National Health Bill: deliberations

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26 August 2003
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Meeting Summary

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Meeting report


26 August 2003

Mr L Ngculu (ANC)

National Health Bill [B32-2003]

The Committee deliberated on the amendments suggested previously by the public and various organisations. The most controversial aspect that raised a lively discussion was the clause about the certificates of need (CONs). The concern that many members expressed was that it infringed rights of individuals and restricts freedom of economic activity.

Chapter 4: Provincial Health
Clause 27: Provincial health services, and general functions of provincial departments

Dr Jassat (ANC) proposed a change from "district health authorities" to "district health councils" in subsection (2)(d) and (e). The Chairperson agreed.

Dr Jassat asked whether it was the Health Department or Correctional Services that had to provide the funds for persons included in subsection (2)(m).

The Chairperson read out from subsection (2)(m) that it was the head of a provincial department that must provide health services to those people. He thought it was a function of correctional services and suggested deleting that subsection.

Mr Hoon (Adviser) said that the Department must explain its policy in this regard.

Dr Chetty (Department) said that the emphasis was on the word "provide" and would check on this.

Mrs Kalyan (DA) asked whether "port health" in subsection (2)(k) included international airports and trains?

The Chairperson asked whether all of the responsibilities under subsection (2)(h) should in fact be the obligation of the head of a provincial department.

Dr Luthuli (ANC) agreed and said that it would create an overload of responsibilities for the head of a provincial department. The development of human resources was a separate challenge.

Dr Chetty said that it fell within national standards and norms for the head of a provincial department to plan, manage and develop human resources within that province.

Mrs Kalyan said that the same list was also laid out in clause 32(1) causing duplication in the Bill. She proposed to delete that section and leave clause 27(2)(h) as is. The Chairperson decided to flag it.

Dr Cachalia (ANC) suggested the replacement of "provide" with "ensure" in subsection (2)(u) because it was a function of a municipality.

Dr Luthuli said that local government should provide environmental pollution control services but the provincial government should make sure that this happens.

Mr Hoon suggested that the subclause read "ensure rendering of" environmental pollution control services.
The Chairperson was not persuaded and decided to retain the subclause in its original form.

Clause 28: Establishment and composition of Provincial Health Council

The Chairperson asked why subclause (2)(e) says "not more than three representatives involved in the management of local government". What was the purpose of the limit?

Dr Chetty said that the idea was to have the Councillors from the Metro and the District Councils make sure that the number was even.

Clause 29: Functions of Provincial Health Council
Dr Rabinowitz (IFP) suggested to add "minimum" before "norms and standards" in subsection (1)(a)(ii) to control and make the services accountable. The Chairperson questioned why only "minimum" standards. This could undermine the legislature.

The Chairperson suggested to delete "intergovernmental" at the beginning of subsection (1)(a) and broaden the scope. Mrs Kalyan asked to leave the wording as "governmental". Mr Hoon suggested to either leave or delete the entire word "intergovernmental" and not change it to "governmental". The Chairperson decided to leave out "intergovernmental".

Dr Nel, in reference to subsection (1)(a)(i), argued that it was not fair for the Council to spell out the responsibilities of the private sector without the sector being represented. The Chairperson said that it was agreed that the government spell out the policies for both the private and the public sector.

Clause 30: Establishment and composition of Provincial Health Advisory Committee
Clause 31: Functions of Provincial Health Advisory Committee
The Chairperson decided to delete sections 30 and 31 without any discussion.

Dr Rabinowitz asked whether there was any consideration of putting academics and private persons under the National Committee, as the Section with the Provincial Committee was deleted. The Chairperson decided to have no advisory committees at all.

In the light of deletion of Section 31Dr Nel suggested to add a subclause 22(4) to make provision for subcommittees. Mrs Kalyan suggested inserting that subclause after 29(2). The Chairperson agreed.

Clause 32: Preparation of provincial health plans
Mrs Kalyan said that Section 32(1)(a) and (b) should be incorporated under Section 27(2). The Chairperson agreed.

Clause 33: Provincial consultative bodies
Mrs Kalyan proposed two amendments: the inclusion of "all" the stakeholders and to change compulsory meetings of provincial consultative body to at least "every 12 months" in subsection (3)(b). The Chairperson decided to say "necessary" rather than "all" stakeholders.

Dr Rabinowitz suggested to say "including academics, people from the private sector and the NGOs" rather than "all" or "necessary" stakeholders. The Chairperson decided to keep his proposition.

