Nursing Bill: public hearings

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Health

17 October 2005
Chairperson: Mr L Ngculu (ANC)
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Meeting Summary

The Committee conducted public hearings on the Nursing Bill. The Private Nursing Practitioners of SA (PNPSA) presented five areas of concern with the Bill. A licence fee would be required for a professional nurse to conduct a private practice, and the Society considered that clause discriminatory. The second area of concern related to Clause 31 (3), which would result in health workers not being allowed to train in hospitals. Thirdly, Clause 34 (1) would lead to an increase of court cases against nurses working outside their specialised areas. Nursing practitioners worked in a range of fields where their expertise had lapsed. Clause 56 (1) through (5) would result in mid level nurses being allowed to dispense medicines for which they were not qualified. Lastly, Clause 56 (6) would allow the Director-General the power to override the Nursing Council in deciding which nurses could examine and diagnose patients, as well as administer or prescribe medications.

The University of Cape Town (UCT) Nursing and Midwifery division first offered a broad response to the Nursing Bill and then presented a detailed response and suggested alternatives to specific clauses. UCT outlined the detailed table of suggested changes in the Bill. Those included definitions relating to the profession, the tone of the Bill, accountability of the Council, objects and functions of the Council, composition and disqualification of the Council, funding of the Council, community service, education and training, issues if unprofessional conduct, special provisions, dispensing, and "open shop".

The Committee discussed the issues of the SA Nursing Council (SANC) elections, training access in hospitals, the role of ancillary nurses, the scope and practice of nurses and the objects of the SANC. The Committee would deliberate further after all the submissions had been heard.
 

Documents handed out:
Nursing Bill [B26-2005]
Private Nursing Practitioners of South Africa PowerPoint presentation
Comments on Nursing Bill by Private Nursing Practitioners of South Africa (see Appendix)
UCT Division of Nursing and Midwifery Response to the Nursing Bill

Meeting report

Society of Private Nursing Practitioners of South Africa presentation
Ms D Regensberg (Past President SPNPSA) presented the submission to the Committee. She noted that there was no definition in the Bill for the private nursing practitioner. They worked independently, often in association with other health care professionals, providing the old district nursing services. The Society welcomed the Bill regarding it as in the best interests of the public, but raised five concerns. The first concern related to Clause 4 (2) (I), which stated that a licence fee would be required for a professional nurse to conduct a private practice, which the Society considered discriminatory.

The second area of concern related to Clause 31 (3), where an employer must not employ or retain in employment a person to perform the functions pertaining to the profession of nursing, other than a person who held the necessary qualification and registration. The Health Act referred to health workers in non-professional categories who according to that clause would not be allowed to work or train in hospitals.

Thirdly, Clause 34 (1) would lead to an increase of court cases against nurses working outside their specialised areas. Nursing practitioners worked in a range of fields where their expertise had lapsed. The fourth concern lay with Clause 56 on special provisions relating to certain nurses. Clause 56 (1) through (5) extended dispensing of medications to appropriately qualified registered nurses. The Society had concerns with the mid-level range of nurses having such authority and felt it would be inappropriate. Lastly, Clause 56 (6) would allow the Director-General the power to override the Nursing Council in deciding which nurses could examine and diagnose patients, as well as administer or prescribe medications.

The Society argued that the Bill would compromise the democratic practice of the election of the Nursing Council and the appointment of a Chairperson. The Council would not be representative of the nursing profession.

Discussion
Ms M Madumise (ANC) asked why a definition for a nurse in private practice was needed when the Bill did not define a nurse working in the public sector. Ms Regensberg responded that as the Bill was introducing a license fee for private nurse practitioners, a definition was needed. The Chairperson noted that no definition was given distinguishing between a public and private doctor, so why would it be necessary for nurses? Ms Regensberg pointed out that was the precise issue. A licence for private nurses should not be in the Act at all and was discriminatory. Nurses were already licensed with the Nursing Council.

Ms B Ngcobo (ANC) inquired about problems of payment for vaccinations and immunisations. Ms Regensberg explained that until three years ago, private nurses could apply to provincial government for vaccine supplies in exchange for providing the State with statistical information. The introduction of the Public Finance Management Act was a positive step and required an audit trail of public vaccines. The results, however, were that private nurses could administer free vaccinations to mothers who were unable to attend state clinics, but were not allowed to charge for the clinical service. With the exception of two provinces, the state would not provide private nurses with free vaccines, making it difficult to participate in national health goals.

The Chairperson asked for more clarity on the Clauses 31 (3) and 32 (5) concerns. Ms Regensberg explained that according to the Bill, places like old age homes and hospices would not be allowed to employ health care workers despite issues of affordability and staff shortages. She asked who defined the functions specific to nursing. Where did caring end and nursing begin?

