SOUTH AFRICAN NURSING COUNCIL

SUBMISSION TO THE PORTFOLIO COMMITTEE ON HEALTH

NURSING BILL

10 October 2005

 

  1. Introduction

The Nursing Bill is a landmark in the history of the regulation of the nursing profession in South Africa. This Bill will replace the current Nursing Act which was passed during the apartheid era. Since 1994 there were a number of amendments made to this Act to correct the racial and societal discriminatory elements contained in the Act and despite these amendments the remnants of discrimination of the era of apartheid the current Act were not completely removed. The passing of the Nursing Bill thereby creating a new Regulatory framework which will make a fresh beginning for the nursing profession in our new democratic society albeit some 11 years later.

The Nursing Bill is based on two critical premises that are applicable to any profession and these are:

1 A profession presents itself to society as a social benefit and society accepts the profession, expecting it to serve some important social goal.

  1. Professions are groups which declare in a public way that:
  2. Legislation that regulates a profession has to ensure that these two premises form the basis of the legislative framework and the Nursing Bill presented to parliament aims to achieve this purpose.

    Another important factor that needs to be considered as part of the context of the Nursing Bill is that, it is recognized the nursing profession plays a critical role in providing health care in South Africa. Nurses are in the majority of health care professionals in South Africa, there are 98 740 professional nurses, 35 266 enrolled nurses and 50 703 nursing auxiliaries on the Register and Roll of the South African Nursing Council that are eligible to practise nursing in South Africa.

    1. Nursing Bill

    This Nursing Bill is informed by the Report of the Task Team appointed by the Minister of Health to make recommendations regarding the transformation of statutory health councils (Transformation of Statutory Councils: Report of Task Team on Statutory Councils Appointed by the Minister of Health enclosed with the submission). The South African Nursing Council supported the recommendations made in this report.

    The style and language of the most part of the Bill is simple and accessible which makes for easy reading for all especially the broader public and this is of special importance especially if the primary purpose of this legislation is public protection.

      1. Establishment of the Nursing Council

    The purpose of establishing a Nursing Council in the Nursing Bill is to provide a structure that will fulfill the function of public protection and uphold and maintain the professional and ethical standards of nursing.

      1. Functions of the Nursing Council

    The functions that the Council is required to fulfill are outlined in the Nursing Bill and these are divided into those functions that the Council is obliged to fulfill and those that may be fulfilled if it is necessary. The functions that are obligatory are critical functions that the Council must fulfill to ensure that the nursing profession is effectively regulated and that the public is adequately protected. In this regard we highlight to the Portfolio Committee Members some of the functions provided for in this section that are in our view critical for effective regulation of the nursing profession and these functions are:

    2.2.1 Ensuring that all decisions of Council are informed by national health policies and this is extremely important to ensure that there is no dislocation between the practice of members of the nursing profession and the health policies of the country.

    2.2.2 A further critical function is 4 (1) (f) which compels the Council maintain and uphold human rights of individuals and take appropriate action against those members of the Nursing profession that violate the basic human rights of an individual.

    2.2.3 The Council is also required to ensure that any institution providing nursing education without legal authority must be investigated and take the necessary action against such institutions. And a further function in this regard is the Council must withdraw and suspend the accreditation of nursing education institutions that do not comply with the requirements. These functions of the Council is of particular importance in the current climate where there is an upsurge of both institutions that provide illegal nursing training and private nursing education institutions that are providing nursing training for profit and in their quest to maximize profits the standards of education and training is compromised.

    2.2.4 Amongst the functions that the Council may perform is the investigation of complaints about standard of nursing services in a health establishment. Currently the nursing Council does not have the legal mandate to carry out such a function and through the inclusion of this function the Council can support the Department of Health, other health authorities and the general public to address problems with regard to the standard of nursing care in health care facilities (sub-sections 4. (2) (h).

    2.2.5 The provision of licensing a professional nurse to conduct a private practice (sub-sections 4. (2) (i) is an important one to ensure that public procuring the services of a nurse in private practice is adequately protected. This provision enables the Council to prescribe standards and an ethical code that will be applicable to nurses conducting a private practice. Historically nurses have worked in health facilities however recently there are more nurses engaging in private practice and there are no mechanisms in the current legislation that applies specifically to private practice.

    2.2.6 Quantifying the number of nurses that are directly providing health care remains a challenges and a limitation regarding planning for human resources for health. By requiring employers to submit annual returns of nurses employed the Council can track the number of nurses employed in health care services (2(1)(l)).

    2.3 Composition of the Council

    The Task Team Report alluded to earlier in this submission made specific recommendations regarding the size of Councils, consequently the Nursing Bill provides for a Council formed by 25 members. The Bill also provides for the majority of the members of the Council to be nurses and the remainder of the members will be comprised of members with broader expertise that will ensure a broader skill base of the Council.

