Choice on Termination of Pregnancy A/B [B21-2007]: response to submissions & finalisation

HEALTH PORTFOLIO COMMITTEE
20 November 2007
CHOICE ON TERMINATION OF PREGNANCY A/B [B21-2007]: RESPONSE TO SUBMISSIONS & FINALISATION

Chairperson: Mr L Ngculu (ANC)

Documents handed out:
Choice on Termination of Pregnancy Amendment Bill [B 21B-2007] as adopted
Choice on Termination of Pregnancy Amendment Bill [B 21A-2007] amendments agreed to
Choice on Termination of Pregnancy Amendment Bill [B 21-2007]

Audio recording of meeting [Part 1][Part 2]

SUMMARY
The Committee disagreed on whether there should be a conscientious objection clause or not. The Democratic Alliance advocated for it as it served to protect the rights of doctors and hospital staff that were pro life. They noted that the Civil Union Bill had a similar clause. The Department explained that they were in the process of developing a conscientious objection policy. The policy was intended to provide the guidelines on when one could object to carrying out a termination or be obliged to perform the procedure. The Committee also discussed the other controversial issue of informed consent.

The Committee adopted the Bill with no substantive amendments except for Clause 7 which now removed a registered nurse from being able to conduct a termination if the pregnancy was 20 weeks or more. The Inkatha Freedom Party and Democratic Alliance abstained from voting on the Bill at this meeting.

MINUTES
The Chair welcomed the National Department of Health (NDOH) which was represented by the following delegates Mr R Thompson, Special Advisor to the Minister of Health, Mr N Khaole, Director, NDOH, Ms S Marima, Director: Women’s Health, Mr C Malichadha, Legal Services, NDOH, Mr M Ncolo, Senior State Law Advisor, Office of the Chief State Law Advisor, Dr M Alblas, Medical Consultant. The Chair informed the Committee that they were going to finalise the Bill that very day with the help of the Department.

Clause 1
The Chairperson stated that the Committee had received a number of submissions and asked the Committee to propose ways in which the submissions would be dealt with. He stated that they received a number of submissions that related to certain definitions, such as the termination of pregnancy. There were also certain issues raised with regard to the principal Act. He asked the state law advisor to comment on this.

Mr Ncolo replied that state law advisors did not have much to discuss on the termination of pregnancy. The only problem they had encountered was the use of the word ‘may’ in clause 5 which dealt with regulations but they had cleared up that issue.

Ms M Matsemela (ANC) commented that she did not find anything wrong with the definition except for the fact that one of the submissions suggested that the word ‘intern’ should be included.

The Chair remarked that there was a submission that stated that the hospital staff that underwent training should not be allowed to refuse to terminate pregnancies. This was because when one did the training for termination, one was volunteering to do that service - as this would be training over and above the normal training. Thus they had made a choice and should not go back on the choice they had made.

Mr M Walters (DA) disagreed and said that doctors had a right to follow their conscience and beliefs. One should be able to refuse to terminate a pregnancy on conscientious grounds. His suggestion was that they put in a conscientious objection clause that cleared the air once and for all. Moreover, if they did not have one in the Bill, it was most likely that this matter would be taken to the Constitutional Court and that would be a very expensive exercise.

Ms Marima informed the Committee that they were still in the process of developing a conscientious objection policy. The policy was intended to guide people and provide the guidelines on when one could object to carrying out a termination or be obliged to perform the procedure.

The Chair remarked that when the University of Cape Town’s Faculty of Health Sciences was asked to comment on the issue of conscientious objection, they stated that one should treat the issue of conscientious objection without compromising access.

Mr Walters replied that the counter-argument was that doctors could not be put in the same bracket as nurses and midwives. This was because emergency health care was part of their programme, hence they did not have to do an additional course for the termination procedure as nurses and midwives had to. Moreover, people changed and their views changed and there should be allowance for a person to change from being pro abortion to being pro-life. He pointed out that the Civil Union Act had a conscientious objection clause.

Mr Thompson asked whether the argument on the conscientious objection clause was part of the Amendment Bill they were dealing with because if it was not, he did not see the reason why they were discussing it. The clause could be introduced and be discussed through a different process but they should deal with what was relevant to the Bill.

The Chair replied that that would be the wrong way of dealing with the issue. The reason they had the Bill before them again was because the Constitutional Court had ruled that there was not enough public consultation. Now after public consultation, the issue of conscientious objection had formed the bulk of the submissions and as such they had to deal with it one way or the other. In addition, conscientious objection was not defined in the principal Act, and the University of Cape Town had stated that no matter how they phrased the clause it should not be such that it closes the door on women who choose to terminate their pregnancies.

Ms M Madumise remarked that they were not dealing with the principal Act but the Bill.

The Chair replied that the danger of just dealing with the Bill alone without doing it in conjunction with the Act would result in the pro-life organisations going to court, just to object the issue and they did not want a situation where the Bill came back to them again. The truth of the matter was that such organisations had the money and the time just to object to something they did not agree with.

