Nursing Bill: hearings

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12 October 2005
Chairperson: Mr L Ngculu
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Meeting report

Democratic Nursing Organisation of South Africa (DENOSA)
The Chair asked the team of DENOSA representatives (Ms N Geyer, Ms T Gwagwa and Mr E Mafalo) to continue discussing its submission from the previous day, commencing with Clause 34 (Registration of additional qualifications).

Ms Geyer said that Clause 34 had a link with the issue of citizenship which had previously been highlighted and the concern was to ensure that it did not discriminate against certain persons.

The Chair Person said that the Committee had reached a general agreement that the provision on citizenship was not unconstitutional but had to comply with the provisions of Home Affairs.

DENOSA said that it did not understand the meaning of Clause 36 which talked about prescribing qualifications obtained from examinations conducted by nursing educational institution in the Republic either singly or in conjunction with any other qualification. There was concern among the nursing educational institutions about the implication of the phrase ‘single or co-joint’ qualification..

Dr Makhate said that in his opinion the section implied that if one had two qualifications that entitled such a person to registration. If two qualifications were from an accredited institution, the Council had an obligation to register such a person in terms of any prescribed process.

DENOSA referred to Clause 42 and said that it was a plea from the nursing educational institutions for the provision of other means of funding. It was becoming increasingly difficult to meet the nursing needs in the country due to several changes in legislation regarding fees in universities and nursing institutions. It has been suggested that the Department of Health could pay the prescribed fees, which to a certain extent was already being implemented in the colleges but not in the universities.

In reply to the query on whether the reference to institutions concerned both public and private institutions,
DENOSA replied that the reference was mainly to public institutions.

Another question was whether DENOSA suggested that an institution that intended to conduct nursing education and training must comply with the provisions of Clause 31.

DENOSA replied that it was becoming increasingly expensive to train nurses. The colleges belonged to the Department of Health, so indirectly, the department would be paying for their services. In some of the structures, there were no fees to be paid, however the Council charged fees for some of the processes such as some of the inspections that were being done. There was a problem with the nursing colleges as technically according to the Constitution, they were under the administration of the Department of Education and also under the jurisdiction of the particular provincial Department of Health.

The Committee suggested that the issue related to budget because the Council incurred costs when it did inspections which had to be recovered in some way. The colleges that complained could raise the issue with the National Department of Health from which they received funding.

DENOSA said that another area of concern was the provision that gave powers to the Council to remove nursing practitioners which were found guilty of misconduct. This implied that every person who was found guilty of misconduct would be removed. DENOSA was of the opinion that this provision be made subject to the penalty or sanction stipulated for such professional misconduct.

The Chair stated that from the wording of the provision, removal based on unprofessional conduct depended on the sanction that was stipulated.

Ms Geyer said that in most cases, this related to where the professional misconduct committee had found that there was a case. In such cases, the penalty was usually suspended for about six months, which did not warrant removing the guilty person’s name from the register.

The Chair asked if the suggestion was that not all professional misconduct would warrant removal.

DENOSA replied that sometimes the penalty was a suspended sentence and not an outright removal. However, sometimes an offender was removed.

A member of the legal drafting team stated that the provision implied that a removal would not be applied at all times such as when the sanction stipulated a warning or caution to the guilty party.

DENOSA said that they did not disagree with the concept of professional conduct. Sanctions must be applied in cases of wrong doing, however any sanction applied must be applied following a fair process. Issues regarding fair process included the preparation of the panel that would weigh evidence, the presence of experts to judge nurses which were tried for unprofessional conduct and consistency in awarding penalties to offenders. These details could be dealt with in regulations. It was hoped that the legal drafters would ensure that the drafting on this issue would provide for a national panel of experts or reviewers that could be used in the regulation making process. An alternative to this would be to outsource this process.

Ms Geyer continued that Clause 56 seemed to contain both old, new and other laws and this seemed to be a problem. Clause 56(1) to (4) put a limit on the licensing of people with additional qualifications and it appeared to be a duplication of Clause 34 that dealt with additional registration of qualifications. With respect to additional qualifications, many nurses could do a course in health assessment treatment and care but that did not automatically give them an authorisation to diagnose and prescribe. In the light of this, Clause 56 was confusing because only some of nurses who did this course would be authorised to perform the skills in clinical practice, because it was a special provision.

DENOSA was of the opinion that Clause 56(1) to (4) should deal with licensing and the authorisation of these nurses to perform the functions for which they had received qualifications. The emphasis was not on the qualification because while the licence could lapse after three years, the qualifications would require periodic updating according to a stipulated process. Clause 56(3) and (4) seemed to contradict Clause 34 which dealt with additional qualifications. Clause 56(4) referred to the Council that might renew the registration certificate. DENOSA proposed that the Bill be rephrased instead to deal with the special authorisation process.

