National Health Amendment Bill [B24-2011]: Deliberations

Meeting report

National Health Amendment Bill [B24-2011]: Deliberations
The Chairperson noted, at the outset, that the Committee had agreed that the proposed National Health Amendment Bill (the Bill) had to include provisions for the setting up of an Office of Health Standards Compliance (OHSC). This office had to be adequately independent, but Members had not yet agreed on exactly how that office would be managed.

Adv Gary Rhoda, Parliamentary Legal Adviser said he and Advocate Monwabisi Nguqu, Senior State Law Advisor, Office of the Chief State Law Advisor, had met with legal officials from the Department of Health (NDoH) to compile the list of proposed changes mooted by the Portfolio Committee, called the A-list, headed ‘Amendments Agreed to by the Portfolio Committee on Health.’ He explained that this would give rise to the B-version of the Bill. This Bill would then be referred to the National Council of Provinces (NCOP), which would draw up a C-list of proposed changes, leading to the D-version of the Bill.

Adv Rhoda then proceeded to read through the A-list (see attached document for details).

Clause 1: Definitions
Adv Nguqu explained that the definition of “environmental health practitioner” was taken from the National Environmental Health Policy which was published in the Government Gazette on the 3rd August 2011. The drafting team thought it wise to use the same definition.

Other definitional changes were noted by the Committee

Clauses 2 and 3
Adv Rhoda noted that these had been rejected

New Clauses
Adv Rhoda referred to the first point under the heading “New Clauses”, which related to a new subclause to be inserted into section 21 of Act 61 of 2003 (the principal Act). He explained that this related to port health services, which were to be moved from being a provincial competency to being the responsibility of the NDoH.

Adv Rhoda read the section under the heading “New Clauses”. He read the Amendment of Section 21 of Act 61 of 2003. This section dealt with port health services which were being moved from the provincial health departments to the NDoH.

The Chairperson asked whether the sentence:” (f)  facilitate and promote the provision of port health service and participate in intersectoral and interdepartmental collaboration” meant that the port health service moved from being a provincial responsibility to being a national responsibility.

Adv Nguqu confirmed that it did. He noted that section 21 of the principal Act set out the scope of competency of the NDoH, so all the issues that dealt with port health as a provincial competency had been added as a competency of the NDoH. This was suggested by the Director General of the Department of Health. It brought South Africa into line with international practice.

Adv Rhoda explained that point number 2 added port health services to the competency of the NDoH and point number 3 amended section 25 of the principal Act, removing port health from the provincial competency.

Changes to section 47 of the principal Act
Adv Rhoda said that point number four on the list dealt with amendments to Section 47 of the principal Act. It reflected the changes to the new Office of Health Standards Compliance (OHSC).

Clause 4: Consequential changes
Adv Rhoda explained that all amendments under the heading “Clause Four” were consequential changes.

New section 79A
Adv Rhoda then referred the Committee to page 4, which dealt with the major proposed changes to the principal Act. The Office (being the OHSC) was to function under the control of a board, and the heading for “Control of Office” set out the duties of the Board.

The heading “Composition of the Board” would form the new section 79B, and Adv Rhoda read out the requirements. He summarised that the Board, as proposed, should consist of the Chief Executive Officer, the Chief Financial Officer, the Director General, or an official designated by that person, four members who had specialist knowledge of economics or accounting, legal matters, quality assurance, health research or epidemiology, one member nominated by the national Minister for Trade and Industry, and one representative each from the private healthcare industry, organised labour or civil society or the community.

Ms D Robinson (DA) said that ‘community’ could be interpreted broadly or narrowly, and asked what exactly this meant.

Adv Nguqu explained that it meant a person without industry or organised labour ties. It could be a community activist. The public, or the community, would nominate the person.

Ms Robinson said she wanted to make sure that there would be proper consultation across a broad base, and that everybody was given a fair chance to participate.

Ms T Kenye (ANC) asked whether the representative from organised labour would come from National Economic Development and Labour Council (NEDLAC).

