A Parliamentary Legal Adviser identified the key issues emanating from the public hearings on the National Health Amendment Bill. He said the independence of the Office of Health Standards Compliance (OHSC) emerged as a critical issue during public hearings. He stated there were no strict criteria that determined the independence of a statutory body, but it should be informed by the Constitution and case law. He cited that in determining whether a statutory body was sufficiently independent, the Constitutional Court in Glenister versus President of the Republic of South Africa and Others 2011 (3) SA 347 (CC), in the majority judgment, considered three factors: the context of the public entity being created; the form and structure of the public entity to perform effectively without undue political influence; and the perception of independence of such an entity. He explained that all these factors were considered in setting up the proposed Office of Health Standards Compliance. He said Clause 79A of the Bill provided for the powers of the Chief Executive Officer (CEO) and he noted that the establishment of a Board for oversight could prevent undue political influence.
Dr Promise Matsoso, Director-General of Health presented the Department’s response to the public hearing submissions on the Bill. She stated that there was no organ of state that was totally independent but that the Department understood independence to mean free from corruption. The Department recommended that the Ombudsman report to the Minister who in turn would report to Parliament. A technical Board as opposed to an administrative Board capable of exercising fiduciary responsibility and oversight was proposed. She also stated that it was not the intention of the Bill to regulate laboratories. All institutions that deliver services needed to be accredited in terms of National Health Insurance but that such accreditation remained the mandate of regulatory bodies which was different to the issue of certificates of compliance by the OHSC.
Members raised concern the Bill had not been finalised and expressed the need for urgency. They pointed out that they had not received key documents in time.
Members also raised concern at the increasing number of complaints of poor service delivery.
The Chairperson requested that the Parliamentary Legal Adviser present an update on the key issues emanating from the public hearings process on the National Health Amendment Bill.
Adv Gary Rhoda, Parliamentary Legal Adviser, said that the independence of the Office of Health Standards Compliance (OHSC) emerged as a critical issue during public hearings on the Bill. He explained that there were no strict criteria that determined the independence of a statutory body. It remained the prerogative of Parliament to determine the extent to which a statutory institution is independent. Moreover it was the prerogative of the Executive to determine the form and structure of the statutory body. He cited that in determining whether a statutory body was sufficiently independent, the Constitutional Court in Glenister versus President of the Republic of South Africa and Others 2011 (3) SA 347 (CC), in the majority judgment, considered three factors: the context of the public entity being created; the form and structure of the public entity to perform effectively without undue political influence; and the perception of independence of such an entity. He explained that all these factors were considered in setting up the proposed Office of Health Standards Compliance. He said Clause 79A of the Bill provided for the powers of the Chief Executive Officer (CEO) and he noted that the establishment of a Board for oversight could prevent undue political influence.
The context of the proposed OHSC required an understanding of the proposed mandate of the entity, which was to inspect and certify health establishments against pre-determined norms and standards; removing certification from health establishments (which would effectively shut them down, pending further action), detection of serious breaches of norms and standards and acting as an early warning system for health establishments. The powers would extend to both public and private health establishments and would therefore have considerable impact on the ability of those institutions to render services. He added that the Minister of Health was responsible for prescribing norms and standards that would be monitored by the OHSC. It was therefore understandable that the Minister needed to exercise a certain degree of control over the functioning of the OHSC. He requested that the Committee consider whether the mandate of the OHSC and the context within in which it had to operate would be sufficiently complemented by its form and structure.
The level of independence in terms of form and structure considered factors such as: the appointment and removal of the head of the public entity, the appointment of staff, financial security, conditions of service, the reporting lines and mechanisms of funding.
Adv Rhoda concluded that because the CEO was appointed by the Minister and was accountable directly to the Minister, the Committee should consider certain balancing safeguards aimed to prevent undue political influence, real or perceived.
The overlap in the provision of services by the National Health Laboratory Services would be determined and a request for re-drafting may be submitted.
The Chairperson requested the Director-General of Health, Dr Promise Matsoso, to present an update on the key issues emanating from the public hearings process on the Bill.
The Director-General stated that the public comments on the independence of the OHSC were noted. There was no organ of state that was totally independent but the Department understood independence to mean free from corruption. She stated that the Department recommended that the Ombudsman report to the Minister who in turn would report to Parliament. A technical Board capable of exercising fiduciary responsibility would provide the necessary oversight. She also stated that it was not the intention of the Bill to regulate laboratories.
The Director-General concluded that all institutions that deliver services needed to be accredited in terms of National Health Insurance but that such accreditation remained the mandate of regulatory bodies – which is different to the issue of certificates of compliance by the OHSC.
The Chairperson noted the absence of many members and reminded members that deliberations around Bills should be prioritised. The purpose of the presentation by the law adviser was to assist members in understanding the key technical issues emanating from the public participation process. He asked if members had any questions of clarity.
Ms M Segale-Diswai (ANC) asked for clarity around the issue of accreditation.
The Director-General explained that the Office of Health Standards Compliance facilitated compliance to norms and standards which was different from accreditation. A certificate of compliance would be awarded once quality norms and standards have been met. Statutory bodies were already mandated to accredit individual institutions. She cited an example and argued that it would be beyond the scope of the Office of Health Standards Compliance to declare that a nurse was competent to deliver specific services and met minimum norms and standards of quality.
Ms T Kenye (ANC) asked how the Committee aimed to resolve and manage public dissent on a particular matter.
