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SOCIAL SERVICES SELECT COMMITTEE
19 October 2004
CHOICE ON TERMINATION OF PREGNANCY AMENDMENT BILL; STERILISATION AMENDMENT BILL: NEGOTIATING MANDATES
Chairperson: Mr B Tolo (ANC)
Documents handed out
Choice on Termination of Pregnancy Amendment Bill [B72B-03]
Sterilization Amendment Bill [B12-04]
Limpopo negotiating mandate on Sterilisation Amendment Bill
Eastern Cape negotiating mandate on Sterilisation Amendment Bill
Free State negotiating mandate on Sterilisation Amendment Bill
Free State negotiating mandate on Choice on Termination of Pregnancy Bill
Limpopo negotiating mandate on Choice on Termination of Pregnancy Amendment Bill
Eastern Cape negotiating mandate on Choice on Termination of Pregnancy Amendment Bill
Free State negotiating mandate on Choice on Termination of Pregnancy Amendment Bill
The Committee met to hear provisional provincial mandates on the Choice on Termination of Pregnancy and Sterilisation Amendment Bills. No mandates were received from Gauteng, Mpumalanga and Northern Cape.
Provinces discussed various concerns such as the time allocated for deliberation within provinces, appropriate consent procedures, the position of married persons regarding consent, and the allowance for public hearings. The marginalisation of the provinces within the legislative process was highlighted.
The Chairperson was absent due to illness and Mr Tolo served as Acting Chairperson.
Sterilisation Amendment Bill
The Chairperson noted numerous complaints received from the provinces regarding inadequate time allocated to consider the merits and demerits of the Bills. One working day was insufficient and the terms of the four-week cycle were not being adhered to. More time was needed in future to deliberate on proposed amendments. Mandates had not been received from all the provinces for various reasons including time constraints. The negotiating mandates were as follows:
Mr Robertsen (ANC) stated that no concerns had been raised by the Provincial Committee and the Bill was supported as proposed.
Mr J Thlagale (UCDP) stated that the Provincial Committee had decided to support the Bill without amendments.
Ms H Lamoela (DA) stated that a number of concerns had been raised, including that recipients of sterilisation procedures be adequately informed of the consequences of the process and informed of other ways to achieve the same objective. The provincial committee proposed that these concerns be noted and supported the amendments.
The Chairperson stated that the concerns were catered for in the Bill
Mr Motsapi (Legal Advisor - Department of Health) concurred with the Chairperson that the concerns were reflected in the Bill.
The provincial committee noted that the consent of parent, spouse and guardian should be obtained before sterilisation could be performed on a person incapable of consenting due to severe mental disability. Sterilisation was not a 100% foolproof procedure as pregnancies could occur following the procedure. The need for consent of a spouse was seen as unconstitutional as every individual had the right to choose whether to undergo sterilisation. No new financial implications were expected for the provinces. The Bill was supported without amendments.
The Chairperson noted that no mandates had been received from Gauteng, Mpumalanga and Northern Cape.
Ms N Madlala (ANC) stated that Gauteng was not satisfied with the time allocated to consider the Bill and requested more time.
The Chairperson agreed with the time constraints and noted that one day was insufficient to make a comprehensive appraisal of the Bill. Provinces could institute legal action against the NCOP in the future should the time constraints persist. The provinces could start to assume that they were being marginalised within the legislative process.
Mr Thlagale stated that the Bill was supported without amendments.
The Chairperson commented that no major issue had been raised by the provinces that needed further discussion with the Department of Health.
Ms J Vilakazi (IFP) apologised for the lack of a mandate from Kwazulu-Natal but indicated the province's unhappiness with the time allocated for deliberation. Concern was raised as to when public hearings could be held.
The Chairperson noted that there were not any issues that the Committee would need to take up with the Department unless new concerns were forthcoming from outstanding mandates. There did not seem to be any controversial issues that needed to be deliberated on.