Adv Rhoda replied that the representative from organised labour would come from one of the labour unions active in the health sector, like NEHAWU or DENOSA, not from unrelated unions like NUMSA.

Ms B Ngcobo (ANC) asked whether the four places reserved for members with specialist knowledge required only one person with skills and knowledge on public health, or whether it was intended that all the four specialists should have that knowledge.

Ms Ngcobo asked whether all Bills contained the word “must” or “may” and asked whether, if the Committee changed the word “may” to “must”, this might contradict other legislation, and what the consequences of this would be.

Adv Rhoda said that whether a Bill stipulated that a body “may” or “must” do something  was a political decision. If the wording was “must”, then the OHSC would not have any discretion to do otherwise, and if it failed to do as stipulated, it would be contravening the law. Where “may” was used, there was some leeway for the OHSC to use its discretion. He added that core functions would be stated as “must”, and this would also apply to performance agreement. The activities described with “may” could increase the overall score of the performance assessment from a governance point of view.

The Chairperson said his understanding of the use of “may” and “must” was that these were used specific to certain situations, and it was not possible to make a blanket decision, but consider what had to be achieved.

Ms M Segale-Diswai (ANC) asked, in regard to the representative from civil society or the community, whether it was possible to qualify the “community”, as she was concerned that people without the necessary skills, who did not add value, could be selected for the sake of political expediency.

Ms Precious Matsoso, Director General, NDoH also thought that there was a contradiction in that the Director General was given powers equated to those of the Minister in other legislation. She thought the Director General should not have the power to appoint people to the Board, although the Director General could delegate a representative to the Board, and the Minister of the Department of Trade and Industry (dti) could appoint a dti representative to the Board. She reiterated that this was an anomaly.

The Chairperson asked for further elaboration from Ms Matsoso on the powers of a Director General and the Minister.

Ms Matsoso referred to section 79B(c), which referred to “the Director General, or an official from the NDoH designated by the Director General..”. This effectively meant that the Director General had the power to decide to whom the power of representation on the Board could be delegated. Another question was why only the NDoH was represented, why the provinces were not, and why medical schools and nursing colleges were not represented, as these were the places from which knowledge emanated. They would add value. Nurses, in most cases, were in charge of Infection Control in hospitals, and this expertise was not listed in the Board requirements.

Adv Rhoda replied that a Director General could always delegate an official to be part of the meetings when he or she was not available. He said that this differed from the Director General actually making an appointment to the Board.

Ms Matsoso also stressed that she had previously suggested that the Board should have technical, not administrative skills, relevant to the OHSC. One Member had raised the issue of public health, and other technical areas not presently named included clinical governance and clinical risk management. She felt that clinicians with extensive knowledge were needed. Technical institutions may nominate representatives. The Board needed members with significant clinical knowledge in surgery, because this was where accidents happened. People with knowledge in quality assurance and occupational health and safety were also needed, to ensure safety of both health workers and patients,.

The Chairperson said the composition of the Board must be carefully considered, in light of what the Committee was trying to achieve. He agreed that a technical Board was needed, and although there was some measure of this, the Board was falling short in other areas. He noted the suggestions of the Director Genera and noted that ultimately the Members would have to decide on the composition of the Board.

Adv Rhoda accepted Ms Matsoso’s opinion that more competencies were needed on the Board, but said there were already eight members on the Board, and to provide for all competencies would increase the Board to 12 or 13 members, which would be unwieldy, make for a top-heavy Office and this also made it more difficult to arrange meetings, and the Board would need more resources.

The Chairperson understood the wisdom of not overloading a Board, but said that, when considering standards, it was necessary to consider the areas where most of the problems occurred, namely obstetrics, gynaecology and surgery. Experts were needed, who knew their subject very well, in order to make correct and fair judgments and decisions.

Ms Matsoso said that, to comply with good governance, the Chief Executive Officer should not be both a member of the Board, and report to the Board.

