Nursing Bill: deliberations

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Health

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

The Committee considered from Clause 11 to the end of the Nursing Bill. Members debated the difference between the "disciplinary committees" and the "Professional Conduct Committee" in Clause 15, but decided to retain both terms. In Clause 16, the issue of the reimbursement of public servants requested to attend Nursing Council meetings was flagged for further discussion. The Committee decided to retain the current wording of Clause 32 which stipulated that each time a nurse underwent training, s/he would have to apply for registration as a learner nurse, even if s/he was already a registered nurse when undergoing further advanced training. The period within which a person with limited registration could practise, in terms of in Clause 33, was extended to three years. Clause 39 was amended to clarify that the Nursing Council would oversee and regulate continuing professional development, and not the Minister.

Most of the debate focused on Clause 40 that dealt with community service. The DA proposed that the 26 months of community service that nurses already served during their training be regarded as discharging their community service obligations under the Bill. She argued that the provision was unfair as the nursing profession had already done four to thirteen times more service than any other profession in South Africa. The ANC disagreed as training did not constitute community service. The DA representative showed her disapproval by leaving the meeting at that point. The concept of a non-practicing register was inserted in Clause 44.

Meeting report

The Chairperson stated that today's meeting was a continuation from the previous day’s meeting. He would be reading through every clause, and Members would then have an opportunity to propose amendments.

Chapter 1: South African Nursing Council

Clause 11: Duties of chairperson
Ms M Madumise (ANC) noted that one of the submissions proposed that the Chairperson of the Nursing Council should be a member of the Forum of Statutory Health Professionals and fulfill the obligations contained in Section 54 of the National Health Act of 2003.

Adv. H Sangoni, State Law Advisor, replied that it was not necessary to include that in this Bill, as it was already accommodated in other legislation.

Mr M Motsapi, Department Director: Legal Services, contended that it was covered by Clause 11(d).

The Chairperson noted that the Committee agreed to the clause, without amendments.

Clause 12: Meetings of Council
The Chairperson expressed his concern that only three out of a total of 24 members of the Council were required to call a special meeting, as was currently contained in 12(3)(b). He proposed that a requirement of a third of the members would be more reasonable.

Ms D Kohler-Barnard (DA) stated that three could very well be a reasonable figure if one considered that all the members would no doubt be spread all over the country, and it would be nearly impossible to have them all together in the same place on such short notice. A larger number would not enable the Council to react with speed should an urgent situation arise.

The Chairperson noted that the Committee agreed to the requirement of one third of the total members, and that the Committee agreed to the clause as amended.

Clause 13: Quorum and procedure of meetings
The Chairperson noted that the Committee agreed to the clause, without amendments.

Clause 14: Executive Committee of Council
Ms Kohler-Barnard supported the Democratic Nurses Organisation of SA (DENOSA) concern that the current wording of 14(1) made it possible for only three of the eight members of the Executive Committee of the Council to be professional nurses, and that nurses should be in the majority.

The Chairperson informed Ms Kohler-Barnard that this was covered yesterday when it was decided that as the Chairperson of the Council would be a registered nurse, the DENOSA concern would be covered. He proposed that a relevant person with financial expertise be included in 14(1), and thus that 14(1)(e) should be amended to include a reference to Clause 5(`)(b)(iii) and not to Clause 5(1)(b)(ii). He noted that Members agreed to this proposal.

Mr Motsapi proposed the alteration of the 18-month period in 14(4) to a 20-month term, so that each executive committee member could serve three equal terms.

The Chairperson noted that the Committee agreed to the amendment and to the clause, as amended.

Clause 15: Other committees
Mr Motsapi stated that it had been agreed on a previous occasion to delete "disciplinary committees" in 15(1) because it already referred to a "Professional Conduct Committee", which was the same thing.

The Chairperson noted that the Committee agreed to the amendment.

Adv Sangoni stated that consequential amendments would have to be effected to 15(4)(, 15(5) and 15(6) in order to replace "disciplinary committee" with "Professional Conduct Committee".

Ms B Ngcobo (ANC) and Ms Kohler-Barnard noted that the submissions proposed the substitution of "may" with "must" in 15(4).

