Nursing Bill; Children’s Bill: deliberations and adoption

Meeting report

SOCIAL SERVICES SELECT COMMITTEE
30 November 2005
NURSING BILL; CHILDREN’S BILL: DELIBERATIONS AND ADOPTION

Chairperson: Ms M Masilo (North West)

Documents handed out:
Nursing Bill [B26B – 2005 (Reprint)]
Nursing Bill [B26D-2005] (incorporating all amendments)
Children’s Bill [B70B-2003]
Children’s Bill [B70C-2003] (NCOP Proposed Amendments)
Children’s Bill [B70D-2003] (incorporating all amendments)
Proposed amendments to the Children's Bill

SUMMARY
The Committee met for a marathon session stretching from 9h00 until 19h00. The Department of Health took the Committee through the Nursing Bill, highlighting key areas and clarifying various points. The Committee adopted the Bill. Then the Department of Social Development went through amendments that they had made to the Children’s Bill since their last meeting with the Committee. Clause 12 was amended as requested by this Committee. They approved the Bill with all these amendments.

MINUTES
Department of Health Briefing on Nursing Bill
Mr Motsepe, from the Legal Department of the Department of Health, began by giving the Committee an overview of the Bill. A major aspect of the Bill was to reform the Nursing Council to increase the protection of the public and encourage accountability. It was also intended to ‘dove-tail’ with the National Health Act and other related statutes, as well as the promotion of the constitutional right to access to health care services and basic health care. He then went through the Bill clause by clause.

Section 1
Mr Motsepe said that many of the definitions were the same as those in the National Health Act, given the need to ‘dove-tail’ two pieces of legislation. The Bill also included definitions on corporate governance that dealt with the financial conduct of the accounting officers, as well as a code that regulated the functions of the Nursing Council.

Sections 2 and 3
This dealt with the establishment of, and the objects of the Nursing Council. The existing council would continue to exist until the Minister announced its dissolution to enable the creation of a new council. In terms of the National Health Act, the Minister had to determine health policy in consultation with the National Health Council. Therefore, the functions of the council had to be in the best interests of the public. At present, there were no provisions that ensured the accountability of these councils to the Minister or Parliament. Such provisions had been included in this Bill. More substantive requirements and provisions to ensure service delivery would be included in the Regulations.

Section 4
This clause dealt with the functions of the Council, and many of these flowed from the objects of the Council. Such a clause was necessary to deal with the prevalence of illegal training institutions for example.

Ms F Mazibuko (Gauteng) was worried that the language of the section did not make it compulsory for the Council to investigate complaints.

Mr Motsepe replied that even though some of the language seemed discretionary, the Council had the duty to fulfil the overall mandate of the Act, and these functions were all part of their duties as a matter of course.

Section 5
This clause dealt with the composition and the dissolution of the Council. The number of the Council had been pared down from 39 (in the current Council) to 25 in this Bill. This was to streamline the Council to enable it to function more efficiently. Sixteen members would have been registered in terms of this Act.

Section 6
This section dealt with the disqualification of a member from the Council

Section 7
This dealt with how a member of the Council could vacate their office.

Section 8
Membership could be terminated under certain circumstances, with the most important one being under subsection (g), where it is in the interests of the public. The Minister could not act arbitrarily however. The termination had to happen after due process had been followed.

Mr M Thetjeng (Limpopo) asked if a member of the Council could be removed even though the Minister had not consulted with the rest of the Council.

Mr Motsepe replied that any process of termination had to go through due process, and the member would be given an opportunity to state their case before the Council.

Section 9
This gave the Minister the power to fill vacancies arising from circumstances in section seven and eight.

Section 10
This clause dealt with the appointment of the Chairperson of the Council and his or her deputy.

Section 11
This section spelled out the Chairperson’s duties, which were missing from the current legislation. The main function was to meet the objects of the Bill.

Section 12
This clause described how meetings were convened.

Section 13
This section set out the quorum necessary for meetings.

Section 14
This clause listed who was in the Executive Committee of the Council.

Section 15
This clause enabled the Council to establish other Committees that it felt were necessary to help it carry out its functions.

Section 16
This section dealt with the remuneration of the members of the Council.

Section 17
This section described how the Minister could rectify defects arising out of the Act.

Section 18
The Minister and the Council were empowered to appoint the Registrar and staff after consultation. Currently, the Registrar of the Nursing Council was not appointed after signing a performance agreement.

Section 19
This section set out the duties of the Registrar. Sections 19 to 29 (inclusive) contained the corporate governance provisions which were taken verbatim from the Public Finance Management Act (PFMA) and other related prescripts to ensure the accountability of the Registrar. The Registrar was also the accounting officer.

