South African Nursing Council

Regulations for the Investigation of Alleged Misconduct and the Conduct of Inquiries

The Minister of Health, in terms of section 11(1) of the Nursing Act (Act 69 of 1957), has approved of the following regulations for the investigation of alleged misconduct and the conduct of inquiries made by the South African Nursing Council in substitution for the regulations published under Government Notice R.934 of 28 June 1963:

Interpretation

1.    In these regulations, unless the context otherwise indicates-

(i)    “accused” means the person against whom a charge or complaint or allegation is made;

(ii)    “complainant” includes pro forma complainant;

(iii)    “committee” means the disciplinary committee;

(iv)    “chairman” means the chairman of the disciplinary committee.

Delegation of powers

1A.    In terms of section 8 of the Act the council delegates its powers under sections 22, 23 and 25 of the Act as follows:

(1) (a)    Consideration as to whether an inquiry shall be held on a complaint lodged under regulation 4;

(b)    Appointment of an assessor, and

(c)    Appointment of the registrar as pro forma complainant;

to the president and, if the president cannot act or is of the opinion that he should not act in a particular case, to the investigating committee appointed under regulation 3;

(2)    all other powers to the committee appointed under regulation 2.

Disciplinary committee

2. (1)    The council as constituted at the date of publication of these amendments shall, at the first meeting after that date, appoint a committee which shall serve for the unexpired portion of the period of office of the council.

(2)    Every newly constituted council shall at its first meeting appoint a committee to serve for the term of office of the council.

(3)    The committee shall consist of the president ex officio and six (6) other members. At least four (4) of the seven (7) members shall be registered under the Act.

(4)    Except for the president, a member of the investigating committee shall not be appointed to the committee.

(5)    Notwithstanding the provisions of paragraph (3), the executive committee shall at the request of the president or the investigating committee appoint additional members to the committee for a particular inquiry.

(6)    Simultaneously with the appointment of the committee, a chairman and a secundus shall be appointed by the council from the members of the committee. In the absence of the chairman, the secundus shall preside. In the absence of both the chairman and the secundus, the committee shall, with the registrar presiding, elect a chairman from amongst themselves.

(7)    The quorum at any meeting of the committee shall be five (5) members, of whom at least three (3) shall be registered under the Act.

(8)    In the event of an equality of votes the member presiding shall have a casting vote in addition to a deliberative vote.

(9)    A member who is absent at any stage of the proceedings at an inquiry, shall cease to be a member of the committee for that inquiry; provided the quorum is maintained.

(10)    If a vacancy occurs on the committee, the council shall, at its first meeting after the vacancy occurs, appoint another member to serve for the unexpired portion of the period of office of the council.

Investigating committee

3. (1)    Every newly constituted council shall at its first meeting appoint an investigating committee to serve for the term of office of the Council.

(2)    The investigating committee shall consist of the president, who shall be chairman of the committee, and two (2) other members. At least two (2) members shall be registered under the Act. The council shall appoint a vice-chairman who shall preside in the absence of the president.

(3)    The quorum of the investigating committee shall be two (2) members.

(4)    If a vacancy occurs on the investigating committee, the Council shall, at the first meeting after such vacancy occurs, appoint another member to the investigating committee for the unexpired portion of the term of office of the Council.

Lodging of complaints

4.    A person making a complaint, or charge, or allegation of improper or disgraceful conduct, shall lodge a written statement with the registrar, wherever possible in the form of an affidavit, setting out in concise terms the specific acts or omissions complained of, and must be prepared, if so required, to bring evidence in support thereof.

Investigation of complaints

5. (1)    The registrar, after calling for such further information from the complainant and/or making such investigation as he may consider necessary, shall submit the matter to the president or to the investigating committee if the president is unable to act.

(2)    The president shall-

(a)    if he decides that an inquiry be held, refer the matter to the committee; or

(b)    if he decides that an inquiry be not held, report accordingly to the executive committee; or

(c)    refer the matter to the investigating committee;

Provided that the president may, before taking any action, direct the registrar-

(i)    to call for further information from the complainant; and/or

(ii)    to carry out such investigation as may be considered necessary; and/or

(iii)    to inform the accused of the nature of the complaint and to ask him whether he desires to give a written explanation, but warning him that such explanation may be used in evidence against him.

