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SOCIAL SERVICES SELECT COMMITTEE
6 October 2004
STERILISATION, AND CHOICE ON TERMINATION OF PREGNANCY AMENDMENT BILLS: DEPARTMENT BRIEFINGS
Chairperson: Ms J Masilo (ANC)
Documents handed out:
Choice on Termination of Pregnancy Amendment Bill (Awaited)
Sterilisation Amendment Bill (Awaited)
The Committee met to receive briefings by the Department of Health on proposed amendments to the Sterilisation Act and the Choice on Termination of Pregnancy Act. Questions were raised concerning the level of public consultation, possible legal and constitutional repercussions, the composition of the envisaged Panel, appropriate punitive action for offenders and the qualifications of practitioners.
Department briefing on the Sterilisation Amendment Bill
Mr M Motsapi (Legal Advisor to the Department of Health) said the current Act allows for sterilisation if a person is under the age of 18 and only if physical health is affected. Two categories are considered: where the individual is incapable of giving consent due to severe mental disability or where the person is under the age of 18 and incapable of comprehending the consequences of sterilisation. The amendments seek to ensure that the Panel considers physical and mental issues in determining whether sterilisation should occur.
The Bill recommends that the Panel consider the written submission of a doctor that is currently not a requirement. The amendments seek to broaden the scope of people qualified to provide information on a particular case and include medical opinion from medical practitioners. The existing Act serves the interests of caregivers to a greater extent than those of patients that the amendments are designed to rectify. Certain procedures are to be followed before sterilisation can occur to prevent major violations of individual rights.
Section 4 deals with consent forms and acceptable permission. The definition of sterilisation is to be expanded by the Bill to include any act intended to prevent reproduction.
Mr B Tolo (ANC) asked whether the proposed amendments would cover problems currently experienced and whether potential legal action would be avoided in the future.
Mr M Sulliman (ANC) enquired whether sufficient consultations had occurred with all relevant stakeholders.
Mr Motsapi replied that consultation had taken place in all provinces and the Bill had been published for public comment and comments had been incorporated into the Bill. The Panel would only be utilised where the person involved was incapable of providing consent due to mental disability. Caregivers would not only provide consent in the future but parents and guardians would also be included. Written opinion from doctors would also be considered.
Ms J Vilakazi (IFP) questioned the consultation process as lacking meaningful input from the masses. A more effective communication process was needed to include rural areas in decision-making and improve the level of understanding amongst indigenous people.
The Chairperson reminded the meeting that Members would travel to Provinces and public hearings would be held.
Mr M Thetjeng (DA) asked how the panel would be constituted and whether stakeholders other than the Provinces had been included in the consultation process.
Mr Motsapi replied that the panel would consist of a psychiatrist, a psychologist and the head of the facility where the procedure would occur. The panel would only be used when consent could not be obtained. The Amendment Bill appeared in English and Afrikaans in accordance with the original Act. The Provinces would play a key role in the implementation of the Bill and workshops would be held to assist in the communication of the details.
Mr Tolo asserted that Parliament should play a leading role in promoting other official languages and the proposed Bill should appear in indigenous languages.
Ms C Botha (State Law Advisor) drew attention to Clause 2(b) that allowed the panel to make recommendations on sterilisation where a person's physical health was in danger.
Mr Sulliman reminded the Committee of situations where a candidate's mental health could recover and realise that sterilisation had occurred. What would be the legal consequences of this, he asked.
Dr Mpuntsha (Department Director: Women's Health) stated that the Bill instructed the panel to carefully consider the condition of the person and decide whether recovery was likely before authorising sterilisation. The mental and psychological status of candidates was to be carefully investigated. The Bill did not contain any additional financial implications for the Department as the envisaged services formed part of normal operations within the health sector.
The Chairperson asked whether Members agreed on the details of the Bill.
Mr Tolo suggested that such a decision was not required at this stage as the Department was providing an initial briefing and Members had some time to consider the implications at subsequent meetings.
Department briefing on the Termination of Pregnancy Amendment Bill.
The Bill sought to include registered nurses into the group entitled to conduct abortions and to clearly define where such operations could occur and after what period of pregnancy The provider of termination services was obliged to explain all rights and consequences to recipients. Records of such operations had to be forwarded to the Director- General by the head of the facility involved within one month of the procedure. Details of offences attracting punitive actions are highlighted and it is intended that the Act apply throughout the country. The Bill empowers provincial MECs to approve appropriate facilities and make certain regulations governing termination. It is proposed that additional training be provided to practitioners wanting to perform termination of pregnancy including registered nurses. The Bill also allows for methods other than surgical to perform termination and outlines ten basic requirements for facilities. Clause 7 provides information on the storing of records and the notification of the Director-General every six months. Powers of delegation are outlined in Clause 8 and Clause 9 determines the power of the MECs to make regulations in consultation with the Minister. The requirement for consultation with the Minister ensures that regulations remained universal at a national level. Amendments to Clause 10 were intended to detail punitive actions that could be imposed should the owner of a facility not comply with regulations.
