South African nurse denied position
Vereeniging, South Africa (2004)
Gauteng Dept. of Health: Kopanong Hospital
Sister Wilhelmien Magdalena Charles1 trained from 1988 to 1992 Coronation Nursing College and qualified as a registered nurse. In June, 1995 she successfully completed a one year course in Theatre Nursing at the Military Hospital in Pretoria. The following year she was promoted to Senior Registered Nurse. From January, 1997, except during her three pregnancies, she was continuously employed as a Theatre Scrub Sister at the Vereeniging Hospital, now the Kopanong Hospital, becoming Chief Professional Nurse in 1999.
Staff at the Hospital were told in February, 2000 that terminations of pregnancy (‘TOPs’) were about to start in Ward 12. Sister Charles was among health care workers at the hospital who opposed abortion for reasons of conscience. They presented a petition on the subject to Dr. Tshabalala on 25 May 2000.
In February 2001, Sister Charles advised hospital management in writing that she had become a Jehovah's Witness, and did not wish to assist with uterine evacuations connected with abortions. She noted that another nursing sister had agreed to be called out to replace her should she be on duty when such a case was referred to the theatre. She also suggested that this situation could be managed by making a second sisters available to assist with the procedure in the theatre during the day, and having one on call after 1900. The suggestions clearly indicate that she was not seeking to "impede access" to the procedure, but seeking accommodation of her own conscientious convictions in a manner that would not interfere with the operation of the hospital.
Thereafter, Sister Charles came to feel increasingly intimidated by what she perceived as ill-feelings toward her harboured by hospital management. Consistent with her perception, in August and in September, 2001 she was forced to participate in abortions despite her protests.
On 19 February 2003, Mrs. C. Jacobs ordered her to assist with an abortion for a patient who arrived during her night shift. She did so against her will, and the following day she contacted Doctors for Life International for help. DFLI faxed her a Declaration of Health Professional, which she completed to document her conscientious objection to induced abortion; she submitted it the same day. She also met the hospital's chief executive officer, Mr. Madonsela, who told her that her superiors should not have forced her to scrub for the case.
It appears that hospital management decided to deal with the 'problem' posed by Sister Charles by holding a meeting of theatre staff to discuss TOP's. The minutes of the meeting suggest that a number of the participants had consulted one another previously, and that the 'discussion' was contrived solely to bring the weight of numbers and authority to bear against Sister Charles. The minutes record only one comment from her, reflecting her assertion that she felt "very intimidated." The real point of the meeting was to suppress the exercise of Sister Charles' freedom of conscience. It was summed up by Sister Neria, who called for a conclusion to the meeting by asking, "What is the final answer? Is everybody scrubbing for evacuation now?"
The answer, given by the nurse in charge of the theatre, was that Sister Charles would assist at abortions, and the subject was not to be discussed again.
Further conflict was averted because Sister Charles, again pregnant, asked to be reassigned the following month to avoid stress. After she returned from maternity leave in May, 2004, she was not placed on the theatre roster. The hospital ignored requests from Sister Charles and Doctors for Life to reinstate her or to give written reasons to justify its position. As a result of the affronts to her dignity and emotional and psychological suffering inflicted upon her, Sister Charles finally submitted her resignation on 30 July, 2004. She has launched a civil suit against the hospital.
Update: 2 October, 2006
It is reported that, after a delay of two years, Sister Charles has been granted leave to take her case against the Health Department to the Labour Appeals Court.Notes
1. Registered nurses in South Africa are referred to as "nursing sisters" and addressed as "Sister." The title does not imply any religious affiliation.
Theatre Minutes
Kopanong Hospital,
Vereeniging, Gauteng, South Africa
Note: The following minutes were submitted to
the South African Parliamentary Portfolio Committee on Health by John J. Smyth,
QC, representing Doctors for Life International. The committee was
considering the Choice of Termination of Pregnancy Amendment Bill.
The minutes are notes, not a verbatim recording, so some interpretation is
necessary. The interpretation supplied by the Project (to the right of the
minutes below) is subject to correction by participants at the meeting.
Theatre MinutesKopanong Hospital,
|
Project Interpretation(Subject to correction by meeting participants)
|
|
Theatre
Meeting 28 March 2003 Mr Mbule (Medical Superintendent): Open meeting with background of T.O.P. e.g. septic abortions etc. Agenda T.O.P.’s |
Interpretation: The meeting is about abortion. The Medical Superintendent opened with background on abortions. |
|
15yrs old >
? T.O.P.: Come back for Ectopic. Lost the patient – died |
Interpretation: A 15 year old patient is
believed to have had an abortion, and returned with an ectopic pregnancy, as a
result of which she died.1 |
| Marie Stopes: Training in London 2/52 |
Interpretation: A reference to
training in London. Marie Stopes was a birth control & eugenics advocate
who was active in the first half of the twentieth century in the United Kingdom. |
|
Since abortion Legal: = ^ Incomplete abortions = Legal T.O.P. |
Interpretation: Since
abortion was legalized, there has been an increase in the number of patients
presenting with incomplete abortions. This increase must be a result of the
legalization of abortion. |
|
Definitions: T.O.P. > Pre-counseling
process > Administration of tablets (oral or vaginal Cytotec) |
Interpretation: Provision of
abortion includes the pre-counselling process, in which abortion is put
forward as a legitimate medical/moral alternative. It also includes the use of abortifacient drugs like Cytotec. |
|
Question: PV Bleeding is it a Surgical Emergency i.e.
