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.
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.
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 (
3.
Objection
on the basis of conscience
Matter responded to under 1(b) (
4.
Record
Keeping
Matter responded to under 5 (
5.
Age
of consent
Matter responded to under 2 (
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.
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
(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.