Mr Walters commented that as a Committee they had the right to add, amend or remove any clauses if they thought that that was a better option, even if the matter had not been addressed in the principal Act. Resultantly, there was nothing wrong with discussing the Bill in conjunction with the principal Act because they had to apply their minds and, with no disrespect, they did not have to rubber stamp what the Department had put on paper.

Mr Walters remarked that they could look at a number of clauses that were suggested in the submissions that came from countries such as New Zealand, England, and Belgium and formulate one they felt comfortable to use.

The Chair replied that the New Zealand clause was a blanket one and thus could not be used, the Belgian one was equally not very good and the rest of the clauses looked like they would inevitably undermine what they were trying to implement.

Mr Walters remarked that the clause from England was a good one.

The Chair replied that the problem with the English clause was that it used the word ‘emergency’ and the termination of pregnancy was not an emergency so this would close the door they were trying to create.

Mr M Sibuyana (IFP) commented that the Constitution was very clear, s27 protected the right of a woman over her body and this also included the right to the choice on termination of pregnancy. The principal Act and the Bill were seeking to accentuate this right and if they then had a clause that undermined this right, it would run contrary to the Constitution. His advice was that they should not have a clause that explicitly allowed doctors, nurses and midwives to deny a woman this choice.

Mr Walters remarked that whilst this was well and good, the Committee should also keep in mind that the rights of doctors and nurses were also constitutionally protected under s9 and s15 and the government itself had acknowledged that someone can object on a properly constituted conscientious ground like in the Civil Union Act.

Mr B Mashile (ANC) agreed with the Chair as he understood that there was going to be specific training for the termination procedure. So if one chose to do the training, then one should not be allowed to refuse to offer the service for which one had been trained.

The Chair asked if the state legal advisor would help on the issue of s9 and s15 of the Bill of Rights.

Mr Ncolo replied that the rights in the Bill of Rights should not be taken as absolute as they were capable of being limited by s36. There were rights such as the right to life that could not be limited but the rest of the rights could be limited. Thus it was important that they reach a compromise on this particular aspect.

Mr Walters asked for clarity as he wanted to know if doctors were going to do a diploma or something over and above the training they got.

Dr Khaole replied that he was a doctor and as part of their education they were trained in emergency care and this covered the procedure for terminating a pregnancy. But if there was a need to do anything extra, then one needed to be specifically trained in that area. As a doctor he could not see why there should be grounds for conscientious objection. If a doctor was not allowed to make a conscientious objection when repairing the leg of an enemy, why should there be one when a woman chooses to terminate a pregnancy.

The Chair commented that when dealing with the choice on termination of pregnancy, they should not do this in isolation because there were a lot of other factors involved such as the number of lives that were saved by this procedure. At the same time they should keep in mind that the pro life submissions formed the bulk of the submissions made to the Committee.

Dr Khaole replied that the Act and the Bill were about the user and as such they should not concentrate overly much on the provider. This issue of conscientious objection came about because of the court case so they were waiting on the court to decide on the legal issues.

Ms Matsemela agreed that they should look at the Constitution and at the Bill and concentrate on whom it was trying to create rights for - which is the user.

The Chair commented that they had had the same problem when they dealt with the Civil Union Bill. There were very few people who were progressive in their thinking and most people did not want such civil unions including some of the members of the ANC but with time this changed.

Mr Mashile remarked that the Bill should not be seen in the light of the Civil Union Act but along the same lines as the Defence Force Act. Neither the defence force nor the police could refuse to give assistance or protect people on the basis that it offends their conscience.

The Chair remarked that this issue was fairly controversial but they should close this matter and he thanked everyone for the useful and very informative discussion.

Mr Walters expressed his disappointment with the fact that the Committee had not clarified nor finalised anything on conscientious objection that would have been in the best interests of everyone.

Informed Consent
The Chair noted that the second issue raised by the hearings was the one on Informed Consent. He said that most of the pro-life submissions stated that there was no proper counseling before - not after - the termination of pregnancy. Their argument based on a case was that without proper counseling there cannot be informed consent because informed consent rests on three legs and these are knowledge, appreciation and consent. Knowledge covered all the information including the harm, the risks and the effects of terminating a pregnancy. Appreciation was when the patient after being given the knowledge comprehends the extent and the nature of the risks, harm and benefits of the procedure and only after this can one make an informed consent. They argued that on the ground, what happened was that the practitioner determined the counseling to be given and when to give it.

Ms Madumise remarked that her understanding was that the extra training for the procedure included training in counseling.

Mr Walters remarked that his problem was that with no blanket counseling package each, counselor could lead a patient one way or the other. So instead of the patient making an informed consent, they would then be led to which decision to make. Therefore, his suggestion was that the Department could make some sort of counseling package like a video that a patient might watch before they made a decision.

