Health Professions Amendment Bill [B10-2006]: deliberations & finalisation

HEALTH PORTFOLIO COMMITTEE
15 August 2006
HEALTH PROFESSIONS AMENDMENT BILL [B10-2006]: DELIBERATIONS & FINALISATION

Acting Chairperson: Ms M Malumise (ANC)

Documents handed out:
Submission by the Health Professions Council of South Africa
Submission by J Mkhasibe
Submission by Pharmaceutical Society of SA
Submission by South African Society of Physiotherapy
Submission by the South African Dental Association

SUMMARY
The Committee considered written submissions on the Bill. The submissions by and large objected to the extensive powers given to the Minister of Health to appoint member of the Council. It was submitted that the professional boards should be allowed to elect any of their members to represent them on the council. The Committee felt that it was important to transform statutory health council so as to ensure the protection of the public and respresentivity of the demographics of the country. The DA supported the proposal that professional boards should be allowed to appoint persons to represent them on the Council The boards had a right to appoint such a person and such a right should override the issue of representivity. The HPCSA and the Department were of the view that each board should be represented. One of the main objectives of the Council was to protect the interests of the public and not the professionals. The Council was not an association of professionals.

Reference to international trends should be dispelled. There were a number of examples internationally where the issue of the constitutions of the councils was the exclusive preserve of the Minister. In certain instances councils were within the Department of Health and were as part of the Department. The duty of protecting the public rested with the government. The agencies that were created were intended to further the aims of protecting the public and assisting the government in executing its task. There was no individual who could protect the public. The State protected the public through certain agencies or structures and in our case the agency was the HPCSA.

The Bill was very lenient in allowing a democratic process of nomination to happen. This process did not happen in some jurisdictions and the ultimate authority simply appointed people to the agency. The country had seen the harm that had been done when professionals began to club and protect their own interests as if they were an association. The Councils were not associations but regulatory bodies aimed at protecting and advancing the interests of the public. The extent to which the individual would protect and advance the interest of the professions was paramount in the constitution of the Council. There should be no concerns if people move from the premise that the councils were there to protect the interests of the public.

MINUTES
Mr M Motsapi (Legal Services) and Ms R Mdlalose (Human Resources) represented the Department. Adv H Sangoni appeared on behalf of the State Law Advisor. The Chairperson welcomed everybody to the meeting. She said that the Committee should proceed to deal with the Bill clause by clause.

Ms R Mashego (ANC) asked if the Committee was not supposed to deal with the written submissions it had received on the Bill. There were three submissions that the Committee had not dealt with.

Adv B Mkhize, Adv T Boikanyo and Mr J Makgolane (all from Legal Services) appeared on behalf of the HPCSA. Adv. Mkhize said that the HPCSA had already made an oral submission and had responded to some of the submissions made by other bodies. The delegation had attended this meeting so that it could assist the Committee in dealing with the written submissions.

Submission by J Mkhasibe
The Chairperson read the whole submission for the Committee and asked members to comment on it.

Ms M Matsemela (ANC) said that J Mkhasibe seemed to agree with the Bill. The Bill should protect the interest of the public and ensure delivery of quality health care. It was aimed at transforming the Health Professions Council so as to increase protection in the interest of the public. The only important part of the submission dealt with the reduction of training for doctors and training. She asked the Department to deal with the issue of the reduction of the period of training.

Ms Mdlalose replied that there had been a reduction of the period from six or seven years to five years for doctors. Three medical schools were already implementing the reduction. There were three categories in relation to the training of nurses: 1 year, 2 years and a four-year programme. The submission might be more concerned with the four-year programme and the Department was already investigating possible changes to this programme.

Ms Mashigo (ANC) noted that Mkhasibe had not seen the amendments but had nonetheless made the submission. She asked how relevant the submission was to the amendments.

