8 The governance and organisation of healthcare in South Africa
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- Unit 16: The legal and regulatory framework in South Africa
- Case studies
- Unit 17: Policies
- Case studies
- Unit 18: Types of health facilities in South Africa
- Case studies
Unit 16: The legal and regulatory framework in South Africa
By the end of this unit you should be able to:
- Describe the roles of different levels of government in making laws.
- Explain how the constitution guides all law-making.
- Describe the roles of statutory bodies in regulating healthcare.
- Describe the role of civil society in maintaining a healthy democracy.
16-1 What is the highest authority in South Africa?
The Constitution is the highest authority in South Africa. Under the constitution is the government, which has 3 branches responsible for making, applying regulating and upholding the law:
- The national legislature.
- The executive.
- The judiciary.
The independence of these 3 branches is called the separation of powers, which is an important democratic principle laid out in the constitution. The independence of the judiciary is an important principle in all democracies.
The Constitution is the supreme law in South Africa and is more important than parliament. All actions and all other laws passed must be consistent with the Constitution.
16-2 What is the national legislature?
The national legislature makes, changes and repeals (cancels) laws for the whole country. In South Africa, the national legislature has two houses, the National Assembly and the National Council of Provinces. The national legislature is usually called Parliament.
The national legislature (parliament) makes, alters and cancels laws for the whole country.
- The National Assembly is the lower house of parliament and consists of 400 members with proportional representation of each political party. The National Council of Provinces is the upper house that is made up of 10 representatives from each of the 9 provinces. A parliamentary committee may be appointed by the National Assembly to assist in developing a new law.
16-3 How are laws made?
The Constitution is the supreme law in South Africa, which means that all laws and actions in South Africa must be consistent with the Constitution. Laws can be made by national and provincial parliaments, and by municipalities. The constitution states the areas in which each level of government may pass laws. For example:
- The national legislature makes laws for the whole country.
- The provincial legislature may pass laws in the province they govern. For example on liquor licensing.
- Municipalities may pass laws that apply to the municipal area they govern. For example on public nuisances such as noise pollution in that municipality.
16-4 What is the process for making a national law?
There are several steps in making a new law:
- Firstly, a green paper is published. This document introduces the proposed law for public discussion and comment. It is usually drafted by the relevant ministry.
- A white paper is produced after all comments on the green paper are considered. This is a more detailed statement of what the government intends to do. Parliamentary committees can make suggestions for further amendments and then it is sent back to the ministry for a final draft.
- A bill is a draft version of the law. It is usually drawn up by the ministry involved and must be approved by cabinet. Individual members of parliament also have the right to submit a “Private Member’s Bill”.
- The State Law Advisors must certify that the bill is consistent with the Constitution. This stage sometimes leads to accusations that the judiciary is interfering with powers of the legislature. However it is important that all laws agree with the Constitution.
- The bill must be considered and passed by both houses of parliament.
- When the bill is signed by the President it becomes a law.
16-5 What is the executive?
The executive is responsible for implementing the laws passed by the legislature. These are the policies of government (what needs to be done). The top tier of the executive is the cabinet, which consists of the president, deputy president and ministers of the various government departments, including the Minister of Health. Although elected politicians head the executive, most of the activities further down the chain of command in the executive are carried out by career public servants who are not expected to change after an election.
The executive is responsible for implementing the laws and policies drawn up by the legislature.
16-6 What is the judiciary?
The judiciary is the system of courts responsible for interpreting and applying the law. Most civil cases and minor criminal cases are held at local magistrate courts. Major civil and criminal cases are heard at the high court. The high court in that province will also hear cases of appeal from the magistrate court. An appeal is when the decision of the lower court is questioned as being incorrect or unfair. Appeals from the high court are sent to the Supreme Court of Appeal. If the case is one where the Constitution may have been broken, the final court of appeal is the Constitutional Court.
The judiciary is responsible for interpreting and applying the law.
16-7 What is the role of the National Department of Health?
The National Department of Health is responsible for:
- Developing national health policies.
- Setting national standards.
- Monitoring the performance of the health service across different provinces.
The national department of health is not responsible for delivering health services. This is important as failure to provide good health services in a province cannot be remedied by the national department.
The national department of health is responsible to developing national policies, setting national standards and monitoring provincial services but not for delivering health services.
