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PORTFOLIO COMMITTEE ON HEALTH
17 August 2004
TRADITIONAL HEALTH PRACTITIONERS BILL: DELIBERATIONS AND ADOPTION
Chairperson: Mr L Ngculu (ANC)
Documents handed out
Proposed Committee Amendments to Bill
Traditional Health Practitioners Bill (B66 - 2003)
The Committee met to deliberate on the Traditional Health Practitioners Bill in order to approve its provisions and allow the Bill to be presented to the National Assembly. The Bill was studied on a clause by clause basis and the Committee debated certain key issues such a cross-training, fees and the powers of the Council to be created by the Bill. The Bill was adopted and will be submitted to the National Assembly for debate.
The Chairperson stated that it was the intention of the Committee to complete the deliberation of the Traditional Health Practitioners Bill during the course of the day. However, at eleven o'clock, a new venue would have to be provided as the present one was booked.
The deliberation continued at clause 23 (Removal from and restoration of name to register). The Chairperson reminded the Committee of the earlier discussion on clause 23(l) relating to mental illness as grounds for removal of a practitioner from the Register and how to best formulate this requirement. The Chairperson referred to clause 40 which dealt with the definition of impaired registered persons and reminded the Committee that the legal advisors had been instructed to reconsider this clause.
The Chairperson continued with the deliberation of the Bill at clause 23(2).
Clause 28 (Conditions relating to continuing education)
Ms M Madumise (ANC) made reference to the phenomenon of ancestral calling and asked how the Council envisaged making rules in this regard in terms of continuing education.
Mr S Njikelana (ANC) raised two issues, namely, that the title of the clause should be education and training and secondly, to what extent did the section address the issue of specialisation. Any medical profession should cater for continuous improvement in knowledge and the traditional practitioners were no exception.
Mrs N Dlamini (Department HIV/AIDS Directorate) responded that the intention of the clause was to empower traditional practitioners and to make the profession more accepted and respected. Traditional healers required updates on current diseases as did other medical practitioners in order to continuously improve the standard of practice.
The Chairperson enquired from Members whether clause 28 was correct and the Committee agreed.
Dr R Rabinowitz (IFP) put forward an issue to be considered by the Committee regarding the divisive nature of present medical councils with a number of manifestations, for example the Allied Health Professions Council of Doctors and the proposed Traditional Health Professions Council. These Councils tend not to encourage interchange of education between themselves that would allow accreditation of other courses. In terms of continuing education, it was recommended that there be some cross-pollination of courses, for instance traditional practitioners could acquire courses in other streams and disciplines in order to break down divisions. If all existing professions were worthy of being regulated , then they should be worthy of being studied.
Ms S Rajbally (MF) recommended that the previous point be added on as (d) as the point raised was valid.
Ms B Ngcobo (ANC) agreed with the previous issue as allowing Traditional Health Practice to "move with the times" and gain greater acceptance and respect; an intention of the proposed Council.
The Chairperson expressed confusion as to what was being proposed. In terms of the definitions, the specifications of a traditional health practitioner had been determined and it was agreed that such practitioners should not be governed by the requirements of other Councils. This was also to ensure that other health practitioners did not fall under the requirements of traditional practice. How could the Committee correctly express the desire for cross-pollination within the clause relating to continuing education? The present Bill deals solely with traditional practice and it would be difficult to recommend changes affecting other realms of practice.
Dr Rabinowitz agreed that the proposal would require considerable consideration on the part of the Committee but a start could be to require that practitioners should have done courses in different categories, for instance, traditional practitioners that have completed certain courses at a medical school. The purpose would be to create an opportunity for traditional practitioners to do courses in other streams. Different ways to formulise the proposal existed but the key was to provide an initiative from the level of the Committee to drive the process so that the defensive mindsets of other Councils could be overcome.
The Chairperson reminded the Committee that the purpose of the Bill was to provide guidance for traditional practitioners and not other medical practitioners.
