There are various legislative instruments that provide for the regulation of health care practitioners/providers, which includes providers of telemedicine as regulated by Health Practitioners Council of South Africa Guidelines on Good Practice in the Health Care Profession: General Ethical Guidelines for Good Practice in Telemedicine [Booklet 10] (“HPCSA”), Health Professions Act, and the National Health Act and other applicable legislative instruments. In addition to the above, any cross-border telemedicine providers who are serving South African patients must be registered with the relevant regulatory body in their own nations, as well as the HPCSA. The above regulatory bodies are responsible for regulating the conduct of health practitioners in South Africa and can impose liability on a medical practitioner for the relevant malpractice and/or misconduct in relation to the provision of medical services. The HPCSA does not require registration by the designer, owner, proprietor or operator of the software or telecommunications platform used by the healthcare practitioner to provide telemedicine services. Thus, there is a limitation on the liability of digital health apps as provided for by the HPCSA, but there can be various instances of liability conferred on a software provider in relation to a digital health app as provided for by the CPA, the MRSA and SAHPRA.
Furthermore, the CPA provides for the ability of a service provider who, in conjunction with the provision of such services applies, supplies, installs or provides access to any goods, shall be regarded as a supplier under the CPA. While in the context of physicians, the CPA seems to confer liability, such liability would have to be directly connected to the harm caused and such physician could not be held liable where the harm is wholly attributable to compliance with a defective party’s instruction in the provision of goods and in this case, services.
In summary, South African legislation provides for liability in various circumstances and such liability in the context of physicians, telemedicine providers and the producers of software that facilitates telemedicine services may vary on a case by case basis.