National Health Bill: deliberations

Meeting report

HEALTH PORTFOLIO COMMITTEE
27 August 2003
NATIONAL HEALTH BILL: VOTING

Chairperson: Mr L Ngculu (ANC)

Documents Handed In:
National Health Bill [B32-2003]
Committee Amendments to National Health Bill

SUMMARY
The Health Portfolio Committee deliberated on the amendments suggested previously by the members of the public and various organisations. Some controversial aspects that raised a lively discussion included the control of use of blood products, prohibition of reproductive cloning of human beings, identification of health research priorities, health officers and compliance procedures and regulations.

The Committee voted on the Bill which was passed with amendments. The opposition parties opposed several clauses particularly Clauses 41 - 45, 51, 61, 62, 84, 86 - 94, 91 and 95

MINUTES
Chapter 8: Control of Use of Blood Products, Tissue and Gametes in Humans
Clause 58: Establishment of national blood transfusion service

The Chairperson referred to Clause 58(c) dealing with blood fractionations and the different submissions made concerning this issue.

Ms S Kalyan (DP) asked who would be responsible for blood fractionations and its cost implications.

The Chairperson asked why the process should be separated.

Mr Hoon said that fractionations were dealt with under the Medicines Act, and that anything dealt with now would have to be considered for amendment in other sections, particularly the Medicines and Pharmacy Act.

The Chairperson said that he would have to disagree until the Medicines and Pharmacy Act was brought to his attention. He said that the abovementioned Acts would have to satisfy the matter of blood fractionation. In 58(2) and 58(3) blood fractionation is mentioned again. The Committee agreed to both.

Dr Jassat (ANC) pointed out that section 68 had been excluded from section 69. He said that donations by people are excluded from section 68.

The Chairperson sought clarification and then suggested that the issue be revisited.

Dr Jassat explained that voluntary donations would be included and asked why this should be so as the organs of a deceased person could be used, and not those of a living voluntary donor. He presented two options: either exclude 68 or remove "exclusion of 69" from this section. The Committee agreed that section 69 should be left as is.

The Chairperson mentioned a point raised that developing a market for human tissue should be avoided.

Dr S Gous (NNP) suggested establishing an organ procurement service similar to that of the blood transfusion service.

Ms Baloyi (ANC) asked whether there would have to be consultation with the relevant stakeholders.

Dr Gous said that it would serve as an enabling paragraph for the Minister to undertake such a matter.

The Chairperson expressed concern that people outside government would feel that the implementation of Dr Gous' proposal would be "legislation in ambush" as they might have been interested in making comments on this issue.

Mr Hoon said that mechanisms for consultation could be built into the Act, but would entail more than just a short provision.

Dr Chetty (Department) pointed out that section 96 also made provision for this aspect.

Ms Kalyan referred to 58 (a)(1) dealing with the suggestion for an organ procurement service, saying the intention was to regulate organ donor and allocation and stop illegal trading in organs.

Dr Rabinowitz (IFP) suggested that there be a non-profit organisation to deal with blood and another for organs. The Chairperson asked what the legal implications would be.

Mr Hoon said that whole structure of Chapter 8 would have to change as in 65(4) it was stated that it was an offence for people to receive any financial or other rewards for donation. Consequential amendments would have to be made.

The Chairperson said that a compromise should be reached to avoid the Bill being challenged. The Department should consult with all people involved and return next year with a minor amendment. It should be left as prescribed under (66)(2). He turned to section 60.

Dr Rabinowitz felt that not much was forthcoming from the scientific community on cloning, embryos etc. The Minister has disallowed it, thereby leaving it almost completely unlegislated. Factories should not be able to deliberately produce human embryos, unless used for research with the permission of the donor. In the case of reproductive tissue or birth products, donations should only made with the permission of the mother. Concerning deceased persons, permission from either a living will or approval of the next of kin must be provided together with the approval of a magistrate.

Ms Dudley (ACDP) said that a market would be created for aborted foetuses if the legislation was left as is, and the mother's signature would not be difficult to attain. Women might be encouraged to become pregnant in the hope of receiving money for foetuses.

Dr Jassat pointed out that Dr Rabinowitz's concern was covered in section 60 and section 62 that prohibited cloning, and therefore the Bill addressed both concerns.

The Chairperson asked whether the farming of embryos was also covered by the Bill.

