Health Professions Bill: Department’s response to Provincial Comments

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SOCIAL SERVICES STANDING COMMITTEE

SOCIAL SERVICES STANDING COMMITTEE
20 March 2007
HEALTH PROFESSIONS BILL: DEPARTMENT’S RESPONSE TO PROVINCIAL COMMENTS

Chairperson:
Ms F Mazibuko (ANC)

Documents handed out
Department’s draft memo to the NCOP Select Committee: Responses on concerns of provincial delegates
Health Professions Bill [B10B-2006]

 

Audio Recording of the Meeting Part 1 and Part 2

SUMMARY
The delegates working on the Children’s Bill requested and were granted an extension of time.

The Department tabled a document summarising the concerns and comments by provincial delegates, and detailed the responses. Several Provinces had raised concerns on the Minister's powers in Clause 13, the power to make rules relating to offences, and the Minister’s powers in relation to appointment to Councils, appointment of the Registrar, and functioning of the Council. Communication and liaison under Clause 14 was queried. Comments were made on the reduction of designated Council members in Clause 6(a) of the Bill. KwaZulu Natal had made extensive suggestions on Clauses 1, 3, 5, 6, 7, 9, 11, 13, 21, 52, and 17 of the Bill, and the Department responded in detail to each point raised.

The Department then tabled some further proposals in relation to the Bill. It was suggested that the definition of “public representative” be changed to allow for ad hoc appointments to enquiry panels. The phrase “healthcare practitioner” should be substituted wherever it appeared with “health practitioner”. Clause 45 should be altered, so that the initial deletions to Section 49 should not proceed, save for the deletion of Section 49(2) of the principal Act. There would be technical amendments to clause 54 and the Memorandum of Objects. Clause 41 should incorporate new wording which was now based on the Criminal Procedure Act, to answer to a recent constitutional court judgment. Finally, there should be a provision that the Bill should only come into operation on a day to be proclaimed by the President.

Questions by members related to the protection of professionals, and whether there was a need to protect the public. The civil sanctions open to professionals who were the subject of fictitious or vexatious complaints were explained. Some members held the view that the appointment of Council by the Minister could compromise the independence, and others believed that this would contribute to transformation. The Committee asked specifically for draft copies of the Regulations.
The Committee was satisfied with the explanations given by the Department. The Committee would report back to the provinces what was discussed in the meeting, so that the provinces could give their final mandate.

MINUTES
Children's Bill: Extension of time
The delegates working on the Children’s Bill asked for an extension of time to finish the matter, as they had not completed the mandate.

Mr M Sulliman commented that the request seemed to be reasonable and suggested they should be given an extension to be able to do a proper job and return with good results.

The Chairperson granted the extension and the delegates were excused.  The delegates of the Health Profession Bill were asked to commence.

Health Professions Bill [B10B-2006]: Department’s response to negotiating mandates
Mr M Motsapi, Director, Legal Services, Department of Health, presented a memorandum to the Committee summarising the responses to the concerns and comments by provincial delegates.

Western Cape
Concerns were expressed about the amendments to Section 5 of the principal Act, as set out in Clause 6 of the Bill. Mr Motsapi responded that the proviso to the Section would remain.

A concern was raised about the provisions relating to the Minister's powers in Clause 13. The Department pointed out that the Minister's powers were not meant to be unregulated and anyone could ask the High Court to review decisions relating to appointment of members of Council. Section 15(4) of the principal Act made provision for regulations relating to the constitution of professional boards. The demographics of professionals registered presently made it almost impossible to achieve proper representation and thus full transformation in the functioning of professional Boards.

A concern was expressed about the power to make rules relating to offences, set out in Clause 45.  Mr Motsapi stated that later in the meeting the Department would be proposing to the Committee that Section 49 of the principal Act be retained as currently worded, so that Council kept the power to make rules relating to offences.

The clauses relating to the Minister’s powers in relation to Councils and the Registrar had been questioned. The Department stressed that the Minister would appoint the Registrar after consultation with the Council. There was no problem with this provision as the Registrar fulfilled a critical national duty, subject to the frameworks established by the Council.  In order to fulfill the requirements in relation to investigation of unprofessional conduct it was necessary for the Registrar to appoint Investigating Officers. 

