Choice on Termination of Pregnancy Amendment Bill [B20-2007], & Traditional Health Practioners Bill [B21-2007]: deliberations &

SOCIAL SERVICES SELECT COMMITTEE
11 September 2007
CHOICE ON TERMINATION OF PREGNANCY AMENDMENT BILL, TRADITIONAL HEALTH PRACTIONERS BILL: DEPT RESPONSE TO PUBLIC SUBMISSIONS/MANDATES; TOBACCO PRODUCTS CONTROL A/B: ADOPTION

Chairperson: Ms J Masilo (ANC, North West)

Documents handed out:
Response to provincial public hearings / mandates on Choice: Termination of Pregnancy Amendment Bill
Choice on Termination of Pregnancy Amendment Bill [B21-2007]
Response to provincial public hearings / mandates: Traditional Health Practitioners Bill
Traditional Health Practitioners Bill [B20-2007]
Response to public submissions on Tobacco Products Control Amendment Bill
Tobacco Products Control Amendment Bill [B24B-2006]

Audio recording of meeting

SUMMARY
The Department of Health attended the meeting to give its responses to the points made on the Choice of Termination of Pregnancy Amendment Bill. It was clear that many of the submissions related not to this Bill but to the Act. The Department insisted that there were only five major points and that it was the Bill that needed now to be discussed. It was stressed that the Bill was intended to accentuate the rights of females, to provide for objections on the basis of religion or conscience, and it was noted that the Department was working on a policy for conscientious objectors. The Bill further made provision for the situation where the wishes of the minor clashed with those of the guardian. There was provision for mandatory counseling before terminations. The Bill regulated who could perform terminations, and created the obligation to create a database. The Department summarized the comments made in the preliminary mandates by the provinces, and took the points raised by Gauteng in relation to implementation. Questions by Members related to the five areas being concentrated on in this Bill, the layout of the presentation, the fact that it was not clear whether comments by the Provinces had been addressed, and the principles set out in the Constitutional Court judgment suspending the validity of the previous legislation. Concerns were expressed that the minors’ wishes took precedence over their parents’ wishes, and that rights of a patient should not be preferred to the sentiments of the doctors. It was decided that there should be follow up to the provinces, and that a new time frame would be found.

The Department then commented on the points raised by provinces in relation to the Traditional Health Practitioners Bill. These comments addressed the Council that was to recognize the services of traditional health practitioners. The time period for qualification of vice-chairperson and Chairperson of the Council was addressed. A call for removal of Clause 9(g) was not supported. Certain matters, as set out in the presentation, were not in the purview of the Council and could not be dealt with. Further comments clarified the definitions, the Minister of Health’s responsibilities, and the role of municipalities. The Department stressed that the role of the Council was to register traditional healers and not to govern. The Council would be an autonomous and juristic structure. Internationally recognised standards could not be used for African medicine. The National House of Traditional Leaders had called for representation on the Council and this could be allowed. The policy to inform legislation around traditional medicines was being drafted, and this would include questions of intellectual property. Questions by Members addressed the time-period for qualification before appointment to the Council, the reasons why non-practitioners were included on the Council, the possibility of provincial councils, the fact that the question of sick notes had not been addressed, and the responsibility of the Department of Education to decide on traditional health curriculums in schools. It was noted that this was part of a several-step process. The Department clarified, in response to further questions, that there would not be integration of the public national health system, the military health system and the traditional health system, and that foreign practitioners were regulated by other laws. Other questions related to the position of faith healers and prophets, the possibility of control under the medical control council, provision for ethical standards, and the composition of the Council.

The Department finally gave its comments on the public submissions in relation to the Tobacco Products Control Amendment Bill. The presentation touched on the issue of regulation of both smoked and non-smoked products, the addictive nature and cancer risks associated with Snus, the provisions preventing dumping of sub-standard products on other countries, the disclosure requirements for manufacturers, and the confidential disclosure only to the Minister, the reasons why tobacco was treated differently from alcohol or other substances, and the issue of penalties. Questions were raised by Members on the country of final destination rule, whether there should be inclusion of snus, the notion of smoking and harm reduction, the links between snus and cancer, and the disclosure of information. Some Members asked that the finalisation of the Bill be postponed but the majority agreed that it could be finalized, as there were no amendments and no areas of major disagreement. The Committee resolved to adopt the Bill, with the DA recording an objection to Clause 3.  The Committee Report was adopted.

