28 JULY 2OO3

Introduction - Submission made in terms of public announcement for

verbal submissions on the National Bill

The South African NGO Coalition (SANCOCO) Health Sector, having carefully studied the Bill, the Constitutional imperatives, international instruments and supportive of the urgent need to achieve equitable distribution of resource, services and access to adequate healthcare, hereby wish to submit the following recommendations for consideration by the members of the Portfolio Committee on Health. We are fully aware of the complexities involved in restructuring the health service and creating uniformity. We are cognizant that it has taken many drafts - over many years - for this Bill to reach this stage. We are eager to support the promulgation of this legislation, with the requisite amendments and additions.

However, in line the South Human Rights Commission Report for 2000 - 2002, we are concerned that this legislation should do more than repeat the need for access to healthcare but must effectively give effect to the progressive realization of this right:

According to the Limburg Principles, progressive realization does not imply that the state can defer indefinitely, efforts for the full realization of the right. On the contrary, state parties are to 'move as expeditiously as possible towards the full realization of the right' and are required to take immediate steps to provide minimum core entitlements"

It is our submission that in certain sections the Bill falls short of these requirements and is in need of re-working to avoid unnecessary delays in its promulgation and/or possible legal challenge.

Main Recommendations


The members of the SANGOCO Health Sector concur with the drafters of the Bill and believe that they have, by and large, adequately captured the constitutional imperatives which the Bill should meet. However we believe that it is necessary to amend the preamble's concluding section to properly articulate and amplify the Bills intention to promote the principle of equity. We recommend that the principle of equity be clearly expressed to encompass all spheres of government in light of the differing capacities and resources of provinces and municipalities. We believe that the following key principles should be enumerated in the Preamble:


* unite the various elements of the national health system in a common goal to actively promote and improve the national health system in South Africa in accordance with the following:

a) Equity

b) Access to services

c) Quality

d) Overcoming fragmentation

e) Comprehensive services

f) Effectiveness

g) Efficiency

h) Accountability

i) Civil society participation

j) Developmental and inter-sectoral approach

k) Sustainability"

These important criteria are already in the Bill (Ch. 5; Sec. 35 (2)) and are derived from the Constitution and the Local Government Municipal Demarcation Act, respectively. In this chapter these principle and criteria are enumerated with regard to the District Health System for the Republic. However, in view of the present "injustices, imbalances and inequities" of health services still pertaining, these principles are needed to uphold the realization of the objects of the Bill at all spheres of government in transforming the health system uniformly.

2. Schedule of Definitions

The schedule of definitions is critical to the effective application of the Bill. It ensures a common understanding of the concepts, intentions and implementation of the Bill.

To this end we believe that the Schedule of definitions must be amended for greater clarification of the following terms:

1) 'a private health establishment" to make a clear distinction between private-for- profit establishments and not-for-profit organizations;

2) "national health system" should be more explicit to reflect "a framework for a structured uniform health system within the Republic, taking into account the obligations imposed by the Constitution and other laws on the national, provincial and local governments with regards to health services" as contained in the lead paragraph of the Bill.

We further wish to recommend consideration of the following terms for inclusion:

1) admit and discharge - need definitions as they are used specifically in terms of admission (Sec. 9 & 10):

2) basic nutrition - needs to be defined

3) basic health services/basic care health care services/primary health care - need to defined, consistency in usage. Noting that South Africa is an signatory to the International Covenant on Economic, Social and Cultural Rights (ICSECR) which refers to the core obligations as in contemporary instruments and the Alma Ata Declaration which also has relevance to the Convention on the Rights of the Child, which requires the state to ensure essential health services for the child.

4) emergency treatment- needs to be defined so as not to be open to violation, neglect or misinterpretation by health care providers or health establishments

5) essential health services - needs definition

6) limits of available resources - needs definition (if retained in the Bill)

7) Medical Research Council - needs inclusion and definition

8) non-profit organizations - needs definition

9) 0mbuds/Ombudsman - the definition is required in order to avoid potential conflict of interest and the independence of such an office ~n the public interest

3. "Limits of Available Resource

As the SANGOCO Health Sector we wish to express some concern with the formulations in Chapter 1 and elsewhere in the Bill with regards to "limits of available resources" (Ch. 1; Sec 3(1 -2). These references are ambivalent and open to an untenable degree of interpretation, which undermines the objects of the Bill in providing access to health services. As expressed in a recent Business Day article reflecting current information on expenditure on healthcare:

..... the health crisis does not arise because health spending is too low.. but out of the inordinate inequalities between public and private care.. due to overload on the public sector facilities.. governments

restrictive fiscal policy means the health budget has not grown.. it still serves 20% of the population"

Business Day, 25 July, 2003

What this means is that private healthcare accounts for 60 -80% of health expenditure (60% according to the World Bank). In other words, the public healthcare system which services at least 80% of the population is funded from 20% of the state's expenditure on health. It is alarming that commentators can confidently say Apartheid created the racial inequalities in healthcare in the public sector whereas now these inequalities reflect the public-private divide based on income and class. For this reason we support and call on all members of this Portfolio Committee to endorse moves by Department to regulate private health care, the medical schemes industry and the moves to create a national health insurance scheme. This can go a long way to making the public health care sector financially sustainable, preventing the drain on public resources by private health care providers and making healthcare more affordable for people earning between R2 500 - R4 500 per month.