Adv Sangoni responded that ad hoc committees were not established on a peremptory basis but as the need arose, and thus "may" should remain.

The Chairperson sought clarity on the difference between a disciplinary matter and a professional conduct transgression, and posited that the two were not identical. He used the example of a nursing professional who arrived at Parliament to brief the Committee while under the influence of alcohol. He felt that would amount to a transgression of personal discipline and not to a violation of professional conduct standards.

Ms Kohler-Barnard stated that the provision would not regulate the private life of a nursing professional, and it only regulate that person when s/he carries out duties as a nursing professional. Any ‘foul activity’ regulated by the provision would have to be in terms of professional conduct. She thus disagreed with the Chairperson as presenting to Parliament would be part of that person's professional mandate, and was not a matter of personal discipline.

Ms M Manana (ANC) reminded Members that they had already decided to retain both the disciplinary committee and the Professional Conduct Committee terms. The Chairperson noted that the Committee agreed to the clause as it currently stood.

Clause 16: Remuneration of members of Council and committees
Ms Kohler-Barnard stated that 16(2) had been flagged because it stipulated that public servants who were requested to attend the Council meetings would not be paid, when clearly they should be reimbursed.

Ms Manana and Ms Ngcobo proposed that only those Department officials mandated to attend the Council meeting should not be remunerated, but nurses needed to be remunerated.

Mr Motsapi explained that the Department officials who sat on councils as part of their conditions of employment, were paid by the Department. Ms Kohler-Barnard felt that the concern was then covered.

Adv Sangoni asked whether officials from government departments other than the Department would be reimbursed as well, because they fell under the public service.

Ms Kohler-Barnard answered in the affirmative as 16(2) referred to any person who was not in the public service, which included all government departments. The provision thus clearly stated that any government department official would be reimbursed by their department.

The Chairperson ruled that 16(2) be flagged for further discussion.

Clause 17: Minister may rectify defects
The Chairperson noted that the Committee agreed to the clause, without amendments.

Clause 18: Appointment of Registrar and staff
Ms Kohler-Barnard asked whether the Minister would appoint the Registrar.

Mr Motsapi replied that the Department was currently engaged in the process of changing legislation governing all statutory councils. The recently promulgated Traditional Health Practitioners Act contained a provision for the appointment of the Registrar by the Minister, after consultation with the relevant Council Act. Thus the same process would be followed here, as it was a general principle employed by the Department.

The Chairperson noted that the Committee agreed to the clause as it currently stood.

Clause 19: Duties of Registrar
The Chairperson noted that the Committee agreed to the clause without amendments.

Clause 20: Accounting duties of Registrar
The Chairperson noted that the Committee agreed to the clause without amendments.

Clause 21: Funding of expenditure
The Chairperson noted that the Committee agreed to the clause without amendments.

Clause 22: Bank account of Council
The Chairperson noted that the Committee agreed to the clause without amendments.

Clause 23: Council budget
The Chairperson noted that the Committee agreed to the clause without amendments.

Clause 24: Contents of annual budget and supporting documents
Ms Kohler-Barnard noted that many of the submissions queried why statutory bodies such as the Council for Medical Aid Schemes received better funding than the Council.

The Chairperson replied that the general view was that the Council would be funded by the contributions it received, under Clause 21. He noted that the Committee agreed to the clause as it currently stood.

Clause 25: Unforeseen and unavoidable expenditure
The Chairperson noted that the Committee agreed to the clause without amendments.

Clause 26: Unauthorised, irregular or fruitless and wasteful expenditure
The Chairperson noted that the Committee agreed to the clause without amendments.

Clause 27: Cash management and investments
The Chairperson noted that the Committee agreed to the clause without amendments.

Clause 28: Disposal of capital assets
The Chairperson noted that the Committee agreed to the clause without amendments.

Clause 29: Corporate governance
Ms Kohler-Barnard noted that one of the submissions queried whether the financial statements of the Council would also be tabled in Parliament.

The Chairperson replied that they would automatically be presented to Parliament. He noted that the Committee agreed to the clause as it currently stood.