The clauses relating to the functioning of the Council, were questioned. Mr Motsapi stated that there would not be any decision taken without the mandate of the professional boards, conveyed by the representative members who sat on the Council. In addition, he pointed out that the concerns of the province related to rules, which were to be published for comment for three months, and that protection was already granted in respect of annual fees under Section 61A of the Act.

Western Cape queried why it was necessary to substitute certain provisions of the Act. Mr Motsapi expanded the implementation of the existing provision to a broader range of procedures than those related to anaesthesiology.  The intention was to ensure better protection for the patient.

The Chairperson received confirmation from members that they were happy with the responses to this point.

North-West Province
This Province had also questioned the clauses relating to the powers of the Minister in relation to appointments to the Council. Mr Motsapi stated that it was the intention of the Department to include a provision in the regulations that established an independent panel to consider nominations, before the Minister was able to make an appointment. Set criteria would be detailed to ensure appointments followed a prescribed process.

He further noted that Section 42 listed possible sanctions in case a professional was found guilty of professional misconduct.

A similar point had been raised as with the Western Cape relating to the Minister’s powers in Clause 13. The same response applied.

A further concern had been raised about communication and liaison under Section 15A of the principal Act. Mr Motsapi stated that Section 50 of the National Health Act 2003 made provision for the establishment of a Forum of Statutory Health Professionals Councils that would promote communication in the Council and between registered professions.  Each profession was regulated by its individual council. The Traditional Health Practitioners Act would soon be re-processed by parliament to ensure compliance with the Constitution.

 
Northern Cape
Mr Motsapi reported that Northern Cape had raised similar concerns in relation to the Minister's powers as were expressed by the Western Cape and the North West Province. The same comments therefore applied in relation to the appointments of members to the Council, and the set criteria that would apply.

Similar concerns as expressed in the Western Cape had been expressed about the broadening of the procedures outside the anaesthesiology profession. The Department’s intention was to ensure better protection for the patients.

A similar concern about the liaison and the Forum of Statutory Health Professionals Councils had been expressed and the response set out for the North West would apply.
 
Mr Sulliman suggested that the responses should be written out in full as it was easier for Committee Members to read.

Limpopo
This Province had raised concerns about the amendment to Section 5 of the principal Act, as set out in Clause 6. Mr Motsapi noted that the proviso in section in section 5 of the principal Act was retained.

Limpopo had raised a concern about Section 15(c), similar to the concerns of Western Cape and North West Province. The same response about the powers of the Minister would apply.

Gauteng
Mr Motsapi said that it was not clear what issues the DA was raising in relation to Clauses 6, 11, 13 and 52 of the Bill.

A comment had been made on the reduction of designated Council members from 25 to 15 by Clause 6(a) of the Bill. Mr Motsapi pointed out that the Council would like to promote efficiency with a leaner but more effective structure.  To promote transparency, all Boards would be represented and an audit of what was required had been undertaken. A study had validated the reduction in numbers.

Clause 11 had been queried, once again in relation to the Minister’s powers. The same responses as set out earlier to the Western Cape and North West would apply; there was sufficient protection built in to the Bill. Mr Motsapi stressed that the powers of the Minister would not be exercised in an arbitrary manner. Furthermore Section 2 of the Act stated that the Council was a juristic body independent of government. None of their decisions needed to be approved by the Department, but they should act in line with broadly accepted principles such as the need to increase the number of health graduates. One of the primary reasons for the amendment of the bill was to transform the functioning of the Council, mainly to ensure that the interests of the public were protected. The Council’s role was not to protect the profession. The Council and the Department would make sure that the health users knew their rights, including the right to lay complaints within the Council itself.

Discussion
Mr Mahlathi added that there was confusion as to who should protect the professionals. His view was that the professionals should protect themselves, because the public was more vulnerable. This point was being raised with the associations of professionals, and they were being urged that they should have plans for better communication with the public. The Department was not being unfair to the professionals but was trying to prevent any wrong that could be done to the public.

The Chairperson further commented that she hoped the public would have faith in professionals and in the fact that their rights as the public were considered.

Mr Tolo expressed his concern about the Council being appointed by the Minister. He believed it would be useful to have a report on the situation of professions today to the provinces.

Mr L Govender (Kwa-Zulu Natal Legislature member) shared the same concern as Mr Tolo about the appointment of the council , and had some doubt about the independence of the council from the government if it was appointed by the Minister.

