Juta’s Manual of Nursing
Chapter 2: Practising the profession of nursing
within the South African professional legal
framework ......................................................................................................... 28
Introduction ................................................................................................................... 32
The professional status of nursing ............................................................................. 32
The meaning of professionalism ........................................................................... 33
Criteria for the professional status of nursing and midwifery in
South Africa ............................................................................................................ 33
Criteria for recognition as a profession ............................................................... 34
Professional conduct of nurses ................................................................................... 35
The South African legal framework for nurses and midwives ............................... 36
The social contract in nursing and midwifery .................................................... 36
The importance of legal recognition of the nursing profession ....................... 37
Contractual obligations in the workplace ........................................................... 37
The content of the National Health Act 61 of 2003 ........................................... 38
The content of the Nursing Act 33 of 2005 .............................................................. 39
Regulations, codes and rules relating to nursing practice ...................................... 43
Government Notice R2598: Regulations relating to the scope of
practice of persons who are registered or enrolled under the Nursing Act .... 43
Government Notice R767: Rules setting out the acts or omissions in
respect of which the Council may take disciplinary steps ................................ 46
Code of Ethics for nursing practitioners in South Africa .................................. 51
Professional associations and organisations ............................................................. 51
Trade unions .................................................................................................................. 51
Functions of a professional association/organisation ....................................... 52
Professional indemnity .......................................................................................... 53
Industrial action ...................................................................................................... 53
Conclusion ..................................................................................................................... 54
Suggested activities for students ................................................................................ 54
Chapter 3: Practising the profession of nursing within
the South African professional-ethical framework .... 55
Introduction ................................................................................................................... 58
The philosophical basis of nursing ............................................................................. 58
Philosophical schools of thought ......................................................................... 59
Introductory ethics ....................................................................................................... 63
Ethics ........................................................................................................................ 63
The science of ethics .............................................................................................. 63
, chapter
Practising the
2 profession of nursing
within the South
African professional
legal framework
Learning objectives
On completion of this chapter, the student should be able to do the following:
• Apply the legal framework within which he or she practises with insight and
understanding.
• Identify the criteria for recognition of nursing as a profession, and apply these
criteria to nursing in the South African context.
• Identify the essential features of professional conduct and how these apply to the
day-to-day practice principles.
• Demonstrate comprehension of the regulatory control of the nursing profession in
South Africa and the ability to apply legislation to own practice.
• Demonstrate understanding of the role of professional associations or organisations
and unions for nurses and the nursing profession.
Key concepts and terminology
Advocacy: The process of providing support, referral, liaison, representing and
protecting the interest of individuals and families who may or may not be aware of the
need or are unable to co-ordinate or arrange healthcare for themselves.
Civil law (private law): Deals with relationships between individuals, including
contractual relationships, and a breach of duty or a wrong or delict (an act by which
one person infringes on the rights of another) leading to liability for damages. The most
relevant wrong or delict leading to legal action against nurses is negligence. Civil law
is concerned with legal action of one individual against another to redress some wrong
or to settle a dispute. The burden of proving someone wrong lies with the person who
brings the legal action (the plaintiff), and this person has to prove on a ‘balance of
probabilities’ that a wrong or delict has been committed. The outcome is usually an
order by the court that one side pay the other side an amount of money; that a person
perform an obligation; or that a person is restrained from doing certain things. ➙
28
, Constitution: Usually the supreme law of the country. It incorporates a ‘due process’
clause (applicable to acts in consequence of which a person may be deprived of his
or her property or life), and an ‘equal protection’ clause (ensuring a person or group
the same legal protection as is granted to other persons or classes of persons in similar
circumstances).
Criminal law: Deals with disputes between an individual and society as a whole,
meaning that societal norms would have been disregarded and, if found guilty, the
individual is deemed to have committed a criminal act. The state as the representative
of its people prosecutes a person for committing an offence and is called the prosecutor.
