The Bill proposes amendments to the Chiropractors, Homeopaths and Allied Health Service Professions Act, 1982 (Act No. 63 of 1982) (hereinafter referred to as The Act").

1. Amendment of definition of "allied health service profession"

1. Current position

The Act is currently applicable to the professions of ayurveda, chiropractic, herbalism, homeopathy, naturopathy and osteopathy. With the exception of chiropractic and homeopathy, these professions are not listed in the definition of "allied health service profession" and persons practising these professions are not defined in section 1 of the Act.

2. New approach

The definition of "allied health service profession" is amended to list the professions to which the Act will apply if Parliament approves the Bill, namely:

• ayurveda;
• chinese medicine and acupuncture;
• chiropractic;
• homeopathy;
• massage therapy;
• naturopathy;
• osteopathy;
• phytotherapy;
• therapeutic aromatherapy;
• therapeutic reflexology; and
• any other health profession

registered in terms of this Act

3. Reason

When the decision was made, prior to 1982, to close the registers for herbalism, naturopathy and osteopathy, part of the motivation was that the chiropractic and homeopathy courses incorporated elements of herbalism, naturopathy and osteopathy, and separate registers were not necessary. It was also felt at the time that the demand for these professions did not warrant registers. These registers were then closed.

The Act currently provides for the establishment of a statutory health council to control the two remaining professions with open registers, namely chiropractic and homeopathy On 14 October 1994 a notice (No. 1766) was published declaring that the provisions of the Act were now also applicable to the profession of ayurveda.

There has recently been a world-wide trend away from allopathy and towards alternate, less invasive, more "natural" healing methods. As a result, these professions have grown in recognition and stature, with a corresponding growth in practitioner and patient numbers. Patients' and practitioners' demand for official recognition of these professions has grown, leading to the need to:

1. establish academic standards and criteria for registration and the right to practise such professions;
2. uphold ethical standards and protect the public; and
3. negotiate medical aid scheme recognition.

The professional associations for the professions resorting under the closed registers "naturopathy", "osteopathy" and "phytotherapy" (previously "herbalism") approached the Chiropractors, Homeopaths and Allied Health Service Professions Council of South Africa (hereinafter referred to as The council") with the request that these registers be re-opened. At the same time the professional associations for chinese medicine and acupuncture, massage therapy, therapeutic aromatherapy and therapeutic reflexology applied to the council for the Act to be amended to include registers for these professions.

2. Insertion of definitions for the words "acupuncturist", "ayurveda and chinese medicine professional board", "ayurveda practitioner", "chairperson", chiropractor, "complementary professions board", "educational institution", examining authority" "homeopathy", "impaired", "integrated health professions board", "intern", "manipulative professions board", "massage therapist", "naturopath", "osteopath", "phytotherapist", "scheduled substance", "rule", "student-intern", "therapeutic aromatherapist", "therapeutic reflexologist" and "vice-chairperson"

1. Current position

The Act does not provide definitions for the above-mentioned expressions which are already used in the Act or which will be used in the Act if Parliament approves the Bill.

2. New approach

The Act is amended to provide definitions for the above-mentioned expressions. The defining of the professions consequently results in the deletion of the definition of "profession".

3. Reason

The council wishes to include definitions for these expressions to prevent any misinterpretations.

3. Insertion of definition of "unprofessional conduct"

1. Current position

The Act does not provide for a definition of the words "unprofessional conduct".

2. New approach

Section 1 of the Act is amended to provide for a definition of the words "unprofessional conduct".

3. Reason

The words "unprofessional conduct" are used in sections 23 and 24 of the Act.

4. Insertion of definition of "chairperson" and "vice-chairperson"

1. Current position

The Act does not provide for definitions for the words "chairperson" and vice-chairperson".

2. New approach

Section 1 of the Act is amended to provide for definitions for the words "chairperson" and vice-chairperson".

3. Reason

The definitions are inserted for purposes of clarification and to prevent any misunderstanding. The words Chairperson" and "vice-chairperson", which replace the words "chairman" and "vice-chairman", are also more gender friendly.

1. Establishment of the Allied Health Professions Council of South Africa

The Act provides for a statutory council for the professions of ayurveda. chiropractic, herbalism, homeopathy. naturopathy and osteopathy of which the professions of chiropractic and homeopathy were the primary professions and therefore indicated in the name of the council and in the heading of Chapter 1 of the Act.

2. New approach

The heading of Chapter 1 of the Act and the name of the council are amended by substituting the words Chiropractors. Homeopaths and Allied Health Service Professions with the words Allied Health Professions .

3. Reason

As the Act will be applicable to more professions in terms of the Bill -

• registers for ten professions will be established:
• the name of the heading of Chapter 1 of the Act is amended: and
• the name of the council in section 2 of the Act is amended

As more professions will be subject to the provisions of the Act, the council deems it appropriate not to specify the names of certain professions in the name of the Act or in the name of the council.

Note: Wherever the words Chiropractors, Homeopaths and Allied Health Service Professions Act" are used in the Act, they are replaced with the words "Allied Health Professions Act".

2. Convenor of the first meeting of the new council

1. Current position

Section 2 of the Act determines that the Director-General shall convene the first meeting of the council.

2. New approach

Section 2 of the Act is amended to provide that the Registrar shall convene the first meeting of the new council and not the Director-General.

3. Reason

At the time when the Act was promulgated in 1982, a registrar for the council had not yet been appointed. As the council now has a registrar in service, it is no longer necessary for the Director-General to convene the meeting.

