The Health Service Amendment Bill: Bill Watch 2/2022

The Health Service Amendment Bill was published in the Gazette on the 23rd July last year. It has been presented in the National Assembly and is currently being considered by the Parliamentary Legal Committee. According to its memorandum the Bill is intended to align the Health Service Act to the Constitution; it also “discusses the parameters of collective job action by the Health Service.” In order to assess what the Bill will actually do we need to have some understanding of the Health Service Act .

The Health Service Act

This Act came into force in 2005 and its main purpose was to take government health workers out of the Public Service and place them in a new entity called the Health Service. The Health Service comprises:

• All medically qualified personnel in the Ministry of Health and Child Care, and everyone employed to assist them
• Everyone employed in a government hospital, whether they are medically qualified or not, and
• Some persons employed in local authority or mission hospitals.

Health professionals in the private sector do not come within the Health Service, and the Act does not apply to them. The Health Service is managed by a Health Service Board consisting of an executive chairperson and at least three full-time and up to two part-time members, all appointed by the Minister of Health [the Act, it will be noted, does not specify the maximum size of the Board].

The Board’s functions in relation to the Health Service are virtually the same as the Public Service Commission’s functions in relation to the Public Service: it appoints and dismisses personnel, fixes their conditions of service, and generally acts as their employer. In addition, it:

• Supervises and monitors health policy planning and public health,
• Supervises and monitors hospital management boards of State and State-aided hospitals, and
• Sets financial objectives and the framework for hospital management boards [it is not clear what this entails].

The Board is enjoined by section 6 of the Act to delegate as much decision-making power to hospital boards and persons engaged in health service delivery as it can, consistently with good administration. The Minister of Health and Child Care can give the Board general policy directives with which the Board must comply.

What the Bill Proposes to Do in Relation to the Board

Name of the Board

The Bill proposes to change the name of the Board to “the Health Service Commission”. This will have no legal significance, though it may enhance the esteem in which the Board and its members are held.

Composition of the new Commission

Clause 3 of the Bill will alter the membership of the Board [or Commission as it will be] so that it will have a maximum of seven and a minimum of four members. Its chairperson will be the chairperson of the Public Service Commission and the rest will be appointed by the President. In appointing them the President will have to bear in mind the need for gender balance and fair regional representation as provided in sections 17 and 18 of the Constitution.

Clause 3 states that section 320 of the Constitution, which provides for the conditions of service of members of constitutional commissions, will apply to members of the new Commission; but the clause goes on to say that their terms and conditions of service will be governed by the Second Schedule to the Act, which will not be amended by the Bill and which contains provisions inconsistent with section 320 of the Constitution – for example:

• Under the Second Schedule, members are appointed for terms of up to three years, renewable indefinitely; under section 320 of the Constitution they are appointed for five-year terms, renewable once only.
• Under the Second Schedule members’ conditions of service are fixed by the Minister of Health and Child Care, whereas under section 320 of the Constitution they are fixed by the President.

These discrepancies will need to be cleared up if clause 3 of the Bill is to make any sense. One further point – an important one – is that whereas currently members of the Board have some security of tenure in terms of the Second Schedule to the Act, members of the new Commission will hold office at the pleasure of the President and so will be liable to dismissal at any time and for any reason. This is because section 320 of the Constitution – which will apply to the new Commission – states that members of constitutional commissions (other than the Independent Commissions, the JSC, ZACC and the Zimbabwe Land Commission) hold office at the pleasure of the President.

Functions of the new Commission

The new Commission will have pretty much the same functions in relation to the Health Service as the Public Service Commission has under the Constitution in relation to the Public Service; it will however lose two functions which the Health Service Act currently gives the Board, namely:

• Supervising and monitoring health policy planning and public health
• Monitoring the technical performance of hospital management boards and of State-aided hospitals, and setting financial targets for them.

So despite its elevated title, the Commission will have no say over health policy and no supervisory role over the running of public hospitals.

Staff of the new Commission

Under section 10 of the Health Service Act at present, the Executive Chairperson of the Board is in charge of the Board’s secretariat and other staff. Clause 4 of the Bill will put the staff under the control of a Secretary, who will not be a member of the new Commission but will sit in on its meetings. The Secretary, like the Permanent Secretary in the Ministry of Health and Child Care, will have to be a registered medical practitioner.

Hospital management boards

The Bill will amend sections 19 and 20 of the Health Service Act in order to:

• Require hospital management boards to get the Commission’s approval for the appointment of staff, and
• Require the Minister to act “in consultation with the Commission” when establishing management boards for government hospitals. [It is not clear whether this means that the Minister will have to get the Commission’s agreement to the establishment of boards, because the phrase “in consultation with” is ambiguous.]

