Health Professions Amendment Bill: consideration of NCOP amendments

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Health

13 August 2007
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Meeting Summary

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Meeting report

HEALTH PORTFOLIO COMMITTEE
14 August 2007
HEALTH PROFESSIONS AMENDMENT BILL: CONSIDERATION AND ADOPTION

Chairperson:
Mr L Ngculu (ANC)

Documents handed out:
Errors identified in Health Professions Amendment Bill [B10 D]

Relevant documents:

Health Professions Amendment Bill [B10B-2006] as of March 2007
Health Professions Amendment Bill [B10C-2006] as of 17 August 2007
Health Professions Amendment Bill [B10D-2006] as of 17 August 2007
Health Professions Amendment Bill [B10D-2006] as of 29 May 2007


Audio recording of meeting

SUMMARY
The National Department of Health briefed the Committee on the amendments the Select Committee had made to the proposed legislation. It also pointed out errors within the D version of the Amendment Bill. The Committee then proceeded to adopt the Bill with amendments. The Democratic Alliance members who were new to the Committee abstained from voting as they had wanted to return the matter to their caucus for consideration. This request was denied and the Chairperson ruled that the process could not be halted as their predecessor should have brought the DA members up to speed. The Committee, despite the DA members’ arguments for a debate in the House, would report that since the matter had been exhausted in an earlier debate, another would not be necessary. The Chairperson cautioned that should the new DA Members of the Committee continue attempting to delay processes, “harsh decisions” would have to be taken. He also added that the Committee “would not be held hostage by the DA”.

MINUTES
Chairperson’s opening remarks

The Chairperson’s apologised for the late start to the meeting. The venue had been double booked and as a result the technical equipment needed to record the proceedings had not been in place. He thanked the administrative staff for speedy resolution of the matter.

He then welcomed Ms Sandy Kalyan of the DA who had sat on the Committee before she joined the Portfolio Committee on Home Affairs. She had now returned to the Health committee. He also welcomed another new DA member of the Committee, Mr Mike Waters. Mr Waters was the DA spokesperson and Ms Kalyan his deputy. The Chairperson also welcomed Ms Batyi who had been unable to attend meetings due to ill health.


He explained that the Committee had passed the Health Professions A/B in March and had then referred to the Select Committee on Social Services for consideration. That Committee had made the amendments which were now reflected in the D-version of the legislation. The Portfolio Committee would that day consider the amendments the Select Committee had made.

Department briefing on further amendments to the
Health Professions Amendment Bill
The delegation from the National Department of Health (NDOH) comprised Ms Rose Mdlalose, Director: Human Resources, Adv M Motsapi, Director: Legal Services and the advisor to the Minister Mr R Green Thompson. Adv B Mkhize, CEO and Adv T Boikanyo represented the Health Professionals Council of South Africa (HPCSA). Ms Hilda Sangoni, Senior State Law Advisor was also present.

Adv Motsapi led the Committee through the amendments the Select Committee on Social Services had made to the proposed legislation and which were recorded in the C version. These pertained mainly to the search and seizure powers investigating officers may enjoy (Clause 40), the retention of Clause 44 allowing the Council and not the Minister to regulate unprofessional conduct and the inclusion of a definition for “health practitioner”. He then proceeded to talk the Committee through the corrections the Department made to the D-version.

Discussion
Ms S Kalyan (DA) asked Adv Motsapi to explain why the definition for “health practitioner” had to be inserted into clause 1.

The Chairperson pointed out that an explanation for the insertion had been given.

Ms Kalyan apologised saying that she had missed the explanation and requested Adv Motsapi to explain it again.

Adv Motsapi explained that the definition had to be included in order for there to be consistency between the amended legislation and the principal act. He added that the HPCSA addressed the conduct of all health professionals registered in terms of the Act.

Mr Waters said that Ms Kalyan and he had not been there when the original bill was discussed and they might thus ask obvious questions. He begged that the Committee be patient with them until they had found their feet.

The Chairperson agreed but added that the new Members could not expect the Committee to start the entire process again.