3. Site of the council

1. Current position

The Act does not determine where the council should be situated.

2. New approach

A new section 2(2) is inserted in the Act which determines that the head office of the council shall be situated in Pretoria.

3. Reason

All the statutory health councils are situated in Pretoria and their statutes also determine where their head offices are situated.

1. Section 3(a) of the Act

1. Current position

Section 3(a) of the Act does not provide for an object of the council to be "... to protect the public".

2. New approach

Section 3(a) of the Act is amended to determine that the council's object shall be to promote and protect the health of the population of the Republic.

3. Reason

All statutory health councils have been established to inter alia protect the public and this object must also be stipulated in the Act.

2. Insertion of new paragraph (aA)

1. Current position

The Act does not provide for the object of the council namely "to govern, administer and set policy relating to the professions registered with the council".

2. New approach

Section 3 of the Act is amended by the insertion of paragraph (aA) which provides for this object of the council.

3. Reason

One of the council's objects is To govern, administer and set policy relating to the professions registered with the council". The council deems it necessary to provide for this object in section 3 of the Act just as the other objects of the councils are provided for in section 3 of the Act.

3. Deletion of paragraph (e)

1. Current position

Section 3(e) of the Act provides for the council to make recommendations to the Minister regarding the constitution of a new council.

2. New approach

Paragraph (e) of section 3 is deleted.

3. Reason

Paragraph (e) is no longer necessary, as the Bill provides for the constitution of a new council.

4. Insertion of new paragraph (a)

1. Current position

Section 3 of the Act does not provide that an objective of the council is to communicate to the Minister information on matters of public importance acquired by the council in the course of the performance of its functions under this Act.

2. New approach

A new paragraph (9) is inserted to provide for this object of the council.

3. Reason

The council deems it necessary to provide for this object in section 3 of the Act just as the other objects of the council are provided for in section 3 of the Act.

1. Section 4(1)(c) of the Act

1. Current position

Section 4(1)(c) of the Act determines that a person's name may be removed from the register in accordance with the provisions of the Act.

2. New approach

Section 4(1)(c) of the Act is amended to provide that in such circumstances as may be prescribed, or where otherwise authorised by the Act, the council may add or remove a person's name from the register.

3. Reason

The council is of the opinion that it should also have the power to add a name to the register and that the conditions under which a name can be added to or removed from the register should be determined by regulations where they are not yet determined by the Act.

2. Section 4(1)(d) of the Act and insertion of new paragraph (eA)

1. Current position

Section 4(1)(d) of the Act determines that the council may appoint examiners and moderators, conduct examinations and award certificates, and charge the prescribed fees in respect of such examinations and the issue of such certificates.

2. New approach

Section 4(1)(d) of the Act is amended to provide that the relevant professional board be consulted by the council prior to appointing examiners, conducting examinations etc.

Section 4 is further amended by the insertion of paragraph (eA) determining that the council may consult with the relevant professional board on matters pertaining to a registered profession.

3. Reason

The council is of the opinion that professional boards should be consulted in all matters pertaining to professions relating to them, provided that the final decision and accountability remain with the council. All stakeholders are in agreement with this amendment.

3. Section 4(1)(g) of the Act

1. Current position

Section 4(1)(g) of the Act determined that the council may conduct or arrange courses for the supplementary training of practitioners and render financial assistance in respect of such courses.

2. New approach

Section 4(1)(9) of the Act is amended by substituting the words "supplementary training" with the words "continuing professional development" and by the deletion of the words "and render financial assistance in respect of such courses".

3. Reason

The words "supplementary training" are replaced with the words "continuing professional development" because the latter words are used in other health legislation for example the Pharmacy Act, 1974

The council is not able to finance continued professional development (hereinafter referred to as "CPD") due to financial constraints. The council cannot increase the annual subscription fees in order to finance CPD, as the practitioners already pay high subscription fees, compared to professions falling under other councils. The council will strive to make CPD cost effective and accessible to all practitioners.

4. Section 4(1)(gA) of the Act

1. Current position

Section 4(1)(gA) of the Act determines that council may approve any clinic established by a university or technikon or other training institution.

2. New approach

Section 4(1)(gA) of the Act is amended to provide that council may also approve a clinic established by a practitioner or a group of practitioners and that such approval is subject to the council consulting the relevant professional board first.

3. Reason

The council wishes to exercise control over clinics established by practitioners or groups of practitioners in order to protect the public. The council is of the opinion that the professional boards should be consulted in all matters pertaining to the professions, provided that the final decision and accountability remain with the council.

1. New section 5(1) of the Act

1. Current position

Section 5 of the Act determines the constitution of the current council.

2. New approach

Section 5 of the Act is replaced by a new section 5. In terms of the new section 5(1) the council will consist of 16 members, being 1 member per registered profession, nominated by the professional boards from amongst their democratically elected members and the following six members appointed by the Minister:

1. one person appointed on account of his or her knowledge of the law;
2. four persons who are not registered practitioners, one per professional board, to represent the community; and
3. one person to represent the Department of Health

The four community representatives and the ten elected professional representatives shall also serve on the relevant professional boards.

3. Reason

In accordance with the Minister's instruction that a new, transparent council be constituted in accordance with democratic principles, the council held several workshops to obtain broad consensus on an acceptable model. Eventually, broad consensus was reached and the National Homeopathic Forum (previously known as the Homeopathic Forum), the grouping that had opposed the suggested model in favour of a model that provided for a larger number of chiropractors and homeopaths on the council, agreed that the model be accepted and implemented for a trial period. However, they retained their right to submit a separate recommendation to the Minister regarding their alternate model.

