National Health Amendment Bill: Department of Health response

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21 October 2020
Chairperson: Dr S Dhlomo (ANC)
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Meeting Summary

The Department of Health presented its review of the National Health Amendment Bill, a Private Member’s Bill, sponsored by MP, Dr Suzan Thembekwayo (EFF). The proposed bill aimed to amend the National Health Act (No 61 of 2003) to ensure that public sector clinics are available 24 hours a day. The Department of Health submitted that there were severe financial implications to this proposed bill and that a cost analysis must be done before the bill could be considered, despite Dr Thembekwayo’s argument that government must find the funding.

Although a socio-economic impact assessment system (SEIAS) report has not been obtained for the Bill, the Department of Health (DoH) indicate that this proposed bill would likely not be the most appropriate vehicle to achieve the objective of 24-hour clinics. The Department affirmed its desire for 24-hour clinics, but emphasised the need for comprehensive data first on the factors informing the operation of 24 hour clinics, such as human resource capacity and the safety and security of health care workers. It ended by giving a breakdown per province of how many 24-hour clinics there are currently.

Committee members’ responses to the Department of Health’s presentation were mixed. Some Members felt that the Department had presented a disappointing review, and that more needed to be done, and funding must be found. Other members felt that, especially given the current pandemic, the Department was on the right track for achieving the progressive realisation of 24-hour clinics, and that finding funding, amongst other factors, was simply too problematic for the desirability of this Amendment Bill at this time. A third meeting will be held with the Parliament Legal Team for its response before the Committee make a decision on the Bill.


Meeting report

The Chairperson, Dr S Dhlomo (ANC), highlighted that this virtual meeting is the second step in the process of examining the Private Member’s Bill. The Committee had listened to the briefing by the Private Member, Dr Suzan Thembekwayo (EFF), on suggested amendments to the National Health Act last week. The Department of Health had attended the briefing and in today’s meeting, the Department will have an opportunity to respond. Committee members will be able to comment on the response. After this meeting, the legal team will prepare its report to be presented in a third meeting, to take this process forward.

Mr Johannes Kglatla, Department of Health, conveyed apologies for the Minister and Deputy Minister of Health, who could not be present. He introduced the Department of Health delegation: Acting DDG, Ms Aneliswa Cele, supported by Mr Ramphelane Morewane, Chief Director of District Health Services and Adv Micro Moabelo, Director: Legal Services.

National Health Amendment Bill: Department of Health response
DoH Acting DDG, Ms Aneliswa Cele, explained that Mr Morewane will present as he was one of the managers present at the first meeting where Dr Thembekwayo gave the briefing on the Amendment Bill. He will lead the presentation, which is structured according to legal and policy matters.

Mr Ramphelane Morewane, Chief Director of District Health Services, gave a brief background on the Private Member's Bill. He outlined the general legislative programme for the Department of Health this year, highlighting how progress had stalled due to Covid-19.

It is necessary to secure funding for the implementation of legislation. The Bill in the current form will have a massive financial implication for the Department and the Ministry. The quantification of costs must be done before the Bill could be considered. The country is currently under financial stress and would struggle to adjust the current budget against the health requirements as a result of the COVID-19 pandemic.

This Bill had not been subjected to a socio-economic impact assessment. The socio-economic impact assessment system (SEIAS) determines if the Bill is the correct vehicle to achieve the objective. There are currently 24-hour clinics but they were not legislated before they could operate for 24 hours. It may therefore not be necessary to legislate for the clinic to operate for 24 hours.

Mr Morewane emphasised how the right to access to healthcare is a progressive right, and this legislative measure is not the most appropriate means of achieving this progressive realisation. However the Department is committed to increasing the number of 24 hour clinics over the next couple of financial years.

Mr Morewane noted that Parliament is currently processing the National Health Insurance (NHI) Bill, which may result in amendments to the National Health Act (NHA) anyway. Consequently, amendments to the NHA have been paused, to ensure more holistic amendments.

Mr Morewane emphasised the Department’s commitment to 24-hour clinics in due course, but this requires a lot of data to implement this. This includes policy considerations and factors such as human resource capacity and safety and security considerations for health care workers.

