The South African Medical Association ("SAMA") is the professional association for doctors in South Africa and welcomes the opportunity to comment on the Nursing Bill which was published in Government Gazette No. 27904 on 12 August 2005.

Due to the limited time-frame for submitting comments, this document does not incorporate comments from all Standing Committees of SAMA, SAMA Branches, Specialist Groups, Special Interest Groups and independent members. Furthermore, the submission has not been ratified by the Board of Directors of SAMA since the next Board meeting will only be held in November 2005.

The submission does, however, include concerns raised by some members of the National Convention on Dispensing (NCD), which is a body consisting of the following organizations, namely, The Dispensing Family Practitioners Association ("DFPA"); The East Cape Medical Guild ("ECMG"); The Family Practitioners Association ("FPA"); The South African Medical Association ("SAMA"); The National General Practitioners Group ("NGPG"); The South African Managed Care Coalition ("SAMCC"); The South African Medical and Dental Practitioners ("SAMDP"); The Society of Dispensing Family Practitioners ("SDFP"); The National Association of Independent Practitioner Associations ("NAIPA"); RESMIN; and ASAIPA (successor to GPNet).

SAMA supports all measures aimed at making health care more accessible and affordable. This harmonizes the rights entrenched in section 27 of the Constitution of the Republic of South Africa (hereinafter referred to as "The Constitution"). However, it must be ensured that, in progressively realizing the above rights, the public interest and patients' health must remain paramount.

It is SAMA’s contention that certain Sections of the Nursing Bill will not contribute positively to the aforesaid objectives as it presents adverse legal, professional and ethical implications. It is believed that the promulgation of, particularly Section 56 of the Nursing Bill, without taking into account the comments herein may well lead to compromising healthcare delivery to patients.

The Nursing Bill ("the Bill") and any proposed legislation must be in the public interest and the onus of proving this rests with the organization which motivates for the required legislation. SAMA believes that nurses are trained to practice nursing, whether basic or comprehensive, but not trained to perform all the proposed services stipulated in Section 56 of the Bill. It is believed, further, that notwithstanding the wide powers conferred in terms of Section 4(l))i) of the Bill, the South Africa Nursing Council ("the Council") cannot authorize a nurse to render health services, otherwise prohibited in terms of Section 17 of the Health Professions Act ("HPA").

There also exists a form of professional inequality as government has enacted legislation which prescribes that doctors must complete a supplementary course determined by the SA Pharmacy Council ("SAPC") and be in possession of a duly issued licence in order to dispense medicines. Notwithstanding the provisions of Section 22C of the Medicines and Related Substances Act, 101 of 1965 (duly amended) ("Medicines Act") the Bill provides that these legal requirements may be annulled by the Director-General of the Department of Health (DoH) for certain categories of nurses.

The members of the Nursing Council are appointed, directly or indirectly, by the Minister of Health. Although not impacting on medical professionals directly, it appears that decisions by this Council could be deemed not to be impartial and objective.

Doctors are required to comply with stringent Ethical Rules, Rulings and Policies which are determined by the Health Professions Council of SA (HPCSA). Doctors who fail to adhere to the HPCSA Rules, Rulings and Policies face disciplinary action for alleged unprofessional conduct. If certain categories of nurses are permitted to provide services which fall primarily within the ambit of medical sciences, it is asserted that they should be subject to the same or comparable ethical standards.

The main criterion to be used by any Government when considering the desirability of effecting new legislation, regulations or amendments thereto is whether it would be in the public interest. The onus of proof that proposed regulations and amendments to existing legislation are in the public interest, rests with the organization which motivates for the required regulations / amendments.

In this regard, it is submitted that insufficient detail is provided on how the provisions of Section 56(1) and (6) would serve the interests of the general public, in both the public and private sectors. Specific provision should be made in the Bill that nurses would be obliged to successfully complete appropriate qualifications and training in medical sciences before being allowed to assess, diagnose and treat patients or prescribe and dispense medicines. This should be the case whether these services are rendered by a nurse when registered in terms of Section 56(1) or authorized by the Director-General in terms of Section 56(6).

Inappropriately qualified and trained nurses providing medical services to patients would compromise and jeopardize healthcare.

Section 17 of the Health Professions Act of 1974 reads as follows : -

Section 4(1)(l)(i) of the Nursing Bill states that the Council "must determine the scope of practice of nurses". Notwithstanding the wide powers conferred on the Nursing Council in terms of this section, SAMA is of the view that the Nursing Council should only be authorized to register categories of nurses to "assess, diagnose, [and] prescribe treatment" as stipulated in Section 56(1) of the Bill, once proof of qualifications which have been pre-approved by the HPCSA, are provided by the applicant. This should apply mutatis mutandis to the provisions of Section 56(6) of the Bill.

It is suggested thar Section 56(1) and 56(6) of the Nursing Bill should be reworded to stipulate that the prescribed qualifications and training of nurses, insofar as it relates to medical sciences, would be determined after consultation with the HPCSA and with their approval of the content of the curricula. This is imperative to ensure that nurses are adequately qualified to accommodate these additional responsibilities of providing medical services since a shortcoming in this regard would prejudice patient care and could compromise patients’ safety.

It should not be construed as though SAMA is obstructive or against nurses "assessing, diagnosing and treating". Rather, we recognize that the medical services referred to in Section 56 are indispensable for nurses, particularly those serving in rural areas where medical practitioners are not always present and/or available for various reasons. It is also common knowledge that there is a shortage of health care professionals in rural areas. The SAMA has on numerous occasions acknowledged this and supported accreditation programmes and incentivisation of doctors in order to attract doctors to these under-serviced areas. However, failing this, and where nurses are authorized by the Director-General to provide "medical services", they should be appropriately qualified and trained.

