TRADITIONAL HEALING AND LAW
Everyone has a right to equality
Traditional Health Practitioners and their patients may not unfairly be discriminated against on the following grounds; race, gender, sex, pregnancy, religion, conscience, belief, culture, age, marital status, association, ethnicity among others Traditional healing should not experience any form of discrimination when compared with other health professions.
Everyone has a right to human dignity
Traditional Health Practitioners and their patients have to be treated with respect and dignity. Patients of THPs must not be subjected to any form of discrimination or unfair treatment.
Everyone has freedom to associate
Traditional Health Practitioners like all other individuals have a right and freedom to associate with an organisation / association of their choice without fear of intimidation.
Everyone has a right to privacy
Traditional Health Practitioners must respect their patients’ confidentiality and not disclose any medical information to third parties without their patients’ express consent and no one will have the right to search Traditional Medicine Clinics and have the right to seize their possession without a formal communication served.
Every Traditional Health Practitioner has a right to Assembly, demonstrate, picket and petition
Traditional Health Practitioners like other groups have a right to stage a peaceful picket, demonstration and submit a petition.
Everyone has the right to freedom of religion, belief and opinion
Traditional Health Practitioners and their patients may not be prevented from expressing or practising their beliefs, tradition and healing techniques, unless proven beyond reasonable doubt that such practice causes undue suffering or infringes on the human right of others.
Everyone has the right to freedom of trade, occupation and profession
Traditional Health Practitioners like other health professionals must be free to practice their profession.
Everyone has a right to Life
Traditional Health Practitioners are always expected to preserve and respect their patients’ life, as an absolute right.
Everyone has a right to fair labour practice
No employer may dismiss an employee for presenting an accredited medical certificate from a Traditional Health Practitioner.
Everyone has the right to have their environment protected
Traditional Health Practitioners have a right to gather and prepare medicines however, in the process of doing that do not contribute to environmental degradation but natural resource.
Everyone has a right access to health care services
Everyone should be able to make use of adequate, accessible, safe and beneficial health care assistance of their choice without any intimidation.
Everyone has a right to property
Traditional Health Practitioners may not be forced or compelled by anyone to give information related to their indigenous knowledge.
Everyone has a right to Freedom of Expression
All Traditional Health Practitioner’s including members of the THO to enjoy without fear of intimidation all rights as enshrined in the constitution of the Republic, in particular this right. THPs like any other profession have the right to speak out on anything that bothers them and their professional administration. No one has absolute right over freedom of expression, this mean the right to practice hate speech, sell wrong, misinformation news and ridicule members. Members have a right to speak out on poor service delivery, discrimination, hate, intolerances and any other forms of abuse exerted upon them by whether the private sector, civil society, state or institutions of the community and individuals.
In Sub-Saharan Africa, the ratio of traditional health practitioners to the general population is approximately 1:500, while western doctors have a 1:40 000 ratio to the rest of the population. Traditional traditional health practitioner thus have a crucial role to play in building health systems and strengthening and supporting national responses to HIV & AIDS. Description: In 2007, the South African Parliament has considered passing a Traditional Health Practitioner’s Act. In view of this development, this document will consider a number of pertinent issues in traditional healing and from a human rights perspective. While the Act supports in principle the role we play in health care delivery, THO would like to see its members maintaining a certain level of good ethic and conduct when handling patients and traditional medicine related matters. To support this THO, has established a Code of Ethics and Conduct policy.
Lessons learnt: due to decades of colonialism, cultural imperialism and the power of the multi-national pharmaceutical industry, traditional health practitioners and traditional medicine have been marginalised and our value to communities underplayed. There is therefore a need for urgent investment and support of traditional health practitioners and traditional medicine – not only by government, but also by civil society and the private sector. THO will ensure that all its members uphold human rights principles and framework in all their dealings within this profession.
In the country, Traditional Health Practitioners are already a trusted source of health information and treatment. Given appropriate skills and means, they are well placed to play a bigger role in combating Africa’s major diseases, THO in partnership with the Traditional Health Practitioners’ Council will ensure that the Purpose of the Act is fulfilled.
The Act begins by setting out its purpose, defining its ambit, and providing for the manner in which it is to be interpreted. Each of these topics is of importance to an overall understanding of the Act.