Mr Morewane ended by outlining statistics per province on how many public health clinics are available, and how many of these are currently running 24 hours.

The Chairperson thanked Mr Morewane for the Department of Health response.

Dr K Jacobs (ANC) reminded the Committee of section 27(2) of the Constitution states that that the State has to take reasonable legislative and other measures within its available resources to achieve progressive realisation of certain rights, which include the right to life and healthcare. The ANC’s policy to provide healthcare to all people nearest to where they live was included in their 2011 election manifesto.

Government supports this same concept. In an ideal world, it would be wonderful to have healthcare facilities available 24 hours in every neighbourhood, but this is not achievable given our financial constraints, in addition to the negative impact of Covid-19. The Committee is busy with the final part of the public participation process on the NHI Bill, the outcomes of which will speak to the same matter. The Committee has also heard that there will be a review of the National Health Act of 2003 which in itself is a large task. His suggestion is that they wait for the revised work instead of bringing amendments one at a time.

Ms N Chirwa (EFF) noted how she was disappointed by the reasons given why the Department would rather not have this Bill legislated. The Department’s re-emphasis of its commitment to the progressive realisation of 24-hour clinics is not relevant to the work of this Committee, as legislators. There have been many commitments, even charters, over the years, and these commitments have never manifested, such as the commitment concerning land. A commitment means nothing to us as legislators. The Committee is here to make Bills, and it is important that this Bill is put into effect.

Ms Chirwa made a second point that the role of this Committee is not to find money or funds. They wait on Treasury’s proposed funding model.

Emergencies do not happen between 8am and 4pm, and to say that the only services that operate for 24-hours are those that cater for emergencies is disingenuous. District hospitals - supposedly open for 24 hours - do not have the capacity to do so. Even hospitals that the Department brags about as 24 hours centres do not have capacity. The Department cannot resolve the issue of capacity through rejection of the Bill, instead you must strengthen capacity. If the issue is infrastructure, you strengthen infrastructure, if the issue is human resources, you build human resources. The Department cannot just sideline people’s rights to health because there are challenges. Of course, there will be challenges.

The NHI is not a solution to primary health care services opening for 24 hours. It is not mentioned in the NHI Bill, so the Department cannot bring this as a counter argument for the National Health Amendment Bill, as proposed by Dr Thembekwayo.

The commitment the Department of Health is making in this meeting has nothing to do with the Committee.

Ms Chirwa highlighted how the National Health Amendment Bill is not a solution to security challenges. We already have safety and security challenges regardless of the Amendment Bill. How do you solve lack of security? You must strengthen security systems. The Department had not responded to previous recommendations given in Parliament by parliamentarians, civil society and unions on how to strengthen security. To bring up security as a reason to counter this Bill is disingenuous. The Department is taking away people’s rights and if they wanted to counter the Bill, they must come up with more satisfactory reasons.

Ms Chirwa said that South Africa’s health system collapsed a long time ago. The Department cannot respond to people who wait in queues from four in the morning that South Africa does not need 24-hour clinics. She asked what the Department has to say to women who are giving birth on the streets, to people who are dying at the doors of the clinics. These are the kinds of concerns that do not get counted in its assessment and analysis.

Ms Chirwa argued that the Department must solve challenges for what they are, and it should not conflate issues. It is disingenuous to put forward these reasons for the non-support of this Bill by DoH. These are infrastructure challenges which it has failed to solve. The Department has failed for 26 years and these cannot be conflated with this particular Bill. If anything, this Bill works to address the primary healthcare challenges which the Department has failed to address. What about people who cannot access facilities before 4pm, or who live in townships and have one point of access? As Members of Parliament, as legislators, it is in our hands to ensure that happens. As a responsibility of the executive, it is important that the funds are sourced.

Ms A Gela (ANC) welcomed the presentation by Mr Morewane. Looking at the status of our country under stress from Covid-19, there has been an impact on our country. Human resources as a factor must be checked. In response to Ms Chirwa, she believed the Department has done a good job, led by the ANC. There did not used to be 24-hour clinics during the Apartheid years, clinics ran from 7am to 4pm. The Committee must appreciate the good work done by the ANC in the last 26 years.

