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HEALTH PORTFOLIO COMMITTEE
4 August 2004
CHOICE OF TERMINATION OF PREGNANCY AMENDMENT BILL: DELIBERATIONS AND VOTING
Chairperson Mr J Nculu (ANC)
Documents handed out:
Choice on Termination of Pregnancy Amendment Bill [B72-03]
Portfolio Committee amendments [B72A-03]
Bill with Portfolio Committee amendments incorporated [B72B-03]
Amendments Agreed to by this Committee
The Committee considered public comments in its final deliberations on the Choice of Termination of Pregnancy Amendment Bill. Minor technical amendments to the bill were made. The Bill was then passed with the ANC and the UDM voting for the Bill and the ACDP voting against the Bill. The Democratic Alliance was not represented at the meeting. The Committee decided that the Bill would not be debated in the National Assembly, although the ACDP rejected this decision.
The Chair introduced Mr Matsapi from the Health Department, and the state law advisor Mr Hoon. He outlined the meeting plan, which would start by looking at the public’s concerns brought up in the hearings the day before, then after tea they would go through the bill, then vote, first on each section and finally, on the whole bill.
After tea, he read through the bill, starting with the explanatory note. Amendments made to section 1 changed HOD, formerly Head of Department, into Head of Provincial Department. The Committee agreed to this amendment. The same applied for MEC, formerly Member of Executive Council, now Member of executive council of a province. That was also agreed by the Committee.
Ms Madumise (ANC) requested that both registered nurse and midwife be included under definition 1(c).
Ms C Dudley (ACDP) said that whether it was a midwife or a nurse, there should be an additional sentence clarifying that they had the prescribed ToP (Termination of Pregnancy) qualifications. She claimed that nurses and midwives did not automatically have ToP skills.
Ms Madumise asked for clarification on this.
Ms Dudley said that not all nurses or midwives could perform ToP. She said the wording depended on whether nurses would have the option of additional training.
The Chair repeated Ms Dudley’s proposal and asked the legal representatives for their input.
Mr Matsapi said that though the Act mentioned this, it was not clear what sort of prescribed training was referred to.
Ms Dudley said it read as though the training in question was ToP training, but reminded the Committee that the nurses do not have such training at the moment, so the bill needed to be very clear in enforcing such a bridging course.
Mr Matsapi said that nurses did not automatically have ToP training, and would not be allowed to perform TOPs unless they had done the extra course. This course would regulated by the MECs in consultation with the Minister.
The Chair thanked him for his input, and stated that as the amendment broadened the Act to include registered nurse, rather than midwife, they had to be very clear about the ToP training.
Dr Cachalia (ANC) recommended that they add ‘who in addition has undergone training in terms of this act’, to make it clearer.
Ms Dudley was confused by the use of the term ‘this act’, saying that it could be referring to the Nursing Act, rather than the one at hand.
Mr Hoon said that ‘in addition’ was the strongest way to say what they wanted to say, and that if they had wanted to refer to the Nursing Act they would have said ‘that act’, so that was not a problem. He claimed the ‘in addition’ was a semantics issue, but could strengthen the statement.
The Committee agreed to the amendment.
The Chair welcomed Dr Mpuntsima, the Director of Women’s Health from the Health Department, who clarified that both midwives and nurses would have to do extra ToP training beyond the basic course.
This placated Ms Dudley who said again that the idea of forcing nurses to do ToP training despite their conscientious objection to abortion was very dangerous, as it could lead to less women applying for nursing positions.
Dr Mpuntsima confirmed that nurses that perform ToP do it through choice, after completing the course.
The Committee decided to keep both midwife and nurse in the amendment.
Moving on to clause 3(1), the Chair continued reading and looking for agreement from the Committee.
Ms Dudley recommended the inclusion of ‘surgical and medical’ before ‘termination of pregnancy may take place’, to challenge the issue of illegal abortions performed through other means. To specify what type of abortion would take place would counter illegal activity.
The Chair repeated her proposal to the Committee, and asked for a response.
Dr Mpuntsima responded that the department had looked at this wording and decided to leave it open in case of future developments in the way that abortions were performed.
Ms Mashigo (ANC) pointed out that the phrase ‘appropriate medical equipment’ listed under 3(1)(c) removed the danger of alternatives or misuse. She stated that all the requirements that were listed negated the danger highlighted by Ms Dudley.
It was agreed that there was no need to specify ‘medical and surgical’ TOPs.