MINUTES
Department’s responses to the comments made by Provinces on Choice on Termination of Pregnancy Amendment Bill (CTOP) [B21-2007]

Mr Nat Khaole, Director, NDOH, introduced his delegation from the Department of Health as Ms Nthari Matsau, Deputy Director General, Ms Rose Mdlalose, Programme Manager, HR, Mr Ronnie Green- Thompson, Special Advisor to the Minister of Health, and Mr Michael Motsapi, Chief Director, Legal Services, DOH.

Mr Khaole informed the Committee that the responses by the Department were limited to those comments that were made on the provisions of the Bill, and not to the arguments raised about the terms of the principal Act. The Bill was intended to accentuate the right from females of 18 years and above. There was a right for any person to object on the basis of religion and conscience; this right could, however, be limited.  The Department of Health  (DOH) was working on a policy that would deal with the conscientious objections by practitioners.

He added that Bill made the provision that in the case where a minor’s decision clashed with the decision of the minor’s parents or guardian, the decision of the minor was the decisive one. He also pointed out that there was provision for mandatory counseling before the termination of pregnancy (TOP). The only people allowed to perform TOP were registered midwives and nurses and the Bill further created the obligation to create a database of all TOPs performed. TOPs were defined as both a medical and surgical operation.

The Free State comments had been similar to those of the Northern Cape Province, which he had dealt with above. Gauteng comments were that the Bill should provide for the standards to be consistent. All Gauteng’s comments on counseling, keeping records, age of consent, practitioners who could perform the TOP had already been discussed.. The Department however took note of the implementation proposal by Gauteng. . The comments raised by Limpopo touched upon rights, and he highlighted that this was a constitutional right and penalties were contained in Section 10 of the principal Act. Issues of conscientious objections and counseling had already been dealt with.

Discussion
Mr M Robertson (ANC, Eastern Cape) asked why the department had concentrated on only five areas instead of starting from scratch as they had done with the other Bill.

Mr Motsapi replied that the duty was to facilitate the public involvements and the five areas they had before them were the areas DOH thought would most effectively bring about their objective.

Mr B Tolo (ANC, Mpumalanga) asked the Department why the presentation was not in a tabular form as the committee had requested.

Mr Khaole replied that the Department had looked at the comments made by all the provinces and discovered that most of them were similar. Because of this they then decided to respond to some of the comments collectively instead of repeating them for every province. He did however concede that a presentation in a tabular form was far easier to read and cross reference.

The Chairperson remarked that they should have made the presentation in a tabular form as this would definitely help in the capturing of information. The Constitutional Court ruling attempted to ensure that all provinces were consulted. From the way the presentation was laid out, it seemed as if at least three provinces had not submitted anything.

Mr Tolo remarked that this confusion faced by Members in this Committee, as to which province had submitted comments, would raise itself again if the Department went to the provinces.  Because some of the comments were implied and not directly addressed, provinces were most likely to argue that their comments were not responded to.

The Chairperson asked if she could see the response from the Eastern Cape.

Mr Robertson asked for the actual instruction from the Constitutional Court.

Mr Khaole replied that the Court had said that there was a problem with the parliamentary processes when it came to consultation with the provinces. Provided that the consultation process could be fixed, then the order of invalidity, which had been suspended, would fall away. 

Mr M Thetjeng (DA, Limpopo) commented that he did not like the fact the law gave overarching powers to the minor of 12 years old, as opposed to the minor’s guardian or parents. A minor’s guardian or parents made decisions that were mostly beneficial to the minor, such as the schools to be attended. He did not see why the decision as to whether to terminate pregnancy was being left in the hands of the minor.

Mr T Setona (ANC, Free State) remarked that he was not a lawyer so he did not want to presume anything, but he thought that there must be legislation that dealt with the balancing of a minor’s rights and the guardian’s rights. If it so happened that there was no such legislation then it was up to the Minister to fix the situation.

Mr Thetjeng remarked that he did not agree with point four on the presentation because he was of the opinion that people should respect the rights of a doctor who refused to terminate a pregnancy on conscientious grounds. It seemed unfair to favour the rights of a patient over the doctor.