Ms M Mdlalose (Department of Health-Director) agreed that the notion of cross-pollination was desirable but the issue of acquiring CPD points rested with each particular Council. The Forum of Statutory Councils was presently considering the acknowledgement of other alternative medical treatments such as acupuncture and Chinese medicine. Presently, the stance of the HPCD was not to recognise points acquired elsewhere. The recommendation was to keep traditional knowledge within the traditional arena by not recognising other courses. Practitioners sometimes attended certain courses designed to improve techniques but no recognition of other points is presently entertained. It was proposed that the Forum of Professional Councils was best positioned to consider the issue of cross-pollination as all professional councils were represented.
Ms C Dudley (ACDP) referred back to the issue of ancestral calling and asked whether the Council would be made up primarily of traditional practitioners and whether clause 28 was intended to safeguard persons who approached traditional healers for treatment by ensuring certain acceptable standards of training. Therefore, if the Council comprised traditional healers then they would be able to manage the process of ancestral calling without the need for intervention in terms of the Bill.
The Chairperson acknowledged that practitioners needed to improve their understanding of certain issues from time to time such as the role of a traditional surgeon with regard to Aids. Therefore, the continuing need for education was crucial. It was important to make a distinction between ancestral calling and continuous training. Clause 28 highlights how this was to occur.
Mr R Coetzee (DA) recommended that the Committee consider the advice provided by their advisors in that cross-pollination was desirable but should be voluntary rather than enforced through the Bill. This issue should be considered in the National Health Bill. Practitioners within the various Councils should have authority over this issue.
Ms M Manana (ANC) recommended that the clause be left as is as the National Health Bill was dealing with the issue.
The Chairperson asked the Committee whether clause 28 should remain as is.
Dr Rabinowitz requested that the proposed amendment be noted by the Committee for the record as her personal experience with medical forums was that not much success was achieved with regard to cross-pollination. The Committee was requested to consider facilitating the breaking down of barriers between the various medical professions. The proposal was that "taking into account the value of CPD points acquired through accredited programmes offered by all statutory health councils" be added to clause 28 (c).
The Chairperson responded that the Committee would consider the proposal and return to it. The Chairperson then dealt with Chapter 4 (Disciplinary inquiries and investigations by Council)
Clause 31(1) (Entering and search of premises, attachment and removal of documents)
Dr Rabinowitz raised concern about the definition of a private dwelling as nefarious activities could be hidden within a private dwelling and escape investigation.
Mr Coetzee voiced concern that the investigating officer could search a premise without a warrant and regarded it as a violation of due process and laws of privacy. The legal advisors were asked to consider the legality of the clause.
The Chairperson pointed out the proviso that the search could only be conducted on reasonable grounds and the importance of a swift search in certain cases where perpetrators could escape.
Dr Rabinowitz agreed that the clause in question was standard that appeared in other legislation and the key was that action had to be justified.
Ms C Booysen (State Law Advisor) confirmed that there must be reasonable suspicion and that immediate action was of paramount importance to apprehend perpetrators. The clause allowed the premises where a practice was taking place to be searched during the day and only where absolutely necessary at night.
The Chairperson asked whether the clause fell within constitutional provisions?
Mr Coetzee felt that the clause was open to abuse but accepted that it was contained in other legislation.
The Chairperson stated that the Committee needed to define a private dwelling as traditional practitioners often operated in what one could refer to as a private dwelling.
Ms Mdlalose responded that a private dwelling would be registered as a place of practice.
Dr Rabinowitz stated that the Bill needed to provide a mechanism to deal with rackets where people use the law to protect themselves. It was important that one's actions could be justified in a court of law but it was necessary on occasions to obtain evidence immediately in a case of emergency.
Mr Motsapi provided a definition of a health establishment as any place designed to provide health services and this could be attached to a private dwelling.
