Eight Provinces presented negotiating mandates on the National Health Amendment Bill. All provinces had indicated that they were in support of the Bill, broadly, but six of them made a number of suggestions. These related to wording, inclusion of consultation with other bodies, queries around the term of office or the board of the Ombud, and suggestions for changes of wording. The Department of Health was in agreement with a number of the suggestions but officials from the Department indicated the reasons why they had been drafted in this way where they did not agree. Some of the issues would have to stand over for further investigation into their legal implications. The Members requested the drafters to revert with some suggested changes in the wording, as requested by provinces.
National Health Amendment Bill: consideration of negotiating mandates
The representatives from different provinces presented the negotiating mandates from their legislatures.
Eastern Cape Legislature
Ms D Rantho, (ANC, Eastern Cape) mentioned that her province had voted in favour of the Bill and mandated the Eastern Cape delegate to the NCOP to raise some issues. The Province had made comments that:
- the Office of the Ombud should be represented in all provinces, to ensure that it was accessible,
- the term of the Ombud should be reduced to five years
- the composition of the Board should be changed to include representation of provinces,
- appointment of the Chief Executive Officer should be made by the Board in consultation with the Minister,
- the Board should be the accounting authority.
Ms Malebona Matsoso, Director General, Department of Health, addressed the issues in the mandate. The Minister had agreed that a decentralised approach would assist the accessibility of the Office of the Ombudsperson. However, she would need to get some further legal clarity on the issue. The question around the term of office of five years was not one that she could answer, as this was something that the Portfolio Committee should decide upon. She was not sure that the Board should include representation of all provinces as the idea was to create an independent board. The Department of Health (DOH or the Department) was not opposed to the appointment of the Chief Executive Officer being made by the Board in consultation with the Minister, and the performance agreement being entered into between the CEO and the Board, represented by its Chairperson. The last matter that the Board should be accounting authority, and not the CEO, would have to be corrected.
Ms Matsotso also discussed the issues raised in a document from the Free State. This had recommended an insertion of more members, and this was an issue that she suggested should be deferred to the legal advisors. She agreed fully with the proposals on clause 71A.
Ms B Mncube (ANC, Gauteng) reported that the Health Portfolio Committee at this legislature supported the principle and details on the National Health Amendment Bill, but did want to make some proposals on it. The negotiating mandate set out a clause by clause analysis of the Bill. It also summarised the stakeholder submissions made to this legislature. The provincial Portfolio Committee had then made recommendations:
- to insert a new definition for “Traditional Health practitioner”,
- it was concerned that timelines must be inserted for feedback on cases investigated by the Ombud
- a demerit system should be used instead of fines
- Clause 4 should be specific on the establishment of the board
- the word “must” should be used for regulations on norms and standards
- Accounting experts be used to determine tariffs.
- Furthermore, the Committee wanted public campaigns about the Health Charter and Batho Pele to be reinforced, to increase public confidence, and that health care workers’ attitudes also had to be improved.
Ms Matsoso discussed the Committee Recommendations from Gauteng. The Department agreed that a Traditional Medical Committee be established and that the definitions be improved. It was also in agreement on further clarity on turnaround times for responses from the Ombud. In regard to the fines or demerits system, the Department of Health agreed that R10 million was a unrealistic and impractical amount and she agreed with the suggestions for a demerit system. The proposals on the establishment of the board were something that would have to be referred to the Legal Advisors. The Department agreed on the recommendations about appointment of financial experts. However, Members must agree on the size of the board to accommodate such specific provisions. She also agreed that something was needed to address the attitude of healthcare workers, in order that the Bill function optimally.
Ms N Madadla, (ANC, KwaZulu Natal) noted that her province was broadly in support of the Bill but wanted amendments to it. These were: -
- to delete “environmental health practitioner” definition from clause 1(c)
- to use “ norms and standards” throughout the Bill, since some clauses did not use this consistently
- to insert a requirement, in the revised section 79B(1)(a) for expertise in the nursing profession on the Board
- to amend the wording on section 79(1)
- to amend the new section 79I to include acting on the recommendations of the Ombud’s report
- Although the majority of the Committee agreed with the new section 81(1), the DA wanted to record its objection that the appointment of the Ombud should be by Parliament, not the Minister.
Ms Matsoso noted that the DOH agreed with the deletion of “environmental health practitioner’ as it included other professional inputs. In relation to the suggestion around norms and standards, she said that this would not really make any difference, as no quality was being specified.
The Department of Health would not oppose the amendment of the new section 79B(1)(a) to insert “nursing profession” as one of the areas of expertise for the five members of the Board. The same applied to the amendment of clause 79(1), to also include members of the public. Finally, in regard to the appointment of the Ombud, the DOH agreed that appointment could be done by Parliament.
