There were again not sufficient Members present at the meeting to constitute a quorum, and Members expressed their concerns and said that this would be raised with the Speaker and authorities in Parliament to try to rectify the situation, which was caused by Members having clashing commitments to other committees.
Ms Cheryllyn Dudley, MP, presented her private member’s proposal to amend the Choice on the Termination of Pregnancy Act. She submitted that the fact that the current Choice on the Termination of Pregnancy Act (the Act) did not require ultrasound scanning before the termination of a pregnancy was medically and legally indefensible. The current Act also did not specify the type of “informed consent” that was required prior to the termination of a pregnancy. Although she noted that Regulations were in place, she submitted that they gave insufficient information and clarity, did not allow that pregnant women could make informed decisions on the risks and their care, and did not tie in sufficiently with the Act.
Members asked for clarity on the proposed amendment to Section 3 of the Act, and questioned whether some of the information currently in the regulations should not perhaps be incorporated into the Act. They asked if the proposal derived from the facts of a particular case or from a number of general concerns, and whether this proposal had any links with a previous private members’ proposal in relation to this Act. The Parliamentary Legal Advisor clarified the procedure to make regulations and suggested that the wording should prescribe a penalty for failure to comply with regulations. The Committee agreed that it must still receive comment on the proposal from the Department of Health and the Department of Women, Children and People with Disabilities.
Chairpersons Opening Remarks
The Chairperson noted that there were not sufficient Members present at the start of the meeting to constitute a quorum. He suggested, however, that Ms Cherylynn Dudley, MP, should be allowed to present her private member’s proposal, but if there was no quorum by the time she had finished, further discussions on the matter would have to be deferred.
Private Member’s proposal to amend Choice on the Termination of Pregnancy Act
Ms Cheryllyn Dudley, MP, presented her private member’s proposal to amend the Choice on the Termination of Pregnancy Act (the Act). This addressed two aspects of termination of pregnancies, namely ultrasound procedures and the question of “informed consent”.
Ms Dudley noted that currently it was generally accepted as best practice in medical circles that no routine or emergency abdominal surgery was performed without a prior abdominal scan, usually an ultrasound procedure. A termination of pregnancy was a surgical procedure that required prior scanning. She said that the fact that this service was not offered to the patient prior to such an invasive procedure was tantamount to medical negligence. This was especially so since requests for termination of pregnancy were always elective, and were never medical emergencies. There was thus always sufficient time to perform an ultrasound before initiating the procedure. Allowing registered medical centres to perform the termination procedures without having an ultrasound machine on the premises was medically and legally indefensible.
She outlined her reasons why she believed that ultrasound scanning prior to a termination of pregnancy was vital to the wellbeing of the patient. The first consideration was the gestational age of the foetus. The Choice on Termination of Pregnancy Act allowed for different procedures and requirements for termination of the pregnancy, based on a cut off date of 12 weeks and 20 weeks. It was clinically impossible to delineate the gestational age with such precision, without performing an ultrasound to verify the patient’s history. It was also common practice in South Africa to prescribe medication for the induction of labour as the means of procuring the termination of pregnancy in cases of early pregnancy, of under 12 weeks. However, if the gestation date had not been accurately determined by the required procedure, this could cause irreversible harm to the patient’s cervix. It was therefore in the best interest of patients and caregivers alike that the age of gestation be accurately verified. Excluding other findings, it was in no way unlikely that patients who came for termination were suffering from the same medical conditions that affected other pregnant woman. These conditions included for example ectopic pregnancies and ovarian cysts. If there was surgical evacuation of the womb in any of these cases it had the potential of endangering the patient’s life. Prior ultrasound would prevent risking the patient’s health and life in such a frivolous way.
She then outlined her submission in regard to “informed consent”. It was of grave concern that the current Act did not specify the type of Informed Consent that was required prior to the termination of a pregnancy. Section 5 of the Act merely required that the consent “be informed”, but did not specify what this meant. It was common cause in medico-legal circles that, for consent to be informed, it had to be truthful, as complete as possible, and understandable to the patient. It was also clear, after 13 years of implementation of the Choice on Termination of Pregnancy Act in South Africa, that these three aspects were routinely overlooked in the preparation for the termination of a pregnancy. The link between the termination of pregnancy and later infertility, due mainly to cervical incompetence, also was undisputed in scientific circles. The patient should be informed about the risks, to enable informed decision-making. She said it was not sufficient that the counseling leading up to informed consent should be left to caregivers. It had therefore becomes necessary to outline, in the law, the basic elements of what constituted informed consent in the case of a request for termination of pregnancy.
Ms J Kilian (COPE) asked if the proposed amendment of Section 3 was a substitution or an insertion.
Ms Dudley said it was an insertion and not a substitution.
