National Health Bill: negotiating mandates

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Meeting Summary

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Meeting report


23 September, 2003

Ms L Jacobus (ANC)

Documents handed out
National Health Bill [B32-2003]
National Health Bill [B32B-2003]
Amendments Agreed to by the Health Portfolio Committee
Negotiating mandates from the nine provinces: Gauteng, Free State, Eastern Cape, Kwazulu-Natal, Limpopo, Mpumalanga, Northern Cape, North West and Western Cape (included within these minutes)

The Committee met with representatives from each of the nine provinces and the members of the Department as well as the State Law Advisers to discuss the negotiating mandates on the National Health Bill [B32B-2003]. Most of the provinces accepted the Bill, some of them requested that their amendments be taken into consideration. The Western Cape abstained from voting and Kwazulu-Natal did not give its support. Dr Chetty, who represented the Department with the assistance of other members and State Law Adviser, attempted to answer all of the concerns raises by the provinces. The Department accepted the majority of the proposed amendments. The Chairperson decided to reconvene the discussion after the Department presented a written response to the provinces.

The Chairperson welcomed the representatives that would present their mandates and receive responses from the Department.

The Health Portfolio Committee and the Gauteng Department of Health supported the principle and the detail of the National Health Bill [B32B-2003]. One amendment was proposed, namely the inclusion of a Deputy Minister in the National Health Council.