An important presumption in our legal system is that a person is innocent until proven
guilty. The police or another body will do the investigation, and the prosecution has the
burden of proving all the elements of the offence with which the accused is charged.
The accused does not have to say anything if he or she does not wish to do so. It
must be established ‘beyond reasonable doubt’ that the accused person committed
the offence before a sentence is handed down. A person who has been found guilty
of a criminal offence has a criminal record for the rest of his or her life, and this can
be removed only through presidential pardoning. Criminal liability can arise from the
following:
• Murder, for example through active euthanasia when a nurse intentionally and
unlawfully causes the death of patient.
• Culpable homicide, where the death of a patient is brought about unintentionally,
for example through the administration of incorrect medication, or an incident that
could have been prevented if ‘due care’ was taken and the nurse was reasonably
vigilant.
• Other incidents that may lead to criminal prosecution are, for example, the assault
referred to earlier, as well as crimen injuria where a person’s dignity was wounded
by divulging information on his or her health status to, for example, the media.
• There must be proof that the nurse acted with malicious intent, and therefore
consciously chose to do it.
• Sometimes an incident may involve both civil and criminal law proceedings. When
a motorist runs down a cyclist, the police will investigate a charge of reckless driving
which may be followed by criminal proceedings in court. However, the cyclist may
also bring civil proceedings against the driver to recover monetary compensation
for any damages suffered. The difference here relates to the consequences that
follow. Criminal law is concerned with the punishment of offenders, while civil law is
concerned primarily with compensation.
Indemnity: Usually means a form of insurance that will provide the nurse with legal
advice and representation should the nurse be involved in legal action related to his or
her professional activities.
Law: Formally prescribed and legally binding rules made by the authorities to regulate
social conduct so that individuals need not fear for the safety of their person or property.
Liability: The legal responsibility to account for, or answer for, one’s actions or
omissions. Financial compensation may be claimed in the case of wrongful actions.
Liability can be transferred to a third party, for example buying indemnity insurance or
vehicle insurance that will make provision for financial compensation in the event that a
person requires it. ➙
29
Chapter 2: Practising the profession of nursing
within the South African professional legal
framework ......................................................................................................... 28
Introduction ................................................................................................................... 32
The professional status of nursing ............................................................................. 32
The meaning of professionalism ........................................................................... 33
Criteria for the professional status of nursing and midwifery in
South Africa ............................................................................................................ 33
Criteria for recognition as a profession ............................................................... 34
Professional conduct of nurses ................................................................................... 35
The South African legal framework for nurses and midwives ............................... 36
The social contract in nursing and midwifery .................................................... 36
The importance of legal recognition of the nursing profession ....................... 37
Contractual obligations in the workplace ........................................................... 37
The content of the National Health Act 61 of 2003 ........................................... 38
The content of the Nursing Act 33 of 2005 .............................................................. 39
Regulations, codes and rules relating to nursing practice ...................................... 43
Government Notice R2598: Regulations relating to the scope of
practice of persons who are registered or enrolled under the Nursing Act .... 43
Government Notice R767: Rules setting out the acts or omissions in
respect of which the Council may take disciplinary steps ................................ 46
Code of Ethics for nursing practitioners in South Africa .................................. 51
Professional associations and organisations ............................................................. 51
Trade unions .................................................................................................................. 51
Functions of a professional association/organisation ....................................... 52
Professional indemnity .......................................................................................... 53
Industrial action ...................................................................................................... 53
Conclusion ..................................................................................................................... 54
Suggested activities for students ................................................................................ 54
Chapter 3: Practising the profession of nursing within
the South African professional-ethical framework .... 55
Introduction ................................................................................................................... 58
The philosophical basis of nursing ............................................................................. 58
Philosophical schools of thought ......................................................................... 59
Introductory ethics ....................................................................................................... 63
Ethics ........................................................................................................................ 63
The science of ethics .............................................................................................. 63
, chapter
Practising the
2 profession of nursing
within the South
African professional
legal framework
Learning objectives
On completion of this chapter, the student should be able to do the following:
• Apply the legal framework within which he or she practises with insight and
understanding.