Chapter 2: Education, Training, Research, Registration and Practice

Clause 30: Scope of profession and practice of nursing
Ms Kohler-Barnard reminded Members that they had agreed to the deletion of any reference to 'auxiliary midwife', as there no such position existed.

The Chairperson ruled that it would be retained as it was one of the categories listed in the Bill and, if it were not included, the status of those practitioners would be uncertain. He noted that the Committee agreed to the clause as it currently stood.

Clause 31: Registration as a prerequisite to practise
The Chairperson noted that the Committee agreed to the deletion of the words "or accoucheur" in 31(1)(b). It was proposed by a submission that the phrase "after consultation with the Nursing Council" be inserted at the end of 31(2). He noted that Members agreed to the insertion.

Ms Kohler-Barnard noted the University of Cape Town (UCT) submission that the word "professions" in 31(6) should be replaced with "categories", because the positions of 'staff nurse' and 'auxiliary nurse' were not professions but merely categories within the nursing profession.

The Chairperson noted that the Committee agreed to the proposal, and to the clause as amended.

Clause 32: Registration of learners
Ms Kohler-Barnard stated that many of the submitting organisations had expressed their confusion about 32(1) because it implied that each time a nurse underwent training, she would have to apply for registration as a learner nurse, even if they were already a registered nurse undergoing further advanced training.

The Chairperson stated that that interpretation was correct, as that person would have to register again as a learner nurse because they were undergoing training and education. The word "accredited" should be deleted from 32(2) because the Committee had decided on a previous occasion to its deletion. He noted that the Committee agreed.

Dr R Rabinowitz (IFP) noted that one of the submissions expressed concern about the restrictive application of the provision, and proposed the inclusion of the phrase "or as a health worker as defined in the National Health Act" at the end of 32(5), which would incorporate persons with the needed facilitatory or auxiliary skills, even if they were not formally training as nurses. The proposal would address the needs shortage.

Ms Manana stated that the ANC was against that proposal because nursing training schools were ‘mushrooming’ and the training they offered might not be accredited or approved by the Council. The provision should thus remain as is. The Chairperson noted that the Committee agreed.

Mr Motsapi informed Members that the current formulation would exclude any other category of nurses from training in a health establishment, because they would have to be registered as a learner nurse even if they were already a registered midwife or someone who had been in the practice for a long time. He proposed the deletion of "as a learner nurse" from 32(5) to alleviate Ms Kohler-Barnard's concern.

The Chairperson noted that the Committee agreed to the proposal.

Ms Manana indicated that the definition of the term 'learner midwife' in Clause 1 referred to Clause 32, yet Clause 32 contained no reference to that term.

The Chairperson proposed that the words 'or learner midwife' follow 'learner nurse' throughout Clause 32. He noted that Members agreed to the proposal, and to the clause as amended.

Clause 33: Limited registration
The Chairperson noted that the submissions indicated that 33(1)(b) should refer to a specific requirement in Clause 31 and not to the entire Clause 31, because it was a very long provision. He proposed that 33(1)(b) be restricted to the requirements in 31(5) alone.

Dr Rabinowitz cautioned against such rigid prescription, as it could limit the application of the provision. The Chairperson noted that the Committee agreed to this proposal.

Ms Kohler-Barnard noted that one of the submissions proposed the extension of the two-year period in 33(2)(a) to a three-year period, because the training offered in South Africa usually exceeded two years but did not exceed three.

Ms Ngcobo contended that this concern was covered by 33(2)(b) as the Council could take such circumstances of the training into account. The provision should thus remain as it currently stood.

Dr Rabinowitz disagreed, as the Council could not exceed the period to three years if the legislation in 33(2)(a) already set a ceiling of two years. She proposed that Ms Kohler-Barnard's suggestion be adopted.

The Chairperson noted that the Committee agreed to the proposal and to the clause, as amended.

Clause 34: Registration of additional qualifications
The Chairperson noted that the Committee agreed to the clause without amendments.

Clause 35: Custody and publication of registers
The Chairperson noted that the Committee agreed to the clause without amendments.

