Category: Ethics and Law

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South Africa’s Dangerous Mix of Fake Medicines and Bogus Doctors

On By ModernMedia
Photo by Rodion Kutsaiev on Unsplash

By Spotlight Editors

Fake and substandard medicines, along with bogus healthcare practitioners, pose a growing threat to patient safety in South Africa.

The sale of fake and substandard medicines is a significant threat to patient safety around the world. In South Africa, the main affected products are painkillers, antibiotics, weight-loss and sexual enhancement products, skin-lightening products, and some chronic medicines.

In pealing back the different layers of this problem, it is essential to get the definitions right.

  • Substandard products are those that do not meet quality standards and specifications.
  • Falsified products deliberately misrepresent their identity, composition or source.
  • Neither of these should be confused with generic medicines, which have the medicines regulator’s green light for being safe, effective, and of good quality.

People are often duped into purchasing substandard and falsified products, especially when the real thing is not available or too expensive. But, as Elna Schütz this week reports for Spotlight, there are also people who buy these medicines fully aware of the risks.

These unregulated medicines are mostly distributed through informal channels, unregulated outlets, online platforms, and cross-border smuggling networks. It is also possible that some substandard and falsified medicines have been infiltrated into otherwise reputable medicines distribution channels.

Data on the scale of the problem is scant, but there is agreement that the problem is substantial. The WHO estimates that around 1 in 10 medicines in low- and middle-income countries are substandard or falsified.

The South African Health Products Regulatory Authority (SAHPRA) is the main body responsible for regulating substandard and falsified medicines. It does this through post-market surveillance and inspections, a whistleblower reporting system, product recalls, and monitoring illegal advertising and online sales. A new National Action Plan and comments from the Minister of Health suggests there is some intent to step up these efforts.

What of regulated medicines?

In two separate columns for Spotlight, Dr Andy Gray looked at the broader issues of the quality of medicines and sanctions for non-compliance with medicines legislation.

The good news is that we can generally trust that the medicines we buy at pharmacies contain what they are supposed to and that they were manufactured according to good quality standards. As regulatory entities go in South Africa, SAHPRA is generally one of the better-functioning ones.

But, outdated legislation means that SAHPRA doesn’t have all the tools it needs to stamp out the sale of unauthorised medicines. For instance, it has limited powers in relation to advertising and marketing, cannot block a web site, and cannot issue infringement notices, or impose sanctions on entities or individuals whose actions potentially place the public at risk of harm.

Fake health professionals 

Falsified medicines are not the only misrepresentations that should concern us in the health sector. Spotlight recently reported that South Africa is also battling the problem of bogus health practitioners. The issue goes beyond people pretending to be doctors and can include physiotherapists, interns, or anyone else treating patients without being properly qualified or registered.

The misrepresentation may include using fraudulent certificates, using another practitioner’s registration, or still offering healthcare services while being suspended or erased from the register.

From early 2024 through late 2025, 66 bogus practitioners were caught and arrested, with the majority operating in the economic hubs of the Western Cape, Gauteng, and KwaZulu-Natal.

You can help curb these problems. Suspicious practitioners can be reported to the HPCSA, and suspicious products or sellers can be reported to SAHPRA. People are also advised to buy only from licensed and authorised pharmacies and checking if healthcare providers are registered.

And then there is fake news

In some areas, as with bogus health professionals and falsified medicines, the solution to misrepresentation is clearly to have legally empowered regulators with enough muscle to consistently enforce the law.

But when it comes to misinformation and disinformation – call it fake news if you will – the way forward is much less obvious. In recent years, we’ve seen a toxic mix of political polarisation, conspiracy theories, disinformation campaigns, and twisted social media algorithms – often fuelling a rejection of science and evidence-based policy-making. Beyond just our screens, these trends have unfortunately started to distort the real world, as we’ve seen at various critical health institutions in the United States.

In our view, regulators should have a role in preventing misinformation and disinformation about medicines. But how exactly to make such regulation work in an age of largely unaccountable social media networks is not at all clear.

What we think is clear, is that much of the solution to the problem of health misinformation and disinformation, is simply to keep creating its opposite, high-quality, rigorous, and evidence-based journalism.

