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
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.
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.
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.
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.