Clause 56(5) referred to an issue that was included in 56(6)(iii) and also in already existing legislation. DENOSA proposed that these sections be deleted as it found the repetition confusing. Clause 56(6) was a repetition of the current Clause 38(a) of the Nursing Act with very limited amendment. This posed huge limitations in clinical practice. For example, it only referred to physical examination and did not refer to cases of people who discharged from mental health institutions into the community because such people had to be ‘de-institutionalized’. The mental health nurses were not equipped to carry medicines or make assessments in the community. They were only authorised to detect and refer the patient.

Clause 56(4) posed a huge limitation. The Medicines Control Act recognised the nurse as a ‘prescriber’, but it said that such a nurse would have to be authorised by the Council. Clause 56 seemed to contradict this provision because it gave the Department of Health the power to make such authorisation instead of the Council. Also, the supply of medication in Clause 56(6) contradicted the dispensing legislation that was implemented in other areas of the health services and among doctors. It was believed that it could be regarded as contradicting the Medicines Control Act. That Act stated that all practitioners that dispensed medication had to have a licence to do so because they were not registered as pharmacists.

The Chair asked DENOSA if she meant that the current Clause 56(1) was a repetition of Clause 34 which dealt with additional qualification of nurses. In his opinion Clause 56(1) did not refer to additional qualification.

DENOSA replied that in a sense 56(1) did as it. She referred to the health assessment and care course, which was a post basic course which would be certified and registered as an additional qualification by the Council. The difference was that though about fifty nurses might do the course, only five would be authorised to diagnose and prescribe treatment in clinical care. The difference was in the fact that doing the course did not automatically give the authorisation to use the skills that were acquired.

The Chair said that the section did not in fact refer to additional qualification in the sense that was understood by DENOSA.

DENOSA maintained that in its view, there was duplication in the Clause 56(1) as there was the question of why the post basic qualification was singled out. The special provision authorised the nurses to use their skills in clinical practice, while Clause 34 provided for additional qualification and not necessarily the authorisation to use skills derived from it. The difference was in the authorisation to use the skills and DENOSA believed that there was possibly a confusion in the two provisions.

The Chair said that the Committee could not accept the proposal of DENOSA on that point.

Due to time constraints, DENOSA was not able to answer all the questions that arose from its submission. However it made itself available to liaise with the legal team for clarification of the issues which it had raised.

Mr Njikelana (ANC) said that DENOSA seemed to imply that there was discrimination between the public and the private sectors.

Ms Geyer replied that the issues she had raised were not about discrimination. There were two issues at stake. One was doing a course to acquire skills which was the process governed by Clause 34 of the Nursing Bill. The other issue was the process for authorising / licensing them to use the acquired skills. In the opinion of DENOSA, the section which dealt with the last issue put the two issues as one.

The issue was not about the public or private sectors. If there was a valuable service to be delivered, the department would authorise it. The real issue was separating post basic qualifications registration from authorisation to actually use the skills.

The Chair asked if DENOSA suggested that there be an automatic allowance in the provisions.

DENOSA replied that it had not suggested that but merely wanted clarification on why the two issues were put together and why the registration of additional qualification was not kept separate from authorisation to prescribe.

A member of the legal team said that there would be two levels comprising registration by the Council and authorisation by the Director General, head of the provincial department, medical officer of the concerned municipality or the medical practitioner in charge of the organisation. Once there was a registration with the Council and the Director General had designated a particular health service within an organisation, the nurse concerned would be able to perform the functions listed in Clause 56. There was no confusion as the provision stipulated that registration within a particular category was a prerequisite for applying for authorisation to use the skills from the requisite authority.

Christian Science Committee on Publication submission
Mr Louis Benjamin said that it was duty of the Christian Science Committee on Education to provide the public with the correct information on Christian Science and its founder, Mary Baker Eddy. Christian Science nurses had been practising in South Africa since 1970 with permission from the Department of Health. They wished to continue recognition for their religious ministry by including an amendment in the Nursing Bill. Their submission contained the definition of a Christian Science nurse, the services they provided and their qualifications. They proposed including an extra subsection in Clause 56 (Special provisions relating to certain nurses) which would promote individual choice of health care. The new 56(9) would state that the Act should not apply to Christian Science nurses provided that a Christian Science nurse did not represent himself or herself as being registered under the Act.

A committee member asked if the Christian Science Church had a mechanism that dealt with unethical behaviour by any of its nurses.

