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HEALTH PORTFOLIO COMMITTEE
16 October 2007
CHOICE ON TERMINATION OF PREGNANCY AMENDMENT BILL [B21-2007]; TRADITIONAL HEALTH PRACTITIONERS BILL [B20-2007]: BRIEFING
Chairperson: Ms N Mathibela (ANC)
Documents handed out:
Department of Health presentation: Choice on Termination of Pregnancy Amendment Bill
Department of Health presentation: Traditional Health Practitioners Bill
Choice on Termination of Pregnancy Amendment Bill [B 21-2007]
Traditional Health Practitioners Bill [B 20-2007]
Department of Health Proposals on the Traditional Health Practitioners Bill
Choice on Termination of Pregnancy Amendment Act No. 38 of 2004
Traditional Health Practitioners’ Act No. 35 of 2004
Executive Summary of the Constitutional Court ruling in the Doctors for Life case
Audio recording of meeting
The Choice on Termination of Pregnancy Amendment Act and the Traditional Health Practitioners Act had been declared invalid by a Constitutional Court ruling in 2006 on the grounds that insufficient public participation had taken place in the National Council of Provinces. The Traditional Health Practitioners' Act declaration of invalidity was suspended for a period of eighteen months. Both Bills had been introduced to the National Council of Provinces in June 2007 and hearings had been conducted. Both Bills had been passed by the NCOP with no amendments.
After the Department’s briefing on each Bill, certain committee members were insistent that public hearings were needed in the National Assembly process as per normal practice. They requested legal advice on this. The Department believed hearings would be unnecessary but the Chairperson ruled that a decision on public hearings would be made at a later date.
Choice on Termination of Pregnancy Amendment Bill
Dr Nat Khaole, Director for Women's Health, explained that the Bill was before Parliament again as the previous 2003 Bill that had been enacted in 2005 had been declared invalid by the Constitutional Court in 2006 on the grounds that insufficient public participation had taken place by the National Council of Provinces (NCOP).
He emphasised that that court case had not been about challenging the Act that gave woman the right to termination of pregnancy (TOP). Nor had the court case targeted the contents of the Amendment Bill. The court case and the judgment found that proper procedure had not been followed by Parliament when processing the Bill.
Dr Khaole then outlined the objectives and contents of the Amendment Bill which included:
- Abortion- care trained nurses to render first trimester TOP
- Provisions for greater Provincial Control and implementation
- Empowering the MECs to approve facilities
- To exempt facilities that already provide 24 hour maternity service
- Recording the information and the submission of statistics
- To enable MECs to make regulations
- Service Providers in Abortion Care to include trained registered nurses
- Include a penalty clause
Section 1 Amendments
- Definitions of Head of Department (HOD) and Member of Executive Council (MEC)
- Definition of registered midwife is qualified with the need for prescribed training
- Additional of definition of registered nurse which is also qualified with the need for prescribed training
Section 2 Amendments
- Substitutes Section 3 of the Principal Act
- Specifies 10 requirements for approval
- Subsection 3(a)
Automatic approval of current facilities that provide 24 hour maternity services, if the
10 requirements are met
- Subsection 3(b)
Places duty on person in charge to notify MEC of the health facility and its provision of termination of pregnancy services
- MEC to submit statistics of approved facilities once a year to the Minister
- Minister is not divested of power to perform any functions to achieve objects of this Act
Section 3 Amendments
- Person in charge of the facility to relay information to HOD
- HOD then collates information and relates this to the National Director General
Section 4 Amendments
- Minister and the DG are replaced by MEC and HOD respectively
- Delegation of power by MEC and HOD
Section 5 Amendments
- MEC has power to make regulations
- Regulations should be made in consultation with the Minister
Section 6 Amendments
- New Offence – termination or allowing termination at a facility that is not approved
Section 8 Amendments
- Transitional provisions
- Facilities already designated deemed to be approved in terms of new legislation
Ms S Kaylan (DA) asked whether public consultation had happened with regard to this 2007 Bill.
Dr N Khaole replied that that public consultation process had to have been followed in order for the Bill to have been finalised by the National Council of Provinces (NCOP) before coming to the National Assembly.
Ms C Dudley (ACDP) stated that the Amendment Bill was returned to Parliament due to procedural errors. However it appeared that the hearings were not really concerned with the content of the submissions but only going through the motions. She questioned whether the NCOP were holding the hearings while ignoring the content of the submissions that were made.
Dr N Khaole replied that from a policy issue the NCOP would take note of the issues with regard to the amendments. The amendments were specifically referred to and anything else that was outside these amendments would have been up to the NCOP.
Mr M Motsapi, Legal Services, Department of Health, stated that the Bill was introduced in the NCOP as if it was a new Bill, so all content issues were considered and any matters that had been raised by the Provinces had been dealt with by the NCOP. The court decision was made on the process and not on the policy of the Bill.