This is the core of what we try to do at Spotlight. It is also why we have made our journalism subject to the South African Press Code, work hard to stick to our Editorial Policy and Style Guide, and why we urge you to hold us accountable when we get things wrong, as we will inevitably do from time to time.

Please always feel free to get in touch at Editors@SpotlightNSP.co.za.

Republished from Spotlight under a Creative Commons licence.

Read the original article.

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Fake Medicines: How Regulators Are Trying to Fix the Problem in SA

On By ModernMedia

By Elna Schütz

From unregulated weight loss injections to unsafe pain tablets, substandard and falsified medical products pose a threat to the health of people. Spotlight reports on how regulators are fighting the problem in South Africa.

“I know that there is a risk, but at this point I feel that the benefits outweigh everything else,” says Anna*, who buys unregulated medicine on the black market.  

She was prescribed GLP-1 RA medicines by a doctor after being tested for insulin resistance. She has lost around 30kg and says the positive impact on her body, life, and self-esteem has been massive. GLP1 RAs (Glucagon-Like Peptide-1 Receptor Agonists) medicines, sold under brand names like Ozempic and Mounjaro, are increasingly used for weight loss and to prevent and/or treat diabetes. 

When global shortages affected GLP-1 RA stocks in local pharmacies, Anna started buying similar drugs directly from unregistered sellers. For around R1 650, a fancy-looking box with a three-month supply of injections is delivered to her in a small cooler box. “I knew then already that what I was buying was unregulated and potentially inferior or even dangerous,” she says, adding, “but I was finally starting to feel good about myself.”  

Apart from being aware that the unregulated drugs could potentially harm her, Anna says she found that the regulated products were often out of stock, expensive, and came with stigma from pharmacists who quizzed her on whether she deserved the products. “If I could have kept doing it the proper way, I would have, but there were just too many obstacles,” she says. 

Defining the problem  

Weight-loss medicines are only one of several types of health products that are frequently purchased outside of formal channels, according to the South African Health Products Regulatory Authority (SAHPRA).  

“Commonly affected products include painkillers, antibiotics, weight-loss and sexual enhancement products, skin-lightening products, and some chronic medicines,” Mokgadi Fafudi, SAHPRA’s manager of regulatory compliance, tells Spotlight. 

“Combating the threat of substandard and falsified medical products is one of the urgent global challenges of this decade,” says Faridun Nazriev, the external relations and communications officer at the World Health Organization (WHO) Country Office in South Africa. 

“Substandard products are those that do not meet quality standards and specifications, often due to poor manufacturing practices or inadequate quality control. Falsified medical products deliberately misrepresent their identity, composition or source”, according to the WHO. These products, it adds, are often created and distributed with the intent to deceive consumers for financial gain. 

Two other definitions should not be confused with these, cautions Dr Andy Gray, a senior lecturer in Pharmacology at UKZN and co-director of the WHO Collaborating Centre for Pharmaceutical Policy and Evidence-Based Practice. 

Compounded medicines are custom formulations that may be specific to a patient, but are generally not registered by SAHPRA.  

Generic medicines are those that have been tested and found to be as safe and effective as originator medicines, but are generally cheaper. Generic medicines on the market have been approved by SAHPRA and are not in any way substandard. 

Gray says the term counterfeit is no longer used by the WHO, because it refers specifically to breaches of intellectual property, like trademarks. 

Lack of data 

While the WHO estimates that 1 in 10 medicines in low-and middle-income countries are substandard or falsified, all regions are affected and have been seeing an increase, according to a 2024 report from the WHO’s Global Surveillance and Monitoring System. 

South Africa also appears to have rising rates. SAHPRA’s 2021/2022 annual report notes that 101 health product quality complaint reports were filed. In 2022/23, that figure nearly tripled to 297. 

Fafudi says that the organisation received 588 reports of possible non-compliance in the 2024/2025 year. She says that for the 2025/26 year, this number exceeds 570 cases, though this has not yet been published by SAHPRA.  

But such reports are likely only the tip of the iceberg. Gray laments that we don’t have the full picture of how big the problem of substandard and falsified medical products really is. 

This is partly because, by its very nature, the sale of substandard and falsified medicines is usually hidden. Fafudi says that these medicines are often sold through informal markets, unregulated outlets, online platforms, and cross-border smuggling networks.