In reply, it was noted that the Christian Science Church required that its nurses attended services regularly and complied with the requirements of Christian Science nursing. This compliance allowed the nurse’s name to be contained in the official organ of the church – the Christian Science journal. Other members of the church were aware of the work of the Christian Science nurse with patients. These members would report any unethical behaviour by the Christian Science nurse who would be removed from the journal. He was not aware of any Christian Science nurse displaying any unethical behaviour because of the church's ministry.

Ms Kohler-Barnard (DA) asked if the services of the Christian Science nurses were professional or voluntary.

Mr Benjamin replied that services rendered by the Christian Science nurse were not voluntary and the recipient of such services was expected to pay the nurse. In certain instances, the nurse would have a schedule of payments related to the travel time, the equipment used and the time spent ministering to the patient. At the same time, the patient very often only paid what they could afford to pay. The ministry was not based on financial reward but based on a Church ministry.

The Christian Science delegation was asked what other means of ministration was used besides reading the Bible to a patient, and what was the function of the holy spirit in this process if there was any.

Their reply was that the Christian Science nurse helped with the healing of a patient in terms of prayer. However, there was a Christian Science practitioner who would pray for the patient. The Christian Science nurse’ role was to attend to the physical needs of the patient. The whole church was based on reinstating early Christianity and its lost element of healing which was practised by Jesus Christ. The periodic church magazines bore testimonies of healing as used by Jesus Christ and which was rediscovered by Mary Baker Eddy and were utilised presently for physical healing.

The Chair said that all further questions from members should focus on the submission's proposal. Members had to bear in mind that South Africa was a secular state which practised different religions. It was appropriate that the Committee did not make any decisions which triggered a demand from every religious group that the legislation favoured it religious practices and nursing methods.

Some of the practices excluded from the functions of a Christian Science nurse such as opening a file on a patient, counselling both the patient and members of his family, maintaining a record of symptoms of the patient’s medical condition, were in fact part of the services that were necessarily required that a medical nurse should provide in the National Health Act. It was necessary for members to take all these factors into consideration and make useful contributions about the Christian Science Church's proposal.

Ms Kohler-Barnard said that from her understanding, the Christian Science nurse was supposed to be a care giv. If one could afford the services of a care giver, then the personal choice could be made whether this care giver should be from a particular religious sect. The Nursing Bill did not regulate care giving but professional nursing, midwives and staff nurses. The Christian Science nurse did not fall into the ambit of the legislation and so the Committee should not impose any restrictions on the ministry of the Christian Science nurse.

Mr Benjamin said that the Ms Kohler-Barnard’s view was correct. The Christian Science Church submission was based on the provision in the Bill which stipulated that every person who was known as a nurse had to undergo registration. The Christian Science church needed the legislation to provide that the Christian Science nurse could still carry out its function.

Mr Njikelana (ANC) said the Bill provided for standards and the provision of quality nursing practice such as the cleansing and bandaging of wounds. There was no difference in the practice of these standards by a Christian Science nurse and a medical nurse. The Nursing Bill provided for the training and monitoring of the medical nurses. The Christian Science church would be excluded from the process if it was solely a religious group. The concern was the Christian Science nurse did provide services regulated by the Bill.

Ms Kohler-Barnard said the Committee should not be confused about the term ‘nurse’. There was a constitutional acceptance that every person had a right to practise his religion. Part of the practice of the Christian science religion was the provision of care giving to sick persons within the confines of their home. It was presumed that Christian Science nursing was provided only to Christian Sciencists. The difficulty in this practice was the use of the term ‘nurse’ which meant that formal training in nursing would be undergone. The plea of the Christian Science Church was that South Africa would employ the system already in use in other parts of the world which distinguished professional nursing from care giving.

The Chair said that the operative word in the proposal was the term ‘nurse’ and no person could claim to be a nurse without complying with the provisions of the nursing legislation. The claim of certain persons to be care givers was acceptable but these persons could consider the use of alternative titles which did not invoke the provisions of the nursing legislation. The Committee had noted the Christian Science request.

AIDS Law Project submission
Ms Fatima Hassan said that they welcomed the move by the Committee to repeal the 1978 Act by the introduction of the Nursing Bill which aimed to transform the Nursing Council so as to increase the protection of the interests of the public and to increase accountability of that Council. The Nursing Bill which was mandated by the Constitution stated in its memorandum that its objectives also included the increased access to health care services. These services would be provided in the spirit of the health users’ right to dignity. The AIDS Law project supported these objectives.