Chapter 5: District Health System for Republic
Clause 36: Establishment of district health councils
Dr Rabinowitz suggested adding subclause (3)(d) stating "ensure adherence to minimum norms and standards laid down at provincial and national level". If no "minimum" was added, that would mean that the Minister's decisions would have to be obeyed in full. There was a big difference between "minimum" and "all" norms and standards.

Dr Ntsaluba suggested adding a subclause "a district health council may create one or more committees to advise it on any matter". The Chairperson agreed.

Clause 37: Health services to be provided by municipalities
Dr Jassat suggested adding "appropriate" before "municipal health services" and "effectively and equitably" before "provided" to subsection (1). The Chairperson agreed.

Mrs Kalyan expressed the need for distinction between category (a), (b) and (c) municipalities. The Chairperson said that the term "appropriate" as suggested by Dr Jassat was already a sufficient distinction.

Ms Jacobus suggested dividing subclause (3) into smaller parts to read:
(3) An agreement contemplated in section 156(4) of the Constitution is known as a service level agreement and must provide for-
(a) the services to be rendered by the municipality;
(b) the resources that the relevant Member of the Executive Council must make available;
(c) performance standards which must be used to monitor services rendered by the municipality; and
(d) conditions under which the agreement may be terminated.

Clause 38: Preparation of district health plans
Dr Luthuli proposed adding "health manager" after "each district"; deletion of "metropolitan municipality" and "by 31 March each year" and "relevant member of the Executive Council"; and the addition of a subclause: "(2) The relevant member of the Executive Council must ensure that each health district develops and implements a district human resource plan in accordance with national guidelines issued by the Director-General".

Mrs Kalyan suggested replacing "by 31 March each year" with "in keeping with the timeframes". The Chairperson agreed.

Chapter 6: Health Establishments
Clause 40: Classification of health establishments
Dr Rabinowitz inquired on a way of categorising health establishments to clarify their meaning. She said that it was problematic and should be left out. The Chairperson decided then to delete the word "type" from subsection (a)(ii).

Clause 41: Certificate of need
Dr Rabinowitz suggested to replace subsections (1)-(5) with a new formulation because there was unlikely to ever be a fair judgement mechanism to determine whether a practitioner was needed in a particular area. The certificate of need (CON) would create uncertainty among private practitioners and it was preferable to incentivise practitioners by offering competitive government contracts to private health groups, groups of private practitioners or individual doctors, pharmacists, dentists and nurses. A CON was no substitute for a comprehensive rural development plan. She then proposed establishing a comprehensive information system accessible to all health practitioners that would provide information a district's population, demographics, local health needs, district health services and statistics. The system would be available to guide all health practitioners in the future provision of private and public health services.

Dr Gous agreed with Dr Rabinowitz to first concentrate on the motivation and the principle behind the CON rather than discussing it point by point. Other members agreed.

Dr Sibeko said that they needed a licence and a mechanism, which could be called a CON, to incorporate both the private and public sectors. The government should do resource allocation for the sake of efficiency gains within the system.

Dr Gous said that the CON should not be confused with a license. It could be seen as part of the licensing structure but not equal to licensing. The proposed system would not have the desired effect and could be destructive and destabilising. The principle was wrong and it did not look after the interests of the people.

Mrs Kalyan said that the DA would also not support the current proposal as it restricted freedom of economic activity but she agreed there was a need for a licensing mechanism. Criteria of needs were not clearly defined and it was concerning that the government had not involved the private sector. The disadvantages of the CON far outweighed its advantages and it should be deleted from the Bill.

Mrs Dudley said that she supported accreditation and licensing but was opposed to subjective conditions that undermined the health services.

Mrs Baloyi said the CON was necessary because there was much proliferation in the private health sector. It was becoming oversaturated and the burden lay with the consumer.

The Chairperson that duplication and escalation of costs were all to the detriment of the poor. The responsibility of the Committee was to work on the structure of the proposed CON to perfect it.

Dr Rabinowitz asked whether there would still be both licensing and the CON and if so, whether the licensing be measured on criteria of quality. Which body would be in charge of licensing?

Dr Ntsaluba said that the Health Professions Council would continue to determine which persons qualified to register as doctors. If a doctor wanted to open a practice, the location of that practice would be subject to the CON.

The Chairperson noted that the issues of cost, access and quality were fundamental in the discussion.

Dr Gous said that there was a need to distinguish between an individual and an institution. Most institutions already effectively had a form of license and CON. It was morally repulsive to apply the same standards to an individual as, according to the Constitution, everybody had the right to choose where to live and work.