Mr Madela (ANC) noted that the Act was the best way to protect the public from nurses who were unqualified. Ms Regensberg responded that none of the community services would survive without ancillary nurses, and they needed to be drawn into the fold at some stage. The Chairperson said that home based care was covered by other legislation.

Ms Regensberg expressed concern that the Act would not allow ancillary nurses to train in hospital facilities and the unsatisfactory result was the use of dolls for that purpose. Learner nurses needed facilities to carry out their practical training. The Nursing Council stated that if nurses were being trained in a hospital, the training of others was prohibited. The Society proposed that Clause 31 (3) be extended to include all persons defined under the Health Act as health workers and similarly for Clause 32 (5). Ms D Kohler-Barnard (DA) suggested it might be appropriate to take the definition of health worker out of the Health Act and place it in the Nursing Bill.

Ms M Manana (ANC) said it was necessary to know the scope and practice of each nurse before they were allowed to work in hospitals. With so many ‘fly-by-night’ nursing schools wanting access to hospitals for practical training, it was essential to protect the public. Mr Madela said it was important that ancillary health care workers be provided the opportunity to develop into fully-fledged nurses. He feared that there would be a mushrooming of ancillary nurses as a substitute for nurses at a cheaper rate. A solution would be training institutions applying to the Council for access to hospital facilities for training purposes.

The Chairperson concluded that a balance needed to be found, as some health care workers might have no desire to become nurses and needed to be respected in that decision. He stressed that the Bill should not be read in isolation from the other relevant legislation such as the Health Act. Mr M Motsapi (National Department of Health) noted that the Nursing Bill’s aim was to protect the public and health worker issues had to be addressed in Chapter six of the National Health Act.

The Chairperson raised the Society’s issue with Clause 56. Ms Regensberg had argued that Clause 56 (1) – (5) provided all the necessary authority required by the Nursing Council to register a nurse. Clause 56 (6) however, allowed the Director-General to bypass the Council and allow persons authority that the Council might deem inappropriate. The Society felt the clause should be removed in its entirety. Dr R Rabinowitz (IFP) asked if there was a specific need for the clause. Mr Motsapi explained that it had been inserted because it emphasised that nurses with prescribed qualifications and training would then make health care more accessible. Ms Regensberg felt that the Council would register practitioners under Clause 56 (2). The Society believed that staff nurses in rural areas authorised to practice beyond their abilities would place patients at great risk. The Chairperson however concluded that the clause provided for consultation between the Director-General and the Council and a nurse would only then be given such authority if a doctor were not available.

UCT Division of Nursing and Midwifery presentation
Professor S Claw of the University of Cape Town Nursing and Midwifery division first offered a broad response to the Nursing Bill and then presented a detailed response and suggested alternatives to specific clauses. UCT felt that the sub categories of nursing made those nurses feel sub professional. Regardless of whether a nurse’s scope was limited, all registered under the Act were professional in nature.

Prof. Claw noted that nursing and midwifery were two separate and distinct professions and should not both fall under the title of nursing. The core of the Bill was to protect the public, and that would serve to strengthen the profession of nursing and midwifery. At present, regulations were out of date with some being contrary to good scientific practice. Nursing and Midwifery research needed to inform the way in which legislation was made, with legislators working in collaboration with the profession.

UCT felt that the tone of the Bill was punitive and in competition with the profession, which was not appropriate to strengthen and value nursing and midwifery. The Bill was thought to have many positive aspects as well.

The Peer Review process was of concern. Regarding professional conduct, it was critical for the profession to regulate itself. Suitably qualified peers were needed for the review process. If the review mechanism was to have the status of a magistrate’s court, then those participating needed to have training in weighing evidence. Concerns were raised with the election of the Nursing Council and the appointment of the Chairperson by the Minister. The election process was critical. UCT raised the issue of education and the special provisions in Clause 56.

Prof. Claw proceeded to take the Committee through the detailed table of suggested changes to the Bill. This included definitions relating to the profession, the tone of the Bill, accountability of the Council, objects and functions of the Council, composition and disqualification of the Council, funding of the Council, community service, education and training, issues of unprofessional conduct, special provisions, dispensing, and "open shop".

Discussion
The Chairperson noted that only new issues raised would be addressed, as a number of concerns had already been raised in other submissions and been thoroughly discussed by the Committee.

Ms Ngcobo asked about the funding issue. Prof. Claw responded that financial disclosure was needed. Reasonable fees could be collected from nurses, but money needed to be raised publicly to fund the election, which cost R1.5 million. The last Nursing Council election was not representative. Nurses had expressed a great deal of anger, feeling that fees were unilaterally imposed upon them yet their only experience of the Council was punitive. In that context, a boycott of the last election had been called.

The potential for the Council to play a transformative role had not been conveyed to nurses. The SA Nursing Council (SANC) needed a marketing campaign to sell themselves as a credible and important body. The Chairperson took note, but argued that SANC had not presented such a view. He stated that health issues needed to go through the Minister, and organisations needed to be sensitive to that function. Prof. Claw was not suggesting the Minister not have powers, but argued that Parliament had powers too, and accountability needed to be more obvious.