Adv. Mkhize replied that the submission was irrelevant in the context of the Bill. The submission raised issues of concern in broad terms around the revision and transformation of the educational system. Such issues could not find application necessarily through the Bill. The revision of the training could not be addressed in terms of the Bill. There were other mechanisms or process that were being instituted to look at the transformation of the educational system. An example could be made of the institution of the mid-level health worker cadres aimed at ensuring increased access to the profession. Educational institutions operated under a different paradigm in terms of their own pieces of legislation. They were deemed to be autonomous in their own right. They were regulated by legislation that fell under the Department of Education. The Committee could not pronounce upon such issues. The submission was not of value or any help for the purposes of the Bill.

Ms M Manana (ANC) suggested that the Committee should not deliberate on the submission but simply send a Bill to Mkhasibe so that he/she could familiarise him/herself with it. Mr G Morgan (DA) agreed.

Submission by Pharmaceutical Society of South Africa (PSSA)
The Chairperson said that the main concern of the submission was on the appointment of members of the profession to the Council.

Mr Morgan said that the submission was in line with the oral submission of the South African Medical Association (SAMA) and the South African Society of Physiotherapy. It had highlighted the powers given to the Minister and most associations that had made submissions were concerned about such powers. He believed that the professional boards should have the right to appoint their own members to the Council.

Mr Matsemela said that the Committee had asked why SAMA had a feeling that the nomination process would no longer be democratic. There had been an extensive clarification of the issue.

Submission by South African Society of Physiotherapy
The Chairperson read the submission for the Committee.

Clause 6 Amendment of section 5 of Act 56 of 1974
Mr Morgan said that it would be better to further engage on the submission when the Committee deliberates on the individual clauses. The submission reflected on two critical issues: who would do the election and the number of people of the Council. He said that there was some tentative agreement that it might be sensible to make the Bill more specific and allow for a representation from each professional board. The AIDS Law Project had done an analysis based on the number of allowed positions and concluded that it was possible that some boards might be excluded. The Bill did not intend to exclude any board. During the last meeting the Chairperson had also agreed that the Bill should ensure that each board was represented.

Mr A Madella (ANC) said that clause 16 dealt with the issue of representivity. The submission agreed with the reduction of embers from 25 to 16 but wanted representation for each professional board.

Adv. Mkhize agreed that there was a tentative agreement on the issue of representivity. The HPCSA and the Department were of the view that each board should be represented. He concurred with the proposition made in this regard.

Clause 13 Amendment of section 15 of Act 56 of 1974
The Chairperson said that the submission was that the appointment of the members of a professional board should be done by the "election Committee as established by the relevant professional board".

Adv. Mkhize said that the submission was similar to submission by other bodies to the effect that powers of appointment should not be vested on the Minister. The proposal was that there should be an election process by the professions themselves.

Submission by the South African Dental Association (SADA)
The Chairperson read the submission for the Committee.

Definitions
SADA submitted that the definition of "impairment" was restrictive and should include people performing community service and students who were not necessarily considered as practitioners in the strict sense of the word.

Adv. Mkhize said that people performing community service and students were not excluded from the current definition.

Clause 3 Amendment of section 3 (paragraphs (j)-(q)
The Chairperson said that SADA had submitted that there was little or no provision made for the service and protection of the health professionals where it was required. All the provisions were aimed at members of the public and holding practitioners accountable. No provision was made in relation to holding members of the public accountable.

Mr Motsapi replied that one of the main objectives of the Council was to protect the interests of the public and not the professionals. The Council was not an association of professionals.

Clause 5 Amendment of section 4 of Act 56 of 1974
The Chairperson said that SADA had submitted that clause 5(a) should provided that the Minister should act "in consultation" and not "after consultation" with the relevant professional board.

Adv. Mkhize said that the issue of the determination of policy was addressed in the last meeting. The question was who was the repository of power in terms of policy determination. The conclusion that was reached was that the Minister was the repository of the authority to determine policy. The Forum of Statutory Health Councils had endorsed this conclusion. It was agreed that the Minister determined policy and that professional councils were there to support the Minister in executing her responsibilities and functions. The feeling was that it should not be "in consultation" but "after consultation" so that the Minister could retain the authority to make the determinations. The Minister was publicly elected and was a public representative. He disagreed with the proposal.