Ms Gela noted that the Committee must check the data on how many clinics operate 24 hours, there are 24-hour clinics in all nine provinces, and we must appreciate this as politicians. For example, Gauteng now has 24-hour clinics in all five regions, and even in rural areas. The Department has worked very hard. As the ruling party, the ANC understands we must have 24 clinics, but we cannot do this in all areas at the same time, due to the financial situation. It must be done in an incremental way. There has been a difference under the ANC and we must be careful not to always criticise when we want things to happen straight away. The ANC manifesto stated that 24-hour clinics are desirable.

Ms Gela believed the EFF has merely copied the ANC manifesto. The EFF wants the ruling party to implement changes even when the situation on the ground does not allow for it. The ANC government does not say that it is wrong to desire 24-hour clinics - it will be implemented progressively - but the Committee must appreciate what has been done already.

On safety and security, Ms Gela believed that this factor must be considered so as not to put healthcare workers at risk. The Department had done a good job to examine where it can improve safety and security and where it cannot. She appreciated its honesty as it must consider all issues holistically, and she believed the Department had made a good move here. She was not sure if she agreed with Ms Chirwa that the NHI cannot provide a suitable solution. We must treat our people according to equal standards.

Ms Chirwa raised a point of order and the Chairperson allowed it

Ms Chirwa clarified that she does not believe the NHI is a solution. The NHI will not build clinics; the NHI will not build security.

Both Dr P Dyantyi (ANC) and Mr T Munyai (ANC) said Ms Chirwa’s point was not a point of order.

Ms Chirwa continued that the NHI will not build human resources or hospitals.

Several Committee members objected to Ms Chirwa’s continuation. Dr Dyantyi asked that Ms Chirwa be muted as she continued to speak.

Ms Chirwa objected to being muted and continued to speak.

The Chairperson asked the Secretary to mute Ms Chirwa and asked Ms Gela to continue with her points.

Ms Gela noted that charity begins at home; we must respect each other. Although we are colleagues, we still have our elders, and Ms Chirwa must learn to respect her elders. Ms Gela re-affirmed that she believed the NHI could offer a good solution; the people of South Africa supported this in the public hearings.

Ms Chirwa noted another point of order. Ms Gela continued to speak, while Ms Chirwa continued to raise a point of order.

Ms Gela pointed out that if the Department is going to make amendments to the National Health Act, why can they not wait, so we can improve it under the umbrella of the holistic amendments?

Ms Gela noted how Ms Chirwa was continuing to disturb her and that she should respect Ms Gela.

Ms Chirwa claimed that she was raising a point of order, which is not the same as disturbing Ms Gela.

The Chairperson encouraged Ms Gela to continue.

Dr S Thembekwayo (EFF) noted that she wanted to say something.

Ms Gela congratulated the Department on its work as the political head of the health portfolio. She thought that everyone can see that there has been an improvement. Some people are negative, especially the opposition parties, but she believed you cannot mislead the people of South Africa. They voted for the ANC because they can see what the ANC have done for them. The people of South Africa are benefitting. She believed her party, the ANC, is still going forward, listening to the people, and doing the right thing,

Ms Chirwa again raised a point of order as Ms Gela continued. Ms Chirwa noted that she believed this meeting was supposed to be about the Bill and not the past successes of the ANC.

Ms Gela continued, claiming that she believes the country is going in the right direction, and that the ANC wants to lead.

Ms Chirwa asked that the Committee speak to the Bill.

Ms Gela said that she recently went to a clinic which is working 24 hours. There have been other good developments around the country. She saw in the news that in Mpumalanga they are doing good work in the rural areas. There is a beautiful clinic under construction and it is going to operate 24 hours. The Department is working on these clinics incrementally.

Ms Gela concluded by thanking the Chairperson.

The Chairperson noted that it is important not to get tempted to get off track from this meeting’s current programme. However, we must, as Committee members, also tolerate each other.

Ms E Wilson (DA) felt she had to refer to the NHI point. It was very clear from the public hearings at which all Committee members were present, that there was support for the NHI. But there were also people who were desperate for proper toilets, easily access to clinics and prompt ambulance services. However, from today’s presentation, it is clear that this is a pipe dream. From the outset, the Committee must not mislead the public who are expecting new operational clinics because this is not going to happen. This is a major concern.

