Traditional Health Practitioners Bill: briefing

Meeting report

HEALTH PORTFOLIO COMMITTEE
27 May 2003
TRADITIONAL HEALTH PRACTITIONERS BILL: BRIEFING

Chairperson: Mr L Ngculu (ANC)

Documents handed out
The Traditional Health Practitioners Bill, 2003
Summary of Traditional Health Practitioners Bill (Appendix)
Traditional Healers Progress Report

SUMMARY
The Traditional Health Practitioners draft Bill was tabled before the Committee to familiarise members with the process before a formal draft is introduced in the house later this year. The Bill compelled all traditional healers to register before they could practice that trade The introduction of the Bill follows recommendation by the Committee to the effect that there should be legal recognition of traditional healers as a health resource. The Bill proposes the establishment of an interim council to be responsible for the regulation of the traditional practitioners profession. Commenting on the Bill the Chair asked members to avoid introducing western style standards into traditional healing.

MINUTES
Traditional Health Practitioners Bill by Ms Mdlalose
Ms T R Mdlalose, Director of Human Resource Development, Department of Health, outlined the background to the Bill. She informed the Committee that the current Bill follows the recommendation made by the Committee in 1998 to the effect that there should be legal recognition of traditional healers as a health resource.

The Committee also asked for the establishment of an interim council to be responsible for the regulation of the traditional practitioner's profession. The Committee had also called for a forum to be set up before the envisaged council to ensure that all stakeholders and associations were taken on board. She reported that the existing four statutory health councils namely: SANC, HPCSA, SAPC and Homepaths and Allied Service Professions Interim Council made representations regarding their organisational structures as well as financial matters. All Councils were ready and willing to share information, which would assist in the establishment of the Traditional Healers Council.

Interim Traditional Health Practitioners Council by Mr N Gawula
Mr N Gawula,Consultant, Legal Services, Department of Health, informed the Committee that the objects and purposes of the Bill is laid out in the same fashion as other statutory bodies noting that what the Bill seeks to create is a new concept which would carry many lessons and challenges. He confessed that there is not much jurisprudence in South Africa touching on this concept. He explained that, in a nutshell, the Bill seeks to provide for the establishment of the Interim Traditional Health Practitioners Council in addition to setting up a regulatory framework to ensure the efficacy, safety and quality of traditional health care services.

Mr Gawula noted that the Bill makes provision for control over the registration, training and practice of Traditional Health Practitioners and provides for matters incidental thereto. He pointed out that the Bill incorporates issues around medical certification and that in this regard the Department did engage the Medical Schemes Council on how to accommodate this new regime to health care sector. He noted that the Bill does not delve into details on the scope of the practice matters, which he said are better dealt with in the regulations to be promulgated by the Minister. He pointed out that the Bill compels all traditional healers to register before they can practice that trade.

Discussion
Dr Luthuli (ANC) commended the Department for the good work they had accomplished in putting the Bill together noting that this had been an area of medical practice that raised great concern. Where do other members of the Council come from to add up to the membership of 25 persons that the Bill proposes?

Ms Debbie Pearmain replied that there was ongoing work around the Bill and that other specialists would be added to the list of Council members in due course.

Dr Luthuli raised the spectre of traditional surgeons, which she said had caused great anxiety and confusion and pointed out that the law is not clear on how these concerns would be addressed.

Ms Pearmain pointed out that the Minister would make elaborate regulations to govern the practice of traditional surgeons.

Mr Gawula explained that many death and fatal injuries that resulted from the traditional surgeon's practice alarmed the office of the President. He said that the Office of the President then approached the Department to find ways in which it can quickly intervene to stabilise the situation. He pointed out that the Department was advised that to hasten the process it was necessary to proceed via the provincial legislation, which would specifically deal with the menace arising from circumcision practices in the Eastern Cape. The provincial legislation made provision for health standards and not regulation of the surgeon's practice.

Mr Gawula reported that the new legislation had helped to reduce death at initiation schools by 60% and that the Minister directed that national legislation should be commenced to cover other provinces. He said that the Bill would make provision that would empower the Minister to make the necessary regulations regarding the practice by traditional surgeons noting that in terms of the Bill the surgeons must be registered.

Dr Jassat (ANC) noted that the Bill envisaged certification and wondered how conventional practitioners would interface with their traditional counterpart in view of the fact that they had never heard of this concept.

Ms Pearmain said that the Department was still looking into how related medical services like the medical scheme would be factored into the Bill. She noted that it was true existing structures did not provide for the traditional practitioners.