2. New section 5(5) of the Act

1. Current position

Section 5(5) of the Act provides for the Director-General to publish the names of council members in the Gazette.

2. New approach

In terms of the new section 5(5) the Registrar shall publish the names of council members in the Gazette.

3. Reason

At the time when the Act was promulgated, a registrar for the council had not yet been appointed. As the council now has a registrar in service, it is not necessary for the Director-General to publish the names in the Gazette.

3. New section 5(6) of the Act

1. Current position

Section 5(6) of the Act determines that the members of the council shall hold office for a period not exceeding 36 months (3 years).

2. New approach

In terms of the new section 5(6) a member of the council shall hold office for a period of five years, provided that he or she may be re-elected or re-appointed for one further five-year term of office.

3. Reason

The council approved this amendment, as:

1. the longer period would promote stability and continuity in the council;
2. the stakeholders supported the amendment; and
3. the council, as a result of the small number of registered practitioners and the limited finances at its disposal, noted that the amendment would eliminate frequent expensive election processes.

4. New section 5(7) to (9) of the Act

1. Current position

Section 5 of the Act does not determine what happens after the new council's term of office expires in five years 'time.

2. New approach

The new section 5(7) to (9) determine what process should be initiated at least six months before the term of office of each council expires:

• The registrar shall call, as prescribed,) for nominations of persons to be elected and/or appointed by the Minister;
• the registrar shall submit the nominations received to the Minister with the request that the appointments be made;
• the registrar shall hold the election as prescribed and inform the Minister of the outcome of such election; and
• the registrar shall inform all nominees and all existing members of the persons elected/appointed.

3. Reason

In order to ensure a smooth transition from the existing council to a new council every five years, it is necessary to determine by regulation the procedure to be followed.

1. Heading of section 6 of the Act

1. Current position

The heading of section 6 does not specify whether the circumstances for disqualification, vacation of office or filling of vacancies is related to a member of the council or a professional board.

2. New approach

The heading is amended by inserting the words For the council" at the end of the heading.

3. Reason

A new section 10B, which deals with the circumstances for disqualification, vacation of office or filling of vacancies relating to a member of a professional board, is inserted into the Act by the Bill.

For purposes of clarification and differentiation between section 6 and the new section 10B, the words For the council" are inserted at the end of the heading to indicate that the circumstances mentioned in section 6 deal only with members of the council.

2. Insertion of new paragraph (dA) in section 6(2) of the Act

1. Current position

Section 6(2)(d) of the Act provides that a member of the council shall vacate his office if he tenders his resignation in writing to the Minister and the Minister accepts his resignation.

2. New approach

Section 6(2)(d) is amended by indicating that if a person was appointed by the Minister as a member of the council he or she can tender his or her resignation in writing to the Minister and the Minister can accept his or her resignation.

Section 6(2)(dA) is inserted to provide that if a person was elected by a professional board as a member of the council he or she can tender his or her resignation in writing to the council and the council can accept his or her resignation.

3. Reason

Due to the fact that some members of the council are elected by professional boards and some are appointed by the Minister in terms of the new section 5 as provided by the Bill, differention must be made between them where it comes to whom a letter of resignation must be submitted.

3. Section 6(2)(e) of the Act

1. Current position

Section 6(2)(e) of the Act provides that a member of the council who becomes a President's patient shall vacate his office

2. New approach

The words "President's patient" is replaced with the words "State patient".

3. Reason

The correct term used in the Mental Health Act, 1973 is "State patient" and not "President's patients. The wording in section 6(2)(e) of the Act is rectified accordingly.

4. New paragraph (h) in section 6(2) of the Act

1. Current position

Section 6 of the Act does not provide that a member of the council who becomes impaired shall vacate his or her office..

2. New approach

A new paragraph (h) is inserted in section 6(2) of the Act to provide that if a member of the council becomes impaired to the extent that he or she is unable to carry out his or her duties as a member of the council, he or she shall vacate his or her office..

3. Reason

The council is of the opinion that its important to insert this paragraph in order to protect the council if a member of the council becomes impaired to the extent that he or she is unable to carry out his or her duties as a member of the council.

5. Substitution of section 6(3) of the Act

1. Current position

Section 6(3) of the Act determines any vacancy on the council arising from a circumstances referred to in subsection (2) or caused by the death of a member shall be filled by appointment by the Minister of a person in the vacancy, and every member appointed in terms of this subsection shall hold ounce for the unexpired portion of the period of office of the member whose office became vacant.

2. New approach

Section 6(3) of the Act is amended to determine that vacancies that occur on the council during the five year term of office of the council shall be filled for the remaining period of the term of office of the current council as prescribed.

3. Reason

The council is of the opinion that the procedure for filling a vacancy for the remaining period of the term of office should be determined by regulation.

1. Section 7(1 ) and (2) of the Act

1. Current position

Section 7 of the Act uses the words "chairman" and vice-chairman

2. New approach

The words "chairman" and "vice-chairman" are replaced in this section and wherever they appear, with the words "chairperson" and vice-chairperson.

3. Reason

The words "chairperson" and "vice-chairperson" are more gender friendly than the words "chairman" and vice-chairman.

2. Insertion of new subsection (3) and (4)

1. Current position

Section 7 of the Act does not -

• determine the term of office of the chairperson and vice-chairperson; or
• provide that such chairperson and vice-chairperson may be re-elected for one further term.

