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31 October 2000
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Meeting report

HEALTH PORTFOLIO COMMITTEE
1 November 2000
CHIROPRACTORS, HOMEOPATHS AND ALLIED HEALTH SERVICE PROFESSIONS SECOND AMENDMENT BILL: VOTING

Documents handed out:
Chiropractors, Homeopaths and Allied Health Service Professions Second Amendment Bill [B 66B-2000]
DA's proposed amendments (see Appendix 1)
IFP's proposed amendments (see Appendix 2
The Chiropractors, Homeopaths and Allied Health Service Professions Council of South Africa (see Appendix 3)

SUMMARY
The Committee voted on and passed the Chiropractors, Homeopaths and Allied Health Service Professions Second Amendment Bill without amendments. The ANC and the UDM voted in favour, the IFP abstained and the DP and NNP voted against.

MINUTES
Professor Gumbi, Chief Director of Human Resource Management at the Department of Health, outlined the Bill's process to date, noting that controversy around the Bill had focused on its distinction between "therapist" and "practitioner" and the composition of the Council as set out in the Bill.

Ms J Van Zyl, a lawyer with the Department, took the Committee through a clause-by-clause reading of the Second Amendment Bill.

Clause 1 Definitions
Ms Van Zyl explained that the Bill names and defines ten professions. According to the Bill, a practitioner can "prescribe and dispense" medicine whereas a "therapist" cannot.

Clause 4 Objects of council
Ms Van Zyl pointed out that the composition of the Council is determined by the Bill itself, so changes to the Council have to be made by amendment.

Clause 6 Constitution of Council
Ms Van Zyl noted there was an error in the Bill as printed, that the words at s 5(4)(a), "but who are not registered under this Act", should be deleted.

The Members asked for proof that this change had actually been made. The Chairperson asked Ms Van Zyl to find out exactly what the NCOP had done.

Clause 7 Disqualification for appointment as member, vacation of office…
Dr Mbulawa noted the deletion of subclause 7(c)(g), "the Minister in the public interest terminates his membership", and asked how, then, an appointment would be terminated in the public interest if the Minister did not have discretion to do so?

Ms Van Zyl answered that it is covered by subclause 7(c), taken as a whole.

Clause 8 Office Bearers
Dr Cwele (ANC) asked if it was unusual for a council to elect its own chair. Prof Gumbi responded this is current practice and not unusual.

Clause 9 Establishment of professional boards
Dr Mbulawa asked if s 10A(5)(b), "one person representing the community who is not registered under this Act…" did not conflict with the deletion of s 5(4)(a) in Clause 6.
The Chairperson agreed that it does, but that it would be corrected. The Committee was now to concern itself with the faithful representation of what the NCOP had agreed to.

Voting
The Committee, having looked at the principal clauses of the Amendment Bill, was now ready to enter the formal part of the meeting.

Ms Kalyan (DP) said the DP and the NNP cannot accept the Bill as it stands and referred the Committee to the Democratic Alliance's submission that all who practice must be registered.

The Chairperson asked if the DA's concerns were not satisfied by s 1(2)(c), "any reference in this Act, except in section 16(3), (4), (5) and (6), to practitioner includes a therapist".

Ms Kalyan answered that there is still a differentiation made in the scope of practice of practitioners and therapists. She said no such differentiation should be made, that it made a distinction as if one were superior to the other.

Dr Jassat (ANC) said a radiologist is not inferior to another medical practitioner, but just performs a different function.

Dr Mbulawa said it is important to distinguish between professionals so that the public can be protected and not confused.

Ms Kalyan said all eleven submissions at the hearings on 30 October had advocated that one term be used, "practitioner", and that no distinction be made between practitioners and therapists. She asked if they were going to ignore all those submissions?

The Chairperson read the Motion of Desirability, which was moved and seconded.

The Committee then voted on the Bill, clause by clause:

In Clause 1, due to the distinction made here between "practitioners" and "therapists", the DP and NNP voted against the clause. The IFP abstained. All others voted for it.

Clauses 2, 3 and 4 were voted in unanimously.

The amendment in Clause 5 was voted against by the ANC and so fell away. The clause was voted for unamended. The DP and NNP abstained and all others voted in favour.

The amendment in Clause 6 was voted against by the ANC and so fell away. The clause was voted for unamended. The IFP abstained, the DP and NNP voted against and all others voted for the clause. It was adopted.

Clauses 7, 8, 9, 10, and 11 were voted for unanimously.

Clause 21 was voted against by the DP and NNP. It was carried.

Clauses 22 to 41 were voted in favour of unanimously.

The Committee then voted on the Bill as a whole. The ANC and the UDM voted in favour of it. The IFP abstained The DP and NNP voted against the Bill.

The Chair announced the Bill was therefore carried without amendments by this Committee.

The meeting was adjourned.

Appendix 1:
31 October 2000

Chiropractors, Homeopaths and Allied Health Service Professions Bill

The DA cannot support this Bill as it stands.

The following amendments are suggested, viz.