Gray adds that these medications aren’t necessarily always sold through informal means. “They may be infiltrated into wholesalers or state medicine depots, and then distributed,” he says, “Or they may be sold directly to pharmacies or prescribers and then sold to patients.” 

A threat to patients 

As in Anna’s experience with GLP-1 RAs, there is often a demand for unregulated products because the properly regulated products can’t meet the public demand. 

Fentse Maseko, who works in the Department of Pharmacology and Pharmacy at Wits University, researched this issue in her Master’s thesis and advocates in the space. She notes that in many low- and middle-income countries, particularly in remote and underserved areas, limited access to medicines may force patients to seek treatment from informal markets. She adds that in South Africa, porous borders and rising costs also play a role. 

Whatever the reasons behind their proliferation, the risks to the healthcare system and individuals are multi-faceted.

“Substandard and falsified medicines are a serious threat to patient safety and public trust,” says Refiloe Mogale, the executive director for the Pharmaceutical Society of South Africa (PSSA). “These products can lead to treatment failure, harm, or even death.” 

Maseko warns that it can also add to the growing problem of antibiotic resistance if antibiotics are substandard. It can also strain the healthcare system when second or third-line treatments are needed for issues initially addressed with unregulated products, or caused by them.  

The role of the regulator 

The main body in South Africa responsible for regulating substandard and falsified medicines is SAHPRA. Fafudi explains that they conduct post-market surveillance and inspections, run a whistleblower reporting system, manage product recalls, and monitor illegal advertising and online sales.  

SAHPRA also works with specialised units in the South African Police Service as well as other stakeholders such as customs to enforce joint operations. Fafudi says such joint operations have been conducted on at least a monthly basis. 

There are also legal actions, including issuing warnings, seizing or destroying products and criminal prosecution. According to the Medicines and Related Substances Act 101 of 1965, fines or prison sentences not exceeding 10 years may be prescribed. 

The PSSA however charges that not enough is being done. “Key gaps are visible in insufficient regulatory capacity, weak border control, limited enforcement scale and the under-resourced National Action Plan,” Mogale says. “The system is overwhelmed by the speed and sophistication of the problem.” 

Reporting unregulated products 

The public can help address the problem of substandard and falsified medicines. SAHPRA advises buying only from licensed and authorised pharmacies and healthcare providers.

“Be cautious of unusually low prices, miracle cure claims, and poor packaging,” Fafudi warns. “Always check packaging, expiry dates, and consult healthcare professionals before use.” 

Suspicious products or sellers can be reported on the SAHPRA website. 

Jas Bhana, Chief Executive Officer of the Innovative Pharmaceutical Association of South Africa, adds that the public can also report suspicious products to the National Department of Health or their nearest pharmacy. “Combating this threat requires collective vigilance to safeguard every patient’s right to safe, quality, and effective medicines,” she says.  

This goes hand-in-hand with the need for consumers to know the dangers, Maseko explains. “While public education plays an important role in mitigating this risk, effective risk communication remains a challenge, particularly in communities with limited health literacy,” says Maseko. 

On a bigger scale, Nazriev explains that the WHO prioritises prevention, detection, and response as the main pillars of action. This includes local regulation as well as collaboration between countries.  

“Given the transnational nature of globalised medical product supply chains as well as criminal networks, collaborating across borders and sectors is essential to national, regional and global responses,” he says.  

Better regulation 

Gray acknowledges that there is a challenge in budgets and laboratory capacity, but even so he calls for more to be done. “SAHPRA needs to move from a largely reactive stance to a more proactive one, sampling medicines from the distribution chain and submitting them for checking, and then report to the public on their findings,” he suggests. 

The PSSA recommends implementing a national medicine registry with a track-and-trace system and stricter control of online medicine sales, including mandatory certification and monitoring. 

SAHPRA is already planning along some of these lines. “Future plans include strengthening supply chain traceability, enhancing detection systems, regulating online medicine sales, and increasing public awareness campaigns,” says Fafudi.  

Part of this direction comes from a National Action Plan (NAP), launched late last year by SAHPRA, with support from the National Department of Health and the WHO. 