Free State
The Committee decided to support the Bill, but to negotiate the following amendments:
The Committee proposed that a 'guardian' should be included in the list of persons who could give consent on behalf of a user unable to give informed consent.
Chapter 2 was administered by the national department and dealt with rights and duties of users and health care personnel. Although clause 89 dealt with offences, it did not indicate what followed in the event of non-compliance.
Clause 10(3)
Clause 10(3) referred to "an outpatient and a user who is not an inpatient', which seemed to refer to the same thing. The Committee proposed the deletion of "or a user who is not an inpatient".
Clause 15(1)
Before "has access", to insert "that" and before "may disclose" to' delete "and".
Clause 19(b)
Clause 19(b) stated that a user should provide "accurate information" about health status. That requirement might prove an undue burden on users who were not completely aware of their health status. Therefore the Committee proposed that in line 25, to delete "accurate" and to substitute "available".
Clause 21(2) (g)
This clause of the national provision did not provide for the promotion of health and healthy lifestyles as in clause 25(2) (r) applicable to provinces.
Clause 21(3) (a)
To replace the word 'resources' with the word 'resources'.
Clause 23(1) (viii)
It was suggested in this clause, line 17, to delete "nongovernmental" and to substitute "non-governmental" [see clause 27(1) (viii)].
While clause 21 (2)(e) provided that the Director-General co-ordinate health and medical services during national disasters, the similar corresponding provision did not appear in the Bill with regard to provincial disasters and disaster at local evels. Despite that, the Disaster Management Act was processed in accordance with the procedure provided by section 76 of the Constitution. However at local government level, the definition of 'municipal health services', although it did not mention disaster management, was wide enough to include disaster management by the use of the word 'includes'. Therefore the Committee proposed in clause 25(2) after paragraph (f) in line 16, to insert "co-ordinate health and medical services during provincial disasters".
Clause 27(1)(e)
Whilst clause 23(1) (e) provided that the National Health Council had to advise the Minister on the implementation of national health policy, clause 27(1)(e) also provided that the Provincial Health Council had to advise the MEC on the implementation of 'national' health policy at the provincial sphere of government. The Committee proposed that under clause 27(1) (e) in line 39 after "national", to insert "and provincial".
Clause 27(2)
It was proposed in clause 27(2) on page 17, line 42 after 'time frames', to insert 'and guidelines' [see clause 23(2)].
Clause 27(7)
Before "nominee", to insert "or her".
Clause 32(1)
While clause 32(1) places an obligation on the municipality to ensure that municipal health services are provided in their areas, sub-clause (2) 'provides that such health services by a municipality under sub-clause (1) must first be assigned by the MEC in accordance with section 156(4) of the Constitution". It therefore means that clause 32(1) must be read in conjunction with sub-clause (2): "Every metropolitan and district municipality must ensure that municipal health services are provided in their respective areas subject to subsection (2)."
Clause 38(2) (a),
The 60 days within which an aggrieved party must lodge an appeal to the Minister against the decision of the Director-General with regard to the refusal or withdrawal of the Certificate of Need, starts running from the date the decision is given in terms of clause 38(2) (a), even though the aggrieved person might not immediately be aware that a decision has been given and that he/she has to lodge an appeal. It Is therefore proposed that en page 21 in line 49 after "were" to delete "given" and to insert "made known to the applicant or holder".
Clause 50(3) (c) (vii)
Clause 50 (3) (c) (vii) compelled a member of the Forum of the Statutory Health Professional Council to remain on the Forum against his/her will if the Minister does not accept a resignation. The Committee proposes that in line 40 after "writing" to delete "and" and alter "Minister" to delete "accepts the resignation".
Clause 50(5) (b)
Clause 50(5) (b), the word 'advise' should be deleted and the word 'advice' inserted.
Clause 50(6) (b)
Proposed deletion of the words "the majority" in clause 50(6) (b) and to insert the words "at least half" [see clause 23(7)].
Clause 72(4)
Clause 72(4) requires the Minister to 'request' the member of the National Health Research Ethics Council to resign. It could be problematic if that member refuses to resign. Therefore the Committee proposes that in line 13, to delete the words "requested by the Minister for good cause to resign" and to substitute "the Minister terminates for good cause the term of office of such member".
Clause 50(4)
Clause 50(4) provides for the functions of the Forum of the Statutory Professional Councils regarding 'registered professions' in para (b); 'registered health professions' in para (c), and 'registered health care professions' in paragraphs (n)(i) and (n)(vi); and 'health care professions' in paragraph (4)(j). These should not be used interchangeably.
Furthermore, the words 'registered health care providers' in para (n) (ii) and 'health care providers' in para (n) (iv) should also be reconciled. Only one word should instead of 'professions' under para (r) (ii), 'registered professions' under (4) (b), 'registered health professions' under (4) (a) and 'registered health care professions' under (n) (i).
Clauses 84(6) and 85(2)
If either a health officer or police officer may obtain a warrant under clause 84(5), then clauses 84(6) and 85(2) should apply to both health officer and police officer. Furthermore, while clause 85(1) implies that a police officer may also apply for a warrant, clause 84(1) states that a police official "accompanies" a health officer who is understood to be the only person entitled to apply for a warrant. Lastly, whilst clauses 84(1), (4), (8) and 85(1) refer to 'police official", clause 85(3)' and (4) refers to a "police officer".

Eastern Cape
The Standing Committee supported the Bill with the following amendments:
Clause 5: The term "Emergency Treatment" should be clearly defined and appear on the definitions list.
Clause 7(1)(b): The subclause does not take into account the role of "guardians".
Clause 14(2)(c): The term "serious threat" should be clearly defined and the responsible person entrusted to determine the "serious threat" illness should be known.
Clause 26(3) Line 6: Add "by the national and provincial organisation".
Clause 41(6)(a)(ii): Add "the functions and procedures".
Clause 41(8): Add "and legal matters, and must not exceed five representatives".

The DA objected to clauses 35-41 and the UDM objected to clauses 36(2) and 37.

The Health Portfolio Committee did not support the Bill because a 75% majority vote had not been obtained. The ANC had supported the Bill entirely and the NNP supported it with the exception of Chapter 6. The IFP and DA rejected the Bill.

The Portfolio Committee on Health and Welfare supported the Bill.