Mr Waters sought clarity on whether the investigating officers could be issued with search warrants. He had thought that only law enforcement officers could have search warrants. He asked if the proposed amendment would not be in contradiction with any other legislation.

The Chairperson reminded Mr Waters that the proposed legislation was not the first legislation providing for such powers to be given to investigating officers.

Adv Motsapi explained that the HPCSA was a statutory body and that investigating officers would only be able to investigate the conduct of a person appointed in terms of the principal act. Investigating officers would not have carte blanche powers allowing them to conduct criminal investigations for instance. He reiterated that the drafters had taken into consideration the Magajane Constitutional Court judgment as well as the existing criminal procedure legislation.

The insertion into clause 40 came as a result of. In the Magajane vs the Chairperson of the North West Gambling Board case, the Constitutional Court ruled that gambling board investigating officers could not be given carte blanche powers to investigate and enter premises as they wished. The legislation should instead provide that the investigating officers approach a magistrate or a judge for a search warrant. The current legislation provided that the investigator could enter premises with or without a warrant and could search and seize documents that may relate to a particular investigation.

The amendments stated that the investigating officer could only carry out and investigation in terms of the section and had to apply for a search warrant. The ambit of the responsibilities and powers of the investigating officer fell within the provisions of the act and within the provisions of the not the criminal procedure legislation.

The Chairperson added that the Committee worked from the premise that all Members knew what the functions of the HPCSA were. The Council’s powers included the investigation of the conduct of those health professionals registered in terms of the Act. It needed additional powers that would enable it to perform its function.

Ms M Matsemela (ANC) asked whether considering that the A/B had already been debated in the House, the extensive amendments would not result in procedural difficulties. The Chairperson noted her concern and recorded it for debate later.

Voting on Bill
After the delegation’s presentation the Chairperson announced that the Committee would adopt the A/B as amended by the Select Committee.

Mr Waters pointed out that the DA would reserve the right to vote as the DA Members still had to take the matter to their caucus for a mandate.

The Chairperson acknowledged the right to reserve their vote, but added that it was the first time in the life of the Committee that such a request had been made. New members had joined the Committee’s deliberations on other occasions, and had not requested to take matters to their caucuses again. The Committee would not allow for such a precedent to be set as it would mean that each time the DA changed members, the Committee would have to start its deliberations afresh. He added that if that was the way Mr Waters was going to start his life in the Committee he would find it “very difficult” to work with them.

Mr Waters responded that the move by the DA was not unprecedented.

The Chairperson pointed out that Ms Rajbally had not been part of the initial deliberations and had not made a similar request.

Mr Waters rejoined that perhaps Ms Rajbally had caucused with her predecessor.

The Chairperson advised that Mr Waters should refrain from making assumptions. The Committee would not grant the DA’s request. The process would continue and the Committee would adopt the proposed legislation irrespective of whether the DA agreed or not. He added that he hoped that Mr Waters would at some stage reflect upon what constructive contribution he would be making to the Committee he had just joined.

Ms Kalyan said that it was the first time that she and her colleague had seen the amendments. Normal practice was that Members took matters back to the caucus for discussion and then received a voting mandate.

The Chairperson pointed out that the DA member who had sat on the Committee before and who had been part of the process ought to have informed his replacements of the work that had been done so far.

Ms Kalyan said that he had not been aware of the amendments. The Chairperson pointed out that he had been part of the process.

Ms Kalyan responded that she had received his notes and that he had advised her.

The Chairperson said that as Chairperson he ruled that the A/B would be voted on that day. It had been debated as had been pointed out earlier, and the Committee would have to decide whether another debate would be needed. He added that the Committee could “not be held hostage by the DA” and said that he rejected the proposal completely.

Mr Waters interjected and said that the DA was not holding the Committee hostage.

The Chairperson merely responded that the process would continue irrespective of how the DA felt.

The Committee then proceeded to adopt the Bill clause by clause.

Mr Waters asked that the DA’s abstention should be noted. The Chairperson said that it would be noted “after the fact”.

