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SOCIAL SERVICES SELECT COMMITTEE
15 November 2005
NURSING BILL: DEPARTMENT BRIEFING
Chairperson: Ms J Masilo (North West)
Documents handed out:
Department of Health Briefing: PowerPoint presentation
The Department of Health briefed the Committee on the Nursing Bill. The primary purpose of this Bill was to transform the South African Nursing Council so as to increase the protection of the interests of the public and to promote greater accountability by the Registrar and Council members. The Committee was then briefed on the main focus of each of the Chapters of the Bill. Important provisions that were introduced by the Bill were compulsory community service for nurses registering for the first time and the special dispensation given to nurses if doctors or pharmacists were not available in rural areas. The Department highlighted the urgency of passing this Bill as it was supposed to have been passed earlier in 2005.
The Committee was concerned over Clause 40 of the Bill that introduced compulsory community service. Members sought clarity on the difference between community service and the practical training nurses completed in hospitals. The Committee was also worried over the sole power given to the Minister to appoint the Nursing Council and the mass departure of nurses from South Africa. Lastly, it enquired if the Bill was a Section 76 Bill as it then needed to be presented to the provinces.
The Chairperson welcomed the presenters from the Department of Health and a delegation from Rwanda who were visiting Parliament and were attending the meeting. She welcomed the fact that the delegation was made up mainly of women and reminded the Committee that the Rwandan Parliament was made up of about 48% women.
Briefing by Department on the Nursing Bill
Ms T Mdlalose (Director: Human Resource Development) briefed the Committee on the Nursing Bill. She highlighted that the Bill had already been in front of the National Assembly and the Portfolio Committee. She firstly, discussed the historical overview of the South African Nursing Council (SANC) and then the background of the Nursing Bill. The process to transform the Nursing Council was initiated in 1994 and the process was accelerated when the Minister appointed a task team to review this transformation.
This task team had made a number of recommendations which the new Nursing Bill incorporated. The primary purpose of the Bill was to transform the Nursing Council so as to increase the protection of the interests of the public and to promote greater accountability by the Registrar and Council members. A number of other purposes of the Bill were also mentioned as well as its objectives.
Chapter one of the Nursing Bill dealt with definitions and these were in line with the definitions in the National Health Services Act, 2003. It also dealt with the continued existence, objects, functions and powers of the Nursing Council. Chapter two dealt with the education, training, research, registration and training of the nursing profession. This Chapter included Clause 40 which made provision for the introduction of community service for nurses registering for the first time.
Chapter three dealt with the powers of the Nursing Council with regard to unprofessional conduct. Chapter four covered the penalties for non-regulated individuals, false representation and impersonation. Lastly, Chapter five dealt with special provisions, established the Appeals Committee and a list of regulations that would be promulgated by the Minister after consultation with the Nursing Council. Once the Bill was passed, the present Nursing Council would be dissolved and a new Council would be put in place. Clause 60 listed the laws that would be repealed once the Bill had been passed. The statistics of the Nursing Council membership for December 2004 were also presented.
Mr M Motsapi (Senior Manager: Legal Services) drew the Committee’s attention to three matters. Firstly, he noted that all but one Council that fell under the Department were scheduled entities. This explained the need for the corporate governance provisions that were included in the Bill. Secondly, once this Bill had been adopted the Nursing Council would be regarded as a quality assurer and would therefore assess and accredit nursing training courses and training institutions. This provision was precipitated by the fly-by night colleges that had sprung up around the country. Nursing students who had graduated from these colleges were often not recognised as qualified nurses by the Nursing Council. Lastly, he drew the Committee’s attention to Clause 56 of the Bill. This clause gave special dispensation to nurses but it was only applicable when doctors and pharmacists especially in rural areas were not available. For nurses to receive this authority they had to be registered, had to have completed the prescribed training and had to comply with Clause 6 of the Bill.
Ms F Mazibuko (Gauteng) asked three questions. Firstly, she enquired if the special provisions in Clause 56 included the new provision of community service introduced by the Bill. Secondly, she asked to what extent fly-by night training colleges could be done away with. How could people be prevented from opening unregistered colleges that closed once they had taken money from students? Lastly, Clause 40 of the Bill introduced compulsory community service for people wishing to be registered in the nursing profession. She enquired whether the practical training nurses were already completing in hospitals could not be regarded as community service. Were the nurses therefore not completing community services already?