Dr Rabinowitz said that it was allowed if licensed by the Minister. The issue should be clarified to close the gap between wanting to start a factory or donating tissue to regenerate a part of the body.

Ms Dudley said that there was a notification and that it was not that the Minister had secret criteria for the basis of granting permission.

Dr Rabinowitz asked whether it would be possible to have public hearings for views on the regulation for informed input to the Minister.

Dr Chetty said that the intention was to limit the activities raised by Dr Rabinowitz but also to maintain the beneficiary effects.

Clause 62: Prohibition of reproductive cloning of human beings
Dr Rabinowitz referred to 62(5), and asked about provision for the products from the deceased or abandoned foetuses. Dr Jassat said that these concerns were covered in section 67.

Dr Eddie Mhlanga said that an embryo was not a foetus at 14 days, but that consent was necessary from the donor as women could be exploited without being informed about the purpose of the donation. The idea was to prevent the creation of such a market.

Ms Dudley pointed out that young people would still be encouraged to make money in this way. 62(4) stated that it was acceptable if findings were recorded if the foetus was less than 14 days old. A market was still being created specifically for that purpose.

The Chairperson explained that the overall intention was not to create a market and there were checks and balances.

Dr Mhlanga said that was especially difficult with a clause on informed consent. Antibiotics could have an effect on a woman's pregnancy, and this kind of research would inform as to which substances could be taken during pregnancy and not harm the mother and foetus.

Ms Dudley said that avenues were being opened for people to reproduce to generate money.

Dr Rabinowitz asked why 73(3) was included. Ms Dudley explained that some regulations could get in the way of emergencies like heart transplants, but that the Committee should discuss it. Dr Chetty said that it had been consistent with the objects of the Act.

Ms Kalyan asked about duplications of functions in the relationship between the National Health Research Committee (NHC) and the Medical Research Council (MRC). The MRC was established by separate legislation allowing it to offer services to the public and private sectors and not as a regulator of research in the public sector. The NHRC advised on the kind of research to be carried out by public health authorities.

Dr Chetty said that there were a number of other bodies involved in health research and their constitutions would have to be considered. Ms Kalyan sought clarification on whether the MRC would be represented and under which section. The Chairperson explained that the MRC was one of a number of research bodies, but not a co-ordinating mechanism to monitor research in the country.

Chapter 9: National Health Research and Information
Clause 75: Identification of health research priorities

Ms Twala wished to introduce a new 75(2)(d) as follows: "the health needs of vulnerable groups such as women, children, older persons and people living with disabilities". (e) would deal with the health needs of communities.

The Chairperson accepted that this would be catered for. Concerns had been raised by the South African Aids Vaccine Initiative regarding 76(3). Something more coherent should be developed before discussing it.

Clause 77: National Health Research Ethics Council
Dr Baloyi proposed amendments in 77(6)(d), (e) and (f). Provinces had a strong inspectorate function, but provinces were required to inspect their own facilities. The establishment of an Office of Standards Compliance (OSC) was recommended to exercise a broader role than the Inspectorate of Health Establishments. It should report findings to the Health MEC. The OSC would look at quality of health care, norms and standards, and recommended changes to the prescribed standards. The intention was not to duplicate functions already performed by provinces but create a co-operative working relationship.

Dr Rabinowitz proposed an amendment for an objective ombudsperson to police health problems outside lines of political authority.

Chapter 10: Health Officers and Compliance Procedure
Clause 83: Office of Standards Compliance
Dr Cachalia suggested the addition of "which must include a person who acts as ombudsperson in respect of complaints in terms of this Act" at the end of the subclause (1). He also asked to insert "health workers" after "providers" in subsection (1)(f); after "agency" to insert ", health worker" in subsection (1)(g); after "provider" to insert ", worker"; after "agencies" to insert "health workers" in subsection (1)(k). The Chairperson agreed.

Clause 84: Inspections by Office of Standards Compliance
Dr Baloyi asked to omit "annually" and to substitute "every three years", and to omit "but" and substitute "and" in subsection (1). The Chairperson agreed.

Dr Jassat asked to insert the following subsection after (2)(a): "If the Office for Standards Compliance orders the total or partial closure of a health establishment, the Minister must ensure, within a reasonable period from the date of such closure, that reasonable alternative and accessible health services are available to any community affected by the closure". The Chairperson agreed.