Section 30
This section defined what the various categories of nurses were, and enabled the Minster to define other categories.

Section 31
Currently, the Act prohibited anyone from practicing for gain without being registered. A potential loophole was closed by this provision.

Section 32
This dealt with the registration of learners who were registered with recognised training facilities. Subsection (5) disallowed unregistered learners from utilising learning facilities.

Section 33
This section allowed the limited registration of certain individuals to allow them to provide certain health services or do research for example.

Section 34
If an individual had acquired additional qualifications, they could apply to have them recognised by the Council.

Section 35
This section dealt with how the Registers were kept and published. They would be kept by the Registrar and the Council could order them to be published.

Section 36
The presence of an applicant’s name on the Register would be proof of registration.

Section 37
Possession of a receipt for fees paid to the Council would be proof of such payment and registration.

Section 38
Regulations would be passed to set the qualifications needed for registration.

Section 39
This section compelled nurses to do Continuing Professional Development just as doctors do to keep them abreast of new developments in the field.

Section 40
The Department wanted to amend subsection one to compel only South African citizens to do community service.

Section 41
The National Health Act had extensive provisions on research but the ethical aspects of any research undertaken by nurses would be dealt with in the Regulations that accompanied this Bill.

Section 42
This section dealt with the recognition and approval of programmes provided by education and training institutions.

Section 43
This section explained some of the acronyms used in the field.

Section 44
Only the Council had the power to remove a name from, or restore a name to the Register, with the section set the conditions under which this could happen.

Section 45
The Registrar could issue a duplicate certificate of registration for certain reasons.

Chapter 3
This part of the Bill dealt with the powers of the Council in dealing with unprofessional conduct, and set out the procedure that had to be followed and the penalties that could be imposed.

Section 51
This section dealt with the unfitness of certain nurses to practice due to impairment.

Chapter 4
These sections contained the penalties that could be imposed for practicing as nurses without registering.

Section 56
Particular categories of nurses were allowed to fulfil the functions of medical health professionals or pharmacists under certain conditions such as in the rural areas for example.

Section 57
This section allowed anyone aggrieved by a decision of the Council, to appeal the decision.

The Committee passed the Motion of Desirability and the Bill was accepted.

Department of Social Development Briefing on Amendments to the Children’s Bill
Preamble
Mr P du Preez, the Department’s Senior Legal Advisor, noted that the second paragraph was omitted and substituted with "And Whereas."

Table of Contents
Some headings were redrafted while some new ones were also added.

Clause 1
Changes were made to some of the definitions and new ones were added, including the inclusion of a definition of ‘genital mutilation.’

Clause 12
The Department noted that as instructed by this Committee, the current clause was rejected and replaced with a new one which gave every child the right not to be subjected to social, cultural and religious practices which were detrimental to his or her well-being.

Clause 21
On page 20, in line nine, "or pays damages in terms of customary law" was added after "father."

Clause 23
In line three of page 21, "parental responsibilities and rights" was omitted and substituted with "contact and care."

Clause 27
The words "parental responsibilities and rights" were omitted and substituted with "guardianship and care."

Clause 29
The words "subject to section 55" were inserted after "may."

Clause 34
A new sub-clause was added after line 19 on page 25:
(4) A parenting plan registered with a family advocate may be amended or terminated by the family advocate on application by the co-holders of parental responsibilities and rights who are parties to the plan.
(5) A parenting plan that was made an order of court may be amended or terminated only by order of court on application –
(a) by the co-holders of parental responsibilities and rights who are parties to the plan;
(b) by the child, acting with leave of the court; or
(c) in the child’s interest, by any person acting with the leave of the court.
(6) Section 29 applies to an application in terms of subsection (2).

Clause 35
This clause was rejected and replaced with a new one that dealt with the refusal of access or refusal to exercise parental responsibilities and rights.

Clause 42
This clause was rejected and replaced with a new one that dealt with Children’s Courts and their presiding officers.

Clause 45
On page 28, from line 4, "Except where this Act, the Divorce Act or the Maintenance Act expressly provides otherwise" was omitted and replaced with "Subject to section 1(4)."

Clause 46
On page 28, from line 48, subparagraph (ii) was omitted, and the numbering was fixed in lines 50 and 51.

Clause 47
On page 29, in line 52, after the second "of," "the Administration Amendment Act, 1929 (Act No. 9 of 1929)" was inserted. In line 54, "or the Recognition of Customary Marriages Act, 1998 (Act No. 120 of 1998)" was inserted after" (Act No. 116 of 1998)."