Ms Mdlalose replied that were a number of differences between community health workers discussed in Clause 56 and community service. Health workers were different to the nursing profession and fell into levels one to four of the National Qualification Framework (NQF). Health workers primarily helped to reduce the work of other professionals in the health sector and their work extended to home based services. The Department had been trying to regulate the work of health workers but they did not fall within the scope of the Nursing Bill.
The Nursing Council and the Department had joined forces in dealing with fly-by night colleges as there had been a number of public complaints surrounding this issue. When the Department received a complaint it notified the Nursing Council and then conducted its own independent investigation. However, it was primarily the duty of the Nursing Council to prevent and sanction these colleges. Both the Department and the Nursing Council had been working flat out to eradicate this problem. The Department had also instituted a moratorium on the licensing of all private nursing colleges.
Mr Motsapi added that Clause 41 and Clause 58 (1) (g) served as regulations that would guide the Nursing Council in terms of accreditation of nursing education and training institutions in the future.
Ms H Lamoela (Western Cape) agreed with Ms Mazibuko that while nurses were being trained they completed practical training in hospitals. She enquired who would be monitoring the effective implementation of the programs for nurses while they were training. She was also concerned as she felt that the Bill seemed to give full control of the Nursing Council to the Minister. Should this control not be left to the nurses themselves? Was the Minister in fact proposing complete control over the Nursing Council? Lastly, the briefing referred to the Nursing Council being reduced from 39 members to 25 members and that interest groups would nominate members. Would these members only be appointed by the Minister? Who were these interest groups that would make nominations and were there any criteria that needed to be followed in the appointment of these interest groups?
Ms Mdlalose highlighted the difference between community service and the practical training performed by nurses. The training of nurses included both theoretical and practical training and the Nursing Council prescribed that nursing students complete both. This meant that community service was a post qualification activity of the nursing profession. A number of other medical professions required community service after health training had been completed. Eleven health professions in the country required that community service be completed and the nursing profession had now been included in this group as part of the roll out plan of the Department. Community service was primarily based on the community’s need in a particular area whereas practical training amounted to the nurse completing a certain number of hours in a hospital in order to pass the course. Community service was the way in which nurses would pay back the nation’s contribution to their training. One could not overlook the fact that there was the problem of nurses leaving the country once their training had been completed. Nurses were only required to complete a year of community service and were then free to do whatever they wished.
The implementation of this community service program was the responsibility of Ms Mdlalose’s directorate and she was therefore directly involved in the process. The directorate had sufficient experience to monitor this process and it meant that the Department monitored this program. However, monitoring would be done jointly by the National and provincial Departments as community service would be instituted in all the provinces.
The Minister had not requested complete control over the appointment of the Nursing Council. This decision had been taken by the task team that had been appointed to review the original Act. The reason for the task team’s decision was that the election process had been a futile exercise as there had been no interest shown from the nursing profession. In a previous election only two percent out of 188 000 nurses had voted and this percentage had not really included the grassroots level of the nursing sector. The election process had been expensive despite this low voter turnout and the Nursing Council did not have large financial resources.
The decision had therefore been taken to change this election process. Relevant enrolled nurses within the fifteen nursing professions who had a particular interest in the election process would now nominate a number of people to be members of the Council. The Minister would then appoint members from those that had been nominated. This meant that nurses still had most of the say in the election process and the Minister did not have full control.
Mr Motsapi reiterated that the Minister would not be allowed to appoint members outside of those people nominated by interested parties. He highlighted that the wording interested "parties" not "groups" had been used which meant that an interested individual could also make nominations. There were extensive regulations to guide the Minister when s/he appointed members and these were included in Clause 58 (1) (a) of the Bill.
Mr T Setona (Free State) noted that the Department had stated that the adoption of the Bill was extremely urgent. He enquired whether it would in fact be a train smash if the Bill was not passed in 2005. He highlighted that the Bill was a Section 76 Bill and therefore should have gone through the cycle of public hearings and to all the provinces. The Department had stated that the reason for streamlining the Nursing Council from 39 to 25 members was in order to ease the financial burden of the lengthy appointment process. Was this the only reason for streamlining the Nursing Council?