The Chair clarified that the list was there so that the public could go to various venues for TOPs, so long as they complied with the description of what an appropriate facility should have.
Mr Njikelana (ANC) queried whether the list was stating basic requirements, or whether there was any leeway.
Mr Matsapi said that the list deliberately included the word ‘and’, to confirm that all ToP practitioners would have to comply with all ten criteria.
Dr Luthuli raised the issue of patients being sent home too quickly, without follow up examinations after the ToP.
Dr Mpuntsima said that such practical issues were not the issue today, but that there were agreed methods of action that all doctors should adhere to, and that there were regulations doctors knew about, such as observing the patient for three hours after the ToP.
Dr Cachalia agreed that this was unacceptable, as as a doctor he could not imagine doing that.
Ms Dudley agreed with Dr Luthuli that it was a serious problem, and that such things should be covered by the legislation. She agreed with Dr Cachalia that it should not be happening and said that hopefully the amendment listing the criteria for ToP facilities would assist in solving these problems.
Ms Dudley then raised an objection to 3(1)(a), proposing to include the phrase ‘with appropriate training and having made the choice to perform the procedure’, and emphasized again that there were medical staff opposed to ToP that should not be coerced into performing it.
She stated that though there were definitions of registered midwife and nurse in the Act, there was no definition for other medical staff that may be involved in the procedure.
The Chair berated her for raising an issue already resolved, as all the definitions had been clarified and agreed upon.
Ms Dudley responded that there were medical staff involved that needed to be able to choose their position, and she stuck by her proposal.
Dr Matsapi confirmed that all the above had been resolved in either the original bill and in the new definitions within the amendments.
Mr Njikelana confirmed that anyone involved had to have gone through the special ToP training.
Ms Dudley emphasized that with the bill as it stands, there will be facilities that match up to all the criteria, but do not have nurses available that are willing to perform the procedure.
Mr Hoon said there were two things to remember. Firstly, that TOPs can only be performed by people who were allowed to perform the act, and secondly, that the place where it occurs is acceptable. He understood them as two separate issues but was not sure where this question fitted.
The Chair took the opportunity to say that it was best not to constrict options when amending the bill, and promptly moved on to the rest of the list.
Ms Dudley’s response was the addition of ‘has access to ultra-sound equipment’ as sub-section (k), moving the next sub-section to (l).
The Chair asked for clarification.
Ms Dudley said the Committee should be aware of how many TOPs were being performed after a feeling test, rather than ultra-sound, and that many of the fetuses were older than 12 weeks. She quoted a statistic from the previous day’s hearings of 60%.
The Chair warned her of using unconfirmed statistics.
She responded by saying that any visitor to a hospital could confirm this.
The Chair said that including the ultra-sound criteria would stop a lot of facilities offering the procedure, as they did not have the necessary equipment.
Ms Dudley said that she understood the repercussions, but emphasized that it would limit the difficulties faced by medical practitioners obliged to deal with ‘small bits of very large babies’.
Dr Mpuntsima emphasized that ultra-sound itself was open to interpretation and so would not necessarily alter practice significantly.
Ms Dudley acknowledged that there was no legal issue in South Africa about the abortion of a twenty-four week baby, but claimed that there should be. She claimed that it was the nurses themselves that were calling for this change. She acknowledged that she was coming from the angle of concern for the babies’ lives, something she claimed the rest of the Committee preferred to ignore. She claimed that referring to the lawyers for assistance would be useless as they came with a specific agenda.
The Chair requested that such claims not be made, and no assumptions be made about the Committee’s position. He then went on to say it was better to keep it broad, and not specify certain equipment as a pre-requisite.
Mr Njikelana queried the role of the MECs.
Dr Matsapi confirmed that the MECs have power over implementation of the bill’s requirements, and confirmed that these were the basics and that more could be added on a provincial basis.
The Chair thanked him for his input and continued reading.
Ms Dudley emphasized the cruelty of conducting TOPs in maternity wards, and raised the concern of ToP as a money-making activity. She said the bill should guard against this.
The Chair said that private hospitals charged for services, and queried whether this was not an acceptable position.
Ms Dudley said there were certain procedures that they could not charge for.
The Chair said that firstly, patients had to go through various expensive procedures through the ToP process, and secondly, queried why private hospitals should not be allowed to function as they are used to with other procedures.
Ms Dudley was concerned about the misuse and abuse of this procedure.
