Tag: court ruling

Categories : Ethics and LawTags :

Carte Blanche “Gagging” Order Overturned

On By ModernMedia
Photo by Bill Oxford on Unsplash

A “gagging order” preventing Carte Blanche from broadcasting a programme about a Durban-based cardiologist accused of malpractice has been set aside.

Pietermaritzburg High Court Judge Siphokazi Jikela has ruled that the finalisation of the interdict, granted in early June by another judge, would “amount to an unjustified prior restraint and would undermine the essential role of the media in a democratic society”.

The matter came before Judge Jikela for determination on whether or not the interim order should be made final.

She has now dismissed the application and ordered cardiologist Dr Ntando Peaceman Duze to pay the costs.

Duze was accused by some of his patients of inserting stents unnecessarily, which resulted in them lodging complaints with the Health Professions Council of South Africa (HPCSA).

Carte Blanche interviewed them and got independent experts to corroborate their claims.

While Carte Blanche gave him multiple opportunities over two weeks to respond to questions, Duze turned to the courts, claiming “defamation” and preventing the airing of the segment. He wanted the interdict to be made final until the HPCSA had ruled on the complaints against him.

The matter was argued before Judge Jikela the following week. She handed down her ruling on Monday.

Read the judgment

Read GroundUp editorial: Judges should respect press freedom

Duze, in his initial application, also cited two other cardiologists as respondents but did not persist with his claims against them.

However, he said the complaints against him were instigated by them because of “professional jealousy”, a “conspiracy” and a “smear campaign”, because of the success of his practice at Westville Life Hospital.

He said he had elected not to respond to Carte Blanche because the questions were “defamatory” and sub judice as the issues were under consideration by the HPCSA.

Carte Blanche opposed the application.

Advocate Warren Shapiro argued that both the Constitutional Court and the Supreme Court of appeal had determined that a “prior restraint” was a drastic interference with freedom of expression, which was only granted in narrow circumstances.

Judge Jikela said that while Duze claimed the broadcast would infringe on his right to dignity and may cause reputational harm, she was mindful that “any restriction on media reporting warrants careful and cautious consideration”.

“Several defences may be raised in response to an allegation of defamation. In this matter, [Carte Blanche] sets out the defences that directly address the core grounds on which [Duze] has based his case.

“Notably they contend that the broadcast in question centres on the personal accounts of his former patients, which are supported by medical records and independent expert opinion. Duze himself states that he consults, on average, 50 patients a day and he treats nearly every heart patient at Westville Life Hospital.

“In these circumstances, there is a compelling public interest in the dissemination of information concerning the conduct of a medical professional whose actions may pose a risk to the health and safety of current and future patients,” Judge Jikela said.

Carte Blanche had also said the intended broadcast included comments made honestly and in good faith which fell within the ambit of protected fair comment.

“It is trite that media publications on matters of public interest enjoy protection, provided they are made reasonably, without malice, and after taking reasonable steps to verify the information prior to publication,” the judge said.

Judge Jikela said Duze’s right to protect his reputation and professional standing was not absolute and it did not trump Carte Blanche’s constitutionally protected right to freedom of expression which includes the freedom of the press.

“Importantly, the public also has a legitimate interest in being informed about matters that concern public health and potential risks to patient safety.”

She said Duze had only made “vague references” to pending hearings and investigations. Duze had to show a real and demonstrable risk of substantial prejudice “as opposed to a remote possibility”.

“The HPCSA is not a court of law. The sub judice rule does not apply automatically to its processes.

“I do not believe that the broadcast will improperly influence the panel of medical professionals tasked with adjudicating the complaints against him, particularly where those complaints are supported by scientific and clinical evidence.”

Turning to the issue of the balance of competing rights, Judge Jikela said Carte Blanche had sought external objective opinions and had given Duze the right to reply.

“Media reports are vital in ensuring transparency, accountability and the protection of the public, particularly in sectors as essential as health care,” she said.

Medical practitioners had a duty to act in the best interests of patients. Where there were breaches of these obligations, the public had a constitutionally protected right to be informed.

“While the right to dignity and reputation must be respected, it cannot be invoked to shield conduct that may endanger lives or compromise patient care,” Judge Jikela said.

She said prior restraint had a “chilling effect” on the right to freedom of expression.

If the broadcast was indeed unlawful or defamatory, Duze could claim damages from Carte Blanche.