Although it is wonderful that Ms Gela has seen a couple of successful 24-hour clinics, Ms Wilson wanted to highlight that this can distort the bigger picture. In every province, there are from 2% to 20% clinics that are 24-hour clinics. Of those clinics, they do not have all the services. In terms of the NHI, the process will be that everyone registers at the clinics; they will be referred, if necessary, from the clinic to the hospital. If we do not have operational clinics, it is not possible implement the proposed NHI, which claims that a person must be referred from a clinic to a hospital.

Ms Wilson noted that the report shows that the Northern Cape has to be one of the most rural provinces in the country, and has 161 clinics, which fiercely under caters for its wide open spaces as there are only 12 clinics operating 24 hours a day. People are hundreds of kilometres away from those clinics. Only 12 out of 161 clinics are fully operational. How can we consider the NHI if we do not have properly functional, staffed and resourced clinics to manage this? She believed this DoH report is actually quite bad.

Dr S Thembekwayo (EFF) commented on what Ms Gela had said, whilst recognising that she does not want to start a debate. We are all Members of Parliament, and so is Ms Chirwa. We came here due to representation of our political party. We have the right to say anything. Ms Chirwa has the right to say whatever she says – it is not a matter of respecting age, and we should not take things personally here.

Dr Thembekwayo reminded the Committee that she is a doctor and her title should be acknowledged as such during this meeting. When Members respond in this Committee, they must think first about what they are going to say, it is a matter of intellectual engagement and not an opportunity for blubbering. Ms Chirwa had said a mouthful, which Dr Thembekwayo appreciated, and she therefore did not have much more to add to Ms Chirwa’s points.

Dr Thembekwayo noted the negativity she had felt come from the Department in how it responded to this Amendment Bill. She will continue to engage on it until she sees justice on this matter. It is not a personal matter, not even an EFF matter. It is a matter for poor South Africans. She is committed to this amendment. The importance of legislation is to enshrine the rights of all South Africans and it affects the democratic qualities of dignity and freedom. All organs of State are accountable for these qualities. When the Department therefore says that this is not the correct way, what is the correct way then? This is the correct way. We need to add a sentence into the Act that has not been there; perhaps it was left out deliberately to frustrate poor black South Africans.

She asked for clarity from the Department of Health on what they consider to be ‘appropriate'. She noted how disappointed she was by the Department on this matter.

Dr Thembekwayo said that Ms Chirwa is a Member of Parliament and has a right to say what she says.

The Chairperson warned Dr Thembekwayo that she was starting something she should not and reminded her that he was the Chairperson of this meeting.

The Chairperson passed over to Dr Dyantyi.

Dr P Dyantyi (ANC) thanked the Department for the presentation. It is unfortunate that the Committee must fight amongst each other. They must maintain the decorum of the House of Parliament, be honourable, and respect each other, regardless of age. Turning to the points raised by the Department, she believed they had raised important points, especially on the financial implications of the Amendment Bill. The lack of human resources was also important. This is a global shortage, and the pandemic exposed us to this. The Amendment Bill would not assist in the global shortage of human resources. The Department says that it is doing all that it can. She had visited a clinic, and could not imagine that a 24-hour service could be possible in that particular structure. The Department is not running away from incremental improvement, but resources must be considered in order to create a 24-hour clinic.

We all care about South Africans, and we know how people are suffering, especially poor black people, but we must look at the costs first before the Bill can be considered. It would be reckless to do otherwise, and we should engage with the Department on this. The costing should be done incrementally. Not all clinics can be 24 hours. It is true that in hospitals, you do not take cases after 4pm because of the same shortages, so how can clinics in the rural areas cater for these patients. We must first look at what is happening in real life and improve on those things. She was not saying that the Bill is not important as they have been saying for a long time that they must improve.