16-8 What is the role of the Provincial Departments of Health?
Provincial Departments of Health are responsible for the management of the provincial health budget and delivering all provincial health services. They are also able to adapt national policy to the needs of that province. It is the provinces that run health facilities and employ staff.
The Chief Executive Officers of the larger hospitals, and the directors of District Health Services, report to provincial managers. Funding for health services comes from an unconditional provincial grant (can be spent on any Provincial service), and provinces decide how much of the provincial grant they will spend on healthcare.
The provincial minister of health is an elected politician but other management positions tend to be held by public servants. Failure of health service delivery in parts of South Africa is often due to an ineffective Provincial Department of Health.
The provincial departments of health are responsible for delivering the health services in the province they govern.
16-9 What is the system of local government in South Africa?
Local government is organised by a system of municipalities. It is useful to understand the organisation of municipal government because the system for delivering healthcare at a local level is organised in the same way.
16-10 How is the municipal system organised?
The 9 provinces in South Africa are divided into 278 municipalities. The municipalities are organised as:
- Eight metropolitan municipalities (“metros”) for large urban areas:
- Tshwane (Pretoria)
- Erkhuruleni (East Rand)
- Mangaung (Bloemfontein)
- Nelson Mandela (Port Elizabeth)
- Buffalo City (East London)
- Cape Town
- eThekwini (Durban)
- Outside the large metros, the rest of South Africa is divided into 44 district municipalities.
- Each district municipality consists of several local municipalities. There are 226 local municipalities in South Africa.
Most smaller towns have a local municipality which delivers local services. Each local municipality sends representatives to the council of the district municipality. The district council is responsible for planning and coordination across the whole district. Metropolitan municipalities are no longer divided into local municipalities.
There are 8 metropolitan and 44 district municipalities in South Africa. Each district municipality has a number of local municipalities.
16-11 What is a ward?
Each metropolitan and local municipality is further broken down into several wards. There are 4277 wards in South Africa.
The ward is a voting area and is the smallest unit of local government. The largest wards are in the metros and may include over 50 000 residents but most wards are much smaller and typically include between 5 000 and 10 000 residents. A ward may consist of a particular community, but sometimes a community falls under several different wards, or more than one community is included in a ward. During an election, registered voters can vote for a ward councillor to represent their interests on the council of the district or the metropolitan municipality.
A ward is a voting area within a metropolitan or district municipality.
16-12 What are the health responsibilities of municipalities?
In the past, municipalities were directly responsible for some clinics and clinical services, but this is being phased out and responsibility for clinical services has been taken over by the Provincial Department of Health in most places.
Municipalities still have responsibilities for environmental health including water quality, waste management, inspection of businesses, pest control and environmental pollution. Municipalities are responsible for the local management of fire, police and emergency medical services and for disaster management. Municipalities are not responsible for the control of hazardous substances, ports or malaria control, which are provincial responsibilities.
Municipalities are responsible for the health environment, emergency medical services and disaster management but not clinical services.
16-13 What is the difference between a law and a regulation?
The differences are:
- Laws tend to be general principles that do not need updating regularly.
- Regulations lay out the rules and procedures of how a law will be applied. They are decided on by a particular body that parliament delegates to do this, and they can be updated quite regularly. In health, national or provincial departments, municipalities or statutory bodies may produce regulations.
16-14 What is a statutory body?
A statutory body is a body established by an Act of Parliament that is responsible for producing regulations and administering laws or policies that apply to a specific area of society. A statutory body is, in theory, independent of government interference and only has to answer to law and the constitution. A well-known example is the Office of the Public Protector.
A statutory body should be independent from government and answer only to the law and the constitution.
16-15 What are the important statutory bodies in South African healthcare?
Important statuary bodies are:
- Health Professions Council of South Africa (HPCSA): The HPCSA regulates the practice of health professionals, mainly by registering them for practice and monitoring continuing education. It has 12 professional boards covering medical and dental practitioners and most of the allied health professions.
- South African Nursing Council: The nursing council plays a similar role to the HPCSA, but continuing education is currently not a requirement.
- Medicines Control Council: The medicines control council is responsible for ensuring the safety and quality of medicines sold in South Africa.
