IN THIS ISSUE - Cliffe Dekker Hofmeyr
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IN THIS ISSUE
Nurses: A matter of life and death
Today, on International Nurses Day, we honour the
invaluable resource that our nurses are. We also reflect
on the challenges faced by the South African nursing
sector, as highlighted in a recent judgment of the
HEALTHCARE & KwaZulu-Natal Division of the High Court ((9148/2021P)
[2022] ZAKZPHC 7).
PHARMACEUTICALS
FOR MORE
ALERT INSIGHT INTO
OUR EXPERTISE
AND SERVICES
12 MAY 2022HEALTHCARE &
PHARMACEUTICALS
ALERT
The context within which HASA
Nurses: A matter of The opening paragraph of the
judgment aptly sets the scene:
The issuing of “letters of support”
is a pre-requisite for accreditation
sought accreditation for its members
life and death “By virtue of their training and
as a nursing education institution.
to train new nurses was detailed in its
application as follows:
Put differently, the South African
sense of caring, nurses occupy the
Today, on International Nurses Day, Nursing Council cannot consider an • KwaZulu-Natal and South Africa
single most important component
we honour the invaluable resource application for accreditation without a has an aging nursing population,
in any healthcare system in the
that our nurses are. We also reflect signed letter of support. pointing to a looming healthcare
world. It goes without saying that
on the challenges faced by the crisis. We require urgent steps to
they are the frontline workers, The Department had informed HASA
South African nursing sector, as train and retain nurses.
the everyday heroes who stand that no letters of support would
highlighted in a recent judgment of between life and death. Apart be issued to any private nursing • No undergraduate or specialised
the KwaZulu-Natal Division of the from caring for patients and education institution for three years. nurses have been trained in
High Court ((9148/2021P) [2022] helping them to cope with their The verbally communicated reason KwaZulu-Natal since 2019.
ZAKZPHC 7). illnesses, nurses have always for the decision was that there was
• The pandemic highlighted the dire
been at the forefront of change a surfeit of existing qualified nurses
need for more nurses to be trained
in healthcare and public health. available who should be employed
and placed. On the frontline
But as this application shows, their instead of training new nurses.
of the national response to
importance seems to be lost on
HASA brought the application to COVID-19, many nurses lost their
the authorities in charge of public
review and set aside the alleged failure lives, and many are experiencing
health in this province.”
or refusal to issue the pre-requisite work-related stress and burnout.
BACKGROUND letters of support to HASA members
The court found that no evidence
This case involved an application that had registered private nursing
was provided by the Department to
brought by the Hospital Association of institutions in terms of the relevant
support an alleged nursing surplus.
South Africa (HASA) against the Head regulatory regime.
Ultimately, the court found that the
of Department of the KwaZulu-Natal NURSE SHORTAGES
Department of Health (Department)
and others.
HEALTHCARE & PHARMACEUTICALS ALERT | 2HEALTHCARE &
PHARMACEUTICALS
ALERT
Nurses: A matter Department had failed to address
critical issues raised by HASA
aside the failure and/or refusal to issue
letters of support to HASA’s members
of life and death regarding the looming crisis of the and substituted it with an order
CONTINUED shortage of nurses in KwaZulu-Natal directing the Department to issue
and the strain of an aging nursing the letters.
population, exacerbated by CONCLUSION
COVID-19. Whilst the Department
had complained about financial According to the 2030 Human
constraints and a lack of resources Resources for Healthy Strategy, Cliffe Dekker Hofmeyr
to train and place nurses, the court conservatively, over 16,000 additional
confirmed that these issues had no professional nurses are needed across
bearing on the matter as HASA had South Africa’s provinces by 2025.
confirmed that its members would To avert a shortage crisis, systemic
train the nurses at its expense and investment is needed in the education
absorb them into its structures. and training of nurses.
The court emphasised that, without Given the critical role played by nurses
the letters of support, HASA members in the delivery of healthcare, fixing our
will never be able to train nurses country’s shortage of nurses is literally
in various disciplines, which may a matter of life and death.
impact the ability to provide access SUSAN MEYER AND
to healthcare services. The court THANDO HADEBE
found such action to be unreasonable
and a limitation on the public’s right
to access healthcare services in the
province, in direct contravention of
the constitutional right to healthcare.
The court’s order reviewed and set
HEALTHCARE & PHARMACEUTICALS ALERT | 3OUR TEAM
For more information about our Healthcare & Pharmaceuticals sector and services in South Africa and Kenya, please contact:
Susan Meyer Tim Fletcher Aadil Patel
Sector Head Chairperson Practice Head
Healthcare & Pharmaceuticals Practice Head Director
Director Director Employment
Competition Dispute Resolution T +27 (0)11 562 1107
T +27 (0)21 481 6469 T +27 (0)11 562 1061 E aadil.patel@cdhlegal.com
E susan.meyer@cdhlegal.com E tim.fletcher@cdhlegal.com
Lucinde Rhoodie
Sammy Ndolo Lara Granville Director
Managing Partner | Kenya Director Dispute Resolution
T +254 731 086 649 Competition T +27 (0)21 405 6080
+254 204 409 918 T +27 (0)11 562 1720 E lucinde.rhoodie@cdhlegal.com
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E sammy.ndolo@cdhlegal.com Roxanna Valayathum
Quintin Honey Director
Emil Brincker Director Corporate & Commercial
Practice Head Corporate & Commercial T +27 (0)11 562 1122
Director T +27 (0)11 562 1166 E roxanna.valayathum@cdhlegal.com
Tax & Exchange Control E quintin.honey@cdhlegal.com
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E emil.brincker@cdhlegal.com Imraan Mahomed Partner | Kenya
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T +27 (0)11 562 1432 E preeta.bhagattjee@cdhlegal.com
E etta.chang@cdhlegal.comBBBEE STATUS: LEVEL ONE CONTRIBUTOR Our BBBEE verification is one of several components of our transformation strategy and we continue to seek ways of improving it in a meaningful manner. PLEASE NOTE This information is published for general information purposes and is not intended to constitute legal advice. Specialist legal advice should always be sought in relation to any particular situation. Cliffe Dekker Hofmeyr will accept no responsibility for any actions taken or not taken on the basis of this publication. JOHANNESBURG 1 Protea Place, Sandton, Johannesburg, 2196. Private Bag X40, Benmore, 2010, South Africa. Dx 154 Randburg and Dx 42 Johannesburg. T +27 (0)11 562 1000 F +27 (0)11 562 1111 E jhb@cdhlegal.com CAPE TOWN 11 Buitengracht Street, Cape Town, 8001. PO Box 695, Cape Town, 8000, South Africa. Dx 5 Cape Town. T +27 (0)21 481 6300 F +27 (0)21 481 6388 E ctn@cdhlegal.com NAIROBI Merchant Square, 3rd floor, Block D, Riverside Drive, Nairobi, Kenya. P.O. Box 22602-00505, Nairobi, Kenya. T +254 731 086 649 | +254 204 409 918 | +254 710 560 114 E cdhkenya@cdhlegal.com STELLENBOSCH 14 Louw Street, Stellenbosch Central, Stellenbosch, 7600. T +27 (0)21 481 6400 E cdhstellenbosch@cdhlegal.com ©2022 11113/MAY CLIFFE DEKKER HOFMEYR | cliffedekkerhofmeyr.com
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