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SOCIAL SERVICES SELECT COMMITTEE
19 June 2007
TRADITIONAL HEALTH PRACTITIONERS’ BILL & CHOICE ON TERMINATION OF PREGNANCY (CTOP) AMENDMENT BILL: BRIEFINGS BY THE DEPARTMENT OF HEALTH
Chairperson: Ms J Masilo (ANC)
Documents handed out:
Traditional Health Practitioners Bill [B20-2007]
Choice on Termination of Pregnancy Amendment Bill [B21-2007]
Choice on Termination of Pregnancy Amendment Act No. 38 of 2004
Traditional Health Practitioners’ Act No. 35 of 2004
Department of Health presentation: Traditional Health Practitioners’ Act No. 35 of 2004
Department of Health presentation: Choice on Termination of Pregnancy (CTOP) Amendment Bill
Executive Summary of the Constitutional Court ruling
Audio Recording of the meeting
The Department of Health briefed the Committee on the Traditional Health Practitioner's Act and the Choice on Termination of Pregnancy Amendment Act. Both had been declared invalid by a recent Constitutional Court ruling in 2006 on the grounds that insufficient public participation had taken place. The Traditional Health Practitioners' Act declaration of invalidity was supended for a period of eighteen months. The Department had halted the implementation of the Act, in particular the establisment of the Interim Traditional Health Practitioner's Council. The provinces were carrying out further investigations and public participation. In the meantime the Traditional Health Practitioners’ Bill had been prepared to fill gaps in the original legislation and to set out guidelines for the constituting of a Council aimed at regulating the activities of traditional health practitioners in South Africa. The only amendment that was intended was to empower the Minister to constitute the Interim Council. It was noted that the ruling of the Constitutional Court in this matter was based on the lack of full public participation, and not on objections to the content of the Act. Nominations for the Interim Council had already been received and premises had already been identified at the time that the Constitutional Court halted all activities. There was uncertainty as to whether these nominations were still valid.The Traditional Health Practitioners’ Bill made provision for specific norms and standards to be adhered to by those wishing to practise or study traditional healing.
Questions by Members related to clarification of the processes, the application of the Act to non-South Africans, sanctions and further details of the court ruling. Members indicated that they could not assume that no new evidence would be presented that would lead to further amendments of the Bill. It was noted that the Department was giving full assistance to provinces, and that the Committee could deal with the public hearings process during the first week of August 2007. The Bill had to be considered by both Houses by February 2008.
The Choice on Termination of Pregnancy Amendment Bill sought to amend specific provisions of the Choice of Termination of Pregnancy Act. It provided for new definitions, added a registered nurse who had undergone specific training, and also added a registered nurse with training to the list of those to be consulted in regard to terminations after twenty weeks of pregnancy. Further changes were made for approval of facilities by the MEC subject to fulfilling of ten requirements, to avoid the cumbersome process of Ministerial approval. The MEC could make regulations in consultation with the Minister. Directors General previously had to receive information and this could now be made to Heads of Department. The Minister could intervene when applications within provinces were not being properly processed. There were changes in regard to the offences and sanctions. The Bill provided that it would be an offence to allow termination of pregnancy at a facility that was not approved, or for a person in charge to allow access for such service. Questions by Members related to the concern that there were several operators offering this service in the newspapers, that the access would be limited to wealthy women, and that there might not be records or reasons for the termination. The point was made that women could go for regular and multiple terminations. The Chairperson noted that these issues would need to be raised at public hearings, and the need for evidence of any assumptions was needed. Women must be at the centre of the debate. Further questions related to the national health price reference list,monitoring and scrutiny, record keeping and the circumstances in which terminations would be allowed.
The Committee made a commitment to increased focus on monitoring and inspection of facilities.
Traditional Health Practitioners’ Act No. 35 of 2004 (the Act) and Traditional Health Practitioners Bill: Department of Health (DOH) briefing
Ms Rose Mdlalose, Director of Human Resources Development, Department of Health, briefed the Committee on the Traditional Health Practitioners Bill. She stated that this legislation was intended to regulate the activities of Traditional Health Practitioners in South Africa. After public hearings in 1988, the Portfolio Committee on Health and the Select Committee in the NCOP recommended that traditional healers receive legal recognition, that an Interim Council be set up as a regulatory body, and that a forum be set up prior to the formation of the Interim Council. The Interim Council was to report back to Parliament within three years, after which a permanent Council would be constituted. The proposed categories of healers to be overseen by the Council would include herbalists, diviners, traditional birth attendants and traditional surgeons. Faith healers would be excluded because they were not traditional in nature and training and accreditation would present problems.