“All actors within the supply chain, particularly at key pinch points in both the public and private sectors, must be equipped with the knowledge, skills, and equipment to identify and report suspicious products to SAHPRA,” Health Minister Dr Aaron Motsoaledi is reported to have said at the launch of the NAP. “All activities should mitigate the risk of substandard and falsified medical products. This includes increased vigilance at ports of entry, through to post-market surveillance of high-risk products, inspection of manufacturers, distributors and wholesalers.” 

Whether all this will be done, and what it will mean for people like Anna who knowingly choose to use unregulated medicines, remains to be seen. 

*Not her real name 

Republished from Spotlight under a Creative Commons licence.

Read the original article.

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Healthcare Is Facing a Moral Emergency, Argue Experts

On By ModernMedia

Time to restore kindness and compassion in healthcare to improve patient and staff well-being

Source: Pixabay CC0

Healthcare has lost its human, moral, and relational foundations and must reconnect with its core values to improve both patient and staff well-being, argue experts in The BMJ today.

Despite unprecedented advances in diagnostic precision, therapeutic capability, and computational power, a deep paradox exists, say authors Don Berwick, Maureen Bisognano and Bob Klaber. Patients increasingly feel processed rather than cared for, staff report moral distress and loss of meaning, and the workforce is haemorrhaging people at an unsustainable rate.

The core problem, they write, is that we have accumulated extraordinary technical power while quietly losing the human, moral, and relational foundations of care on which its effectiveness ultimately depends.

Several powerful forces have helped create this imbalance, they explain. For instance, in some countries the pursuit of profit has choked healthcare’s moral purpose, while across the globe modern healthcare has become an industrialised system that processes patients through standardised protocols in ways that risk disregarding the unique texture of individual lives.

This has happened through an imbalanced emphasis on a “rational” lexicon (focused on measurement, targets and efficiency) over a “relational” one (concerned with feelings, kindness and human connection).

Yet re-establishing the relational balance is not a sentimental or “soft” approach; it is vital for quality and safety, they argue.

They point to research on NHS culture and behaviour that found organisations where staff felt supported and valued had consistently lower patient death rates, while the Institute for Healthcare Improvement (IHI) framework shows that the conditions for increasing joy in work – clarity of purpose, psychological safety, and feeling that what matters to you is actually valued – are both achievable and measurable.

Kindness – linked empirically to better staff retention, higher teamworking scores, and improved patient outcomes – should also be repositioned at the business end of delivering high quality care, they add.

The “What matters to you?” movement, inspired by an article in the New England Journal of Medicine, exemplifies this shift, changing the clinical encounter from a diagnostic focus to a partnership based on the patient’s lived reality.

While the forces pulling healthcare away from its human dimension are structural and powerful, they are not irreversible, they say. Every ward round, clinical consultation, and leadership conversation is a small but powerful opportunity for all of us working in healthcare to balance relational practice with rational systems and processes.

The evidence is clear: patients do better and staff thrive when healthcare systems invest in joy, kindness, and compassionate leadership, they write. “We do not need to wait for system reform. We can begin now on our collective leadership challenge to reconnect healthcare with its mission and purpose.”

Source: The BMJ Group

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Constitutional Court Rules in Favour of Doctors’ Freedom to Practise

On By ModernMedia
Photo by Bill Oxford on Unsplash

On May 18, 2026 (yesterday), South Africa’s Constitutional Court unanimously upheld a 2024 ruling from the Pretoria High Court, declaring Sections 36 to 40 of the National Health Act 61 of 2003 (NHA) unconstitutional and invalid.

QuickNews previously reported on the High Court judgement, which you can read about here. The Certificate of Need (CON) was part of 2003’s NHA, which was never implemented. Despite it not being a part of the 2023 NHI Act, the removal of the Sections was seen as undermining a core pillar of NHI – centralised management.

NHA act rulingDownload

The case was brought by Solidarity Trade Union, the Hospital Association of South Africa (HASA).

It was argued that the CON unfairly constrained the rights of doctors to practise where they chose, and hospitals and other healthcare facilities would not be able to operate without one, nor for new facilities to open or even expansions to be made. The provisions, which aimed to promote equitable distribution of healthcare services, had not yet been implemented.