    2.3.1 The South African Nursing Council supports the provisions of this section in principle however we propose the following changes to this section:

    "5.(1) The Council will consist of not more than 25 Members of whom

    (a) at least 16 must be nurses registered in terms of section 31 (1) taking into account their expertise in nursing education; clinical nursing ; community health; Primary Health Care; occupational health; mental health; health service management and Midwifery;

    (b) at least 9 members with expertise in Human rights, Finance, Medicine, Law, Pharmacy, Research; Policy and planning; Human resource and skills development and Education and Community engagement including Community mobilisation; community development at an urban and rural areas and advocacy skills

    (c) The Council members contemplated in (a) and (b) will be appointed by the Minister"

    2.3.2 The motivation for the proposed change to this section is based on the following:

    2.3.3 The South African Nursing Council supports that the Minister appoints the Council members after a public nomination process. This provision is viewed by the nursing profession as an infringement of their right to elect nurses to serve as members of the Council. Currently the South African Nursing Council comprises of a combination of persons elected by nurses and those appointed by the Minister. The election of process to elect nurses was in the past not widely utilized. In the last two elections of the Council there were no more than 7% of the total number of nurses registered or enrolled with the council that participated in the election process. While the SANC recognizes the democratic right of nurses to participate in the process by which members are appointed to serve on the Council, the cost of conducting an election is approximately R1,5 million and the low participation of nurses does not justify that continuation of an election process. A further factor to be considered is that in the last two elections conducted since 1994 the nurses elected were not representative of the racial profile of both the nursing profession and South Africa. In both elections for the registered nurse category 11 out of the 12 members elected were white females. Another shortcoming of the election process is that there is no guarantee that the nurses elected will have the appropriate expertise to fulfill the functions and responsibilities of the Council.

    2.3.4 Based on the reasons outlined in 2.3.3 we support the public nomination process provided for in the Nursing Bill. Members of the nursing profession will be afforded the opportunity like all other stakeholders to nominate persons to serve on the Council. The Council members will be selected on the basis of the expertise that the nominated person can contribute to the Council. The South African Nursing Council is satisfied that the rights of the nursing profession will not be violated and therefore supports provisions of 5.(2)(a) in the Bill.

    2.3.5 The Minister of Health as the custodian of this legislation has to ensure that the provisions of this legislation are implemented. This is achieved through the establishment of a Council and the Minister appointing members of the Council, a chairperson and a registrar. If we accept that the primary purpose of Act will be to ensure public safety and the Minister of Health has to account for such public safety then it is to be accepted that the Minister should be given the authority to appoint the structure and persons who have the appropriate expertise to carry out these functions on his/ her behalf.

    2.3.6 All members appointed by the Minister will also be required to accept in writing the responsibilities assigned to them in terms of the Act (sub-section 5.(6). The South African Nursing Council is satisfied with the powers of the Minister to appoint members of the Council, the chairperson and the Registrar provided that it is done through an open, transparent and participative selection process that is open to public scrutiny.

      1. Funding of the Council

    The Funding of the Council and the activities of the Council as outlined in this Bill is through the licence and registration fees collected in terms of subsection sub-section 4. (1)(m). These registration and licence fees are paid by members of the nursing profession and institutions to carry out a specific service to obtain the legal authority to practise as a nurse or to provide a specific service outlined in this Bill. The funds generated through licence and registration fees are utilised to fund the business and the activities of the Council. The nursing profession’s perception is that that they are expected to fund the Council whose responsibility is public protection and uphold the standards of nursing practice and both of these do not directly benefit individual members. The analogy of a motor vehicle licence fees, which are collected by the state and in turn, the state undertakes to maintain road safety, aptly captures why licence and registration fees are levied. Nurses have professional associations and unions that exist to safeguard and promote their individual interests.

    2.5 Education, Training, Research, Registration and Practice

    2.5.1 The scope of the profession and practice on nursing was reviewed by the South African Nursing Council after extensive consultation with all stakeholders. The Bill outlines the broad parameters for the practice of each category of nurse and the detailed scope of practice for each category will be prescribed in regulations.

        1. The minimum education and training requirements which will be prescribed in Regulations will be aligned to the revised scope of practice and the qualifications that recommended by the Standard Generating Body for Nursing for registration on the National Qualifications Framework.

    2.5.3 In line with the functions of the Council pertaining to nursing education as outlined in point 2.2.3 above, section 32 of the Bill provides an additional mechanism of protection of the public through the registration of learners. In addition health facilities are required to restrict access to clinical facilities for the purposes of training to those learners that are registered with the Council as learners.

