What type of authority regulates the practice of nursing

Baie studies toon die gebrek aan kennis van die reg en verantwoordlikhede as 'n algemene rede vir die bron van wan-praktyk problem onder verpleegsters. Alhoewel die bevindinge getoon het dat die meerderheid verpleegkundiges in Suid-Afrika kennis dra van die toepaslike wetgewing en hul regsverantwoordelikhede, is daar ook 'n beduidende aantal verpleegkundiges wat geen begrip van die reg het nie en ook nie die omvang van hul diens en die verantwoordlikhede wat daarmee verband hou ten volle verstaan nie.

Nursing is a vital part of the healthcare system and nurses 1 are described as the 'heartbeat of healthcare. Expansive knowledge is required for nurses to perform their duties and render holistic patient care competently, ethically and legally. What is apparent is that the nurse's role has changed significantly over the past two decades and includes wider specialisation, greater autonomy and more accountability.

They are expected to perform their actions in accordance with the requirements of the nursing professional bodies and the law. When nurses are aware of their legal responsibilities and obligations, they would undoubtedly be better prepared to care for persons in their care to achieve better productivity and quality in their service delivery. While, the first part of the article seeks to establish what are the norms and standards that are employed by nurses in administering health care in other international jurisdictions, to assess whether this is comparable with the position in South Africa, the latter part analyses the existing regulations in South Africa.

The thrust of the discussion here is to determine whether existing legislation and policies are adequate to provide nurses with the required knowledge to enable them to fully appreciate their role and responsibilities when administering health care to patients. In South Africa, there has been an alarming increase in medical malpractice litigation in both the public and private healthcare sector. It is therefore imperative for nurses to know and understand the legal environment in which they practice.

These include the legal environment, regulation of nursing practice, standards of care, prevention of malpractice, professional liability, insurance and issues related to nurses. This knowledge of legal responsibilities for the nurse is integral with the expanding demands in their clinical roles.

South Africa is faced with what has been referred to as a 'nursing crisis. Addressing these challenges is vital in order to strive towards Universal Health Coverage UHC in South Africa which aims to ensure that everyone is able to access the health care services they need, irrespective of whether they have the ability to pay for it.

New specialities develop and nursing professionals rightly call for appropriate remuneration, authority and status. Historically, there was a distinct difference between the role and functions of a nurse and a physician. The nurse functioned within a delineated framework where it was adequate for the nurse to wait for the doctor to prescribe the order and medical treatment regime before they would follow that order.

The nurse was expected to assist the physician and not question the physician's order, his practice or competency. The role of the nurse has changed dramatically over time.

The locus of authority for the patient care decision making is now a shared function. The nurse's responsibility has been increased to encompass the actual examination, diagnosis and treatment without direct supervision of a physician. As a result of the higher acuity level of patients, the development of highly specialised technology and a heightened emphasis on independent nursing practice, the present position of nurses has increased accountability with a corresponding increase in legal liability.

The increased utilization of less-skilled personnel, in an attempt to meet the health-needs impact on quality patient care. These personnel are used outside their scope of practice, creating a high-risk environment for patients and healthcare workers. Safety and quality of patient care is determined by the environment in which care is provided. Nurses are expected to apply their knowledge, skill and experience to care for the needs of the patient.

When care falls short of standards, due to resource allocation or the lack of an understanding of relevant policies and legislation, the nurse bears this responsibility.

The nurse is responsible for maintaining and updating nursing skills and competencies, having proper documentation, and fully understanding one's role as a healthcare practitioner. A nurse is bound to a standard of conduct that is expected of a reasonably prudent nurse. As consumers are becoming increasingly aware of their legal rights in health care, all nurses are therefore expected to have a thorough knowledge of their legal responsibility. The researcher, therefore, maintains that it is absolutely essential that nurses know and understand their legal rights and responsibilities in the domain of their practice.

Although nurses share a common profession, internationally their educational preparation, regulation, and practice patterns are diverse and vary in complexity and scope. There are differences in credentialing requirements that include professional licensure, use of titles, and accreditation of educational programs. Acquiring global standards for the education of nurses has been promoted by the International Council of Nurses ICN for over a century. Achieving that goal remains challenging and is complicated by the discrepancies in nursing education throughout the world.

The minimum criteria for entrance is university level education in many countries, but this criteria of university education for nursing remains challenging, with disparities in the programs currently offered in different parts of the world. Furthermore, the issue is compounded because there are countries that still consider initial nursing education at the secondary school level to be adequate.

The curricular in nursing education programs are diverse and varied across the world. Nurses from the Philippines complete a baccalaureate degree. Denmark, Ireland, New Zealand, and Spain also have single programs for qualifying as a nurse. In the United States, there are three educational pathways to become a registered nurse: a 2-year associate degree, a 3-year diploma program, or a baccalaureate degree.

