Employers are all too aware that section 23(2) of the Basic Conditions of Employment Act 75 of 1997 as amended (“the BCEA”) requires that in order for a medical certificate to be valid the following requirements are to be met, namely:-
- the medical certificate must be issued and signed by a medical practitioner or any other person certified to diagnose and treat patients; and
- the medical practitioner or other certified person must be registered with a professional council established by an Act of Parliament.
It is, however, apparent that uncertainty has arisen in respect of who is considered to be “a person certified to diagnose and treat patients” in order for a medical certificate to be considered valid for the purposes of section 23 of the BCEA.
The HPCSA AND AHPCSA
Fortunately, at least in as far as the Health Professions Council of South Africa (“the HPCSA”) and the Allied Health Professions Council of South Africa (“the AHPCSA”) are concerned, documents dealing with the ethical and professional codes or rules in respect of those medical practitioners have been published.
In respect of the HPCSA, the issue of medical certificates and reports are dealt with in Booklet 2 which is titled “Ethical and Professional Rules of the HPCSA”. The term “practitioner” is defined in this document as any person registered in terms of the Health Professions Act 55 of 1974 as amended. This would include doctors, dentists, psychiatrists and other categories.
The Code of Ethics of the AHPCSA specifically states that for the purposes of section 23 of the BCEA the issuance of a medical certificate is only permissible in respect of the professions of acupuncture, Ayurveda, Chinese medicine, chiropractry, homoeopathy, naturopathy, osteopathy, phytotherapy and unani-tibb.
It is therefore quite simple to determine who may issue a medical certificate in the above instances. The areas of uncertainty primarily pertain to nurses and traditional healers.
Nurses – Important Development
Due to this uncertainty, on 29 January 2020, the South African Nursing Council (“the SANC”) issued a position statement in respect of the issuing of sick notes by professional nurse practitioners. The purpose of the position statement is to “… address inconsistent practices with the issuing of sick notes by registered nurse practitioners and provide standardisation of practices in the provision of nursing services both in the public and in private practice”. The position statement was approved by the SANC during November 2019 and has been published on the website of the SANC. The term “sick note” rather than a medical certificate is used which is unfortunate.
The SANC states that the position statement is informed by relevant policy provisions, consultation with the relevant stakeholders, consideration of the competencies for nurse specialists as well as benchmarking with best practice but that it will be subject to change in accordance with the legislation applicable to the nursing practice. It is our view that the situation should be carefully monitored as changes could be made to the current position of the SANC in future.
Test- Medical Certificate
In terms of its current position, the SANC recognised the provisions of section 23(2) of the BCEA and stated that in the context of SANC “a person certified to diagnose and treat patients” as contemplated by the BCEA is a professional nurse who holds an additional qualification in clinical nursing science, health assessment, treatment and care and is registered as such by the SANC.
Limited To 2 Days’ Sick Leave
The above recognition, however, is subject to an important proviso as the SANC has recommended that a professional nurse practitioner should only issue a medical certificate for a period not exceeding a maximum of two (2) days. If the patient’s condition has not improved after this period the patient should be referred to a medical practitioner or to the next level of care.
The question which arises is for which illnesses may a professional nurse practitioner in the above circumstances, issue a medical certificate. The position statement broadly states as follows:-
“This nurse is capable of providing direct patient care for all types of illnesses and ailments, offering the first level of nursing care that patients receive and is competent to independently render appropriate and skilled primary care service” (Emphasis added).
We contacted the SANC in order to clarify the issue. The Professional Conduct Department of the SANC advised that the illnesses for which a professional nurse practitioner may issue a medical certificate are mainly limited to primary health care.
All other nurses and professional nurses who do not possess the additional qualifications are not entitled to issue and sign medical certificates. It will therefore become necessary for employers to identify the category of nurse who can issue a certificate and the credentials of the professional nurse practitioner should be stated in the certificate.
This development in respect of nurses issuing certificates must be incorporated into employers’ policies.
