LEGAL LIMITATIONS IN THE PRACTICE OF THE PRIMARY HEALTH CARE NURSE

In this article the legal limitations in the practice o f the primary health care nurse in the Republic o f South Africa, having direct implications for the achievement of tlte goal: "Health for all by the year 2000", are explored and described The questions which had to be answered by means o f the research are in relation to the nature and scope o f the limitations obstructing the practice o f the primary health care nurse. A legislative (document) analysis w-asperformed and limitations in the legislation confirmed. It is recommended that an empirical imvstigation be done to verify the results after which amendments and clarification o f the legislation may be requested.


INTRODUCTION
S tate re g is tr a tio n fo r n u rs e s, w h ic h is authorisation or legal sanctioning by the State for the practice o f a profession, is more than one hundred years old.The concept of Stale approval is an old one and dates back to the time o f the pharaohs.Later during Roman and Anglo-Saxon rule, the guild movement came into being.A guild, which consisted o f a group o f people who practised a specific skill, ca m e to g e th e r an d a p p lie d fo r R o y a l sanctioning o f their trade.This same approach was used in the 19th century by doctors and nurses (Searle, 1991:3).
T h e g u ild s e x e rc is e d c o n tro l o v e r th e standards of a product or service rendered, determined the position or status o f the group in society and maintained a strict ethical code to engender trust in their numbers and ensure the safety o f the consum er; an analogy can be drawn to the profession o f nursing and the early guild movem ent.
The reg istered prim ary health care nurse (PH C N ) is legally authorised to practice nursing in term s o f the Nursing Act (South Africa, 1978, as amended).All other health care professionals are authorised to practice their profession in term s o f their specific legislation and the PHC service likewise is regulated by appropriate legislation.
T he n a tu re o f n u rsin g alw ay s has been dynam ic and nurses traditionally had to fill g a p s w h e n o th e r m e m b e rs o f th e m ulti-professional team w ere unavailable.T his has led to a number of grey areas in practice.There w ere very few doctors or hospital facilities in the early days at the Cape and the social isolation and self-reliance o f the people meant that care of the sick took place at home.This w as a blend o f medical practice and nursing care and encompassed many of the principles o f com prehensive health care as w e know it today.It had the w elfare of indiv id u als, fam ilies and com m unities at heart.
The developm ent o f nursing is linked to a tradition o f medical practice and the history of nursing is closely interwoven with certain medical events.The growth of nursing and the g ro w th o f h o s p ita ls h a v e a re c ip ro c a l relationship.

HEALTH M ANPOW ER
An analyses o f health m anpower to determine availability and utilisation indicated that the nurse w as the most available in terms o f both distribution and num bers, in urban as well as ru ra l c o m m u n itie s .T h e re w ere 67894 registered nurses, 28047 enrolled nurses and 44519 enrolled nursing assistants (presently defined as nurse auxiliaries) on the registers and ro llso f the South A frican Nursing Council on the 31st of D ecem ber 1991 (South African N ursing Council, 1992).
Nursing m anpow er constitutes 67,8% o f the total health m anpow er in the Republic of South A frica -the balance is made up of 11,9% medical practi tioners, 4,5% pharmacists, 2,0% den tists and 13,9% supplem entary health p r o f e s s i o n a l s .
T h e W o rld H e a lth O rganisation's norm for registered nurses to population is 1:500.A realistic ratio of registered nurses to population i n the Republic o f South A frica, as recom m ended in the M ount G race Report (D epartm ent of National Health and Population Development, 1990), is 1:416.The prim ary health care nurse thus has a vital an d im p o rtan t role to play in the health services in the Republic o f South Africa.The m aldistribution o f health manpower in the country with specificreference in thisstudy to nurses, medical practitioners and pharmacists, places an even greater responsibility on the available nursing m anpower and especially the primary health care nurse.
The primary health care nurse, in many cases, has not been able to affect the infant mortality rate because she may not prescribe medicine unless authorised thereto in term s of Section 38A o f the N ursing A ct, 1978(South Africa, 1978, as am ended).T o com ply with the N ational H ealth M ission and to meet the N a tio n a l H ealth G o a ls (D ep artm en t o f National Health and Population Envelopment, 1992:3-5), the primary health care nurse has a dynamic role to play but has not made a s i g n if i c a n t im  Furthermore, the interpretation by the primary health care nurseof herscope of practice, tends to restrict rather than enable her to be more effective in primary health care services.To com pound the problem there appears to be a great deal o f ignorance with respect to the e n a b lin g e th ic o -le g a l fra m e w o rk w h ich governs her practice.