Also in the United States, the model of nurse-midwife is common, for other countries midwifery is considered a profession separate from nursing. In a nutshell, universal nursing education standards have not been achieved. Global standards continue to be a goal of the future and these will be guidelines that serve as benchmarks for the profession. Another significant difference in nursing education globally is the regulation of the profession. Statutory nursing regulation is prevalent in most countries with the aim of ensuring a safe and competent nursing workforce.

However, in contrast, there are still countries with no nursing regulation, rules, or other regulatory mechanisms that emanate from the government. In some countries, there is provision for nursing regulation, either in statute or in other systems of rules, however, for various reasons no mechanisms exist that establish a legal framework for nursing as an autonomous regulated profession and licensure is not a mandatory requirement.

Some countries require nurses to pass an examination after completion of their nursing education before they can practice. Nurses in the Philippines, Australia, Thailand, Singapore, the Cameroons, Korea, and Poland take a licensing exam that provides national licensure and registration as a first level registered nurse. Other countries, such as Mexico, do not require a post-graduation examination. The nursing schools administer an exit or qualifying examination and upon passage, the student is granted a diploma.

The diploma allows the graduate to practice as a nurse. Titles are used to inform the public of the scope of practice and the professional identity of a healthcare worker and differ by country. The nurse's role and responsibilities may also differ by country, although the titles may be the same.

It may be argued that although the common objective of the profession is universal with the main aim of restoring and promoting health, alleviating illness and protection of the patient, there remains an inconsistency on how the profession is regulated across the world and it is this discrepancy that may potentially be the root cause of varying standards in the delivery of care.

Some of the factors contributing to nursing negligence have been documented as an inappropriate delegation whereby nursing tasks are delegated to unlicensed assistive personnel. Early discharge, nurse shortage, advances in technology, increased autonomy and responsibility of the hospital, better-informed customers and expanded legal definitions of liability are comparable contributors as in the South African context.

Studies conducted on international and national grounds have revealed that nursing staff knew little of the law pertinent to their work and workplace. A study in Barbados has revealed that the majority of respondents did not know the contents of the law specific to their codes of practice and the workplace.

A strong recommendation was to devise a means to sensitise them through practical education in ethics and ethical and legal approaches. Sharmil examined the awareness of nurse's knowledge on legal aspects of health care in Madras, India. Qualitative data was collected and the findings provided information about the present knowledge of nurses on legal aspects of health care where In order to provide quality care and legal protection, the interventions suggested was the updating of legal knowledge through continued education.

To determine the nurse's knowledge in ethics, Osingada et al have concluded from a quantitative study conducted in Uganda that nurses exhibited very little knowledge in ethics and recommended structured continuing programs in developing their knowledge on ethics in practice. In a study conducted by Mali and Mali in India, the nurse's knowledge was assessed regarding medico-legal aspects.

The results revealed that nurses had inadequate knowledge regarding medico-legal responsibilities. Although the results revealed a moderate to good knowledge base of legal responsibilities, the authors confirm the deficit of aspects such as the law and legal terms and its application thereof.

What is evident from an overview of international regulations pertaining to the nursing practice is that similar challenges exist throughout the world. The main priority and common thread, however, remains the safety of the patient and the enhancement of regulations governing practice to protect this vital human right. Irrespective of where one lives in the world, one's well-being depends on how health issues are managed.

It is apparent that South Africa is not unique in the challenges experienced in the nursing profession. This is highlighted in the plethora of cases dealing with malpractice issues of nurses that have been brought before our courts.

Registered nurses execute tasks previously performed by other healthcare practitioners while ancillary staff performs roles usually associated with registered nursing staff.

The challenge lies where the boundaries between healthcare staff continue to shift. In the past ten years there has been a revolution in the legal responsibilities of nurses as these reforms have led to attitude changes toward nurses by the legal, medical, and public realms.

To avoid legal charges of negligence, nurses must keep abreast of the rapidly changing areas of technology, documentation, and patient care.

Regardless of the healthcare setting, professional nurses are morally, ethically, and legally accountable for their nursing judgments and actions. Nurses have a crucial role to play in providing patients with the necessary care.

As indicated, empowering the nurse with the relevant legal knowledge from inception is vital in preventing incidents of nursing negligence.

If the nurse does not have the necessary knowledge and understanding of the laws governing their practice, the rights and laws protecting the patient, and that which govern and regulate the healthcare institution, there is a likelihood that such an inadequacy may result in harmful consequences for the patient, the institution, and the nurse. The following cases highlight this predicament. In Goliath v MEC of Health in Province of Eastern Cape, 29 the Supreme Court of Appeal upheld the appeal with costs for damages to the plaintiff where a swab was left in the plaintiff's abdomen post-surgery resulting in sepsis.

In this case, both the doctor and the nurse were placed on trial, however, the failure to ensure the duty of care in this instance lies with the registered nurse who is in charge of her theatre and is responsible for a swab count. It is on her nod that the doctor will 'close' a patient once she confirms her swab count. A similar outcome had arisen in the Van Wyk v Lewis case, where the surgeon had left a swab in the plaintiff's abdominal cavity following surgery. Although the court found that the defendant Lewis, was not negligent, the court held that it was the general practice that the attending registered nurse carried the responsibility to ensure that all swabs were accounted for.