He enquired whether Parliament would play a role in the election of the Nursing Council. He felt that Parliament should play a role due to the Nursing Council being a statutory body. The Department should also clarify the concepts of community service and the practical training of nurses in order to aid Members in differentiating between issues for debate and for questions. Lastly, he enquired how Clause 56 of the Bill tied in with the Medicine and Related Substances Act which regulated doctors’ dispensing of medicine.
Ms Mdlalosa explained that a process of transforming all Councils was underway. The streamlining of the Nurses Council was part of this process. The Nursing Council had been large and it was felt that only 25 members were needed. If the need arose an ad hoc committee could be formed to deal with any future issues. She argued that if the Nursing Council became too unwieldy its functioning would be hampered. It was seen that many of the original members of the Council such as second year nursing students had not added sufficient value. The Council had therefore been streamlined to exclude these members. The primary reason for this streamlining was therefore to improve the efficiency of the Council.
Regarding the urgency of the Bill, the Minister in her Budget Speech had stated that community service would begin in January 2006. However, this could not be started until the relevant legislation was in place. It was therefore vital that the Bill be adopted.
Mr Motsapi replied that Clause 56 would not contravene the Medicine and Related Substances Act. This Clause would rather aid Section 27 of the Constitution which stated that access to health care services had to be provided to all South Africans. Clause 56 did not equal carte blanche authority for all nurses. If nurses had completed the required prescribed training envisaged by the Pharmacy Act and doctors and pharmacists were not available in rural areas, nurses would be allowed to provide the services of these parties. However, Clause 56 (7) stated that nurses would not be entitled to keep an open shop or pharmacy and Clause 56 (8) defined what the term "open shop" meant.
Mr M Thetjeng (Limpopo) stated that he was still not happy with the responses given regarding Clause 40 of the Bill dealing with the implementation of community service. He felt that this provision was a draconian law as it forced nurses to complete community service in an open democracy. He wished to know how much the government was subsidising the training of nurses in order to see if this justified Clause 40. What was the opinion of the Nursing profession regarding this Clause?
Ms Mdlalosa highlighted that the process of introducing community service had already begun in 1998. It had first been introduced in the medical practitioner profession and had then rolled out to the other health care professions. The nursing profession had been twelfth on the list to have community service implemented and this meant that it was not a decision that was taken a year ago but rather had been decided in 1998. One of the main reasons for community service being implemented was because of the large-scale exodus of nurses overseas as this had lead to a shortage of nurses in the health care sector.
There had been great debate around the transformation of the Nursing Council election process. There had also been consultation with the nursing fraternity where nursing organisations such as the Democratic Nursing Organisation of South Africa (DENOSA) were consulted by the Department.
It was estimated that government spent approximately R600 000 to train one nurse. The Department therefore suffered huge losses when these nurses left the country after their training was completed. The Department was not asking nurses to pay back this amount but rather to provide one year of community service.
Mr B Tolo (Mpumalanga) highlighted that Chapter one of the Bill referred to categories of nurses such as auxiliary nurses. However, the Department had stated in its briefing that "rolls" for lower categories had been abolished. He therefore enquired if categories for nurses had also been abolished or if they still existed. He was also concerned over the new Nursing Council election process. It seemed that the Department was moving away from a democracy to an autocracy with this Bill. It had stated that the election process had been transformed due to the financial constraints the Nursing Council faced and low voter turnout. However, he felt that even though there had been low participation in past elections, these elections had still been credible. He felt that credibility should be more important than funding constraints.
He also wanted to know what guarantees the Department had that interested parties would play a role in the nomination process if there had been no participation in the past election processes. Had the Nursing Council done enough to encourage interested parties to participate in future nomination processes? Clause 15 and Clause 57 dealt with the creation of appeal committees. Were these committees the same? Lastly, he highlighted that the Bill was a Section 76 Bill and therefore had to go through a four week cycle of being introduced in the provinces that then produced their mandates. Parliament would go into recess the following the day that meant that this four-week cycle could only occur in 2006. This meant that the Bill would most probably only be passed in March or April 2006.