Ms Kalyan (DA) sought clarity on the status of the interim Council and the Forum and wondered whether both bodies had functions that were common to each other.

Ms Pearmain explained that the Interim Council would be established by the Act whilst the Forum is a temporary structure that would lay the foundation and establish initial structures that would help identify and group together all stakeholders.

Ms Kalyan asked if educational institutions had been approached with a view to offer training to the traditional surgeons.

Ms Pearmain reiterated that the Bill did not delve into the finer details of the practice by the traditional healers noting that in fact the Department was in the process of familiarising itself with some of the methods used by the traditional healers.

Mr Gawula pointed out that the Department was engaging the MRC on the issue of training and that it had already contacted IDASA, which had some knowledge around traditional healing. He expressed optimism that all these interactions would help to identify appropriate institutions that would provide the relevant training to traditional healers.

Mrs Mdlalose noted that some medical schools had already incorporated the concept of traditional healers in their curriculum. She added that there were in fact cases where traditional healers were used as the initial point of reference before the regular practitioner attended to the patient.

Ms Mathibela (ANC) sought clarity as to why spiritual healers were left out of the whole equation of traditional practice.

Mrs Mdlalose recalled that the Committee had way back in 1998 ruled that spiritual healers did not qualify as traditional healers since nobody knew for sure how they conduct their practice. The practice by spiritual healers was not measurable and that it was in any case not traditional in the sense that traditional healing was known. She however pointed out that these were matters to be dealt with by the Interim Council once it has been constituted.

Mr Gawula clarified that the chapter on the inclusion of spiritual healers had not been closed as yet. He noted that the relevant authorities would accept and consider any representations in this regard and if satisfied that this cadre of practitioners fulfilled the basic criteria of a traditional healer then they would be accorded due recognition in law.

Ms Rajbally (MF) asked about the level of education and experience that would be required of a traditional healer and how regulations would be effected through registration.

Mr Gawula pointed out that there were currently numerous associations that represented various shades of traditional healers and that some of them regulate the conduct of their members. He said that the Department was looking into the possibility of registering these associations en-mass at a fee noting that they were veritable vehicles through which member's interests could be channelled to the Council.

Ms Pearmain noted that the problem was one of logistics and that the challenge was how to identify and reach out to all these associations. She pointed out that these associations were well positioned to facilitate an interface with the healers who were scattered all over the country.

Mrs Mdlalose said that there were many ways of testing the competence of a traditional healer noting that for some an apprenticeship of not less than six years was required.

Ms Baloyi (ANC) wanted to know when the Bill would be tabled in Parliament.

Ms Pearmain replied that the Bill had been published for public comment and that the outcome of this exercise would be the major determinant of when the Bill came to the National Assembly. She explained that should the public input turn out to be adverse and highly critical of the Bill then its ascendance to the house would be delayed.

Ms Baloyi asked how many healers the Department had identified if at all.

Ms Mdlalose said that it was difficult to put a finger on the exact number of traditional healers and noted that a figure of 30,000 was at one point accounted for. The Council would undertake an audit to determine the exact number of traditional healers in the country.

Dr Cachalia (ANC) inquired what would become of a sangoma who opened up a shop with no intention to practice at all.

Mr Gawula replied that the Bill made it a criminal offence to practice without being registered but admitted that the challenge would be on the side of policing and enforcement measures but hoped that the profession would be self-regulating.

Dr Luthuli asked how the final product would ensure that those who practice adhere to acceptable standards and quality of care. She expressed concern that not much thought was going into training and insisted that there must be a standard way for instance of carrying out traditional circumcision.

Ms Pearmain pointed out that the Council would address the question of qualification and standards noting that as was the case with the Health Professions Council certain basic norms and standards would be developed to guide traditional healers.

Mr Gawula offered that certain minimum standards have been set in terms of the Bill and these would have to be complied with before registration noting that where a person fails to comply the law would take its course. He however cautioned that some healers do not have formal education yet they have been practising for years hence the need not to over-emphasis the education aspect.

The Chair at this juncture cautioned members against the temptation of introducing western style practice in the way traditional healers conduct their business. He observed that traditional healing was an ancient practice that was passed down the family line from generation to generation and that it was a practice that was guided by its own norms and standards. Traditional healers qualify through either peer review or many years of apprenticeship and that traditional medicines were not processed through laboratories but that such are identified through accumulated knowledge and experience. He then appealed to members to look at the Bill on the basis of a regulatory framework rather than the level of education and training.

Ms Kalyan concurred with the Chair that indeed the Council should be alive to traditional sensitivities and avoid exposing traditional practice to new standards that were better suited to the western medical practice.

