Health Professions Amendment Bill [B10-2006]: public hearings

HEALTH PORTFOLIO COMMITTEE
2 August 2006
HEALTH PROFESSIONS AMENDMENT BILL [B10-2006]: PUBLIC HEARINGS

Chairperson: Mr L Ngculu (ANC)

Documents Handed Out:
Department briefing on the Bill
Health Professions Amendment Bill [B10-2006]
Aids Law Project submission
South African Medical Association submission
Health Professions Council of South Africa submission: Part1, Part2 & Part3
Complaint by the Aids Law Project Against

SUMMARY
The Committee conducted hearings on the Health Professions Amendment Bill. Members questioned the various complaints outlined by the submitting organisations and required clarification on certain terms in the Bill. During the afternoon session the South African Medical Association and the Health Professions Council of South Africa made their inputs. While the Council by and large supported much of the amendments, the Association raised quite a few concerns around, amongst others, the power given to the Minister to make regulations “after” consultation with the Council, instead of “in” consultation with it. Issues around transformation and the appointment (as opposed to election) of council members were also touched upon.

MINUTE
Department of Health briefing
The Department provided a briefing that dealt with the Health Professions Council of South Africa (HPCSA or the Council) as well as an outline of the Health Professions Amendment Bill with reference to certain sections.

Ms Rose Mdlalose, Director at the Department, provided a brief outline to the HPSCA. A historical overview and background of the HPSCA mentioned its various technicalities and purposes. It was stressed that the HPSCA aimed to maintain good governance and introduce the Charter for Council Members within the Council.

Mr Clifford Motsepe from the Department discussed the purpose and objectives of the Bill. Particular focus was given to the objectives to ensure accountability and transparency by the Council and the Registrar with regard to financial administration.

Mr Motsepe discussed Clauses 5, 13, 15 and 16 of the Bill because of their significance to the Council and Health Professionals.

Aids Law Project (ALP) Submission
Mr Jonathan Berger, a senior lecturer, and Ms Fatima Hassan, an attorney, from the Aids Law Project provided a submission on the Health Professions Amendment Bill. The submission was made against the backdrop of a report issued by the Office of the Public Protector on 19 July 2001 in response to a complaint lodged by the ALP regarding problems many clients had experienced with the Council.

The submission noted that the Bill failed to deal adequately with many of the Public Protector’s recommendations regarding the conduct of the Council.

Included in the submission were recommendations regarding the composition, powers and appropriate roles of the Council and professional boards. Specifically, the submission discussed the Bill with reference to Clause 6 of the Bill (section 5 of the Act), Clause 7 of the Bill (section 6 of the Act), Clause 10 of the Bill (section 10 of the Act), Clause 11 of the Bill (section 12 of the Act), Clause 13 of the Bill (section 15 of the Act), Clause 14 of the Bill (section 15A of the Act), Clause 20 of the Bill (section 19 of the Act), Clause 21 of the Bill (new section 19A of the Act), Clause 26 of the Bill (section 24A of the Act), Clause 28 (amended section 26), Clauses 35 – 38 of the Bill (sections 36 – 39 of the Act), Clauses 40 of the Bill (section 41 of the Act), Clause 41 of the Bill (section 41A of the Act), Clause 42 of the Bill (section 42 of the Act) and Clause 52 of the Bill (section 61 of the Act).

The ALP noted that the Bill achieved its stated objective, which was progressive transformation of the Council. It had achieved its objective in a number of ways, such as by expanding on the objects and functions of the Council and by detailing the financial and administrative obligations of the Registrar. But a number of provisions, both individually and collectively, worked against this stated aim.

Discussion
Dr R Rabinowitz (IFP) asked the Aids Law Project representatives whether certain provisions within the Bill gave the Minister power to make decisions. She questioned whether the Health Professions Council (HPC) was independent and whether they had become more representative of civil society.

Mr Berger replied that the balance of the Bill was important because the public’s interest required the HPC to act swiftly and reach a consensus.

He noted that the exercise of power by the Minister was well administered because the HPC was kept strong. The HPC was strongly recommended to be independent however serious problems with the conduct of the HPC were evident.