It was proposed that the functions of the Interim Council would be the registration of traditional healers, promotion of training, research and professionalism in the sector, development of an ethical code of conduct, setting up of norms and standards, facilitation of co-operation with medical professionals and the government, research and creation of a database, and the regulation of anything incidental to traditional healing practice.
Ms Mdlalose outlined the consultative process that had been implemented by the Department of Health at the time. The first workshop was held in 1999 in Pretoria. All provinces were represented by four traditional healers each. Four Health Professional Councils attended and also committed themselves to sharing information that would assist with the establishment of the Traditional Healers’ Council. The Department of Health conducted road shows and had received input from ten organisations.The Bill was passed in Parliament in November 2004 and signed by the President in February 2005.
On 17 August 2006 the Constitutional Court handed down judgement in an application by Doctors for Life (DFL), based on the argument that there was insufficient public involvement in the passing of four Acts, of which this was one. The Traditional Health Practitioners’ Act was declared invalid, but the Constitutional Court suspended the order of invalidity for an eighteen- month period for further consultative processes to take place.
Ms Mdlalose said that the Department of Health had to stop all its activities with regard to implementation of the Act, and that these basically related to the establishment of the Interim Traditioanl Health Practitionerss Council and the nomination process. The regulations relating to appoinments by the Minister had been developed and published on 21 December 2005. There was uncertainty as to whether the nominations already made were still valid.
Ms Mdlalose provided the headings of the five chapters contained in the new Bill. Chapter 1 contained the definitions and purpose of the legislation. Chapter 2 concerned the establishment and governance of the Council, Chapter 3 provided for its registrar, staff and registration procedures, Chapter 4 for disciplinary enquiries and investigations, and Chapter 5 for supplementary provisions.
The Interim Council would consist of 22 members appointed by the Minister. Appointments would be made in the following manner: a traditional health practitioner as Chairperson, a Vice-Chairperson, one traditional heath practitioner from each province, one employee from the Department of Health, a legal practitioner, a medical practitioner, a pharmacist, three community representatives and one representative from each of the four categories of traditional health practitioners. The legislation would apply to traditional health practitioners and students of traditional health practice in the Republic of South Africa.
Mr B Tolo (ANC) asked for additional information on the progress that had been made when the Constitutional Court judgement was handed down.
Ms Mdlalose replied that most of the groundwork had already been done. The nomination process had been started and office premises had been located.
Mr D Mkono (ANC) asked how the Minister could make recommendations without the Interim Council having been established.
Mr M Motsapi, Legal Services, Department of Health, said that this was one loophole the Department wanted Parliament to deal with. The issue of constituting the Council and the recommendations that had to be made by the Minister presented a chicken-and-egg situation. Any recommendations made by the Minister would only be valid after consultation with the Council, but the Council had not yet been formed. The Department wanted a clause that exempted the Minister from consultation with the Council, and empowered the Minister to set up the Interim Council.
Mr Mkono added that the Committee needed to ensure that people nominated prior to the Constitutional Court ruling were still practising.
Mr Tolo asked what would happen if foreigners wanted to practise as traditional healers in South Africa.
Ms Mdlalose said that the Act was only binding on South African citizens, and that it was likely that South African practitioners would not understand the culture of a foreign traditional healer. The Interim Council would deal with the issue of foreigners who wanted to ply their trade in the country.
Mr Motsapi added that there were accreditation factors that had to be taken into account in respect of foreigners. The Interim Council would assist with accreditation issues.
Mr Mkono asked what the procedure would be when a traditional health practitioner contravened the law.
Mr Motsapi replied that Chapter Five set out the various sanctions that could be implemented when the law was breached. There was emphasis that the activities of traditional health practitioners would be regulated and that certain norms and standards had to be complied with in order to protect the citizens of South Africa.
The Chairperson asked whether further amendments would be made. She was under the impression that the issue of public participation as ruled by the Constitutional Court was the only requirement that had to be met.
Mr Motsapi replied that the only amendment to be made was to empower the Minister to create the Interim Council.
Mr T Setona (ANC) asked for more details on the Constitutional Court ruling. He also wanted to know what exactly the Constitutional Court meant when it spoke about insufficient public participation.
Mr Motsapi replied that the problem had been with the provinces. Only three out of the nine provinces had conducted public participation exercises. The Court had said that the NCOP should have instructed the provinces to obtain submissions through public hearings and to forward recommendations to the NCOP. Public participation meant inviting and facilitating oral or written submissions from the public, and this had not been done by six provinces.