2. New approach

The new subsection (3) determines that the chairperson and vice-chairperson shall be elected on an annual basis.

The new subsection (4) determines that a chairperson or vice-chairperson is eligible for re-election for one further term of office.

3. Reason

The council deems it necessary to stipulate the term of office of the chairperson and vice-chairperson in the Act. The council deems a one year or two year period appropriate in the case of the chairperson and vice-chairperson, as the council requires the chairpersonship to rotate. This will prevent any one profession being advantaged over another profession and will establish the equality of all members of the council.

1. Section 10A(4) of the Act

1. Current position

Section 10A(3) determines that the Minister may, by notice in the Gazette, establish a professional board.

Section 10A(5) of the Act determines the amount of members a professional board shall consist of.

2. New approach

The new section 10A(4) determines the professional boards to be established in terms of the Act and also the amount of members each professional board shall consist of.

3. Reason

The council deems it appropriate to determine the professional boards in the Act itself as well as the amount of members each professional board shall consist of. This is in line with the new section 6 of the Act ("Constitution of councils) which also determines the amount of members the council shall consist of.

2. Section 10A(5) and (6) of the Act

1. Current position

Section 10A(4) of the Act determines that the powers and duties of a professional board must be determined by regulation.

Section 1 OA(5) of the Act determines the constitution of a professional board.

2. New approach

In the new section 10A(5) and (6) the words "powers and duties" are replaced with the words "function and functioning".

The new section 10A(5) determines that the constitution,functions, functioning and term of office of a professional board will in future be determined by regulation.

The new section 10A(6) indicates the provisions which the regulations regarding the constitution, functions and functioning of a professional board shall at least provide for.

3. Reason

The council is of the opinion that the powers and the duties of the council as stated in the current Act do not go far enough. The council is of the opinion that "functions" and "functioning" are more encompassing terms and that the new regulations will make this clear.

In the case of the Health Professions Council of SA, regulations also determine the constitution, function and functioning of a professional board.

1. Insertion of new section 10B: Disqualification for appointment as member, vacation of office by members and filling of vacancies of professional boards

1. Current position

The Act does provide for disqualification for appointment as a member, vacation of office by members and filling of vacancies for members of the council (section 6), but not for members of professional boards.

2. New approach

A new section 10B is inserted with similar grounds for disqualification as those applicable to members of the council.

3. Reason

The council and all the stakeholders agreed that provision has to be made in the Act for the disqualification-grounds for members of a professional board, just as they are provided for in the Act with regard to members of a council.

2. Insertion of new section 10C: Objects of professional boards

1. Current position

The Act provides for the establishment of professional boards, but does not provide for the objects of a professional board.

2. New approach

A new section 1 0C is inserted which determines the objects of a professional board.

3. Reason

The council and all the stakeholders agreed that provision has to be made loathe Act for the objects of professional boards just as provision is made in the Act for the objects of the council (section 3 of the Act)

3. Insertion of new Section 10D: General powers of a professional board

1. Current position

The Act provides for the establishment of professional boards, but does not provide for the general powers of a professional board

2. New approach

A new section 10D is inserted which determines the general powers of a professional board.

3. Reason

The council and all the stakeholders agreed that provision has to be made in the Act for the general powers of professional boards just as provision is made in the Act for the general powers of the council (section 4 of the Act).

1. Section 11(2) of the Act

1. Current position

The Act provides for the registrar to be the secretary of the council, but not the secretary of a professional board.

2. New approach

Section 11(2) of the Act is amended, to provide for the registrar to be the secretary to the council and of each professional board.

3. Reason

The council agreed that the office of the registrar should also act as the secretariat of each professional board.

2. Insertion of new subsection (3,)

1. Current position

The Act does not determine that the registrar and staff members shall not be persons registered in professions regulated by the Act.

2. New approach

A new subsection (3) is inserted which determines that the registrar and staff members shall not be persons registered in professions regulated by the Act.

3. Reason

The council agreed that the office of the registrar should be absolutely objective and fair to all the registered professions.

1. Insertion of now subsections (3) and (a)

1. Current position

Section 12 of the Act does not provide that the council may finance a professional board.

2. New approach

A new subsection (3) is inserted to provide for the council, where it deems it necessary, to make financial grants from its own funds to assist in the financial operation of a professional board if it is convinced that such a professional board cannot be adequately financed by its own registered practitioners.

A new subsection (4) is inserted which determines that all professional boards shall submit audited income and expenditure statements to the council on an annual basis.

3. Reason

The professional boards will in due course become self-sufficient. In the meantime professional boards may need financial assistance and such assistance must be provided for in the Act.

The purpose of professional boards submitting audited income and expenditure statements to the council on an annual basis is to control the expenditure of such funds.

1. Section 15(3) of the Act

1. Current position

Section 15 of the Act does not provide that the professional boards be consulted regarding the registration of practitioners.

2. New approach

Section 15(3) of the Act is amended to provide that the council may request the relevant professional board to consider an application and that such professional board, if satisfied that the applicant concerned may register in terms of the Act, recommend to the council the approval or disapproval of such an application.

3. Reason

The council is of the opinion that the professional board has the expertise to evaluate and make recommendations regarding an application for registration and should be required to assist the council. However, the final decision and accountability should remain with the council.

2. Insertion of a new subsection (3A)

1. Current position

Section 15 of the Act does not provide that after the council is satisfied that an applicant may be registered in terms of the Act, the council shall approve the application and the registrar register the applicant by -

• issuing an appropriate certificate of registration; and
• entering the prescribed particulars in the appropriate register.