However, they believed that the Bill failed in certain respects. These areas were:
- The creation of direct lines of ministerial control instead of using bodies set up by the National Health Act;
- The dealing of the Council in a vacuum, which was without due regard to the broader legislative framework and without regard to the apparent crisis of human resources in the health care sector;
- The inclusion of provisions that directly undermined policies to improve human resource capacity.
Their submission dealt these concerns (see document).

The Chair asked for clarity on the issues raised in Clause 3.

The response was that ALP believed that in the near future the South African Nursing Council would be one of the most essential components in terms of providing quality health care services to the public. There was currently an acute shortage of nurses and it was believed that nurses would have to be the vehicle to bring about change and policy reform already identified in the National Health Act and in policy measures highlighted in the strategic framework for the human resources plan released by the Department of Health.

The Chair said that he disagreed with the ALP as to why this position had to be included in this legislation.

Ms Hassen said that it was important that the Nursing Bill catered for the short to medium term health care needs. They proposed that there should be a synergy between the human resources plan and the National Health Act. This ought to be taken into consideration because there was a specific role that the Nursing Council had to play in fulfilling these objectives which was not presently reflected in the Bill.

The Chair asked what part of the Bill showed that the issue of human resources was not reflected in the manner in which it ought to be addressed.

Ms Hassen responded that the Bill did not explicitly recognise the human resource crisis in the country and why the Nursing Council had to advance the mandate to deal with it. It seemed to be dislocated from the current human resource framework and the National Health Act.

Mr Njikelana said that in his opinion, an Act provided a generic framework and directives for the regulation of certain issues. The human resources crisis in the context of the Nursing Bill could be reflected at two levels, namely through the regulations and through the strategic plan prepared by the Nursing Council.

Ms Hassen said that there had to be a link between the Nursing Bill, the human resource framework and the National Health Act.

The Chair maintained that there was no reason the Bill should include the challenges of human resources and other related issues because those were not the purpose of the legislation. The Committee had recognised that the issue of human resources was a huge challenge and other mechanisms had be developed to track progress in that area. The Committee did not dispute the issues raised by ALP but believed that in the context of the current legislation, the issues were irrelevant.

The Chair asked if members had any comments on the section on the Forum of Statutory Health Councils.

Mr Njikelana said that the South African Nursing Council was statutorily accountable to the Minister. How did this relate to the accountability of the Forum which was also accountable to the Minister. It would be helpful if ALP elaborated on the issue of the actual role of the National Health Council in the context of the Bill. What relationship existed between the Nursing Council and the South African Health Council regarding the Bill which was being debated.

Ms Hassen replied that ALP did not suggest that the Nursing Council was not accountable to the Minister, but it pointed out that the National Health Act passed last year had already set out the obligations of the Nursing Council to the National Health Council and those obligations had to be factored into the Nursing Bill. There was a breakdown in certain lines of accountability and there was no direct line of accountability. The Nursing Council should be accountable to the Health Council because it had been given certain obligations in terms of the National Health Act.

With regard to the potential role of the National Health Council, the National Health Act already stated that the National Health Council would advise the Minister on issues relating to human resources production, planning, management and development. This meant that the Nursing Council had to take the lead with regard to attracting and retaining nurses and regulating the nursing profession in South Africa. The Nursing Council would have to work with the National Health Council which would in turn make recommendations to the Minister. There should be a forum where all the interest groups could make recommendations to the Minister concerning human resource issues and presently, the Nursing Council was not part of that forum. The Nursing Bill did not set out the obligations of the Nursing Council whereas the obligations were already set out in the National Health Act.

Mr Njikelana said that the provisions of the National Health Act showed that the Act only gave the power of an advisory role. How could synergy be created around these advisory roles?

The Chair referred to the Memorandum to the Nursing Bill which stated that it was intended to "dovetail with the provisions of the National Health Act and other relevant statutes". It was unnecessary to include what had already been provided for in the National Health Act such as forums and processes.

Ms Hassen said that the ALP maintained that it was necessary that the provision was incorporated into the Nursing Bill.

The Chair asked what the contention of ALP was with Clause 4 and what budget it referred to.

Ms Hassen responded that it referred to the revenue that the Nursing Council would be able to collect. The avenue for the collection of fees as reflected in the Bill would not be sufficient to carry out the mandate. For example, the Council for Medical Schemes was allocated with a lot more resources to enable it to meet its mandate. If there had been an assessment that showed that the fees would be sufficient, then there would not be a need for financial intervention but it was necessary to highlight the issue.

Mr Njikelana said that it would be helpful if there was a body of financial experts to provide the Committee with estimates.

The Chair pointed out that DENOSA had not complained about the issue of the fees which showed the financial dependence of most of the Councils. Most of the Councils survived out of their own budget. He then asked what were the issues that undermined national objectives as stated in the ALP submission.