Clause 53
The first "children’s" was omitted.

Clause 56
The word "children’s" was omitted from line 19.
Clause 57
The word "children’s" was omitted from line 25 and "the clerk of the children’s court or" was left out of line 30 on page 32.

Clause 59
The word "children’s" was omitted from line two on page 33.

Clause 63
All the words after "other" up to and including "professional" in line 30 on page 34 were omitted and replaced with "suitably qualified."

Clause 65
The word "children’s" was omitted from line 23 on page 35.

Part 3 of Chapter 4
"Part 3" was omitted from line 34 on page 35 and "Clerks of Children’s Courts" was omitted from line 35.

Clause 67
This clause that dealt with Clerks of court was rejected and replaced with a new one:
(1) Every clerk of the court at the relevant magistrate’s court must assist the children’s court in question in performing its functions as provided for in this Act or in any other law or as may be prescribed.
(2) if the clerk of the court is, for any reason, unable to assist the children’s court or if no clerk of the court has been appointed for a court, the presiding officer concerned may designate any competent officer employed in terms of the Public Service Act to act as clerk of the court for purposes of assisting that children’s court for as long as the clerk of the court in unable to so assist or until a clerk of the court has been appointed, as the case may be.

Clause 68
The word "children’s" was omitted from line one on page 36.

New Heading
A new heading was added after line four on page 36:
Part 3
Pre-hearing conferences, family group conferences, other lay-forums and settling matters out of court

Clause 72
The word "children’s" was omitted from line 49 on page 36.

Clause 73
This clause was rejected and was replaced with: (73) The clerk of the court may attend every children’s court hearing.

Clause 75
On page 37, in line 19, "and the powers, duties and functions of clerks of the court in as far as they relate to the proceedings of children’s courts" was added after "courts."

Clause 119
The words "if available" was added after "person" in line 19 on page 40.

Clause 120
On page 40, in line 31m "either as a party or a witness" omitted. The phrase "sexual abuse" was omitted and substituted with "indecent assault" in lines 43, 50 and 52.

Clause 122
Sub-clause (2) was omitted and replaced with:
(2) The Director-General must enter the name of the person found unsuitable to work with children as contemplated in section 120 in Part B of the Register regardless of whether appeal proceedings have been instituted or not.
(3) If, after appeal or review proceedings have been concluded, finding in terms of section 120 that a person unsuitable to work with children is reversed, the Director-General must forthwith remove the name of the person from the Register.

Clause 123
The words "kinship care-giver" were omitted from line 34 on page 41. The word "or" was omitted from line 37 and new sub-clauses were added:
(e) be employed in terms of the Public Service Act in a position where that person works with or has access to children;
(f) be employed in terms of the Municipal Systems Act in a position where that person works with or has access to children.

In line 49, another new sub-clause was added:
(5) The head of a state department may not allow a person whose name appears in Part B of the Register to be employed in a position where that person works with or has access to children.
(6) The municipal council of a municipality may allow a person whose name appears in Part B of the Register to be employed in a position where that person works with or has access to children.

Clause 124
After line 13 on page 42, a new sub-clause was added:
(d) is employed in terms of the Public Service Act in a position where that person works with or has access to children, that person must disclose that fact to the head of the state department in which he or she is employed; or
(e) employed in terms of the Municipal Systems Act in a position where that person works with or has access to children, that person must disclose that fact to the municipal council of the municipality concerned.

Clause 126
After line 42 on page 42, a new sub-clause was added:
(d) to be employed in terms of the Public Service Act in a position where that person works with or has access to children, the head of the state department in which he or she is to be employed must establish whether or not that person’s name appears in Part B of the Register; or
(e) to be employed in terms of the Municipal Systems Act in a position where that person works with or has access to children the municipal council of that municipality must establish whether or not that person’s name appears in Part B of the Register.

After line 53, a new sub-clause was added:
(d) the head of every state department must establish whether the name of any person employed in terms of the Public Service Act, 1994 (Proclamation No. 103 1994) in a position where he or she works with or has access to children, the head of the state department in which he or she is to be employed must establish whether or not that person’s name appears in Part B of the Register; and
(e) the municipal council of every municipality must establish whether the name of any person employed in terms of the Municipal Systems Act in a position where he or she works with or has access to children appears in Part B of the Register.

Clause 128
Subsection (4) was omitted from line 40 on page 43 and substituted with:
(4) The name and particulars of a person convicted more than once of an offence with regard to a child may not be removed from Part B of the Register.