Clause 36: Register as proof
The Chairperson noted that the Committee agreed to the clause without amendments.

Clause 37: Receipt as proof
The Chairperson noted that the Committee agreed to the clause without amendments.

Clause 38: Qualifications prescribed for registration
The Chairperson noted that "accredited" should be deleted, in accordance with the Committee's previous decision on the matter. He noted that the Committee agreed to the clause as amended.

Clause 39: Conditions relating to continuing professional development
Mr Motsapi was concerned that 39(a) might be ultra vires because "prescribed" was defined in Clause 1 as being via regulation, and only the Minister had the power to make regulations. He proposed as a solution that "The Minister, after consultation with the Council, may prescribe" be inserted at the beginning of 39(a)

The Chairperson questioned the proposal as it was the Council who was tasked with overseeing and regulating continuing professional development, not the Minister.

Dr Rabinowitz proposed the substitution of "prescribe" with "formulate". Mr Motsapi stated that "determine" would be fine.

The Chairperson noted that the Committee agreed to the amendment and to the clause, as amended.

Clause 40: Community service
Dr Rabinowitz sought clarity on the intention of the provision. She asked whether it aimed to place nurses in rural areas that had a shortage. If that were the case, then untrained nurses would be sent there to practise without training or supervision. Alternatively, was the aim to require those nurses who had been trained in South Africa to pay back that training by deploying them to the rural areas? If it was the latter, then the provision should stipulate that nurses that had received training from the government should do the community service in lieu of paying back the funds for training. They should be supervised, and the provision should include nurses trained in the private sector.

The Chairperson stated that it did include nurses from the private sector.

Ms Kohler-Barnard stated that the submissions from DENOSA, UCT and nurses from the private sector contended that while they understood the principle and intention of community service, they believed it did not apply to nursing education because, during the course of their training, they had already served 26 months of service to the public. To then ask them to give another year of their lives to public service seemed unreasonable as they had already done four to thirteen times more service than any other profession in South Africa. They requested that a portion of their training service time be regarded as the equivalent of their community service. An added consequence of the current formulation was that private sector investment in the training of nurses would be curtailed, because the private sector would not want to invest in such a person if they could not be used for an entire year.

The Chairperson stated that "the main gripe of DENOSA is consultation" as they felt they had not been consulted adequately. They were not opposed to the provision in principle, and neither was the UCT submission. The Mediclinic group was not opposed to it either, but stated that it might have to revisit the matter. The primary concern raised by submissions was the need for supervision, which should be included in the legislation.

Ms T Manganye, Department Deputy-Director: Professional Liaison, replied that the health establishments that would provide the community service would be identified by the relevant MEC of Health, and their identities would be gazetted. This would ensure that there would be qualified nurses working at those establishments who would supervise those doing community service.

The Chairperson indicated that the AIDS Law Project submission had proposed the deletion of "a citizen of South Africa" from 40(1), because non South African citizens should be allowed to do community service within South Africa. He noted that the Committee agreed to the proposal.

Ms Kohler-Barnard pleaded with the Committee to bear in mind that the nurses had already worked two years of community service during their training, mainly in the non-urban areas, and proposed that that be regarded as covering their community service obligations in terms of the Bill. The provision currently penalised nurses by requiring them to do a third year of community service, which was unlike any other professions that were required to do community service. She failed to understand the rationale.

The Chairperson replied that it was precisely because they had done that work as trainee nurses that they would be required to do the Clause 40 community service.

Ms Kohler-Barnard retorted that they were being refused their qualifications and registration before serving the community service, and thus were still only trainee nurses during that period. They had completed all their examinations but were only prevented from being certified because they had not yet performed the Clause 40 community service.

The Chairperson disagreed. He stated that doctors were required to do community service after receiving their qualifications.

Mr I Cachalia (ANC) agreed with the Chairperson that the training received by doctors during the first six years of study was not considered community service.

At this point, Ms Kohler-Barnard decided to leave the meeting because the DA proposals were not being entertained by the ANC.