Ms Hassen explained that the measures relating to the registration and removal of nurses from the register undermined the national policy objectives of ensuring that more nurses were retained in the country to work in the public sector. For example, Clause 31 and Clause 44 of the Nursing Bill undermined these national policy objectives. Clause 31 stated that nurses were required to provide proof of citizenship as part of the process of applying to be registered. It was unnecessary for the Bill to make this requirement as part of the process of working in South Africa for non South African citizens was to do so on the basis of a work permit or permanent residence. Submitting proof of identity would be sufficient.

Ms Kohler-Barnard said that because the provision did not specifically address citizenship, it made no sense in the sentence. It was not clear what citizenship was being referred to in the provision.

The Chair said that it did make sense because at some point, citizenship might be required. A foreigner who intended to work in South Africa had to provide proof of foreign citizenship so that his qualifications could be cross referenced in terms of his qualifications in South Africa. The section did not necessarily relate to proof of South African citizenship but it did require proof of citizenship.

Ms Hassen said that it was not that the provision made no sense but rather that it was unnecessary because a foreigner had to provide proof of citizenship in the process of obtaining a work permit or residency permit. Therefore it was not necessary to do so again particularly because the section did not specify to which citizenship it referred.

She continued that Clause 44(1)(c) would further entrench the problem of the shortage of nurses. Nurses who returned from abroad should be able to return to their practice if they still met the other criteria for registration without unnecessary delay. To achieve this, the Committee should consider removing the phrase in Clause 44 which prolonged the process of returning nurses being unable to resume nursing immediately.

Ms Mashigo said that nurses who left the country informed the Council about their intention to leave and when they returned, they were re-registered. She suggested that the provision should not be altered. Ms Manana supported Ms Mashigo’s suggestion.

Mr Njikelana said that there was a need for the nursing practitioners to be conscientious. Situations in which health professionals left without updating the Health Council about their whereabouts should not be encouraged. The requirement for re-registration was a safeguard to ensure that order was maintained in the nursing profession.

Ms Kohler-Barnard said that the Committee had not dealt with the issue of the actual time period it would take for a returning nurse to resume practice. A period of three years had been given - and was there a justification for this length of time? The problem could not be obviated simply by inserting that a nurse leaving the country had to inform the Council of its whereabouts and when they intended to return.

Dr Maghate said that the three year period related to the average number of years that professionals spent outside the country. A few professionals who took advantage of government or international scholarships stayed beyond the three year period. The Department could leave the provision unaltered with a proviso that stated that the necessary arrangements would be made to assist such professionals when they returned.

Ms Hassen suggested that as a way forward, any nurse going abroad who did not comply with the requirement to notify the Council of any change of address, would be removed from the register. The Council could use the practice of the legal associations which kept rolls for practising and non-practising lawyers. Lawyers who went abroad had the duty to inform the association of any change in address and also had to inform them when they returned so that they could be listed again under the practising roll. This made it easier for returning lawyers to get back into practice. The Committee should adopt a method which facilitated the return to practice of nurses who returned from overseas.

The Chair said that there were instances where nurses went overseas but did not continue in the nursing profession. There was no guarantee that during this period there was an improvement in the skills of the nurse. Clause 44 stipulated the conditions that had to be adhered to by a nurse going abroad, among which was the issue of correspondence between the Council and the nurse. If the nurse did not keep up correspondence within a period of six months, it was indicative of a problem. Most of the problem was administrative.

Another member said that he agreed that the issue of re-registration was an administrative one and the concern of the Committee was how it could help the Council to monitor these administrative issues.

Ms Hassen said that perhaps the drafters could include a time period in Clause 44 which would guide against the issue of unreasonable delay.

Ms Kohler-Barnard said that she had mentioned in a previous meeting that there were a large number of rules and regulations pertaining to nurses, while there was virtually nothing on the reciprocal side. The Committee could amend the provision to state that the Registrar was obliged to respond to the matter within a four week period. An administrative barrier could make the returning nurses regret their decision of coming back to South Africa.

The Chair said that the Committee should be careful not to make regulations that would result in nurses making unreasonable demands. The suggestion to insert a proviso that required nurses to return after a reasonable period was considered by the Committee as it seemed to be a viable option.

Ms Hassen noted again ALP's concern about the provision in Clause 44 that authorised the automatic removal of a nurse's name from the register if there was a failure to comply with the legislation. It suggested adding that this removal should follow due process.

The Chair agreed that there had to be a process to ensure that correspondence had indeed taken place and that there was a failure to comply. The drafters should include this suggestion in the provision.