After considering the Bill and inputs from stakeholders, Permanent Delegates were mandated to negotiate in favour of the Bill subject to the following suggestions.
Clause 5: "Emergency medical treatment" as envisioned in should be defined.
Clause 19: The Bill should prescribe enforcement mechanisms in case a user fails to discharge these duties
As a member of the Executive Council derives authority to assign any power or function to a Municipal Council from section 126 of the Constitution, clause 32(3) should refer to section 126(a) instead of section 156(4) of the Constitution.
Clause 43: This should make provision for the role of traditional healers at initiation schools.
Clause 79(1) should authorise the Office of Standards Compliance or its agents to inspect every health establishment and health agency at least once every 12 months.

Northern Cape
The House supported the Bill with the following recommendation:
Clause 35A: Insert that "the Minister shall establish tertiary and secondary health establishments in all provinces based on the distance and location of communities".
Clause 41: Cross-boundary services were adequately addressed.

North West
The Committee supported the essence and principle of the Bill with the following proposed amendments:
Chapter 4 Section 26: "Establishment and Composition of Provincial Health Council". The Committee proposed that the traditional healers should be included.
Chapter 4, Section 27: Function of provincial Health Council must also include traditional healers.
Chapter 5: "District health system for the Republic". The Committee proposed deletion of Republic and section 29(1) "for the Republic" should also deleted.
Chapter 5, sections 30 and 31: This should include traditional healers.
Chapter 8, section 61(3): The Committee said that authorisation in writing by Minister might take so long that lives could be lost. They should rather look into a structure that would shorten the authorisation time.
Chapter 2, Section 5: What exactly was emergency medical treatment? Emergency medical treatment must be clearly specified and commonly held definitions differed.
Chapter 3, Section 22: Did the head of the provincial Department mean the Accounting Officer or the Superintendent?
Chapter 3, Section 23: The National Health Council should also include traditional healers. The structure of the Forum must 'cascade' into the provinces and into districts.
Chapter 4, Section 25 (2) and (3): It should be specified who is the head of a provincial department

Western Cape
The Standing Committee on Health, Cultural Affairs, Sport and Recreation, conferred on the Western Cape's NCOP delegation to abstain from voting on the Bill.

Dr Chetty (Deputy Director General), with the help of State Law Advisers and the Department, responded to the proposed amendments from each province.

Dr Chetty said that the amendments from Gauteng would be readily accepted.

Free State
Clause 7(1)(b)
Section 7(1)(a)(ii) stated that a "guardian" was "authorised to give any such consent in terms of any law or court order". The intention of that clause was to protect the child. Also, Section 9 dealt with the cases of health services without consent.
Chapter 2
Dr Chetty said that the issue of non-compliance was covered because it stated "conviction to a fine and for a imprisonment period not exceeding 5 years". She suggested that the State Law Adviser also comment. Mr Hoon (State Law Adviser) said that the policy's aim was not to criminalise. There would be investigations of health care providers. If a user did not comply with some duties, s/he could be evicted from a hospital and not receive treatment in that specific health establishment.

Clause 10(3)
Dr Chetty supported the amendment.

Clause 15(1)
Dr Chetty supported the amendment.

Clause 19(b)
Dr Chetty said that there could be a problem with the amendment to that section. The term "available" information would be too difficult to describe than the originally proposed "accurate". It was the intention of the policy to give an accurate information on what the person knew he suffered from in order to better assist the patient and to be able to come to a fair diagnosis.

Clause 21(2)(g)
Dr Chetty supported the amendment.

Clause 21(3)(a)
Dr Chetty said that the grammar of that sentence would be checked.

Clause 23(1)(viii)
Dr Chetty said that the grammar of that sentence would be checked.

Chapter 4
Dr Chetty said that using the wording "provincial disasters" was quite important.

Clause 27(1)(e)
Dr Chetty supported the amendment.

Clause 27(2)
Dr Chetty supported the amendment.

Clause 32(1)
Dr Chetty asked the State Law Advisers to comment. Mr Hoon said that sections 32(1) and 32(2) dealt with two different functions: the municipal health functions defined in the Bill, and envisaged health services other than those that would be assigned to municipalities. It would create a problem if the two subclauses were linked.

