1.
Response to the concerns and/or comments by provincial delegates
(a)
(i)
Ad
1, note that the proviso in section 5 of the principal Act is retained.
(ii) Ad 3, it is
submitted that the Minister’s powers are not intended to be unfettered nor
discretionary. Inherent in such powers is the right of any person, in terms of
the Promotion of Administrative Justice Act, 2000, to request the High Court to
review any decision relating to the appointment of members of Council. The
appointments cannot be made in an arbitrary manner. Further, section 15(4) of
the principal Act makes provision for regulations to be made relating to the constitution
of professional boards. It must be emphasized that considering the demographics
of professionals registered in terms of the Act, it is almost impossible to
achieve proper representivity, and thus proper transformation relating to the
constitution and functioning of professional boards.
(iii) Ad 5, the
Department will be proposing to the committee to retain section 49 of the
principal Act as is, i.e. Council to retain the power to make rules relating to
offences.
(iv) Ad 7, The
Minister will appoint the Registrar after consultation with the Council. Currently, the Council appoints the Registrar
in consultation with the Minister. There
is no problem with this provision as the Registrar fulfils a critical national
duty but subject to the frameworks established by the Council. On the matter of the Registrar appointing
Investigating Officers, this is necessary in order to fulfil the requirements
of the law pertaining to the investigation of unprofessional conduct.
(v) Ad 8,
it is submitted that Council is in the main constituted by professional boards’
designated members, and any decision would therefore not be taken without the
necessary mandate of concerned professional boards. Further, annual fees are
set in rules made in terms of section 61A of the Act, and provision is made for
draft rules to be published for comment for three months.
(vi) Ad
9, This amendment expands the implementation of the existing provision to a
much broader range of procedures than those related to aneasthesiology. Again
the intention is to ensure better protection for the patient by ensuring even
more cautious conduct on the part of health practitioners.
(b)
(i) Ad 5 bullet 2, it is our intention to include
a provision in the regulation that establishes an independent panel to consider
nominations, before the Minister can appoint. Set criteria will be detailed in
such regulations to ensure that appointments follow a prescribed process and
there is no hint of arbitrariness.
(ii) Ad 5 bullet 7, section 42 lists possible sanctions in
case a professional is found guilty of professional misconduct.
(iii) Ad 5 bullet 8, see response under paragraph (i) above
and (a)(ii).
(iv) Ad 5 bullet 10, section 50 of the National Health Act,
2003 makes provision for the establishment of a Forum of Statutory Health
Professionals Councils, which will inter alia, “ensure communication and
liaison between the statutory health professional councils…, and promote inter-professional
liaison and communication between registered professions. However, it must be
noted that each profession is, or a cluster of professions are, regulated by
individual councils and in terms of individual Acts of Parliament. The
Traditional Health Practitioners Act will soon be re-processed by Parliament to
ensure compliance with the Constitution.
(c)
(i) Ad 3 bullets 1 and 7, see response under (a)(ii) and
(b)(i) above.
(ii) Ad 3 bullet 3, please see response in (a) (vi) above.
(iii) Ad 3 bullet 4, see (b)(iv) above.
(d)
(i)
Ad para 4,
amendment of section 5, note that the proviso in section 5 of the principal Act
is retained.
(ii) Ad para 4, amendment of section 15(c), see response
under (a)(ii) and (b)(i) above.
(e)
(i) Ad 9.1, it is not clear what are the issues that the
DA is raising in sections 6, 11, 13 and 52 of the Bill.
(ii)
Ad 9.2 (relating
to section 5 - reduction of designated council members from
25 to 16 is
precisely because the Council would like to promote efficiency with a leaner
but much more effective structure. All
the Boards will be represented in this structure thereby promoting transparency
and an audit of what is required in terms of Committee structures has been
undertaken. The study validates the
approach to reduce the numbers.
