventative or other health services;

5. The National Health Act : Section 46 Definitions: • “user” means the person receiving treatment in a health establishment, including receiving blood or blood products, or using a health service, and if the person receiving treatment or using a health service is- (a) below the age contemplated in section 39(4) of the Child Care Act, 1983 (Act No. 74 of 1983), “user” includes the person’s parent or guardian or another person authorised by law to act on the firstmentioned person’s behalf; or (b) incapable of taking decisions, “user” includes the person’s spouse or partner or, in the absence of such spouse or partner, the person’s parent, grandparent, adult child or brother or sister, or another person authorised by law to act on the firstmentioned person’s behalf;

6. The National Health Act : Section 46 Applying the Definitions • GPs and Medical Specialists diagnose patients at consultation and may provide diagnostic or therapeutic interventions in their rooms. This may therefore bring their rooms under the definition of “health establishment” • Physiotherapists engage in rehabilitative services in their rooms and rendering their rooms a “health establishment”

7. The National Health Act : Section 46 Concerns with Section 46 • No definition for “Insurance Cover”. • No “ceiling amount” or “cap” for the cover is stated • Staff or employee may also be medical or other healthcare providers.

8. The National Health Act : Section 46 Clarity and confirmation is sought on the following: • Are private medical practices considered “private health establishments”? • Is the indemnity / insurance intended to indemnify the private health establishment and not the “user”? • Is the cover actually liability cover and not insurance cover?

9. Questions ▪ Thank You

10. Julian Botha Senior Legal Advisor South African Medical Association Tel: (012) 481 2060Fax: (012) 481 2100Email: julianb@samedical.org