1. Composition of the Council
Representation on the Council is recommended as follows:
Chiropractors: 3
Homeopaths: 3
Osteopaths: 1
Naturopaths: 1
Phytotherapist: 1
Community/ Govt. representatives: 6
Legal: 1
SAMDC: 1
Tertiary Institutions representative: 1
What about ayurvedic ? 1 ?

2. Chairperson
The Chairperson of the Council should be elected by the Council and approved by the Minister. The Chairperson must be a practitioner in one of the existing disciplines.

3. Function of the Council
P.5 Section 5(g) amendment delete 'conduct or arrange' and insert 'approve'

4. Terminology
Practitioner v. Therapist. The common term of 'practitioner' is advised.

5. Registration and lnternship
Any modality that is registered on the Council must ensure that all persons who practice that modality are registered to do so. (This clause will put paid to the issue of voluntary registration and protect the public.)

6. Term of Office
It is agreed that the term of office of the Interim Council will not be extended and that a New Council should be appointed.

The New Council should consist of all existing disciplines and allow for new disciplines to be registered. It will be the responsibility of the Board to formulate the scope of practice and set up accreditation structures for new disciplines.

Appendix 2:
IFP AMENDMENTS TO CHIROPRACTORS, HOMEOPATHS AND ALLIED HEALTH SERVICE PROFESSIONS BILL. IFP 31/10/2000

1. b. Delete therapeutic massage therapy, therapeutic aroma therapy, and therapeutic reflexology and add after: for any other profession the practice of which requires registration on the Council and that is contemplated in Section 16 (!) of the Act.
Motivation: All the problems that have delayed implementation of this Act have related to the problems of differentiating between those complementary therapies in which modalities some members want to be registered and some do not. This choice of registration does not correspond with a clear difference in scopes of practice for registered and unregistered practitioners, will be confusing to the public and impossible to monitor and police. Thus the public cannot be protected. The Bill makes perfectly good sense if these modalities are excluded and if the Council only deals with those health professions that should be regulated and registered on a Professional Council in order to operate.

2.Constitution of council
We propose the constitution originally proposed in the bill as drafted by the Department, with the addition of a member representing tertiary institutions. Provision should be made for inclusion of Acupuncture and Chinese Medicine once regulations for these have been drafted.

Motivation: Desire to be inclusive of all health disciplines that have established texts, recognised pharmacopoeias and measurable and enforceable scopes of practice.

3 Page 7 Line 27. Amend amendment of Act 63 of 1982 amended by section 7 of Act 40 1995 as follows:
Delete 7c (g)
Motivation: unnecessary arbitrary powers for Minister

4. Page8 line1.10A Add
5g Remuneration of members referred to in 5c will not exceed a specified amount laid down by the Council in its annual budget, in terms of regulations which the Minister will prescribe.

5. General powers of the Council
Page 5 Clause 5 In Section 4 of the Act
4g) Monitor and approve the various Boards' conducting and arranging of courses

6. We support the suggestion that a period of internship be served by new trainees.

The IFP supports the establishment of a new Council comprising existing disciplines on the Interim Council and requiring said new disciplines to be registered within a specified time. The regulations and scopes of practice governing these will be proposed by their respective interim boards and approved by the Council.

Appendix 3:
THE CHIROPRACTORS, HOMEOPATHS AND ALLIED HEALTH SERVICE PROFESSIONS COUNCIL OF SOUTH AFRICA

31 October 2000

MEMORANDUM TO THE PORTFOLIO COMMITTEE ON HEALTH CONCERNING COUNCIL'S AMENDMENT BILL

Dr Nkomo and members of the Parliamentary Portfolio Committee on Health.

Dear Colleagues,

Our Council considers it most unfortunate that apart from the brief fifteen minute input on Monday, we have not had the opportunity of putting our serious concerns to, or answering the very real questions of, the Portfolio Committee. We object to this strongly; to be classified at the same level as our Professional Liaison Committees, and not to be given the opportunity to answer questions which only the Council can answer threatens the viability of the whole process. The Council should, we believe, be treated as a senior partner in the legislative process, and not as a bit player. In other words, to be part of the solution, not to be forced into being part of the problem.

Serious Problems Related to Our Bill as it Stands: Legal Implication
In our Council presentation on Monday, the serious legal implications and our warnings concerning them, do not appear to have been considered. May I repeat them and ask the Portfolio Committee to consider them seriously.

Practitioner and Therapist Distinction:
Council believes there are major practical difficulties caused by the distinction and the definitions contained in the Bill have been put to our Council attorney. His legal opinion is that certain of the definitions presently in the Bill will lead to an untenable situation and that it is foreseen that the Council could become embroiled in Supreme Court cases. This may occur when practitioners registered on the various levels of registration are prevented by Council from performing acts which are not in their scopes of practice, but they are permitted to do so in terms of the Act, leading to requests to the courts to interpret our Act. For example:

In Section 1(q)(2)(a) (pg 4, line 14) "a practitioner may -
diagnose, treat or prevent, physical and mental disease, illness or deficiencies in humans;
prescribe or dispense medicine; and
provide or prescribe treatment for such disease, illness and deficiency in humans."