Mr Coetzee reminded the Committee that criminal activity within a private dwelling was a criminal matter and this Bill was referring to unprofessional conduct for traditional practitioners which was different. The Bill should not allow premises to be searched without a warrant on the grounds of unprofessional conduct.
The Committee agreed that the clause in question remain as is.
The Chairperson continued with the deliberation.
Clause 31(4)(a) (Detailing search of premises)
Dr Rabinowitz enquired as to the meaning of the word "thing" as appearing in the clause. Could an example of a thing be furnished, she asked.
Ms Dlamini replied that this could be any items used by traditional practitioners like a knife that had caused harm to somebody or poisonous substances.
Mr Motsapi agreed that it could be anything other than a book or document.
Mr I Cachalia (ANC) proposed that the Committee substitute "thing" with "article" or "substance".
The Chairperson felt the word "thing" was appropriate and continued with the deliberation.
Clause 31(5)(b) (Responsibilities of person carrying out investigation)
Dr Rabinowitz was concerned about possible exposure of details to the media being prevented by the provision of secrecy.
Mr Cachalia recommended that the term "investigating officer" be added to the clause as this person would play an active role in the process before the prosecuting officer.
Mr Nxumalo (ANC) asserted that an investigating officer could not go to the media as this was not part of the officer's brief. The task was to investigate and report back to the Council and keep the identity of the subject a secret.
Clause 31(6) (Keeping personal particulars of a patient a secret)
Mr Coetzee inquired whether information could be disclosed if the patient gave permission. The clause was stating that even if permission was granted, disclosure could not occur. It was necessary to include "with the consent of the patient" in the clause.
The Chairperson indicated that the intention of the Bill was to protect the integrity of patients during an initial investigation and therefore remained applicable.
Mr Coetzee responded that the clause did not just refer to the initial search of premises but also to an inquiry that would occur long after the investigation. Disclosure should be allowed if permission was obtained.
The Chairperson proposed that in certain cases a patient may not be aware of information gathered during an investigation and it was important that such information be protected.
Therefore, it was not necessary to create an amendment that allowed a patient to give permission for information to be disseminated.
Mr Njikelana agreed stating that it was important to protect the rights of all patients connected to an investigation.
Ms Manana reminded the Committee that the objective of the investigator was to carry out an investigation and report back to those who mandated the inquiry. There was no need for the investigator to provide information to the media.
Clause 31(8)(d) (Sentence for contravention of regulations)
Mr Njikelana referred to the proposed sentence of six months as being too lenient as the offence of impersonating an investigating officer was a serious offence that required more deterrent.
The Chairperson inquired whether the crime of tampering with evidence could not be dealt with by existing criminal legislation.
Ms Manana suggested that sub-section 9 of clause 31 would cover these concerns by allowing other authorities to investigate a contravention, in other words it could become a criminal investigation.
The Chairperson continued with the deliberation.
Clause 33(7)(c) (Procedure at an inquiry)
Dr Rabinowitz noted again the presence of the word "thing" and inquired whether it was appropriate as the objective of the proposed legislation was to be as specific as possible in order to prevent potential loopholes.
Mr Coetzee stated that the use of the word "thing" was appropriate as it covered all potential objects and provided for the widest possible coverage.
Mr Nxumalo reiterated that it was important to consider this issue within the context of traditional practice and traditional or indigenous language. Many of the objects used in traditional practice would not be easily translatable and, therefore, the use of the word "thing" was appropriate.
Ms Rajbally agreed that the word "thing" was appropriate as many items were involved in traditional practice.
Ms Dlamini responded that the word "thing" did not undermine the relevance of the specific clause and served as an adequate definition.
The Chairperson continued with the deliberation.
Clause 40 (Inquiries in respect of impaired registered persons)
Mr Motsapi stated that this clause would be reconsidered and new wording inserted. It was important to make it clear that an assessment of mental competency would have to be carried out before the Council could impose conditions and make recommendations.
