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SOCIAL SERVICES SELECT COMMITTEE
6 September 2000
NATIONAL HEALTH LABORATORY SERVICE BILL: BRIEFING
National Health Laboratory Service Bill
The Committee was given a clause-by-clause briefing of the National Health Laboratory Service Bill which aims to provide for the amalgamation of all public health sector laboratory services and provide for the establishment of a single entity to be known as the National Health Laboratory Service. A thorough discussion ensued. A week extension has been given for negotiating mandates. The committee will reconvene on 13 September 2000.
Dr Nicholas Crisp outlined the objects of the Bill indicating that its purpose was to establish a single public entity, the National Health Laboratory Service ('the Service") that would amalgamate all existing laboratories in the public health sector except those that are managed by the South African Military Health Service and the South African Police Health Service. Research laboratories belonging to the health science faculties of the Universities are excluded from the service but may be incorporated by agreement.
Clause by clause briefing on National Health Laboratory Service Bill
- Clause 1 provides for the definitions.
- Clause 2 provides for the exclusion of certain laboratories from the operation of the Bill, i.e. forensic science services provided by the SAPS and the South African Military Health Services. The Bill also seeks to exclude research laboratories belonging to the health science faculties of the Universities, which, however, may be incorporated by agreement.
- Clause 3 provides for the establishment of the Service, a juristic person to be known as the National Health Laboratory Service.
- Clause 4 provides for the overall objects of the Service, which, inter alia, are cost effective health laboratory service to all public sector health care providers.
- Clause 5 provides for the functions, powers and duties of the Service. The following comments were made:
5(1)(a) provides that the Service must constantly make an assessment of where services are needed with an object of providing efficient and cost effective laboratory services, and
5(1)(c) provides that the Service must attempt to provide the services "within available resources" as contemplated. It was stressed that this would require an efficient budget being allocated towards the realisation of the stated objectives.
5(2)(a) empowers the Service to undertake operational research either on its own or in partnership with a tertiary education institution. It was highlighted that the object behind this was to ensure that the Service does not get left behind in the field of scientific research and in providing an efficient service.
5(2)(f) empowers the Service to purchase any movable or immovable property. In this regard it was indicated that the majority of the purchases are likely to be moveable property purchases e.g. laboratory equipment etc.
5(2)(g) is a fairly extensive clause.
5(2)(h) empowers the Service to register any patentable designs invented from time to time, and that the Service should have a right to register any patents.
5(2)(k) and (l) deal with the Service's right to open banking accounts and make out any promissory notes or bills of exchange. The real object here was to equip the Service with the ability to discharge its debts.
5(2)(p) empowers the Service to form an interest in any other company for the purposes of acquiring its business or for any other purpose directly benefiting the service. The purpose behind this would be to enable the Service to enter into a partnership with any company or corporation which has developed or invented any medicinal substances that may be of interest to the Service.
5(2)(s) empowers the making of donations to further the interests of the Service, which, it was submitted, would also have to be budgeted for.
5(2)(t) has been made in contemplation of the Services' execution of legal contracts where it act in a capacity therein stated.
5(2)(v) is an employment provision which enables the Service to provide wages for services rendered. The Services powers to act under subclauses (w) and (x) is a matter dealt with in the Rules (s27). 5(2)(z) has been designed to enable the Service to dispose of by-products for scientific research such as guinea pigs sold to universities for research.
- Clause 6 provides for control of the Service
- Clause 7 provides for the composition of the board, with the members appointed by the Minister of Health. It was indicated that in regard to subclause (a) the chief executive officer is the only employee of the Board.
- Clause 8 provides for the appointment of Board members, that the Health Minister must appoint the members contemplated in clause 7 (b), (c), (e), (f) and (g) after consultation with the relevant bodies and institutions.
- Clause 9 provides for the appointment of the chairperson and his deputy to the Board. It was noted that the Minister is not obliged to appoint a vice chairperson but must appoint a chairperson to the board, and that any person acting as a chairperson in terms of subclause 9 (1) must exercise all the functions and all powers of the chairperson.