The Committee discussed the various definitions raised by UCT, and felt that they had been resolved in prior discussions. They also considered nursing and midwifery to be part of the same profession. Prof. Claw insisted that the two were distinct professions through to the international level at the World Health Organisation (WHO). She felt that the maternal mortality rate in South Africa was very high due to health care problems. Nurses were not maintaining their abilities in that area. Midwifery was seen as an appendage to nursing and was not accorded the status it warranted. The Chairperson disagreed, stating that it was a recognised profession not subsumed by nursing, but it could not be taken out of nursing.

Prof. Claw noted that the SANC currently lacked communication and infrastructure resulting in inordinate delays in decision-making and delivery of service to the public. There had been cases where programme accreditation had been delayed for 18 months. The Chairperson agreed to look at that issue, but reiterated that the object of Council was to protect the public rather than the profession.

UCT raised concerns that the Bill spoke of amending the register of nurses practising in the country, but not of maintaining that register. They were also concerned in Clause 4 (1) (h) that names of nurses found guilty of professional misconduct would be published in the Government Gazette. Mr Motsapi explained that the name would only be published once, and the intention was to alert the public that the person was no longer a registered practitioner in terms of the Act and was no longer entitled to practice.

Prof. Claw suggested that a ‘gatekeeping’ mechanism be introduced for the register of nurses, so that people could only have access to personal details for good reason. The Chairperson felt that there were such mechanisms in place already.

UCT questioned the two-year limited registration period granted to foreigners for the purposes of practice, research and education. The Committee agreed to find out why that time-period had been allocated. Prof. Claw also suggested a register for non-practising nurses who were working abroad and needed proof of their home country qualification. The Chairperson agreed to discuss that point.

The Chairperson concluded that the Nursing Bill should be viewed in conjunction with the other appropriate legislation.

The meeting was adjourned.


Appendix:
PRIVATE NURSING PRACTITIONERS OF SOUTH AFRICA: COMMENTS ON NURSING BILL


4. Functions of the Council
(2) The Council may:

Subject to prescribed conditions and upon payment of a prescribed fee, issue a license for a professional nurse to conduct a private practice:
This is a concern. Nowhere does the Act indicate under what conditions, and who will be consulted. It is also not included in the list for which regulations shall be made. I may be incorrect, and we need to clarify it, but this was overturned by the Constitutional Court in respect of the medical practitioners as part of their challenge to the Health Act and the Certificates of Need.
Why should we be discriminated against in having to pay an additional license fee. What constitutes private practice – does it include the Occupational Health Nurses, and if so, there is a double penalty here, as one already has to pay heavily for dispensing license.

5. Composition of the Council
The Bill removes the right of the profession to elect a portion of the Council membership – this is contrary to democratic principles. Nominations still leave the decision to the Minister who does not have to consult.

6. Disqualification from membership of the Council
(d) We previously asked that there be a definition of "mental illness" or "mental health care user" – does anyone have sufficient knowledge of the Mental Health Act to establish if section one is suitably constrained – surely something like post-natal depression or acute anxiety disorder should not preclude one from office. Similarly, how do they work with those who have recovered.
office-bearers of organization or party "of a political nature" does this exclude Cosatu Union officials from serving on the Council?

10. Chairperson
(a) Minister appoints the Chair – Nurses fought for many years for the democratic right to elect the Chairperson.

31. Registration as a pre-requisite to practice
(3) An employer must not employ or retain in employment a person to perform the functions pertaining to the profession of nursing, other than a person who holds the necessary qualification and who is registered under subsection (1) or (2).
Given the very broad definition of nursing (‘‘nursing’’ means a caring profession practised by a person registered under section 31, which supports, cares for and treats a health care user to achieve or maintain health and where this is not possible, cares for a health care user so that he or she lives in comfort and with dignity until death;) this has the potential to prevent community based care organizations from providing affordable, and therefore accessible and equitable health care, as one cannot have Ancillary Health Care workers being employed in the same organization. Ancillary Health has been recognized by the national authorities, both in the recognition of the qualification and through their inclusion in the Public sector, as health care providers.

32. Registration of learners
Similarly, the impact of section 32 (5) will preclude Ancillary Health Workers and Doulahs from gaining experience in a supervised facility during their training. 32 (5) A health establishment must not allow access to clinical facilities for training purposes to anyone who is not registered as a learner nurse in terms of this Act.

56 Special provisions
The addition of section 56 (1-5) negates the need for section 6 (the old 38A). It appears to indicate that although it is the responsibility of the Council may register persons to do the certain activities, the Director General or other delegated person may over-ride or by-pass the Council. This has serious implication for patient safety. Staff shortages in rural areas should not be used as an acceptable motivation to place indigent and other underserved patients at risk.

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