PROFESSIO NAL L E G IS L A llO N
The purpose of professional legislation is to d e lin e a te th e a re a o f p r a c tic e o f o n e professional group from other professional groups and to protect w'hich belongs uniquely to that profession.The essence of professional developm ent is control of the profession, by the profession, under A ct of Parliam ent in the interests of the public good (Searle, 1988:76).The advantage o f such an A ct is that by legislation the profession is entrusted with the welfare of the public and this achieves status; only a profession w hich can be trusted with su ch a re sp o n sib ility and is seen to be accountable for its actions, will gain such recognition (Searle, 1988:77).Professional legislation attem pts to protect both the practice o f the professional as well as the title o f the profession.
The provisions contained in the Medical andPharmacy Act, 1928, (South Africa, 1928) did

DEFINITIONS Primary health care nurse
A prim ary health care nurse is a registered nurse and a person w ho has complied with the provisions o f section 16 o f the N ursing A ct, 1978, and w ho practises in a primary health care service in the R epublic o f South Africa.

Health professions' legislation
Health professions' legislation include those A cts o f Parliam ent w hich delineate specific acts w hich fall exclusively within the domain o f a p articu lar health professional in the R epublic o f South Africa.

Other health legislation
O ther health legislation refers to M edicines and Related Substances Control A rt, 1965, as amended.

Limitation
Lim itation is anything in legislation or the interpretation thereof w hich could ham per the effective functioning o f the primary health care nurse in her practice.

Republic of South Africa
In this study the R epublic o f South A frica excludes the self-governing territories and those States which formally formed part of South Africa.

RESEARCH DESIGN A ND M ETHOD
A n e x p lo r a to r y d e s c r ip tiv e s tu d y w a s undertaken in the R epublic of South A frica's prim ary health care context.A document analysis o f certain existing health professions' le g i s l a t i o n a n d o th e r r e le v a n t h e a lth legislation, w as perform ed to determ ine the legal lim itations in the prartice o f the primary health care nurse.
A content analysis w as em ployed to identify legal lim itations in the practice o f the primary health care nurse.This is a method o f studying and analysing legislation in a system atic and objective qualitative manner, according to the steps o f Kerlinger (1986:477), namely; • D eciding w hat the unit o f analysis will be.
In this study the unit o f analysis w as the legislation.
• B o rro w in g o r d e v e lo p in g th e se t o f categories.F or this study it w as the lim itations in the practice o f the primary health care nurse.
• D eveloping the rationale and illustrations to guide the coding o f data into categories.
• The main them e analysed w as the legal limitation in the practice of the primary health care nurse.
The follow ing sources were utilised in the content analysis for the purpose o f literature c o n tro l, n a m e ly d ic tio n a r ie s a n d leg al textbooks for clarification o f certain legal terms, as well as legal docum ents and legal concepts from the Department o f National Health and Population Development.Any lite ra tu re c la r if y in g or in te rp re tin g the professional responsibility of the registered nurse in South A frica, w as also utilised.

Population
The follow ing legislation w as analysed: • The N ursing A ct, 1978; • The Pharm acy A ct, 1974; • The M edical, Dental and Supplem entary Health Service Professions Act, 1974; • The M edicines and Related Substances Control A m endm ent A ct, 1991; • The M edicines and Related Substances Control Act, 1965.

Reliability and validity
Due to the abstract nature o f legislation the researcher's position had no effect on the research.The choice of legislation could have been based on only that which gave the desired response.In this study all relevant health legislation w as included.Two independent researchers -one being a registered nurse, k n o w n fo r h e r le g i s l a ti v e a n d professional-ethical nursing knowledge, and the other a health care legislation consultant at th e D e p a rtm e n t o f N atio n al H ealth and Population Developm ent -verified the results o f the content/docum ent analysis, to ensure reliab ility o f th is study.M ethodological validity w as ensured by using K erlinger's (1986:477) method o f content analysis.