Such negligence is again brought to the fore in Micheal v Linksfield 31 where a young man suffered a cardiac arrest resulting in cerebral anoxia which left him in a vegetative state whilst under general anaesthetic during a surgical procedure.

Negligence was alleged during the resuscitation procedure as a result of the failure of the registered nurse to operate the resuscitation equipment correctly. As a nursing professional, competency in operating emergency equipment is vital and regarded as a basic requirement for safe practice. In this instance, it was unacceptable that the registered nurse practitioner was ignorant of the operating emergency equipment in her immediate work environment.

In Ntsele v MEC for Health, Gauteng Provincial Department 32 the medical staff had failed to exercise skill and diligence in the medical profession to the pregnant plaintiff and as a result, the plaintiff's child suffered hypoxia and perinatal asphyxia resulting in cerebral palsy. The court found in favour of the plaintiff as emergency care was not diagnosed and instituted. As nurses initiate their professional obligations, their legal responsibilities also begin.

Hoffman v MEC of Eastern Cape 33 also highlights the registered midwife's lack of reasonable care administered to a pregnant mother and her unborn child. From the evidence, it was obvious that the registered midwives failed to identify medical problems of distress with the baby and the mother timeously thus resulting in a delay in their actions and death of the child.

The court found that the required level of skill and care was not evident by the attending midwives. The application and implementation of laws and malpractice theories are used to determine direct or indirect liability for injuries when a nurse is placed on trial.

What is clearly evident from an examination of case-law, depending on the circumstances of the case, the hospital, the physician and the nurse may all be held liable.

Nurse liability, however, is generally based on negligence principles. A nurse can only be held liable for injuries if they owed a duty of care to the patient, they breached this duty of care, and the breach resulted in measurable damage to the patient, 35 as has been reflected in case-law. Regulation of the nursing profession encompasses the welfare of the public through the improvement of education standards, practice standards and delivery of care to patients by ensuring that competency on all domains is inherent to nurses in order to provide quality care at all times.

It ensures professional identification of nurses who meet the criteria for registration and provides for disciplinary hearings of those who wilfully or negligently harm the health of their patient. The State as the chief custodian of its people has to ensure that those who are responsible for the welfare of people have the essential knowledge, skills, and ethical integrity necessary to ensure safe health care delivery standards.

In the 19th century, the registration of doctors and nurses was inaugurated. The regulatory control was provided through an Act of Parliament, the Nursing Act 33 of as amended hereinafter referred to as the Nursing Act.

The profession was granted the right to a regulatory authority which was to ensure that all its actions were in the public interest.

Through the delegated function, Parliament was thus assured that it was and is currently carrying out its responsibilities to its citizens.

This authority comprises accountability and responsibility. The nurses have the autonomy to determine the quality of care rendered and are accountable for their professional actions to SANC, or to the courts for alleged breach of the law and vice versa. The minister designated in the Act is responsible to Parliament for this.

As the locus of control of any profession, the register does not only give identity to the body of persons who possess specialised knowledge, skills, standards and ethical integrity, but it also allows for control over such persons whose names are subject to public scrutiny. Laws generally, and relevant legislation in particular, are endorsed to regulate and control the practice of health professionals.

Many other government agencies—federal, state and local—also issue regulations, standards and guidance to assure safe and appropriate nursing care. At the federal level, the U.

Department of Health and Human Services is the principal agency for protecting the health of citizens. At present the Centers for Medicare and Medicaid Services has little impact on correctional health care, except, for example, when a facility receives federal funding, such as reimbursement for dialysis.

However, that may change as provisions of the health care reform law are implemented. Correctional health systems and their employees are expected to comply with applicable laws and regulations. The monitoring and oversight of these systems may not be as visible as in health care settings in the community. Nevertheless, these functions are important. Correctional facilities have a federal mandate to provide appropriate health care for individuals detained and incarcerated. If a facility fails to ensure safety and fails to meet the serious medical needs of those incarcerated, this likely will lead to litigation and court monitoring.

Several nongovernmental organizations also issue useful standards and other guidance. Many facilities strive to meet these standards for accreditation even if they are not accredited because compliance improves quality and limits liability risk. Other organizations, such as the American Public Health Association, the American Nurses Association and the American Psychiatric Association, also publish standards and recommendations on aspects of health care in corrections.

The correctional nurse must understand these standards and ensure that nursing practice is consistent with them. In all cases, measuring and monitoring systems is essential. Nurses must also understand and comply with the policies and procedures established at their facilities. Policies and procedures provide guidance, standardization and consistency in practices, and failure to comply places the nurse, patient and institution at risk.

For example, the patient may be at risk of endangerment, while the nurse and institution may be subject to litigation if poor patient outcomes occur. Policy topics are wide ranging.