Ms Hassen said that there was the issue of scope of practice which meant that Clauses 4, 30 and 58 had to be read together. This was confusing because Clause 4 stated that the Nursing Council had the duty to determine issues that concerned scope of practice, while Clauses 30 and 58 stated that it was the duty of the Minister to do so after consultation with the Nursing Council. ALP suggested that the three were linked together in a manner that created confusion about who had primary responsibility for determining and revising the scope of practice and what process would be followed.

ALP suggested that the primary responsibility to determine the scope of practice should be with Nursing Council together with the Forum because that was where brainstorming and exchange of ideas happened. The Minister should make regulations on the recommendations from the Nursing Council as was the case in the Health Professions Act. If that was the case, the process of the determination of the scope of practice had to be set out in the Nursing Bill which would include participation of the relevant stakeholders.

Mr Njikelana said that there was a difference between Clause 4(1)(l) and the other clauses, because Clause 4 dealt with the determination of the scope of practice of nurses as described in the Act. The difference was in the mention that was made of the Minister creating the scope of duty within other categories. Clause 58 dealt mainly with reference to regulations. In conclusion the three sections complemented each other rather than appearing to be contradictory.

Ms Kohler-Barnard said that there was no problem with the first and second provision. In the first provision, the Council had to determine the scope of the practice of nurses. The second provision stated that the Minister must determine the categories of nurses as a result of the information provided by relevant bodies. In essence, the Minister was not determining the scope of practice for nurses. The section that dealt with the issue of regulations was not clear.

[PMG note: There was a slight gap here in terms of minuting]

Mr L Ngculu referred to Clause 10(6), and noted that members would elect the vice-chairperson of the Nursing Council if the position became vacant.

Ms Fatima Hassan said for most of the statutory bodies, the procedure was that the executive appointed the chairperson and members appoint the deputy chairperson.

Ms Hassan noted that they had already dealt with Clause 11 and 18 in relation to control / oversight. On Clause 21 on Funding of Expenditure, the only issue for flagging was that an assessment needs to be undertaken as to whether revenue collection will actually be sufficient for the Nursing Council to carry out its function, given its important role in the next few years in the short, medium and long term. She pointed out the difference between the fees that the Health Professions Council and the Nursing Council can collect. Obviously it depends on the skill and level of expertise and the number of members. The Health Professions Council is quite well funded whereas nurses in the public sector will in all likelihood not be able to afford these high fees which will impact on the Nursing Council's ability to carry out its job. Perhaps some other mechanisms of revenue collection independent of government can be considered such as private institutions that hire private sector nurses could perhaps pay higher fees. However that is something that government would have to consider.

Mr Ngculu stated that the Committee would deliberate on that later as it would be difficult to deal with it here.

With reference to Clause 29(2)(j)(i - iii), Ms Hassan stated that the Registrar as accounting officer was required to submit an annual report to the Nursing Council but there was no provision for the Nursing Council to submit an annual report to Parliament, to the statutory health professional councils or to the Minister. Likewise there was no facility for scrutiny of the annual statements or independent auditors report, except by the Nursing Council itself. These documents should be submitted to Parliament, the health professional councils and to the Minister.

Mr Ngculu noted that if it is a Public Finance Management Act statutory council then there are certain provisions they must comply with and annual reports to Parliament were essential.

In reply to the Chair saying that this had already been covered, Ms Hassan explained that there were two aspects, Clause 29 dealt with the duties of the Registrar reporting to the Council but the other aspect that needed to be dealt with was the function of the Council reporting to the Minister.

Ms Hassan noted that the definition section referred to 'midwife' as a female person performing that job. The definition should also apply to a male midwives.

Ms Hassan stated Clause 31(2) allows for the Minister by notice in the government gazette to create new categories of nursing practitioners if deemed necessary. However there was no guidance on how this discretion will be exercised nor did it require any form of consultation with the Nursing Council or stakeholders such as the health care unions. It should require the Nursing Council to recommend new categories to the Minister and National Health Council only after an open consultation. The Minister would publish the notice of their recommendation.

Mr Ngculu commented that there should be consultation before notice is given. They are executive functions.

Ms Hassan referred to Clause 32(5) which appears to limit access to clinical facilities for training purposes and it does not specify that it is just for nursing training. She suggested that the word "nursing" precede "training" so as not to limit access to the facilities for other forms of training. The intention of the provision is good, however the way it was drafted made it unclear.

Ms Hassan stated that community service is limited to a person who is a citizen of South Africa. She understood the policy rationale that foreign trained nurses did not have to perform community service. However, a permanent resident in South Africa who trained here perhaps should perform community service.