Ms Matsemela said that this issue was clarified in the last meeting. She wondered why people tended to be so curious whenever the Minister was involved. She wondered what would happen if Ministers were not allowed to intervene in the regulation of certain issues. South Africa was trying to transform the boards and councils so that the public could be served accordingly. She wondered if there was anything wrong with empowering the Minister.

Ms N Mathibela (ANC) could not understand why SADA was worried because it would be allowed to make nominations.

Mr Morgan said that the submission raised a very complex issue. One could not hold the Minister to ransom and "after consultation" was fairly adequate since there were other recourses. The Minister would be required to comply with the Promotion of Administrative Justice Act. The concern was the effect of the combination of "after consultation" and the way of electing people to the Council.

Mr Matsemela said that a democratic process of nominating people would be followed and the Minister would then do what she was empowered to do.

Adv Mkhize said that there was reference to international trends. Such reference should be dispelled. There were a number of examples internationally where the issue of the constitutions of the councils was the exclusive preserve of the Minister. In certain instances councils were within the Department of Health and were as part of the Department. The duty of protecting the public rested with the government. The agencies that were created were intended to further the aims of protecting the public and assisting the government in executing its task. There was no individual who could protect the public. The State protected the public through certain agencies or structures and in our case the agency was the HPCSA.

He said that the Bill was very lenient in allowing a democratic process of nomination to happen. This process did not happen in some jurisdictions and the ultimate authority simply appointed people to the agency. Some jurisdictions even went to the extent of appointing the President or Chairperson of the agency. In this instance there would be nominations. There were parallels with regard to other structures that were in existence. He gave the Medicines Control Council as an example. Such structures operated on the basis of nominations and nobody had ever cried foul with regard to those issues because the principles of democracy were observed in the process. It was indicated that if one was to go in accordance with the process of election, one would have to wait another 50 or 100 years before having the demographic profile of the Council right. The nature of the profile of the professions was such that there was a pre-eminence and predominance of white males. One would perpetuate the status quo if the election process were followed. There would be continued lack of sensitivity to a host of issues. It was very wise and prudent to go the route of nominations and appointment by the Minister because this would ensure the necessary balance in terms of gender and race.

Mr Motsapi said that the Council would be approached to discuss whatever the Minister wanted to implement. The Council would have an opportunity to make inputs or comments on whatever policy the Minister wanted to implement. The Minister should not be held ransom to whatever the Council might want to object in relation polices that the Minister might want to implement. It was not simply a matter of giving carte blanche powers in relation to policies.

Clause 6 Amendment of section 5 of Act 56 of 1974
SADA submitted that in view of the fact that the Council received no subsidies or grants from government, the right of the Minister to appoint representatives was an abuse of power in an open and democratic society. It meant that the Minister could effectively appoint persons who were totally unsuited to represent the professions.

Mr Matsemela said that the Constitution envisaged the establishment of a non-sexist, non-racial society. Mr Mkhize had tried to explain issues around the demographic of the country.

Mr Morgan said that there was a point in the submission. The ability to appoint representatives was very crucial. One was moving to a situation where in every person in the Council would be chosen by the Minister. The Minister would be able to appoint people employed the Department, people registered in terms of this Act and people from the Ministry of Defence. There were already too many positions or people that the Minister or government could appoint. He could not see any reason why the democratic right of the profession to choose their representatives should not override representivity.

Adv Mkhize said that the process started when Minister constituted a Task Team to look at the transformation of statutory health councils. The HPSA did not exist to protect the interests of its members but those of the public. People would be appointed to the Council to protect the interests of the public and not to serve their own interests. The Council should be autonomous and objective. The country had seen the harm that had been done when professionals began to club and protect their own interests as if they were an association. The Councils were not associations but regulatory bodies aimed at protecting and advancing the interests of the public. The extent to which the individual would protect and advance the interest of the professions was paramount in the constitution of the Council. There should be no concerns if people move from premise that the councils were there to protect the interests of the public.