Clause 41 (Fees charged by registered persons)
Dr Rabinowitz raised a concern about the Council having the right to determine fees charged by traditional practitioners as a possible infringement of free market principles. Practitioners should have the right to determine the fees to be charged. This requirement could also help to legitimise the profession by creating set guidelines for fees, thereby creating general awareness of the value of traditional healing and weeding out corruption and profiteering.
The Chairperson responded that the clause in question does not indicate the desire to impose a set fee but rather seeks to establish a framework of reference to stabilise the fee system.
Dr Rabinowitz declared that it was important to establish an acceptable range of prices but nevertheless felt that the proposal appeared in contravention of the Competition Act.
Ms Dlamini countered that it was difficult to quantify fees charged in traditional practice due to the varied nature of payment as a goat or a cow could be the negotiated amount. Similarly, some treatments required far greater expertise than others such as Aids and this tended to inflate prices. Therefore, it was crucial to maintain the fee range within acceptable levels.
Mr Dlamini added that the proposed Council was best positioned to provide a workable solution to this issue.
The Chairperson responded that it appeared problematic that the Council could determine the fee structure. Fees charged by practitioners varied from region to region depending on issues such as indigence and demand for services.
Ms Dudley asked whether it would be possible to identify the usual fees charged by practitioners to assist in the process of structuring the fee scale and whether such knowledge was commonly known.
The Chairperson replied that a system of usual fees did prevail within certain regions but it was not a regulated practice.
Ms Rajbally concurred that set fees existed in particular areas and the patient would be informed of the price beforehand.
Dr Rabinowitz expressed unhappiness with the clause in question and reminded the Committee that the objective of the current Bill was to render traditional practice a respected and regulated profession. In accordance with this goal, it seemed more appropriate to suggest a range of acceptable fees determined by the Council.
Mr Coetzee questioned why the Bill wanted to impose rigid regulation of fees. It was agreed that the publication of norms by the Council was desirable but the task of enforcing these norms seemed problematic. Essentially, a contract existed between the patient and the practitioner and the fee would be determined beforehand.
The Chairperson continued with the deliberation and asked for comment on clause 41.
Mr Coetzee agreed that the law should require that practitioners provide the fee to be charged upfront.
It was agreed by the Committee that clause 41(a) and (b) were to be deleted.
Clause 41(2) (Requirement of practitioner to provide account to patient)
Mr Njikelana stated that this appeared onerous to those practitioners who received payment in kind.
Ms Ngcobo asserted that it was the usual practice in traditional healing to clearly state the fee beforehand.
The Chairperson responded that this was not always the case.
Ms Dlamini added that specialisation for certain illnesses required that different fees be charged. The Bill should not place a ceiling on the fees to be charged.
Mr Motsapi declared that it was important that the Bill ensure that practitioners inform patients prior to the service provided and that a contract existed between them.
The Chairperson wanted to know how patients could be protected from exploitation.
Ms Rajbally stated that clause 31(3) protected patients from possible exploitation by allowing for the Council to determine whether the fee charged was acceptable.
Dr Rabinowitz concurred that the clause was realistic in that much exploitation was occurring and patients needed to be protected by the Council.
Ms Dlamini agreed that the patient should be protected but voiced concern about the protection of practitioners where fees had not been paid for example.
Mr Motsapi responded that it was not the intention of the Bill to protect practitioners but rather to act in the interests of the patient.
The Chairperson continued with the deliberation.
Clause 43 (2) (Limitations in respect of unregistered persons)
Mr Njikelana raised concern about the term "other health professional" as being unspecific and how such training would be organised.
Ms Manana reminded the Committee that this issue had been dealt with previously in terms of continuing education and allowed for traditional practitioners to receive training from other practices in order to broaden understanding of health delivery in general.
The Chairperson continued with the deliberation.