- South African Pharmacy Council (SAPC): The SAPC regulates pharmacy practice by registering pharmacies and pharmacists.
- Council for Medical Schemes: Its purpose is to oversee and regulate medical insurance schemes in South Africa. Health and Welfare Sector Education and Training Authority (HWSETA): Is responsible for education, training and skills development among healthcare workers.
The regulation of the practice of healthcare is delegated to a number of statutory bodies.
16-16 What is “civil society” and what role does it play?
Civil society is a term used for the collection of groups and individuals that are outside government, but which can raise awareness, debate issues of importance, and campaign for changes. An example of civil society is the Treatment Action Campaign that successfully lobbied for access to antiretroviral treatment in the early 2000s. A strong civil society can hold government to account and is a crucial part of a well-functioning democracy.
To some extent, public health and civil society are natural partners. Public health provides the factual information that civil society needs to campaign, while civil society advances agendas of importance to public health.
Case study 1
Throughout the 2000s, the Treatment Action Campaign successfully took the South African Government to the Constitutional Court in order to establish an antiretroviral treatment programme. In contrast, many activists campaigning for human rights around the world are imprisoned.
1. Which important democratic principle allowed the TAC successfully to use a legal route in its fight for treatment for HIV?
The important principle is the “separation of powers”. It keeps the judiciary independent from government. The independence of the judiciary is important in a democratic state.
Unit 17: Policies
At the end of this unit you should be able to:
- Distinguish between a policy and a law.
- Describe what makes a good policy.
- Make effective policies for your workplace.
- Use policies to support your work.
17-1 What is a policy?
A policy is a set of rules or guidelines for actions that are intended to produce a particular outcome. While a policy needs to be within the law, it is not the same thing as a law but rather something that members of an organisation are expected to do. You may also hear a policy referred to as a “Standard Operating Procedure” or SOP. You cannot be put in prison for breaking a policy, as you could for breaking a law, but you can get into trouble with your employer.
A policy is an agreed upon statement which states what needs to be achieved and how this should be done.
17-2 Who makes policy?
Policies can be set at a variety of levels, from national government departments down to individual hospital wards or clinics. It could even be argued that some household rules, such as washing hands before meals, are policies.
17-3 Why do clinicians need to know about policies?
There are several ways in which clinicians become involved in policy-making.
- They may become involved as advocates to push a particular policy agenda at national or provincial level. An example of this is the involvement of clinicians in overturning the policy of AIDS denialism in the early 2000s.
- They may be also invited to have input into health policies at a higher level in order to ensure that the proposed actions are reasonable and acceptable.
- Even when they have not been invited to contribute to a written policy, they can be said to “make policy” in that they determine what happens “on the ground” and how the policy is implemented.
- Lastly, clinicians may need to write policies for their own workplace.
17-4 What makes a good policy?
There is no shortage of policies in most health systems and facilities, but they are often ignored or adapted by the people whose actions they are supposed to guide. A few simple rules can make policies more of a help than a hindrance:
- The aim and intended outcome of a policy should be made clear. A policy with a sensible and reasonable aim is more likely to be taken seriously.
- The important role players should agree on a policy.
- The best available evidence should be used to inform policy. For example, many “best practice” clinical guidelines are available to inform policies in health facilities.
- Where possible, a policy should be discussed and formulated in partnership with those who will be implementing it, in order to make sure that it is understood, feasible, acceptable and meets their needs.
- A policy should be signed and dated, and have an expiry date. This means that there cannot be any doubt that it is a current policy.
Following a few simple rules can make a policy into an important working document that guides practice.
- The term “street level bureaucrat” is used to describe somebody who effectively makes policy by deciding what to implement locally and what to ignore.
17-5 How can policies help in the workplace?
Well-chosen, well-planned and clearly understood written policies in the workplace can make life easier for everybody:
- If a procedure or practice is not being done safely or appropriately, then referring to a policy means that this can be challenged without making it a personal issue.
- After hours, there are often disputes between staff about which patients may be referred or which service should admit them. Having a policy agreed beforehand can reduce a lot of conflict and make appropriate referrals easier for staff in smaller hospitals or clinics.
To have these benefits, it is important that:
- Recurrent problems are identified.
- The written policy is widely known and easy to access if necessary.