Ms Hassan added that complaints about the HPC reflected poorly on the Council. She remarked that the appeal process should be strengthened and made quicker. Stricter sentences should also be given to health professionals that were acting illegally.

Ms C Dudley (ACDP) asked for clarification of the term “political nature”.

The Chairperson noted that organisations that contested the government’s position should not be referred to as having political motives. Members should not be overly sensitive to the complaints of non-government organisations.

Representatives from the HPCSA agreed with the Chairperson that the term “political” should not be overstretched.

Mr G Morgan (DA) asked the Department whether trade unions were included as being non-political.

The Department agreed.

Ms S Rajbally (MF) asked why members on the Council were reduced from 25 to 16. She questioned the number of members who were going to be on the board.

Ms Mdlalose noted that the reduction was part of the transformation of statutory councils. She noted that this process was aimed at streamlining and improving efficiency.

Mr Berger responded that there was a concern about the reduction of members on the board. He noted that the reduction should be accommodated “across the board” and within various categories. He noted that representation needed to be addressed as a key issue.

South African Medical Association submission
The South African Medical Association (SAMA) delegation was lead by Prof John Terreblance (Chairperson) and included Dr Aquina Thulare (Secretary General), Dr Barney Selebano (Head: Corporate Affairs) and Ms M Pillay (SAMA Legal Department). Prof Terreblanche said that although there were many areas of the Bill with which the SAMA was in agreement (e.g. making provision for the removal of members of the Council under certain circumstances) there were certain areas it would like to see amended. SAMA was particularly concerned about a number of actions the Minister of Health would be empowered to take i.e. making regulations after consultation with the Council, making regulations excluding certain persons from performing compulsory community service, making regulations relating to unprofessional conduct as well as appointing members of the professional boards on the basis of nominations.

Discussion
Dr R Rabinowitz (IFP) said that the Nursing Council had informed the Committee that too few nurses voted in the council elections. Young black nurses felt that they were being represented by “unsympathetic, old-world white” nurses and thought that it was time to transform the council. Most Members eventually bought into this proposal and thought that appointments through nominations would be a short-term measure. Now the Committee was being told that appointments by nomination were necessary due to the high cost of elections and not in the name of transformation. The Minister should give greater clarity with regard to what it was that she hoped to achieve through this measure.

Dr Rabinowitz was also curious whether anyone had done a breakdown of the cost of elections, what percentage of the total budget went towards the elections as well as how many doctors voted in them. She emphasised that if there was a way of minimising the cost of the elections this should be done before taking the democratic election process away from the people who were supposed to represent the public.

Prof Terreblanche believed that the HPCSA would be in the best position to answer this question. SAMA believed that it was the democratic right of the medical professionals to elect the members of the Health Professions Council.

Dr Rabinowitz pointed out that public perception was that doctors were getting away with more corruption and that they were not being called to account for their actions. There was even a suggestion that doctors should take higher medico-legal protection so as to protect themselves from the cost of being brought to book. She thought that this was a “horrific” suggestion and wondered what SAMA suggested should be done to make doctors more accountable so that the Minister would not have to take complete control as far as implementing precautionary measures was concerned.

Prof Terreblanche said that SAMA was enormously concerned about the fact that doctors appeared to be getting away with more illegal activities. He pointed out that the majority of doctors “spent their lives working for the patients”. Those who did not act in an appropriate fashion should be dealt with. There was no reason why members of the HPCSA could not be elected. There was not enough information that could support nominations rather than elections.

Dr Rabinowitz wondered whether SAMA could give the Committee an example of the kind of regulations or terms within the current medical or national policy (perhaps relating to HIV) that they feared would enable the Minister to draft regulations without any consultation with the HPCSA.

The Chairperson said that democracy did not always produce the desired results. Historically the South African health profession had an abundance of white doctors. For generations there was only one university that produced black doctors. This university was also restricted in the number of medical students it could accommodate. Objectively the production of doctors favoured white people. If one were to allow, “untempered democracy” as argued for by SAMA one would not be able to ensure accelerated balanced representation. White people would continue, “dominating these bodies”.