The Chairperson said that, as he understood it, the Chief Executive Officer would only be on the Board in an ex officio capacity, and would not participate in the decisions of the Board.

Adv Nguqu agreed that this was correct.

Ms Matsoso still felt that neither the Chief Executive Officer (CEO) nor Chief Financial Officer (CFO) should be part of the Board, and she would also challenge the necessity of the representative from the dti. She felt that these three spaces could be filled with medical experts.

Mr D Kganare (COPE) agreed with her, saying that he was not sure what value would be added by a dti representative on the Board. However, he did feel that the CEO and CFO should be members of the Board. The Minister had to appoint one of the Board members as Chairperson. The Board also had to have a Secretary, accounting to the Board via the Chairperson, who was employed under the CEO, and he wondered whether the whole model was not too orientated to the private sector.

Ms Kenye said that initially it was decided that the Board would have 15 members. The current organogram provided for 10 members, without the dti representative. She suggested that the remaining five could come from the technical areas.

The Chairperson said that the Committee had to decide on a maximum and a minimum number of members for the Board.

Ms M Dube (ANC) asked whether, instead of a representative from organised labour, one vacancy should not rather be filled by a lawyer who could deal with labour matters. 

She added that the “community” included everyone in South Africa and asked what criteria would be used to decide who would represent “the community” on the Board.

The Chairperson said that the Committee had to remain focussed on the brief of the Board, which was to set an official standard of compliance and to ensure that health practitioners adhered to it. If they did not,  there would be consequences. However, it was also necessary to bear in mind those who would make use of the services. Whilst they may not be technically trained, they did know what quality of service they should be expecting from public health facilities, and it would be necessary to get first-hand information from users of the services, as well as workers in these hospitals.

Ms Dube said she appreciated this, but it was still necessary to specify what “a member of the community” actually meant.

The Chairperson said that the drafters could only give advice, but it was up to Members to set the wording.

Ms L Makhubele-Mashele (ANC) noted that the appointments would have to be done by gazetting, and potential Board members would have to be nominated by their structures. She thought that the “civil society” and “community” were equated.

The Chairperson said that this was correct in developed countries, but there was still asymmetry in South Africa.

Ms Ngcobo said that it was possible to have people from all walks of life on a professional body. She had served on the Board of the Health Professionals Council of South Africa by virtue of her experience in rehabilitation, although she was not a health professional. She suggested that, rather than increasing the Board, it would be more sensible for the board to set up sub-committees and source specific expertise to those committees.

Ms Robinson agreed with Ms Matsoso that there should be representation from the medical schools and nursing colleges on the Board, pointing out that the OHSC was a body set up to uphold professional standards. Hospitals also had governing Boards, where people from the community could go and air their grievances. She agreed that it would be useful to have a person on the Board with knowledge about labour law and other legal matters.

Adv Rhoda responded to the suggestion that the dti representative would not add value, saying that it had been deemed necessary to have a dti representative to deal with the diagnostic laboratories being managed by South African National Accreditation System (SANAS). However, this decision was ultimately up to the Committee.

He pointed out that the new sections 79B and 79D referred to the Chairperson and member of the Board, and it was equally up to the Committee to make the final decision how many members to have, and how the Board would be constituted.

Adv Rhoda then commented on whether an organised labour representative should be included, and said he would be cautious about excluding this person, because norms and standards would be set for hospitals, to which nurses and workers would have to comply. Organised labour represented the nurses and hospital workers.

In regard to the community or civil society representation, Adv Rhoda agreed that a person did not have to have medical training to realise that he or she had been badly treated. He did not think that “civil society” and “the community” were the same, noting that civil society organisations might, for instance, assist those affected by medical negligence, do research on the areas where they lived, or run services that the Department of Social Development could not provide. They were not affiliated with government departments, but worked within communities. He reiterated that ultimately, the Committee would have to decide on the composition and number of the Board.