Dr Khaole commented that, as a doctor, the way he understood informed consent from his training in ethics was that one should not say do this or do that. The process of giving an informed consent was a process of volition. One gave the patient information and they had to comprehend it. To ensure that they have, the doctor listens to the patient to see that the patient has understood everything. If not, then the doctor tries a different method of imparting knowledge until the patient understands all the risks and harm involved. Only after the patient has the knowledge, comprehends it and through a process of volition makes an informed consent, can one say that informed consent has been acquired. One should not put words in another’s mouth and direct their line of thinking, this was not allowed.

Prof Green-Thompson remarked that what should be kept in mind is that the Act did not compel the woman to terminate her pregnancy. Only those that wanted to, should be given the services.

Clause 7
The Chair commented that there were submissions on s2(c) of the principal Act and these read that a registered nurse should not be included in the clause.

The Committee agreed.

The Chair remarked that since they had all agreed that registered nurse should be removed, they would now leave it to the Department to draft it elegantly.

Ms Matsemela asked for clarification on the agreed amendment. She asked if this meant that after 20 weeks a registered nurse could not terminate a pregnancy.

The Committee replied in the affirmative.

Mr Walters asked if they could clarify the training procedure and what it entailed and whether this was in line with the World Health Organisation’s principles.

The Chair agreed with Mr Walters and he asked the Department to unpack the procedure.

Dr Khaole replied that he could not respond to the question offhand but he was positive that the information was available in one of the submissions.

Mr A Madella (ANC) said that the information was not in the submissions before them but the Committee had been privy to it some time before because it was given as part of question and answer deliberations with the Department.

Dr Alblas replied that the training was two weeks. After that there was practical training in the hospital and from there onwards it depended on how handy one was. If the nurse was not good enough, then more training was to be done before the green light could be given. She added that she had personally visited all the training sites and the reason that registered nurses were not allowed to terminate a pregnancy after 20 weeks, was that they were not trained in delivery. After 20 weeks any termination is recorded as a death and for them to do this procedure they would need to have taken midwifery courses.

Dr R Rabinowitz (IFP) asked if they were ever going to introduce the Mifepristone drug for terminating pregnancies considering that doctors were already using the Misoprostol drug.

Ms Alblas replied that if this was introduced it would definitely make it easier especially for pregnancies that were seven weeks and less because one had to take only a single pill and the termination would be blood coming out in clots and this can be done whilst one is at home.

Dr Rabinowitz asked what the doctor thought of publications by other doctors that discouraged the use of the Mifepristone drugs on teenagers because they argue that it affected hormonal balance.

Ms Alblas replied that the pill did not cause any hormonal imbalance neither did it affect any hormones and this was primarily because the drug is only taken once.

Dr Rabinowitz asked if they were advocating for the drug.

Ms Alblas replied that she definitely advocated for it but she was aware that it could not be added to the discussions currently on the table as this would only complicate matters further.

Dr Rabinowitz remarked that the problem with terminating pregnancies was that people were most likely to abuse it and use this as a form of contraception. As such, she advocated strongly that they should make it mandatory that they acquire parental consent when a minor is involved unless there were very good reasons for not doing so.

Prof Green-Thompson replied that the choice on termination of pregnancy did not replace contraception. It was to avail a woman who has a pregnancy that she does not want due to whatever reasons. Counseling was included as well as advice on the use of contraceptives so as to avoid another unwanted pregnancy.

The Chair added that whilst this was logically the best thing to do, practically it was onerous and impossible to enforce this.

Mr Walters asked for the financial implications of all the training involved.

Dr Rabinowitz replied that it was worth it and Dr Khaole and the rest of the Committee agreed

Voting on the Bill
The Committee went through each clause of the Bill to finalise any changes:

Clause 1
Dr Khaole brought it to the Committee’s attention that the only amendment was to change the reference of the Nursing Act in the Bill to the Nursing Act 33 of 2005 in clauses 1(c) and (d)

Clause 2
No amendments

Clause 3
No amendments

Clause 4
No amendments

Clause 5
No amendments

Clause 6
No amendments

Clause 7
The amendment was to remove the reference to registered nurses.

Dr Rabinowitz suggested that they debate the Bill in the National Assembly since it was very important as it had been referred back to Parliament by the Constitutional Court.

Mr Walters agreed.

Ms Madumise disagreed because she was of the opinion that there were no major issues to be debated as most of them had already been decided on.

Mr Mashile agreed.

Dr Rabinowitz suggested a compromise which was that each party would make its declaration for about five minutes.

The Committee agreed.

The Chair asked the Committee if they all agreed on the changes in the Bill and asked for the mover for the amendments.

Ms Madumise moved and Dr Rabinowitz seconded.

The Chair on the motion of desirability asked if any party moved for the adoption of the Bill.

The IFP and the DA abstained.

ANC moved and seconded the adoption of the Bill and the Bill was adopted.

The meeting was adjourned.