Mr Boyce Mkhize, Registrar, Health Professions Council of South Africa (HPCSA) responded that a person in the Council, even though appointed by the Minister, should and could be independent within the framework of the law.  The point of the Committee was noted, but the reality was that if the Minister did not appoint the council then it would likely be composed of only white members as the profession was dominated by whites.

Mr Sulliman remarked that the focus should be on the transformation of institutions and the reflection of the demographics of South Africa, and special intervention, such as the Minister appointing the council, was needed for this.  He expressed confidence in the Ministers.

Mr B Tolo (ANC) asked whether the Committee's concerns would definitely be covered in the regulations because even Parliament had never seen the regulations.

Mr Percy Mahlathi, Deputy Director General, Department of Health, responded that Mr Tolo’s concern was noted and he would make sure the Committee received a copy of the regulations.

The Chairperson suggested that the draft be presented to the Committee so that it could have an input in the final copy of the regulations.

Mr Mahlathi responded that this could be done.
 
Continuation of Department’s Response to the Provincial Comments
Free State
Mr Motsapi stated that the Free State did not submit a mandate

Eastern Cape
Mr Motsapi stated that the Eastern Cape was in support of the proposals.

Kwa-Zulu Natal
Mr Motsapi tabled a list of proposed amendments to the Amendment Bill that had been drawn by the KwaZulu Natal legislature.

Clause 1 had been queried since Kwa-Zulu Natal felt that the definition of impairment was too restrictive and it should include those doing community service and students.

Mr Govender asked if the definition of health practitioner did include students.

Mr Mkhize read aloud the definition of health practitioner. He also read out the definition of an impairment. In the original definition in the principal Act students were included.

Mr Tolo responded that if students were included in the principal Act then there was no need for an amendment.

Mr Mkhize held that line ten substituted the definition of impairment in the principal Act so students should in fact be included.

Mr Govender asked whether interns were included as practitioners.

Mr Mkhize replied that they were.

Clause 3 had been queried by KwaZulu Natal (KZN). It noted that the Bill had inserted paragraphs (j) to (q) into Section 3, which were aimed at upholding the interests of the members of the public and holding practitioners accountable. However there were no provisions about how members of the public were held accountable. The function of the Councils had to also be to serve and protect equally the interests of the health professionals when warranted.

Mr Motsapi said that the Department considered that members of the public had the benefit of protection through various pieces of legislation and constitutional structures. The HPCSA was not set up for the purpose of holding members of the public accountable. If a member of the public had lodged a malicious complaint, the practitioner could use his or her civil remedies. The council guided the professions by setting professional standards and ethics on how to conduct their practices in rendering healthcare services to the public, and served to ensure that only registered persons could practise.

The Chairperson asked why member of the public should be held accountable.

Mr L Govender (KZN Legislature) explained that members of the public could sometimes make malicious complaints against a practitioner without any substantive reason.

Mr Motsapi said that KZN had proposed an amendment to Clause 5, relating to the amendment of Section 4(c) of the principal Act, by suggesting that the words "after consultation with the relevant professional board" be replaced by "in consultation with the relevant professional board"

Mr Govender explained the difference between the two concepts to the satisfaction of members.

Clause 6 was queried, in relation to the proposed reduction in the proportional representation from the present 25 persons to 16 persons. KZN did not support this as it thought that the smaller boards may not have representation,  and representation of the large boards could be skewed, particularly taking into account the power of the Minister to appoint representatives to the Boards. 

Mr Motsapi explained that a proviso on the proportional representation had been built into the clause, to ensure that each of the 12 Professional Boards was represented at Council level, with the remaining four persons being appointed on a proportional basis. There was a specific provision in the Section to state that each professional body should be entitled to designate at least one person as its representative".

Clause 7 of the Bill was disputed by KZN. It felt that the new provisions from Section 6 (3) to 6(6)(f) (as set out in Clause 7(g) of the Bill) gave enormous powers to the Minister, including the power to request financial statements when the Department did not make any grants of subsidies to the Councils or Boards. It was also of concern that the Minister was given the right to terminate membership of the Council, without any distinction between elected and appointed members. KZN felt that elected members could only be replaced on decision of the Council, and this had nothing to do with the Minister. KZN had suggested that Section 6(6)(c) should be deleted as many of the elected and appointed members of the Council practised their occupations outside the Council, and should not be forced to vacate their positions if they declared their interests.