New Sections 79C, 79D and 79E
Adv Rhoda noted what each of these new sections contained.

Ms Segale-Diswai wanted clarity on 79E(1)(a), enquiring what “ordinarily resident in the Republic” meant.

Adv Rhoda explained that a person could be a South African citizen, but be resident overseas, which would make this person ineligible to serve on the Board.

Ms Kenye wanted clarity on 79E(3), asking why the number of members might be reduced.

Adv Rhoda explained that if, for example, the Board consisted of 12 people, its quorum would be calculated as 50% (6 persons) plus another one person. If, however, there was a vacancy on the Board, the Minister could appoint people in order that this quorum of seven people could be reached, so that the business of the Board could still continue.

New Section 79F
There were no questions on this new section

New Section 79G
Adv Rhoda read out the new section 79G.

Ms Dube asked whether the new section 79G (2) meant that people other than members of the Board could be part of a committee of the Board.

Ms Ngcobo said the Board would be appointed for three years, and wonder if that was sufficient.

The Chairperson summarised the discussions so far, noting that:
a) the Committee agreed that the Board would ensure the independence of the Office of Health Standards Compliance.
b) There was still a need to determine the numbers of the Board members – between seven and twelve, or fifteen.
c) It was agreed that the Board would be a technical Board with significant clinical expertise.
d) Civil society would be represented on the Board.
e) Members still had to take a decision on whether the CEO would be a full member, or an ex officio member.

Ms Kenye asked whether the new section 79F(3) was saying that the Chairperson would exercise a casting vote only.

Ms Robinson said that if the CEO was to be an ex officio member, the Committee needed to see how many people were needed, to cover the areas, before deciding how many Board members were needed.

Mr Kganare asked what ex officio meant.

Adv Nguqu explained that this meant that the CEO would sit in on the Board by virtue of his office, but would not have voting rights.

Mr Kganare asked whether there were any other Boards where the CEOs sat ex officio, as he would have thought they needed voting rights.

The Chairperson pointed out that the CEO, whether or not a member of the Board, would have an impact on the Board’s decisions. It was a technical board, and needed technical know-how and if the CEO were be taken by a technical expert.

Ms Makhubele said that since the CEO was an employee, that person should not be a voting member of the Board.

Ms H Msweli (IFP) asked who would be the Secretary.

The Chairperson said on other Boards, the Secretariat revolved around the CEO, but he was not sure.

The Chairperson suggested that Members seemed to be agreed that the CEO and CFO would serve on the Board only in an ex officio capacity, and the Committee must decide what areas of expertise it wanted represented.

Ms Dube asked whether members co-opted for committees would be paid for their work, and whether there would be a budget for this. She wondered if the Board members who set up the special advisory committees would decide on the number of members to be appointed, and pointed out that there were loopholes as members might, for instance, appoint their family members or friends.

The Chairperson said the Board would monitor the setting up of these advisory committees.

Ms Robinson agreed that no individual should be able to decide on these matters. She asked whether there should not be a limit to the amount of money spent on these specialist advisory committees, to prevent abuse.

The Chairperson said that it was not the Portfolio Committee’s work to do the work of the management of the OHSC.

Ms Dube asked how often the Board would meet.

The Chairperson pointed out that the Board was to be staffed by technical people, and said that the larger the Board was, the more difficult it would be for it to get a quorum at meetings.

Ms Kenye suggested that it consist of twelve members.

Ms Ngcobo suggested between seven and twelve members. 

The Chairperson noted Members’ views that for the sake of independence of office, the Committee agreed on a technical Board, with seven to twelve members, who would have expertise in the areas already set out, as well as expertise in the fields of research, clinical governance, surgery and infection control.

Ms Robinson reminded the Chairperson that Ms Matsoso had suggested also the need for representation from the medical schools and nursing colleges.

Mr Kganare said the Board had to decide how many times it would meet. The Portfolio committee could not micromanage the situation.

The Chairperson said that a Board of this nature normally met four times a year, but it was up to the Board to decide.