Parliament and the Minister of Health bear the responsibility of safeguarding the interests of the public. This is confirmed in terms of section 3 of the National Health Act 61 of 2003 which states that : -

In view of the above, full consultation and interaction with the HPCSA is an absolute pre-requisite prior to entrusting the determination of the contents of any course / curriculum for nurses.

Section 9 of the Constitution of the Republic of South Africa of 1996 reads as follows: -

Section 18 of the General Regulations to the Medicines and Related Substances Control Act, 101 of 1965, reads as follows : -

Section 22C(2) of the Medicines and Related Substances Control Amendment Act No. 90 of 1997 reads as follows : -

It is apparent from the above that government has enacted legislation which prescribes that doctors must complete a supplementary course determined by the Pharmacy Council in order to dispense medicines. However, a similar prescription for certain nurses may be overruled by the Director-General of the DoH, if the services of a medical practitioner or pharmacist are not available.

These varying interpretations, from time to time, by the Department of Health implying that the law can have "limping validity" reflects poorly on governance by Organs of State. All doctors and nurses in the employ of the state were supposed to comply with the provisions of Section 22C of the Medicines Act and Dispensing Regulations, by 1 July 2005. it appears that Section 56(6) of the Nursing Bill would conveniently allow the Director-General from exempting nurses employed by the state from complying with the provisions of the Medicines Act and Dispensing Regulations

The above is blatant inequality and unfair discrimination amongst the various professions. It is a clear violation of section 9 of the Constitution, inequitable and legally challengeable.

It is proposed that the Director-General may only authorize categories of nurses in the service of departments of health and certain public health facilities to perform the listed "medical services" and dispense medicines, where a medical practitioner or pharmacist are not available, PROVIDED that such categories of nurses are appropriately trained, qualified and comply with the provisions of Section 22C of the Medicines Act.

Section 5 read together with Section 58(1)(a) of the Nursing Bill which deals with the composition and dissolution of Council is worded such that the Minister of Health retains the final discretion on who is appointed as a member of the Council.

Neither SAMA nor medical practitioners are affected directly by the above provisions. However, in terms of having a transparent process and ensuring that decisions are made by an independent Council, the members of any professional representative body should be elected by the majority of people through an independent process. Furthermore, an attempt should be made to have some regional representation on such a Council.

We note that Section 56(7) of the Bill states that "A professional nurse or staff nurse is not entitled to keep an open shop or pharmacy". It is suggested that "midwife or accoucheur" should be included in this paragraph, especially since they may also register to "keep and supply medication…" as provided in Section 56(1) of the Bill.

The expansion of the role of a nurse to diagnose and treat has severe ramifications. With the recent amendments to the Health Professions Act of 1974, a general practitioner will be subjected to an intensive five year curriculum followed by two years internship and one year community service.

Professional nurses complete a four year curriculum with one year community service and this entitles her/him to qualify as a nurse. The substantial difference is qualifications and training of nurses in medical science justifies the fact that (s)he should not be permitted to perform "medical services" as provided in Section 56(1) and (6) without completing advanced curricula and training, as determined by the HPCSA.

Medical professionals is subject to stringent Ethical Rules, Rulings and policies which are determined by the HPCSA. Doctors who fail to adhere to these Rules, Rulings and policies are subject to disciplinary action by the HPCSA.

Some of the Rules, Rulings and policies which are relevant, and which would impact on nurses if they are allowed to provide "medical services" as per the Nursing Bill, are the following :

• Supersession - The Rule on supersession states that "No practitioner shall supersede or take over a patient from another practitioner if he or she is aware that the patient is under treatment of another practitioner, unless he or she takes reasonable steps, as a matter of courtesy, to inform the practitioner who was originally in charge of the case that he or she had taken over the patient at that patient’s request and to establish from the original practitioner what treatment the patient previously received, especially what medication, if any, had been prescribed to that patient and, in such a case, the original practitioner shall be obliged to provide the required information".

• Confidentiality of medical records is the cornerstone of the doctor-patient trust relationship. Doctors take the Hippocratic Oath which upholds the sanctity of this relationship and they pledge themselves to the ethical standards required of the medical profession. Nurses do not take the same or similar Oath.

• Consideration should also be given to the following legal issues of professional responsibility and accountability. Medical treatment provided by a 'reasonable nurse must equate to that rendered by a 'reasonable doctor' when the 'reasonable person test' is applied in judging malpractice suits and negligent claims which might occur if an improperly qualified person is allowed to diagnose and initiate therapy beyond his/her training, etc.

In view of the above, is it intimated that nurses are not bound by similar professional ethics, Rules and conduct as a doctor. Therefore, guidelines in this regard would be absolutely critical before the provision in the Bill for nurses to render "medical services" , are passed or promulgated. If such guidelines and/or policies are not in place, patient-care, continuity of treatment would be compromised to a large extent.

In this submission the SAMA has concentrated on areas which are of great concern to its members. SAMA believes that the above areas of concern should be addressed prior to passing the Nursing Bill. It would be counter-productive to enact the Nursing Act and react to problem areas which arise in respect of the above issues.

If so indicated, the SAMA is willing to clarify any of the points at the convenience of the Portfolio Committee on Health. We would also request a time-slot to allow us to make a verbal presentation on 12 or 13 October 2005.

We with to express our thanks, once again, for the opportunity to present our submission in this regard.

The South African Medical Association

Date: 6 October 2005

Dr Aquina Thulare : Secretary-General

Tel: (012) 481 2000 / 37

Fax: (012) 481 2100