BILL WATCH 35/2024
[21st September 2024]
The Medical Services Amendment Bill
In May 2022 the Government published a Medical Services Amendment Bill which proposed to bring the Medical Services Act into line with the Constitution. We analysed it in Bill Watch 32/2022 [link]. The Bill reached its Second Reading stage in the National Assembly before lapsing when Parliament was dissolved in July 2023. In July this year a new Medical Services Amendment Bill was published [link], which largely reproduces the provisions of the 2022 Bill but makes some changes.
In this bulletin we shall analyse the new Bill, drawing attention to differences between it and the 2022 Bill. Because the two Bills are so similar we shall repeat a lot of what we said in our earlier bulletin, Bill Watch 32/2022; we have to do this in order to explain the new Bill to readers without making them refer back constantly to the earlier bulletin.
Before looking at the new Bill we shall outline the relevant provisions of the Constitution and the Medical Services Act [which we shall call “the Act”].
The Constitution
The following provisions of the Constitution deal with health care:
· 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.
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).
The New Bill
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 all health institutions – hospitals, clinics, surgeries and so on, whether State or private – to give 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 own 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.
Patients’ rights
Clause 5 of the Bill will insert new sections 8A, 8B, 8C and 8F obliging health professionals to get the informed consent of patients before administering treatment, unless the patients 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 patients. Patients will generally have the right to participate in decisions affecting their health and treatment. Particularly stringent conditions are imposed on getting patients’ consent to be used as “guinea pigs” for experimental or research purposes.
Rights of children
Under a new section 8D to be inserted in the 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 81 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.
Complaints procedures
Under a new section 8I, all health institutions, State and private, will have to establish complaints procedures and tell their patients regularly about those procedures.
Refusal of treatment
Under a new section 8J, health personnel will be entitled to refuse to treat patients who are physically or verbally abusive or who harass them sexually – but whenever treatment is refused for this reason a written report will have to be made to the Secretary for Health and Child Care.
Prevention of discrimination
Section 12 of the Act will be amended by clause 6 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 7 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 say 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. Another provision in the section states that the Minister may conclude agreements with health institutions for the recovery of the costs of treating these emergency patients.
Comments: The new section does not say that private health institutions must comply with a request by the Minister to take in patients from Government hospitals, but that has to be presumed since it will be a crime for anyone to contravene the section.
The Minister will not be required by law [it is left up to the Minister] to conclude agreements refunding the costs of treating emergency patients, and if he declines to do so the private health institutions will have to bear those costs.
Sanctions
A new clause 9 in the Bill will give the Secretary for Health and Child Care power to impose sanctions on health practitioners and health institutions that breach the Act or guidelines he has issued under the Act. In the case of a practitioner, the Secretary will be able to lodge a complaint with the appropriate disciplinary authority; in the case of an institution, the Secretary will be able to institute proceedings in terms of the Act to suspend or cancel its registration.
Comment: These powers, which are quite drastic, are regrettably vague. It is not clear what powers there are under the Act to suspend or cancel the registration of health institutions.
Regulations
Clause 10 of the Bill will give the Minister power to make regulations providing for health care for children (despite their parents’ moral or religious beliefs) and for persons with chronic illnesses, war veterans, elderly persons and persons living with disabilities. The Minister will also be able to make regulations for reproductive health care and for the types of basic health care to be provided at government health institutions.
Some Differences Between the Old and New Bills
Incentives for establishing private health institutions
The old Bill would have inserted a new section into the Act giving the Minister power to prescribe incentives for people who establish health care facilities in marginalised areas or for marginalised communities. This has been omitted from the new Bill. It is not clear why.
Duties of patients
The old Bill would have inserted a section setting out duties of patients – to comply with the rules of the health institution that is treating them, to treat health personnel with respect, and so on. This section is not in the new Bill.
Final Comments
The new powers the Bill will give to the Secretary for Health will have to be administered with a light touch if they are not to stifle the provision of health care by the private sector. For example, private health institutions could be overwhelmed if too many patients are transferred to them from government hospitals – and as we have said, it is not clear that the State will reimburse the private institutions for the cost of treating those patients.
There is some lack of clarity in the new Bill – for example the definition of “basic health care” is meaningless – but generally the Bill succeeds in its stated aim of bringing the Act into line with the Constitution. That said, bringing the Act into line with the Constitution is not the same as providing health care of a standard envisaged by the Constitution. Raising the standard of health care in Zimbabwe will not be achieved by simply amending the Act: it 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 the Government does not provide.