Health Professions Amendment Bill [B10-2006]: adoption

HEALTH PORTFOLIO COMMITTEE
29 August 2006
HEALTH PROFESSIONS AMENDMENT BILL [B10-2006]: ADOPTION

Chairperson: Mr L Ngculu (ANC)

Documents handed out:
Health Professions Amendment Bill [B10-2006]
Portfolio Committee amendments [B10A-2006]
Bill with Portfolio Committee amendments incorporated [B10B-2006]

SUMMARY
The Committee concluded its deliberations on the Bill and voted in favour of the Bill with amendments. The ANC supported the Bill with proposed amendments; the DA and IFP voted against the Bill in its entirety as they supported greater autonomy for the Health Professions Council of South Africa and emphasised the need for checks and balances to limit the power of the Minister of Health. The debate in the National Assembly is on 5 September 2006.

MINUTES
Mr Z Mhlambo, Legal Drafter and Researcher, Ms R Mdlalose, Director of Human Resources, and Mr T M Kgaha, Parliamentary Officer represented the Department of Health. Advocate H Sangoni, Senior State Law Adviser attended. Professor N Padayachee (President), Advocate B Mkhize (Chief Executive Officer), and Advocate T Boikanyo (Senior Manager: Legal Services) represented the Health Professions Council of South Africa (HPCSA).

The Chairperson welcomed the Members and representatives to the meeting, and said that the Committee, having already examined the submissions (please see minutes of previous meeting held on 15 August 2006), should review the Bill again from the beginning, clause by clause.

Deliberations
Preamble
The Committee agreed with the wording of the Preamble.

Clause 1
The Committee agreed to this clause subject to the following:

Advocate H Sangoni said that the definition of “Ciskeian Medical Council” [Clause 1(a)]
had been deleted in 1997. The Committee agreed on the deletion of this definition from the Bill.

Mr A Madella (ANC) questioned the definition of “impairment” [Clause 1(c)].

Advocate Sangoni referred to the dictionary definitions.

Mr Madella suggested deleting reference to “intern-psychologist” [Clause 1(f)].

Advocate Mkhize said that “psychologist” does not appear in the Bill: it was proposed that it be inserted as a new amendment.

Clause 2
The Committee agreed.

Clause 3
The Committee agreed.

[Clause 4]
Advocate Sangoni noted a minor error in that there was no Clause 4 in the Bill.

Clause 5
The Committee agreed.

Clause 6
Mr G Morgan (DA) said that in Clause 6(a), lines 32 to 33 should be retained.

The Committee agreed to his proposal.

Clause 7
The Committee agreed.

Clause 8
The Committee agreed.

Clause 9
The Committee agreed.

Clause 10
The Committee agreed.

Clause 11
Mr Morgan proposed a change to Clause 11(a) to read as "The Council shall appoint a Registrar " rather than "The Minister must, after consultation with the Council, appoint a Registrar".

He explained that the Council should be able to decide who was to be appointed as Registrar, though the Minister might indeed be the political head of the entire Department. The Health Professions Council sat somewhere between the Department and the health care professionals. This amendment would greatly add to the integrity and independence of the Health Professions Council.

A Member asked to what extent an institution such as the Council had the public interest at heart.

The Chairperson asked how the DA would respond to the fact that the Council is a statutory body, and the state had a role to play in protecting the interests of the public: it could not be an arms-length approach.

Mr Morgan responded that the emphasis placed in this Bill on the public interest was of the utmost importance and the Council had not always been responsive to every requirement of public health. However, he differed as to whether the increasing role of the Minister envisaged in this Bill would improve responsiveness to the interests of the public.

The Chairperson said that the Council was a statutory body and the Minister was responsible for this function. The Council was designed to protect the public. Appointing the registrar was not an arbitrary process but the result of consultation.

A Member said that it was essential that the Minister should play a meaningful role. Health professionals’ interests were looked after by their unions. The Council was a statutory body.

Mr Morgan said that he had not implied that the Minister would be incapable of appointing a suitable person as Registrar. There was clearly a difference of views as to where the State stood in relation to the professions. When there were issues of malpractice, whether in private practice or in the state sector, it was in his view easier for a member of the public to deal with a person appointed by the Council.

The Chairperson regarded the Council’s role as that of custodianship and was not convinced by Mr Morgan’s arguments.

Ms S Rajbally (Minority Front) said that the Committee had not been given a complete rationale for the proposed amendment.

