RESPONSE TO CONCERNS/INPUTS/COMMENTS RAISED DURING PUBLIC HEARINGS ON THE CHOICE ON TERMINATION OF PREGNANCY AMENDMENT BILL, 2007

                                                  PREAMBLE

1.             Honourable Members are requested to note that responses are to a large extent, limited to the provisions of the Bill, not the principal Act.

2.      That the Act, and therefore the Bill, only seek to accentuate the right provided for in the Bill of Rights, where “woman” is not limited to 18 years and above, but any woman of whatever age.

3.             Accordingly, that the Department of Health has the responsibility to provide reproductive health care services to women, and thereby promote reproductive rights and freedom of choice.

4.      That, as much as we recognize the right to object on the basis of religion, conscience, etc, this right can be limited.  In addition, the right cannot be invoked at the expense of the right of the user.  This is premised on the fact that it is inherent in the functions of a practitioner that he/she may be asked to perform TOP.

 

NORTHERN CAPE

1.             Nurses who refuse to perform TOP

(a)                 The Act recognizes the right of a woman (of any age) to decide when to have children, and thereby invoke the reproductive right afforded by the Bill of Rights.  Therefore, the Act is not about the rights of health care users, but seeks to accentuate the right already recognised by the Constitution.

(b)        The Department of Health is currently in the process of developing a policy on Conscientious Objection by practitioners.  However, this is limited by section 36 of the Constitution and right of users to have access to health care (section 27 of Constitution), which is paramount.

2.             Consent of minors to terminate pregnancy.

(a)        The Constitution guarantees everyone the right to access to health care services, and does not limit “everyone” to women for a particular age.  This right includes a right to reproductive health care.

 

(b)                 Section 53 of the principal act makes provision for the minor to be advised to consult with parents, with the proviso that the decision is solely the minor’s.

(c)                 The Children’s Act, 2005 (Act 38 of 2005) is subject to the principal Act.

(d)                 Accessibility to TOP services has drastically reduced complications associated with illegal abortions.

3.             Counselling  (pre– and post-)

(a)                 Section 4 of the principal Act makes provision for non-mandatory and non-directive counselling before and after TOP.  However, it ultimately remains the decision of the user to proceed with TOP or not, notwithstanding her age.

 

(b)        Chapter 2 of the National Health Act, 2003 in general deals with the right and duties of users and health care personnel.

·         Section 6 obligates providers to inform users of, inter alia, benefits, risks, costs and consequences generally associated with health procedures and treatment options; and

·         Section 7 details the informed consent of user.

4.             Training

(a)        Only registered midwives and nurses with prescribed training will be authorised to perform TOP (in addition to medical practitioners).

5.             Keeping of Records.

(a)        The Bill obligates the person in charge of a facility to keep records, and relay them to the Head of Department in that province, including TOP’s performed.

6.             Counselling of practitioners.

(a)        Debriefing and psychological support are provided as part of EAP in the workplace.

7.             Medical and surgical TOP’s.

(a)        TOP is defined in the principal Act to include both medical and surgical TOP’s. Both must only be performed at designated/approved facilities.

 

FREE STATE

Their concerns were dealt with above.

 

GAUTENG

1.             Standards to be consistent

(a)                 Clause 5 of the Bill states that regulations by MEC’s will be approved by the Minister.  This is to ensure consistency across the provinces. 

(b)                 Section 25 of the National Health Act, 2003, (NHA) obligates the provincial Heads of Department to have provincial health policies that are not discordant with national health policies.

2.             Counselling

        Matter responded to under 3 (Northern Cape)

3.             Objection on the basis of conscience

Matter responded to under 1(b) (Northern Cape)

4.             Record Keeping

         Matter responded to under 5 (Northern Cape)

5.             Age of consent

         Matter responded to under 2 (Northern Cape)

6.             Termination allowed

         (a)       The proposal is repugnant to the provision of the bill of Rights.

7.             Practitioners performing TOP

(a)                 Only registered midwives and nurses with prescribed training will be allowed to do TOP.  Students and interns explicitly excluded.

(b)                 Traditional healers are also excluded (for now).

(c)                 Matter on conscientious objection responded to.

8.             Proposed Amendments

(a)                 Most of these proposals are in the Act or the Bill.

(b)                 Implementation proposal is taken note of.   

 

LIMPOPO

1.             This is a constitutional right contained in the Bill of Rights.

2.             This is not part of the Bill, but detailed in the principal Act.

3.             Penalties are contained in section 10 of the principal Act.

4.             Matter of conscientious objection responded to.

5.             Matter of pre and post TOP counselling responded to.

6.             Keeping of record responded to.

7.             Bill does not contradict the Children’s Act, 2005, but the latter is in fact subject to the provisions of the Act.

8.             Traditional healers excluded from performing TOP.

 

MPUMALANGA

(a)                 Section 78 of the National Health Act, 2005 makes provision for the establishment of the Office of Standard Compliance to inter alia monitor compliance with prescribed health standards by health establishments, providers and agencies, and inspect health establishments and health agencies in order to determine levels of compliance with health standards and conditions imposed by the certificate of need.

         (b)        Section 80 of the NHA makes provision of the appointment of health officers, whose function is to monitor and enforce compliance with the NHA.

 

KWAZULU NATAL

(a)                 All concerns responded to above, save for 2.2.

(b)                 In respect of 2.2, Section 2 of the principal Act lays down circumstances under which TOP can be performed for different periods of gestation.  It is therefore incumbent on the user to prove that these circumstances exist before the provider can consider any request for TOP.  It is our view that further conditions will unnecessarily limit access to TOP services.