Ms S Gwarube (DA) said it was not necessary for her to comment on the substance of the discussion as her colleagues had covered this, but it would be amiss not to express disappointment at the behaviour of the Committee in this meeting. First, we are all colleagues and we have to afford each other the respect you would a colleague, age and gender have no place in a place of work. There are no elders at work. We have to all be collegial at work. Secondly, she was appalled by the amount of political jostling in this meeting. We are a team. We cannot keep talking about how the ANC has done this and the EFF has done that. We are a team of legislators. We have to do our work and engage with the substance of the legislation. If we are here to praise our parties, we should leave. She pleaded with the Chair that the Committee must understand its role is to make laws that impact all South Africans, and not be political or divisive. She was embarrassed by how this meeting has been conducted today.

Mr T Munyai (ANC) mentioned how Members of Parliament do not represent their own seat; they represent their own political party, so those parties should be at the centre of the debate. He welcomed the Department’s input, which he believed had been very scientific and informative. He said it is a fact that certain political parties have copied the ANC’s manifesto.

The Chair pleaded that the Committee Member does not go into this preamble. He asked that Members make their input rather than provoke problems.

Mr Munyai continued by claiming that the proposal was put forward by the ANC in 2011. The National Health Act is a major comprehensive legislation and they cannot amend it in a piecemeal way. They have to be really scientific and clear in their planning and cannot just bring in extra legislation.

In Mr Munyai’s view, in the current financial climate, we cannot afford the proposed legislation, due to the limitations put forward by the Department. The Bill in the current conjuncture is therefore not desirable.

Ms Chirwa raised a point of order, stating that she wanted it on record that even the NHI is unaffordable.

The Chairperson noted that Ms Chirwa’s point was not a point of order.

Mr Munyai continued that the problem we have is one of separate systems for the rich and for the poor. The NHI seeks to address this inequality. What they give us as a resource is very important. The National Health Amendment Bill is not desirable, and should be taken off the table.

The Chairperson explained how this Amendment Bill had come to the Committee, and wanted to give credit to Dr Thembekwayo for bringing this Bill. He outlined how this Bill had come to the Fifth Parliament Portfolio Committee, before the NHI Bill did. This Amendment Bill is now before this Committee, he could not remember how that had come to be, but it may have been possible that Dr Thembekwayo could not have foreseen both Bills being amended at the same time when she brought this particular amendment.

The Chairperson noted that the Department’s presentation had shown some provinces were doing well such as Limpopo and KZN. They are mainly rural clinics. He would like to see improvement in the Northern and Eastern Cape. We need to speed up. Universal healthcare coverage will be closer to realisation if services are improved everywhere, even in the rural areas.

The Chairperson said his third and last point is that the best and well-resourced areas, i.e. Johannesburg, Cape Town and Durban, have never prioritised the 24-hour service, because those were run by metros. From time immemorial we have never had 24-hour clinic coverage, it has only been hospitals. There are few who are running 24-hour services. This process is slow, and he asked the Department to accelerate. It is not on for the Eastern and Northern Cape to be in their current position.

Department of Health response
Ms Aneliswa Cele, Department of Health, wanted to start by highlighting that they do have facilities that are running 24 hours, and that the facilities they are currently creating do include 24-hour clinics as part of the end goal in the infrastructure, design and building. All new facilities are built so that 24 hours services will be possible in future. She acknowledged there are some areas that require amendment of the National Health Act. DoH is approaching this in a comprehensive way. When they bring in the amendments to the National Health Act, they will have incorporated all of the areas that need to be amended. They might have been slow in implementing the 24-hour clinics but if there are requests coming on board, they do look at those requests and they acknowledge the comments from the Chair that they must accelerate this matter. She recognised there is homework for Department to look at the questions raised.

Mr Morewane added how they are making a commitment to progressively improve, as required under the Constitution. He mentioned this commitment because this is from where their processes come. When they started working on implementing 24-hour clinics, there were not many running. As they build new clinics, they are also trying to balance this by improving the older ones.

Mr Morewane said he did not want to use their commitment to progressive realisation as an excuse, but to note that these are the hard realities. In conclusion, he noted that they have taken on board this homework, and they will make good on their commitment, and really listen.

Mr Morewane asked if the Department’s legal officer could speak to the Bill briefly.