RESULTS OF TH E DOCUM ENT ANALYSIS
The results o f legislation analysed will be described separately.

Nursing Act
Section 45 (l)(q ) o f the Nursing Act, 1978(South Africa, 1978) 1985(South African Nursing Council, 1985), may be interpreted as conditions rather than acts or omissions.An example of this is rule 8, w hich specifies conditions in terms of which a nurse in private practice may advertise.
To define a scope o f practice can be hazardous b e c a u se te c h n o lo g ical ad v an ces and the d y n a m ic n a tu re o f n u rsin g b rin g ab o u t c h a n g e s in p r a c t i c e im p o s s i b le to accom modate in a list o f procedures or tasks.To express the scope o f practice o f nursing in lists and procedures negates the real nature of nursing and considers the technical aspects only (Searle, 1986:172).
It is the registered nurse w ho in most health care setti ngs, is available for twenty four hours a day and is thus ideally suited to co-ordinate the multi-professional health team, based on the health needs and problems o f the patients.If the other m em bers o f the multi-professional team are not available, she needs to have the skills and discretionary ability to do either w hat needs to be done herself, or to make suitable referrals.To co-ordinate patient care necessitates her m oving into the grey areas o f practice o f the nurse, medical practitioner and pharm acist.
The follow ing definitions from the Scope of P ra c tic e re g u la tio n s G ov ern m en t N otice R2598 o f 30 November 1984 (South African Nursing Council, 1984) will be analysed as they have speci flcrelevance to the functioni ng o f the primary health care nurse, in terms of this study.
"Diagnosing shall mean the identification of, and discrim inating between physical, psychological and social signs and sym ptom s in man ..." (SANC, 1984).
In the absence o f a speci fic definition of a word in legislation, the word assum es its ordinary m ean in g .A cco rd in g to S h o rter O x fo rd English Dictionary (Little, Fowler & Carlson, 1968:500) diagnoses in a medical context mean "determ ination o f the nature of a disease c o n d itio n ; id en tificatio n o f a disease by investigation o f its sym ptom s and history." T h e m o tiv a tio n fo r d e fin in g th e w ord " d ia g n o sin g " in th e S co p e o f P ractice regulation, can be assum ed to have been the a v o id a n c e o f th e n u rse m ak in g w hat is perceived to be a medical diagnosis.This definition is, however, confusing in that it creates the perception that there are different kinds o f diagnoses and that registered nurses and m ed ical p ra c titio n e rs are busy w ith different actions.Searle (1986:176)  "Prescribing shall mean giving the written directions regarding those treating, nursing care, co-ordinating, collaborating and patient advocacy functions essential to the effective execution and managem ent of the nursing regimen" (SANC, 1984).P re s c rib in g o f n u rs in g c a re in v o lv e s a thorough understanding o f the prescriptions of the other m em bers of the multi-profcssional team .The nurse needs to have a good know ledge o f all the patho-physiological and pharm acological principles involved in the m anagem ent of patient care in order to plan her own care.Under normal circumstances a nurse w ould not prescribe medical care but merely blend it into the nursing care, but if a m edical p ractitio n er or pharm acist is not av ailab le, sh e co u ld and should, w ithout " a u th o ris a tio n " p re s c rib e m e d ic a l care b e c a u s e h e r b a sic tra in in g sh o u ld have equipped her to do so.The registered nurse rem ains accountable for her actions in terms o f the A cts and O m issions in Govemment Notice R387 o f 15 February 1985 (SANC, 1985).
The O xford D ictionary (Little, Fowler & C arlson, 1968:1573) defines prescribe as "in a m edical context to advise, or order the use of a medicine, etc. with directions for the manner o f using it."C learly the intention o f the South A frican N ursing Council w as to limit the registered nurse to prescribing nursing care only and to prevent her transgression into the domain o f the medical practitioner.
"Treatm ent shall mean selection and perform ance o f those therapeutic m easures essential to the effective execution and managem ent o f the nursing regimen" (SANC, 1984).
In prim ary health care settings a medical practitioner is not available in the sam e w ay as in a hospital.The unpredictable availability of medical practitioners in primary health care makes it im perative that the nurse initiate medical treatm ent in a variety o f diseases w hich are o f local, regional o r national im p o rta n c e , fo r e x a m p le T u b e rc u lo s is , S e x u a lly T r a n s m it te d D is e a s e s , e tc .( D e p a r tm e n t o f N a tio n a l H e a lth a n d Population Development, 1991:10).Diseas such as these have a direct i mpact on morbi di ty and mortality rates in South Africa.