- Clause 10 provides for the disqualification from membership of the Board and vacation of office. Clause 10 (1) prohibits the appointment of non South African citizens from the Board or if they're not ordinarily resident within the Republic. There was a difference in opinion regarding the above subsection in that others felt that other persons who were not SA citizens should be allowed to sit on the Board due to their technical experience while another school of thought was in favour of the idea that only SA citizens should be allowed to sit on the Board. Subclause 10 (3) contemplates a situation where a member of the Board dies, where the Minister may appoint another person as a substitute for the unexpired portion of the time for which the deceased member was appointed.
- Clause 11 deals with the meetings, procedures and the establishment of quorums in the meetings of the Board.
- Clause 12 deals with the appointment of the committees from among the members of the Board.
- Clause 13 provides for the appointment of the executive management committee of the Board. It was contended that this clause has been deliberately inserted. The Board has a sole prerogative of deciding who must be on its executive management.
- Clause 14 provides for the appointment of Staff of Service, that the Board may from time to time and on such conditions as it may determine appoint officers and employees to assist in the performance of its functions. Subclause 14 (2) (a) & (b) allows the Service, in addition to its existing officers and employees, make appointment of officers in terms of the Public Services Act of 1994 and persons placed at its disposal in terms of the agreement between the Service and such body or person. Explaining the reasons behind this subsection, Dr Crisp said that the reason for the insertion of these subsections was that there are times when a person from a government department must be seconded to the Service to perform certain functions. Subclause 14 (3) (a) provides for reimbursement to be made by the Service to the state or the employer in respect of a person placed at its disposal in terms of subsection 2 (a) or (b).
- Clause 15 provides for the purchasing of services by the public health and private health service providers.
- Clause 16 contains provisions regarding the rendering of laboratory services to foreign countries, that is, the Service may render laboratory services in the Republic for any country which has requested a laboratory service, or render a laboratory service in a country outside the Rep. Which has requested such a service, collect specimens for the purposes of having same tested in the Rep. etc. It was explained that these provisions had been precipitated by the important role South Africa has to play within the SADC countries - to an extent that, as an example, where Mozambique requests the Ministry of Health to provide laboratory services the Service must devise plan for the furnishing of same. Subsection (d) & (e) are fairly contentious provisions in that human tissues are regulated by the Human Tissues Act of 1983.
- Clause 17 deals with discoveries, inventions and improvements by employees of Service and other persons. It was conceded that section 17 might be a very tricky area in terms of preservation of intellectual property rights, however, the real mischief behind the insertion of this clause was that if an individual were to make any scientific medical discovery such as an AIDS vaccine, that this discovery be made available for the good of mankind.
- Clause 18 deals with the finances of the Service, that such would consist in money derived for services rendered in terms of s20, any income earned on moneys deposited etc.
- Clause 19 deals with the defraying of expenditure, that all expenditure incurred by the Service under the Bill shall be defrayed from the funds of the Service.
- Clause 20 concerns the charges for the Services.
- Clause 21 makes provisions for the borrowing powers of the Service, that the Service may borrow money as authorised by the Minister of Finance in terms of the Public Finance Management Act of 1999.
- Clauses 22, 23 & 24 deal with the keeping of financial records, the audit and the annual reports of the Service.
- Clause 25 deals with the regulation of legal action that can be taken by the Minister of Health against the Service.
- Clause 26 makes provision for a delegation of functions and powers by the Board, which may be entitled to do so by means of a resolution.
- Clause 27 empowers the Board to make Rules in as far as they are not inconsistent with the Bill/Act, which inter alia, would include making rules regarding the proceedings at meetings and the business of the board; the period for which members appointed to the executive management committee in terms of clause 13 must hold office; etc. It was indicated that the sole object of appending these Rules in the Bill was that only but a few public entities have Regulations.
- Clause 28 provides that the transitional provisions in the Schedule must be applied as the substantive provisions of the Bill.
The Chairperson commented that the Committee now had a fairly extensive idea of what the Bill was about.
