"I am ready to respond Madam Speaker, but I will try by all means to be brief in the interest of time. So, a good number of paragraphs that I have here, I will skip them with the hope that my colleagues in here ba tlaa di direlwa mong wame. Madam Speaker, I would like to take this opportunity to thank all the honourable Members of Parliament for their valuable contributions as we chart the way forward towards enabling and progressive public health legislature for the 21st century and beyond.
It was indeed heartening to listen to honourable members of parliament as they emphasised the importance of health in the development agenda. I truly hope that the sentiments and support given would be reflected whenever my ministry requests for resources to effectively and efficiently provide quality health services.
Madam Speaker, before I address the Bill, let me assure this august House that despite the resource constraints that we face in service delivery, we have made it a priority that all our facilities from clinic level upwards are manned by nurses as well as doctors. To date, we do not have a clinic that is without a nurse or nurses.
Allow me Madam Speaker to now make general comments on issues raised on the Bill. The Bill was developed after extensive consultation with all key stakeholders. The discussions go as far back as 2004. Public and private sectors were involved in the consultation process. We are aware that if approved there is still a lot of public education that will need to be done to sensitise and educate the public on the contents and expectations in this Bill.
Madam Speaker, many of the clauses in the Bill on HIV/AIDS were developed following a consultancy review of laws and policies relating to HIV. To reiterate points already submitted by the Assistant Minister of Health, this was developed in conclusion with NGOs such as BONELA who were secretariat to the Botswana Ethics Law and Human Rights sector of the National AIDS Council. Membership of this sector included BONELA as a secretariat, Ministry of Health, National AIDS Coordinating Agency (NACA), Attorney General’s Chambers, Industrial Court, University of Botswana, Law Society of Botswana, HIV Parliamentary Committee and Ditshwanelo and Botswana Network of People Living with AIDS (BONEPWA).
Madam Speaker, after one member of parliament asserted that the National AIDS Committee chairman was also not aware of this Bill, I took the liberty to go and consult him yesterday. He assured us that he was fully aware of the Bill and has given it the green light. Furthermore, international organisations such as World Health Organisation and United Nations Children Fund, parastatals, our health sector, High Level Consultative Council which is made up of various stakeholders such as the Private Practitioners Association, BOCCIM, Botswana Health Professions Council have or also had an opportunity to comment on the Bill. Madam Speaker, these are just a few of the many stakeholders that were consulted.
As I said, I will skip quite a number of them. Regarding consistency in specifying penalties for offences, the Bill was drafted such that whilst penalties apply to all offences it is not stated in all but rather in just a few to avoid monotony. It is therefore important to clarify that there is a general penalty clause in the Bill, Clause 177 that provides for penalties that are not expressly stated. Furthermore, the phrasing of the penalty statement is such that it will be the discretion of the courts to charge within the range depending on the seriousness of the offence.
Madam Speaker, allow me to now focus on issues that have been raised by BONELA. I found this necessary as they unfortunately totally distort the provisions of this Bill and mislead the House as well as the general public. The basic principle laid out by Clause 104 (1) and (2) is that a person’s HIV status is a confidential matter and that the testing of HIV should not be done with any undue influence. However, as with any rule there is always provision for exceptional cases to mitigate where the basic principle is too rigid.
Although no person should be forced to undergo any HIV testing, the House is to understand that the importance of Sub Clause (3) is that it may be necessary in order to facilitate access to health related programmes and or it may be reasonable to require of any person to undergo such test.
To ensure that people’s rights are not unduly violated Madam Speaker, Sub Clause (3) emphasises a person’s consent is still relevant and therefore although the Director may offer or require that a person be so tested, a person may still refuse and therefore the Director will have to refer to a court of law which shall be the final arbiter to ensure that justice is done.
As with the first question, Clause 105 also proceeds by the general provision which emphasises consent at a personal level of those capable of giving consent as well as those that are responsible for making decision for them. Sub-Clause (2) gives exception though as a matter of practicality to ensure that a medical practitioner who is faced with a situation of a patient who may for instance under normal circumstances, would have been able to give consent or it may be an emergency situation and therefore, he or she must treat that patient and that patient is unable to give such consent or where that test is clinically necessary or desirable in the interest of the public.
It must be understood that where anybody feels that their rights have not been taken into consideration, despite the protection of the medical practitioner under Sub Section (3) the courts, when considering any case as to whether this clause has been violated will use the requirements of such clause to check whether one’s rights have indeed been violated.
Let it be understood that although the law may protect a practitioner, every person still has the constitutional right to approach a court where they feel that their rights have been violated and this provision was drafted bearing this in mind. A medical practitioner, nurse or dental practitioner may also where in his or her assessment has established that a procedure on a patient is not an urgent one, carry out or require to be carried out an HIV test.
To answer this question in general, it is the duty of any responsible government, especially one that spends as much resources on the treatment of a preventable disease such as HIV/AIDS, to ensure that where there is irresponsible behaviour at the public expense such irresponsible behaviour is attended to and if need be by way of imposing a legal obligation not to knowingly infect other members of the public.
Indeed the protection that this provision seeks to provide already had been afforded to this House in rape cases and other courts have indeed implemented this in ensuring that they meet out stiffer punishments to those that act that irresponsibly.
Their four and eight; it is in the interest of any doctor whom a patient is before them to ensure that the patient receives the best treatment available or within his or her power. The section does not take away from the constitutional right for anybody to seek recourse in the law where they feel that their rights have been violated. A doctor/medical practitioner is still enjoined to act ethically when taking any medical decision on a case before them.
Finally Madam Speaker, the proposed law ensures that people’s rights to confidentiality for their HIV status are protected. The proposed law gives levels of disclosure or procedure for disclosure of every person’s results and ensures that all times especially where tests are done for statistical reasons, a person’s identity is protected.
As I conclude Madam Speaker, let me remind this honourable House that this progressive Bill was drafted looking into the future. Many of the clauses have been provided such that in the event that we as a country get exposed to foreseen or unforeseen hazards then there will be appropriate legislation to deal with such. I therefore humbly appeal to the honourable members to support me in the decision not to amend any of the clauses with the exception of Schedule 5 where we have now included the pneumococcal vaccine at two, three and four months. The need to have such a Bill in place is very urgent and long overdue and the benefits of passing this Bill now by far overweigh the need for any postponement. Consultation has already been done.
With this Madam Speaker, I hereby move that the Public Health Bill, 2012 (No. 23 of 2012) be read a second time. Thank you Madam Speaker."Seakgosing is Minister of Health. He was responding to MPs' debate on the Public Healths Bill.