Mr Morgan said that the Minister did not have some special powers to get into a person’s head and establish that person would protect the public better than a person appointed by a professional board. One could not assume that every health profession would try and serve their own interests.

Mr Madella said that the Committee should remember and appreciate the past. The HPCSA had pointed out that the process started long time ago. The size of the Council had been reduced and the major part of reduction was related to the Minister’s power to appoint people to the Council without any consultation. The whole process was about nominations. The Minister would be informed by nominations from the Council before making any appointment. Each council should be represented. The submission seemed to be mainly objecting to the fact that there would be nine community representatives who might not be from the professions. Members of the public should form part of the Council if the aim was to protect the public. The Bill was amending an existing Act that had been in existence for a very long time. He said he had never heard any person from any party protesting against the Act. The government had the obligation to realign and transform legislation and no apologies should be made in this regard.

Ms Matsemela said that the submission was saying that the Minister could appoint unsuited people. She wondered if the profession would nominate unsuitable person because the Minister will make appointments based on the nominations. She wondered how the SADA could undermine the Minister in such a manner. The Minister was a doctor herself.

Ms Mdlalose said that the Task Team started its work in 2001 and produced a report in 2003. There was a very conscious effort to transform statutory councils and make them more efficient. All other measures had not succeeded. The Minister would not willy-nilly appoint people to the Council. There were structures within government that assisted the Minister in reaching a particular decision. Such structures included the legal section of the Department, State Law Advisors, the professions and the HPCSA.

Mr Morgan said that the last statement by Ms Mdlalose was irrelevant. He agreed that the Minister had advisors but the fact of the matter was that the power was vested in the Minister. The Minister could consult all she wanted and come up with the best decision. The problem was more philosophical. Why should the legislature give so much power to an individual? Hypothetically, what would happen if the government was swept out of power by some other party and that would abuse those powers? The legislature could not automatically assume that a Minister could automatically act in the best interests of public. The legislature was making law for the future. He got a sense that people were defending a particular Minister. The Minister already had so much power in terms of the appointment of people and there was nothing wrong with allowing certain organisations to choose their own people.

Clause 21 Insertion of section 19A
SADA had submitted that the suspension of practitioners for failure to pay prescribed annual fees should be reviewed considering the problems had practitioners faced over the years in not receiving their renewal notices on times and payment problems experienced due to computer errors at the Council. It was also submitted that the removal of names from the register should the letter by the Registrar be returned "unclaimed" was untenable given the nature of the postal services. Additional efforts should be made before such a drastic action was taken.

Mr Morgan said that the removal of names seemed to be a draconian measure given that the postal service could at times be unreliable. There should be another attempt to deliver the letter before any measure was taken. He asked the HPCSA if the provision in relation to unclaimed letters was really necessary.

Adv Mkhize said that the clause was important given that practitioner often changed their sites of practice without informing the Council. This created problems when the Council had to start tracing them whenever there was a complaint laid or when there were issues surrounding a practitioner that had to be investigated. There was an obligation placed on practitioners to indicate a change an address within a particular period. It would be assumed that there had been due service should a letter be sent via registered mail and return unclaimed. The practitioner would be deemed to have decided not to update his or her details and the Council would then take appropriate steps. The clause was also important for legal processes relating to renewal payments. A practitioner might claim that he had not received the renewal notice. The unclaimed letter would serve as evidence to the fact that a renewal notice was sent and returned unclaimed.

Mr M Sibuyana (IFP) wondered if it was not better to send two letters before taking such a drastic measure. There might be many reasons why the person had not received the letter.

Mr Morgan said that the intent was good but the problem was in relation to the mistakes that could be made by the South African Postal Services. There could be some undesirable effects.