The Chairperson agreed that the role of communities in informing the work of the Committee needed to be clarified.
The Director-General said that the National Department of Health would embark on popular education campaigns and advocacy efforts to keep members of the public informed. She commented that some of the provisions complied with international standards. The Department needed to find a balance between engaging communities through targeted education drives and ensuring the best quality and standard of service provision. She further noted that minimum norms and standards were already in place for laboratories.
The Chairperson stated that it was important that the Department of Trade and Industry be asked to present to the Committee on its position on the overlap in the provision of services by the National Health Laboratory Services.
The Chairperson asked what type of board the Director-General was proposing and why.
The Director-General responded that the Department recommended a technical board because such a board would provide the necessary oversight, review of content and how standards were applied. It would have powers to conduct inspections and ensure the competency of the inspectors who conducted inspections. It also provided support to the Chief Executive Officer and facilitated good governance.
Ms M Dube (ANC) raised concern that the Bill had not been finalised and expressed the need for urgency.
The Chairperson replied that the Chair of Chairpersons had directed the Committee Chairperson to prioritise the Bill. Deliberations on the Bill would be completed on 30 May 2012. He requested that all members re-look at the Bill.
Ms T Kenye (ANC) asked if the Department had checked if the Bill overlapped with other pieces of legislation.
Adv Rhoda responded that the law advisers would consider overlapping legislation once all amendments were finalised. He cautioned the Committee to ensure that sufficient time be allowed to effect the recommended inclusions and amendments.
The Director-General reiterated the difference between the regulation of individuals versus institutions.
A meeting between regulatory bodies would be held in the coming weeks.
The Chairperson informed members of an important document he had received from the Parliamentary Researchers which summarised the key issues emanating from the public hearings process. A late submission by an environmental health group would be considered in the deliberations if the Committee agreed. The Chairperson requested guidance from members on a way forward.
Ms M Segale-Diswai (ANC) wanted to know why Committee members had not received the Parliamentary Researcher’s Summary of Submissions timeously.
The Chairperson reassured members that sufficient time would be afforded for deliberations. He noted the apology of the Parliamentary Researcher Zubair Rahim as he was waiting for the final edit of the Researcher’s Summary of Submissions from the research unit.
Ms C Dudley (ACDP) asked if the Parliamentary Researcher could briefly present the key issues emanating from the Summary of Submissions to assist deliberations.
Mr Zubair Rahim reiterated that the document was a summary of the key issues emanating from the public participation comments. The Summary of Submissions highlighted that public comments called for the independence of the Office of Health Standards Compliance and that it be accountable to Parliament. The appointment of the Chief Executive Officer by the Minister was raised as a concern. Calls were made for the explicit guarantee of Independence that protected the Office from political and external interference. The establishment of a Board was recommended to ensure transparency and accountability. All submissions raised the issue of conflict with concurrent jurisdiction and cited the Consumer Protection Act, Pharmacists Act and the Health Professionals Act as examples. An integrated approach was suggested to avoid conflict and duplication with other Acts. All parties agreed that core standards should be published for public comment.
The Chairperson commented that the department had already responded to some of the issues raised by the Summary of Submissions. He pointed out that not every Report of Compliance needed to be made public other than an executive summary with key issues relating to quality assurance and management. He asked if members wanted to submit further additions or required further clarity.
Ms C Dudley (ACDP) asked for the relevant wording regarding the references to the Public Finance Management Act (Act No 1 of 1999).
Adv Rhoda replied that Clause 7 provided for an amendment to the provisions of the Public Finance Management Act as inserted in Part A of Schedule 3.
The Director-General commented that many of the points had been raised before. The Treasury Unit guidelines for setting up of entities had informed the process of establishing the Office of Health Standards Compliance. She added that communication should also be extended to health professionals and administrators not only the public. Not all Reports of Compliance would be made public as some of the reports would contain private information of patients.
Ms T Kenye (ANC) wanted to know about the Monitoring and Evaluation of the Ombudsman and Chief Executive Officer (CEO).
Ms D Robinson (DA) asked why the Minister should appoint the Ombudsman and not the proposed Board.
The Director-General said that the Department of Health proposed that the Ombudsman did not report to the CEO but to the Minister. The Ombudsman’s role would be to establish the root cause of problems and use a complaints mechanism of compliance as a tool. She requested the advice of the legal advisers to guide the Department on whether the Ombudsman must be appointed by the Minister as opposed to appointment by a board.
Members asked for further clarity on the term of office of the Ombudsman.
The Director-General said that the term of office of the Ombudsman is five years. The period related to the term of office in general and not the contract term of an individual. An advert is placed for the position at end of term as the contract may not be renewed.
Ms B Ngcobo (ANC) recommended that the advert be placed before the term ends.
Ms M Segale-Diswai (ANC) raised concern at the increasing number of complaints and wanted to know how it would be remedied.
The Director-General explained the multi pronged process where complaints were received from the Presidential Hotline, Chapter 9 institutions or directly to the Department of Health. She recommended that the complaints process be streamlined. She added that the bulk of the complaints were about how health systems functioned. The Department had developed risk criteria for complaints since not every complaint needed to be fully investigated. An inspectorate would be required to advise the Ombudsman.
Ms D Robinson (DA) asked if the Inspectorate would be part of the office of the Ombudsman.
The Director- General replied that it would not.
Adv Rhoda commented that the criteria and circumstances for the removal of the Ombudsman had been prescribed in the Bill.
The meeting was adjourned.
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