National Health Laboratory Services Amendment Bill [B15B-2017]: negotiating mandates
NCOP Health and Social Services
09 October 2018
Chairperson: Ms L Dlamini (ANC; Mpumalanga)
The Select Committee on Social Services met to consider negotiating mandates on the National Health Laboratory Services (NHLS) Amendment Bill. The Committee received mandates from all the provinces, except Northern Cape. The province has not finalised its negotiating mandate, because the public hearings have been postponed. All provinces voted in support of the Bill with a few provinces proposing amendments.
Eastern Cape said the principal Act was vague on reappointments to serve on the board. This may lead to NHLS having lifetime board members. It was the view of the Eastern Cape that a board member must not serve more than two terms.
KwaZulu-Natal (KZN), among others, proposed that the removal of the provincial representatives in the board in clause 5 which substitutes section 7 of the principal Act needs to be reconsidered as provincial concerns needs to be elevated to the board. There was a suggestion that the provincial representatives can be reduced by clustering services in accordance to their demographics.
Limpopo, on clause 5, proposed that the Minister should appoint the board in consultation with the National Health Council (NHC) and each discipline of laboratory medicine should be represented in the board so that it is constituted by a variety of expertise in pathological services. On clause 16, the province rejected the one month period to publish the regulations and propose that the period should remain as three months as stated in the principal Act.
Western Cape supported the Bill, but proposed amendments to sections 4,7,15 and 20. In addition, the province proposed that section 25 not be repealed. The power of the Minster to call for remedial steps when there is non-compliance must stand.
The Department, in general, welcomed the proposal by the provinces. For example, on the proposed amendments by KZN, the Department agreed that clustering could work, but that ‘demographics were broad and it could mean anything. The Department proposed tightening of that provision..
On Limpopo’s proposals, the Department said it was not recommended to include provisions on how funds are appropriated. On consulting training institutions, she said the core business of NHLS was to run diagnostic lab services and the people who render services on behalf of NHLS operated within a training forum same as trainee doctors and nurses. It was adequate to keep it broad at ‘providing adequate support and training’. In terms of reducing the consultation period, she said in most cases where the Department has published a three-month call for comment, there has been an extension request.
The Committee questioned whether the Bill would be finalised before Parliament closes and said the Department needed to more time to look that the proposed amendments by provinces and what could be factored in.
The Chairperson said the negotiating mandates will show the amendments provinces are advocating. The Committee received mandates from all the provinces, except Northern Cape and she said maybe there will be clarity what the problem was. She requested the provinces to read out their negotiating mandates.
Eastern Cape Provincial Legislature (ECPL)
The province voted in favour of the Bill, but noted the following:
-The word ‘technikons’ in Section 5 (2)(d) should be deleted and it was motivated by the fact technikons no longer existed in South Africa. It was now known as universities or universities of technology.
-On reappointments to serve on the board, the principle Act was vague, because it did not provide for how many times a board member can be reappointed to the board. This may lead to NHLS having lifetime board members. It was the view of the Eastern Cape that a board member must not serve more than two terms. It was therefore proposed that Section 9(4) be amended as follows: ‘The members of the board should hold office for a period of at least three years as determined by the Minister at the time of appointment, but reappointment must not be more than once.’
- On appointment of former board members of the dissolved board, the province appreciated that the Bill gives the Minister the powers to dissolve as outlined in Section 10A. However, section 10A(5) allows for the reappointment of persons that were part of the dissolved board without limiting the number of the members of the dissolved board that can form part of the new board. The Eastern Cape is of the view that if this clause is left as is, the Minister can appoint people who were in the old board who will constitute the majority of the new board. The reasons as to why they were dissolved will again manifest in the new board. It is proposed that section 10A (5) of the Bill be amended as follows: “The Minister may appoint to the new board a person who was a member of the board that was dissolved in the terms of this section provided that the persons that were members of the dissolved board shall not constitute more than 40% of the new board”.