2. New approach

A new subsection (3A) is inserted to provide that after the council is satisfied that an applicant may be registered in terms of the Act, the council shall approve the application and the registrar register the applicant by -

• issuing an appropriate certificate of registration; and
• entering the prescribed particulars in the appropriate register.

3. Reason

The new subsection (3A) has been inserted for completeness. It describes the procedure that currently takes place.

3. Section 15(5) of the Act

1. Current position

Section 15(5) of the Act determines that a person who is registered in terms of the Act, shall, in the practice of his or her profession, only state particulars of those degrees, diplomas or certificates entered in the appropriate register against his or her name.

2. New approach

Section 15(5) of the Act is amended to provide that such a person may also state other qualifications recommended by the professional board and approved by the council

3. Reason

The council considered the request received from representatives of the professions to be registered in terms of the Act and agreed that a practitioner may reflect other qualification(s) (for example, an MBA qualification) than his or her registered qualification (in terms of the Act) on his or her professional stationery if such permission is recommended by the relevant professional board and approved by the council.

1. Insertion of new subsection (1A)

1. Current position

The Act does not provide that the existing, but currently closed, professional registers for naturopathy, osteopathy and phytotherapy (previously "herbalism") be re.opened for the registration of practitioners.

The Act also does not provide for professional registers for chinese medicine and acupuncture, massage therapy, therapeutic aromatherapy and therapeutic reflexology to be established for the registration of practitioners

2. New approach

A new subsection (1A) is inserted to provide for the re-opening of the closed professional registers and for the establishment of new registers.

3. Reason

The stakeholders of the council have supported the re-opening of the registers for the professions naturopathy, osteopathy and phytotherapy (previously "herbalism"). Although an application by the council direct to the Minister to re-open the registers could be launched, as these registers are mentioned in the Act, the council decided to request the re-opening of these registers by means of providing therefore in the Bill.

Most of the stakeholders of the council have supported the establishment of the registers for the professions chinese medicine and acupuncture, massage therapy, therapeutic aromatherapy and therapeutic reflexology. The only continued objection against the last three professions has come from the Hairdressing and Cosmetology Services Industry Education and Training Board (HCSIETB) which objects to separate registers for massage therapy, therapeutic aromatherapy and therapeutic reflexology, as they are concerned that persons who currently fall under the control of their Board may, as a result of the Bill, be compelled to register with the Council.

The Council has assured HCSIETB that only if such professionals make a therapeutic claim for what they are doing, i.e. if their therapists are seeing "patients" and not "clients" will they have to be properly trained and registered. In order to meet the HCSIETB, the council agreed to amend the names of two of these professions to "therapeutic aromatherapy" (aromatherapy), massage therapy (remains as is) and "therapeutic reflexology" in order to emphasise the distinction between therapeutic and non-therapeutic use of the therapies.

The HCSIETB has requested that a suitable disclaimer be inserted into the Act. The council will reconsider the request when the regulations are drawn up. The HCSIETB has dissolved and now forms part of the Services Sector Education and Training Authority (hereinafter referred to as "the Authority"). It is not clear whether the Authority will persist with the objection lodged by the HCSIETB.

2. Insertion of new subsection (3)

1. Current position

The Act does not provide for practitioners registered in the various professions in terms of the Act to have access to or dispense appropriate medication.

2. New 'approach

A new subsection (3) is inserted which determines that subject to the provisions of the Medicines and Related Substances Control Act, 1965 and subject to the approval of the Medicine Control Council, the Minister may, on the recommendation of the council, by regulation define the access to and availability of medicines relative to the professions registered in terms of the Act.

3. Reason

The new South African Medicines and Medical Devices Regulatory Authority Act, 1998 (hereinafter referred to as "the SAMMDRA Act"), when it is implemented and replaces the existing Medicines and Related Substances Control Act, 1965,is expected to define the access to and availability of medicines relative to the professions registered in terms of the Act. The council wishes to ensure that our professions provided for in the new SAMMDRA Act and that the right to dispense where appropriate is retained by our practitioners.

3. Insertion of new subsection (4)(a)

1. Current position

The Act does not provide for a practitioner to personally compound or dispense medicines prescribed by himself or herself or by other practitioner with whom he or she is in partnership or with whom he or she is associated as principal or assistant or locum tenens, for use by a patient under treatment of such practitioner or such other practitioner.

2. New approach

A new subsection (4)(a) is inserted to provide for a practitioner, subject to the provisions of the Medicines and Related Substances Control Act, 1965 (Act No. 101 of 1965), to personally compound or dispense medicines prescribed by himself or herself or by other practitioner with whom he or she is in partnership or with whom he or she is associated as principal or assistant or locum tenens, for use by a patient under treatment of such practitioner or such other practitioner.

3. Reason

Practitioners of the relevant professions provided for in terms of the Act (e.g. ayurveda, chinese medicine and acupuncture, homeopathy, phytotherapy and therapeutic aromatherapy have traditionally dispensed the medications relevant to these professions. The Bill makes provision for such right to dispense to continue.

4. Insertion of new subsection (4)(b)

1. Current position

The Act does not provide for the registrar to keep a register on practitioners -

• who within three months after commencement of the Bill submit proof that at such commencement he or she compounded or dispensed medicine in the practice of his profession; or
• inform the registrar in the prescribed manner of his or her intention to compound or dispense medicine in the practice of his or her profession.