Purpose of the Act (Section 2)
The purpose of the Act is to advance social justice and economic development by fulfilling its primary objects, which are:
• establish the Interim Traditional Health Practitioners Council of South Africa;
• provide for the registration, training and practices of traditional health practitioners; and
• serve and protect the interests of members of the public who use the services of traditional health practitioners.
Application of the Act (Section 3)
The Act applies to
• Traditional health practice in the Republic; and
• Traditional health practitioners and students engaged in or learning traditional health practice in the Republic.
Traditional Health Practitioners are defined to mean any person who is registered under this Act and practising in the Republic. This person should represent either of the following categories; herbalist (inyanga / igedla), traditional birth attendant (umbelethisi), traditional surgeon (ingcibi), diviner (isangoma). This Act does not, however, apply to Holy spiritualist faith healing, who are persons who uses prayers as treatment for ailments and who do not use traditional medicine.
Application for registration to practice (Section 21)
No THP or Student may be allowed to practice in the Republic unless registered in terms of this Act. All applicants will be expected to attach the following documents to their application to the registrar:
proof that the applicant is a South African citizen;
character references by people not related to the applicant;
proof of the applicant’s qualifications;
the prescribed registration fee;
any further information relating to the application that the council may consider necessary.
Once the registrar is satisfied that the information and documentation submitted in support of an application for registration meet the requirements of this Act and upon receipt of the prescribed registration fee, the register will issue a registration certificate authorising the applicant to practice as a THP within the Republic. Should this application not meet the required standard then membership may be refused or referred to the Council for a decision
Will patients treated by THPs qualify for medical aid?
Formal legal recognition of the practice of traditional medicine has a number of benefits for practitioners and their patients. In terms of the Medical Schemes Act, schemes may now have to be transformed to include visits to THPs. Since TH Practice has been made law, medical schemes can choose either to register their members or not, so that they can qualify for medical aid payout.
Writing out medical certificate or sick notes
According to the THP Act all practitioners who are legally practising in this country will have the right to give out medical certificates or sick notes. However, if an employer suspects that a traditional health practitioner has fraudulently or dishonestly issued a medical certificate, that employer will be able to lay a complaint with the Interim Traditional Health Practitioner’s Council. The Council will be legally obliged to investigate the complaint and take the appropriate disciplinary action against the THP concerned. Before this Act this was not possible, the same could be done by an employee whose employer refuses to admit back to work on the basis of the origin of the sick note. There was no one to complain to except perhaps the THO alone. The other interesting issue is that the employer will have a mechanism to question the skill and knowledge of the THP who issued the medical certificate. The BCEA states that a medical certificate must be issued and signed by a medical practitioner or any other person who is certified to diagnose and treat patients and who is registered with a professional council established by an Act of parliament.
It is clear that section 23(2) now includes traditional health practitioners.
Chapter 1(s) (1)
This is one of the most important sections of the Act as it clarifies the meaning of the word used in a particular context, unless the context indicates otherwise
What will be the future of organisations / associations?
There are currently over 200 traditional health practitioner organisations or associations in the Republic. Depending on the strength and registration criteria some of these range from 10 – 1000s of members, with some just regionally, provincially and/ or nationally based. Some of these associations collect monies from membership without giving them properly deserving products and monies charged by these range from R70 – 500 payable upon registration. Associations of THPs will continue to exist even if the Council is instituted because the two institutions will have different roles and responsibilities. The best way to illustrate their different roles is to draw a comparison between these associations and the South African Medical Association on the one hand, and a comparison between the Interim Traditional Health Practitioners Council and the Health Professions Council on the other hand. There can be many SAMAs. This will enable people to exercise their right and freedom of association. There can be many Traditional Health Practitioner associations such as the THO. Membership of such associations is voluntary. Practitioners can choose whether or not to join.
Fees charged by registered persons (section 42)
All registered practitioners must before providing any health service inform their patients to whom the services will be rendered, of the fee which he or she intends to charge for that particular service.
Payment of annual fees (Section 50)
No organisation or association is allowed to anticipate or inform its members about monies that could be charged as registration or membership fees according to this law unless the Minister says so on recommendation of the Council (this is a national body that will be formed by the Minister through the THP Act regulations).
Transitional provisions (Section 51)
No one may take legal steps or institute disciplinary action against you for engaging in traditional health practice during the period of one year following the date of commencement of this Act.