Free State Provincial Legislature (FSPL)
The province voted in favour of the Bill without any proposed amendments.
KwaZulu-Natal Provincial Legislature (KZNPL)
KZNPL supported the NHLS Amendment Bill but noted the following needs to be clarified before the final mandate:
-The removal of the provincial representatives in the board in clause 5 which substitutes section 7 of the principal Act needs to be reconsidered as provincial concerns needs to be elevated to the board. There was a suggestion that the provincial representatives can be reduced by clustering services in accordance to their demographics. It is therefore proposed that Section 7(b) of the principal Act be inserted in clause 5, alternatively, a provision proposing clustering of provinces in accordance to their demographic be inserted in clause 5.
Limpopo Provincial Legislature (LPL)
Limpopo province supported the Bill but proposed amendments to clauses 3, 5, 6, 9, 14 and 16. On clause 5 it was proposed that the Minister should appoint the board in consultation with the National Health Council (NHC) and each discipline of laboratory medicine should be represented in the board so that it is constituted by a variety of expertise in pathological services. On clause 16, the province rejected the one month period to publish the regulations and propose that the period should remain as three months as stated in the principal Act.
Mpumalanga Provincial Legislature (MPL)
Mpumalanga supported the Bill, but proposed amendments to clause 5 that speaks to the composition of the board.
Northern Cape Provincial Legislature (NCPL)
The province has not finalised its negotiating mandate, because the public hearings have been postponed. However, the province gave the go ahead to the Select Committee to consider negotiating mandates from other provinces.
North West Provincial Legislature (NWPL)
North West voted in favour of the Bill but made a few recommendations and comments that included:
-The Bill must be explicit on the development of the career path of young people who want careers in medical and laboratory services.
-The Bill should include a clause compelling the Departments of Higher Education and Training and of Health to assist youth organisations within the health sector with bursaries to further their studies and training at institutions of higher learning.
-The Bill gives too much power to the Minister over the board instead of the Minister being accountable to the Board. This could impact on service delivery.
Western Cape Provincial Legislature (WCPL)
Western Cape supported the Bill, but proposed amendments to sections 4,7,15 and 20. In addition, the province proposed that section 25 not be repealed. The power of the Minster to call for remedial steps when there is non-compliance must stand. Motivations for change request to sections 4 and 15 are to:
- Enable the Western Cape Government Health (WCGH) to send urgent tests to a laboratory in close proximity to:
- Improve accessibility;
-Improve turnaround times;
-Improve patient management-diagnose/ initiate treatment;
-Reduce length of stay;
-Improve patient outcomes;
-Multi-level savings for the Department and patient.
- Alignment with NHI principles.
- Discourage/prevent monopoly of services
Gauteng Provincial Legislature (GPL)
The Chairperson said she has a mandate from Gauteng in which the province supported the Bill, with only one proposed amendment. A copy of the negotiating mandate will be sent to Members. She invited input from the Department of Health (DOH).
Input by the Department of Health
Ms Precious Matsoso, Director-General, DOH, said, on the Eastern Cape comments, the Department welcomed the recommendations. On the province’s proposal on the appointment of board members, she did however note that percentages are not used in legal drafting – it has to be an absolute number.
On the proposed amendments by KZN, by way of background, she said when the NHLS was first established, laboratory services were not available in the former homelands. The idea was to spread the services to include the whole country for everyone to benefit from the services. Demographics were broad and it could mean gender or age, but tightening of that provision can be done.
The Department welcomed the proposals on board appointments. Historically, the Minister would drive the MEC to nominate members, but as an example she said the Minister wrote a letter to Limpopo in July 2016 with no response and to the Eastern Cape in February 2018 with no response. The Minister also wrote to the Northern Cape in February with no response and those vacancies remained to date. The proposal of the provincial clustering could work in this regard. The NHC functions were advisory in nature and the wording that the Minister should “in consultation with the NHC” in essence said the Minister must agree with junior officials. The phrase “the Minister must, after consultation” as it was written now gave the Minister the final decision. According to the National Health Act the NHC did not make decisions, but only advised and this proposed amendment might change the Council’s mandate.