Prof Terreblanche commented that the question was very useful since it gave him an opportunity to clarify some issues. He admitted that historically there was a preponderance of white members within SAMA. SAMA was now a single, unified body using a 50/50 representational process. Given time this 50/50 process would no longer be necessary.

He knew that South African medical schools experienced a massive influx of black students in particular. Many of the younger members wondered why old partner organisations were considered during elections. SAMA then explained to them that they would “come up in another time”.

Prof Terreblanche agreed that it was important that one ensured that transformation took place but felt that it had to be part of a process like the one SAMA had been running over the last two election periods. SAMA did not see why there had to be a move away from the checks and balances implicit within an election process to a process of appointments by nomination. He said that the public and not doctors felt that the body that would make the appointments would not be “as acceptable”.

The Chairperson pointed out that his concern had not been addressed. Part of the reason for appointments was to address the need for accelerated parity in the representation on these bodies.

Prof Terreblanche said that Adv Mkhize might be able to shed light on the matter. He added that the acceleration had been introduced with the election of each new grouping. He requested Adv Mkhize to inform SAMA of what the election process was.

The Chairperson was unconvinced of SAMA’s explanation for why elections were preferable to nominations. Prof Terreblanche requested that he return in due course to give a further response since the SAMA delegation did not have all the necessary data at hand.

The Chairperson explained that the clause empowering the Minister to make regulations “after” and not “in” consultation with the council functioned as a deadlock breaking mechanism.

Ms Pillay pointed out that “in consultation” was the legally accepted wording especially in cases where disputes might occur. She added that the current wording also gave no guarantee that the views of the profession would be taken into account. She was not sure how a deadlock situation would be resolved.

The Chairperson said that if it was changed to “in” consultation and there was a deadlock situation they would “be stuck”. There was no other mechanism that could resolve a deadlock.

Dr Rabinowitz reminded the Committee that the Aids Law Project had suggested that the legislation should contain a mechanism to resolve a deadlock situation. For normal routine running of affairs regulations would be made in consultation with the council. If there was a deadlock situation or there was a situation that the Minister was not satisfied with and she felt that it would be in the best interest of the public to take a decision that was not in agreement with the council, she would have the capacity to do so after consultation. This would only apply in exceptional circumstances.

Ms R Mashigo (ANC) requested clarity on SAMA’s concern about the fact that the new definition of “impairment” excluded students and practicing health professionals. She wondered how SAMA suggested these groups be included.

Ms Pillay explained that the definition of impairment included only professionals who were practicing. Section 51 of the Health Professions Act was all inclusive and made provision for all registered professionals as well as students and interns. The provisions related to impairment should be in line with the provisions of the principal Act.

Ms Mdlalose responded that the HPCSA’s policy made provision for a committee that considered the interests of impaired students, interns and other members of the profession.

Prof Terreblanche emphasised that all doctors irrespective of whether they were practicing or not should be included. Adv Mkhize assured the Committee that the HPCSA’s submission would show that “practitioner” included practicing professionals as well as students.

Dr Thulare said that SAMA would appreciate specific explanations for the repeal of Sections 36, 37 and 38 of the Health Professions Act. SAMA was very concerned about withholding a cure for diseases such as cancer.

Adv Mkhize explained that those Sections were deleted because in terms of the definition of the scope of practice they were confined to specific professions. The HPCSA felt that they would have to enlist all the scopes of practice of the 12 different boards. The Act stemmed from the old South African Medical and Dental Council and therefore the scope of practice that was reflected in the sections concerned, was mainly for medical practitioners and psychologists. The HPCSA believed that the scope of professions was dynamic and that it changed from time to time. Defining it in the legislation could become cumbersome; it would be better to place the definition within the regulations.

Prof Terreblanche said that the explanation was satisfactory. He added that people who were making unfounded claims of cures and treatments needed to be dealt with.

Dr Rabinowitz commented that it was strange that people who practiced in alternative health care could do so without any controls while occupational therapists, etc were heavily controlled. She too suggested that one should take a closer look at those people who in the name of alternative, complementary health care were getting away with unprofessional behaviour.