Mr Morgan said that it was the role of the legislature to make laws; not for particular ministers but for ministers in general, and therefore at times it was necessary to curb the role of ministers.

The Chairperson thanked Mr Morgan but said that the Committee must now move forward.

Dr R Rabinowitz (IFP) opposed the clause on behalf of the Inkatha Freedom Party as did Mr Morgan for the Democratic Alliance.

Clause 12
The Committee agreed.

Clause 13
Mr Morgan proposed an amendment to Clause 13 where there would be appointment of the members of a professional board as established by the relevant professional bodies (rather than by appointment by Minister)

The Chairperson interpreted the DA proposed amendment as taking away the power of the Minister.

Dr Rabinowitz said that she proposed leaving this matter as it was in the current Act.

The Chairperson noted that the IFP and DA had proposed an amendment that basically reduced the power of the minister.

Dr Rabinowitz said democracies were not based only on majority rule and that it was necessary to protect the rights of civil society by putting in place checks and balances to limit the power of a minister. One had to take account of situations that could arise. For example, the Minister could decide to prevent doctors from giving their assistance in administering anti-retrovirals and could through her contacts in the professions have people put onto the Council who would select a registrar who would issue an edict to be enforced throughout the country to that end. The IFP could not support that in terms of democracy.

Mr Morgan disagreed with the Department of Health’s view that elections were costly. Democracy was more important than the costs of an election.

A Member referred to the Constitution’s requirement that a non-racist, non-sexist, democratic society be created. The Minister would apply her mind to all issues involved.

Dr Rabinowitz said that the IFP was firmly in favour of transformation.

Mr Morgan asked at what cost representivity could be achieved in the boards. Already it was over 60% in several boards.

The Chairperson said that the Committee had established why the Minister should play a role and that the Bill sought to redress inequalities.

Professor N Padayachee said that it was a worldwide debate not limited to the post-apartheid society. Though progress had been made, the boards were still producing significantly more white graduates than black. With regard to speech therapists, 90% could not speak the language of their patients. The Minister has extremely little power in shaping the work of the Council. The South African Medical Association (SAMA) was more akin to a union body protecting its members. He supported the inclusion of lay people on the Council and referred to the registrar’s autonomy in relation to the Council.

The Chairperson said that the Committee should return to where it had ended (Clause 13).

Dr Rabinowitz said that as an opposition Member it was her job to ask what was the worst possible outcome of the legislation contained in the Bill. What was lacking in this country was an independent body, as in New Zealand, that made doctors accountable. It was a terrible indictment of the Council if it had not promoted transformation. That should be investigated. However, checks and balances were still needed.

The Chairperson agreed with Dr Rabinowitz but said that the Committee must move forward.

The Committee agreed to Clause 13 but noted the opposition's disagreement, and a proposed amendment from the HPCSA to Clause 13(e).

Clause 14
The Committee agreed.

Clause 15
The Committee agreed, but with deletion of “prescribed” in Clause 15(a).

Clause 16
The Committee agreed.

Clause 17
The Committee agreed, except that Clause 17(d) should be retained as proposed by Dr Rabinowitz, and the retention of “prescribed” instead of “imposed”.

However, Advocate Mkhize said in certain contexts where the Council needed to take corrective measures, the use of “prescribed” would be anomalous and “imposed” should be used in 17(d).

Clause 18
The Committee agreed.

Clause 19
The Committee agreed.

Clause 20
Advocate Mkhize said that removal in itself of names from the register was an administrative process: referring back to the board was an academic matter, for in the case of non-payment of fees. He had no objection to underlining the word “relevant” in Clause 20(a) so that the Registrar would not be obliged to refer back to the board concerned in case of removing a member: this is already established practice.

Dr Rabinowitz said that this did not take account of health professionals with exceptional circumstances, such as illness or lost mail. Reinstatement was a difficult process.

The Committee agreed that the established policies of the Board in this regard should be accepted as policy.

The Committee agreed that the word “technikon” should be deleted wherever it occurred in the Bill, since this term was now obsolete.

Clause 21
The Committee agreed to the HPCSA’s proposed amendment that ensured that Council was authorized to summarily and speedily suspend a practitioner who was posing an imminent danger or threat to the well-being, health or safety of the patients or public without having to wait for extensive disciplinary procedures.

Clause 22
The Committee agreed.

Clause 23
The Committee agreed.

Clause 24
The Committee agreed.

Clause 25
The Committee agreed to retain “Council” and delete “technikon”.

