It is our opinion that an online consultation with a registered medical practitioner and the issuing of an electronic medical certificate booking the employee off work should generally be accepted as legitimate and equivalent to an in-person medical consultation and certificate in South Africa.
The key points are:
1. The Electronic Communications and Transactions Act 25 of 2002 gives legal recognition to data messages (which would include an electronic medical certificate). Section 12 states that a requirement in law that a document must be in writing is met if the document is in the form of a data message and is accessible for subsequent reference. Section 13 deals with electronic signatures.
2. The Basic Conditions of Employment Act in section 23 requires a medical certificate to be issued and signed by a medical practitioner in order for paid sick leave to be granted. It does not specify that the consultation must be in person or that the certificate cannot be electronic. As long as the online consultation is with a properly registered medical practitioner, it should meet this requirement.
3. The Health Professions Act Rules relating to the registration of medical practitioners do not appear to prohibit online consultations and issuing of electronic certificates, as long as the normal professional and ethical obligations are adhered to in the online environment. Proper patient assessment, recordkeeping and confidentiality would still be required.
4. There could be some situations where an online consultation is not appropriate if a physical examination is clinically necessary to properly diagnose the patient's condition and determine if sick leave is warranted. The medical practitioner would need to exercise their professional judgment.
5. Sick notes obtained via online consultation could raise concerns about abuse, so some safeguards and guidelines may be advisable, but in general, where a proper clinical assessment is conducted they should be treated as legitimate.
In conclusion, while an online medical consultation and electronic certificate is a fairly new development, the existing legal framework in South Africa allows for it as long as the normal professional and ethical requirements that apply to in-person consultations are met. Employers should therefore generally accept legitimate electronic sick notes issued by registered practitioners after a proper online clinical evaluation. Clearer guidelines for the online environment may be helpful to address any concerns.
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