COMMENTS – HEALTH PROFESSIONS AMENDMENT BILL, 2006
We refer to calls for written submissions and your willingness this morning to refer this submission to the Portfolio Committee for its hearings on 1 and 2 August 2006.
Introduction The South African Dental Association [SADA] is a professional association for dentists in South Africa and welcomes the opportunity to comment on the above Bill.
This submission has not been ratified by the Executive Committee of SADA due to restricted time lines for submitting comment and your willingness to accept this submission at this stage. The Bill was not published in the Government Gazette calling for public comment though the Explanatory Notes to the Bill were published.
SADA supports all measures aimed protecting public health and public interest. However, we must express our concern about the extraordinary powers given to the Minister in the proposed Bill. We also believe certain amendments proposed will not contribute positively to the objectives of the Act and may compromise public interests and may lead to challenges to the Bill once promulgated.
Although the Explanatory Notes outlined accentuating the provisions of the Medicine and Related Substances Act, 1965 relating to compounding and dispensing of medicines and a prohibition of keeping an open shop or pharmacy, no amendments appears in this regard in the Bill.
General Comments on the Objectives contained in the Explanatory Notes to the Bill
Objects and Functions of Council It is noted that the primary accountability of the Health Professions Council is to the public and their role is to protect public interest and not the interests of the health professions governed by the Council.
We believe that the function of the Council should not be unilateral and single minded only. The function of Council should be dual fold i.e. while the primary role of the Council should be to protect the public, this cannot be accomplished without ensuring that the interests of the health professions are given the same consideration.
Reduction in number of Council members
While we do not object to the reduction in the size of Council we note with concern there is no corresponding reduction in the number of appointed members on the Council.
It is also not clear if the reduction in the Council has taken into account the responsibility that the Council carries and whether this can be fulfilled by reduced representation by Professional Boards. It may also result in smaller Boards having greater representation although their constituents are much smaller than some of the other Professions Boards.
We support some of the amendments which move the power from the Council to the Professions Boards. This will enable these Boards to deal directly with issues affecting its members.
However, the constitution of the Professions Boards is of concern when one considers the powers afforded to the Minister to select or appoint members of the Professions Boards which may translate into "Minister appointed" professional boards gaining more power. This is a proliferation of power that contradicts the reasons for introducing amendments in the first place.
Empowering Minister to Appoint members of Boards based on Nominations Presently, the majority of the members of the Professions Boards had to elected by the members of the professions themselves. The Bill now proposes appointment of members to the Boards by the Minister based on nominations made by the members of the health professions.
We believe this will constitute an abuse of government power and its constitutionality must be questioned as the "appointment process" is unlikely to be transparent and thus contrary to democratic principles.
The new provisions deny health professions of their democratic right to nominate and elect their representatives to the various Boards. In this manner, it diminishes the right of the professions to participate in the regulation of their own professions and contrary to the provisions of the Constitution.
It is important to ensure that a balance exists between membership of the Council and the various Boards to ensure legitimacy and credibility of persons so elected to serve both the profession and the public.
The Bill does not allow the operation of Statutory Councils in a manner that will allow a certain level of impartiality outside Government. It is not desirable for Government to exert extraordinary influence over statutory councils.
By replacing the election system with appointments by the Minister, the majority control of the Council is given to government, with no autonomy to the professions to govern themselves.
The maintenance of professional standards in health care can only be done by the professions and professionals elected by their peers must be allowed to carry out their mandate without undue government interference.
International trends show that statutory councils and regulatory authorities favour members being elected rather than nominated by the Department of Health or the government.
In South Africa other statutory councils like those governing the attorneys’ profession demonstrate support for the election of members by members of their society with no undue influence from the Ministry.
It is recommended that the members of the health professions be allowed to elect their representatives in an open and democratic process. This argument would be completely untenable in respect of the South African national elections and clearly the number of persons voting cannot be justification for denying members their democratic right.
One must reject with contempt the argument that the costs of the election process justify elimination of the election mechanism and substitution with an appointment process. After all the costs are borne by the practitioners themselves.
Empowering Minister to regulate unprofessional conduct
This is again unnecessary abuse of state authority and the introduction of sub-section 15[5][A] allows the Minister to establish professional conduct committees.
The Minister is empowered to select and appoint members of these committees. Therefore practitioners being judged by their "peers" and the "peer review" process are compromised. The autonomy and independence of these committees must be questioned as they may serve to undermine public and professions confidence in such processes.
SADA also objects to the right of the Minister to make rules specifying acts or omissions in respect of which boards may take disciplinary action as oppose to the present position where the Council with the Board determines these rules.
Minister may make regulations "after" and not "in" consultation with Council We believe the Minister need to promulgate regulations affecting the health professions in consultation with the Council and not after such consultation. This will only reinforce the powers of the Minister and obliterate the right of Council in this process. Consensus is unlikely in the former scenario as nothing stops the Minister totally disregarding the council’s input.