(iii) Ad 9.2 (relating to section 12), see response under (a)(ii) and (b)(i) above. Further
that section 2 of the Act ensures that the Council is juristic body independent
of government. The Act and the Bill do not propound for any decision of the
Council to be “approved” by the Department, except that their decisions must be
in line with national policies of the Department, e.g. on how to increase the
intake of students and the number health graduates. The Council is for all
intents and purposes an independent body. One of the primary basis for the
amendment of the Bill is to transform the functioning of the Council, mainly to
ensure that interests of the public are protected. Council’s role is not to
protect the profession as previously and erroneously perceived. Efforts to
increase awareness of how the Council works have in the immediate past years
been increased. Council and the Department will further collaborate to ensure
that health care users know their rights in terms of the National Health Act,
2003, and the processes of laying complaints within the Council itself.
(f) KwaZulu Natal
ANNEXURE “A”
PROPOSED AMENDMENTS TO THE HEALTH
PROFESSIONS AMENDMENT BILL [B10B-2006] AS PER VOTE OF THE KWA-ZULU
(1)(c) Definition of “impairment”
The definition is too restrictive and must include those
performing community service and students who are not necessarily considered as
“practitioners” in the strict sense of the word.
RESPONSE
The definition of
“health practitioner” covers all registered persons including students, interns
and community service practitioners. Reference to a practitioner in the definition
of “impairment” will therefore cover these categories as well.
CLAUSE 3
The Bill has inserted paragraphs (j) to (q) which are
rightfully aimed at upholding the interests of the members of the public and
holding practitioners accountable, however there are no provisions made about
how members of the public are held accountable.
Further, the function of the Councils must also be to serve and protect
equally the interests of the health professionals when warranted and not only
to act in a punitive manner against practitioners.
RESPONSE
The members of the public
have the benefit of protection through various pieces of legislation and
constitutional structures, which includes the courts. The HPCSA was not set up
for the purpose of holding members of the public accountable. In instances
where a member of the public could be said to be malicious in the lodging of a
complaint, there are civil remedies open to a practitioner for an appropriate
recourse. The council guides the professions as well by setting professional
standards and ethics on how to conduct their practices in rendering healthcare
services to the public. Registration with the council also serves to protect
the registered practitioners in that they are guaranteed no competition from unregistered
persons.
CLAUSE 5
Delete the
word “after” in paragraph (c) in line 3 on page 5 of the Bill and substitute
for “in”
Refer also
to comments made under clause 3
RESPONSE
DOH (Mr Motsapi) to
respond on this aspect.
CLAUSE 6
The
Proposed reduction in the proportional representation from the present 25
persons to 16 persons and not supported.
This could effectively mean that the smaller boards may or may not have
representation and representation of the large boards may be skewed when one
considers the power of the Minister to appoint representatives.
RESPONSE
There is a proviso to the
proportional representation in this clause which will ensure that each of the
12 Professional Boards is represented at Council level, with the remaining four
persons being appointed on a proportional basis. The section retains a
provision that stipulates that: “Provided that each professional shall be
entitled to designate at least one person as its representative”.
CLAUSE 7
“(g) Inserted clauses
1.
Enormous
powers are afforded to the Minister including the power to request financial
statements when the Department does not make any grants of subsidies to the
Councils/boards.
2.
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. Elected members must be replaced in the same
manner as they were elected and the decision must rest with the Council.
3.
Delete
sub clause [(6)(c) as many of the elected and appointed members of the Council
practice their occupations and professions outside the Council activities
Office Bearers of professional associations that represent members’ interests
cannot be forced to vacate their positions if they declare their interests.
RESPONSE
These provisions have been added to
the Amendment Bill to ensure transparency and accountability in the activities
of the Council particularly as he council handles public funds. The Executive
Authority, through which the Council reports to Parliament, should The
Executive Authority, through which the Council reports to Parliament, should
certainly have authority to oversee the
activities of the Council and call upon it to account, where appropriate. This will enhance governance and ensure
accountable and responsible use of public funds placed at the disposal of the
Council. The Department does not need to
have contributed funds in order to call for accountability of the HPCSA
in managing public funds and the HPCSA being a public body should be open to
scrutiny.