Mr M Walters (DA) asked whether after the NCOP had held the public hearings, if they made any amendments to the Bill.
Mr Motsapi replied that no new amendments had been made.
Mr Mashile (ANC) referred to Section 5 which stated that the MEC had the power to make regulations but that these had to be made in consultation with the Minister. He asked if the regulations could go forward only if the Minister had approved them. He questioned the nature of the consultation procedure.
Dr Khaole stated that this consultation process was necessary so that there would be no mal-alignment with regard to any provincial regulations made and this would be in the spirit of co-operative governance.
Ms Dudley stated that she understood that this Bill was re-introduced as a new Bill first in the NCOP and then it would need to follow a hearings process in the National Assembly as well. This is why the process of hearings was needed at this stage.
Ms Mmathari Matsau (Deputy Director General: Strategic Health Programmes) responded that it was the third time the Department had returned to Parliament with all the amendments, and the first two times was at the NCOP level. The first time was to represent the amendments, and the second time had been a consultative process in the provinces, where members brought up various questions that had picked up at provincial level. The DOH made responses to these questions, and believed that the third appearance in the National Assembly was part of the consultation process.
Ms Dudley (ACDP) stated that legal opinion was needed on this point as the costs to Parliament were huge when Bills were declared unconstitutional and returned. It appeared that the Bill had been re-introduced and this would mean that the full process would need to be put into effect starting at the National Assembly. Legal advice from Parliament was needed as the costs would revert to Parliament if it were to go back to court.
Mr Motsapi explained that in a meeting with the State Law Advisor and the NCOP Chairperson, it had been decided that the process would begin in the NCOP and then would be referred to the NA. This was not a departmental issue as this Bill was now in Parliament.
Mr Walters suggested that public hearings be done as the National Assembly had to follow their process and was separate to the NCOP.
Mr Mashile suggested that there be consultation done on the process that needed to be followed.
Ms Dudley stated that in view of the Doctors For Life judgement the courts were not averse to sending the Bill back if they felt that due process was not followed. It should be considered that hearings might need to take place and clear legal advice was needed on this.
The Chair ruled that at this point no decisions would be made. They would apply their minds on this matter in their own time.
Mr Mashile (ANC) referring to the Bill asked that, if an MEC made regulations and the Minister did not agree to them, would the MEC still be able to go ahead with the regulations or was it required that the Minister to give the go-ahead for those regulations.
Dr Khaole stated that he could not give legal advice on this but that he understood that the regulation was that the MEC would have to consult with the Minister and middle-ground would be found.
Mr Motsapi stated that Section 25 of the National Health Act provided that the MEC would implement policies in line with this Act. Where conflicts arise, Section 146 in the Constitution stated that National would supersede the Provincial in this regard.
Mr Madella (ANC) said that the MEC would act in the best interests of the particular province. Consultation needed to be tighter in the provinces as sometimes the provinces differed greatly on particular issues. The process needed to be tightened in this regard.
Ms Dudley commented that at this point, the question would be if you could conduct hearings without having had a look at the content and whether the full procedure would need to be followed at the level of the National Assembly.
Mr Walters suggested that a more urgent decision needed to be made with regard to whether hearings would take place or not.
The Chair stated that this would not affect the Department but would concern parliamentary procedures.
Traditional Health Practitioners Bill: briefing by the Department
Ms Rose Mdlalose, Director of Human Resources Development, DOH, briefed the Committee on the Traditional Health Practitioners Bill. She stated that this legislation was intended to regulate the activities of Traditional Health Practitioners in South Africa. After public hearings in 1988, the Portfolio Committee on Health and the Select Committee in the NCOP had recommended that:
- Traditional healers receive legal recognition,
- An Interim Council be set up as a regulatory body,
- A forum be set up prior to the formation of the Interim Council.
- The Interim Council was to report back to Parliament within three years, after which a permanent Council would be constituted.
- The proposed categories of healers to be overseen by the Council would include herbalists, diviners, traditional birth attendants and traditional surgeons.
- Faith healers would be excluded because they were not traditional in nature and training and accreditation would present problems.
It was proposed that the functions of the Interim Council would be the registration of traditional healers, promotion of training, research and professionalism in the sector, development of an ethical code of conduct, setting up of norms and standards, facilitation of co-operation with medical professionals and the government, research and creation of a database, and the regulation of anything incidental to traditional healing practice.
Ms Mdlalose outlined the consultative process that had been implemented by the Department of Health at the time. The first workshop was held in 1999 in Pretoria. All provinces were represented by four traditional healers each. Four Health Professional Councils attended and also committed themselves to sharing information that would assist with the establishment of the Traditional Healers’ Council. The Department of Health conducted road shows and had received input from ten organisations.The Bill was passed in Parliament in November 2004 and signed by the President in February 2005.