Mr Robertson and Mr Thetjeng asked why the Department had chosen to focus on only the five areas they had brought before the Committee and had not taken into account the comments being raised in connection with the Act.

Mr Tolo replied that whilst he could understand the frustrations some members had over the Act, the truth of the matter was that the Act was passed a long time ago. This had been done after public consultation, but of course there were people who were not happy with the Act. The Committee was now dealing with the Bill. He said that Members should therefore not bring in issues from the Act, as they were not relevant to the discussions at hand.

Mr Setona remarked that there should not be a wrong understanding of the powers of the committee. As he understood it, Parliament had the right to look beyond the single piece of legislation being considered. This was normally a conscious decision. The cross-referencing between Bill and Act was unfortunate. The Act had already been passed. Now the Committee had only to look at the five areas introduced by the Department. If the members had any grievances there were proper channels to bring them to the fore, such as a Private Member’s Bill.

Ms F Mazibuko (ANC, Gauteng) commented that some people might not have been aware of the Act being passed and they now wanted to jump in and deal with matters that involved the Act and not the Bill. She suggested that attention must be paid to the preamble of the Bill so as to ensure that the members were aware of what the Bill was seeking to achieve.

The Chairperson agreed with this, and she added also that nothing should be squeezed in from the Children’s Bill..

Mr M Sulliman (ANC, Northern Cape) remarked that if they kept on arguing about the Act, this was missing the point of dealing with the Bill.

Mr Khaole agreed that everything else other than the Bill should be ignored. Right now the Department could not deal with the Act.

The Chairperson remarked that the Committee must now make a follow up to the provinces as they were supposed to finalise the mandate by 5:15 on Thursday.

Mr Sulliman was worried about the fact that they were giving the provinces so little time to respond and he requested that this be put off at least until some later date.

The Chairperson took note of the proposal and said the Committee would decide on a new time frame.

Department’s Response to comments raised by provinces on the Traditional Health Practitioners Bill
Ms Rose Mdlalose tabled a document setting out the Department’s response to the comments from each of the provincial legislatures. She began with the responses to comments by the Northern Cape Province. Here she mentioned that the bill did not recognize foreign traditional healers. The Bill was going to create a legal framework that would enable the council to recognize the services of Traditional Health Practitioners (THP) and Chapter 2 of the National health Act (NHA) dealt with the rights and obligations of all patients. Lastly regulations under the NHA were being developed to regulate the initiation schools.

For the comments by the Eastern Cape Province she said that although the Act did not provide the required time period for one to qualify for appointment as chairperson or vice-chairperson of the Council, it was intended that the period should be five years, and this would be covered in the Regulations. The representative mentioned in 7(h) did not need to have knowledge of the traditional health practices, as this person would represent the community and not the practitioners. In response to the call for the removal of Section 9 (g), she said that this dealt with disqualification from being a member of Council, and could not be removed. In response to the comment about rehabilitation of land, she emphasized that the rehabilitation of the land was not within the purview of this Bill. She emphasized that the Council’s function included collaboration with other councils.

Free State supported the Bill and it was not necessary for the Department to comment.

Ms Mdlalose said that Gauteng had queried various definitions. She pointed out that faith healers were excluded from the bill, as they did not relate to African indigenous, cultural and traditional practices. She clarified the definition of student, traditional birth attendants, and accreditation of the traditional health practitioners. She noted that the Minister in charge of the traditional health practitioners was the Minister for health. In response to queries raised under Chapter 2, she said that the Council would be the body to determine the fess and that traditional medicine was not necessarily going to be regulated by the Medicine and Related Substance Act, 1963.

KwaZulu-Natal raised similar issues of the chairperson and vice-chairperson, which were dealt with under the Eastern Cape Province comments.

Ms Mdlalose said that Limpopo province had also queried who would fall under the Bill. The council was mandated to regulate TH practice and the public interest, and not the practitioners or organisations. The mandate for the council was to monitor the service of standard, make regulations relating to facilities, and develop programs for capacity building. She added that the role of municipalities and traditional healers fell outside the ambit of the bill. The Council was going to decide the extension of traditional healing to schools. She said that the council was the one responsible for the negotiations with institutes over issues such as services and referrals. Special meetings of Council were already provided for in the Bill.