The Director-General of Health, who issued the CON, would have had exercised a “blunt instrument” to control private healthcare in the country, noted Judge Anthony Millar of the Pretoria High Court in his judgement.

The sections were found to be irrational and an unjustifiable limitation on the constitutional right (Section 22) to freely choose a trade, occupation, or profession. They granted overly broad discretionary powers without adequate safeguards. Finally, the court ruled that severing (removing) these sections entirely from the NHA was appropriate, with no need to refer them back to Parliament for fixing. The Health Minister and Director-General were ordered to pay costs.

Anton van der Bijl, Deputy Chief Executive of Solidarity, said: “The Certificate of Need was far more than merely an administrative instrument. It was an instrument of centralisation and state control.”

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Ethics Webinar: Withholding, Treating, Withdrawing and Palliating Patients

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EthiQal cordially invites you to an ethics webinar on Thursday, 16th April.

During this webinar, the HPCSA Booklet 7: Guidelines for the Withholding and Withdrawing of Treatment and HPCSA Booklet 17: Ethical Guidelines on Palliative Care will be explored from a South African legal and ethical practice perspective. The webinar will offer insights into the complexities of withholding, treating, withdrawing and palliating patients while focusing on offering ethical and compassionate care and support to both patients and their loved ones.

The audience will have an opportunity to listen and engage with clinical, legal and medical malpractice insurance subject matter experts. During the webinar, a range of learning opportunities will be offered, including short lectures, interactive case studies with a series of multiple choice questions, panel discussions, and audience Q&A.

Date: Thursday 16th April 2026

Time: 18h00 – 19h45

2 CPD Ethics Points

Speakers

Dr Shetil Nana

Dr Shetil Nana is a Paediatrician and Paediatric Critical Care Consultant with experience across the South African state and private healthcare sectors. Currently based at Mowbray Maternity Hospital, she works as a sessional consultant in the neonatal intensive care unit – where her clinical expertise is matched by a deep commitment to patient-centred advocacy.

Dr Hlombe Makuluma

Hlombe is a general medical practitioner with a Masters in Medical Law and Ethics. He is currently a PhD Candidate in Medical Law with the University of Pretoria.

Assoc Prof Zainab Mohamed

Associate Professor Zainab Mohamed is a Clinical and Radiation Oncologist in the Department of Radiation Oncology, Groote Schuur Hospital, and the University of Cape Town. She is the head of the clinical unit, runs the Lymphoma, Kaposi’s sarcoma and Thyroid cancer clinics and provides radiotherapy services to Clinical Haematology.

Dr Luyanda Mtukushe

Luyanda is a practicing advocate and a member of the Johannesburg Society of Advocates. He has 10 years’ experience as an Advocate and his areas of practice being medical related litigation, and general commercial litigation.

Amy Wolfe

Amy is a healthcare continuing professional development (CPD) professional with more than 15 years’ experience of building, delivering and evaluation programmes for South African healthcare professionals.

This webinar will focus on specialist practices. Administrative staff working in these practices are welcome to join the discussion.

Register here: https://webinar.ethiqal.co.za/

Categories : Ethics and LawTags :

EthiQal Launches Recognition Programme to Support Practitioners

On By ModernMedia

The newly launched, first of its kind, EthiQal Recognition Programme strives to acknowledge professional conduct that reflects a commitment to the delivery of excellent patient care and the reduction of medicolegal risk.

It is aimed at specialist clinicians in private practice and is based on a point system where defined activities qualify for set points that over time convert to premium refunds.

The Programme underpins EthiQal’s pledge to promoting high-quality healthcare, supporting practitioners in building successful, safe practices and managing their medicolegal risk, and aligning individual practitioners’ professional indemnity premiums with their unique insurance risk.

How the Programme works and which activities qualify for point collection are outlined in the Recognition Programme Benefit Guide, with the formal details of the Programme defined in the Terms and Conditions and Benefit Rules documents, which can all be viewed on the EthiQal website: https://ethiqal.co.za/

For more information about EthiQal, click here [https://ethiqal.co.za/contact/] complete the form, and an Advisor will call you back.

