050208health

CHILDREN’S BILL AND RELATED LEGISLATION: IMPLICATIONS FOR STATE DEPARTMENTS AND OTHER INSTITUTIONS

ISSUE	LEGISLATION AND POLICIES	ROLES AND RESPONSIBILITIES	FINANCIAL IMPLICATIONS	GENERAL COMMENTS
Health
S 28 of the Constitution: Every child has the right to basic nutrition	Children’s Bill Clause 11: Rights of children – sub-clause (1)(c): Every child has the right to basic nutrition (a repetition of the right provided for in the Constitution) Other legislation/policies Regulations relating to the fortification of certain foodstuffs – Government Notice No. R7634 of 7 April 2003. Salt iodation regulation 1995 incorporated in the regulations relating to salt 16 March 2001 SA Breastfeeding guidelines for health workers Regulations relating to food stuffs for infants and young children R. 1130 of 8 June 1984. The regulations are to be amended to include the code for the marketing of breast milk substitutes Infant and young child feeding policy is being developed A Baby Friendly Hospital Initiative is being implemented to accredited hospitals in the provinces to promote and support breast feeding in hospitals Growth monitoring: The Road to Health Chart The Integrated Management of Childhood Illness Strategy addresses this in detail, including guidelines on vitamin A supplementation to children under 5 Final draft Child Health Policy (awaiting approval by Health MinMEC)	The national and provincial Departments of Health and Department of Education (through the primary school nutrition programme) are mainly responsible for the implementation of these provisions.	The national and provincial Departments of Health already provide these services. The funding of the services delivered in terms of these Acts is addressed in the expenditure framework of the Department of Health.	This matter is adequately addressed in legislation / policy pertaining to basic nutrition administered by the Department of Health. The proposed Child Health Policy will address the health issues relating to children.
S 28 of the Constitution: Every child has the right to basic health care services	Children’s Bill Clause 11: Rights of children – sub-clause (1)(c): Every child has the right to basic health care services (a repetition of the right provided for in the Constitution) Other legislation/policies National Health Act, No. 61 of 2003 Health Sector Strategic Framework for 2004 – 2009 Primary Health Care Service package School Health Service Policy and implementation guidelines Youth and Adolescents Policy Guidelines Policy Guidelines for the management and prevention of birth disorders, birth defects and disabilities The Integrated Management of Childhood Illness Strategy addresses this in detail Guidelines for Maternity Care in South Africa National Oral Health Strategy Draft Maternal and Neonatal Health Strategy Guidelines on Neonatal Health Final draft Child Health Policy (awaiting approval by Health MinMEC)	The National Health Act does not refer to children as a specific vulnerable group, mainly because it was thought that the Children’s Bill would be referring specifically to children – hence there is a gap. The National Health Act refers to a "recipient" and a "user" of *health care services.* A policy on orphans and vulnerable children is being development by the Department of Social Development in collaboration with all relevant role-players. Basic health care services are the responsibility of health authorities in all three spheres of government – national, provincial and local.	The national and provincial departments of Health are responsible for the administration of these Acts. The funding of the services delivered in terms of these Acts is addressed in the expenditure framework of the relevant departments. The provinces budget for the delivery of these services.	Basic health refers to primary health care. The proposed Child Health Policy will address the health issues relating to children. Primary health care services are free for all South African citizens. Children under the age of 6 years as well as pregnant and lactating mothers receive free health care. *Free health care is available for disabled people*.
Children with disabilities and chronic illnesses	Children’s Bill No specific provision for this in Bill Other legislation/policies Mental Health Act White Paper on an Integrated Disability Strategy (being developed by the Office of the President) Policy Guidelines for the management and prevention of birth disorders, birth defects and disabilities Primary Health Care service package School health service and implementation guideline Guidelines on the management of diabetes, epilepsy and asthma are in the final stages of development	The Department of Health is responsible for the Health issues relating to children with disabilities and chronic diseases.	The funding of services currently delivered in terms of these Acts is addressed in the expenditure framework of the Department of Health.	There is no inter-sectoral policy on children with disabilities and chronic illnesses at present. This gap requires the relevant State departments to investigate and establish inter-sectoral mechanisms to address this issue.
Information on health care	Children’s Bill Clause 13: Information on health care Other legislation/policies National Health Act, No. 61 of 2003 Primary Health Care service package Health Promoting School Strategy (under development at present) Communication Strategy (under development)	The National Health Act covers roles and responsibilities and administrative issues relating to governance and health care. The Department of Health is primarily responsible for the development and dissemination of information on health care.	The financial implications still have to be established and will form part of the costing of the Bill. The funding of services to be performed in terms of the National Health Act will be addressed in the expenditure framework of the Department of Health. Information on health care forms part of the primary health care package and is addressed in the expenditure framework of the Department of Health.	This matter should be addressed in the Department of Health regulations related to the National Health Act as well as in the Children’s Bill. Information on health care is also addressed under the Directorate: Health Promotion through the Health Promoting School Strategy and Communication Strategy.
Harmful social and cultural practices (circumcision, female genital mutilation, virginity testing)	Children’s Bill Clause 12: Harmful cultural and social practices Other legislation/policies Section 43 of the National Health Act, No. 61 of 2003 National circumcision policy and possibly legislation are under development	*It is uncertain who will be responsible for the policing of Clause 12 of the Children’s Bill.* The Department of Health is responsible for all health aspects relating to circumcision. The training of traditional surgeons on circumcision procedure is the responsibility of the Department of Health. This is an inter-sectoral responsibility.	The financial implications still have to be established and will form part of the costing of the Bill.	The overarching principles relating to harmful social and cultural practices are stipulated in the Children’s Bill.