Western Cape concerns were the same as the ones for the Eastern Cape Province, and Ms Mdlalose said that the responses would be the same.

Mpumalanga Provincial Legislature had also raised the issue of appointments, which was already dealt with by the Department. She stressed that the role of the Council was to register traditional healers and not to govern. The Council would be an autonomous and juristic structure. Internationally recognised standard could not be used for African medicine.

The National House of Traditional Leaders (NHTL) had raised the question of definitions. The Department stated that because diviner and healer were separately defined, they were regarded as separate functions. The purpose of registering students was to be able to create a database and the Council’s duties would include  handling of appropriate ethical standard as well as determining the type of training required. NHTL can be accorded representation on the Council. Appointment of a registrar did not require that person to be a professional in that field. The Council could only determine the manner in which applications to practice should be made. The Department was presently drafting the policy that would premise legislation to regulation traditional medicine, and that would include questions of intellectual property.

Discussion
Mr Robertson asked why the Chairperson needed a minimum of five years experience before being appointed to the Council.

Ms Mdlalose replied that although the Act did not clearly specify that the Chairperson and his vice-Chairperson have at least five years experience in traditional healing before appointment, this was the same period of time for a member of the Council and it therefore seemed evident that it should apply also to Chair and Vice-Chair appointments. If the Committee wanted this to be put in the Act, it could be done.

Mr Robertson asked why the additional three members to the council need not have knowledge of traditional healing, as he could not fathom how a councilor could make input to a Council dealing with issues of which he was ignorant.

Mr Robertson remarked that the Department had not fully convinced him as to why there should not be any provincial councils.

Mr Thetjeng agreed and he added that there seemed to be queries in provinces such as Limpopo as to why the council should be left only at the national level.

Ms Mdlalose replied that the main council was based in Pretoria and in every province there was an office at the director level that looked into traditional health issues. She added that the DOH had no objections to the existence of sub-councils. DOH felt that this issue needed to be ironed out by the Council and if the traditional healers wanted sub-councils in every province this could be worked out. However, what had to be kept in mind is that such structures were expensive to create and it would have to be up to the provinces to raise the funding.

Mr Tolo asked to which Bill DOH referred to when in saying that the Bill would be creating a legal framework. The piece of legislation before him did not include anything of that nature.

Ms Mdlalose replied that the reference to the bill was unfortunately incorrect; the words Bill and Act had regrettably been used interchangeably. The reference should have been to the Traditional Health Practitioners Act.

Mr Tolo remarked that he had not heard a response to the Northern Cape’s comments whether sick notes for schools and word could be given by traditional healers.

Mr Tolo commented that he did not agree with point 4.10 as he did not think that the choice to extend traditional healing to schools should be left in the hands of the Council,. The school’s curriculums fell under the directive of the Minister of Education. 

Ms Mdlalose replied that this was the comment made by the DOH in response to the suggestion that there should be an extension of teaching of traditional healing in its school curriculum. This was an issue never dealt with before. On reflection, she agreed that it was not the competence of DOH and agreed it was a competence of the Ministry of Education

Mr Tolo was of the opinion that point 4.12 and 4.13, that proposed that the Council handle negotiations between other institutions, should not be left up to the Council. He felt that these were policy matters that should done at higher levels.

Ms Mdlalose replied that had it not been for the Constitutional Court ruling the Council would have been created by now, and among other things this was indeed the work of the Council and not of the department.

Mr Setona remarked that during the initial stages of dealing with the Traditional Health Practitioner’s Bill the Committee had discovered that there was no comprehensive framework on traditional practitioners. This Bill similarly seemed to deal with policy matters and it seemed to lack fundamental structures. Initiating such a Bill was a whole process, not just a matter of creating a piece of legislation.

Ms Mdlalose replied that the Department was asked to respond to Cabinet’s instruction to look into the traditional health issues and to create a structure for this,  which it had done. The next logical step was the creation of a Council. This, until now, had been temporarily suspended due to the Constitutional Court ruling. It was all part of the logical sequence.

Mr Setona remarked that he shared the views aired at the ANC Congress meeting in Stellenbosch, where it was agreed that there was need to integrate the public national health system, the military health system and the traditional health system. As things stood now there were three separate health systems.

Ms Mdlalose replied that the integration of the three systems was also a logical sequence of events.