Ms Carin Booyse, State Law Advisor, Department of Health, said that the Constitutional Court had made it clear that the electorate had the right to participate, and had further conceded that provinces did not have enough time to hold public consultations.
The Chairperson asked what would happen if further public hearings were held and new issues were identified. She wanted to know how this would be aligned with the fact that the Constitutional Court only required further public participation for the Act to continue in effect, and had not stipulated any other conditions.
Ms Booyse replied that if there were certain issues that came out of provincial hearings, they would be taken up by various delegates to the Committee. Discretionary power had been granted to the Committee to conduct its own process within the bounds of the laws of Parliament. This did not necessarily mean that there would be fundamentally alteration, as the Court had not ruled on the content of the legislation, but only on the process.
Mr Setona said that the Committee should not be pre-emptive about whether or not new evidence would lead to fundamental altering of the Bill. Political parties might have their own input to make in this regard, so it would be better to wait until the new public hearings had taken place, and then hear what political parties had to say. Political parties had the right to reassess and reconsider their positions.
Ms Mdlalose said that the Department would assist provinces during the coming hearings. Officials would be sent to all provinces and would be instructed to attend all hearings and assist in any way possible.
The Chairperson concluded the discussion by saying that the Committee would finalise matters pertaining to the public hearings during the first week of August 2007. The Bill had to be considered by both Houses by February 2008.
Choice on Termination of Pregnancy (CTOP) Amendment Bill: Briefing by Department of Health
Ms Rose Mdlalose from the Department of Health indicated that the Choice on Termination of Pregnancy (CTOP) Act had been passed in 1996, and had been another Act affected by the same Court ruling described earlier. The CTOP Bill sought to amend the Act in several respects.
The Bill provided for new definitions and the addition of a registered nurse who had undergone prescribed training, to the list of people who could perform terminations of pregnancy (TOP). A registered midwife would e allowed to terminate preganancy of 12 weeks or less. A registered nurse was added as another person who should be consulted for termination of pregnancy after the 20th week.
Clause 2 related to changes to places where TOP could be performed. There were 10 requirements set out, and approval by the MEC was required. Any facility that provided a 24 hour maternity service could perform TOP of 12 weeks of less. All activities would have to be conducted in accordance with Section 36 of the National Health Act, which ensures the need for the highest quality, and Section 47 of the National Health Act, which provided for specific norms and standards. Chapter 10 of the National Health Act further provided for monitoring and evaluation of these facilities.
The current situation under the principal Act provided that 24 hour facilities must be approved by the Minister. The Amendment Bill made it an offence to operate such a facility without the approval of the MEC. The current process was found to be tedious and time-consuming, as applications had to be sent from the provinces to the National Department, and then submitted for approval by the Minister. The Amendment Bill made it possible for the MEC to grant such approval, subject to fulfilling of the ten requirements for such facilities as set out in the provincial regulations. The entire process would be speeded up as the MEC will only deal with applications from his or her particular province.
The MEC would be empowered to make regulations in consultation with the Minister. This was aimed at ensuring consistency among provinces, and not to dilute the authority of the MEC.
Currently, all information that was made available to heads of facilities had previously to be submitted to Directors-General. The Amendment Bill replaced the Directors-General with Heads of Department in respect of this information. The Head of Department now had the responsibility to gather all information from heads of facilities, and would only be required to submit such information to the Director-General for record purposes. It would then be the responsibility of the MEC to provide statistics on activities at approved facilities, to the Minister.
The Amendment Bill further empowered the Minister to intervene when applications within provinces were not being processed properly. In terms of Section 25 of the National Health Act, provincial regulations and actions must comply with national policy. In cases where there was conflict between the national and provincial levels, national regulations would prevail, particularly where provincial legislation limited equal access to government services, or would be detrimental to the health interests of the nation. The Minister was empowered to make regulations.
There were further changes in regard to the offences and sanctions. The Bill provided that it would be an offence to allow termination of pregnancy at a facility that was not approved, or for a person in charge to allow access for such service.
Ms F Mazibuko (ANC) said that she had noted in the classified section of newspapers that pregnancy terminations had now become a "get-rich-quick" scheme with all manner of institutions offering this service. This raised important questions about monitoring procedures and also the fact that only wealthy women were able to respond to such advertisements to have their pregnancies terminated. She was concerned about the lack of records and monitoring of the reasons given by these women for wanting terminations. This meant that anyone could go for terminations for any arbitrary reason, that women could go for regular and multiple terminations, and that even a traditional health practitioner could advertise a pregnancy termination service.