Ms Tshwete pointed out that the reality was that people could choose between public and private facilities.
Ms Madumise said that hospitals need to be able to get funds for their work, and TOPs should not be treated differently to any other procedure.
Ms Dudley asked that ToP be compared to adoption, and emphasised that it was illegal to make money out of that.
The Chair said that the bill outlined very strictly what was appropriate behaviour around ToPs, and that it did not need to go any further than that.
Ms Dudley said she would put the issue forward for potential resolution at another time.
The Chair continued reading and it was decided by the Committee that clause 3(a) referring to Section 7 of the Act required a second paragraph confirming that the facility in question inform the MEC that they complied with the requirements referred to in clause 3(1)(a - j). The Chair requested that the lawyers decide how best to word it.
Dr Mpuntsima began with offering a proviso to sub-clause 2(3) whereby facilities confirmed with the MEC that they existed, provided ToP services, and were aligned with the requirements listed.
Dr Matsapi agreed, but mentioned that this should be a separate paragraph.
Ms Dudley requested that 3(c) be included, mentioning a fine that would be levied against facilities that did not comply.
The Chair argued that compliance was monitored within the system, and adding fines would complicate the process.
Mr Matsapi confirmed that Section 10(2) of the Act states a fine will be issued against non-compliant facilities.
The Chair moved on after gaining agreement on clause 3.
He continued to read and gained agreement through to clause 6 where Ms Dudley had some additions written, she claimed, in the early hours of the night before, whereby any person who coerced their colleagues into performing ToP or disadvantaged them for not performing the procedure should also be liable to a fine.
The Chair asked if there was agreement on this addition, which brought up the whole issue of conscientious objection. There was not.
Ms Tshwete queried whether it was not the medical practitioners’ obligation to perform the act under their oath and commitment to their work.
Ms Dudley responded by highlighting their right to conscientious objection.
The Chair said that it was not appropriate to create conditions within the law which might undermine the very conditions that they were trying to create.
Ms Dudley believed that if her addition was not included people could read the bill as written by a Committee intent on coercing medical practitioners into doing the work.
The Chair claimed that was incorrect, as the very focus of the bill and idea driving it was the notion of choice, something medical practitioners knew they were entitled to.
Ms Dudley raised again the issue of training, claiming that the statistics indicated a large percentage of religious people in the country who would be dissatisfied with having to take a ToP course within their training.
The Chair emphasized, in a low voice, that there was a very clear division between religion and state in South Africa, and that had to be respected. He repeated again that no bill should have specific points that undermine the legislation that was being created, and that the very philosophy of the bill was one of free choice for both patients and practitioners.
Dr Mpuntsima confirmed that the ToP training was separate, as had been confirmed earlier that morning. It was similar to the training undertaken for pediatric or intensive care sections. She also emphasized that anyone feeling threatened or coerced would be entitled to approach their superiors to complain. She said that if the bill started putting in provisions for people not wishing to participate then it would begin to undermine the bill’s position.
The Chair continued reading to the end of the bill and gained agreement on the final points.
Ms Dudley noted that according to Point 3 of the memorandum, there was no need for the bill to be amended, as a minimal increase in the health budget indicated that there was not enough of a demand to justify a whole new re-writing of the bill.
Voting on the Bill
After a lunch break, the Committee read through their proposed amendments written up by the lawyers and agreed with what they had drafted.
The Chair put forward a motion of desirability on the amendment of the original 1996 Act by reading out the Long Title and asked if there was agreement.
Ms Dudley put on record that the ACDP requested that the amendment bill be scrapped, and the original Act be reviewed.
The Chair asked if there was agreement with this proposal and found that there was not.
He then proceeded to go through the document and asked for agreement on each clause, which was received by the ANC and the UDM. The ACDP voted against each clause.
A vote was taken and the Bill passed.
The Chair asked whether the bill should be taken to the chamber for debate, considering that it had been debated when passed originally.
Ms Dudley requested a debate, arguing that in the name of transparency the public should hear what had been decided.
It was decided that no debate was necessary, with Mr Njikelela claiming it would be irresponsible to raise the issue again, when all had been decided.
Ms Rajbally (MF) stated that the bill was designed to protect women patients in law, so there was no need to debate the bill further.
Ms Dudley wished that it be recorded that the ACDP had requested a debate, but claimed she was quite happy to have a longer period to speak on the day to justify her position, and not hear again from the ANC’s perspective.
The meeting was adjourned.
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