• Identify the criteria for recognition of nursing as a profession, and apply these
criteria to nursing in the South African context.
• Identify the essential features of professional conduct and how these apply to the
day-to-day practice principles.
• Demonstrate comprehension of the regulatory control of the nursing profession in
South Africa and the ability to apply legislation to own practice.
• Demonstrate understanding of the role of professional associations or organisations
and unions for nurses and the nursing profession.
Key concepts and terminology
Advocacy: The process of providing support, referral, liaison, representing and
protecting the interest of individuals and families who may or may not be aware of the
need or are unable to co-ordinate or arrange healthcare for themselves.
Civil law (private law): Deals with relationships between individuals, including
contractual relationships, and a breach of duty or a wrong or delict (an act by which
one person infringes on the rights of another) leading to liability for damages. The most
relevant wrong or delict leading to legal action against nurses is negligence. Civil law
is concerned with legal action of one individual against another to redress some wrong
or to settle a dispute. The burden of proving someone wrong lies with the person who
brings the legal action (the plaintiff), and this person has to prove on a ‘balance of
probabilities’ that a wrong or delict has been committed. The outcome is usually an
order by the court that one side pay the other side an amount of money; that a person
perform an obligation; or that a person is restrained from doing certain things. ➙
28
, Constitution: Usually the supreme law of the country. It incorporates a ‘due process’
clause (applicable to acts in consequence of which a person may be deprived of his
or her property or life), and an ‘equal protection’ clause (ensuring a person or group
the same legal protection as is granted to other persons or classes of persons in similar
circumstances).
Criminal law: Deals with disputes between an individual and society as a whole,
meaning that societal norms would have been disregarded and, if found guilty, the
individual is deemed to have committed a criminal act. The state as the representative
of its people prosecutes a person for committing an offence and is called the prosecutor.
An important presumption in our legal system is that a person is innocent until proven
guilty. The police or another body will do the investigation, and the prosecution has the
burden of proving all the elements of the offence with which the accused is charged.
The accused does not have to say anything if he or she does not wish to do so. It
must be established ‘beyond reasonable doubt’ that the accused person committed
the offence before a sentence is handed down. A person who has been found guilty
of a criminal offence has a criminal record for the rest of his or her life, and this can
be removed only through presidential pardoning. Criminal liability can arise from the
following:
• Murder, for example through active euthanasia when a nurse intentionally and
unlawfully causes the death of patient.
• Culpable homicide, where the death of a patient is brought about unintentionally,
for example through the administration of incorrect medication, or an incident that
could have been prevented if ‘due care’ was taken and the nurse was reasonably
vigilant.
• Other incidents that may lead to criminal prosecution are, for example, the assault
referred to earlier, as well as crimen injuria where a person’s dignity was wounded
by divulging information on his or her health status to, for example, the media.
• There must be proof that the nurse acted with malicious intent, and therefore
consciously chose to do it.
• Sometimes an incident may involve both civil and criminal law proceedings. When
a motorist runs down a cyclist, the police will investigate a charge of reckless driving
which may be followed by criminal proceedings in court. However, the cyclist may
also bring civil proceedings against the driver to recover monetary compensation
for any damages suffered. The difference here relates to the consequences that
follow. Criminal law is concerned with the punishment of offenders, while civil law is
concerned primarily with compensation.
Indemnity: Usually means a form of insurance that will provide the nurse with legal
advice and representation should the nurse be involved in legal action related to his or
her professional activities.
Law: Formally prescribed and legally binding rules made by the authorities to regulate
social conduct so that individuals need not fear for the safety of their person or property.
Liability: The legal responsibility to account for, or answer for, one’s actions or
omissions. Financial compensation may be claimed in the case of wrongful actions.
Liability can be transferred to a third party, for example buying indemnity insurance or
vehicle insurance that will make provision for financial compensation in the event that a
person requires it. ➙
29