Ms Matsao emphasized that that whilst there had initially been an idea to integrate three systems this was not going to happen. In their work around this area DOH realised that if they integrated African medicine with the public medical system, traditional medicine was in danger of being subsumed by the western medicine. The traditional practitioners themselves had been highly vocal in their disagreement, and the advice they were getting was that there would be no integration whatsoever. The development of the three systems would be separate, but could be linked through referrals.

Mr Thetjeng asked if the Department was working on measures to deal with foreign traditional health practitioners, as they had highlighted that the bill did not encompass any foreign traditional healers. Leaving the situation alone would not work, as the foreign practitioners were actually practicing in South Africa.

Ms Mdlalose replied that foreigners were regulated by other South African law. The Department’s policy for  regulation of foreign-trained professionals, irrespective of their profession or area of practice, stood. This Bill was to formally recognise South Africa’s own traditional health practitioners and healers for the first time.

Mr Thetjeng asked if the presumption that faith healers and prophets did not fall under authentic African tradition, and thus fell outside the ambit of the Bill, was backed by any factual finding. He was not sure if this was entirely correct.

Ms Mdlalose replied that the Department was only given four categories by the Cabinet but once the Council was created it could bring others on board, such as the faith healers and prophets.

Mr Thetjeng was of the opinion that the traditional health medicine should be regulated by the existing council,  as it would be a reasonable base for traditional medicine.

Ms Mdlalose replied that the traditional health medicine lay in a different directorate altogether.

Ms Matsau added that whilst regulation under the same Council could be regarded as beneficial by giving a patient the assurance that the traditional healer was approved by the existing structures. The problem was that traditional health and the public health system operated in different ways. This gave rise to disputes with one sector of the population that was opposed to support of “quack medicine”. If DOH were to submit African Traditional medicine under the existing Council, it would undoubtedly fail the orthodox tests applied there. This was why it was important to have a traditional Council that was going to determine its own regulations.

Mr Thetjeng asked how the Department was going to provide for appropriate ethical standards for the traditional practitioners if it excluded traditional medicine from regulation by the Medicines and Related Substances Act.

Ms Matsau replied again that this was an area she did not know about, and neither was the Department familiar with it. The Council was to determine what they considered to be the proper ethical standards.

Mr Thetjeng remarked that the NHTL had requested representation. He asked under which aspect would a traditional healer be afforded representation.

Ms Mdlalose replied that it was important that to recognise that this was the first time DOH was dealing with traditional healers. The way the Council would be constituted was the same as the other structures.

Departmental  Presentation on the summary of submissions made by interested parties on the Tobacco Products Control Amendment Bill [B24B-2006]

Ms Matsau introduced her second delegation as Mr H Kleynhans, Legal Services Manager, DOH, Mr Sello Ramasala, Head Legal Services, DOH, Ms F Omar, State Law Advisor, Mr S Makabeni, Office of the Chief State Law Advisor.

Mr H Kleynhans, Legal Services Manager, DOH tabled the Department’s response to a smokeless tobacco product called Swedish Snus. Snus, although smokeless, was still a tobacco product. Moreover, it was not considered a harm-reduction product by the DOH as it was highly addictive and linked to heart disease and diabetes, among other things. The same response applied to comments by the British American Tobacco (BAT) company, and Tobacco institute of SA (TISA). The Department added that the purpose of clause 3A was to discourage the dumping of sub-standard tobacco in other less developed countries.

The Department added that clause 4(f) in the Bill put the responsibility on the manufacturer to disclose all ingredients in the product, in order for the Department to be able to establish the levels of each ingredient and any harmful ingredients. This enabled the Department to carry out its job of protecting the public. If there was any confidential information then this should be given to the Minister, who was unlikely to reveal it.

In response to the Association for the Reduction of Tobacco Related Harm the Department stated that it had developed health awareness programs. The National Council Against Smoking supported the Bill.

In response to Derek Hill the Department was of the opinion that the definition of public place encompassed the areas on which submissions were made.