Adv Mkhize said that the clause did not necessarily preclude the sending of two or more letters. The operative phrase in the clause was the "period of three months". Two or more letters could be sent within that period. The Council could also make telephone calls to practitioners urging them to update their details. It would cover all the basics before taking any measures. It was not necessary to cover all administrative processes in the Bill.

Mr Sibuyana said that a practitioner might become incapacitated for more than three months.

Mr Motsapi said that the Bill did not refer to the erasure of the details from the register but to a suspension.

Adv Mkhize said that the submission was premised on a presupposition that the Minister was unaccountable, irresponsible and incompetent to exercise her mind appropriately. There were submissions that were contemptuous of the office of the Minister and not necessarily the person herself. Some submissions wanted to elevate the Council to the position of the Minister. The two could not be on an equal footing. The Minister was not empowered to establish professional conduct committees as alleged by some submissions. In terms of the current Act the appointment of the registrar was done with the approval of the Minister. There was an assumption that the Minister would abuse her powers. The Minister operated within a constitutional framework and there were processes of review that could be followed. There was no way that the Minister could abuse her powers or authority in the manner suggested in the submission. The whole tone of the submission was unfortunate.

Deliberations on the Bill
Clause 1
"accredit"
A Member of the Committee said that there was a submission that the word "prescribed" should be deleted.

Adv. Mkhize said that definition should not be amended.

”impairment”
Mr Madella had reservations with the word "impairment". It was not an acceptable term to describe anyone’s disability. He was also concerned that clause 1(a) referred to the "Ciskeian Medical Council". He wondered if such a structure still existed under the new dispensation.

Mr Motsapi said that reference to the Ciskeian Medical Council did not necessarily mean that the Council was still in existence. The definition of the "Ciskeian Medical Council" was deleted in 1997. It was just a matter of drafting style.

Adv. Mkhize replied that the Ciskeian Medical Council existed in the past. There was an integration of structures during the transformation process. The HPCSA took over the functions of that Council. The only reason for still referring to the Council was to deal with all issues that might have emanated at the time of that Council.

Ms Manana said that the definition was no longer contained in the principal Act and there was no longer any need to refer to it.

Adv. Mkhize said that section 1 of the principals still reflected the definition but indicated that it had been deleted. The Bill referred to the Ciskeian Medial Council so that members could see where the insertion would take place and not to resurrect it. It would not make any harm to delete reference from to the “Ciskeian Medical Council”.

With regard to the definition of “impairment”, he wondered if the Committee could provide an appropriate word to cover the situation that the definition sought to define.

Mr Madella said that the word was that was commonly used was “incapacity”.

Ms Mdlalose said that the word had been used for some time in different legislation. The intention was to avoid referring to problems like drug addition. Incapacity was not really a disablement as such but looked at inability to pass sound judgement.

The definition of “impairment” was flagged for further discussion.

Adv. Mkhize suggested that reference to "intern psychologist" and "medical practitioner" should be deleted and substituted by a generic definition of a "health practitioner". This was to ensure that no single profession was singled out in the Act. A health practitioner would mean any person including a student registered with the Council in a profession that could be registered in terms of the Act. Mr Madella supported the proposal.

He said that the Bill should also contain a definition of a community representative. A community representative would mean a person appointed by the Minister or any other person appointed to serve in the structures of the Council or professional boards who was not registered in any of the professions under the Act. The definition was important because the Bill would refer to a community representative.

Mr Motsapi said that section 5(1)(d) of the Health Professions Act referred to "nine persons registered in terms of the Act appointed by the Minister". The submission was that the nine persons should be community representatives and the community representatives would not be registered in terms of the Act. The words "appointed by the Minister" would be deleted from the section because every body would be appointed by the Minister. Section 5(1)(g) referred to two persons appointed by the Committee of Technikon Principals. The representatives of the Technikon Principals would be absorbed into the South African University Vice Chancellors Association because there were not more Technikons. Paragraph (h) would be deleted because community representatives would be covered in paragraph (d). He proposed that the amendments should be reflected in the Bill.