Mr Motsapi explained that community service was not about the funding of training. Secondly, as pointed out by Mr Cachalia, it was not tantamount to an internship. Doctors would soon have to do 24 months of internship pre-qualification. Clause 40 however dealt with post-qualification practice. Nurses who had registered in other countries would be allowed to apply to the Council for an exemption from performing community service in South Africa, if they had already performed community service or a similar service in the other country. He proposed the insertion of a proviso in 40(1) that "unless such person has previously performed remunerated community service or similar service outside South Africa for a period of one year and above at a public health facility". The wording would be cleaned up, but the principle was sound.

Dr Rabinowitz proposed the deletion of "at a public health facility" because they could have done it at an accredited facility that was not a public health facility, such as an NGO etc.

The Chairperson noted that the Committee agreed to the proposal and to the clause, as amended.

Clause 41: Regulation of research
The Chairperson noted that the Committee agreed to the clause without amendments.

Clause 42: Education and training
The Chairperson indicated that the Nursing Council proposed the insertion of "and conditions" after "standards" in 42(1)(a)(ii). He noted that the Committee agreed to this amendment and to the clause, as amended.

Clause 43: Use of certain titles
The Chairperson stated that the terms "registered accoucheur", "RA", "learner accoucheur", "LA" and "accredited" be deleted from the clause. He noted that the Committee agreed to the proposal and to the clause, as amended.

Clause 44: Removal from and restoration of name to register
Mr Cachalia expressed concern with 44(1)(c) because the person's name could not be removed from the register if s/he continued to pay the registration fee.

The Chairperson proposed that 44(1)(c) be amended to include "and has ceased to pay the registration fees".

Ms Manganye stated that the Nursing Council currently had trouble with keeping track of which nurses were currently within South Africa, because they continued to pay their registration fees even though they had been overseas for many years, and would simply continue business as usual when they eventually returned. She proposed the deletion of 44(1)(c). The Chairperson noted that Members agreed.

Dr Rabinowitz proposed that a non-practicing register be introduced, and suggested the following formulation as the new 44(5): "notwithstanding all the above, any registered practitioner may apply to have their name entered onto a non-practicing register, established and maintained by Council". The Chairperson noted that Members agreed to this amendment.

Ms R Mashigo (ANC) noted the proposal from one of the submissions that 44(1)(g) be amended by the insertion of the words "depending on the penalty or sanction" at the end of the provision.

Mr Motsapi proposed that the words "in terms of this Act" in 44(1)(g) be replaced with "contemplated in Section 47(1)(b) or (c)", as that would be more concise.

The Chairperson noted that the Committee agreed to this amendment and to the clause, as amended.

Clause 45: Issue of duplicate registration certificate, certificate of status, extract from register or certificate
The Chairperson noted that the Committee agreed to the clause without amendments.

Chapter 3: Powers of Council with regard to professional conduct

Clause 46: Inquiry by Council into charges of unprofessional conduct
Mr Motsapi proposed the deletion of "or a juristic person entitled to practice a profession in terms of this Act", as a juristic person could not be entitled to such a practice. The manager, owner or director of juristic person would be charged, and the Bill did reflect that. Adv Sangoni agreed.

The Chairperson noted that the Committee agreed to the proposal and to the clause, as amended.

Clause 47: Procedure of inquiry by Council
Dr Rabinowitz stated that "learner midwife" should be added to this clause and to the remainder of the clauses, where applicable. That was in line with the principled decision taken by the Committee.

The Chairperson agreed. He indicated that they would agree to the Nursing Council’s submission that the word "alleged" be inserted before ""professional" in 47(3)(c), and that the words "an option of " be inserted after "recommend" in 47(3)(c). The Committee agreed to the two proposals.

Dr Rabinowitz proposed the insertion of the word "fair" before "inquiry" at the beginning of 47(1), to ensure a fair disciplinary process. It would also created an avenue for appeal, as the provision currently did not allow for an appeal procedure.

The Chairperson stated that the issue of an appeal process had been covered by the Committee on a previous occasion.

Clause 48: Postponement of imposition and suspension of operation of penalty
After the lunch break, the Committee agreed to the clause.

Clause 49: Suspension or removal from register related to professional conduct matters
The Committee agreed to the clause.