2. New approach

A new subsection (4)(b) is inserted which determines that the registrar shall keep a register on practitioners -

• who within three months after commencement of the Bill submit proof that at such commencement he or she compounded or dispensed medicine in the practice of his profession; or
• inform the registrar in the prescribed manner of his or her intention to compound or dispense medicine in the practice of his or her profession.

3. Reason

Council wishes to provide for the control of dispensing practitioners. Only persons who can prove to the satisfaction of the council that they have the necessary knowledge, proficiency and expertise to dispense appropriately and safely, will be permitted by the council to dispense. When the SAMMDRA Act is implemented, a suitable dispensing course will be mandatory for all practitioners who wish to dispense.

5. Insertion of a new subsection (5)

1. Current position

The Act does not provide for the council to direct that the name of any person be removed from the register or prohibit him or her for a specified period from making use of the right contemplated in subsection (4).

2. New approach

A new subsection (5) is inserted which determines that the council may direct that the name of any person be removed from the register or prohibit him or her for a specified period from making use of the right contemplated in subsection (4)

3. Reason

The council has a duty to protect the public. If the council is of the opinion that a practitioner is unable or unwilling to dispense medicine in a manner that is safe for his or her patients, the council will suspend the right to dispense for a period and will require that the practitioner concerned provide proof to the satisfaction of the council of his or her ability to dispense safely.

6. Insertion of a new subsection (6)

1. Current position

The Act does not provide for the council to determine fees to be paid for the entering of a name in the register

2. New approach

A new subsection (6) is inserted which determines that the council may determine fees to be paid for the entering of a name in the register.

3. Reason

The registration process entails administration, postage, etc. The council wishes to recover these costs. The amount concerned will be prescribed.

1. Amendment of section 16A(1) of the Act

1. Current position

Section 16A(1) of the Act excludes universities and technikons from having to obtain approval from the council for purposes of offering or providing education or training.

2. New approach

Section 16A(1) of the Act is amended to provide that every person and institution must obtain approval from the council in order to offer or provide education and training

3. Reason

Private training providers are increasingly offering their courses under the auspices of South African tertiary institutions. Although the council supports tertiary training for the professions that are registerable in terms of the Act, if such training providers are not required to submit their courses to the council for approval, any learner who obtains such qualification will not necessarily be registered to practise. Even when a course has been approved by the Department of Higher Education and registered on the National Qualifications Framework by SAQA, the course contend could be inappropriate for practising the profession concerned.

2. Amendment of section 16A(2) and (3) of the Act

1. Current position

Section 16A(2) of the Act provides for a person or institution who wants to provide education or training to apply in writing to the council for approval of such education or training.

2. New approach

Section 16A(2) of the Act is amended by inserting a provision stating that such application will be submitted by the registrar to the relevant professional board for consideration and to make a recommendation to the council.

The amendment to section 16A(3) results from the amendment to section 16A(2)

3. Reason

The most expertise regarding the individual professions will be situated within the professional boards, as only one person will represent each profession on the council. It therefore makes sense for the relevant professional board to be consulted prior to the final decision being taken by the council.

3. Amendment to section 16A(5) of the Act

1. Current position

Section 16A(5) of the Act imposes a penalty not exceeding R2 000 for contravention of this section.

2. New approach

Section 16A(5) of the Act is amended to provide for the Minister to determine the amount of maximum fines from time to time by regulation.

3. Reason

With time, fines become ineffective. The amending of a fine determined in the Act takes a lot longer than when it is determined by regulation. By transferring this and other monetary penalties to the regulations, amendment thereof is simplified.

4. Insertion of new subsection (6)

1. Current position

The Act does not provide for council to monitor examinations.

2. New approach

A new subsection (6) is inserted to provide for the council to appoint a person to attend at the examinations conducted by any person or institution approved by the council.

3. Reason

By monitoring examinations conducted by any person or institution approved by the council, the council can monitor academic standards and ensure the upholding of academic standards.

1. Amendment of section 16B(1) of the Act

1. Current position

Section 16B(1) of the Act does not provide that the council must first consult with the relevant professional board before making recommendations to the Minister regarding qualifications to be prescribed.

2. New approach

Section 16B(1) is amended to provide that the council must first consult with the relevant professional board before making recommendations to the Minister regarding qualifications to be prescribed.

3. Reasons

The most expertise regarding the individual professions will be situated within the professional boards, as only one person will represent each profession on the council. It therefore makes sense for the relevant professional board to be consulted prior to the final decision being taken by the council

1. Amendment to section 16C(1) of the Act

1. Current position

Section 16C(1) of the Act determines that the council may accept a qualification other than a qualification referred to in section 16B, for the purpose of registration, if such qualification in the opinion of the council indicates a satisfactory standard of professional education.

2. New approach

Section 16C(1) of the Act is amended to provide that the council must first consult the relevant professional board for purposes of determining if such qualification indicates a satisfactory standard.

3. Reason

The most expertise regarding the individual professions will be situated within the professional boards, as only one person will represent each profession on the council. It therefore makes sense for the relevant professional board to be consulted prior to the final decision being taken by the council

1. Current position

Section 16D(2) determines that the maximum amount of a fine is R100.

2. New approach

Section 16D(2) is amended to provide that the amount of the fine will be determined by regulation.

3. Reason

With time, fines become ineffective. The amending of a fine determined in the Act takes a lot longer than when it is determined by regulation. By transferring this and other monetary penalties to the regulations, amendment thereof is simplified

1. Current position

Section 16E(1) of the Act provides that for purposes of promoting education or training, the council may register a person not permanently resident within the republic in the profession in which he gives education or training, for such period as the council may determine.

