The aim of the Bill was to repeal Chapter 8 of the Mental Health Act (No. 18 of 1973); and insert a Section into the Mental Health Care Act (No. 17 of 2002) allowing the head of the national Department of Health to delegate certain responsibilities to others in the department’s employ or to withdraw delegated responsibilities. Essentially the proposed delegation of powers was designed to improve the implementation of the Act for the benefit of the involuntary health care users who would be the key group point for enhanced implementation of service delivery.
Chapter 8 of the Mental Health Act 1973 was yet to be repealed by the Mental Health Care Act (No. 17 of 2002). Chapter 8 of the Mental Health Act 1973 set out procedures for: the establishment and constitution of hospital boards; the remuneration of their members; the frequency and purpose of board visits to state mental institutions; the discharge of a patient from any such institution; and meetings and record keeping. The Mental Health Care Act 2002 provided for, among other things, the care, treatment and rehabilitation of persons who were mentally ill as well as setting out the different procedures to be followed during the process of admitting mentally ill people to institutions. Hospital Boards were currently dealt with by Chapter 6 of the National Health Act (No. 61 of 2003).
The Committee was concerned particularly about the explanation of issues pertaining to delegation powers and responsibilities, and interpretation of the words “any person”. These matters were clarified and the Committee finally adopted the Bill.
The Chairperson restated that the matter under deliberation was amendment of the Mental Health Care Act (No. 17 of 2002) (the Act) by inserting a Section to provide for delegation of powers by the national Department of Health's Director-General to officials in the national Department to improve service delivery as prescribed in the Act. Further the amendment would enable the Director-General to sub-delegate some of her powers to improve service delivery to involuntary health care users.
To this end, the presence of Dr Precious Matsoso, Director-General, the accompanying delegation, and the State Law Adviser were acknowledged. The Chairperson particularly expressed gratitude to the Director-General for prioritising and attending the Committee's deliberations. Since the Bill had been deliberated upon for several weeks the Committee was expected to adopt the Bill. He said the Bill would be debated the following week. The Department under the Director-General was in attendance to assist in any explanation, of any issues pertaining to delegation powers and interpretation of the words “any person”. If these matters were clarified the Committee would finally adopt the Bill.
Members were then invited to deliberate on the Bill relating to the stated unsettled matters.
Mr G Lekgetho (ANC) asked if the Department could kick-off the discussion so that the Members could recap and proceed with discussions without delay.
The Chairperson said even though the Department had undertaken to explain and inform Members on the issues of delegated powers and interpretation of the words “any person”, some of the Committee Members were still uncertain and undecided on the implication of the said issues.
Mr D Kganare (COPE) asked if there should be any deliberations at all. Such deliberations took a significant amount of time. Considering that the Department and accompanying delegation had already informed and explained to Members the obvious issues, it was for Members to debate those issues and decide whether to propose insertions and reach resolutions.
Mr Lekgetho responded that the Department had already informed Members and explained to them the apparent issues and Members had debated those issues and made recommendations. Members were aware of the said issues and expected that the contentious issues were added for consideration.
Ms M Dube (ANC) said that whilst it seemed that there was a widely held view on the use of the word “any person” she was not convinced that it was suitable. She would, however, accept it. On delegated powers she said there was still ambiguity as to which powers were being referred to in the Bill.
A number of Members said that a majority were already decided and satisfied on the insertion of the amendments of the two issues on powers of sub-delegation by the Director-General and sub-delegation of the powers to any person the Director-General deemed fit.
The Chairperson asked what it meant to say 'majority'. He used an idiomatic expression which he likened to the word 'majority' to refer to many insects swarming a field and landing on and eating whatever they found to illustrate whether it was accurate to call such a swarm of wilful insects a majority. He said the term 'majority' referred to a 'widely-held' number of Members of the Committee. He therefore urged for care in use of 'majority' and called for an all-inclusive approach to deliberations.
Adv Xoliswa Mdludlu, Principal State Law Advisor, Office of the Chief State Law Adviser, reiterated the issues deliberated at the previous meeting. She reminded Members that when an act was amended the language of the principal act was preserved so that the interpretation remained the same and therefore fitted into the principal act as a glove fitted its wearer. The Act should look the same as it did when it was first passed. In any event powers to delegate did not take away responsibility and accountability from the Director-General. Therefore responsibility rested within the confines of the national office as was in the Bill.
Members had deliberated the discretion given to the Director-General. They reiterated that the language of the Bill caused concerns that should be settled so that the amendments were understood and the Bill was adopted. The use of the words “any person” gave discretionary powers to the Director-General. This could be abused. The category of people to whom the Director-General could delegate powers was not specified. Legal advisers of the department of Health ([DOH] the Department) had clarified the protocol and convention used when drafting legislation.
