Regulations stumble while the disease sprints
At the SA AIDS conference in June 2013, in a session on communicable diseases with high level officials of the National Department of Health on the panel, a young doctor stood up and asked a question, the gist
of which was “what do I do when I know someone has infectious DR-TB, but refuses to take treatment?”
The answer to that question must strike a difficult balance between public health and personal rights. As of yet, there is no official answer from the National Department of Health. In fact, we don’t have official answers for many of the most important issues that the DR-TB epidemic gives rise to. This shortcoming is due to the Department’s delay of over six years in bringing into force the Regulations Relating to Communicable Diseases and the Notification of Notifiable Medical Conditions.
The National Health Act gives the Minister of Health the power to make regulations relating to communicable diseases and notifiable conditions. Communicable diseases are simply ones that can spread from one person (or animal) to another. Notifiable conditions are, in general terms, diseases or conditions that must be reported to the government, typically for monitoring and prevention purposes.
This is obviously a very important issue, the regulations should provide the nuts and bolts of the way in which we control, prevent, document and study diseases like DR-TB. For example, in the absence of them, people are left without guidance as to what to do in an outbreak of a deadly and infectious disease, a disaster scenario that doesn’t require an imaginative leap in the context of South Africa’s DR-TB epidemic. The doctor’s question above is another good example. Without these regulations, healthcare workers like her do not have guidance on what to do when a patient has a deadly and infectious disease but refuses to take treatment.
Over six years ago, in January 2008, the Minister first published draft Regulations Regarding Communicable Diseases and invited the public to comment on them. To the disappointment of commentators, the regulations were in a very poor state. In April, the AIDS Law Project made a detailed submission and commented that due to the poor quality of the draft, “In some cases, it has been impossible to comment on the substance of the draft regulations”. The ALP warned that the guidelines were vulnerable to constitutional challenges in their draft form, recommended that they be redrafted and gave detailed guidance on how this could be done.
In September 2008, the ALP commented on a further draft. It noted with concern that its advice had been ignored and many of the problems with the prior draft had simply been left intact.
In 2010, the ALP made a third submission on yet another draft of the regulations, again noting that “many of the provisions on which we have twice provided substantive comments remain virtually identical to those published over two years ago. The draft regulations continue to have fundamental flaws making them incapable of reasonable interpretation or understanding.”
Thereafter, the ALP, and then SECTION27, which incorporated the ALP, advised the NDOH multiple times, even making line-byline inputs on subsequent drafts and meeting with drafters to go through them in detail.
SECTION27 last made inputs on the draft regulations in 2013. It has continued to make repeated efforts to ascertain the status of the regulations and a timeframe in which they will be brought into force. The Department has repeatedly advised that the regulations are finalised or close to being finalised.
In sum, after over six years, untold numbers of drafts, and extensive support from legal and public health experts, the Department is still sitting on regulations that are critical to turning the tide against tuberculosis. Unfortunately, the disease doesn’t wait on the law and while DR-TB has been a remarkably successful bacteria over the last six years, the Department has been far less so in regulating the response to it.
SECTION27 was last provided a draft of these regulations in August 2013. The draft regulations:
- Established a Communicable Diseases Advisory Committee, to be charged with formulating policy and guidelines
on communicable diseases, preventing and controlling communicable diseases, managing data on communicable
diseases and other important responsibilities.
- Defined roles and responsibilities of health authorities at the national, provincial, local land facility levels.
- Defined and listed different categories of notifiable diseases and provided a procedure for reporting them.
- Provided guidelines for when and how to examine, treat, isolate or quarantine people on a voluntary basis.
- Defined the circumstances in and procedures by which a person may be examined, treated, isolated or quarantined