This can only contribute to good corporate
governance, otherwise if there is no oversight, the HPCSA will be left to
manage itself without any measure of accountability and a reporting authority
that oversees those activities.
The Bill aims to
introduce the process of nominations of the members of the professional boards
and subsequent appointment by the Minister.
These are the same people who will be designated to represent the boards
at Council level. The authority to
terminate their membership of Council is therefore correctly the same authority
that made the appointment. Considering the critical transformation imperatives
as well as international best practices, it is considered important to have the
Minister appoint members of the Boards.
Sub-clause (6) (c) relates to
instances where there has been a failure on the part of the member to declare
conflict of interests. If they declare,
then their membership cannot be terminated on the ground of declared conflict
of interest.
CLAUSE 9
Delete the
entire Section 8(2)(a)
The
Minister is given power to call a special meeting for professional boards. In addition to this, one third of the members
may call a special meeting. This could
effectively mean that all representatives appointed by the Minister may call
such a meeting this is construed as abuse of state authority.
RESPONSE
This clause talks to the President
of Council calling a special meeting, and not the Minister. A provision for special meetings is necessary
to ensure that urgent matters could be considered with the urgency
required. Council has two meetings in a
year and the likelihood of urgent matters arising in between meetings of
Council cannot be ruled out.
CLAUSE 11
Delete the
entire Section 12
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.
Considering that the professional boards and the Council are not funded
by the Department of Health or Treasury the Minister does not have the right to
appoint the Registrar. It is untenable
that the professions represented on Councils cannot appoint the registrar who
is responsible for running the affairs of Council in the interests of both the
members of the public and professionals.
RESPONSE
The Council is not listed in the
PFMA schedule as one of the entities to which the provisions of the Act shall
apply, but this should not be understood to mean that Council cannot be held
accountable for its activities, hence the provisions of the PFMA have been
inserted in this clause to ensure transparency and accountability whilst there
is a reporting authority which is empowered to monitor that the activities of
the Council are run in an efficient and transparent manner. The appointment of
the Registrar, whilst effected by the Minister, will be handled jointly with
the Council. To some extent, this has been the practice in that the Council
would recommend appointment of the Registrar to the Minister. Given the
strategic importance of this position and the accounting responsibility
attached to it, the Minister should appoint the Registrar after consultation
with the Council.
CLAUSE 13
Delete the
entire clause
The right
of the Minister to appoint members on the professional boards after nominations
by the professional boards, as opposed to the present position where members of
the professions involved elects the majority of members of the
Council/professional boards. It is a matter
of concern that this will lead to a lack of independence between the Council,
professional boards and the government and could amount to flaunting of
sections 33 of the Constitution of the RSA 1996; which provides for just
administrative action and the Promotion of Administrative Justice Act, 200 (Act
No.3 of 2000).
Delete the
word “nominations” in paragraph (g) in line 8 of page 10 and substitute for
“election”
Ministerial
nominations are not supported. There
must be elections. It will be in the
public interest that a reasonable balance exists in membership of the Council
and professional boards. The credibility
of the people elected, together with transformation is critical.
RESPONSE
The Council’s
experiences regarding the election processes of the Professional Boards have
not been positive, in that the results simply reflect the demographic profile
of the professions as reflected in the current registers of the HPCSA. The fact is, almost all health professions
are white and male. To reach a stage of
equity in this area, will require at least another 50 years, if something
drastic is not done.
The results of the
previous election reflected an average of 78% whites being elected with
Africans averaging about 5%, Coloureds 2% and Indians 15%. Were it not for the very limited appointment
power of the Minister as well as the substitution powers by the Returning
Officer in order to create some kind of a balance, we would have had Boards
that are reflective of only the pre-1994 dispensation.
It is important to
note that the Minister will not simply appoint from a vacuum but will be guided
by the nomination process in which the professionals themselves will play an
active role. The Minister will be
limited to appointment of only those professionals who are appointed.