Case study 1
A known schizophrenic who is non-adherent to treatment has been brought into casualty late in the evening. He has strong paranoid delusions and is violent, needing several staff members to restrain him. Several other patients are frightened and have run away, including a child with possible appendicitis. The intern on call gives him some sedation and phones the doctor on call for psychiatry to arrange a compulsory admission to the secure unit. This doctor says that it is important to exclude a physical cause for the delusions and instructs the intern to do a lumbar puncture and keep the patient in casualty until the morning when he can have a CT brain.
1. How might a policy help in this situation?
While the psychiatry doctor is correct to think about physical causes of psychiatric illness, it is not reasonable to expect this work-up in a known schizophrenic who has stopped taking treatment. Keeping him in casualty harms the running of the unit and is also bad for the patient. A written, agreed policy on the work-up required for psychiatric admissions will help the intern or her senior to reject the “advice” and inform the psychiatry doctor what should be done. Casualty is one place where an easily available file of written policies governing admission to inpatient services can be very helpful.
Unit 18: Types of health facilities in South Africa
By the end of this unit you should be able to:
- Describe the structure of the government health system in South Africa.
- Explain how people get access to hospital services.
- Describe health services for schools, prisons and the military in South Africa.
18-1 What are the different levels of care in the South African health service?
The terms primary, secondary and tertiary levels of service are often used in the health system. These levels of healthcare can be thought of as a pyramid going from less specialised at the “bottom” to more specialised healthcare at the “top” of the pyramid (see Fig 18-1). It is important to understand that the “top” of the pyramid is not more important than the “bottom”. Actually it is the other way around. If the foundations of the structure are not secure then the whole thing will fall down. In a well-functioning health system, patients are matched up with the right level of care, so that only those who really need the more costly services have access to them.
Figure 18-1: Characteristics of primary, secondary and tertiary care in a pyramid of services.
18-2 How do people get access to health services?
Government funded health services are organised in such a way that patients are expected to start off using primary care services and if needed can be referred “up” to different levels of care that are increasingly more specialised. Primary care services include clinics, mobile clinics and district hospitals. Getting access to more specialised levels of service depends on referrals. Referral pathways within government health services are shown in Figure 18-2. This diagram is slightly more complicated than the pyramid because it includes the “specialised hospitals” that provide services for one specialised area only. These are most commonly TB hospitals and psychiatric hospitals, and they can receive referrals from several levels of care.
Primary care services include clinics, mobile clinics and district hospitals.
18-3 What are the referral pathways for private services?
There are also private general practitioners, specialists and hospitals. People using private services are able to make an appointment with any professional they wish at any level they wish. They must then either pay directly, or via a medical aid or insurance scheme. Admission to a private hospital is expensive and would usually be paid for by a medical aid or insurance fund.
A large number of people do not have a medical aid or health insurance but are able to pay for some private services. They will often choose to pay to see a private general practitioner (GP) who may refer them on for hospital services if necessary. GPs can directly refer to District and Regional government (public or state) hospital services. Tertiary government hospitals usually do not accept direct GP referrals. In many towns and cities, there is very limited contact between government hospital practitioners and private GPs and this is unfortunate because private GPs are an important point of first contact and ongoing care for many patients. Many GPs have sessional duties in district hospitals.
18-4 What confusing terminology is sometimes used for different levels of government hospitals?
It can be confusing to read about different levels of government hospital because people use different terms to refer to the same thing.
- Tertiary hospitals are also called teaching hospitals, central hospitals or level 3 hospitals.
- Regional hospitals are also called secondary hospitals or level 2 hospitals.
- District hospitals are also called primary hospitals or level 1 hospitals.
For the rest of this book, the terms tertiary, regional and district hospital will be given, because these terms are most widely used. Most hospitals in South Africa are district hospitals. A district may have one or more district hospitals. Some districts may also have a regional hospital. Often a number of districts will refer to a single regional hospital. General specialists, such as paediatricians, usually work in regional hospitals however specialists needing high sophisticated and expensive equipment, such as cardiologists, usually work in tertiary hospitals.
Figure 18-2: Types of facilities and referral pathways in the South African government health sector
18-5 How do people access government hospital services in practice?