We will speak later to the need to define clearly in the Bill terms such as "limits of available resources". As we have shown, the Bill must address itself as much to limitations as to the mechanisms for attaining 'progressive realization" and redressing this shocking under4unding of public healthcare. It must limit the over-subsidization of private healthcare and excessive expenditure and cost to the user in the private sector.

For these reasons we would submit that it is both superfluous and self-limiting for the Bill to make continuous reference to the undefined phrase "limits of available resources". Indeed the question of limited resources is an operational matter which cannot be addressed in legislation of this kind. It needs to be addressed in appropriate regulations and criteria for eligibility.

It is far more necessary for the Bill to lay strong emphasis on "progressive realization" - setting clearly and consistently the objective of adequate, quality, free public healthcare for all. For this reason we believe that Chapter 1, particularly in Sections 3 & 4, needs re-formulation in order to articulate:

a) that it is the responsibility of the Department of Health to provide access to adequate quality health care services for all;

b) that it defines a basket of services which everyone is entitled to at both public and private health facilities which serves as a benchmark for the delivery of such access and which facilitates effective progressive realization of the Constitutional right(s) to health care.

We believe that formulations such as those contained in Chapter 1 inadequately addresses these needs, particularly with reference to the Minister prescribing "which categories of persons are eligible for such free health services" (Ch. 1;Section 4 (1)). Instead of developing a list of services available to categories of persons, (an approach that is difficult to administer, costly to implement and complicated to monitor), a comprehensive identification of services available to all at public and private health establishments is a viable and essential alternative.

Other departments have taken this route by asserting in legislation the minimum that the department must provide to the public to be in line with the Constitution. The Bill fails this litmus test by deferring the right enshrined in the Constitution to the discretion of the Minister, at an unspecified time and place. It renders the right of access to health care unenforceable.

It is both unreasonable from the standpoint of law and our Constitution and unacceptable in terms of the all standards of ethical care, for there to be any further delay in the promulgation of this enabling legislation. This portfolio committee, working hand in hand with the Department, have an opportunity to close these gaps, strengthen the realization of the Bills objectives, and render to our people the certainty that their health is not a matter of Ministerial discretion but absolutely guaranteed in this legislation and its implementation. If this Bill fails to do so, for all its good intentions, many will view it with some justification, as having failed in its primary objective - the provision basic health of us all.

4. Responsibility for Health

We wish to recommend that Chapter 1, Section 3, be amended to include both the responsibility of the Minister and the National Department of Health as in other legislation of this kind. The responsibility rests with the Minister arid its implementation with the National Department of Health (Ch.3).

Specific Comments

1. The Bill clearly pronounce the inclusion of Civil Society in the National Health Advisory Committee (Sec. 23) by way of inclusion of at least two representatives of civil society and users

2 The Ombudsman (contained in Section 55) should be independent of the Forum of Statutory Health Professional Councils as he/she is the adjudicator in respect of complaints by 'members of the public and other person and therefore cannot be an officer of the said Councils nor can s/he be a referee and player at the same time

3. Chapter 5 dealing with District Health System for the Republic is the key delivery area for users. This Chapter and the Bill as a whole, does not provide an integrated plan to redress past and existing inequities in health service delivery. The Bill provides insufficient guidance and imperatives for provinces, particularly those who inherited a fragmented and under-resourced health system. We must also express concern regarding the uneven

capacity to deliver services particular in the rural districts. We believe the Bill should locate regulation, guidelines and resourcing at the national level to ensure uniform health care delivery because of the differing resources and capacities of provinces, to ensure that it permeates all levels of delivery

4. Section 57 should be amended to state that the Minister must make regulations regarding human resources in a proactive manner in order to take account of the lead time for training, recruiting and appointing human resources for health services. This is imperative in view of the world shortage of nurses and scare skills in the medical and allied professions in South Africa. This proactive prescribing of strategies and their implementation needs to provide equitable incentives schemes with a broader definition of scare skills in order to bridge the gap between urban and rural health services, covering all health services.

5. That Chapter 2, section 6 (d) on users right to refuse health services should include 'and be notified of the implications, risks, consequence and their obligations". Though people have the right to refuse treatment they need to understand the repercussions and also be informed of their obligations e.g. TB, HIV-AIDS and mental illness.

6 Section 41 (1) requires transitional arrangements in respect of the application of the certificate of need where providers may not continue to operate a health agency/establishment after the expiration of one year from the date the act takes effect. If there are no transitional arrangements this will have grave implications for community based services such as hospices and health establishments run by NGOs.

7. The Bill, though it provides a schedule of legislation to be repealed, does not note concurrent legislation which may have implications for harmonization within this framework. For example, Provincial Health Acts and the Mental Health Act. Furthermore the development of regulations and provincial health acts need to be expedited in order not to delay unduly the progressive realization of access to health.