On 17 August 2006 the Constitutional Court handed down judgement in an application by Doctors for Life (DFL), based on the argument that there was insufficient public involvement in the passing of four Acts, of which this was one. The Traditional Health Practitioners’ Act was declared invalid, but the Constitutional Court suspended the order of invalidity for an eighteen- month period for further consultative processes to take place.
Ms Mdlalose said that the Department of Health had to stop all its activities with regard to implementation of the Act, and that these basically related to the establishment of the Interim Traditional Health Practitioners Council and the nomination process. The regulations relating to appointments by the Minister had been developed and published on 21 December 2005. There was uncertainty as to whether the nominations already made were still valid.
Ms Mdlalose provided the headings of the five chapters contained in the new Bill. Chapter 1 contained the definitions and purpose of the legislation. Chapter 2 concerned the establishment and governance of the Council, Chapter 3 provided for its registrar, staff and registration procedures, Chapter 4 for disciplinary enquiries and investigations, and Chapter 5 for supplementary provisions.
The Interim Council would consist of 22 members appointed by the Minister. Appointments would be made in the following manner: a traditional health practitioner as Chairperson, a Vice-Chairperson, one traditional heath practitioner from each province, one employee from the Department of Health, a legal practitioner, a medical practitioner, a pharmacist, three community representatives and one representative from each of the four categories of traditional health practitioners. The legislation would apply to traditional health practitioners and students of traditional health practice in the Republic of South Africa.
There were inputs on this Bill from the House of Traditional Leaders. The Provincial Legislatures were briefed and public hearings were held in all the provinces.
Nominations for the Council would resume pending the acceptance of the Bill.
Mr Walters (DA) asked whether this Committee had held public hearings with regard to this Bill.
The Chair replied that this had not occurred.
Ms Dudley (ACDP) stated that her comments on the Choice on Termination of Pregnancy Amendment Bill applied in the same way to this Bill.
Mr Mashile (ANC) referred to the Council nominations and asked since the suspension of the Bill, if the Department was checking the availability of the previously nominated people and what the problem would be in including those in the current nominations.
Mr Madella (ANC) questioned the current legal status of the Bill and the long delay between the President implementing the Bill and the nominations for the Council going forward and if the sector were informed of the nominations re-starting.
Ms Mdalose answered regarding why the nomination process was re-started. This was because some of those that were nominated had moved and the nominations were valid only at the time of a valid Act. All activities had to be held back until such time as the Bill became valid again in February 2008. The process of nomination had also provoked further interest by those who would not be able to be on the Council. The understanding would be that once the Act would be re-instated, the process of nominations would resume again.
Mr Mashile (ANC) stated that it would be helpful if it would be possible to re-look at the availability of the previously nominated people for the Council.
Ms Mdalose stated that the criteria for nomination was dealt with in the Bill and that the total membership of the Council would be 22 people.
Ms Kalyan (DA) stated that if the Bill had been declared invalid, then it would follow that the nominations would also be invalid as would follow from the legal procedure. She questioned what the criteria for nominations would be and would this preclude certain categories of healers.
Ms Mdalose stated that the four categories would be represented but those practising alternative medicine were not included in this Bill as Alternative Medicine had their own Council and own Act.
Mr Walters (DA) asked if the Bill dealt with the registration of traditional remedies and medicines.
Ms Mdalose stated that traditional remedies and medicines were not necessarily a part of this Bill and that in the DOH there was now a new Directorate which was the Traditional Medicines Directorate which would deal with the actual medicines. The Practitioners would be dealt with in this instance and the medicines dealt with in the Pharmaceutical Cluster.
Ms Dudley (ACDP) mentioned that the other issues that were brought up were not mentioned in the submissions and those included the disclosure of traditional remedies and the training of the healers.
Ms Mdalose stated that with regard to training standards, the Act looked at the training of traditional healers and that it is an apprentice type of training as opposed to a school or technikon training. The student would sit with the Master for a number of years which would be up to seven years.
Mr Walters (DA) queried the two Bills, the one dealing with the medicines and the other with the practitioners, and how registration in the two Bills would occur.
Ms Mdalose replied that this was an ongoing process and that the Universities were researching the Traditional medicine in this way. The Council would be established to look at the practitioners and their medicines and the way that they practise them.
Ms Matsau stated that it would be impossible to have both those Bills registering at the same time and that the regulation of the products had been happening for a long time. A mechanism was needed for the Health Practitioners and this system needed to be regulated.
Mr Mashile said that the profession needed to be organised so that they could take part in all processes concerning them and that the Council needed to be in place and it would be impossible for both Bills to come into effect at the same time.
The Chair questioned clarity on the issue of spiritual healers.
Ms Mdalose stated that the choice in the Council lay with Parliament and that this did not include spiritual healers as these were not African Indigenous Traditional Healers and this would be up to the Council to include those people in the Council.
The Chair thanked the DOH for the presentation.
The meeting was adjourned.
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