The policy is that people seeking care for non-emergency conditions should start off at a primary care clinic and be referred on to an appropriate hospital if necessary. In practice, the referral process does not always work like this. Very few primary care clinics offer an after-hours service, and several are now working on an “appointments only” basis. This means that people using government services often use their local hospital emergency service for after-hours “walk in” services, particularly if they are worried about losing a day’s pay by attending the day clinic. There is a danger that the really urgent cases will be hidden in the after-hours primary care caseload. Most government hospitals need a triage system for sorting patients so that the most urgent cases are not pushed back by others with more minor complaints. The South African Triage Score is one way of doing this.
People often use emergency units for after-hours primary care services. Mechanisms are needed to make sure urgent cases are seen urgently.
18-6 How do people access an emergency ambulance in South Africa?
Calls to the Emergency Medical Services (EMS) on landline number 10177 or via the 112 cell phone number, are routed to a dispatcher. The dispatcher will assign a priority code to the situation and dispatch an ambulance. Some provinces have arrangements with private ambulance services and can dispatch a private ambulance to an emergency if it is closer, or if no state ambulance is available.
EMS providers are authorised to take cases to the facility where they think they can most appropriately be managed, this could include stabilisation at a private facility.
EMS are obliged to respond to all calls but they can be misused to take minor and non-urgent cases to hospital.
18-7 What is the health service like in schools?
In the past, the Schools Health Service was not very effective. School nurses were employed by the Department of Health, but were working in facilities run by the Department of Education. There was little cooperation between the two departments, meaning that nurses were not always given the resources and space to work effectively. They also had other work to do and often ended up spending little time in schools. A new School Health Policy was developed by collaboration between both departments and was introduced in 2012. The plan is for designated school health nursing posts and an agreed minimum package of health services that includes health promotion and screening.
18-8 What is the health service like in prisons?
The Department of Correctional Services employs its own health professionals. Most prisons have a sick bay run by a professional nurse. In theory there are regular doctors’ visits, but many posts for doctors are unfilled so visits by doctors or dentists to some prisons can be irregular. In practice, prisoners needing medical attention are often seen in regular government health facilities, and correctional services officers accompany them. The security precautions for inmates seen in government health facilities are directed by prison orders. The number of guards and security precautions are defined by prison orders and depend on the category of risk. It can be disturbing for other patients to see prisoners in leg irons or guards with firearms, but this has to be tolerated so that prisoners can get the care they need. It is sensible to see them as a priority so that correctional services staff can return to their other duties. Prisoners are at a high risk of TB and HIV as a result of overcrowding and unsafe sex practices.
Prison health services are under pressure and arrangements must usually be made for prisoners so be seen in Department of Health facilities.
18-9 What is the military health service like?
The South African National Defence Force employs its own health professionals and runs 3 military hospitals in Pretoria, Cape Town and Bloemfontein, together with military primary healthcare clinics in other towns. Health care is provided free of charge for military personnel and their dependents. Both current and former Defence Force members and their families can use this service.
Current and former members of the Defence Forces and their families qualify for care under the military health service.
Case study 1
A person has a cough for 4 weeks, is sweating and losing weight. He lives with a family member who is being treated for TB. He does not have medial aid, health, insurance or the money for a private GP.
1. Where should he seek help?
The nearest clinic is the best starting point. He will probably be seen by a nurse practitioner who will take sputum samples and decide whether he should be referred for a chest x-ray.
Case study 2
An ambulance picks up a teenager who has cut her wrists and has been bleeding heavily. The paramedic controls the bleeding with a pressure bandage. She is still conscious, but he thinks a major artery has been cut and that she should see a surgeon. There is a district hospital 12km away and a regional hospital 40 km away.
1. Where should they take their patient?
Emergency medical services are authorised to take patients to where they can best be managed. In this case that would be a regional hospital because there will be a surgeon on the staff. On the other hand, if he could not get control of the bleeding, or his patient was unstable, he would probably take her to the district hospital first to be stabilised with the help of a generalist doctor, because that is the nearest facility.
Case study 3
A doctor working in casualty receives a call from a nearby maximum security prison. They have an inmate with chest pain and are worried that he is having a heart attack.
1. What should the doctor do?
Although there is a prison medical service, prisoners with emergencies often have to be seen in Department of Health hospitals. The doctor should accept the patient. Prison staff are responsible for security.