“The inconvenience of pursuing a damages claim does not outweigh the importance of safeguarding freedom of expression, particularly where the applicant [Duze] has not demonstrated irreparable harm or the falsity of the statements,” she said.

Republished from GroundUp under a Creative Commons Attribution-NoDerivatives 4.0 International License.

Read the original article.

Categories : Ethics and Law Medical IndustryTags :

High Court Ruling Strikes Down Key Part of NHI Act

On By ModernMedia
Photo by Tingey Injury Law Firm on Unsplash

A key part of the National Health Insurance Act is the requirement of private healthcare facilities to obtain a Certificate of Need (CON) in order to practise. Now it, this component has been struck down by a Pretoria High Court judge. Judge Anthony Millar struck down the Act’s key section, saying that it was “akin to an attempt to indenture the private medical service in the service of the state”.

The case had been brought by the Solidarity Trade Union, the Alliance of South African Practitioner Associations, the South African Private Practitioner Forum, the Hospitals Association of South Africa (HASA) and a number of healthcare providers and owners of healthcare establishments.

Sections 36 to 40 of the NHI Act would introduce a Certificate of Need (CON) scheme, essentially tying down doctors to a specified geographical location, which would be the only location where they could render their services.

It is declared that sections 36 to 40 of the National Health Insurance Act 61 of 2003 are invalid in their entirety and are consequently severed from the Act.

Judge Anthony Millar’s ruling

Any new healthcare facility would have to apply for a CON, which would be valid for 20 years. Existing facilities would have two years’ grace period to apply. This would applicable to hospitals, clinics, pharmacies and even to private rooms set up within the home of the practitioner. Operating without one would be a criminal offence – punishable with a fine, five years in prison or both.

It had been argued that because the regulations for CON had not been promulgated, the applicants’ argument was “hypothetical” and not “crystallized”. In Tuesday’s ruling, Judge Millar cited previous rulings and the constitutionality of the matter was still worth testing.

The CON scheme was extensive, Judge Millar noted, and would impact not only healthcare practitioners who worked in healthcare facilities and their employees, but also “juristic persons“, ie corporations or other organisations that can be legally liable.

Read the judgment here

‘A blunt instrument’

In terms of its constitutionality, the applicants’ argument was that, “at least six constitutional rights are infringed. They say it tramples on their rights including where they want to reside, send their children to school and the communities they belong to.”

Judge Millar noted, would mean that setting up a hospital was a hefty investment of R500 million or so, and there was no provision any support. Taken together with the 20-year CON validity, would serve to discourage private investment and became a “blunt instrument” with which the Director-General of Health could control private healthcare in the country.

Even though this provision was ostensibly to serve many, this could not come at the cost of individual freedoms, among them Section 22 of the Constitution which provided for the freedom to choose an occupation within the rule of law.

“The scheme is silent on the extant rights of both the owners of private health establishments, private healthcare service providers and private healthcare workers. Such extant right include their integration and professional reputations in the communities which they presently serve together with the significant financial investments and commitments made by them to be able to render the services that they do.”

Since health establishments are purpose-built and hard to convert for other use, this constitutes a de facto deprivation, he wrote.

“It does not behove government in pursuing transformation, to trample upon the rights of some ostensibly for the benefit of the many.”

‘Effective indenture’ of private healthcare

While the legal teams for President Cyril Ramaphosa, the minister of health, Dr Aaron Motsoaledi, and the director-general of health, Dr Sandile Buthelezi, argued that the public healthcare sector was overburdened, Judge Millar replied that this amounted to the effective indenture of the private healthcare system.

Among other problems, contesting CON issuance was without recourse and by turning down a certificate the DG could essentially deprive the affected parties of income, as doing so would see them prosecuted under Section 40.

The ruling was welcomed by healthcare professional associations.

As reported in the Daily Maverick, Solidarity chief executive Dr Dirk Hermann said, “This judgment is a major blow to the total NHI [National Health Insurance] idea, as the principle of central management is a core pillar of the NHI Act itself. A more extensive consequence of this ruling with regard to the certificate of need is that parts of the NHI Act are now probably also illegal in principle.

“The NHI in its current format cannot be implemented as the essence of the NHI is central planning – and this has now been found unconstitutional.” 

In a statement, HASA said that it regretted that the matter had to come to court. “We would have preferred achieving the objective of a stronger health system through a negotiated and collaborative effort to increase the number of medical students and nurses in medical training facilities to address the healthcare system’s needs,” the association stated.