Existing EthiQal policyholders can register here:  https://f.insdi.com/ethiqal/ethiqal-reward-and-recognition-program/t?share=dcdb74b1-32a8-4f82-84dc-987066828e32

by completing the online enrolment form. Registration on the Programme is voluntary and requires policyholder enrolment and consent.

For questions about the Programme, contact your Financial Advisor or broker, or email:  recognition@ethiqal.co.za

Categories : Ethics and Law Expert OpinionTags :

Gauteng Department of Health’s Non-payment Crisis Threatens Suppliers and Healthcare Stability

On By ModernMedia
Photo by Towfiqu barbhuiya on Unsplash

The South African Medical Technology Industry Association (SAMED) is raising the alarm over the Gauteng Department of Health’s ongoing failure to meet its financial obligations to medical technology suppliers – a crisis that now threatens business survival, jobs, and the stability of healthcare delivery across the province. 

The Gauteng Health Department currently owes SAMED member companies more than R700 million. Despite fulfilling their contractual commitments and continuing to supply essential medical products and services, many companies have been forced to carry this debt burden for months without payment. To remain operational, suppliers are relying on costly loans and overdrafts simply to sustain cash flow and pay their employees. 

SAMED Chairperson, Scott de Oliveira, notes that a recent member survey revealed several companies are on the brink of closure, with job losses imminent – even as South Africa prepares to host the G20 Summit, a global event intended to showcase Johannesburg and the country’s economic potential. 

“As the upcoming G20 Summit demonstrates, our government is capable of decisive action and resource mobilisation when it chooses to,” says de Oliveira. “What is deeply concerning in the medtech payment crisis is the Gauteng Department’s lack of urgency to engage with us.”  

Despite repeated formal requests from SAMED to meet with senior Gauteng Department of Health officials – including the Chief Financial Officer, Head of Department, and hospital Chief Executive Officers – no meaningful engagement has taken place. Meetings are frequently missed, and correspondence has gone unanswered. 

“This reflects a worrying lack of accountability, urgency, and leadership from decision-makers,” de Oliveira emphasises. 

The consequences of this inaction are far-reaching. The mounting financial strain on suppliers threatens not only the sustainability of small- and medium-sized enterprises but also the continuity of international subsidiaries that have invested in South Africa and are vital to the delivery of healthcare services. 

“Disruptions in the medical supply chain place patients and healthcare professionals at risk,” warns de Oliveira. “Delays or interruptions in the supply of essential equipment, consumables, and support services could have devastating effects on hospitals across Gauteng.” 

Several SAMED members have indicated that, unless the issue is urgently resolved, they will be forced to suspend supply to the Department, a decision that would further endanger patient care. 

SAMED calls on provincial and national leadership to take immediate, decisive action to clear the payment backlog and to implement a transparent, sustainable payment framework that ensures future compliance and stability. 

“It is irrational for government to champion economic growth and job creation through initiatives such as the MEDTECH Master Plan and the G20 Summit, while simultaneously eroding existing businesses and employment through maladministration,” concludes de Oliveira. “This crisis must be addressed urgently – to protect patients, preserve healthcare delivery, and rebuild trust between the public sector and its suppliers.” 

SAMED urges the media, public, and stakeholders to bring attention to this issue and hold the Gauteng Department of Health accountable. Public awareness and pressure are essential to compel action and safeguard the integrity of South Africa’s healthcare system.

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Casting Caution to Calderbank

On By ModernMedia

By Lisa Swaine, Partner at Webber Wentzel

The Supreme Court of Appeal (SCA) handed down its judgment on 16 October 2025 in the case of Itokolle-Clinix Private Hospital (Pty) Ltd v MNT obo DORM (863/2024) [2025] ZASCA 153. This judgment should serve as a caution for defendants when faced with a Calderbank offer.

The plaintiff, in the High Court, acting in her personal capacity and on behalf of her daughter (D), proved liability on the part of both Itokolle-Clinix Private Hospital (the Hospital) and a specialist obstetrician and gynaecologist, Dr Kofi Ofori Amanfo (Dr Ofori). The claim arose from her daughter being born with cerebral palsy. Both the Hospital and Dr Ofori were found by the High Court to have been negligent and that their negligence was the cause of the harm suffered by D and the plaintiff. The Hospital and Dr Ofori were found jointly and severally liable for 100% of the plaintiff’s proven damages.