Clause 26
The Committee agreed.

Advocate Mkhize referred to the HPCSA’s proposal that, following discussions with the Department, there be inserted a clause that would take care of foreign qualified persons entering the register and community service, and the proposal was that despite Section 24A of the principal Act no foreign qualified person might be registered in the category of independent practice unless he or she was a South African citizen or had achieved permanent residence status in terms of the Immigration Act of 2002 provided that the Council might exempt any person who had applied for exemption and is in the Republic for a temporary and particular purpose. This would be a standalone section following Section 24A of the principal Act. This would be in line with the national policy of the Department of Health.

Dr Rabinowitz mentioned doctors with foreign qualifications who had been recommended by their peers and who had been in charge of clinical departments and who had achieved permanent residence but who had not been granted leave to enter independent practice, unless they wrote completely new examinations: no accreditation had been given to their qualifications from overseas. She asked how this new amendment would change this.

Advocate Mkhize replied that on the contrary such doctors were eligible to apply to enter independent practice, subject to satisfying the board that they were suitable candidates. This also applied to doctors holding South African citizenship. The proposal was in line with international practice and took account of the shortage of doctors in public service.

Dr Rabinowitz appreciated the purpose of the proposal but asked if there could be a fairer way of implementing the policy.

Advocate Mkhize replied that the undergraduate committee had said that in future there would be evaluation of such candidates, especially for individuals who had served their time in the public service. However this was not the subject of this Bill.

Clause 27
The Committee took note of the IFP’s preference for retaining “in consultation”.

Professor Padayachee said that the Council is a legal entity and preferred to retain the meaning that the Minister should therefore consult with the Council; not delegated members.

Advocate Mkhize said that the point of contact should be the Council and not its members.

Dr Rabinowitz said that a board should retain control of its members (proposed substitution 25(2) for section 25 of the principal Act). With regard to fees, in the interests of disadvantaged persons, there should be some standardisation by the Council.

Professor Padayachee, differing with Advocate Mkhize, agreed with Dr Rabinowitz that the Council should handle all matters with regard to fees.

Dr Rabinowitz proposed a compromise: “determined by the Council, approved in consultation by the relevant boards.”

The Department noted the need to retain the hierarchy of authority with regard to fees.

Dr Rabinowitz supported the Department’s view.

Clause 28
Professor Padayachee preferred “after consultation”.

Dr Rabinowitz said that it was important to have a council that was broadminded to counterbalance the somewhat exclusive views of some boards, for example the medical board with regard to traditional medicine and homeopathy. “After consultation” was important.

The Chairperson indicated agreement with Dr Rabinowitz.

Clause 29
The Committee agreed.

Clause 30
The Committee agreed.

Clause 31
In order to promote assurance of quality, Advocate Mkhize suggested the inclusion of the phrase “evidence of compliance” in both (a) and (b). In sub-section (c) reference to notice in the Gazette should be deleted. The proposal is in line with the remedial approach to standards.

Dr Rabinowitz said that she could not understand why notice should not be given in the Gazette since the public needed to know if accreditation had been withdrawn or restored. The media were not sufficient.

Advocate Mkhize agreed that notice in the Gazette should be retained.

Clause 32
The Committee agreed.

Clause 33
Advocate Mkhize clarified a question about Section 27 of the principal Act.

Clause 34
The Committee agreed.

Clause 35
The Committee agreed.

Clause 36
The Committee agreed.

Clause 37
The Committee agreed.

Clause 38
The Committee agreed.

Clause 39
The Committee agreed.

Clause 40
The Committee agreed.

Clause 41
The Committee agreed.

Clause 42
Dr Rabinowitz proposed an amendment that she wanted the Department to develop: there was a need for greater accountability in the medical profession. The public needs to feel that it was being protected. The Bill sought to achieve this accountability by getting the Minister to appoint the members. There was another way to achieve this accountability, even with the Minister appointing the members, and that was to have an independent body that would decide the fate of doctors who had made mistakes. There should be an objective committee to adjudicate in cases of malpractice. The disciplinary committee of each board should consist of at least two members of the public, two members of the board in good standing appointed by the Minister, and a member of the legal profession.

A Member referred to Section 7 of the Health Act, and said that Dr Rabinowitz’s proposal was already catered for under the Health Act.