Ms Pearmain pointed out that Section 22 of the Constitution stated that every citizen had the right to choose their occupation freely but the practice of a trade occupation or profession might be regulated by law. Therefore the CON was not an infringement of a constitutional right.

After the lunch break, Ms Pearmain explained the term "person in 41(1) meant a person, a group of persons, or juristic persons. Dr Gouws felt that in 41(a) "modify" was worrisome because if a practitioner changed his scope of practice slightly, he would be required to re-apply for a CON.

Ms Pearmain explained that if the current CON did not include modifications or additions in the scope, then the practitioner would have to re-apply. The criteria would also apply to the public service.

Ms Dudley suggested replacing "modify" with "significantly modify".

Mr Hoon stated that the word "significant" created more uncertainty since there were different observations of what was significant to different people.

Ms Pearmain offered that Section 40 provided for categories of health establishments to be identified. If a CON is awarded to a facility based on its category, then it might be possible to allow a certain amount of flexibility to allow for minor modifications.

It was agreed that if categories were used to defend having the word "modified", then the words, "within a given category" should be included.

Mr Nel felt that the term "prescribed" should be deleted from "prescribed health services" in section 41((1)(c).

Ms Pearmain mentioned health services that were not necessarily tied to a particular building or place, such as the helicopter rescue services and home-based care services and visiting community nurses. The term "prescribed health services" was designed to incorporate such services.

Ms Dudley asked if people who provide health care on a voluntary basis, such as church-based services, would have to apply for CONs. The Chairperson reminded the Committee of the presentation by the Catholic Bishops' Conference, wherein they raised the matter of church-based health care on a non-profit basis. The Director General said such services would not be subject to CON.

It was established that a practitioner with three practices would have to apply for a certificate for each practice.

The Committee agreed to extend the period of grace in which practising professionals could acquire their CON from one year to two years.

Section 41(2) states that anyone who applies for a CON must pay a prescribed fee. Ms Dudley suggested that it was worth distinguishing between profit and non-profit organisations.

Ms Pearmain suggested placing such categorisations of health establishments in Section 40(a) which deals with the classification of health establishments.

The Chairperson raised the point that non-profit organisations sometimes do engage in profit-making. Ms Pearmain said that the definitions of "profit" and "non-profit" should be considered. She reminded the Committee of the Non-profit Organisations Act.

Mr G Hoon mentioned Section 21 of the Companies Act that would apply to non-profit health establishments.

According to section 41(3), there are a number of factors that the Director General must take into account before issuing a CON. As suggested by the SA Catholic Bishops' Conference, one of those considerations should be whether or not the health establishment was a profit or non-profit-making entity.

The Chairperson advised the legislative drafters that in the issuing or renewal of certificates, consideration should be given for non-profit organisations in a prescribed manner. It was decided to include a provision for non-profit organisations as 41(3)(l). The legal advisers would formulate the appropriate wording.

Ms Kalyan asked for clarity on "an appropriate mix" in 41(3)(c) and how the suggested actuarial function in 41(3)(j) would be accomplished.

The Director General said CONs would be issued to both public and private health establishments. In any geographical area, the number of medical aid members has a bearing on the capacity of the private establishment. It might be that there are places where the public sector cannot provide facilities, especially in poor communities. In those cases, it made sense to give priority to non-profit entities in licensing.

The Chairperson responded to Ms Kalyan's second question that this provision was simply to ensure that the establishment was above board, and "not fake". CONs cannot just be given without due regard to the sustainability of a particular health establishment.

Dr Chetty explained that the issue around financial sustainability related to issues of cost. The financial sustainability of new ventures, especially in markets that are already saturated, must be taken into account.

Dr Jassat suggested adding to the end of 41(3)(h) "and health workers".

Dr Rabinowitz asked if the regulations for the requirements of the CON had been implemented already and if any applications for such certificates had been made. Some practitioners were challenging the government in court over the issue.

The Director General responded that in terms of the Pharmacy Act which had just been passed, and which also requires applications for licences, a number of pharmacies had started applying for licences.

There was a case of a doctor who had gone to court, but not to challenge Government over the legitimacy of the need for dispensing licences. The argument was that the time allowed for new licences would not be sufficient.

With regard to 41(6)(c), Ms Dudley asked if this provision was specifically aimed at church-based facilities where people had moral objections to abortions for example, to get them to comply.

The Chairperson offered that although people were allowed to have moral objectives, they should not obstruct the state in fulfilling their responsibilities.

Ms Kalyan asked if a refusal to provide a service based on moral objections would be viewed as a violation.

Ms Pearmain responded that, should a health provider refuse to provide a service, they should refer the person to someone else who would be prepared to provide that service.