A Calderbank offer is a ‘without prejudice’ offer made by a plaintiff to a defendant to save costs, and to rely on such an offer, once judgment is granted in the plaintiff’s favour, in support of claiming indemnifying or ‘punitive’ costs.

Its name comes from the English Court of Appeal’s judgment in the case of Calderbank v Calderbank [1975] 3 All ER 333 (EWCA), where it was held that there was no reason, in principle, why informal offers made outside the formal court rules could not be relied on.

Calderbank offers are approved and applied in our courts.

The High Court awarded costs on the High Court scale as between party and party to the plaintiff. The plaintiff applied to the High Court to have the costs order reconsidered, as she made a Calderbank offer before trial, indicating a willingness to settle if the defendants admitted liability for 85% of her proven damages. The offer was rejected, and the Hospital made two unacceptable counteroffers. The plaintiff therefore applied for an order awarding the plaintiff a portion of her costs up to a certain date as between party and party and the remaining costs, including those of the reconsideration application, as between attorney and own client.  The High Court ordered the Hospital and Dr Ofori to pay these costs sought.

The Hospital appealed against the judgment of the High Court and against the reconsidered order for costs.

The appeal was dismissed.

Why was the plaintiff successful on the issue of costs?

A Calderbank offer made by a plaintiff to settle a matter is recognised in the same way as a formal offer made by a defendant to settle a matter in terms of the court rules. A defendant, faced with a Calderbank offer, who fails to act reasonably in rejecting the offer, is at risk of being liable to indemnify a plaintiff in respect of all legal costs incurred, or pay more than the much reduced and limited party and party costs, from the date of the Calderbank offer.

A successful Calderbank offer is, however, not an automatic entitlement to recover more costs than those ordinarily recoverable. The plaintiff made a Calderbank offer to the Hospital and Dr Ofori that was more generous to them than the order made by the High Court. To succeed in recovering the attorney-and-own client costs claimed, the plaintiff had to prove that the defendants unreasonably rejected her Calderbank offer.

The factors considered by a court when deciding whether a defendant’s conduct was unreasonable depend on the facts of each case, and a consistently applied starting point is the public interest. It is in the public interest not to waste public resources on litigation that could be avoided by settlement.

On appeal, the Hospital argued that it was reasonable to reject the Calderbank offer. It submitted that its counteroffers of 20% and 50% liability, respectively, were reasonable.

In finding that the conduct of the Hospital was unreasonable, the High Court pointed to the extent of the information available to the Hospital at the time the Calderbank offer was made that, in the circumstances, ought to have alerted the Hospital to the high risk it was taking in continuing with its defence of the case.

In deciding whether to award attorney-and-own client costs, the High Court considered the plaintiff’s financial position in comparison to the Hospital’s, noting that an order for anything less would result in the capital amount awarded as damages being significantly eroded by the portion of the costs borne by the plaintiff. The High Court concluded that the costs order sought by the plaintiff was justified because its purpose was to ‘indemnify’ her in respect of costs unjustly incurred because of the unreasonable rejection of the Calderbank offer.

On appeal, the High Court was found to have exercised its discretion judicially in making the reconsidered order for costs and, as a result, there was no basis upon which to interfere with the High Court’s discretion.

As the cost implications of prolonged litigation have become exorbitant, the risk of paying ‘punitive’ costs should be a strong motivator for a defendant to properly assess its case and the risks inherent in defending it to trial, and give serious consideration to a Calderbank offer made, before forcing a plaintiff into unnecessary or protracted litigation.

Categories : Ethics and Law IT in HealthcareTags :

POPIA Compliance for Health Data: Navigating Special Personal Information Requirements in Healthcare

On By ModernMedia

By Wendy Tembedza, Partner at Webber Wentzel


Health data is one of the most valuable assets in modern healthcare, and the Protection of Personal Information Act, 2013 (POPIA) places strict requirements on its use.

Stakeholders in the healthcare sector understand the value of data in ensuring appropriate treatment for patients. With the proliferation of technologies such as artificial intelligence, which enable healthcare practitioners to derive valuable insights from the data they hold, the importance of managing data in a manner that ensures compliance with data protection laws must remain front of mind in all data processing activities.