The Chairperson said that it was important to raise all these issues at public hearings. Women needed to get together and address these issues collectively, so that the problem of repeat terminations by the same women could be explored. Many young girls were routinely going for terminations, and methods aimed at education and awareness had to be expanded. The importance of factors such as intensive monitoring and comprehensive record-keeping had to be continually emphasised by the Committee. New public hearings in the provinces would provide a platform for such concerns to be explored.
Mr Motsapi repeated that facilities would have to comply with Sections 36 and 47 of the National Health Act, and added that Chapter 10 of the Act made provision for inspectors to visit premises.
Mr Setona said that an important component of the oversight function was to test assumptions. The Committee was making assumptions that women went for repeat terminations, and that women and young girls frequented termination facilities for arbitrary reasons. Evidence was needed before such assumptions could be accepted at face value.
The Chairperson referred to an oversight visit she had undertaken and said that she had been presented with statistics that showed the frequency with which women went for pregnancy terminations. She had also spoken to health care practitioners and others directly involved in terminations, so the Committee could be assured that it was not an exaggerated picture of the situation that was being presented.
Mr Setona conceded that the Committee and all other stakeholders needed to be up to date with all statistics and information at all times. However, the Bill was not about how many times a woman went for a termination - it was about giving rights, and acknowledging the reproductive rights of women.
Ms Mazibuko said that it was becoming evident to her that women needed to take centre stage at the public hearings, as men sometimes did not have the required insight into situations where women were, for example, coaxed into having a baby with a man, only to find out later that he had no intention of providing for the child in any way. It was only when God decided to turn things around and allow men to bear babies that men should be allowed to take centre stage in the TOP debate.
The Chairperson referred again to the issue raised by Ms Mazibuko in respect of the advertisements in newspapers. She asked what the implications were in terms of fees that may or may not be charged for terminations.
Mr Motsapi replied that the National Health Price Reference List was currently being compiled. He emphasised that this list would only act as a guideline in determining pricing for services, as prescribing set fees and tariffs would run the risk of flouting the provisions of the Competition Act. Pregnancy termination facilities could therefore not be told what minimum or maximum fees they may charge. The Department was in the process of developing regulations pertaining to the issuing of certificates of need. This could facilitate increased controls on setting of tariffs for pregnancy terminations.
Mr Motsapi said that the provisions of Sections 36 and 47 of the National Health Act, and also the provisions for the empowerment of two officers to inspect and monitor facilities and activities, would enable closer and ongoing scrutiny of get-rich-quick practitioners who advertised their services in the classified sections of newspapers. The Committee should consider ways of dealing separately and emphatically with the whole issue of monitoring of facilities, and the issue should perhaps be given special consideration in the Bill.
Mr Motsapi also added that the Bill was directed at both private and public facilities, and that all facilities would have to be approved by the MEC as a designated TOP facility, subject to the fulfilling of the specific ten requirements. This would also place a damper on the activities of those who thought that the CTOP regulations opened the door to a profit-making exercise.
Ms H Lamoela (DA) also made the point that if people were advertising, she wondered how records would be kept of how many women went for terminations and how many times they went. She asked whether there was a register that recorded these activities.
Mr Motsapi replied that there was no register, but that regulations stipulated that statistics must be kept. People responsible for facilities were obliged to send information to Heads of Department. The Act stipulated that the names of women may not be submitted.
Ms Lamoela asked why terminations after 20 weeks of pregnancy were allowed. She wanted to know who would be held accountable for any deaths or severe injuries that could arise after terminations are performed during this advanced stage of pregnancy. She further needed more clarity on the practitioners empowered to perform terminations after 20 weeks.
Mr Motsapi replied that the Amendment Bill under discussion made provision for the addition of a registered nurse with regard to the procedure after 20 weeks. The requirement was initially that a medical practitioner would have to consult with another medical practitioner, and the Bill had added that further consultation must take place with a registered nurse who not only possessed the requisite qualifications, but had also undergone specific training with regard to TOPs.
Mr Motsapi said that the principal Act made provision for a TOP to be performed under specific circumstances only. Terminations could be performed on request during the first 12 weeks of pregnancy. From 13 to 20 weeks, the termination could only be performed when continued pregnancy would cause physical or mental harm to the mother or the baby, where there was a risk of malformation of the foetus, where the pregnancy was as a result of rape or incest, or when the pregnancy would affect the socio-economic survival of the woman. The CTOP Amendment Bill made stringent provisions for a comprehensive consultation process for terminations after 20 weeks.
The meeting was adjourned.
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