    2.5.4 The South African Nursing Council recommends that an additional section pertaining to private practice be added in line with sub-sections 4. (2) (i). We therefore recommend the following section to be included as part of Chapter 2 of the Bill:

    "Private Practice

    (1) A person registered in terms of section 30 (1) intending to conduct a private practice must first—

    (a) apply to the Council in writing for a licence and submit information on—

    (i) the details of the service to be provided; and

    (ii) furnish the Council with any additional information required by the Council

    for purposes of issuing a licence for conducting a private practice; and

    (b) pay the prescribed fee.

    (2) The Council may refuse any application made in terms of subsection (1) if it is not satisfied that the prescribed minimum standards are met.

    (3) Subject to subsections (1) and (2), the Council must issue a licence

    certificate to the nurse to conduct a private practice.

    (4)A person who contravenes a provision of this section is guilty of an offence and is liable on conviction to a fine or to imprisonment for a period not exceeding two years or to both a fine and such imprisonment."

    2.6 Appeals

    There appears to be some confusion about the appeal processes provided for in the Nursing Bill.

    2.6.1 The Bill provides for two Appeal Committees:

    While the second appeal process is provided for in detail in section 57 the appeal process contemplated in section 15 (4) is not adequately provided for.

    2.6.2 To ensure that the two appeal processes are clearly provided for the SANC therefore recommends the insertion of the following provision pertaining to professional conduct appeals under Chapter 3:

    "Appeal against decisions of Professional Conduct Committee

    (1) A person aggrieved by a decision of the Professional Conduct Committee may within the prescribed period and in the prescribed manner appeal against such decision to the Registrar contemplated in subsection (2) and appointed by the Council.

    (2) The appeal committee referred to in subsection (1) consists of—

    (a) as chairperson, either a retired judge, retired senior magistrate or an attorney with at least 10 years’ experience; and

    (b) not more than two registered persons who have professional qualifications

    that are the same as those of the person who is subject to the disciplinary

    proceedings.

    (3) An appeal under subsection (1) must be heard on the date, place and time fixed by the appeal committee.

    (4) The appeal committee must ensure that the appellant as well as the Council are informed of the date, place and time contemplated in subsection (3) at least 14 days before such appeal is heard.

    (5) The appeal committee may for the purposes of an appeal lodged with it—

    (a) summon any person who, in its opinion, may be able to give material

    information concerning the subject of the appeal or who it believes has in his or her possession or custody or under his or her control any document which has any bearing upon the subject of the appeal to appear before it at a time and place specified in the summons, to be interrogated or to produce that document, and may retain for examination any document so produced; and

    (b) administer an oath to or accept affirmation from any person called as a witness at the appeal.

    (6) The chairperson of the appeal committee must determine the procedure to be followed during the appeal hearing and notify the appellant and the Council of such determined procedure.

    (7) The appeal committee may after hearing the appeal—

    (a) confirm, set aside or vary the relevant decision of the professional Conduct Committee; and

    (b) direct the Council to execute the decision of the appeal committee in that

    regard.

    (8) (a) The decision of the appeal committee must be in writing, and a copy must be furnished to the appellant as well as to the Council.

    (b) The decision of the appeal committee contemplated in paragraph (a) must be conveyed to the appellant and the Council within 14 days of the decision being reached.

    (9) The members of the appeal committee who are not in the full-time employment of the State may be paid such remuneration and allowances as the Minister may determine with the concurrence of the Minister of Finance."

     

      1. Special Provisions

    2.7.1 Section 56 of the Bill is a concession that makes provision for nurses to assess, diagnose, prescribe treatment, keep and supply medication for prescribed illnesses and health conditions. This provision is a concession that is limited to nurses working under certain conditions to provide a service that extends beyond their normal scope of practice.

        1. Currently the concession is provided for in section 38 A of the Nursing Act No 50 of 1978. There are limitations with the implementation of this section especially with regard to maintaining of standards of this function as the South African Nursing Council has no control or direct jurisdiction over this process. The historical background for the addition of this section to the current legislation was that in 1981 at the time the Homelands were created during the apartheid regime, this section was mechanism to promote a specific policy and to promote health services especially in the Homelands (specific mention is made to family planning).
        2. The provision made in section 56 of this Bill is however confusing. The first part of the section which is a new provision is combined with extracts from the Medicines and Related Substances Control Act, and the current section 38A of the current Nursing Act. It is however an important section in the context of promoting access to health care and health services especially in rural and underserved areas and the South African Nursing Council supports the retention of this section but suggest that the section be revised as suggested in the table attached.

     

    1. Conclusion

    There are few technical changes that we propose that will assist in refining this Bill before it is passed. These technical changes are outlined in Annexure I of this submission and where these changes did not make any substantial changes to the Bill they were not discussed in detail in this submission.

    The South African Nursing Council looks forward to the passing of this Bill and supports this Bill without any reservation. It is our view that passing of this Bill will have a significantly positive impact on the regulation of the nursing profession that will benefit the health care delivery system and South African society.

    The Council thanks the Portfolio Committee on Health for affording us the opportunity to make this presentation.