In Section 1(j) (pg 3, line 33) "a practitioner means a person registered as an acupuncturist, ayurveda practitioner, chiropractor, homoeopath, naturopath, osteopath or phytotherapist in terms of this Act."

This means that:
an acupuncturist who is registered on any level of acupuncture registration may in terms of the Bill do all of the above (for example, a physiotherapist or chiropractor registered as an acupuncturist may in terms of his/her scope of practice only do acupuncture, but will now be permitted to prescribe/dispense, which are not in their scope of practice;
an ayurveda practitioner who is registered on any level of ayurveda registration may in terms of the Bill do all of the above (for example, a remedial yoga therapy teacher or Panchakarma technician may in terms of his/her scope of practice not diagnose or prescribe/dispense, but will now be permitted to diagnose and prescribe/dispense);

It is not stated what categories of medicine a practitioner may prescribe/dispense, e.g. allopathic, homoeopathic, Chinese medicine, etc. It should be defined further (pg 4, line 17):
"(ii) prescribe or dispense the medicines contained in the scope of practice of the relevant profession."

In Section 1(q)(2)(c) (pg 4, line 25) it is stated: "(c) any reference in this Act, except in Section 16(3), (4), (5) and (6), to practitioner includes a therapist." This section deals at length with the relationship of this Act and Act 101 of 1965, The Medicines and Related Substances Control Act, and deals specifically with how a practitioner may compound or dispense medicines. As we have pointed out above, this means that, as presently defined two registered categories of acupuncturists and three registered categories in ayurvedic medicine may compound and dispense medicine even though they may not do so, and are not trained to do so, under their scope of practice.

There is a further anomaly in that aromatherapists, as therapists, may not prescribe aromatherapeutic substances, their medicines, to their clients. All aromatherapy substances will be defined as medicines under the new MCC registration system for complementary medicine.

In Section 1(q)(2)(b) (pg 4, line 20) "a therapist may -
treat or provide treatment for diagnosed disease, illness or deficiencies in humans; and
prevent such disease, illness or deficiencies in man."

This means (and it was so stated by Professor Gumbi in the Department's response to a question from the NCOP Social Welfare Committee) that a therapist may only see a patient who has been referred by a medical doctor or a practitioner. Therapists (the three professions who are provided for in the Bill and referred to as therapists) do see referred patients, but these form a negligible proportion of patients seen. Our legal advice is that limiting them to referrals will be infringing on an existing right as they have been seeing, for many years, patients who have not been referred. This will effectively be removing their source of income.

Council believes that it is obvious that if the Act is to be passed with this distinction wholesale complex changes will be necessary to address the issues raised above. Our Council maintains for the above reasons that the simple and elegant description of one class of health worker, namely "practitioner" regulated and defined by their scope of practice, as contained in the Council's version of the Bill, should be retained

If however the Portfolio Committee decides in its wisdom to maintain this distinction then Council believes that the definitions in the Act be amended as follows:

"Practitioner" means a person who is registered as-
a Chinese medicine and acupuncture practitioner;
a person registered on the ayurveda registration levels of ayurvedic doctor or ayurveda practitioner;
a chiropractor;
a homoeopath;
a naturopath;
an osteopath; or
a phytotherapist
in terms of this Act.

"Therapist" means-
a person registered on the ayurveda registration levels of ayurveda health adviser, panchakarma technician or remedial yoga therapy teacher;
a person registered on the Chinese Medicine and acupuncture registration levels of acupuncture therapist;
a therapeutic aromatherapist;
a therapeutic massage therapist; or
a therapeutic reflexologist
in terms of this Act.

The term "diagnose":
Council pointed out in its presentation to parliament that the term "diagnose" should not simply be restricted to a differential medical diagnosis. Every health worker "diagnoses" in terms of their scope of practice. However, if the Portfolio Committee decides that "diagnosis" is problematic with relation to "therapists" may we suggest that the word "assess" be brought into section 1(q)(2)(b)(line 20) so that it reads:

therapist may-
assess and treat or provide treatment for disease, illness or deficiencies in humans.

Your careful consideration of the above points is gratefully appreciated in order to ensure that our Amendment Act is workable and that the new Council is not embroiled in legal actions.

Sufficient time to appropriately hold elections:
In our presentation on Monday it was wrongfully presumed by some members of the Committee that Council was asking for an extension of office for the Interim Council. This is not correct; we were merely pointing out that, given the timeline given us by the Department for the publishing of the Regulations plus a month of public scrutiny it would appear that the Act can only be signed off by mid-December. Given the holiday period it would take a minimum of two clear months from say mid-January to complete the election process. This includes a two week period for advising new Council members of the first meeting. This means that it would be highly unlikely to have a new Council in place by February 12, 2001.

This is not due to the Council not being willing or able to conduct elections. It is solely due to four years of neglecting us by the Department and now their breakneck rush at the last minute to get a new Council in place.

Michael O'Brien
(Chairperson)



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