Mr Motsapi highlighted Clause 2(c)(ii) of the Amendment Bill which made provision for a written opinion from a medical practitioner about the recipient of a sterilisation procedure to assist in the process of providing consent by an appointed panel. This enabled a link between the decision of the panel with the opinion of the doctor involved.
The Chairperson stated that the amendment would be considered when the Bill was being finalised but expressed appreciation for the background information that would assist the Committee in deliberating.
Mr T Setona (ANC) sought clarity on the process to be followed in finalising the Bill and stated that issues had to be referred back to the provinces for comment and to assist in the voting process.
The Chairperson agreed that amendments discussed in the meeting would be taken back to the provinces for consideration.
Mr Motsapi referred to Clause 3 of the Bill where the word "severe" would be removed in the heading to accommodate individuals with any mental disabilities. Two consequential amendments would still need to occur in the current Act under Clause 3(6) and (7) where the word "severe" or "severely" would be omitted.
Choice on Termination of Pregnancy Amendment Bill
The Chairperson noted that four provinces had not submitted mandates.
Mr Robertson stated that the province had been briefed on the 15 October and no hearings were held as extensive consultation had occurred when the principal Act had been passed. The provincial committee did not have any concerns on the Bill and the Bill was supported as proposed.
Mr Setona (ANC) stated that concerns were raised on the provisions for the publication of regulations with reference to the Dental Technicians Amendment Bill. Clarity was sought on the rules pertaining to the publication of proposed amendments to assist in acquiring comment. The understanding was that such legislation had to be tabled for public scrutiny. The provincial committee supported the Bill with the stated concern in their mandate about publishing the draft regulations for comment.
Ms Madlala asserted that the concerns raised by the Free State related to the Dental Technicians Amendment Bill and was therefore not relevant to the Bill under discussion.
The Chairperson requested legal opinion from the law advisors on the issue of publication of draft regulations.
Mr Hoon (State Law Advisor) stated that the publication of amendments was not compulsory. No legal requirement existed within the Termination of Pregnancy Bill to publish the proposed amendments.
Mr Motsapi concurred and stated that some legislation allowed for a three month period of comment but the discretion lay with the Minister of Health in deciding whether to publish or not with accompanying public comment.
The Chairperson reminded the Committee that the negotiated mandates from the provinces were political mandates and not legal mandates determined by legal advisors. Care should be taken to ensure that additional issues were not incorporated into the Bills under consideration.
Mr Thlagale stated that the provincial committee supported the essence and principle of the Bill with no amendments.
The provincial committee noted that no financial implications were created by the Bill and that both public and private facilities would be able to terminate pregnancies without seeking approval from the relevant MEC (Member of Executive Council). The Bill was supported as introduced.
The Chairperson requested legal clarity on the position of married persons and consent.
Mr Motsapi stated that it was contrary to constitutional principles to require a married person to seek the consent of a spouse before undergoing termination of pregnancy procedures. The Constitution guaranteed the right to make decisions about reproduction.
Ms Madlala inquired whether it was correct procedure for public hearings to occur prior to a briefing.
The Chairperson agreed that a problem might arise if no formal briefing occurs and a province decides to implement public hearings.
Mr Setona claimed that no rules existed preventing provinces from undertaking hearings without formal briefings.
Mr Sulliman stated that the Committee should encourage provinces to conduct public hearings at the earliest convenience to assist in the legislative process.
Certain concerns were raised including the need to recognise the right to conscientious objection on the part of medical practitioners, the need for parental consent on the part of a minor and clarification on the 24-hour maternity services to be provided. The Bill was approved with these accompanying concerns attached.
The Chairperson suggested that the Department would return to the Committee with feedback on the concerns raised. No substantive amendments were required at this stage. All inputs would be collated and referred back to the provinces. He noted that the Bill would be deliberated during the first week of November in the Kwazulu-Natal Legislature.
The meeting was adjourned.
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