On Limpopo’s proposals, Ms Matsoso said it was not recommended to include provisions on how funds are appropriated. On consulting training institutions, she said the core business of NHLS was to run diagnostic lab services and the people who render services on behalf of NHLS operated within a training forum same as trainee doctors and nurses. It was adequate to keep it broad at ‘providing adequate support and training’. In terms of reducing the consultation period, she said in most cases where the Department has published a three-month call for comment, there has been an extension request.
On Mpumalanga’s board composition proposal, she referred to KZN’s clustering proposal as a more suitable alternative. She said she was not sure why a Minister would have to consult the President to constitute a board for lab services. The Minister did not account to the board, but rather the board accounted to the Minister. On including youth in the board composition, she said it was a technical board that made decisions on the kind of tests that must be performed. There are qualified young people that can be considered within the bounds of the object of the Bill.
Referring to the Western Cape input, Ms Matsoso said the funding model might address some of the proposals. The province’s clause 4 proposal mirrors that of Limpopo. It is only the Minister of Finance that can instruct the Minister to make fee determinations.
Input by the Parliamentary Legal Adviser
Adv Barbara Loots, Parliamentary Legal Adviser, said on the Eastern Cape proposed amendments, the Department has already said ‘technikons’ can be easily amended. On the reappointment of board members, she said her only concern from a drafting perspective is that the proposal as it currently stands, is included under the ‘chairperson and vice chairperson’ section of the Bill. If it was to be included there, it would bring in that lifetime limitation to chairpersons and vice-chairpersons. She proposed that it should be moved to the section that deals with board composition. She also noted that the “new” idea that section 10 included in the Bill is agreeable and the one concern is that from a legal drafting perspective is to try and simply it more so that it reads easier, by which she proposed that it be added as a sub-clause. On the KZN’s proposed amendment on clustering she noted that if the Department supports it and Committee instructs them, then it can be included into the proposed amendment as well. On the “in consultation” versus “after consultation”, from a drafting perspective she agreed with the Department and the National Health Act.
With regard to the Limpopo submission she feels that the proposed amendment makes logical sense in regards that it should provide and support in terms of general purpose of the Principal Act and Amendment Bill. On the proposal to reduce consultation period, the rule of thumb was that it must be reasonable and reducing it to month almost created a limitation.
On the Mpumalanga negotiating mandate, she said the President hires the Minister and the Minister is accountable to the President and by default, to Parliament in terms of the Constitution.
On the Western Cape, she said for the Committee to amend a Section in the principal Act that is not in the Amendment Bill, Members will have to seek permission from The House, She will take instructions from the Committee as to what Members want to include in the Draft Bill. She asked for guidance in terms of the 40% proposal, i.e. what the number would be.
The Chairperson thanked Adv Loots and the Department and questioned whether, in light of the time available to the Committee in the final term, if it would be possible to vote given that Parliament will be shutting down soon. The Department should be given time to go and look at the proposals to see to what extent they are going to factor it and see that most issues that were mentioned were already captured. There are things that will be addressed in the regulations. She thanked everyone for their input.
Meeting was adjourned
- Eastern Cape Provincial Legislature: Negotiating Mandate
- Free State Provincial Legislature: Negotiating Mandate
- KwaZulu Natal Provincial Legislature: Negotiating Mandate
- Limpopo Provincial Legislature: Negotiating Mandate
- North West Provincial Legislature: Negotiating Mandate
- Western Cape Provincial Legislature: Negotiating Mandate
- Mpumalanga Provincial Legislature: Negotiating Mandate
- National Laboratory Service Amendment [B15B-2017]
- National Health Laboratory Amendment Bill [B15A-2017]
Khawula, Mr M
Mampuru, Ms T
Mpambo-Sibhukwana, Ms T
Mthethwa, Mr JM
Samka, Ms P
Stock, Mr D
Zwane, Ms L
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