Mr Lekgetho said that the Committee had deliberated comprehensively on the matters before it particularly. He said that the Committee believed that it would be held responsible for ineptitude in future if it did not draft a good law. He suggested the use of “any suitable qualified person” to include the category of persons contemplated for the Director-General to whom to sub-delegate her powers.
The Chairperson asked if the Committee accepted the Bill as it was and that if there were no further deliberations the Committee should move.
Ms M Segale-Diswai (ANC) proposed a motion that the Committee was in agreement and moved that the Committee amend the Act. The motion was seconded and the Secretary to the Committee read the Committee's report of adoption.
Ms D Robinson (DA) asked if the suggestion that the word 'suitably qualified' should not be included.
Mr Lekgetho said that this had already been debated and recorded. It would be unusual if Committee proceedings were not recorded and preserved.
Ms B Ngcobo (ANC) said that notes were taken by the Secretary to the Committee.
Mr Kganare said that he did not agree to an insertion for amendment to the Act. He was not satisfied that without the words “suitably qualified” the Bill would be appropriate. There was a need for the words to be defined. If there were no definition the words would be the subject of court cases and interpretation. It would be a bad law if passed
Ms Dube agreed with Members’ suggestions on record keeping of deliberations for the Committee. She said there was a need to get an all-inclusive approach before any deliberations were thought of as conclusive. She reminded Members of the Director-General's opinion on the inclusion of the words “suitable” to be inserted in between “any” and “person”.
Ms Segale–Diswai reiterated the explanation given on behalf of the Department that the any insertions or amendments to the Act should take into consideration the fashion, style and language of the Principal Act. She supported the opinion of the Departments’ legal team and expressed satisfaction with the previous week’s deliberations and conclusions.
The Chairperson expressed regret on the misinterpretation of Mr Lekgetho's point. He said everything was recorded, even though the records were not resolutions. The responses presented before the Committee were not of necessity accepted by the Committee. The Members had diverse levels of understanding were not averse to debate. The resolution was that the Department gave an acceptable answer and the Committee would not come back with an amendment. The Bill belonged to the Committee; the Department was present to explain certain things. Secondly, when Members asked questions to the Department, the answers from the Department were issues on which Members would ultimately decide and make resolutions.
Dr Matsoso gave the context of the previous discussion. She said that there were elaborate discussions held on state patients who were provided for under the 2002 Act, and the care, treatment and rehabilitation of persons who were mentally ill as well as the different procedures to be followed during the process of admitting mentally ill people to institutions. In relation to these patients certain reports were produced and technical people did a review. These technical people were from diverse backgrounds such as psychology, psychiatry, and other mental health specialities as long as they were senior enough to be delegated to on behalf of the Director-General. Suggestions were made such about delegating powers to medically qualified people. The question was if it was appropriate for the Director-General to delegate her responsibilities to such people. In the opinion of the Director-General it would be limiting to prescribe to the Director-General a certain group of people to whom she could sub-delegate.
The concern was that the Committee wanted some promises that the Director-General would not sub-delegate her responsibilities to unsuitably qualified or persons not fit for purpose. Assurances were given by, amongst others, the Office of the Chief State Law Adviser (OCSLA). She explained that there was a precedent that the Minister had been delegating to any person. Altering this would not make a difference. She said that she recalled that Members suggested that the wording of the legislation should be that the Director-General could sub-delegate to any suitably qualified persons. This the Director-General found acceptable.
She said that Members had also gone through Chapter 8 of the Metal Health Act 1973 which set out procedures for the establishment and constitution of hospital boards; the remuneration of their members; the frequency and purpose of board visits to state mental institutions; the discharge of a patient from any such institution; and meetings and record keeping. Only Chapter 8 of the Metal Health Act 1973 was yet to be repealed by the Mental Health Care Act 2002.
Mr Lekgetho said that recording of deliberations was important. He proposed that the deliberations be brought to a close.
Ms L Makhubhela–Mashele (ANC) asked whether the insertion seeking to amend the Act was clause 75 or Clause 76.
It was clarified that the Act was to be amended by the insertion after Section 72 of Section 72A. This Section which dealt with delegation of powers provided as follows;
“72A. (1) The head of the national department may, in writing, delegate any power conferred upon him or her by this Act to any person in the employ of the national department, except the powers referred to in sections
5, 6(3), 13(2), 41 and 49.
(2) The head of the national department may, at any time— (a) withdraw a delegation made under subsection (1); or (b) withdraw or amend any decision made in the exercise of such delegated power.
(3) A decision made in the exercise of any delegated power, unless withdrawn or amended, is deemed to have been made by the head of the national department.
(4) Any right or privilege acquired or any obligation or liability incurred as a result of a decision made in terms of a delegated power referred to in subsection (1) cannot be affected by any subsequent withdrawal or
amendment of that decision.’’
The Chairperson suggested that, since it was clear what the Bill sought to do, the Committee should adopt it. He read the Committees report for the second time and thanked the Director-General and her department as well as the Principal State Law Adviser.
The meeting was adjourned.
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