Ms Kilian said that it was also important to look at the Regulations. Because they did not hold anyone responsible to a certain level of counseling, this meant that the Regulations could be read in different ways. She questioned whether perhaps the Regulations should not be incorporated into the principal Act. People could then have access to information and this would allow them to make informed decisions.
Ms Dudley said that it was necessary to ensure that the Regulations relating to counseling under the principal Act were complied with, so that the pregnant woman had all the necessary information. Because the Regulations did not prescribe the depth or exact nature of counselling, there was lack of detail. There had to be sufficient clarity and detail set out in the legislation. There was not sufficient link between the Act and the Regulations.
Ms B Tinto (ANC) asked for clarity about the information provided, and asked if the information presented was derived from a specific case or just general assertions.
Ms Dudley said that it was based on several cases, and a lot was happening on the ground that medical practitioners were bringing to her attention. There was one specific case that had gone to the courts and the Department of Health was prepared to admit to procedural failure. This case did not deal precisely with the issue at hand. However, she noted that it was essential to amend the legislation to ensure that it was no longer vague.
The Chairperson asked for the relevance of this insertion. He also asked if Ms Dudley’s proposal had a bearing on a previous submission that was considered by Parliament some time ago.
Ms Dudley said that the Chairperson might be referring to the Private Members Bill in 2006. That Private Members Bill had sought to recognise the right to life of an unborn child. This was the principle upon which the African Christian Democratic Party (ACDP) would base its objections to any termination of pregnancy. Her proposed amendments did not seek to repeal or reverse the decisions in principle of the current Choice of Termination of Pregnancy Act, but was seeking to close the loopholes and deficiencies in it.
The Parliamentary Legal Advisor said that Regulations were made by a Minister. The ACDP would need to look again at this issue, because Regulations could change. The principal Act should not be clarifying the Regulations, but rather the Regulations should refer to the principal Act and expand upon it.
Ms Dudley said she was aware that the Regulations were made after the Act. She had worded her proposal as it was to indicate that, although she recognised the existence of the Regulations, the point was being made that the Regulations had shown themselves to be useless at this point. She could re-word this to illustrate the point clearly.
A Parliamentary Legal Advisor suggested that perhaps her proposal should contain wording to the effect that if the Regulations were not complied with there would be a penalty. She noted that the submission, as it currently stood, was not something that would pass muster.
Ms Kilian suggested that what was contained in the Regulations should perhaps be looked at and brought into the principal Act, and then the Regulations could make the necessary provisions on the detail.
Ms Kilian asked for advice on how the meeting should proceed. In particular she enquired if Ms Dudley should not be asked revise the content of her proposals, so that the Committee could then take the matter forward.
The Chairperson said that the matter would be taken forward. However, before the Committee could process the whole issue and arrive at a determination, it was necessary to have all relevant documentation available. In addition the Ministry of Health and the Ministry of Women, Children and People with Disabilities would also be required to provide their comment as to what they understood the responsibilities and rights of persons who were seeking termination of pregnancy and those providing the service. This would provide a more holistic picture and indicate whether there was a need to amend any part of the principal Act or the Regulations.
Ms Dudley said she understood the point about the Regulations, and reiterated that she had worded the submission in this way to acknowledge that there were regulations in place. However, she did not believe that the Regulations catered for the points that she had made in her document, nor the important issues that the medical fraternity regarded as important. There was nothing in the Act that tied it to the Regulations. In her opinion, unless something was clearly specified in the Act, it was not necessarily going to translate into the Regulations.
The Chairperson thanked Ms Dudley, and said that the Committee would then take the particular proposals forward, and would arrange for other stakeholders to make submissions at a future date, which would be advised.
Lack of quorum
The Chairperson noted that at this stage there was still no quorum. This was the third consecutive meeting at which the Committee did not achieve a quorum. The Committee, however, could not be faulted as it had been informed that all members not present had given apologies on the basis of other commitments, except the Inkatha Freedom Party (IFP) delegates. This issue of the non-attendance of members, which in turn caused the Committee to be unable to attend to its business, was getting worse. He pointed out that there were three submissions that had yet to be tabled in the term.
Ms Kilian understood that this was a busy term, especially in view of the requirements relating to the budget votes. In the new term it would be easier for the Committee to quorate, and it may also wish to consider a different time slot.
Ms B Tinto (ANC) expressed concern that this Committee might not be taken seriously by Parliament. Parliament needed to be informed about this situation.
The Chairperson said that this Committee would continue to try a find a better way to deal with its challenges. It had been agreed with the Secretariat that, by the following week, amendments to the rules would be submitted, and areas would also be highlighted that were hampering the work of this Committee. This situation would also be brought to the attention of the Speaker and other relevant authorities.
The meeting was adjourned
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