The I'hamiacy Act, 1974
The provisions o f the Pharm acy Act, 1974(South Africa, 1974b) Section 29, relevant to the functioning o f the primary health care nurse, are the following: "(1) Subject to the provisions of subsection (3) any person who, not being registered as a pharm acist -(a) for gain practises as a pharm acist, or carries on business as a pharm acist or for gain perform s any act specially pertaining to the profession of a pharmacist; ... shall be guilty o f an offence ...
(2) The following act shall, for the purposes of subsection (1) be deemed to be acts specially pertaining to the profession o f a pharmacist -(d) the furnishing o f advice to any person with regard to any medicine supplied to him.
( The provisions o f section 36 (l)(c ) however are as follows; "except in accordance w ith the provisions o f the Public Health Act, 1919, the N ursing A ct, the C hiropractors Act, and sections 32, 33, 34 and 39 o f this Act, perform s any act w hatsoever having as its object -(i) the diagnosing, treating or preventing o f any physical defect, illness or deficiency in any person ..." The N ursing Act could make provision for conditions for the acts as set out in Section 3 6 (lX a ) and (b).By defining the w ords d iag n o sin g , tre a tm e n t and p rescrib in g , the N ursing A ct (South Africa, 1978) is in fact confining the scope o f w hat the nurse can do in a prim ary health care setting in term s of these professional responsibilities.
T h e M edical, D ental and S upplem entary Health Service Professions A ct (South Africa, 1974a) does not define the w ords diagnosis a n d tre a tm e n t.T h e w o rd p re sc rib e is defined in a legal context, not a medical c o n te x t, in the A ct, th u s rely in g on the dictionary definition of the word.
Steyn (1981:2) states with respect to the intention o f the legislator, that the sovereign rule o f all interpretations and a rule to which all other rules are subservient, is the following: "... dat indien dit maar een maal vassstaan w at die w erklike bedoeling is wat die w oorde wil uitdruk, aan daardie bedoeling gevolg gegee m oet w ord."The m eaning o f a w ord is therefore that what it w as intended to mean by the person describing the word.A frica, 1991) w hen prom ulgated, will repeal section 22A (2) and thus obviate the need for perm its (Bierm an, 1992).

C O NCLUSIO NS A ND R ECOM M ENDATIO NS
F ollow ing the analysis o f the legislation, lim itations in the practice o f the registered prim ary health care nurse w ere found in the letter o f the law, but many lim itations which by interpretation have becom e entrenched in the practice o f the registered primary health care nurses, w ere also found.The following legislative lim itations w ere found to exist: • The M edical, Dental and Supplementary H ealth P ro fessio n s A ct (South A frica, 1 974a) section 3 6 (l)(b ) and (c) with respect to the physical examination and diagnosing o f a patient and prescribing of medical treatment.
• The Pharmacy Act (South Africa, 1974b), section 29(2Xd) and (e) with respect to advice about medication and the limitation o f the supply o f m edicine to patients in hospital.
• The Nursing Act (South Africa, 1978) section 38A, with respect to the limitations on registered nurses in certain primary health care areas.G overnm ent Notice R2598 o f 30 November 1984 (SANC, 1 9 8 4 ), w h ich d e sc rib e s the sco p e o f practice o f the registered nurse and defines d iagnoses, p re sc rib in g and tr e a tm e n t • The M edicines and Related Substances Control Act (South Africa, 1965) section 22A(12), in terms o f w hich conditions are prescribed w hich lim it the primary health care nurse in her practice.
The fact that the analysis o f the legislation was done by the researcher w ho is not a legal expert may have been limiting to the study.These interpretations however, were, verified by the independent researchers.how ever, lim ited by legislative regulation w hich needs review.
p a c t o n th e P o p u la tio n Developm ent Program m e indicators, in spite o f a broad scope o f practice, clinical skills and comprehensive curriculum for basic training.The nurse is the m ost available o f all health m anpow er and plays a key role as co-ordinator o f th e h e a lth te a m a s an in d e p e n d e n t a c c o u n ta b le p ra c titio n e r.T he m edical practitioner has no clearly defined scope of practice as this has developed mainly through comm on law and ethical rules w hich provide