Mr Ngculu suggested they flag this. He asked for clarity about the regulation of research.

She said that it was felt that there was insufficient detail and that it should make reference to the provisions of the National Health Act that dealt specifically with research at the research institutions.

Mr Ngculu asked about Clause 42.

Ms Hassan said that 42(2) allowed the Council to refuse any application made in terms of 42(1) or grant provisional or conditional accreditation. She suggested that the basis for refusal should be set out in regulations and the criteria for accepting applications should be spelt out in that section.

Ms Hassan submitted that in Clause 53 (Penalties), the basis for excluding a class of person from criminal sanction should be determined by Parliament and not by the Nursing Council (which did not have the mandate to determine who will be precluded from criminal sanction or prosecution).

Mr Ngculu suggested they flag this and look into the role of Parliament.

Ms Hassan stated that in Clause 57 there should be a further appeal in the High Court as the same existed for doctors. This would entitle a person aggrieved by a decision of the Nursing Council, the professional board, disciplinary or appeal committee to give notice of appeal to the High Court within one month of the date of the decision.

Mr Ngculu asked why the obvious should be stated.

Ms Hassan replied that the provision that allowed people recourse to that right was specifically in the other legislation. The obvious had to be stated because you needed to notify aggrieved personnel that they have the right to appeal a decision of the appeal committee and that there was a time limit for lodging an intention to appeal with the High Court.

Mr Ngculu said that to include that in legislation was to state the obvious. The Department of Health agreed that this was an automatic right and it was not necessary to include this in the legislation.

Ms D Kohler Barnard asked if a nurse on the ground would automatically understand that that was their right.

Mr Ngculu believed that there were many such cases where people have disagreed and have appealed to the courts.

Ms Hassan stated that she would then urge the legal advisers to consider setting a time period within which the notice of appeal must be lodged.

Mr Ngculu stated that this concern was noted.

South African Medical Association
Dr Norman Mabasa, Chairperson on the National Convention on Dispensing (NCD), commented that they needed to ensure that all provisions in this Bill were in the public interest. South Africa was facing a migration of medical health care personnel to Australia, United Kingdom and New Zealand. The challenge was to ensure that these workers were retained both in the public and private sector by improving the remuneration and coupling it with improved working and service conditions. SAMA supported the Bill in principle, and believed it harmonised the rights in Clause 27 of the Constitution.

SAMA’s only concern was with Clause 56. Its submission stated that nurses were trained to practice nursing, whether basic or comprehensive, but not trained to perform all the proposed services stipulated in Clause 56 of the Bill. A nurse should not be registered to perform the services referred to in Clause 56, unless properly qualified and trained. If certain categories of nurses are permitted to provide services which fall primarily within the ambit of medical sciences, they had to be subject to the same or comparable ethical standards.

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

Mr Ngculu referred to the comment that the HPCSA should be the custodian of doctors norms and standards to ensure consistency, and nurses should not be allowed under any circumstances to do what they are currently doing themselves.

Dr Mabasa replied that the Nursing Council could set its own standards but needed to consult with the HPCSA to see that its standards are adequate and meet the requirements He cited the example of dispensing had already been transferred to pharmacists. Dr Mabasa continued that the Bill allowed the Director-General to overule and bypass that. He continued that this was an unfair treatment because if dispensing had to be licensed then it had to be licensed for everyone stringently without exclusions.

Mr Ngculu asked where in the legislation was it not stringent enough and where did it say nurses would not be registered or get permission if and that on reading section 6 d it gives a type of suggestion of pharmacy council.

Dr Mabasa responded that they were worried that despite the provisions of the Medicines and Related Substances Act, the Director General could still say that those in the public sector in the rural areas could dispense without licences because people may die.

Mr Ngculu stated that after consultation with the Pharmacy Council they were not in limbo, but were under the same strict conditions as doctors.

Dr Mabasa replied that he had no argument with the chairperson’s clarification

Mr Ngculu stated that Dr Mabasa wanted all professions to fall under the Doctors’ Council. However both nurses and pharmacists were special and needed to be independent because of this. He asked who becomes independent and who gets merged? Doctors were unsure whether they must take the rest of the health professions under their wing, what professions should be merged with them and what professions wanted to remain independent. This issue would be flagged.

Dr Mabasa concluded that SAMA was asking questions regarding the logic of the Bill but they did welcome the Bill.