Clause 46(1)(b)(ii) (Regulations)
Mr Njikelana suggested that the Committee consider the term "minimum standards" in order to determine how to implement them. In practice, standards varied from region to region and any attempt to standardise this seemed artificial.
Mr Nxumalo indicated that this issue had been dealt with previously and it was decided that the Council would determine the standards and make recommendations to the Minister.
Ms M Mashigo (ANC) agreed that the Council would establish the scope of practice of the different streams within traditional practice and would therefore determine the standards of education and training to be applied.
Sub-section (c) (I) determines the "minimum age" of a candidate for examination. Mr Njikelana expressed unease over the determination of a minimum age. Ms Dlamini replied that in practice students were not younger than sixteen years. The Chairperson stated that the Council would decide the issue.
Clause 47(1) (Rules of Council)
Dr Rabinowitz wanted to know how rules and regulations could impact on best practices and the quality assessment of practitioners. How could the Council ensure that a general improvement in practice was attained and was it possible to directly regulate traditional practitioners and enhance the profession, she asked.
Mr Dlamini responded that the best way to answer that question was to undertake research in areas where the practice was occurring and assess the advances made. In order to do this correctly, it was necessary to have some understanding of current practices in order to make a meaningful comparison.
The Chairperson stated that the purpose of the Bill was to remove bogus healers from the field and attempt to ensure a more ordered occupation.
Clause 48(1)(d) (Offences)
Mr Njikelana raised a concern about whether "healer" had previously been defined.
Ms Dlamini responded that the word "healer" could be regarded as a practitioner in that it was a student who was about to become a practitioner.
Mr Motsapi argued that the presence of the terms "traditional health practitioner" and "student" were sufficient to cover all aspects of traditional practice and proposed that "healer" be removed.
Mr Steyn (DA) was concerned that people who practised alternative medicine could be prejudiced by this clause.
Ms Rajbally stated that the Bill should remain within the context of traditional healing and the Committee should not broaden the scope of the legislation to include other areas of practice.
Mr Motsapi agreed that the Bill aimed to regulate traditional practitioners and only those service providers who pretended to be traditional practitioners would be affected by the legislation.
Ms R Mashigo (ANC) stated that the term applied to a healer within a traditional context.
Mr Njikelana wondered whether the term was adequately defined in order to remain within the Bill as it could refer to other forms of healing. The presence of the term in its current manifestation could open the Bill to constitutional challenges in the future.
The Chairperson replied that it was important to retain the term because people attempted to be healers within the traditional context and patients needed protection from this activity.
Mr Nxumalo stated that it was important to distinguish between a healer who misleads for gain or one who pretends to heal someone based on false knowledge.
The Chairperson proposed that the Committee consider removing healer or allowing it to remain and this issue would be returned to later. The intention was to protect patients from healers who provided false information.
Clause 48(1)(e) (Misrepresentation of qualifications)
Ms Rajbally asked what qualifications were to be produced.
The Chairperson responded that if someone used the name of a traditional healer, then the clause would be applicable.
The Chairperson concluded the deliberation of the Bill and returned to the beginning of the document for approval by the Committee.
Mr Coetzee reminded the Committee that an additional subsection needed to be added to clause 6(2) to cater for the function of the Council to inform the public of their rights to complain in the face of poor service delivery.
Ms Booysen indicated that clause 23(1) (l) was to be amended to include an assessment of mental illness in terms of clause 40.
Mr Coetzee stated that , in terms of continuing education, it should remain the prerogative of the Council to determine the nature of continuing education.
Copies of the proposed amendments were handed to the Members.
The Committee agreed that the whole of Clause 40 was to be replaced as stated on page 3 of the proposed amendments.
Agreement was also achieved on removing reference to a healer from Clause 48.
Ms Booysen pointed out that a new clause 7 was being introduced that dealt with lodging complaints.
The Bill as a whole was passed by the Committee and it was agreed that the Bill be debated in the House as it was an important piece of legislation.
The Chairperson closed the meeting.