Health Professions Council of South Africa submission
Adv Mkhize (HPCSA Registrar) said that having listened to all submissions that have been made it was necessary to explain the context of the developments that gave rise to the Bill. The Bill culminated from a process that was initiated in order to transform the statutory health councils within South Africa. All councils including SAMA acknowledged the Minister’s prerogative to determine policy. The HPCSA, given its knowledge base and expertise, further committed itself to its advisory role to the Minister as far as policy development and strategic issues that applied to the relevant legislation was concerned. A proposal for an interactive mechanism that would ensure on-going dialogue between the Council and the Ministry had been made. Thus the amendments made provision for the Minister to make regulations after consultation. This acknowledged that the Minister was the custodian of policy processes. All the statutory councils including SAMA had endorsed this proposal.

Adv Mkhize said that the HPCSA would not be subsumed by national health policies as was earlier indicated but would be informed by them. The HPCSA did not act in isolation of societal imperatives and was a public body that was “cognisant and alive” to the issues that affected society.

Adv Mkhize denied that the HPCSA’s suggestion that the number of council members be reduced from 52 to 32 would compromise its effectiveness. He felt that the Council’s efficiency would in fact be enhanced - the Council never benefited from its 52-member composition as far as collective input was concerned – at most 40 members attended meetings (this number decreased as the meeting progressed).

He further explained that the HPCSA, in the spirit and interest of transformation, tried to reach a balance in terms of objectivity. It was important to realise that the Council existed for the purposes of protecting the public. The Council should not be overloaded with professionals but should benefit from a cross pollination of views.

Adv Mkhize then went on to inform the Committee that there were a number of countries that have gone the route of appointment instead of election e.g. Australia, New Zealand. There was an understanding that health issues were of national importance and that the Ministry and the Government itself should be the custodians of issues and processes that protect the public. Councils serve as a support mechanism for the achievement of the national goals.

He emphasised the importance of addressing transformation related issues. Had it not been for certain interventions and mechanisms that were initiated through the process of regulations councils and boards would still have been completely white.

The register was still skewed in terms of demographic profile - the profile still consisted of white males with few women, few coloured, black and Asian people. The outcome of the election mirrored the register. If the HPCSA were to rely on the situation as it was transformation would not be achieved. The general trend was that the election resulted in an “all white affair”.

Adv Mkhize stressed that individuals would still be able to exercise their democratic right by nominating persons. The Minister would then approve and appoint representatives – “to suggest that democracy is vitiated by the absence of an election is an attempt to stretch democracy too far beyond the realms of any reasonable and sensible interpretation”. He added that it could not be suggested that because there was no election someone’s rights were violated and that the actions taken were unconstitutional. The HPCSA would not want to maintain the status quo knowing that it would result in “undesirable and unintended consequences” that maintained the order of a council or boards that were not representative of South Africa’s democracy.

The HPCSA by and large supported the Department of Health’s proposed amendments and suggested measures that would serve to further strengthen the Bill in its current format and ensure that all gaps are closed. Their suggestions were substantively covered in their written submission.

Discussion
The Chairperson asked the HPCSA to clarify whether the Bill had been gazetted. SAMA had claimed that it was not gazetted.

Adv Mkhize confirmed that the Bill had been gazetted. Mr Motsapi (HPCSA Head: Legal Services) added that the Bill had been published for comment (for a period of 3 months) and that comment was received.

Dr Rabinowitz thought that it would be difficult to find doctors who were not retired to serve on the boards. She wondered whether doctors would be able to serve on a rotational basis.

Adv Mkhize confirmed that doctors would be able to serve on a rotational basis.

Dr Rabinowitz said that if one use the term “prescribed” the matter would have to be published in the gazette for comment, etc. She wondered whether the use of “imposed” etc. would not remove the matter from the public completely.

Adv Mkhize said that the HPCSA did not think that the actions would detract from the mandate that was reflected in the Act since it would only apply to operational issues. Prescriptions would be made by way of regulations, which would be published, and comments sought. These issues could be dealt with within the current framework. In some instances regulations would not be necessary. A notice could then merely be published even though regulations would not be made.

Before adjourning the meeting, the Chairperson said that due to time constraints the Committee would have to suspend deliberations on the HPCSA submission. He felt that most of SAMA’s concerns had been addressed. The Committee would consider the other written submissions.