(3)    The investigating committee shall-

(a)    if it decides that an inquiry be held, refer the matter to the committee; or

(b)    if it decides that an inquiry be not held, report accordingly to the executive committee;

Provided that the investigating committee may, before taking any action, direct the registrar-

(i)    to call for further information from the complainant; and/or

(ii)    to carry out such investigation as may be considered necessary; and/or

(iii)    if the president has not acted under paragraph (2)(iii), to inform the accused of the nature of the complaint and to ask him whether he desires to give a written explanation, but warning him that such explanation may be used in evidence against him.

Legal representation – complainant and accused

6.    In all proceedings under these regulations the complainant and the accused may be represented by counsel or an attorney or a professional association or labour organization; provided the registrar is informed in writing of the name of the counsel or attorney or professional association or labour organization.

Summons – accused

7. (1)    If an inquiry is resolved upon, the registrar shall issue a summons as nearly as possible in the form of Annexure A, which shall be served on the accused in the same manner as it would be served if it were a summons issued by a magistrate’s court, or forwarded to him by post to his registered address.

(2)    Copies of the summons, together with copies of other relevant documents, shall be furnished to the members of the committee.

Summons – witnesses

8.    When a complainant or an accused desires that witnesses be summoned, the registrar shall issue summonses as nearly as possible in the form of Annexure B. The registrar may require the person at whose instance a witness is summoned to deposit with the Council an amount to cover the costs entailed. Witness fees shall be calculated to the tariff in criminal cases in magistrate’s courts.

Postponement of hearing

9.    The committee may postpone the hearing of an inquiry to such time and place and on such terms as it may deem fit. Further postponements may be made.

Adjournment of hearing

10.    The committee may at any stage of the proceedings adjourn the hearing of an inquiry to such time and place and on such terms as it may deem fit. Further adjournments may be made.

Procedure at inquiries

11. (1)    Inquiries shall be conducted in public, provided that the committee may direct that the whole or any part of the proceedings be conducted in camera.

(2)    A decision of the committee on any point arising in connection with, or in the course of, an inquiry may be arrived at in camera. The committee’s decision shall be announced in public.

(3)    When the accused appears, the procedure shall be as follows:

(a)    The registrar shall read the summons;

(b)    the complainant shall present his case;

(c)    the accused shall then present his case. If he states his case in writing, his statement shall be read;

(d)    on conclusion of the case for the accused, whether the accused has produced evidence or not, the complainant may address the committee on the case generally. The committee will, however, receive no further evidence, unless it may think it fit to do so;

(e)    the accused may then address the committee on the case generally. The complainant shall not be entitled to reply unless-

(i)    the accused has been permitted to produce further evidence after the address of the complainant, when the reply shall be confined to matters arising out of the evidence; or

(ii)    the accused has in his address raised any matter of law, when the reply shall be confined to the matter of law raised.

(4)    When the accused does not appear, the procedure shall be as follows:

(a)    The registrar shall read the summons and produce proof of service on the accused; provided that the committee may postpone the hearing and give instructions for further service of the summons;

(b)    the complainant shall present his case;

(c)    for the purpose of paragraph (b) it shall not be necessary for formal evidence to be given on oath;

(d)    the registrar shall read any written representations from the accused;

(e)    the complainant may thereupon address the committee on the case generally.

Evidence

12. (1)    Verbal evidence shall be taken on oath or solemn affirmation, which shall be administered by the chairman.

(2)    The complainant and the accused may examine or cross-examine witnesses.

(3)    The chairman and the members of the committee may, through the chairman, put questions to witnesses.

(4)    The committee may at any stage of the proceedings, call or recall any person to give evidence.

(5)    The record or part of the record of proceedings in any court of law, including inquest proceedings, may be handed in as evidence by producing a certified copy by the clerk or registrar of the court of record, provided the committee may direct that any or all the witnesses whose evidence appears in such record or part of a record, be summoned to give evidence.

(6)    Affidavits shall be admissible as evidence, provided that the committee may direct that a deponent be summoned to give evidence.

Procedure upon conclusion of the case

13. (1)    Upon the conclusion of the case the committee shall deliberate in camera upon the finding.

(2) (a)    The parties shall be informed of the finding in public. If the finding is one of guilty, the committee shall state whether the accused has been found guilty of improper conduct or disgraceful conduct.

(b)    Where an accused is charged on various counts, separately or in the alternative, the committee shall make a finding on each of the counts.

(3)    On a finding of guilty, the complainant shall adduce evidence by means of a certificate by the registrar, of any previous convictions under the Act. The accused may challenge the certificate, when the record of the inquiries where the accused was found guilty, shall be produced.