Figure 1 .
Figure 1.A visual presentation of the relationship between the primary health care nurse and the other role-players in the delivery of a comprehensive health care service m akes provision for the Minister, on the recom mendation o f the South African N ursing Council, to make regulations re la tin g to the sc o p e o f p ractice o f the re g is te re d o r e n ro lle d p e rs o n s an d th e conditions under w hich registered or enrolled persons may carry on their profession.Regul ations relating to the scope o f practice of persons registered and enrolled under the N u rs in g A c t, 1 9 7 8 , w e re p u b lish e d in G overnm ent Notice R2598 of 30 N ovember 1984 (South African Nursing Council, 1984).Conditions under which a registered midwife m ay c arry on h er p ro fe ssio n w ere first published in G ovem m ent Notice R2488 o f 20 O ctober 1990.Conditions in terms o f w hich th e re g is te re d n u rse m ay c a rry on h er p ro f e s s io n h a v e n o t b e e n d e te rm in e d .H ow ever, certain o f the provisions o f the Rules relating to the Acts and O missions in term s of w hich the South A frican Nursing Council (SA NC) may take disciplinary steps, specified by the M inister in terms o f section 35 o f the N ursing Act, 1978 and published in G overnm ent Gazette R387 o f 15 February interprets as follows: "Registered nurses m ake a n u rsin g diagnosis, not a medical diagnosis for the purpose of:-a) identifying nursing needs to plan nursing care or action b) identifying a medical need and h en ce a need for referral to a doctor or hospital."By im plication the registered nurse u n d e r c e r ta in c o n d itio n s , fo r e x a m p le em ergencies, may m ake a medical diagnosis, but in a prim ary health care setting she is lim ited to a nursing diagnosis.This severely lim its the effective attainm ent o f the mission o f the National Prim ary Health Care Strategy ( D e p a r t m e n t o f N a tio n a l H e a lth and Population D evelopm ent, 1992).