Compliance issues
Adv Rhoda referred Members to item 46, or page 9 of the A-list, and said that this contained a clause that had been left out of the original Bill. This read “A compliance notice issued by the Office shall be valid for a period of no more than four years, and must be renewed before or on the expiry date in a manner prescribed.”

Mr Kganare noted that a fine “not exceeding” R10 million was payable, in cases of non-compliance, but said that this might lead to discrimination, with larger institutions being fined more than small ones.

Ms Ngcobo said that this was a standard clause, and no fines could exceed R10 million.

Adv Nguqu said the head of a health department’s employer was the municipal manager.

General discussions on the Bill
The Chairperson noted that the debate on the A-list seemed to be concluded, and asked Members to raise any other queries.

Ms C Dudley (DA) referred to page 9, item 43, which set out the wording of a new subparagraph (12) in relation to the Ombud. She noted that the Ombud would have to “inform the complainant, and, where applicable, the respondent of his or her findings and recommendations”. She said that the respondent should be informed as a matter of course, and it should not be left to the discretion of anyone whether or not to inform the respondent. Both complainant and respondent must be treated equally.

Ms Matsoso added that the original formulation read: “…where applicable, inform the complainant and the respondent…” The changed wording seemed to imply that “where applicable” now applied only to the respondent.

Ms Dudley agreed and said that the rights of complainant and respondent must be addressed equally.

The Chairperson suggested that the wording went back to what it was before: “where applicable, the complainant and respondent”.

Adv Rhoda said that there might not be a respondent, as a matter might have been escalated from another level of authority.

Mr Lufuno Makhoshi, Senior Legal Administrative Officer, NDoH, the respondent would be a health facility and the complainant could be the health Ombud.

Mr Kganare suggested that the wording be left as it was; there might not be a complainant who was a person wronged, but there would always be a respondent.

Ms Segale-Diswai agreed, pointing out that the Ombud could initiate an investigation, but there would always be a respondent who must be informed of the outcome. The phrase should, in her opinion, read “inform the complainant, where applicable, and…”

Ms Matsoso said that investigations could result in findings of criminality, and charges would have to be processed, or the matter referred to another statutory body, who would then not be a respondent, but a relevant body.

The Chairperson asked Members to decide whether the Director General should be removed from the Board, and Members agreed.

Ms Kenye wanted to ask about penalties. She pointed out that, from her experience as a midwife, she was aware of instances where doctors might perform Caesarian operations on private patients in public hospitals, and asked if the hospital would be held liable if there were complications.

The Chairperson said it depended where the problem lay, as to who would be responsible.

Ms Kenye pointed out that the doctor was in private practice.

The Chairperson said that if that doctor operated in a public hospital, he thought there was something wrong with the system.

Ms Matsoso said that this was a matter of practice, and there might well be legitimate concerns, relating not only to surgery, but also to other practices. The matter would be raised with the legal advisors. She noted that vicarious liability arose in respect of health workers employed in the public sector, whilst those in the private sector were answerable to professional bodies. The NDoH had documentation on best practices, and this might not reflect current practice. This also applied to diagnostic laboratories.

The Chairperson pointed out that Ministers and Members undertook oversight visits and also received information from media and labour unions.

The Portfolio Committee’s Researcher asked whether a hospital, after being inspected and found to compliant, would be given a certificate.

Ms Matsoso said that this would be similar to an inspection at a manufacturing plant. If the plant complied with all the norms and standards, a certificate would be issued. The same would apply to a hospital. However, the certificate would set out specific terms, and would be valid for a specific time period, so that re-inspections would be needed within a certain timeframe. If the hospital did not comply, this would be noted.

Adv Rhoda replied that a “notice of compliance” would be issued to those institutions that did comply, and his would state whether the certification was positive or negative.

Adv Nguqu added said that the inspection process would be based on the models used by the Green Scorpions and Labour Inspectors. 

The meeting was adjourned.