In response to queries why tobacco should be treated differently, the Department said that tobacco was a health risk that warranted it being tackled differently from other risk factors. In response to FEDHASA the Department highlighted that the Bill took care of penalties and that the issue of age restrictions was going to be tackled under the Section 76 Bill. The department noted Gerhard Vosloo ‘s proposal. It had also noted the comments by JT International South Africa that effectively agreed that smoking should be regulated. The comments made by Philip Morris SA (Pty)Ltd were also noted. It was the view of the Department that residue of agricultural substances in tobacco should form part of the listed ingredients.

Discussion
The Chairperson reminded the Committee that this was a Section 75 Bill.  She then asked the State Law Advisor to comment.

Mr Makabeni said that the State Law Advisor’s job was to draft and to deal with the constitutional aspects of the legislation. This office would not get involved in the policy decisions, as this fell under the powers of the Committee.

Mr Thetjeng asked why the standard of the country of final destination was the one being used, as this allowed for loopholes. He was of the opinion that the standard to be used must be the standard in South Africa. The reason proferred that the final destination standard worked against dumping was not substantive enough for him to warrant this clause.

Mr Sulliman replied that he was in support of the clause because the Committee was aware of the conditions of the continent, and they did not want a situation where they would allow for the export of a sub-standard commodity.

Ms Matsau replied that South African manufacturers had standards they adhered to. The problem lay in the fact that manufacturers could make sub-standard products for another country where testing was less vigilant. South Africa should not be the country that allowed such dumping, but should consider its neighbors. 

Mr Thetjeng remarked that he understood the bill as being aimed at protecting the smokers and the non smokers. He thought it was unfair to generalise the use of the two tobacco products of cigarettes and snuff, as snuff only endangered the person using it. He felt that different exemptions should have been considered.

Mr Sulliman thought that at the end of the day, whether one smoked or chewed tobacco, it still remained a tobacco product, and there should not be differentiation in treatment.

Ms Matsau replied that she wanted to clarify the notion of smoking and harm reduction. She said that the concept of harm reduction, in the health context, did not entail introducing a substance which might cause less harm than others. The question of harm reduction, according to the public health perspective, was the need to control the harmful substance. The whole concept of snus and harm reduction was totally erroneous. Snus was addictive and this in itself was undesirable.

Mr Robertson moved to adopt the Bill if there were no amendments to be dealt with. 

Ms H Lamoela (DA, Western Cape) asked if there was research done to confirm the premise that snus caused pancreatic cancer.

Ms Matsau replied that there was some research being done in the United States and other universities on snus and its connection to pancreatic cancer. The preliminaries results showed that there was correlation between snus and pancreatic cancer.

Ms Lamoela remarked that she was not sure if manufacturers were going to be comfortable with giving up their trade secrets, as some of this information was confidential.  

Ms Matsau replied that the request for information on ingredients being used in cigarettes was done to protect the public. The substances that were in the cigarettes caused the undesirable result of addiction. The Department was aware of the confidentiality around trade secrets, and the importance of such information, but did not want this to be the reason why the Department should be prevented from monitoring what was being used in the cigarettes. Some information was to be disclosed only to the Minister, and this would protect the manufacturers from competitors gaining knowledge of confidential issues. It was unlikely that the Minister would divulge the information. The general and non-confidential information on the tobacco ingredients could not be compromised on.

Mr Tolo remarked that he supported the exemption clause as it stood.

Mr Tolo requested that the finalisation of the bill be postponed.

The Chairperson informed the Committee that it needed to finalise the Bill as there were no issues that were being opposed, and moreover it had been postponed for too long.

Mr Thetjeng raised concerns about the manner in which the Bill was being adopted. He felt that the members were being bulldozed into making a decision, and he strongly was against the Committee rubber-stamping the wishes of the Portfolio Committee.

The Chairperson replied that they were not rubber stamping anything. There were no amendments, and no areas that were still under disagreement. 

The Chairperson remarked that since there had been a formal motion, the Committee would go through the Bill clause by clause and then read the committee’s report.

Clause 1
The committee was in agreement.

Clause 2
The committee was in agreement.

Clause 3
The DA was in disagreement.

Clause 4
The committee was in agreement.

Clause 5
The committee was in agreement.

Clause 6
The committee was in agreement

Clause 7
The committee was in agreement.

Clause 8
The committee was in agreement

Clause 9
The Committee was in agreement.

The Chairperson called for a vote, and the Bill was adopted without amendments. He read through the report and this was adopted.

The meeting was adjourned.