2. New approach

Section 16E(1) of the Act is amended to provide that the council must first consult with the relevant professional board before registering such a person.

3. Reason

The most expertise regarding the individual professions will be situated within the professional boards, as only one person will represent each profession on the council. It therefore makes sense for the relevant professional board to be consulted prior to the final decision being taken by the council.

1. Current position

Section 18(1) of the Act determines that a person who desires to be registered as a student, shall apply to the council.

2. New approach

Section 18(1) of the Act is amended to determine that a person who enrols as a student shall apply to the council for registration as a student.

3. Reason

All students in professions for which registers are established in terms of the Act should be required to register with the council as students. The previous wording gives the student the choice of registering or not registering

1. (i) Current position

The Act does not provide for undergraduate or graduate internships.

(ii) New approach

Section 19A is inserted to -

• provide for a person who graduates within or outside the Republic and wishes to practise such profession in South Africa, to apply for registration [section 19A(1)];
• provide for such person to be registered as an intern and be required to complete a prescribed internship programme prior to registration as a practitioner [section 19A(2)];
• provide for the registration of a person not yet graduated in a profession, as a student intern and to commence with an internship program as prescribed [section 19A(3)];
• determine that such person shall not be registered by the council as a practitioner prior to graduation and completion of the prescribed internship [section 19A(4)]; and
• provide for the duration, requirements, conditions and rules pertaining to such internship to be determined by regulation [section 19A(5)].

(iii) Reason

It is essential for particularly chiropractic and homeopathy graduates to undergo a year-long period of internship prior to being registered and starting out in private practice. All stakeholders agree that the Act should provide for internships. The council has inserted a new section 19A enforcing internship for graduates and enabling the commencement of internship for undergraduates, in accordance with the requirements of the relevant professional board, as to be prescribed in the regulations.

1. Current position

Section 21 of the Act does not provide for the removal from the register of the name of a practitioner who becomes mentally or physically impaired.

2. New approach

A new paragraph (g) is inserted in section 21(1) to provide for such removal.

3. Reason

It is essential for the council to have the power to de-register a person who has become mentally or physically impaired to such an extent that he or she is unable to uphold the usual standards of practice and is considered by the council to constitute a danger to the public.

1. Insertion of new subsection (1A)

1. Current position

Section 23 of the Act does not provide for the council to refer allegations of misconduct to the relevant professional board and to delegate to such professional board the right to investigate and to hold an inquiry in the prescribed manner.

2. New approach

Section 23 of the Act is amended by inserting new subsection (1A) to provide for such referral and delegation of the right to investigate and hold an inquiry.

3. Reason

The council wishes to delegate matters such as disciplinary inquiries to the professional boards to investigate, the reason being that most expertise regarding the individual professions will be situated within the professional boards, as only one person will represent each profession on the council. It therefore makes sense for the relevant professional board to be consulted prior to the final decision being taken by the council.

2. Insertion of a new subsection (1B)

1. Current position

Section 23 of the Act does not provide that when a professional board is holding an inquiry, it can seek information from any person and investigate a matter fully

2. New approach

Section 23 of the Act is amended by inserting a new subsection (1B) to provide for the professional board to seek information and investigate a matter fully.

Note: the new subsection (1B) flows from the new subsection (1A)

3. Reason

The insertion of subsection (1B) is essential in order to empower the professional board to obtain the information it deems necessary to investigate the matter properly.

3. Insertion of a new subsection (1C)

1. Current position

Section 23 of the Act does not provide for the professional board, after finding a practitioner guilty, to recommend the imposition of a penalty and for the council to then impose such penalty.

2. New approach

Section 23 of the Act is amended by inserting a new subsection (1C) to provide for the professional board, after finding a practitioner guilty, to recommend the imposition of a penalty and for the council to then impose such penalty.

3. Reason

When an inquiry is held, the professional board should conclude the matter by finding a practitioner guilty or not guilty of the charge against him or her. The professional board should then make a recommendation to the Council regarding an appropriate penalty (if any) to be imposed. The most expertise regarding the individual professions will be situated within the professional boards, as only one person will represent each profession on the council. It therefore makes sense for the relevant professional board to be consulted prior to the final decision being taken by the council.

4. Amendment of subsections (1) and (3)

1. Current position

Section 23(1) and (3) of the Act uses the expressions "improper or disgraceful conduct".

2. New approach

Section 23(1) and (3) is amended by substituting the words Improper and disgraceful conduct" with the words "unprofessional conducts.

3. Reason

The substitution of the words Improper and disgraceful conduct" with the words "unprofessional conduct" is due to the new definition of "unprofessional conduct" which is inserted by the Bill in section 1 of the Act.

1. Amending of subsections (1), (3) and (9) of the Act

1. Current position

Section 24 determines the amounts of the fines in the Act.

2. New approach

Section 24(1)(d), (3)(c)(iv) and (9) of the Act are amended by providing that the amount of the fine will be determined by regulation.

3. Reason

With time, fines become ineffective. The amending of a fine determined in the Act takes a lot longer than when it is determined by regulation. By transferring this and other monetary penalties to the regulations, amendment thereof is simplified.

2. Amendment of subsections (1 ) and (9)

1. Current position

Section 24(1) and (9) of the Act uses the expressions "improper or disgraceful conduct".

2. New approach

Section 24(1) and (9) is amended by substituting the words "improper and disgraceful conduct" with the words "unprofessional conduct".