After the meeting had been formally closed Mr Waters said that the DA would still take the matter to their caucus. He realised that the amendments were technical but he could not predict how the caucus would rule. They might find that there was still a need for a debate. The DA thus requested a debate, and should they change their mind, Ms Kalyan who was the whip and sat on the Programming Committee would relay that.

All other Members of the Committee agreed that a second debate would not be necessary.

Ms Kalyan said that the DA would like to debate the matter. The Chairperson asked what their reasons for requesting a debate were.

Ms Kalyan said that the proposed amendments were significant and that the DA would like the opportunity to express its views after they had discussed it with their caucus.

The Chairperson asked for greater clarity on what they thought the significant amendments were.

Ms Kalyan said that the inclusion of the investigating officer was quite significant.

The Chairperson pointed out that it was present in other pieces of legislation too.

Ms Kalyan said that there were also a number of other issues that her colleague who had previously sat in the Committee had raised both in the Committee as well as in the Debate. The DA would like the opportunity to reiterate those issues.

The Chairperson, to the amusement of other Members, declared that the Committee was “in big trouble”.

Ms Kalyan interrupted to point out that the A/B was scheduled for a 60-minute debate on 21 August.

The Chairperson repeated that the Committee was “in big, big, big trouble”. The DA had, as the Hansard records could prove, debated the matter and wanted now to revive a debate they could not sustain then. The DA’s behavior was placing the Committee “on a very slippery slope”. He said that it was not in the Committee’s nature to fight amongst each other, but warned that at some stage harsh decisions would have to be taken. He thought the suggestion to debate a matter that had already been sufficiently debated “very, very laughable”.

Ms Matsemela found it surprising that the DA now wanted a debate on something they were abstaining from. She did not think that there was a need to debate a matter that had been debated extensively and on which public hearings had been held. She did not understand why the DA was trying to “confuse” other parties. The Committee could vote on whether a debate would be necessary or not.

The Chairperson asked the legal advisers whether the legislation would be ready by the following Tuesday. The State Law Advisor confirmed that it would be ready by then.

Ms Kalyan said that she had the right to respond to the “unfortunate comments” the Chairperson had made. South Africa was a democracy and if the DA wished to express an opinion, the Chairperson should be unbiased. Referring to Ms Matsemela’s comments, Ms Kalyan said that she did not know what the Member was talking about: the DA did not want to “revoke” the debate but sought to revive it. There were certain points that her predecessor had made, that the DA would like to reiterate. She said that if Ms Matsemela were aware of parliamentary procedure she would know that the since the amendments had been introduced to the Committee that day, they had to be taken to the caucus. The DA could not vote on a matter that had not been taken to the caucus. She said that although ”technically” she had no objection to what had been proposed, she was sitting on the Committee not in her personal capacity but as a representative of the DA. She added that the Committee had to work in a collegial manner and that the Chairperson’s comments did not start them off on the right footing. If the Committee voted against a debate she would call for a declaration because “either way, we’re going to have it”.

Mr B Mashile (ANC) said that the Committee had agreed that there was no need for a debate. He was surprised that the DA called for a debate, considering that they had indicated that they still have not received a mandate from their caucus. To request a debate when they had no mandate frustrated the Committee’s work. He agreed that the Committee should vote on whether a debate was necessary or not.

Mr Waters repeated that the debate was on the programme and that Parliament was expecting it. He added that he did not know what the problem was.

The Chairperson commenting on the “infatuation” with democracy pointed out that the rules could not always suit everyone. If that were the case there would be anarchy and not democracy. Al democracies had rules. Similarly the Committee functioned according to a set of rules. He thought it interesting that Ms Kalyan said that she wanted to reiterate the issues her predecessor had raised. That meant that she did indeed intend to re-invoke a debate they could not win earlier. The Committee was of the view that there was no need for another debate. If the DA wanted to call for a declaration then that would be addressed in the House. The Committee would report the amendments of the NCOP as adopted and would note the abstentions of the DA. It would report that it saw no need for a debate.

The meeting was adjourned.



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