In April 2021, the Constitutional Court handed down a seminal judgment relating to the public health defence which will influence medical malpractice claims against the state across the country.

In Member of the Executive Council for Health, Gauteng Provincial Government v PN [2021] ZACC 6, the court considered whether an order finding the MEC liable “to pay to the plaintiff 100%… of her agreed or proven damages” precluded the MEC from compensating the plaintiff by providing treatment and services in the public sector in lieu of financial compensation.

The plaintiff had instituted proceedings against the MEC for a claim for damages arising out of medical malpractice by staff at a public sector hospital. The plaintiff’s child suffered cerebral palsy as a result of complications during birth. The MEC conceded liability for the claim and an order was agreed by the MEC and the plaintiff which provided that the MEC had “to pay” damages to the plaintiff. The parties then prepared to run the quantum portion of the trial (where the court would determine what damages the plaintiff had suffered). Prior the commencement of the quantum trial, the plaintiff sought an order to the effect that the MEC was not permitted to run the public health defence because the reference to “to pay” in the liability order required the MEC to make a single lump sum monetary payment in the amount determined by the court.

The Constitutional Court held that the plaintiff’s interpretation of “to pay” in the order is at odds with the right of access to the courts. It potentially undermines the right of everyone to have access to healthcare services and of every child to basic healthcare services. It also has the effect of limiting the power of the court when determining quantum to develop the common law to allow the public health defence in accordance with section 173 of the Constitution. The MEC’s interpretation of the wording of the liability order, and specifically the phrase “to pay”, better accords with the context and purpose of the court order and promotes constitutional values. The liability order must therefore be interpreted not to deal with the manner of payment.

This is a critical judgment which confirms that state parties may lead evidence to develop the common law in support of the public health defence and compensate a plaintiff in a manner other than by a once-off lump sum payment of money. One of the forms of compensation would be the tendering of treatment and services at public sector hospitals.