3. Reason

The substitution of the words "improper and disgraceful conduct" with the words "unprofessional conduct" is due to the new definition of "unprofessional conduct" which is inserted by the Bill in section 1 of the Act.

1. Amendment of section 30(1 ) of the Act

1. Current position

Section 30(1) of the Act determines that the council shall after investigating a matter, if it deems it necessary, hold an inquiry.

2. New approach

Section 30(1 ) of the Act is amended to determine that the council can refer a matter to the relevant professional board to hold an inquiry.

3. Reason

The most expertise regarding the individual professions will be situated within the professional boards, as only one person will represent each profession on the council. It therefore makes sense for the relevant professional board to be consulted prior to the final decision being taken by the council.

2. Amendment of section 30(6) of the Act

1. Current position

Section 30(6) of the Act provides for a maximum fine of R100.

2. New approach

Section 30(6) of the Act is amended to provide that the fine be determined by regulation.

3. Reason

With time, fines become ineffective. The amending of a fine determined in the Act takes a lot longer than when its determined by regulation. By transferring this and other monetary penalties to the regulations, amendment thereof is simplified.

1. Insertion of new subsections (3) and (4)

1. Current position

Section 31 of the Act does not provide for practitioners found guilty during disciplinary inquiries to be required, at the discretion of the council, to bear part or all of the cost to the council of holding such inquiry.

2. New approach

Section 31 is amended by inserting a new subsection (3) to provide for such requirement.

3. Reason

If practitioners are required to contribute to the costs of holding disciplinary inquiries, the council would have more funds available. Disciplinary inquiries are very expensive to hold and it is unfair that the annual registration fees paid by all practitioners be utilised to conduct these inquiries. The Health Professions Council has inserted a similar requirement into their legislation.

1. Current position

The Act provides for a fine not exceeding R500 for practitioners or students found guilty in terms of this section.

2. New approach

Section 32 has been amended to provide that the amount of the fine be determined by the Minister from time to time by regulation.

3. Reason

With time, fines become ineffective. They cannot be raised if they are specified in the Act without amending the Act, which is a long process. By transferring this and other monetary penalties to the regulations, amendment thereof is simplified.

1. Current position

Section 36 of the Act does not provide that a professional board or its members shall not be liable for any act done in good faith under the Act.

2. New position

Section 36 of the Act is amended to provide that a professional board or its members shall not be liable for any act done in good faith under the Act.

3. Reason

This amendment is necessary to protect members of professional boards who act in good faith, where such act leads to litigation.

1. Current position

Section 38A(2) of the Act refers to "section 32 of the Medical Schemes Act, 1967 (Act 72 of 1967)".

2. New approach

Section 38A(2) of the Act is amended by replacing the words "section 32 of the Medical Schemes Act, 1967 (Act 72 of 1967)".with the words "section 59 of the Medical Schemes Act, 1998 (Act No. 131 of 1998).

3. Reason

The Medical Schemes Act, 1967 has been replaced by the Medical Schemes Act, 1998.

1. Current position

Section 38B of the Act provides for an appeal committee appointed by the Minister to be chaired by a magistrate with at least ten years experience as a magistrate.

2. New approach

Section 38B of the Act is amended to delete the requirement of 10 years of experience as a magistrate.

3. Reason

As a result of staffing problems experienced by the Department of Justice, it has become extremely difficult to find a suitable person to chair such appeals. The council proposes removing the prescriptive phrase ".... With at least ten years of experience as a magistrate...." and leaving the matter in the hands of the Minister.

The Bill does not have any financial implications for the State.

The Bill has no communication implications in addition to the commencement of the Bill as an Act of Parliament being published in the Government Gazette.

The Bill has no organisational or personnel implications for the State.

The following were consulted

• Acupuncture Association of the Western Cape
• Aromatherapy Society of South Africa
• Aryan Benevolent Home Council
• Association of Aromatherapists South Africa
• Ayurvedic Medical Association
• Ayurveda Practitioners Association of South Africa
• Chinese Medicine and Acupuncture Association
• Chiropractic Association of South Africa
• Confederation of Complementary Health Associations of South Africa
• Ethnomedicine and Phytotherapy Practitioners Association of South Africa
• Herb Association of South Africa
• Holistic Massage Practitioners Association
• Homeopathic Medical Association of South Africa
• Homeopathic Practitioners Association of South Africa
• Industrial Training Board for Hairdressers and Cosmetologists
• International Association of Health and Beauty
• Osteopathic Association of South Africa
• Society of Chinese Traditional Medicine and Acupuncture
• South African Association of Herbalism Practitioners
• South African Association of Professional Acupuncturists
• South African Ayurvedic Medicine Association
• South African Beauty Association
• South African Beauty Schools Association
• South African Branch of the International Acupuncture Association
• South African Complementary Medicines Association
• South African Foreign Qualified Doctors Association
• South African Institute of Health and Skincare Professionals
• South African Medical Acupuncturists Association
• South African Medical Herbalists Association
• South African Naturopathy Association
• South African Herbalists and Naturopaths Association
• South African Reflexology Society
• South African Remedial Yoga Teachers Association
• South African Vitalistic Chiropractors Association
• Technikon Natal
• Technikon Witwatersrand
• The Healing Association of South Africa
• The National Reflexology Association
• The Natural Therapeutics Practitioners Association of South Africa
• The South African Tibb Association

The State Law Advisors and the Department of Health are of the opinion that the Bill must be dealt with in accordance with section 75 of the Constitution.

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