Monitoring of circumcision, initiation schools and virginity testing	Provincial legislation exists in the Eastern Cape, Limpopo, Free State and North West. National policy, and possibly legislation on circumcision, is under development. Provincial policy guidelines exist in Gauteng. National Management Guideline for sexual assault National Sexual Assault Policy Guideline	While the provinces that promulgated legislation on circumcision will be responsible for the enforcement thereof, it is not clear how policy guidelines will be implemented. The Department of Health will be responsible for the health aspects of circumcision. The national Department of Health is to develop and have approved national regulations. The provinces have to work within the national regulations. Monitoring of circumcision, initiation schools and virginity testing is an inter-sectoral responsibility.	The financial implications are uncertain. The Department of Health is responsible for the financial implications of the development of regulations. Implementation costs are the responsibility of provincial and local government. An inter-sectoral approach is required on this issue.	Four provinces have their own legislation on circumcision at present, but the Department of Health is developing national regulations on traditional circumcision.
Reporting of children subject to abuse and deliberate neglect	Children’s Bill Clause 105: Reporting of children in need of care and protection Other legislation/policies National Policy Framework on Child Abuse (in draft form at present) Guidelines for health care providers on managing abused children (in draft form at present) Guidelines for child and adolescent mental health care (psycho-social support of children subjected to abuse and deliberate neglect)	The draft "National Policy Framework on Child Abuse" and draft "Guidelines for health care providers on managing abused children" will provide detailed information on the reporting procedures and obligations of health care providers relating to child abuse. An inter-sectoral approach is required to deal with this issue.	The financial implications still have to be established and will form part of the costing of the Bill.	The principles of reporting and protecting children should be articulated in the Children’s Bill, while the detail can be referred to in other documents e.g. the Department of Health documents referred to and the inter-sectoral strategy on child abuse.
Consent to medical treatment	Children’s Bill Clause 129: Consent to medical treatment and surgical operations Other legislation/policies Section 7 of the National Health Act, No. 61 of 2003	The National Health Act does not specifically refer to consent by children. It is therefore imperative that consent by children is dealt with in the Children’s Bill.	The financial implications still have to be established and will form part of the costing of the Bill.	The National Health Act does not focus on consent to medical treatment of children specifically. The details of consent in relation to children are clearly articulated in the Children’s Bill.
HIV/AIDS testing	Children’s Bill Clause 130: HIV testing Other legislation/policies Integrated Management of Childhood Illness Strategy Programme to prevent the transmission of HIV from mother to child National anti-retroviral treatment guidelines Paediatric guidelines for the management of HIV and AIDS	There is no reference to HIV testing and counselling specifically for children in the National Health Act or in other policies. The Integrated Management of Childhood Illness Strategy and the Programme to prevent the transmission of HIV from mother to child call for testing without providing a human rights/legislative framework within which these should occur. The Department of Health has not developed a specific framework for HIV testing in children and is therefore dependant on the Children’s Bill to articulate this within a human rights context. No reference to HIV testing of children in the National Health Act.	The financial implications still have to be established and will form part of the costing of the Bill.	The Children’s Bill needs to provide a legal framework in a human rights context on all issues relating to HIV testing and consent in children as these are not addressed in any Department of Health document.
HIV/AIDS testing of children for foster care and adoption purposes	Children’s Bill Clause 131: HIV testing for foster care or adoption purposes	The responsibility for this function resides with the Department of Social Development, as foster care and adoption are functions of that Department.	The Department of Health is responsible for the financial implications of HIV testing.	Clarification is required on the department responsible for the funding of HIV tests for foster care or adoption purposes. Children up to the age of 6 are entitled to free basic health care services, including HIV-testing, but there is uncertainty with regard to children over the age of 6. HIV testing is free of charge in the public health facilities.
Counselling before and after HIV testing	Children’s Bill Clause 132: Counselling before and after HIV testing	It is practice that no person may have testing without adequate counselling. Health care facilities have specially trained counsellors for this purpose.	This service is already being performed. No additional cost implications are foreseen.	Child-specific counselling should be articulated in the Bill.
Access to contraceptives	Children’s Bill Clause 134: Access to contraceptives Other legislation/policies Choice on Termination of Pregnancy Act, No. 92 of 1996 Youth and Adolescent policy National Contraceptive Policy Guidelines National contraceptives service delivery guideline Primary health care package	Contraceptives are distributed through health care facilities as part of the primary health care system.	The funding of services currently being delivered is addressed in the expenditure framework of the Department of Health. Contraceptive access is part of the primary health care package which is addressed within the financial framework of the Department of Health.	The Children’s Bill provides for access to contraceptives.
HIV/AIDS treatment	Other legislation/policies Strategic Plan for HIV/AIDS for 2000-2005 Programme to prevent the transmission of HIV from mother to child National anti-retroviral treatment guidelines Paediatric guidelines for the management of HIV and AIDS Paediatric palliative care guidelines Sexual Offences Amendment Bill	The Department of Health has the responsibility to determine who gets treatment; therefore this section should be worded very carefully.	The Department of Health is responsible for HIV/AIDS treatment. The funding of HIV/AIDS treatment is addressed in the expenditure framework of that department.	The Department of Health has clear guidelines on treating children infected with HIV. The Department of Health is of the opinion that the Children’s Bill needs to state the principle that children with HIV and AIDS need access to the highest attainable standard of health care, in accordance with national guidelines and medical and social criteria of antiretroviral treatment.