There is a precedence
for the appointment process in many public bodies in South Africa, such as
ICASA, Council for Medical Schemes, Films and Publication Board, Medical
Research Council, Medicines Control Council etc. All of these bodies have a rigorous
appointment process which is effected by the relevant Minister.
There is also
comparison with international practices.
The Councils of New York, Orlando, Washington DC and many other states
in the USA are actually appointed by the equivalent of a Minister of Health and
in fact operate within the Ministries of Health.
In fact, there are
major reforms currently in the
Importantly, however,
is that there is agreement throughout that the independence of the Councils
never gets affected by the appointment process.
This means, the Council still exercises its professional duties
independently but objectively without the Minister intervening or seeking to
influence decision-making processes of the Council.
We believe that transformation is
imperative and that processes geared towards accelerating transformation within
the necessary safeguards, should be supported.
CLAUSE 21
[A] Delete paragraph (a) of sub-clause (1)
This clause is untenable given the nature of the postal
services. If the clause is retained, it
must reflect that additional efforts need to be made before the drastic action
is taken.
RESPONSE
The deletion of this
sub-clause will result in a situation where the registrar will not be in a
position to confirm with certainty the addresses of the practitioners appearing
on the registers. The principal Act
(Section 18) makes it compulsory for practitioners to notify the Registrar of
the change of address within three months from such change, and if this
sub-clause is deleted, the purpose of Section 18 in the principal Act will be
defeated thereby rendering the registers kept by the registrar unreliable.
Delete clause 19A (1)(b)
The suspension of practitioners for failure to pay annual
prescribed annual fees must be reviewed when one considers the problems
practitioners faced over the years in not receiving their renewal notice on
time and payment problems experienced due to computer errors at the Council.
The Registrar must exercise due diligence before exercising these powers.
RESPONSE
The Council has always
extended time frames where there have been delays in sending out reminders for
annual fees, and there is no way that this power will be exercised arbitrarily
as there are administrative law principles to be complied with for every
administrative action taken.
CLAUSE 52
Delete word “in” in line 27 on page 29 and substitute for
“after”
The Minister is now given powers to make regulations “after”
consulting with Council as opposed to “in” consultation with the Council.
RESPONSE
DOH to
respond
CHAPTER II OF THE PRINCIPAL ACT
“EDUCATION, TRAINING AND
REGISTRATION”
CLAUSE 17(a)-(f)
Many provisions concerned with training, education,
qualifications and compliance issues will now reside with relevant professional
boards as opposed to Council and that Boards are given powers to consider
education. However, it is not clear if
all boards are equipped to deal with these added functions.
RESPONSE
Education and training
relating to a profession can best be dealt with by those registered within that
profession. Council is a representative
of all the boards and not all Council members will be acquainted with the
education and training of a particular profession, if Council were to deal with
these issues.
COMMENT ON THE
EXPLANATORY MEMORANDUM OF THE BILL
It is noted that notwithstanding one of the objectives
outlined in the explanatory memorandum being to “accentuate the provisions of
the Medicines and related Substances Act, 1965 (Act 101 of 1965) in so far as
this Act regulates the compounding and dispensing of medicines and a
prohibition of keeping an open shop or pharmacy”, there appears to be no
amendments in the Bill to this effect.
RESPONSE
DOH to
respond
2.
New
Proposals to the NCOP Select Committee
(a) Insertion after the definition of “public representative” of the
following definition:
“public representative” means a person appointed by the Council to serve in
the committees or subcommittees of the Council or professional boards for a
particular purpose, and who is not registered in any of the professions falling
under this Act; These will be person
that will be appointed on ad hoc basis to assist Council in its proceedings,
e.g. appeal committees. Currently, the Act requires a “member of the Council
representing the community to be part of such proceedings, and this has led to
considerable difficulties and delays due to time constraints experienced by
such members. The proposal would therefore enable the Council to use any other
available person, but who is not registered with the Council, to assist the Council.