Dr Gous (NNP) said that the aim of the Bill is to get medical schemes to recognise traditional healers. Had the Department consulted the Medical Schemes Council and who determined the fees to be paid?

Mr Gawula confirmed that the Council for Medical Schemes was very much aware of the existence of the Bill and that they were awaiting the promulgation of the law before they could factor this new phenomenon into their scheme. As for the fee issue, he pointed out that section 1 of the Bill defines what constitutes fees, adding that the Bill recognised the reality that some traditional healers accepted fee payment to be made through other cultural means.

Dr Gous asked if certification would be recognised by the DTI and the Department of Labour.

Mr Gawula replied in the affirmative noting that certificates would be recognised once the law is in place.

Dr Luthuli asked the position of the issuance of death certificates in respect of patients that die in the custody of traditional healer.

The Chair interjected that as far as he was concerned registration of deaths and births was the preserve of Home Affairs.

Dr Luthuli insisted that the first person to issue a death certificate was the practitioner under whose care the patient died.

The Chair would not however entertain the question and overruled Dr Luthuli.

Meeting was adjourned.

Appendix
Traditional Health Practitioners Bill 2003

To request Cabinet approval for publication of the Traditional Health Practitioners' Bill for public comment.

SUMMARY

• the establishment of an interim Traditional Health Practitioners Council;
• a regulatory framework to ensure the efficacy, safety and quality of traditional health care services;
• control over the registration, training and practice of Traditional Health Practitioners.

BACKGROUND

Since the 1994 elections, Traditional Healers have been collaborating with Government for the purpose of formal recognition. Due to the fact that there was little information available to formulate policies the Portfolio Committee on Health was asked to conduct an inquiry focusing on:

• The desirability of a statutory council for traditional healers;
• The recognition of medical certificates by traditional healers; and
• The recognition of traditional healers by medical schemes

Public hearings were held in all provinces under the auspices of the Provincial Standing Committees on Health in 1997. The NCOP Social Services Committee co-ordinated the information and drafted the report of the Provincial hearings. The Portfolio Committee on Health conducted hearings for national stakeholders in February 1998.

The final report received in December 1998 recommended that there should be legal recognition of traditional healers as a health resource and that an interim council should be established which will be responsible for the regulation of the profession. The interim council should report back to Parliament within three (3) years and thereafter a permanent Council would be constituted provided that certain conditions are met.

Due to the preparations for the general elections in June 1999 it was not possible for the Minister to attend to the proposed legislation. A Ministerial submission containing the progress made was done on 16 September 1999. A report of the two meetings and a workshop held with the Traditional Health stakeholders was presented. Various meetings and workshops have taken place between stakeholders and the Department since 1999 and in September 2000, the Health MINMEC gave the Department of Health a mandate to implement the Portfolio Committee recommendation of establishing an Interim Council for Traditional Healers. In 2001/2002 the Department embarked on a series of roadshows for traditional healers within the provinces in order to engage traditional healers in discussion and acquaint them with the idea of becoming a regulated profession. A Forum of Traditional Health Practitioners was also formed by the Department during this period and it has met on a number of occasions to discuss legislative proposals and issues around the regulation of traditional health practitioners. The last meeting of the Forum took place in December 2002.

The Bill consists of five chapters and is similar in structure to other legislation regulating other health professions such as the Health Professions Act.

Chapter One

This chapter deals with definitions, the purpose of the Act and the application of the Act. It was decided not to specify the categories of nyanga (herbalist) and sangoma (diviner) in the Bill because research and experience have indicated that the distinctions between them are not easily drawn, that in many cases sangomas also practice as herbalists and vice versa and that there are different interpretations placed upon these terms by the various African cultures in South Africa. Consequently the term "traditional health practitioner" includes both nyangas and sangomas. In addition, traditional birth attendants and traditional surgeons have been included under the broad heading of traditional health practitioner but have also been defined in the Bill as distinct categories for regulatory purposes.

It is the intention that the Act will apply to traditional health practice in South Africa and to persons engaged or wishing to become engaged in traditional health practice in South Africa.