Dr Mpuntsha provided an overview of the proposed amendments detailing the problems that communities experienced such as sexual violence, Aids and rape connected to the termination of pregnancy. The providers of services faced challenges to comply with regard to religious beliefs and the lack of adequate training. The amendments intended to increase the pool of available practitioners competent to perform abortions in a satisfactory manner and improve levels of access to adequate facilities by the general population. The Minister retained the power to determine regulations but delegated some authority to provincial MECs to make appropriate rules in certain areas.
The Chairperson asked whether registered nurses or mid-wives could participate within the proposed system by choice or was it perceived as a compulsory duty.
Mr J Thlagale (UCDP) requested clarity on the ten points listed within the amendments that indicated basic requirements for facilities.
Mr Tolo asked whether a minimum sentence was available for offenders that transgressed regulations.
Mr Thetjeng insisted that the Bill should cater for the right to choose to participate on the part of practitioners.
Mr Motsapi replied that the Bill does not provide for choice as the emphasis was on protecting the rights of citizens rather than the personal interests of medical practitioners. The Constitution stipulated that basic health services should be provided to citizens and the Bill should support this principle. The Bill proposed specific training designed to improve the level of service delivery and personnel were entitled to decide whether to undergo relevant training or not. Training would not be forced upon personnel. The Bill, however, did not provide for objection based on conscientious grounds.
Ms Vilakazi acknowledged the difficulties associated with certain aspects of the Bill in terms of compliance and provided evidence of instances where nurses voiced objection. Those members of the profession who volunteered for training were likewise expressing their approval of the process and this should be noted.
Mr Thetjeng intimated that the implications of the Bill went beyond the normal employer-employee relationship as defined by labour legislation to include issues of constitutionality. The impression created by the Bill was that personnel would be fired should they refuse to participate and this was contrary to the spirit of the Constitution. The Act had to recognise the right to choose on the part of practitioners.
Mr Tolo suggested that Members should not debate the merits and demerits of the Bill at the present meeting as a Department briefing was the intention. Debate could occur at a later stage.
The Chairperson concurred and indicated that discussion would occur in the near future.
Mr Motsapi referred to the ten basic points outlined in the Bill as standard requirements that could not be compromised by provincial authorities although appropriate additions could be instituted at a provincial level following consultation with the Minister.
Mr Hoon (State Law Advisor) provided background on the issue of a maximum fine by referring to the Adjustment of Fines Act which recommended a maximum fine of R20 000 per annum. Therefore, the Bill contained a maximum fine of R200 000 due to the maximum sentence of 10 years that could be imposed. Minimum sentences were a contentious issue and the onus remained with the court to determine the seriousness of a particular case and decide on appropriate sentencing.
Mr Suliman inquired about envisaged mechanisms to monitor approved facilities on a regular basis to ensure sufficient standards.
Ms N Madlala (ANC) asked whether the reporting process to the Director-General would also include incidents of unsafe abortions in order to accumulate statistics on problem areas. Mechanisms to trace and identify those carrying out unsafe abortions were recommended.
Dr Mpuntsha confirmed that facilities would be monitored on a regular basis but no mechanism was in place to identify offenders. Proper reporting from facilities would serve to monitor compliance and inspections of facilities could occur in accordance with the provisions of the National Health Act. The reporting of unsafe abortions fell within gynaecological services as provided by the Department. The identification of unsafe practitioners relied on anecdotal evidence but criminal procedures would follow identification.
Mr Tolo raised concern about various provincial MECs making different regulations in their respective provinces to the detriment of universal application and recommended that common standards be maintained.
Mr Motsapi responded that the provincial MECs could only make additional regulations in consultation with the Minister and the designation of facilities had to be in accordance with prescribed requirements. MECs could increase the basic requirements but not decrease any provisions. Therefore, the possibility existed of differing outcomes in certain provinces but no compromise would be tolerated regarding the overall framework. The National Health Act served as the overarching structure in terms of inspections with Section 77 making provision for regular inspections. The Amendment Bill did not make specific provision for inspections.
The Chairperson declared that public hearings would occur in the near future and submissions would be incorporated into the final deliberations.
The meeting was adjourned.
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