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Guideline: Management of Drug-Resistant Tuberculosis » Legislative Framework and Public Health Ethics
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2. LEGISLATIVE FRAMEWORK AND PUBLIC HEALTH ETHICS

 

The Department of Health is legally responsible for the control of TB, including DR-TB, as a public health issue and is required to operate within the context of the Bill of Rights enshrined in the Constitution of the Republic of South Africa, 1996. The Bill of Rights affords individual rights to every person and also balances competing rights and communal interests.

 

2.1. Rights protected by the Constitution

 

  • Freedom and security of the person: Violations of this right arise from enforced isolation or treatment.
  • Life: The right to receive treatment and the right of the uninfected to be protected from infection.
  • Health care: The right to health care services and emergency medical treatment.
  • Just administrative action: The right to be heard before a decision is made, which adversely affects individual rights.
  • Human dignity: The effects of detention and treatment on an individual’s dignity
  • Privacy: disclosure of a patient’s health status to others.
  • Equality: Discriminating between those who will receive treatment or be detained and those who will not.
  • Freedom of movement and residence: The effect of enforced detention and conditions of release.
  • Freedom of trade, occupation and profession: The effect of enforced detention and conditions of release.
  • Social security: The right to social security, including, if they are unable to support themselves and their dependents, appropriate social assistance.

 

2.2. Other Relevant Legislation

 

The following legislation provides a legal framework for the management of MDR-TB:

The National Health Act 61 of 2003

Chapter 2 of the Act emphasises the rights to emergency medical treatment; to have full knowledge of one’s condition, to exercise one’s informed consent, to participate in decisions regarding one’s health, to be informed when one is participating in research, to confidentiality and access to health records, of users to lay complaints about the service; and the rights of health workers to be treated with respect.

The Promotion of Administrative Justice Act 3 of 2000

Gives effect to the right to administrative action that is lawful, reasonable and procedurally fair and to the right to written reasons for administrative action as contemplated in section 33 of the Constitution of the Republic of South Africa, 1996.

The Occupational Health and Safety Act 85 of 1993

Provides for the health and safety of persons at work and the protection of employees against hazards through provision of a safe working environment by the employer.

The Compensation for Occupational Injuries Diseases Act 130 of 1993 and its Hazardous Biological Agent Regulations (21 December 2001)

Provides for the compensation for disability caused by injuries sustained and diseases acquired in the workplace by employees during their employment. This excludes the mines, which are provided for in a separate Act.

The Employment Equity Act 55 of 1998

Promotes equal opportunity and fair treatment in employment through the elimination of unfair discrimination.

Social Assistance Act 13 of 2004 and Regulations

Gives effect to the section 27 (1)(c) of the Constitution by providing for the rendering of social assistance to persons and mechanisms for the rendering of such assistance.

The Labour Relations Act 66 of 1995

Aims to promote economic development, social justice, labour peace and democracy in the workplace. It incorporates the code of good practice, which deals with some of the key aspects of dismissals for reasons related to conduct and capacity.

Basic Conditions of Employment Act 75 of 1997.

Provides for the minimum conditions of employment that employers must comply with in their workplace.

Promotion of Equality and Prevention of Unfair Discrimination Act, 2000

Promotes the principles of equality, fairness, social progress, justice, human dignity and freedom. It also prohibits unfair discrimination and unfair denial of access to healthcare services.

Promotion of Access to Information Act, 2000

Guarantees access to any information held by another person that is required for the exercise or protection of any rights. It also promotes the Constitutional right of access to any information held by the State and therefore impacts access to medical records and history.

Unemployment Insurance Act No 63 of 2001

Sections 14, 20, 36 provide for claims by the worker if unable to work because of illness.

 

2.3. Public Health Ethics

 

The Siracusa Principles on the Limitation and Derogation of Provisions in the International Covenant on Civil and Political Rights1 state, “Public health may be invoked as grounds for limiting certain rights in order to allow a state to take measures dealing with a serious threat to the health of the population or individual members of the population. These measures must be specifically aimed at preventing disease or injury or providing care for the sick and injured and that due regard shall be had to the international health regulations of the World Health Organization.”

 

2.3.1. International Health Regulations

The purpose and scope of these regulations is to prevent, protect against, control and provide a public health response to the international spread of disease in ways that are commensurate with and restricted to public health risks and which avoid unnecessary interference with international traffic and trade. Implementation is guided by the following principles:

  • With full respect for dignity, human rights and fundamental freedom of persons.
  • Guided by the Charter of the United Nations and the Constitution of WHO.
  • Guided by the goal of their universal application for the protection of all people of the world from international spread of disease.

The management and prevention of DR-TB requires cooperation by all affected and balancing of community and individual interests. Limitation of individual freedom of choice may be necessary to protect individuals as well as entire communities.

Individual freedom should however be carefully restricted and only when alternative approaches to preventing spread, are not likely to be effective. The following guiding principles should be observed in determining the restrictions:

  • Provide and manage treatment in accordance with the law.
  • Adopt the least restrictive practices that will allow the common good to be protected.
  • Ensure that restrictions are necessary and proportional to the need for protection.
  • Explore all less restrictive measures before implementing more intrusive public health measures.
  • Base intervention on scientific evidence that failure to implement the measure is likely to result in harm to the well-being of the public and society as a whole and not imposed arbitrarily.
  • Attempt to ensure that those impacted by restrictions receive support from the community (i.e., job security, financial support for individuals who are isolated and provision of food parcels and other necessities to their families, and protection against stigmatisation or unwarranted disclosure of private information).

A fair and standard process must be followed when making the decision to isolate people with confirmed MDR- and XDR-TB in order to achieve favourable outcomes. In order to achieve this, the following must be followed:

  • Ensure consistency in applying standards across people and avoid discrimination based on colour, religion and status.
  • Engage patients and their families in the decision-making process and ensure that they give consent.
  • Treat all patients with dignity and respect.
  • Communicate clearly in local language and culturally sensitive manner.
  • Ensure transparency, accountability and no hidden agendas.
  • Maintain impartiality and neutrality in the process of decision-making regarding management.

2.3.2. Patient Management Related Challenges

A number of factors need to considered and addressed when managing patients with DR-TB.

Patient

Some patients might refuse treatment and hospitalisation; other patients may wish to be treated but do not agree to be hospitalised. Some patients request discharge from MDR-TB units while still highly infectious. Decentralisation of MDR-TB care is a solution to this problem.

Community

Implications of continued employment for infectious patients, discharging patients who failed treatment back to communities and disclosure of patients’ condition to family, employer and close contacts need to be discussed with all affected parties. This requires that infection control strategies are implemented in the community to ensure protection of vulnerable groups (e.g., children, HIV-positive people) and intensive community mobilisation to increase awareness and address stigma.

Labour

Working in MDR-TB hospitals exposes staff to a high risk environment for infection, which is a cause for concern for HCWs often results in high staff turnover, refusal to work in high risk areas, and difficulties in recruiting staff. It is vital to ensure that adequate infection control measures are implemented, all staff is protected and occupational health services and compensation for workers who contract the disease are provided.