Ms Mdlalosa answered that in the past there had been a register for professional nurses and rolls for staff and auxiliary nurses. The Bill changed this and there would now be one register for all nurses. However, the categories nurses were divided into would remain. The disciplinary committee referred to in the Bill was not new and had therefore existed before this Bill. This committee dealt with the unprofessional conduct of nurses. However, the Bill had created and would institute a new appeals committee which would review the outcomes of disciplinary processes if required to do so.
Mr Motsapi also distinguished between the appeal committee created in Clause 15 and the one created in Clause 57. The appeal committee created by Clause 15 would review or consider decisions reached by the Professional Conduct Committee appointed by the Nursing Council. The appeal committee created by Clause 57 would consider the decisions made by the Nursing Council itself.
Ms Motsapi replied that the Bill was in fact a Section 75 Bill and not a Section 76 Bill. The Bill had been originally submitted as a Section 76 Bill. However, after discussions between parliamentary and state legal advisors it was decided that this Bill should be a Section 75 Bill. This decision had been included in documents of the Portfolio Committee. The reason for this change was that the Bill did not deal with the Health Service generally but rather with the regulation of the nursing profession and this regulation occurred at the national level.
Mr J Thlagale (North West) enquired whether the Members of the Executive Council (MEC) in the provinces would play a future role. It seemed that the role of the MEC had been reduced and this was worrying, as most of the provisions introduced by the Bill would be implemented in the provinces.
Mr Motsapi answered that the Bill was a Section 75 Bill and the regulations it introduced would be created at a national level. The MEC of the provinces was therefore not required to play a role.
Mr M Sulliman (Northern Cape) highlighted that the Memorandum to the Bill stated that it was a Section 76 Bill. This wording therefore had to be changed by the Department. He also commented that the Bill did not deal with the issue he wished to raise; however he still felt that it was an important issue that needed to be dealt with. A large number of trained nurses were leaving South Africa every year. He realised that it was difficult to control the behaviour of human beings but did the Department have any conventions or mechanisms in place to deal with this problem?
Mr Motsapi agreed that the Department needed to change the wording of the Bill.
Ms Lamoela agreed that this was an important issue. However, she enquired whether it was possible to control the departure of nurses if the conditions of the health profession remained as appalling as they were. These appalling conditions, which included low pay, were one of the main reasons for nurses leaving South Africa and she felt that the introduction of the draconian provisions included in the Bill such as community service would only drive these nurses further away.
Mr Setona remarked that although he sympathised with a number of the issues that had been raised by Members he did not feel it was appropriate to debate these issues at this meeting. However, he was strongly against some of the comments that had been made by Ms Lamoela. He was tired of the propaganda that was spread regarding the nursing profession. It was not true that this profession was worse off than in 1994 and there were a large number of people from London who were coming to work in South Africa. It was important to engage on this issue at an appropriate time as it was occurring all over the world. Research had shown that the public service of the United Kingdom was not only dominated by South Africans but by a number of other countries.
The Chairperson stated that this debate could occur in an open session in the future.
Ms Mdlalosa replied that research on the migration of health professionals including nurses had been conducted since 1994 and had lead to an abundance of information. The Department had a long list of reasons for this migration. One of the main reasons was globalisation and the fact that the new dispensation after 1994 had given people the freedom to move around. The Department had used these findings to develop a retention strategy to be used in the health profession. This strategy had been available since 2001 and is currently being reviewed. Over and above this strategy was a Health plan that was being developed and would be available by March 2006. The first draft of this plan would be made available by the end of 2005.
There was also a strategy document dealing with the movement of health care professionals within the country. She drew the Committee’s attention to migration occurring within the country as this problem was often ignored. There had been a lot of activity between the Minister and countries who poached members of the South African health profession. An agreement had been signed between South Africa and Canada where both countries would deal with this problem and this agreement would hopefully spread to other poaching countries. The Minister had also visited the United Kingdom twice to address this issue. Firstly, to sign a bilateral agreement to prevent this exodus in the future and secondly, in order to communicate with nurses who wished to return to South Africa but only if the situation improved in the public service sector. She agreed with Mr Setona that this issue was a global problem as even the United Kingdom saw many of its trained professionals leaving the country.