Mr Motsapi stated that the provisions of Clause 7(g) were inserted to ensure transparency and accountability, particularly as the Council handled public funds. The Department believed that the Executive Authority, through which the Council reported to Parliament, should certainly have authority to oversee the activities of the Council and call upon it to account where appropriate. The Department believed that the HPCSA, being a public body, should be open to scrutiny as a principle of good corporate governance. In relation to membership of the Council, he stated that since the Minister appointed the members (who were nominated by the professional boards) it was correct for the Minister also to have the power to terminate membership. The reasons for appointment by the Minister were set out earlier, to address critical transformation imperatives and best practices. He clarified that the termination under section 6(6) (c) related only to instances where there had been a failure by a member to declare conflict of interests.

KZN had next called for the deletion of the entire proposed new Section 8(2)(a), as set out in Clause 9. It stated that one third of the Members could call a special meeting, but this one third could well be all the Minister’s appointed representatives. This would amount to abuse of state authority.

Mr Motsapi stated that in fact the clause stated that the President of Council could call a special meeting, not the Minister. The provision for special meetings was necessary to ensure that urgent matters could be considered if necessary, since Council had only two meetings a year.

Mr Govender asked for clarity on the issue of one-third of the council members.

Mr Mkhize replied that one-third of the Council was eleven members. The principle of a quorum would still apply, and the eleven members would not form a majority and therefore would not have the power to make decisions without involving other members.

The Chairperson asked what a majority would be.

Mr Mkhize replied that it would 50% plus one.

Clause 11 had been queried by KZN. This clause sought to amend section 12. KZN suggested that the amendments should not be included. It considered it incorrect that the Minister should have the right to appoint the Registrar, as this function rightly vested with the Council who was responsible for running the affairs of the profession.

Mr Mkhize stated that the HPCSA, although not listed in the Schedule to the Public Finance Management Act (PFMA) as one of the entities to which the Act must apply, must still be held accountable for its activities. For this reason the provisions of the PFMA had been included in the Clause, and it was deemed appropriate that the Minister make the appointment of the Registrar because of the strategic importance of the provision and the accounting responsibility attached. Although the appointment of the Registrar would be effected by the Minister, there would be consultation with the Council. This already reflected the current practice, whereby the Council would recommend appointment of the Registrar to the Minister.

KZN had called for the deletion of the whole of Clause 13, relating to Section 15 of the principal Act. It was held that the rights of the Minister to appoint members to the professional boards would hinder their independence and would run contrary to the principles of just administrative action.

Mr Mkhize stated that the topic of powers of the Minister, and the necessary checks and balances, had already been covered extensively in Mr Motsapi’s responses earlier..

KZN further commented that it could not support the principle of ministerial nominations, and there must be elections to ensure the credibility of people elected, which was critical.

Mr Motsapi stated that the Department had inserted this provision because the election processes of the Professional Boards had not been positive, as the members elected reflected the current demographic profile of the profession, which was white and male. The nomination process would guide the Minister. Precedents for appointment by the Minister existed in other public bodies.  This compared with other international practices. Examples were included in the detailed presentation. This process was geared to accelerating transformation in the profession. 

Clause 21 was further questioned by KZN. It was suggested that a new Section 19A be inserted. Subclause 19A(1)(a) stated that certain actions could be taken if a person had failed to respond to a letter sent by certified mail. KZN stated that in view of the non-reliability of postal services, this clause was unreasonable.

The Department responded that practitioners were supposed to keep the Registrar informed of changes of address. The use of certified mail allowed the Registrar to ascertain, for purposes of a correct Register, whether a person’s mail was being returned. If the clause was deleted the attempts to keep the Register up to date would be nullified.

Mr Govender commented that it was a good idea to keep track of practitioners, however they would have to be told about the specific provisions of the Bill.

Mr Mahlathi noted Mr Govender’s point, but held that the most educated people should show responsibility by giving notification of change of address. This pertained mostly to the private practitioners because the Department was busy implementing a system to track the current addresses of government practitioners. There was a recommendation that those failing to notify the Registrar, as they should, would not be paid by the Medical Aids, in an attempt to force compliance. However, whatever recommendations were finally put into place, the Department would make sure that practitioners were well informed about the duties imposed by the Bill.

Mr Mkhize added that the principal Act already made it compulsory for practitioners to give notification to the Registrar when changing address. 