Dr Jassat suggested to insert "or health worker" after "provider" in subsection (3)(b). The Chairperson agreed.

Clause 85: Appointment of health officers
Dr Luthuli suggested the omission of "or of a District Health Council with the approval of the relevant municipal council" in subsection (1)(b) and to add the following subclause (c): "the mayor of a metropolitan or district council may appoint any person in the employ of the council in question as a health officer for the municipality in question".

Clause 91: Entry and search of premises without warrant
Dr Kalyan suggested deletion of subsection (b) or at least the word "warrant" as she found it to be unconstitutional.

Mr Hoon disagreed and said that it was not unconstitutional. The subclause was drafted in the least intrusive way and hence should remain unchanged.

The Chairperson suggested clarification by adding "in exceptional cases" at the end of the clause heading.

Mr Hoon argued that following the Chairperson's suggestion would make the meaning too wide as the list was very subjective and could potentially cause disputes in court on the grounds of the object of a warrant.

Chapter 11: Regulations
Clause 95: Regulations
Dr Rabinowitz suggested the deletion of subsection (1)(h) as it removed autonomy of hospitals' initiatives and gave too much power to the Minister. It could prevent new partnerships from being established.

The Chairperson said that there must be certain regulations on any people involved with public health facilities, even voluntary or charitable, in order to protect the consumer.

Dr Chetty added that the purpose of the regulations was also to facilitate involvement by charitable organisations and volunteers.

Dr Rhoda suggested replacing "district health councils" with "health districts" in subclause (1)(g). Mr Hoon disagreed and said that in a health district there must be a district health council. The Chairperson decided to the retain the original form of the subclause.

Dr Rhoda suggested the insertion of the following paragraph into subsection (1):
(t) the processes and procedures to be implemented by the Director-General in order to prescribe information from stakeholders relating to health financing, the pricing of health services, business practices within or involving health establishments, health agencies, health workers and health care providers, and the formats and extent of publication of various types of information in the public interest and for the purpose of improving access to and the effective and efficient utilisation of health services.

Dr Jassat suggested the addition of a subsection (1)(u):
(u) the processes of determination and publication by the Director-General of one or more reference price lists for services rendered, procedures performed and consumable and disposable items utilised by categories of health establishments, health care providers or health workers in the private health sector which may be used:
(i) by a medical scheme as a reference to determine its own benefits; and
(ii) by health establishments, health care providers or health workers in the private health sector as a reference to determine their own fees, but which are not mandatory.

Dr Rabinowitz said that the subclause (3) provided for Ministerial overcontrol and needed to be changed.

Dr Kalyan added that the clause could be very subjective and should not be left to the discretion of the Minister. It created a loophole situation where a person said one thing and meant another.

Dr Vilakazi urged the Committee to avoid using a word "may" and rather use the word "must" when formulating any clauses for the Bill. She gave the example of subclause (4)(c) and pointed out that it could be controversial in practice.

A combination of suggestions proposed to omit "published" and "generally" from subsection (3)(a) and after "authoritative" to insert "by internationally recognised health bodies".

There were no other suggested amendments and the Chairperson decided that the Committee would vote on the Bill in the afternoon.

After lunch, the Committee met to adopt the Bill with amendments (see Committee Amendments to National Health Bill document). The following objections and abstentions were noted:

The Democratic Alliance (DA) opposed the following:
Clause 4
Clause 6
Clause 41
Clause 42
Clause 43
Clause 44
Clause 45
Clause 51
Clause 61
Clause 62
Clause 84
Clause 86 - 94
Clause 91
Clause 95

The ACDP opposed the following:
Clause 4
Clause 6
Clause 41
Clause 42
Clause 43
Clause 44
Clause 45
Clause 51
Clause 61
Clause 62
Clause 84
Clause 86 - 94
Clause 91
Clause 95

The IFP opposed the following:
Clause 20
Clause 22
Clause 26
Clause 41
Clause 42
Clause 43
Clause 44
Clause 45
Clause 51
Clause 61
Clause 62
Clause 84
Clause 86 - 94
Clause 91
Clause 95

The NNP opposed the following:
Clause 18
Clause 41
Clause 42
Clause 43
Clause 44
Clause 45
Clause 51
Clause 86 - 94
Clause 91

The IFP abstained with regard to:
Clause 95
Clause 51