Controversial amendment to health regulations: A state of disaster?

With the State of Disaster having come to an end, the Department of Health has announced its intention to implement a controversial set of amended health regulations, the most notable being the proposed amendment to the Surveillance and Control of Notifiable Medical Conditions regulations, as published under the National Health Act, 61 of 2003. This amendment seeks to introduce regulations which not only bear similarity to that of the COVID-19 regulations previously in effect, but which in fact may infringe citizen’s personal freedoms even more so than before.

Following legal action on what many commentators have termed as ‘draconian’ regulations, the Minister of Health, Joseph Phaahla, has extended the period for public comment on the proposed regulations to the 5th of July. This follows on from the Department’s failure to adhere to the usual timeframes within which to enact regulations, having attempted to pass the proposed regulations on the proclaimed urgency of managing COVID-19 and ‘other notifiable medical conditions’ without having to invoke the state of national disaster. This ironically being so, despite the fact that COVID-19 has not yet clearly been defined as a notifiable medical condition, but rather simply alluded to as being a ‘respiratory disease caused by a novel respiratory pathogen’. Other defined notifiable medical conditions include, among others, listeriosis, malaria, measles and typhoid.

In terms of the proposed regulations, published on 15 March 2022, a person who has contracted or is suspected of having contracted a notifiable medical condition, or whom has come into contact with a person who has contracted or carries a notifiable medication may not refuse:

1.              to undergo medical examination and testing;

2.              to be admitted to a health establishment, quarantine or isolation site; or

3.              to submit to mandatory treatment, isolation or quarantine.

Any person who fails to comply with the regulations may be liable on conviction to a fine and imprisonment not exceeding ten years.  

When considering the above, these regulations seem to afford the State widescale powers to infringe persons’ right to bodily integrity by enforcing mandatory testing, treatment, isolation and vaccination. Upon refusal, the regulations state that a Court order must be obtained to compel a person to quarantine, amongst other actions, and yet simultaneously empower the State, with the assistance of law enforcement, to subject persons to mandatory treatment and quarantine to prevent transmission whilst awaiting the order to be handed down by such Court.

The regulations further seek to establish and maintain a national database tasked with tracing any person who is known or ‘reasonably suspected’ of having contracted or come into contact with a person who has contracted a notifiable medical condition. Reasonably suspected is not defined and overtly vague.

Proposed information to be collected and stored on such database includes the relevant ‘suspect’s’ full name, identity number, contact details and residential address or address where such person may be located, as well as the details of all other persons with whom they have come into contact with. This may have a number of POPIA related implications.

The regulations also intend to introduce barriers to entry of the Republic, in that persons entering the Country who wish to self-quarantine must obtain the approval of the Director General of Health on written application 72 hours prior to date of entry, by providing particulars of the address at which he or she shall self-quarantine, together with their contact details, itinerary for the period of self-quarantine, and a written undertaking to comply with the conditions of self-quarantine as imposed thereby.

In the event that approval for self-quarantine is not obtained, or the conditions of self-quarantine are not adhered to, the regulations require that such person be placed in a state identified quarantine facility.

The regulations also seek to limit indoor and outdoor gatherings to a maximum of 50%, in which all occupants will be required to produce a valid vaccine certificate.

Commentators have further raised issues with regard to the contradiction created by the Draft Bill, in that the Department has almost simultaneously released relaxed COVID-19 regulations under the Adjusted Alert Level 1, as published on 22 March 2022, which in essence, simply requires that citizens continue to wear face mask indoors and adhere to social distancing.

Moreover, although the Draft Bill is not exclusively aimed at COVID-19, but rather that of all notifiable communicable diseases, it appears that they may be targeted at increasing the Country’s vaccination rate against COVID-19.

In order to bridge the gap until the proposed regulations come into effect, the Department has issued interim regulations with effect from Thursday, 05 May 2022, which in many ways reflect a watered down version of the Draft Bill.

Comments or objections to the proposed regulations are to be sent to legalreviews@health.gov.za.

Written by Dyllon Nicholls.

For more information kindly email us on info@hjw.co.za.

This article is provided for informational purposes only and should not be substituted for legal advice on any specific matter. Any opinions expressed herein are subject to the law as at the time of writing and will change in accordance with any change in the law. We recommend that you contact HJW ATTORNEYS at info@hjw.co.za directly for advice applicable to your specific matter.