KZN had called for the deletion of the proposed Section 19A(l)(b), which allowed for the suspension of practitioners for failure to pay annual prescribed fees. It indicated that renewal notices were often not sent timeously by the Registrar and there were computer errors at the Council, and that the Registrar must exercise due diligence before using such powers.

Mr Mkhize stated that the administrative law provisions would always be complied with and this power would not be exercised in an arbitrary fashion.

KZN had finally raised the same point as In terms of clause 52 as it had in Clause 5, suggesting that the words "after consultation with the Council" be replaced by "in consultation with the Council"

Clause 17(a) to (f) were also queried by KZN. It noted that training, education, qualifications and compliance issues would reside with relevant professional boards as opposed to Council. It was not certain that these Boards were equipped to deal with the added functions.

Mr Mkhize stated that the Department held the view that registered members at Board level would best handle the education and training relating to a profession. Council was a representative body of all the boards, but individual Council members would not necessarily be acquainted with the education and training of a particular profession. He stated that the Boards were adequately equipped to take on these functions.

Mr Mkhize stated that KZN had raised issue with the wording of the Explanatory Memorandum, stating that although this referred to medicines and keeping a shop or pharmacy, there were no amendments in the Bill to this effect. He stated that these issues had already been debated and were not included in the bill under discussion.

Mpumulanga
No suggestions from Mpumulanga were tabled.

Proposed further amendments by Department and HPCSA
Mr Motsapi stated that, having considered the proposals from the Province and further issues, the Departments and HPCSA had some further proposals to make for amendment of the Bill.

Definition of ”Public representative”: A new definition was tabled to allow for public representatives who were appointed on an ad hoc basis. The current Act
required  that the representative must be a member of the Council, which had led to considerable difficulties and delays. The change to this would also involve other consequential amendments to Section 10(2) of the principal Act and Clause 13(e) of the Bill.

The Chairperson asked why this amendment was required.

Mr Mkhize replied that this would allow for ad hoc appointment to an enquiry panel. A database of those willing to serve would be kept and training would be provided.

Substitution phrase: ”Healthcare practitioner” should be substituted with the new concept of “health practitioner” wherever it appeared.  
 
Clause 45 (amendment of Section 49 of the Act: Mr Motsapi stated that it was now proposed that Section 49(2) be deleted, as currently set out in Clause 45(c), but that Clauses 45(a) and (b) not be included. The effect would be that, save for the deletion of 49(2), the rest of Section 49 in the principle Act would remain. This was already covered earlier in some submissions.

Clause 54 (amendment of Section  62 of the Act): Mr Motsapi said that the substitution of Section 62 should continue, with further amendments. Line 47 , relating to the new Section 62(1) should be amended by a grammatical alteration, inserting the word “and” before the words “"the profession and registration category".

The Chairperson noted that even cosmetic or grammatical changes must be taken back to the provinces.

Memorandum of Objects: Mr Motsapi noted the typographical correction in 2(g) of the word “sake” instead of the current “sale”.

Replacement of Clause 41(d): new Section 41 A(6) of the Principal Act : Mr Motsapi said that the proposed new Section 41A (6) should be replaced. The new wording proposed was based on Sections 21 and 22 of the Criminal Procedure Act 51 of 1977. This was now inserted because of the recent Constitutional Court judgment on Chairperson Mogajane v North West Gambling Board. He tabled the new clause, and summarised the provisions of each of the subclauses.

Mr Govender suggested that instead of including all these proposals into the Bill, reference should rather be made to the sections of the Criminal Procedure Act 51 of 1977.

Mr Mkhize stated that there needed to be specific articulation of the procedure as applicable within the health profession context. It was better to include the provision in the current Bill to put the provisions clearly into the health care setting.

Mr Tolo was concerned with the first sentence of the clause. He suggested that the words “An investigating officer … may without a search warrant … search any person or premises” implied that there was no sense of obligation on the part of the investigating officer. He suggested that there should be a reference to “shall” or “must”.

Mr Mkhize replied that the wording would be adjusted.

Transitional Arrangements: Mr Mkhize stated that certain sections of the Bill required further regulations or preparation and therefore suggested that the Bill should only come into operation on a day to be proclaimed by the President.

The Committee agreed that they were satisfied with the explanations given by the Departments and were in support of the proposed further amendments.

The Chairperson stated that the Committee would report back to the provinces what was discussed in the meeting so that the provinces could give their  final mandate.

 The meeting was adjourned.

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