This obligation is particularly acute given the volumes of data that evolving technologies allow healthcare institutions to collect and utilise. Importantly, when these larger datasets include special personal information, the obligation to process such information lawfully becomes even more significant. This is because POPIA regulates the processing of special personal information (which includes health and sex life information) more closely than it does other forms of personal information.

The implications of POPIA’s strict regulation of processing health and sex life information means that, where a responsible party is considering collecting such data, an assessment must be made before collection to ensure that the intended processing activities will be lawful under POPIA. Conducting such an assessment prior to collection is integral to establishing a lawful basis for processing from the outset, as all handling of health and sex life information must remain lawful throughout the processing lifecycle, from collection and use to deletion and destruction.

POPIA establishes, as a starting point, a prohibition on processing health and sex life information unless a justification exists. One general exception is where the data subject has granted consent for such processing. It is important to note that consent is specifically defined under POPIA as an informed, voluntary expression of will. Importantly, consent must be specific and cannot be overly generalised. Any reliance on consent must therefore meet these definitional requirements. Ensuring compliance with these requirements is increasingly pertinent where data is used for purposes that differ from the reason for which it was initially collected.

POPIA provides additional exemptions for processing special personal information. For health information, POPIA permits processing by medical professionals, healthcare institutions or facilities, or social services, where such role players are providing healthcare services. POPIA also provides an exemption that applies to insurance companies, medical schemes, medical scheme administrators, and managed healthcare organisations in certain circumstances.

While POPIA creates these categories of exemptions, it is important to note that even where a role player falls within an exemption, this does not eliminate the obligation on a responsible party to comply with POPIA’s eight conditions for lawful processing. Any responsible party relying on an exemption must still ensure that processing activities are ultimately lawful and consistent with the standards of care contemplated under POPIA.

The use of automated means to make decisions about data subjects using their health and sex life information must also be carried out lawfully and in compliance with POPIA. A data subject cannot be subject to a decision that has legal consequences for them, or that otherwise affects them to a substantial degree, where such a decision is based solely on automated decision-making using their personal information, except in limited instances.

Notably, POPIA specifically identifies health as an example of a decision that could have legal consequences or otherwise affect a data subject substantially. This highlights the importance of assessing all data processing activities, especially in sectors like healthcare, where there is growing reliance on technology to make diagnostic or treatment-related decisions.

The Information Regulator has recognised the importance of properly regulating the processing of health and sex life information in recently published Draft Regulations relating to the processing of such data by certain responsible parties. The Information Regulator notes that the primary purpose of these Draft Regulations is to assist responsible parties in implementing POPIA correctly and to provide better transparency to data subjects regarding their information.

The scope of application of the Draft Regulations includes insurance companies, medical schemes, medical scheme administrators, managed healthcare organisations and pension funds.

The Information Regulator’s move to regulate the processing of health and sex life information more closely underscores the importance of ensuring that all such processing activities are undertaken with an increased measure of care. Organisations must therefore assess their processing activities routinely to ensure ongoing compliance with POPIA. This is particularly important as healthcare-related technologies continue to advance, creating new and innovative ways to use data in patient treatment.

Healthcare stakeholders must ensure that use of such technologies comply with POPIA’s requirements and meet the standards established under the Act.

Categories : Ethics and LawTags :

EthiQal Invites You to an Ethics Webinar

On By ModernMedia

Date: 20th November

Time: 18h00 to 19h45

Link: https://webinar.ethiqal.co.za/

During this webinar, attendees will review the HPCSA Booklet 10: General Ethical Guidelines for Good Practice in Telehealth where the pertinent South Africa laws and basic principles around ethical practice for patient consultations and the accompanying administration will be explored. The webinar will offer insights into different types of telehealth and ethical guidelines with specific focus on the quality, security, and safety of patient records.

The audience will have an opportunity to listen and engage with clinical, legal, medical malpractice insurance, cybersecurity, and telehealth subject matter experts. During the webinar, a range of learning opportunities will be offered including short lectures, interactive case studies with a series of multiple choices questions, panel discussions, and audience Q&A.

This webinar will focus on specialist practices. Administrative staff working in these practices are welcome to join the discussion.

Click here to register for the webinar