The first of these amendments goes against the spirit of decentralisation of decision-making currently enshrined in section 6 of the Act. It will lead to inordinate delays if hospital boards have to get approval from the Commission before they can hire or fire even their most junior staff members.

Industrial Action

Clause 5 of the Bill will insert a new section into the Act to restrict the right of members of the Health Service to engage in collective job action – which essentially means to go on strike.

Under the new section:

• The Health Service will be deemed to be an essential service referred to in section 65(3) of the Constitution, which allows a law to restrict the right of workers to engage in collective job action.
• Forty-eight hours’ notice must be given of any collective job action.
• No collective job action [presumably on the part of members of the Health Service, though the new section doesn’t say so] can take place for longer than 72 hours in any two-week period.
• All members of the governing bodies of unions that incite or organise collective job action in breach of the new section will be guilty of an offence and liable to a fine of level 10 (currently Z$70 000) or three years’ imprisonment or both.

There are several problems with the new section [(apart from the obvious one that threats of prosecution have not deterred health professionals from going on strike in the past, and are unlikely to do so in the future]:

• Deeming the Health Service to be an essential service within the meaning of section 65(3) of the Constitution amounts to an amendment of section 65(3), which Parliament cannot do except through a formal constitutional amendment.
• It is meaningless to prohibit collective job action without specifying who is prohibited from engaging in such action. Not all members of the Health Service perform an essential service: gardeners who work in hospital grounds, for example, do not.
• Making all the members of the governing body of a union criminally liable for what the union does, means that members who oppose the union’s action and take no part in it will be liable just the same.
• The Labour Act contains perfectly adequate provisions that limit the right of persons in essential services – and health professionals are prescribed as performing an essential service – to engage in collective job action. They are allowed to strike only to avoid an occupational hazard that poses an immediate threat to their health or safety, and they must give at least 14 days’ notice of their strike. If these provisions have not been enough to avert strikes in the Health Service, the new ones will be no better.

The Bill will amend sections of Labour Act

The Bill will amend section 3(2) of the Labour Act to say that “for the avoidance of any doubt” the conditions of employment of members of the Public Service will be governed by the Public Service Act, and the conditions of employment of members of the Health Service will be governed by the Health Service Act.

Statutory provisions that begin with the words “for the avoidance of doubt” almost always create more doubt than they avoid. This one is no exception, at least in regard to the Public Service, because the Public Service Act itself makes the Labour Act apply to conditions of employment of public servants: the Public Service Act states;

• The power of the Public Service Commission to fix employment conditions for public servants must be exercised “subject to the Labour Act” [section 19], and
• Regulations made by the Commission under the Act have effect as collective bargaining agreements under the Labour Act [section 31].

In justice to the drafter of this Bill, we should point out that these anomalies are contained in the present section 3(2) of the Labour Act, and the Bill will not add to them. On the other hand, the Bill shouldn’t perpetuate them. One further point about this amendment is that it is not mentioned in the long title to the Bill. It should be, because of a long-established parliamentary rule that all the clauses of a Bill must fall within the scope of the long title. Strictly speaking, the Bill should not be debated in Parliament until its long title is amended to specify that the Bill will amend the Labour Act. It may be noted that a Bill to amend the Labour Act was gazetted in November last year. Its provisions will have to be consistent with this Bill.

General Comments on the Bill

We said at the beginning of this bulletin that the Bill’s two stated objectives are:

• To align the Health Service Act with the Constitution and
• To “discuss the parameters” of collective job action by members of the Health Service. The Bill does not do much towards achieving either objective.

As to aligning the Act with the Constitution, the Act is not noticeably unconstitutional so there is no great need for it to be aligned. All the Bill will do in this regard is alter the name of the Health Service Board and make its membership and functions similar to those of the Public Service Commission. In doing so, however, the Bill will make the new Commission less independent than the present Board [by providing for its members to hold office at the President’s pleasure] and this will not lead to better governance – and devolution of decision-making is one of the aspects of good governance, a founding value of the Constitution. Furthermore, by illegally declaring the Health Service to be an essential service the Bill seeks to deprive Service members of their right to strike, a right that is guaranteed by section 65 of the Constitution: hence the Bill will make the Act less constitutionally compliant than it is at present.

In regard to discussing the parameters of collective job action, if we assume this means defining the limits of strike action that may be taken by members of the Health Service, the Bill will actually confuse matters, as we have shown, by substituting vague and unconstitutional prohibitions for the clear precepts of the Labour Act.

The Bill is unlikely to cow government health professionals into accepting their unsatisfactory conditions of service and refraining from strike action. Instead it may persuade them that the Government is not prepared to listen to their complaints and intends to resort to coercion. The Bill may therefore drive more of them to seek their fortunes outside the country.

Altogether this is not a satisfactory Bill.

Source: Veritas