Ms Lydia Johnson (ANC KZN) requested clarity on whether there was any difference between 10 (1)(a) and 10 (2)(f) in terms of membership to the Service because, as far as she understood it, a non-South African citizen would not qualify for appointment to the Board. She said that Clause 5 on the issue of partnerships appears to be couched in broad terms and suggested that it needs to be specific.
Mr Boyce Willem (ANC Eastern Cape) asked why Clause 7 (Composition of the Board) excluded the Unions (labour) from the Board and noted that there has been some concern among labour union members that the Bill does not provide for them to be on the Board of the Service. Further what provisions does the Bill seek to make for the employees that are retrenched?
Rev Moatshe (ANC North West) indicated that the Bill was silent on the accessibility to the laboratories and that huge problems could be encountered by persons from the rural areas. Further conditions of service were not set out in the Bill.
Mr Tony Marais (Free State) wanted clarity on what constituted "specimens" and, "whether the Bill complied with the requirements of democracy and openness".
Dr Nicholas Crisp replied as follows:
- In response to Ms Johnson's questions about s10, he provided a practical example and said that if somebody were living in South Africa and that person emigrated to the United States, such person would be disqualified from accepting office as member of the Board of the Service.
- As to whether there was a need at all to form partnerships with other institutions, he said that there was a crucial need to establish strong partnerships with universities as this would help in scientific research and development.
- On the composition of the Board, he said that initial opinion seemed to be in favour of seconding the labour unions to be a part of the Board and to have a say in the process. However, subsequent legal advice solicited from Prof Halton Cheadle from Cheadle Thompson & Haysom was that to involve the Unions in the Board could have resulted in a creation of a conflict of interests, hence the decision to exclude the unions was taken.
- On the issue of retrenchments, Dr Crisp conceded that the Bill currently does not contain any rules to deal with these. However, he indicated that there are Rules currently being drafted which will deal with what procedures and channels the Board ought to comply with regarding retrenchments. He later said that these rules would be made available before the Bill becomes law.
- On whether the Bill made provision for accessibility of laboratories in rural areas, he said that this issue has been constantly debated. He conceded that ways need to be devised to ensure accessibility of the Service to the rural areas. However the Board would ensure that it affords quality services to all members of the public and that accessibility should rather be understood as accessibility to result.
- On the conditions of service question, Dr Crisp indicated that the conditions of service are regulated by labour legislation and it was not felt that the conditions of service should be included in the Bill in casu. He further indicated that these matters are to be governed by s27 (c)-(f) of the Bill.
- On the Bill complying with the requirements for democracy and openness, Dr Crisp said that if anything done in terms of the Bill once adopted, is contrary to the provisions of the Constitution, the act or conduct would be over-ruled on the grounds of unconstitutionality.
The Select Committee Chairperson, Ms L Jacobus, requested clarity on:
- the definition of "health laboratory service" as contained in the definition section
- the powers of the Service under s5(2)(e) of the Bill;
- the composition of the Board members in terms of s7(b) of the Bill;
- the appointment of the members of the Board in terms of s8(4) of the Bill and
- did s27(d) deliberately omit the inclusion of the Basic Conditions of Employment Act as one of the statutes which ought to have been included.
In reply, Dr Crisp indicated that:
- reference ought to be made to the definition of the "Service" on the explanatory memorandum of the Bill;
- the intention of s 5(2)(e) was not to make it open-ended, though he conceded that the wording thereof was couched in fairly expansive terms;
- in s7(b) there is no prescription on how the members of the Board are determined. The Minister of Health must however consult in terms of s8(1) how the members of the Board will be appointed; that in terms of s8(4) the onus was on the Minister to decide whether or not to renew the appointment again - however the appointment was nevertheless indefinite;
- the Basic Conditions of Employment Act ought to have been incorporated as one of the statutes in s 27(d).
All provinces (except Northern Cape representatives who were absent during the proceedings) noted the late receipt of relevant documents and requested an extension of time for the provincial negotiating mandates on the Bill. The Chairperson granted a one week extension for the negotiating mandate. She indicated that the Committee will reconvene on Wednesday 13 September 2000.
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