The mandate from Limpopo was read out by the Acting Chairperson, as the representative from this Province was absent from the meeting. She noted that the public hearings were held, and there were no objections to the proposals to amend sections 1, 21, 25 and 47of the National Health Act. However, there was input on the proposed insertion of a new Chapter 10, as follows:
- insertion of “occupational and safety environment” into section 79(1)(g)
- insertion of “in consultation with regulatory authorities” into section 79(3)
- substitution of “term” for “period” in section 79(4)(c)
- substitution of “designate” for “appoint” in section 80(1).
This legislature noted that if the CEO and CFO were, ex officio, members of the Board this would bring its number up to 14. The Bill was not specific as to where the Office of Ombud would be located.
Ms Matsoso then spoke on the inputs and comments. She commented that the institutions responsible for occupational and safety environment, including the National Institute of Occupational Health, was not in favour of the insertion of the reference to the occupational and safety environment. DOH agreed with the comment on section 79(3) as it would be consistent. There was no objection to the other amendments proposed.
The Acting Chairperson read out the negotiating mandate from Mpumalanga. Detailed reasons were given for each of the submissions, which, in summary, were:
- insert a new clause that the Minister may delegate powers to provinces port authorities around infection control
- insist upon consultation with the National Health Council in relation to section 47
- insert a new clause dealing with public education on norms and standards
- move section 79(3), which was misplaced
- amend the composition of the Board in the new section 79B(1) and 79C
- correct a typing error in clause 79Fthe new section 79H, 80(1), 81A, B and c82A(4) (see attached presentation for details)
- amend section 90, in conjunction with earlier suggestions about consultation with the National Health Council
- made amendments to the placement of the Office of Health Standards Compliance, in the Public Finance Management Act
Ms Matsoso responded on these issues. In regard to the proposals around section 21, she noted that the Department would be looking at how it could work with other health practitioners. However, she also recommended that amendment should not be added into the Bill. In relation to the Port Health Authority, she said this office would be responsible directly to the Minister.
The Department agreed with suggestions on clauses 4 and 5. However, the Department would have to revert to its legal experts on section 79(1). The decision on sections 79(3) and 79F would be left to the Members. The Department had no objections to the proposals on section 79C, section 79H(3) and 80(1). She would ask the legal advisors to have another look at the revised section 81A(11), as there were some recent decisions on this point. In relation to the revised section 81B, she said that the Ombud would not work with the provinces. There would be accounting responsibilities.
The Department agreed with the amendment of section 90. She would ask the legal advisors to comment on clause 79(3), and if there was indeed something needing to be corrected in clause 8 she would recommend that this be done.
Northern Cape Legislature
Mr W Faber (DA, Northern Cape) tabled the negotiating mandate. The Committee sought clarity on various points, as outlined in paragraph 3 of the mandate (see attached presentation for details) and also made some technical input on various proposals around the Bill. It was not sure whether clause 8 might not be usurping the power of the Minister of Finance.
Ms Matsoso said with regards to concerns about the independence and non-political interference as outlined in section 79B, the Department of Health had specifically suggested that the Director General should not be included, to maintain the independence. The establishing a Board would be left up to the lawyers.
She had also referred the matter of the application to the Board to the Registrar to be listed as an entity to the legal advisors. There had been certain proposals around the use of inspectors, but it was felt that there should be a separation between environmental health practitioners and inspectors. The inspectors of the Office of Health Standards Compliance would be responsible for ensuring compliance. The Bill did not mention the processes of engagement when an establishment should be closed down, and that was an important principle.
North West Legislature
Mr S Plaatjie (COPE, North West) noted that this legislature had voted in favour of the Bill but had noted some concerns raised by the Laboratory Medicine Group and Pathcare.
Ms Matsoso mentioned that South African National Accreditation System (SANAS) Board would accredit the laboratories and the new Office would rely on this Board.
Western Cape Legislature
Mr M de Villiers (DA, Western Cape) noted the Western Cape’s authority to its representatives to support the Bill.
Input from Legal Advisors
The Acting Chairperson then opened the floor to the legal advisers to shed some light on the matters raised.
Mr Monwabisi Nguqu, State Law Advisor, Office of the Chief State Law Advisor, firstly spoke about the use of the words ‘may’ and ‘must’. He said that the courts have noted that these words must be examined in context.
The Acting Chairperson requested where, exactly, in the Bill, the words ‘may’ and ‘must’ were used and should be changed.
Mr Nguqu said that one example was clause 79.
Mr Ian van der Merwe, Chief Financial Officer, Department of Health then referred to the Gauteng Legislature’s comments. The use of the word “must” was not directed at the Minister. It was the Department of Health who had to comply with the norms and standards, and therefore the word was used correctly.
Mr Nguqu said, in relation to the points about the Accounting Authority, that the issues on the Board would be left up to the Committee. However, he did want to clarify that the words “in consultation” meant that consultation was needed with the Board.
Members requested that the Director General and the Legal Advisers re-draft some of the proposals in line with these mandates.
The meeting was adjourned.
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