Clause 3
"objects and functions of council"
Mr Madella said that the word "objective" was more correct than “objects”.

Ms Manana said that the Committee should follow the manner in which other legislation had been drafted. Mr Madella maintained that ‘objective’ was more appropriate.

Mr Madella said that the AIDS Law Project had submitted that clause 3(m) should read "to uphold, enforce and maintain".

Mr Motsapi was of the view that to uphold included to enforce.

Mr Madella asked if it would do any harm if reference was made to enforcement.

Adv Mkhize replied that it would sound tautologous and redundant.

Clause 6 Amendment of section 5 of Act 56 of 1974
Mr Morgan noted that clause 6(a) would reduce the number of persons designated by professional boards from 25 to 16. He said that one of the problems was the attendance of meetings but wondered if there was a real need to reduce the number from 25 to 16. Making it 25 would ensure greater representivity.

Ms Mdlalose replied that the decision was taken to reduce the number give the manner in which elections would be made in terms of the Bill.

Clause 7 Amendment of section 6 of Act 56 of 1974
Ms Mashego said that there was a submission that mental illness should be defined.

Adv. Mkhize replied that it was not necessary to define mental illness in the Bill because it was addressed in some other legislation.

Clause 8 Amendment of section 7 of Act 56 of 1974
Ms Matsemela asked if the word “number” in clause 8(b) was not supposed to be “member”.

Mr Motsapi replied that "number" was correct and this was how legislation was drafted. Adv Sangoni agreed.

Ms Matsemela asked if any member of the council, including community representatives, could act as a President of the Council in terms of clause 8(b). The Department agreed.

Clause 10 Amendment of clause 10 of Act 56 of 1974
Ms Mashego said that there was a suggestion that the words “which member shall not be a registered person” in clause 10(b) should be retained.

Mr Motsapi replied that it was agreed that community representatives would not be registered in terms of the Act. This would make words “which member shall not be a registered person” superfluous.

Clause 13 Amendment of section 15 of Act 56 of 1974
Mr Morgan said that clause 13(c) should refer to the appointment of members of a professional board by the profession and not the Minister.

Ms Manana said that the Minister would appoint persons on the basis of nominations made by the members of the professions concerned. Mr Madella agreed.

Mr Morgan asked if all rejected amendments were recorded in the Committee's report.

Ms Matsemela asked if Mr Morgan was referring to his proposal to in relation to clause 13 or all amendments.

Mr Morgan said that he could see no reasons why amendments proposed by any member of the Committee should not be recorded. He had the right to suggest an amendment and the Committee had the right to turn it down.

Ms Manana said that there was no problem with the fact that Mr Morgan was not comfortable with the provision. The majority of Members agreed with the clause without any amendment.

Ms Matsemela suggested that the issue be flagged for further discussion next week.

Mr Madella reminded Mr Morgan that the Committee would look at the Bill clause by clause next week. Members would be free to revisit any clause with which they did not agree.

The Acting Chairperson said that all amendments would be considered. The Department still had to go and rewrite some of the clauses.

Mr Madella said that the HPCSA had made a submission in relation to clause 13(e). He endorsed the submission. The suggestion was that there should be three board members and at least two community representatives one of whom would be the Chairperson of the Committee. The Committee agreed with the proposal.

Clause 17 Amendment of section 16
Mr Madella said that the HPCSA had submitted that the word “prescribe” should be substituted by “impose” in clause 17(d). He asked for a motivation of the proposal.

Adv. Mkhize replied that the first port of call was to give an opportunity for remediation action whenever there were deviations from acceptable standards in educational institutions. The remediation came in the form of the HPCSA imposing conditions that should be complied with before one could say that persons who had come out of the institutions were worthy of registration by the HPCSA. Prescribing conditions would entail making regulations to ensure that there was compliance. The academic year was limited in time and the HPCSA might not be able to effect the conditions in time to ensure immediate compliance.

Mr Madella agreed with the proposal.

The meeting was adjourned.