Mr Thetjeng referred to Chapter three which dealt with the Council’s actions regarding unprofessional conduct. He wished to know if these actions would override the disciplinary action taken if the nurse had also acted unprofessionally as a civil servant.
Mr Motsapi answered that nurses that were charged with behaving in an unprofessional manner could be dealt with through two processes. Firstly, the nurse could be dealt with in terms of the provisions of this Bill. Secondly, if this conduct amounted to improper conduct in terms of the public service code of conduct (Resolution 2 of 1999); the employer being the Head of the Department of a province would be empowered to deal with this person. Both these processes could be used or either one of these processes could be used.
The Chairperson sought clarity on the terms of office of both the Registrar and the Chairperson. She noted that the Registrar could serve for no longer than five years and the Chairperson no longer than ten years. There was therefore a vast difference between the two. Secondly, Chapter two of the Bill referred to the four-year training of nurses and the introduction of community service. For how long would nurses have to complete this community service? Lastly, had the Department made any special agreements with universities to train more nursing students in the future?
Ms Mdlalosa replied that the Registrar’s position was a five-year renewable contract. The reappointment of the Registrar occurred on the grounds of a performance document. The reason for the Bill stipulating that a Chairperson could chair the Nursing Council for ten years was to ensure that a person could not hold this position for longer than this period. This meant that the Chairperson could be reappointed but could his or her appointment could not exceed ten years.
All health care professionals would be required to complete twelve months of community service after completing their training. Regarding the increase in the training of nurses, the reopening of colleges that had been closed during the rationalisation process had begun. Provinces had also been requested to double their training of nurses and the Department was also working on a strategy to increase these numbers. However, a major blow to this situation had occurred during the rationalisation process as many educators had found work during this period and they were therefore not readily available to train nurses. A number of workshops had taken place and were being planned to improve this situation.
Mr Motsapi reiterated that the Chairperson of the Nursing Committee would not necessarily retain his or her position the full ten years once appointed. The ten years served as the maximum period the Chairperson’s appointment could not exceed.
Ms Mazibuko highlighted that the enquiry regarding the role Parliament would play had not been answered by the Department. Secondly, what would happen if a member of the Nursing Council passed away as the Bill only seemed to contain provisions dealing with the appointment and termination of members? She also requested that the Committee receive the Annual Reports of the Nursing Council in the future and even the report of the current council. Lastly, she commented that the length of tenureship of the Registrar and the Chairperson of the Nursing Council was worrying as one could see that even Members of Parliament could only serve for five years. However, this issue could be dealt with during the debates and discussions on the clauses of the Bill in the future.
Mr Motsapi acknowledged the fact that Parliament would not play a direct role in the appointment of members of the Nursing Council as interested parties would nominate people and the Minister would make appointments from the nominations. However, there was nothing that prevented Parliament from instructing the Nursing Council and the Department to report to it on their actions.
Ms Mdlalosa responded that Clause 9 of the Bill dealt with the death of Nursing Council members. The death of a member would be announced and there would then be a call for nominations by interested parties. The Minister would then make an appointment from these nominations. The Nursing Council submitted Annual Reports to both the Minister and the Department as both performed an oversight role over this Council. She noted Ms Mazibuko’s request and felt that it would not be a problem to submit these Annual Reports to the Committee in the future.
Mr Setona was concerned over the fact that Parliament would not play a role in the Nursing Council election process while all appointment powers were granted to the Minister. He suggested that this issue be reconsidered in the future.
The Chairperson thanked the Department for its briefing. However, she did not believe that this Bill would be adopted during the remainder of the year.
She reminded the Committee that it was scheduled to meet from 21 to 22 November to discuss the Children’s Bill and to meet on 30 November to discuss the Nursing Bill.
The Committee complained that this would mean they had to fly back and forth between Parliament and their constituencies as Members were at their constituency offices during this period. The Committee therefore decided to meet once on 30 November to discuss both Bills.
The meeting was adjourned.
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