Advocate Mkhize said that Parliament had already approved professional conduct committees, which would include community representatives, one of whom would chair the inquiry. If there were to be a major tribunal, this would be a bigger issue that would have to be discussed separately. Within the boundaries of this Act it had been possible to address the issues of objectivity sufficiently.

Dr Rabinowitz asked where community representatives were mentioned.

Professor Padayachee said that justice must be seen to be done.

Dr Rabinowitz said that appointing community representatives to the appeals committee would not help, since the concern was to protect the public rather than doctors. She asked about the initial action by a disciplinary committee.

Professor Padayachee said the disciplinary committee should include two lay people who were not members of the board. One of the two lay people should chair the committee.

The Chairperson said that perhaps the Committee could consider the matter on a later occasion, but now it was essential to concentrate on the Bill.

Advocate Mkhize said that what remained were cosmetic changes. The substantive changes had been dealt with.

Dr Rabinowitz was not satisfied that the issue of protecting the public through a disciplinary committee had been resolved.

The Chairperson thanked Dr Rabinowitz for her vigilance as an opposition party Member.

Clause 43
The Committee agreed.

Advocate Mkhize said that the Registrar, the President of the Council, and the Chairperson of the relevant professional board must have the information referred to.

The Chairperson objected that this was a new submission.

Advocate Mkhize apologised.

Professor Padayachee said that it was meant to be in the Council’s revised submission.

The Chairperson suggested that the Registrar and the Chairperson of the relevant professional board should have access to this confidential information.

Advocate Mkhize asked for the President of the Council to be included, and reference to the relevant professional board to be deleted. The Public Prosecutor was to be retained as this was important in matters of criminal procedure.

The Chairperson thanked Advocate Mkhize and Professor Padayachee, and said that the Committee would return to Clause 43.

The Committee agreed.

Clause 44
The Committee agreed.

Clause 45
The Committee agreed.

Clause 46
The DA voted against the ANC proposed amendment to change the introduced Bill to: "The Minister may, after consultation with the Council" from "The Minister may, in consultation with the Council"

Clause 47
The Committee agreed.

Clause 48
The Committee agreed.

Clause 49
The Committee agreed.

Clause 50
The Committee agreed.

Clause 51
The Committee agreed.

Clause 52
With reference to Clause 52, Mr Morgan proposed "the Minister may, in consultation with the Council, make regulations" rather than "after consultation with".

.
The Committee did not agree.

The Chairperson said that regulations were an executive function. He asked why registration should be done by the relevant board and not by the Council.

Advocate Mkhize said that this was one of a number of consequential adjustments that needed to be effected throughout that section.

Dr Rabinowitz asserted that the Council should not be given carte blanche to act by decree, and not go through the process of regulations.

Advocate Mkhize said that the Council had a body of rules that had a number of permutations, so the Council issued guidelines, for example on advertising professional services and what constituted deceptive advertisements or sharing of fees. To close legal loopholes, the Council sought to give even the guidelines the force of law.

Dr Rabinowitz objected.

The Committee noted Dr Rabinowitz’s objection

Clause 53
The Committee agreed

Clause 54
The Committee agreed.

Clause 55
The Committee agreed.

Clause 56
The Committee agreed.

Clause 57
The Committee agreed.

Clause 58
The Committee agreed.

Clause 59
The Committee agreed.

The Chairperson ascertained that a quorum was present and proposed that the Committee adopt the Bill as amended.

Mr Morgan asked if the Committee could see the minutes of this meeting before going to the next stage.

Dr Rabinowitz said that on a previous occasion the Committee had voted on a Bill that they had not seen in its final form.

The Chairperson explained that the Bill would be redrafted by parliamentary professional staff before its second reading in the National Assembly on Tuesday, 5 September. If the Members wanted to see the redraft, a meeting of the Committee could be arranged for Tuesday morning.

An ANC Member proposed that the Committee should adopt the Bill with these amendments.

The Chairman agreed with the Member’s proposal, saying that he did not want to delay the Bill as it was not the first time that the Committee had adopted the Bill.

The Chairman asked the Committee if it could endorse the amendments as proposed.

The ANC Members agreed.

The Chairman stated that therefore the Portfolio Committee on Health having considered the subject of the Health Professions Amendment Bill [B10-2006] adopted the Bill with amendments.

The IFP and DA voted against the Bill in its entirety, specifically Clauses 11, 13, 46 as amended, and 52. They also objected to the process that was followed at the end of the meeting where voting on the Bill was not done using a document showing the entire bill with all the finalised amendments presented.

The meeting was adjourned.