Whether a medical certificate issued and signed by a traditional healer is valid at this point is a contentious and sensitive issue which is largely due to the decision of the Supreme Court of Appeal in Kiviets Kroon Country Estate (Pty) ltd v Mmoledi & others  1 ALL SA 636 (SCA) (“the Kiviets Kroon case”).
Judgement of the SCA
In the Kiviets Kroon case the employee, Mmoledi, was charged with misconduct for disobeying an instruction to report for duty and being absent from work without permission and following a disciplinary process she was dismissed. The employee’s defence was that she had no option but to stay away from work because she had to attend a course to be trained as a traditional healer in response to a calling from her ancestors. The employee provided the company with two documents from her traditional healer. The first was a note requesting permission for the employee to be excused from work to complete a traditional healer’s course and the second was a certificate which confirmed that the employee had been under the care of the traditional healer and that she had been diagnosed with having “perminitions of ancestors”. Perminitions meaning “callings” or “visions”. The company argued that the certificate of the traditional healer should not be construed as being a sick note equivalent to a medical certificate from a medical practitioner for the purposes of section 23 of the BCEA.
The Supreme Court of Appeal held that Courts are not permitted to evaluate the acceptability, logic, consistency or comprehensibility of religious doctrine or cultural practice and are therefore only concerned with the sincerity of the adherent’s belief and whether it is being invoked for an ulterior purpose. The evidence presented by the employee was that she had a fearful apprehension of suffering serious misfortune if she failed to respond to the call of her ancestors and hence she refused to report for duty. This evidence went unchallenged by the company when given at the CCMA.
Cultural Sensitivity and Options
The Court, in summary, found that the company acted in haste when deciding to reject the certificate. The Court was of the view that the company should have interrogated the employee on the meaning of the certificate to at least understand its import. The Court stated that the company could have either accommodated her request by granting her sick leave or by exploring alternatives such as unpaid leave, allowing her to attend the course or another form of accommodation. In our view, the absence if granted should not constitute sick leave in terms of the BCEA as that would be legally erroneous.
The importance of this Judgment is not that it declared certificates issued by traditional healers as constituting valid medical certificates for the purposes of section 23 of the BCEA but rather that employers should seriously and sensitively consider the import of a traditional healer’s “certificate” by questioning the employee and considering options instead of merely rejecting it.
With reference to section 23 of the BCEA, while traditional health practitioners as defined in section 1 of the Traditional Health Practitioners Act 22 of 2007 (“the THPA”) fall within the category of “a person certified to diagnose and treat patients” the second requirement is that the traditional health practitioner must be registered with the Traditional Health Practitioners Council of South Africa in order for the traditional health practitioner to issue valid medical certificates. The categories for registration in terms of the THPA includes diviners, herbalists, traditional birth attendants and traditional surgeons.
While an interim Traditional Health Practitioners Council (“the THPC”) was established in 2014 it does not have a website and no register appears to have been published which contains a list of registered traditional health practitioners. This accordingly makes it difficult for an employer to determine whether a traditional health practitioner is registered or not with the THPC for the purpose of determining whether a medical certificate is valid in terms of section 23 of the BCEA. In these circumstances it would be for the employee in conjunction with the traditional health practitioner to present proof that he or she is registered.
If a registration certificate cannot be presented then the medical certificate issued is not valid in terms of the BCEA. However, in view of the Kiviets Kroon Judgment, employers should still exercise sensitivity and adopt an investigative approach when a note or certificate of a traditional healer is presented instead of summarily rejecting it.
We mention that in respect of employees in the Forestry Sector (Sectorial Determination 12) and Agricultural Sector (Sectorial Determination 13) medical certificates from both clinical nurse practitioners and traditional healers may be accepted by employers in those sectors. This is a deviation and may have arisen because of a misunderstanding.
Source: www.chmlegal.co.za | Written by Jessica Fox and Rod Harper of Cowan-Harper-Madikizela Attorneys