Clause 50: Cognisance by the Council of conduct of registered persons under certain circumstances.
Members agreed to this clause.

Clause 51: Unfitness to practice due to impairment.
Members agreed to this clause.

Clause 52: Investigation of matters relating to teaching of learners.
Members agreed to this clause except for the following. Regarding sub-clause (1)(a) The Nursing Council had suggested the deletion of "accrediting" and the Committee agreed.

Chapter 4: Offences by persons not registered

Clause 53: Penalties for practising as professional nurse, midwife, staff nurse, auxiliary nurse or auxiliary midwife while not registered.
Members agreed to this clause.

Clause 54: Penalty for misrepresentation inducing registration and false entries in register impersonation
Members agreed to this clause

Clause 55: Penalties
Ms Ngcobo (ANC) enquired why that subsection (2) indicated three years, while most of the Bill mentioned two years

Mr Motsapi, State Law Advisor for the Department of Justice, replied that subsection 2 would be used when only when the Bill did not stipulate express provisions. Ms Sangoni reiterated Mr Motsapi's position.

The Committee agreed to the clause, with amendments.

Chapter 5: General and Supplementary Provisions

Clause 56: Special provisions relating to certain nurses

Regarding Subclause 56(1)(a), Dr Rabinowitz suggested the insertion of the words "for such medical purposes" at the end of the sentence"

Ms M Manana (ANC) there was no need to include Dr Rabinowitz's suggestion.

Mr Motsapi said the intention of the Department when referring to the qualification and training of nurses, was to clearly show that regulations would deal with the content of the training.

The Chairperson said that Dr Rabinowitz concerns had been taken care of by the subclauses (a) and (b).

Ms Manana suggested the deletion of the word "and" at the end of subclause (a) and to insert it at the end of subclause (b).

Ms Sangoni, Department of Health, suggested the deletion of prescribed at the end of subclause 4 and replacing it with "determine".

Mr Motsapi suggested the deletion of references to Section 22(a) of the Medicines and Related Substances Act of 1965 in subclause (5)(a) and 22(c) of the Medicines and Related Substances Act of 1965 in subclause (b). The reason was that references to sections had been excluded as a drafting style.

The Chairperson pointed out that Clauses 56(1) and 56(5) said the same thing and the Members decided to flag the issue.

The Committee agreed to the rest of Clause 56, with amendments.

Clause 57: Appeal against decisions of council
Ms B Ngcobo (ANC) asked the reason that in subclause (2)(a), a judge, magistrate or an attorney was required to have practised for five years instead of ten years.

The Chairperson replied that when a nurse appealed at a higher level, ten years of experience was the minimum requirement. At the lower level, an attorney should have at least five years.

The Committee agreed to the rest of Clause 57, with amendments.

Clause 58: Regulations
On Clause 58(1)(a), Mr Motsapi suggested the deletion of the words "or election". Members agreed not to change subclauses to 1 to 5. On subclause (1)(j), Members amended the clause to "the condition under which private practice may be licensed".

Ms Manana argued that the sentence did not take into account the totality of the business of the nursing agency. She then asked for clarity on the intention of subclause (1)(a).

Ms Sangoni suggested the insertion of the word "and" at the end of subclause (e).

The Committee agreed to the rest of Clause 57, with amendments.

Clause 59: Rules
Members agreed to this clause.

Clause 60: Repeal of Laws
Members agreed to this clause except for the following suggestions.

Clause 61: Transitional provisions

Members agreed to this clause.

Clause 62: Short Title and commencement
The Committee agreed to this clause.

Dr Rabinowitz (IFP) then proposed that Members and the legal drafters to go through the amendments so that they would be able to present the amended document. Then the Committee could proceed with the adoption of the Bill.

Ms Manana said the Department should bring their laptops and redraft the amendments immediately and present them to the Committee as soon as possible.

Ms Ngcobo reminded Members about the flagged clauses and she proposed that time be set aside for the flagged points. The Chairperson replied that Dr Rabinowitz's suggestion would cover Ms Ngcobo's concern.

The meeting was adjourned

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