Dr Luthuli stated that people were being refused termination of pregnancy services (TOP) without being referred elsewhere. She asked what mechanism could be put in place to ensure that this was not common practice.

Ms Pearmain pointed out that it was an offence to refuse to refer according to the Choice on Termination of Pregnancy Act. Those themselves guilty of this offence could be prosecuted.

Referring to 41(6)(b) that the Director General could withdraw a CON if the health establishment or provider constituted a serious risk to public health, Dr Gouws asked if a practitioner who misbehaved would be under the discipline of both the Department of Health and the Health Professions Council.

Dr Chetty explained that "serious risk" would include for instance, a facility that experienced a haemorrhagic fever outbreak; and a practitioner who proved negligent. A facility that posed as a "serious risk" would be in danger of having its having its CON withdrawn, while a practitioner who posed a "serious risk" would be disciplined by the Health Professions Council. Double penalties, therefore could possibly be imposed for the health establishment and the practitioner practising at such an establishment.

Mr Nel referred to 41(7), which stated that the Director General must inform an applicant in writing of his reasons for a CON refusal. A timeframe should be given within which the Director- General should communicate this information.

Mr Hoon said that such a provision was not necessary. Should applicants think that a reasonable time period has elapsed since the application, they can approach the court to compel the Director General to make his reasons known.

Ms Pearmain added that a clause could be included to inform the public of their right to approach the court, should they feel the need to do so.

The Chairperson advised that the provision state the Director General should inform the applicant of reasons for his refusal "within a reasonable time"

Clause 42: Duration of CON
Members could initially not determine how long the CON should remain valid although the Bill advised ten years. Ms Baloyi recommended a longer period of twenty years, taking into consideration reasonable time to get a practice properly on its feet.

Ms Dudley felt it was more important to set a lower limit. The Committee finally decided that a CON would be valid for not less than ten years, and not exceed twenty years.

Clause 43: Appeal to Minister against Director General's decision
Dr Rabinowitz felt that this provision was ill-advised since it meant that the Minister and the Director-General were "not working in tandem". She suggested that appeals go before a magistrate.

The Chairperson explained that the Director-General was an accounting officer while the Minister was a political head. The Minister would look at an appeal from a different angle to the Director-General.

Dr Cachalia suggested that an aggrieved person should be allowed to apply either to the Health Professions Council or go to the courts.

The Chairperson explained that the Health Professions Council does not issue CONs. Furthermore, anyone who was aggrieved by both the Director-General and the Minister was free to go court.

Dr Gouws responded that in court, an aggrieved person could only ask for an administrative review to determine if he/ she had been fairly treated. He hoped that an appeals body would be established.

Ms Pearmain explained that administrative law had changed considerably. The Constitution allowed a court to look substantively into fairness and not only in terms of procedure. If a person's rights had been affected, the court had the power to go into the merits of the case.

The Committee agreed to insert subclause 3(c), that the Minister should provide written reasons, should s/he concur with the decision of the Director-General.

Clause 44: Regulations relating to Certificates of Need
Dr Cachalia proposed the following amendment in subclause 2(a): "must ensure the equitable distribution and rationalisation of health services, with special regard to vulnerable groups such as women, older persons, children and people with disabilities".

Clause 45: Offences and penalties in respect of Certificate of Need
Ms Dudley asked, in terms of this provision, if community health workers and home-based caregivers would be penalised for providing services without a CON. This provision might discourage people from providing essential basic homecare services in the community.

The Chairperson requested that the drafters clarify the position of such health care providers. Wherever services were provided, whether for profit or not, practitioners should not deliver lower grade services, while defending themselves on the basis of their religion or their non-profit status. He referred Ms Dudley to Section 41(3), saying that this section sufficiently dealt with her question.

Dr Chetty was of the opinion that it was fundamentally important that Ms Dudley's concerns be addressed in supplying sufficient information in the Bill.

Clause 46: Provision of health services at public health establishments
On the provision in sub clause (4) for the Minister to appoint a hospital board, Dr Rabinowitz felt that a board should be elected and not appointed.

The Chairperson explained that this provision only applied to central hospitals in the country.

Dr Jassat said that the election of a hospital board would involve the entire population. The Committee agreed that in appointing hospital boards, the Minister must ensure that such boards must be completely representative.

Chapter 7: Human Resources Planning
Clause 55: Forum of Statutory Health Professional Councils
Ms Pearmain informed the Committee that the numbering inconsistencies in sub clause 55(3) were due to drafting mistakes which would be duly amended.

The meeting was adjourned.


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