Clause 129
The numbering was corrected in this clause and a new sub-clause was added after line 29 on page 44:
(8) The Minister may consent to the medical treatment of or the surgical operation on a child if the child unreasonably refuses to give consent.

Clause 134
The numbering was corrected in this clause.

Clause 150
In line eight on page 47, all the words after "worker" up to and including "155(2)" in line nine were omitted. Sub-clauses (c), (e) and (f) were omitted and a new sub-clause was added after line 14:
(3) If after investigation a social worker finds that a child referred to in subsection (2) is not a child in need of care and protection as contemplated in subsection (1), the social worker must where necessary take measures to assist the child, including counselling, mediation, prevention and early intervention services, family reconstruction and rehabilitation, behaviour modification, problem solving and referral to another suitably qualified person or organisation.

Clause 151
On page 47, in line 17, "that presiding officer" was substituted with "the children’s court concerned" and "to the court" was left out of line 22.

Clause 152
The word "children" was omitted from line seven on page 48.

Clause 153
The word "children" was omitted from line 57 on page 48.

Clause 156
The numbering in this clause was corrected.

Clause 158
The word "programmes" was omitted in lines 16 and 19 on page 52. In line 21, all the words after "programme" up to and including "programmes" in line 22 were omitted.

Clause 164
In line 46 on page 53, all the words after the first "to" up to and including "other" were omitted and substituted with "such."

Clause 165
In line three on page 54, all the words after the first "to" up to and including "other" were omitted and substituted with "such," and "or institution" was added after "person." In line eight on page 54, all the words after the first "to" up to and including "other" were omitted and substituted with "such," and "or institution" was added after "person."

Clause 166
The word "children" was omitted from line 12 on page 54.

Clause 231
Some grammatical changes were made here, and all the words after the second "child" in line 24 on page 55, up to and including the first "child" in line 25 were omitted. In line 30 "the clerk of the children’s court or" was omitted and so were all the words after "child" in line 31, up to and including the "caregiver."

Clause 232
The word "designated" was omitted from lines nine and eleven on page 56.

Clause 233
The word "minor" was omitted from line 16 on page 56 and replaced with "child" and the word "children" was omitted from lines 41 and 46.

Clause 235
The word "designated" was omitted from lines 22 and 28 on page 57. After "organisation" in lines 22 and 28, "accredited in terms of section 251 to provide adoption services" was inserted.

Clause 236
The word "children" was omitted from line 16 on page 58.

Clause 237
The word "children" was omitted from lines 27, 36, 37 and 44 on page 58.

Clause 238
The words "clerk of the children’s court" was omitted and replaced with "presiding officer."

Clause 239
The word "children" was omitted from lines 16, 17 and 19 on page 59.

Clause 240
The words "or kinship care" was omitted from lines 43 and 44 on page 59.

Clause 243
In line 31 on page 60, "time" was inserted after "but."

Clause 244
In line 54 on page 60, the second "that" was omitted and replaced with "the."

Clause 247
The word "children" was omitted from line 35 on page 61.

Clause 249
On page 62 in line 30, "*****" was omitted and a new subsection added:
(d) a child protection organisation accredited in terms of section 251 to provide adoption services, receiving the prescribed fees;" The word "designated" was omitted from line 32.

Clause 250
The word "designated" was omitted from lines 38 and 42 on page 62.

Clause 251
The word "designated" was omitted from lines 52 and 54 on page 62.

Clause 252
The word "designated" was omitted from line six on page 63.

Clause 253
On page 63, in line 21, a new subsection was added with the numbering corrected:
(e) prescribing the requirements that a child welfare organisation has to comply with for accreditation as contemplated in section 251 to provide adoption services;
(f) prescribing the requirements that a child welfare organisation has to comply with for accreditation as contemplated in section 259 to provide inter-country adoption services.

Clause 258
The word "designated" was omitted from line 25 on page 64.

Clause 259
On page 64, in line 27, "Accreditation of designated child protection organisation for inter-country adoption services" was omitted and replaced with "Accreditation to provide inter-country services." The word "designated" was omitted from lines 29, 34 and 37 on page 64.

Clause 260
The word "agreements" was omitted from line 46 on page 64 and replaced with "agreement," and "designated" was omitted from lines 47 and 50.

Clause 261 to Clause 305
Grammatical changes and referencing corrections were made to these clauses.

The Committee passed the Motion of Desirability and accepted the Bill but referred the amendment to Clause 12 back to the Portfolio Committee for its approval.

The meeting was adjourned.