The CPA and Your Protection From Harm in Medical Matters

As we all know the medical field is one of the most regulated industries. This is for obvious reasons to ensure we take the correct medication or procedure. What is interesting is that the major pieces of legislation (the Medical Schemes Act and the Medical Related Substances Act) have, as part of their main objectives, the protection of the consumer. The CPA (Consumer Protection Act) is all about protecting the rights of the consumer and a transaction within the ambit of medical law will clearly fall within the ambit of a transaction covered by the CPA. So which one is paramount? Your rights – getting stronger In terms of the principles of how to determine which piece of legislation is paramount if the laws conflict, there are two general principles:

       
  1. Whichever has stronger rights will trump the other legislation. That the CPA puts the onus on the health care industry as opposed to the claimant is a big plus for the CPA. Under current medical legislation, the consumer must prove the health care industry is at fault – the CPA reverses that in your favour.
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  3. New legislation normally takes precedence over older legislation. As the CPA came into effect in 2011 and the health care legislation was promulgated in 1998 and 1965, this would seem to give CPA a head start.

For example…… One good example where the laws may conflict is in regard to those leaflets included when you buy any scheduled medicine. They give the ingredients in your medication, side effects, contra indications etc. This is never easy to read or understand and would thus seem contrary to the CPA, which is specific that such leaflets must be in plain language and easy to understand. Obviously, there are other factors to take into account and complexities which will probably be decided by the courts. One or other statutory bodies (on either the medical or CPA side) may apply to the Ministry of Trade and Industry for their regulations to be paramount. Where people may prefer CPA is in the grey areas where medical legislation is not so pervasive and clear cut, such as medical devices. In summary, the consumer enjoys substantial rights and protection under the umbrella of medical matters and it appears that the CPA will enhance these rights. It will be interesting to monitor how events will unfold over the next several years. © DotNews, 2005-2012. This newsletter is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

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