Chapter Two

This chapter establishes the Interim Traditional Health Practitioners Council of South Africa consisting of more than 25 members (sections 4 and 7). The Council will be a juristic person whose powers and functions are stipulated in sections 5 and 6 of the Bill. The Minister appoints the chairperson of the council. Nine traditional healers, one from each province are to be appointed by the Minister on the basis on nominations from the provinces. There must also be representation from each category of traditional health practitioner as prescribed e.g. a traditional birth attendant, a traditional surgeon and there must be three community representatives. Provision is also made for a representative from the Department of Health, the Health Professions Council and the Pharmacy Council. Sections 8 and 9 deal with vacancies on the Council and the filling of vacancies and disqualification for appointment as a member of the Council. There are provisions concerning the procedure at meetings, quorums and executive and committees of the Council in sections 10 to 14 of the Bill. Section 15 makes provision for sound financial management and imposes certain obligations upon the Registrar in this regard.

Chapter Three

This chapter covers the appointment of the registrar by the Minister after consultation with the Council (section 17). This is in keeping with certain policy directions within the Department of Health to strengthen the relationship between the Minister and the statutory professional councils. The chapter also covers the compulsory registration of traditional health practitioners, and practical matters relating to their registration, including the creation of registers, the issuing of duplicate registration certificates and extracts from the register. Provision is made in section 24 for a right of appeal against a decision of the registrar and section 25 allows the Minister to prescribe qualifications on the recommendation of the council which entitled the holder to registration in terms of the Act. Provision for conditions relating to continuing education is made in terms of section 26 of the Bill.

Chapter Four

This chapter contains provision for disciplinary and misconduct enquiries and the manner in which certain investigations may be instituted by the council. Section 29 provides for the imposition of certain penalties by the council while section 30 deals with the postponement of imposition and suspension of operation of a penalty. The Council or a member or officer of the council is given indemnity in section 34 for acts done in good faith or duties performed in terms of chapter four. Section 35 gives the Council the power to make rules relating to offences under this chapter while section 36 gives the Minister the power, after consultation with the Council, to make regulations relating to enquiries in respect of students or persons registered in terms of the Act who appear to be impaired.

Chapter Five

This chapter contains general and supplementary provisions. Section 37 deals with charges by registered persons, section 38 deals with penalties for false representation inducing registration and section 39 deals with limitations in respect of unregistered persons. The effect of this section is that no remuneration may be recovered in respect of any act pertaining to the occupation of a traditional health practitioner when performed by a person who is not authorized in terms of the Act to perform such an Act for gain. Section 40 deals with the investigation of matters relating to the teaching or training of certain classes of persons and section 41 deals with exemption from the operation of provisions of the Act. Section 42 lists the topics upon which the Minister may make regulations. Section 43 allows the council to make rules on certain specified matters.

There is a transitional provision in the Bill which essentially gives traditional healers and students a period of one year within which to register after the Act commences. The reasons for this are logistical. By all accounts there are considerable numbers of traditional healers in South Africa whose applications for registration could not all be processed within a short space of time. A further consideration is that this is the first time that traditional healers are going to be regulated. It may take some time for word to get around that they need to be regulated. A further reason is that the Council, which can only be established once the Act is passed, may need a certain amount of time to develop rules and criteria concerning competencies and training in order to be able to determine which traditional health practitioners may be registered and which others are not suitably qualified.

The Bill has constitutional implications in that it seeks to regulate an occupation which previously was unregulated. Section 22 of the Constitution stipulates that: 'Every citizen has the right to choose their trade, occupation or profession freely. The practice of a trade, occupation or profession may be regulated by law.' The Department of Health through its Legal Unit is content that the Bill is not repugnant to the provisions of the Constitution.

FINANCIAL IMPLICATIONS

There are start up costs for the Council which will have to be carried by the State. With the passage of time the Council should achieve a greater degree of financial independence as more and more traditional healers pay registration fees.

A specimen budget for the establishment of an Interim Council for Traditional Health Practitioners is reflected below. This budget will be revised in order to reflect changes in market conditions when the Bill is presented to Cabinet for approval for tabling in Parliament.

Over a three year period the total budget is estimated to be at approximately R4 104,528,00.

COMMUNICATION IMPLICATIONS

The Bill will be published in accordance with the rules of Parliament and copies of the Bill can be obtained from Mr R N Gawula of the National Department of Health, Room 1604, Civitas Building, Struben Street, Pretoria.

OTHER BODIES CONSULTED

The Department of Health has had a number of workshops in the last years at which various stakeholders were represented. In 2001/2002 the Department had a series of roadshows in the various provinces in order to facilitate stakeholder participation and discussion. A number of Traditional Healers associations and organizations were consulted and took part in the process of the establishment of the Traditional Healers Forum. All health professional sectors were invited to participate in the election of the Forum in February 2001. The Forum has met on a number of occasions since then to discuss matters affecting traditional healers. The Forum met to discuss a draft of the Traditional Health Practitioners' Bill in December 2002.