H
istorically there has been no need to question the role o f the registered nurse or pharm acist w here it dovetails w ith that o f the medical practitioner.Professions are dynam ic and change and develop in relation to the needs of individualsand com m unities and grey areas of practice (which have alw ays existed) have becom e more pronounced.The traditional interpretation of health professions legislation and perception o f the medical practitioner, re g istere d nurse and p h arm acist o f each o th er's roles, is now lim iting the provision o f basic health care in South Africa as envisioned in th e p r i m a r y h e a lt h c a r e s t r a te g y ( D e p a r t m e n t o f N a tio n a l H e a lth a n d Population D evelopm ent, 1992:4).The provision o f an Act only goes as far as its w ords, and the expositor o f the law must occupy him self with the sam e things contained in the law.The role o f the expositor o f the law is to determ ine the thought content o f the legislator.The expositor o f the law is reliant on the w ords used by the legislator, to enable him to determ ine the thought content.No matter how carefully w ords are chosen, there is difficulty in selecting language w hich will on the face of it express generally the idea, but w ill n o t, w h e n a p p lie d u n d e r c e r ta in circum stances go beyond it and when applied under other circum stances, fall short o f it (Steyn, 1981:1).T h e M ed icin es a n d R elated S u b sta n c e s C o n tro l A ct, 1965 S ince the in cep tio n o f this A ct and the M edicines Control Council in 1965, there has been a di I em m a o f deciding to what extent the M e d ic in e s a n d R e la te d S u b sta n c e s A ct (South Africa, 1965) can limit the practice of the various health professionals.The question may well be asked w hether the limitation in term s o f the use o f certai n medi ci nes by heal th p ro f e s s io n a ls , is d e te r m in e d fro m th e perspective o f the inherent hazardous nature o f m edicine and the potential for abuse, rather than the needs o f individuals for that medicine and the availability o f the appropriate category of health w orker to adm inister it.Should this be so, it has contributed to the de facto situation w here the doctor merely acts as a fig u re h e a d s ig n in g p r e s c r ip tio n s a fte r treatment has been initiated by the registered nurse.Tlie M edicines and Related Substances Act (S outh A fric a , 1965) se c tio n 22 (1 2(A ) determines as follows: "Notwithstanding the o th e r p r o v i s i o n s o f th is s e c t io n , th e D irector-General may, after consultation with the South A frican Pharm acy Council, issue a permit to any person or organization providing a health service, authorizing such a person or organization to acquire, possess, use or supply any specified Schedule one.Schedule two.Schedule three or Schedule four substance, and such perm it shall be subject to such co n d itio n s as the D irec to r-G e n e ra l m ay determ ine."T he other provisions of this section describe fully the control o f medicines and scheduled substances.The professional g ro u p s c o n c e rn e d w ith the "sale" o f m edicinesarethem edical practitioner, dentist, pharm acist and veterinarian.
It is unrealistic and in fact ultra vires the Act to hold the medical practitioner responsible for patients when he is very often only available for one hour per week.The running o f the p r im a r y h e a lth c a re c li n ic a n d th e responsibility for the medicine in the clinic rests with the registered primary health care n u rse , w h o a c c o rd in g to the p re sc rib e d conditions, must be in full-tim e service with the o rganisation (D epartm ent o f N ationalHealth and Population Development, 1985:4).The perm it m akes provision forSchedule one to S c h e d u le fo u r m e d ic in e s o n ly .Unscheduled medicines may be kept.If a m edical p ra c titio n e r w ishes to p rescrib e Schedule five to Schedule seven medicines, the registered nurse may not handle them.T h e y m ay b e h a n d le d b y th e m ed ical practitioner only and no other person may have access to such medicines.T h is in fact m ean s that the p a tie n ts on tre a tm e n t, w h ich in c lu d e sc h e d u le fiv e medicine, cannot be monitored and treatm ent supervised by the nurse and this thus leads to a loss o f manhours and a resultant econom ic loss to the employer.This negates the very essence o f a primary health care service.During discussions w hich took place in March 1992 betw een the South African N ursing Association, the M edicines Control Council and legal ad v iso ry se c tio n o f the C hief D irectorate: A dvanced Health Care and the D ire c to r-G e n e ra l o f th e D e p artm en t o f National I lealth and Population Development, it w a s a g r e e d t h a t th e d e p a r tm e n ta l interpretation o f the A ct needs review and the f o r m u la t io n o f n e w c o n d it io n s .T h e regulations in term s o f the new section 22(4), as envisaged in the M edicines and Related Substances Control A m endm ent Act (South It is r e c o m m e n d e d th a t an e m p iric a l investigation be done by m eans o f interviews w ith p rim a ry h e a lth c a re p ra c titio n e rs (medical and nursing) to verify these findings and to ascertain their view s on legislative lim itations in prim ary health care nursing p ra c tic e .F u rth e r re c o m m e n d a tio n s to deregulate the professional practice o f the primary health care nurse will be made, based on the verification results.The registered primary health care nurse needs to act in the in te re st o f the p atien t.H er practice is.
' legislation and other relevant health legislation and to identify the nature of the legal lim itations in the practice o f the prim ary health care nurse in the Republic of South Africa.
In some aspects o f a health service in the private sector, however, a gap exists when m em bers o f this group cannot be present when rendering this service.Special authority must then be bestow ed upon an organisation to handle m edicines in these special circumstances.A permit under section 2 2 A (1 2 ) o f th e a b o v e -m e n tio n e d A ct therefore is issued under certain conditions.