Comments on specific sections of the Bill
Definitions
Impairment The definition is restrictive and must include those performing community service and students who are not necessarily considered as "practitioners" in the strict sense of the word.
Amendment of section 3 paragraphs [j] to [q] Although the HPCSA is funded entirely by the health care professions registered with the Council, little or no provision is made for the service and protection of the health professionals where it is required. All the provisions mentioned herein are aimed at members of the public and holding practitioners accountable and no provision is made about how members of the public are to be held accountable.
We believe it is equally the function of the Council to serve and protect the health professionals, act in the interests of those professionals when warranted and not only act in a punitive role against practitioners.
Amendment of section 4 For reasons mentioned above subsection 4 [c] should be amended to "in consultation".
Amendment of section 5 substituted by section 6 We object to the reduction in the proportional representation from the present 25 persons to 16 persons. We are equally concerned with and object to the removal of at least one representative from each of the Professional Boards. This could effectively mean that the smaller boards may or may not have representation and the representation of the larger Board may be skewed when one considers the power of the Minster to appoint representatives.
We are disappointed that with the corresponding reduction in nominated and elected representatives, the number of representatives the Minister is entitled to appoint has not been accordingly reduced and those provisions affording the Minister this right has not been amended.
We are concerned that the numbers of appointed representatives being 15 persons is clearly not in accordance with the open and democratic principles where appointed representatives will in all probability outnumber the elected representatives in a body which is supported by the profession. We believe this is not in accordance with the open and democratic principles in an open and just society. This is especially critical when one considers the term of office and the right of reappointment for one more term.
In view of the fact that the Council receives no subsidies or grants from Government, the right of the Minister to appoint representatives is an abuse of power in an open and democratic society. It means that the Minister could effectively appoint persons who are totally unsuited to represent those professions who make up the majority of the Council’s constituents.
Amendment of section 6 substituted by section 7
Addition of sections 3 to 6 Once again enormous powers are afforded to the Minister including requesting financial statements when the Government does not make any grants or subsidies to the Council.
In addition, it is of concern that the Minister is given the right to terminate membership of the Council without any distinction between elected and appointed members. From the reading of the provisions of new sub-section 6 [6] the Minister is given the power to terminate membership of an elected member who acts in a manner provided for in sub-sections 6 [6] [a] to [f]. Elected members must surely be replaced in the same manner they were elected and this decision must rest with the Council and not the Minister.
Many of the elected and appointed members of Council practice their occupations and professions outside of Council activities. Office bearers of professional associations that represent members’ interest surely cannot be forced to vacate their positions if they declare their interests.
Amendment of section 8
s 2[a] – Once again the Minister is given the power to call a special meeting. In addition, one third of the members may call a special meeting. This could effectively mean all the representatives appointed by the Minister may call such a meeting. Again excessive powers are afforded to the Minister and may be construed as abuse of state authority.
Amendment of section 12
12 [a] – It is noted that the right to appoint the Registrar has been taken away from the Council and this right will vest with the Minister. Once again this is an abuse of state authority. It is untenable that the professions represented on Council cannot appoint the Registrar who is responsible for running the affairs of the Council.
Amendment of section 15
Section 15 [5][a] - We reiterate our concern on the right of the Minister to appoint members on the Professional Boards as opposed to the present position where majority are elected by members of the professions involved.
Section 15 [5][g] – The substitution of the word ‘election’ by "nomination of" with regard to procedures to be followed as members of the professional board is of concern.
Amendment of section 17 We are encouraged by the insertion of subsection 5 herein making provision for any unregistered person practicing or pretending to hold registration being guilty of an offence and liable on conviction to a fine or imprisonment. Insertion of section 19A Suspension of practitioners for failure to pay prescribed annual fees must be reviewed when one considers the problems practitioners faced over the years in not receiving their renewal notices on time and payment problems experienced due to computer errors at the Council. We trust the Registrar will exercise due diligence before exercising these powers.
Removal of name from register if the letter by Registrar is returned "unclaimed" is untenable given the nature of our postal services and additional efforts need to be made before such drastic action is taken.
Amendment of section 41A The Registrar obtained approval of the chairperson of the Board before appointing an investigating officer who in turn obtains approval from the chairperson. The Bill proposes both the Registrar and officer may take independent action. It is suggested the status quo be retained.
Amendment of section 61 The Minister is now given powers to make regulations "after" consulting with Council as opposed to "in" consultation with the Council.
It is noted that many of the provisions concerned with training, education, qualifications and compliance issues will now reside with the relevant Professional Boards as opposed to Council and in some cases the Professional Boards are given powers to consider education and training issues, scopes of practice, registration requirements including registration of specialists, examinations and removal of qualifications etc. It is not clear at this stage if all the Boards are equipped to deal with these added functions.
SADA believes it has outlined some of the areas of concern to our members and requests that these concerns be addressed before promulgating the Bill.
We take this opportunity in expressing our gratitude in presenting our views in this submission and your willingness to accept same at this stage.
Yours faithfully Dr N G Campbell
CEO