Clause 36(2)(a)
Dr Chetty asked the State Law Advisers to comment.

Clause 50(3)(c)(vii)
Dr Chetty asked the State Law Advisers to comment. On the issue of accepting the resignation of a member of the Forum by the Minister, Mr Hoon said a possible concern could be that the Forum could not function properly with fewer active members.

Clause 50(5)(b)
Dr Chetty supported the amendment.

Clause 50(6)(b)
Dr Chetty asked the State Law Advisers to comment.

Clause 72(4)
Dr Chetty asked the State Law Advisers to comment.

Eastern Cape

Clause 5: Dr Chetty said that there was a huge debate in the Committee on the topic of the "Emergency Treatment" and she decided to leave the task of explaining to the State Law Advisers. Mr Hoon said that in terms of Section 27(3) of the Constitution, no one could be refused emergency medical treatment but there its definition was flexible. The Bill would be found unconstitutional if it amended the Constitution. The emergency medical treatment depends on a case-to-case situation. The intention was to put a sense of duty on health establishment workers and health care providers not to refuse emergency medical treatment.

Clause 7(1)(b)
Dr Chetty had already discussed that clause.

Clause 14(2)(c)
Dr Chetty questioned whether the term "serious threat" should be clearly defined or rather left to individual discretion. The understanding of it was internationally recognised.

Clause 26(3)
The National Health Council would be the national organisation contemplated in the appropriate section. Along with the Provincial Health Council, it would be stated "the national or provincial organisation".

Clause 41(6)(a)(ii)
Dr Chetty supported the amendment.

Clause 41(8)
Dr Chetty agreed with the principle of not exceeding a certain number of representatives.

Dr Chetty said that the Department staff would try their best to persuade the province to accept the Bill.

No amendments presented.

Dr Chetty asked the State Law Advisers to comment on the amendment to clause 5 on "emergency medical treatment".

Dr Chetty said that it would be difficult to implement the amendment to Section 43 from a policy standpoint. The intention of the section was to pass regulations that would protect the users of initiation schools from public health risks. She also requested that the province gives a concrete example of what they would envisage as a provision for the role of traditional healers.

Dr Chetty said that the amendment to clause 19 was already covered by Section 89.

Dr Chetty said that the original version of the Bill presented to the Portfolio Committee included the proposed amendment to clause 79(1) that would authorise the Office of Standards Compliance or its agents to inspect every health establishment and health agency at least once every 12 months. It was however rejected due to a concern that such a large number of inspections would be very difficult to execute in practice.

Northern Cape
Dr Chetty said that the Department fully understood and appreciated the concerns of the Northern Cape province on tertiary and secondary health care services. However, there had to be certain minimum standards and norms. The way the amendment was worded, it could end up being an unfunded mandate.
The issues of communities and the geographical areas were covered separately. The cross-boundary issue was very contentious.

Dr T Sibeko (Chief Director for Hospital Services) said that there was a large distinction between tertiary and secondary health care services. Tertiary fell under the competence, and was funded by, the National Protectorate. It would not be cost-effective to have tertiary services everywhere in the country. Secondary services were delivered at provincial levels.

North West
Dr Chetty said that the concerns of Chapter 3 were covered in both the Public Finance Management Act and the Public Service Act. The head of the provincial Department could not be mistaken for a Superintendent and there was no need to define that.

Dr Chetty said that including the traditional healers would be difficult and would require amendment of the Constitution. However, traditional healers would be included in the National Health Consultative Forum.

Dr Nel (Free State) asked if the Department's response to the proposed amendments would be provided in writing as it was quite technical.

The Chairperson requested that the Department draft a short written report regarding each amendment and suggestions proposed by the nine provinces to provide a proper form of response. Mr Hoon said it would be ready before the end of the week.

The meeting was adjourned.


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