Ms Micro Moabelo, DoH Director: Legal Services, noted from a legal point of view the most important aspect is that the legislation is not an appropriate vehicle to achieve the 24-hour clinics. This is why they will not support the Bill.

The Chairperson noted that the Parliament Legal Team had been invited to listen to this meeting, and a further third meeting will be called to deal with its response. We will leave the matter for now as he wanted to move onto another point. The legal team will prepare a report for two weeks’ time.

NHI Bill: way forward
The Chairperson said Ms Gwarube had raised a question in the previous meeting on how we handle a submission on the NHI Bill if there are 40 others supporting that submission. He has been engaging the administrators dealing with the submissions and they had not completed their consultations on this. How do we treat one comprehensive submission, which was supported by 40 others? Is it one submission or one plus 40? However, the Committee will welcome that report on the submissions once it is submitted to us.

Ms Gwarube thanked the Chair for raising this point again. The reason this is important is that there is a convention on petitions, often submitted to a portfolio or petitions committee. This idea is often encouraged in terms of parliament. She hopes that when the administrators make this call, they will look holistically at how to enhance public participation when we allow people to submit petitions in Parliament. The Committee can wait to hear from them. They can also engage Parliament Legal Services to err on the right side of law.

The Chairperson thanked Ms Gwarube for clarifying this point. He had had an engagement with the House Chair yesterday and discussed where they are with the NHI Bill and how it has not moved out of the Portfolio Committee’s hands yet. The House Chair’s advice was that this Committee make an appeal to devote more time to process this quickly. They could use the majority of Wednesday meetings to take this process forward. He is even willing to provide support to make Tuesdays and Thursdays available for this process. The Secretary will prepare a stakeholder hearings programme. The Chair also agreed that this process can be done virtually and they do not need to bring presenters to Cape Town. The Chairperson asked the Committee for feedback on this suggested programme.

Ms Gwarube thanked the Chair for the feedback from his meeting with the House Chair. She thought it was important to recall how they had initially mapped out the process. The first priority before oral submissions from organisations was to wrap up the reports from the provincial hearings.

The Chair briefly interrupted Ms Gwarube as he forgot to address this point. He had received a 78-page report last night, prepared by parliamentary staff on the provincial hearings. He suggested that they consider this report over two days. The parliamentary staff will send this report to Committee members to assess.

Ms Gwarube noted how they have to tread carefully with committee programming and plenary sittings. She was glad that the Chair of Chairs is in support of prioritising this work, but they have to be mindful as they have to be in their constituencies on Mondays and Fridays. Even if leadership is in support, these discussions must be had with their party whips - Members may even have to miss some meetings.

Dr Dyantyi proposed that they start next week with the 78-page provincial hearings report. She agreed that they cannot consider all nine provinces in one day. Her second concern was about the stakeholder hearings that will be starting soon. She requested that the finalised programme include agreed-upon days. Members have to be flexible, and be able to talk to their party whips, to allow them a Friday or another session, so the Committee can cover a lot of work.

Ms Wilson said this decision on how to move forward with the programme cannot simply be done in a meeting with the Chair of Chairs. Parliament is entering one of its busiest periods, with a lot of voting, which requires them to be in the House. While she wants this process to be covered, it cannot be at the expense of everything else. This is not a discussion to be held without the involvement of their party whips, especially in light of the work over next few months.

Mr Munyai thanked the Chairperson for this feedback. Ideally, it is very important to start with the conclusion of stakeholder submissions. The Portfolio Committee should present a programme with dates. He asked for assurance about when the Committee will meet. He noted that Mondays and Tuesdays are their constituency period, so he would appreciate other days, that does not affect other parties.

The Chairperson noted that his discussion with the House Chair the previous day had not been conclusive, but only a starting point for these discussions. Mondays and Fridays were difficult due to Members being in their constituencies and travelling at those times. Some Committees sit on Tuesdays and this will be open for comment. He agreed that they should finish a particular process while waiting for other components to come in. He reminded the Committee of the Wednesday 28 October meeting to consider the provincial public hearings report.

The Chairperson re-emphasised the need for the Committee to treat each other with collegiality and respect. It is important to work as a team and to express views in a cordial manner.

Meeting adjourned.


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