This will therefore lead to a consequential amendment of section 10(2) of the
principal Act, i.e. deletion of the words starting from “council” in line 48,
page 7 of B10B-2006 until the end of the subsection, and replacing it with
“public” and amendment of clause 13 (e) of the Bill, i.e. deletion of the
words “community representatives” in line 9, page 10, and replacing it with the
words “member of the public”.
(b) The
substitution for “healthcare practitioner” of “health practitioner” as the
latter is the concept used in the Act/Bill.
(c) At clause 45
(amending section 49 of the Act), that the section in the principal Act remains
as is, except the deletion of subsection (2) of section 49 of the Act.
(d) At clause 54
(amending section 62 of the Act), that the deletions from the Act be retained,
but further retain the substitution for “professional board” of “council”, and
insert “and” between “date]” and “the profession” in line 47,
page 32 of B10B-2006.
(e) At 2(g) of the Memo on
the Objects, substitution for the word “sale” of “sake”.
(e) That s 41A(6) of the Principal
Act be replaced with the following new section, which is based on ss 21
and 22 of the Criminal Procedure Act 51 of 1977 given the recent Constitutional
Court judgement on Chairperson Mogajane vs North West Gambling Board:
‘(6)(a) An investigating officer carrying out an
investigation in terms of this section may request any person to:
(i)
produce
to him or her any book, document, electronic data or thing which such
investigating officer on reasonable grounds believes to relate to the matter
which he or she is investigating, and which such investigating officer on
reasonable grounds believes to be:
(aa) on any premises which are owned by or in
the possession of or controlled by such person; or
(bb) in the possession of or under the
control of or upon such person; and
(ii) furnish such explanations to him or her
as he or she may reasonably require in relation to any such book, document,
electronic data or thing.
(b) An investigating officer carrying out an
investigation in terms of this section may apply to a magistrate or a judge for
a search warrant for:
(i) any premises on which the investigating
officer on reasonable grounds believes one or more articles referred to in
paragraph (a) may be found; or
(ii) any person whom the investigating
officer on reasonable grounds believes to have in his or her possession or upon
his or her person or under his or her control, one or more articles referred to
in paragraph (a).
c) The magistrate or judge to whom an
application in terms of paragraph (b) is made shall issue the search warrant if
it appears to him or her from information on oath that there are reasonable
grounds for believing that any such article is:
(i) upon or at any such premises within his
or her area of jurisdiction; or
(ii) in the possession or under the control
of or upon any such person within his or her area of jurisdiction.
(d) A search warrant issued under paragraph
(c) shall require the investigating officer and, if so requested by the
investigating officer, any named police official or police officials who have
agreed to assist in executing the search warrant, to seize the article or
articles in question, and shall to that end authorize such investigating
officer and police official or police officials to search any person identified
in the warrant, or to enter and search any premises identified in the warrant
and to search any person found on or at such premises.
(e) A search warrant issued under paragraph
(c) shall be executed by day, unless the magistrate or judge issuing the
warrant in the warrant authorizes the execution thereof by night.
(f) A search warrant may be issued under
paragraph (c) on any day and shall be of force until it is executed or
cancelled by the magistrate or judge who issued it or, if such person is not
available, by a person with like authority.
(g) An investigating officer executing a
warrant under this section shall, after such execution, upon demand of any
person searched or who owns or is in possession of or controls any premises
searched or whose rights in rights in respect of any search or article seized
under the warrant may have been affected, hand to such person a copy of the
warrant.
(h) An investigating officer carrying out an
investigation in terms of this section may without a search warrant issued
under paragraph (c) search any person or premises for the purpose of seizing
any article referred to in paragraph (a) if:
(i) the person concerned consents to such
search for and the seizure of the article in question;
(ii) the person who may consent to the
search of the premises consents to such search for and the seizure of the
article in question; or
(iii)
the
investigating officer on reasonable grounds believes that a search warrant will
be issued to him or her under paragraph (c) if he or she applies for such
warrant and that the delay in obtaining such warrant would defeat the object of
the search.’
(f)
Transitional Arrangements: This Act or
some or all of its sections shall come into force on a date proclaimed by the