South African Nursing Council Submission
Ms Jabu Makana noted the Nursing Bill created a new regulatory framework for the nursing profession. The submission made comments on the establishment, functions, composition and funding of the Nursing Council. It also covered Education and Training, Registration, Private Practice and Appeals against decisions of the Professional Conduct Committee and proposed a few technical changes in the Bill. The SANC supported the Bill without any reservation and it was their view that this Bill would have a significant impact on the regulation of the nursing profession which would benefit health care delivery.

Mr Ngculu noted SANC’s recommendation for changes regarding the term "auxiliary midwife."

The SANC Registrar, Ms Hasiena Subedar stated that they had suggested "midwife" instead. She said that the Nursing Council was not training any enrolled midwives, but still had remnants from other countries.

Mr Ngculu suggested that this matter should be flagged and he suggested that the term be redefined. He accepted the deletion of the term "nursing agency" and of ‘learner nurse’ and ‘learner midwife’ (Clause 32).and the replacement of the term ‘patient’ with ‘health care user’ and the amendment of the definition of ‘nursing service’ to read "means any service within the scope of practice of a nurse and midwife".

Mr Ngculu agreed to add the new definition "accredit " meaning to recognise or certify as meeting the minimum prescribed nursing education requirements in terms of this act. The definition of the term "proforma complainant" was flagged and referred to the legal adviser. With regard to the to the Objects of the Council
(d) was revised to "establish, improve and control conditions, standards and quality of nursing education".

Mr Ngculu agreed to Clause 4(2)(f) to "accredit nursing education institutions and nursing education programmes", The Chairperson asked what the Committee thought about nine members, one from each province, for the composition of the Council. The Committee's feeling was they should look for community members who had skills, and who could advise and protect the community. The Council had not wanted to exclude ordinary community members.

The Chair stated that there must be a compromise and the whole issue of composition must be flagged and reviewed. He stated that the term "disqualification from membership " should be amended to read a provincial or national office bearer or an employee of any party, organization or body of a political nature".

Mr Ngculu stated that the changes recommended for Clause (10)(1)(a) with regard to the appointment of the chairperson and vice chairperson by the Minister should be flagged

Mr Ngculu questioned the reason for appointing another person with financial experience to the executive committee of the Nursing Council and the Council responded that it was necessary.

Mr Ngculu questioned the reasons for deleting the term ‘disciplinary committees’ in Clause 15(1) and the Registrar replied that the Council had professional misconduct committees and having both could cause confusion.

Mr Ngculu accepted the point made in Clause 16(2) and the Public Service Commission had to look at this.

He asked for clarity on Clause 40(1) replacing ‘public’ with ‘national service’. In terms of this Clause 42(1)(a) it was consistent with an earlier clause. However Council’s request to add the provision of licensing a professional nurse to conduct a private practice in 42(4)(2)(i) was a substantive change. Although the principle made sense, he urged that the issue be flagged.

Mr Ngculu questioned why the provisions of Clause 44(1) were excessive .

Ms Subedar replied that it was for people who had left the country who should not be precluded from registration, since they had many nurses who left the country to work elsewhere, and if they work for three years or more they are obliged to have their names removed . Furthermore if there was a pending complaint one could have their names removed from the register to avoid the consequences. She thought this right must be weighed up against the right to permit an individual to withdraw from the register and the right of the Council to conduct an investigation of the individual on the register. It was felt that Clause 44(f) could be excessive as the only sanction that could be imposed was to remove them from the register. It was felt that they should be able to remove themselves from the register if they did not want to practice instead of forcing someone to remain on the register. However the Council must be able to remove them if necessary.

Mr Ngculu responded that they would flag this matter. In terms of Clause 46(1) the changes were semantic and this would be referred to the state law adviser.

Ms Sobieda stated that it was essential that Clause 47(3)(c) be changed to read "investigate all matters of alleged professional misconduct as well as in the case of a minor offence, recommend an option of a prescribed fine instead of a full professional conduct inquiry".

Ms Kohler Barnard stated it would be necessary to run this past the state law adviser because the implications of offering an option of a fine implied that you had admitted your guilt. The issue was flagged.

Ms Subedar explained that in terms of Clause 51(1) the Council required some expertise in cases where a person should be removed from practice due to impairment and that one had to be very careful so as not to give the individual an unfair hearing.

Mr Ngculu stated that to remove "or accrediting" in Clause 52(1)(a) had been dealt with. Clause 52(1) would be flagged as it was an important issue that the Health Department would deal with. Clause 56 would also be flagged as a number of issues had been raised and Clause 58(1)(j ) was already flagged.

Ms Subedar stated that the Nursing Council felt that in terms of the transitional provisions in Clause 61(1), they should try and ensure that enrolled midwives could be regulated as people in that category would clearly not be at a disadvantage.

Mr Ngculu adjourned until 18 October 2005.


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