BILL WATCH 32/2022
[21st July 2022]
The Medical Services Amendment Bill
The Medical Services Amendment Bill [link] was published in the Gazette on the 20th May. It should not be confused with the Health Service Amendment Bill, which we considered in Bill Watch 2/2022 of the 11th January 2022 [link].
The Bill that is the subject of this bulletin – the Medical Services Amendment Bill – is currently being considered by the appropriate parliamentary portfolio committee and public hearings are being held this week – see Committee Series 29/2022 [link]. The Bill has not yet been presented in the National Assembly.
According to its memorandum, its purpose is to bring the Medical Services Act into line with the following provisions of the Constitution:
· section 60(3), which states that children’s right to health takes precedence over their parents’ right to determine their upbringing,
· section 76, which gives citizens, permanent residents and persons with chronic illnesses the right to basic health care services, and prohibits health care institutions from refusing to provide persons with emergency medical treatment,
· section 81(1), which gives all children the right to health care services, and
· sections 82, 83 and 84, which give elderly people, persons living with disabilities and war veterans the right to health care from the State.
In this Bill Watch we shall see how far the Bill achieves its avowed purpose. Before doing so however we should give a brief outline of the Medical Services Act (which we shall refer to as “the Act”) [link].
The Medical Services Act
According to its long title, the Act aims at ensuring the provision and maintenance of comprehensive hospital services in Zimbabwe, and it defines the word “hospital” widely to include nursing homes, maternity homes and mental hospitals. More specifically, the Act:
· provides for access by private medical practitioners to patients in government hospitals (section 5),
· gives the Minister of Health and Child Care power to fix the fees payable for services at government hospitals (section 8),
· provides for the registration of medical aid societies (Part III),
· requires the Minister’s approval for the establishment of private hospitals (section 11),
· prohibits private hospitals from refusing to admit patients on the grounds of race, tribe, place of origin, gender, political opinions, colour or creed (section 12),
· gives the Minister power to require private hospitals to provide services to particular classes of patients at reduced cost (section 12(3)), and
· gives the Minister power to prescribe maximum fees chargeable by private hospitals (section 13).
What the Bill will Do
The Bill will align the Act with the Constitution, and will do more: it will expand the scope of the Act to cover services provided by all “health care providers”, i.e. doctors, nurses and other health practitioners, as well as hospitals, surgeries, clinics and other health institutions.
What follows is an outline of the more important amendments the Bill will make to the Act.
Treatment of persons under arrest or detention
Clause 3 of the Bill will insert a new section 7A into the Act to oblige health institutions – hospitals, clinics, surgeries and so on – to provide treatment to persons under arrest or detention. The treatment will be provided at State expense or, if the person so chooses, at his or her expense.
Comment: The new section will not make it obligatory for the police or prison authorities to bring arrested or detained persons to a health institution for treatment if they need it. Unless it imposes such an obligation on them, the new section will be ineffective.
Clause 5 of the Bill will insert new sections 8A, 8B and 8C which will oblige health professionals to get the informed consent of patients before administering treatment. They will have to tell their patients about the range of treatments available and the risks and benefits of each one. They will also have to get the informed consent of their patients before treating them unless a patient cannot give consent and someone else gives it on their behalf, or unless failure to give treatment will result in a serious risk to public health or irreversible harm to the patient. Patients will generally have the right to participate in decisions affecting their health and treatment.
Rights of children
Under a new section 8D to be inserted in the Medical Services Act by clause 5, it will be a crime for parents to prevent their children from receiving treatment which is in the children’s best interests, or to withhold their consent to such treatment.
Comment: The new section will give effect to section 60(3) of the Constitution, but if parents are prosecuted for this crime the courts may have to make difficult decisions about what is in the best interests of children, weighing the opinions of parents against current medical orthodoxy.
Confidentiality of health information and records
Under new sections 8G and 8H to be inserted in the Act by clause 5, health information about a patient will be confidential and no one will be allowed to disclose it unless the patient consents, or disclosure is mandated by a court or a law, or unless non-disclosure will seriously threaten public health. Health professionals will have to take measures to prevent unauthorised access to patients’ records.
Comment: The duty of patient confidentiality and the duty to protect patients’ health records against disclosure have long been part of the ethical duties of health professionals. The new sections will reinforce those duties with criminal sanctions.
Incentives for establishing private health facilities
Clause 6 of the Bill will insert a new section 11A into the Act giving the Minister power to prescribe incentives for people who establish health care facilities in marginalised areas or for marginalised communities.
Comment: The new section does not specify the nature of the incentives.
Prevention of discrimination
Section 12 of the Act will be amended by clause 7 of the Bill to extend the grounds on which discrimination against patients is not allowed, so that the section covers all the prohibited grounds of discrimination set out in section 56 of the Constitution.
Emergency medical treatment
Clause 8 of the Bill will insert a new section 12A into the Act which will oblige private health institutions to admit patients who need emergency treatment for a life-threatening condition, and to keep them for at least 48 hours for stabilisation. Then, if the patients cannot afford treatment at the private institution, it will be permissible to transfer them to a government institution that can provide the necessary treatment or care. The section goes on to state that the Minister may conclude an agreement with the health institutions concerned for the recovery of the costs of treating these emergency patients.
Comment: the section says may and does not require the Minister to conclude such agreements, and if he declines to do so the health institutions will have to bear the costs.
Another provision in the new section will state that the Minister may request a private health institution to make its specialist facilities available to patients who need emergency treatment that cannot be provided at government institutions to which they have been admitted.
Comments: The provision does not say that private health institutions must comply with a request by the Minister, but that has to be presumed since it will be a crime for anyone to contravene the provision. Also, though it is not clear, the earlier provision for the Minister to conclude agreements for recovering the costs of treatment presumably applies to these patients also.
Generally the new section will give effect to section 76(3) of the Constitution, which gives everyone a right to emergency medical treatment.
Clause 10 of the Bill will give the Minister power to make regulations providing for health care for children, persons with chronic illnesses, war veterans, elderly persons and persons living with disabilities.
Comment: All these people are entitled to medical treatment under the Constitution, but it will be up to the Minister to prescribe how much they get.
There are some defects in the Bill which we have pointed out, mainly lack of clarity in certain provisions. The Bill also defines terms – “basic health care” and “reproductive health care” – which are not used anywhere in the Bill or the Act. It should be noted here that the Act does not deal specifically with maternal health care or reproductive health care, and in view of the high maternal death rate in Zimbabwe it probably should do so. Apart from that, the defects we have found are relatively minor, and generally the Bill will provide a legal framework for improving health care coverage in Zimbabwe. It will not however lead to improved health care: that will entail rehabilitating our hospitals, clinics and health institutions, and increasing the professionalism of our health care providers. All of which will require money – which we don’t have.