(4)    The complainant and the accused may then address the committee on the question of the penalty.

(5)    The committee shall deliberate in camera on the penalty and shall inform the parties in public of the penalty imposed.

(6) (a)    If the penalty is as provided for by section 25(b) or (c) of the Act, the Council may confirm or reduce the penalty or may refer the case back to the committee for further consideration and report.

(b)    The accused may submit written representations to the Council in mitigation.

(c)    The decision of the council shall be announced in public and the registrar shall inform the parties in writing of the decision.

Obstruction or interruption of proceedings

14. (1)    A person who obstructs or interrupts the proceedings at an inquiry, or insults any member or official of the Council, or misbehaves in any other way-

(a)    shall be guilty of an offence and liable on conviction to a fine not exceeding fifty rand (R50);

(b)    may be removed by order of the chairman. If the accused is removed, the chairman may direct the inquiry to proceed in his absence.

Record of the proceedings at an inquiry

15. (1)    A record shall be kept of the proceedings at an inquiry.

(2)    The record of the proceedings of an inquiry shall, under supervision of the registrar, be accessible at the Council’s offices during office hours, to any interested person, who may make a copy of the record.

(3)    A copy of the record of the proceedings of an inquiry may be obtained by the complainant and the accused on payment of a fee decided upon by Council.

Report to Council

16.    The committee shall report to the Council by the submission of a copy of the record of the proceedings.

Application to the territory of South-West Africa

17.    These regulations shall also apply in the territory.

ANNEXURE A

FORM OF SUMMONS – ACCUSED

To . . . . . . . . . .

You are hereby summoned to appear at . . . . . . . . . . upon the . . . . . . . . . . day of . . . . . . . . . . 19 . . . . . . . . . . at . . . . . . . . . . o’clock in the forenoon/afternoon before the disciplinary committee of the South African Nursing Council when the following charge which has been preferred against you by . . . . . . . . . . will be considered:

. . . . . . . . . .
. . . . . . . . . .
. . . . . . . . . .

Should you fail to appear the committee may consider and deal with the charge in your absence in accordance with the regulations for the investigation of alleged misconduct and the conduct of inquiries.

Should you desire your letter dated . . . . . . . . . . or any further written communication which you may make to constitute your explanation or defence, please notify me to that effect as soon as possible, and not later than . . . . . . . . . . but you are hereby warned that any such communication may be used in evidence.

A copy of the regulations for the investigation of alleged misconduct and the conduct of inquiries is enclosed.

Given under the hand of the Registrar of the South African Nursing Council this . . . . . . . . . . day of . . . . . . . . . . 19 . . . . . . . . . .

. . . . . . . . . .
Registrar

ANNEXURE B

FORM OF SUMMONS – WITNESSES

To . . . . . . . . . .

You are hereby required to appear in person at . . . . . . . . . . upon the . . . . . . . . . . day of . . . . . . . . . .19 . . . . . . . . . . at . . . . . . . . . . o’clock in the . . . . . . . . . . noon before the disciplinary committee of the South African Nursing Council in the matter of an inquiry in terms of section 22 of the Nursing Act, 1957 (Act 69 of 1957), in relation to the conduct of certain . . . . . . . . . . registered/enrolled under the said Act as a . . . . . . . . . . and to bring with you and then produce at the time and place as aforesaid the several books, records, documents and things specified in the list hereunder, and then and there to testify all and singular those things you know in relation to the said inquiry.

List of books, records, documents and things to be produced

. . . . . . . . . .
. . . . . . . . . .
. . . . . . . . . .

Given under the hand of the Registrar of the South African Nursing Council this . . . . . . . . . . day of . . . . . . . . . . 19 . . . . . . . . . .

. . . . . . . . . .
Registrar

N.B. – Attention is directed to section 23(3)(c) of the Nursing Act, 1957, which reads as follows:

“(c) Any person who fails, without sufficient cause to attend and give evidence relevant to the inquiry, at the time and place specified in the summons, or who refuses to be sworn or to make an affirmation, or to produce any book, record, document or thing, which he has been required by summons to produce, or to answer fully and satisfactorily, to the best of his knowledge and belief, any question lawfully put to him, shall be guilty of an offence and liable on conviction to a fine not exceeding one hundred rand: Provided that any person so summoned shall be entitled to all the privileges to which a witness giving evidence before a superior court is entitled.”.