> Patient life threatening surgical TOP
|
Interpretation: Is bleeding
from the vagina a surgical emergency? In other words, does it threaten the
life of the patient, so that a surgical abortion is necessary to save her
life? Or is surgical abortion just one available treatment, so that an
abortion performed would actually be just for the termination of the
pregnancy, and not to save the life of the patient? |
|
Sr Charles: Breaking it down makes it a different story. |
Interpretation:
Distinguishing between these two situations leads to different moral
conclusions. |
| Sr Porter (Scrub sister): Ruptured uterus and Evacuations are the same. |
Interpretation: There is no
difference between treating a ruptured uterus and evacuating the uterus to
treat bleeding from the vagina. The result is the same. |
|
Mr Mbule: Try to see it as an emergency.
|
Interpretation: Sister
Charles, even though it may be difficult for you, you should try to see it as
an emergency. |
|
Sr Smith (Area Manager): Everybody does it, often if they don’t like it. What’s good for one – is good for everybody. No religion or moral believe is superior.
|
Interpretation: Everybody does
this, and often they don't like it. If it's good for one patient
(practitioner?), it's good for everybody. All religions are the same. No one
religion or moral belief is superior to any other. |
|
Sr De Bruin (Chief Assistant Director):Everybody goes through emotional trauma: Personnel from T.O.P. also experiences problems.
What happens if there is an emergency and pro-life sister is suppose to be on duty and must then get a substitute?What happens? Who is responsible for death?Discrimination everybody (personnel) must have the same rules.
|
Interpretation: Abortion causes
an emotional trauma for everyone. Hospital personnel also suffer from this. What
happens if there is an emergency2
and a pro-life sister is supposed to be on duty and must then get a substitute? Who is responsible for a death that occurs while she is trying to find one? To allow special
rules for pro-life personnel is
discrimination. Everyone must operate
under the same rules. |
|
Dr Mbule: What is stabilizing a patient? What does it mean?
> When somebody is bleeding > What is your treatment? It will not help to only put on a Line: you have to stop Bleeding : The only way is to Evacuate.
|
Interpretation: When patient
presents with vaginal bleeding and a possibly viable fetus, and a physician
says that he will not do a TOP but will stabilize the patient, what does it
mean? When someone is bleeding, what is the treatment? It will not help to
do only a transfusion. You have to stop the bleeding. The only way to do
this
is to evacuate the uterus. |
|
Sr Neria (Scrub sister: What is the final answer? Is everybody scrubbing
for evacuation now? |
Interpretation: What is our
decision? Is everybody going to assist with abortions? |
| Sr Smith: Sr Charles will scrub for T.O.P. evacuation.T.O.P. not to be brought under discussion again. |
Interpretation: Like it or
not, Sr. Charles will assist with abortions. This subject will not be
discussed again. |
|
Bosman – Area manager Smith – Theatre in charge De Bruin – Chief assistant manager |
Notes:
1. Not clear if this is a criticism of abortion as having led to the ectopic pregnancy, or a criticism of a response to an ectopic pregnancy. [Administrator]2. Still undefined in the discussion. [Administrator]
Pleading lodged on behalf of Sister Charles
IN THE VEREENIGING EQUALITY COURT
BETWEEN
WILHELMIEN MAGDALENA CHARLES, FIRST COMPLAINANT
and
DOCTORS FOR LIFE INTERNATIONAL, SECOND COMPLAINANT
and
JOHN JACKSON SMYTH, THIRD COMPLAINANT
AND
GAUTENG DEPARTMENT OF HEALTH (KOPANONG HOSPITAL) FIRST RESPONDENT
and
THE NATIONAL MINISTER OF HEALTH SECOND RESPONDENT
and
MEMBER OF EXECUTIVE COUNCIL FOR HEALTH (GAUTENG) THIRD RESPONDENT
COMPLAINANTS’ PARTICULARS OF CLAIM
1. The First Complainant is a Theatre Sister employed at the date hereof by the First Respondent. Her details are provided in Form 2 (filed with this pleading) pursuant to Regulation 6(1) made pursuant to The Promotion of Equality and Prevention of Unfair Discrimination Act (Act No 4 of 2000), hereinafter called ‘the Act’.
2. The Second Complainant is a non-profit making association incorporated and registered under section 21 of the Companies act 1973, and acts herein in the interests of its members who are Health workers concerned to uphold the provisions of the Bill of Rights and the Act in all respects. The Second Complainant brings this complaint pursuant to section 20(1)(e) of the Act. The Second Complainant’s details are set out in Form 2 filed with this pleading.
3. The Third Complainant is a retired member of the Bar of England and Wales and a voluntary legal advisor to the first two Complainants, and acts in the public interest pursuant to section 20(1)(d) of the Act. The Third Complainant’s details are set out in Form 2 filed with this pleading.4. The First Respondent is responsible for the management of the Kopanong Hospital in Vereeniging where the First Complainant has been employed as a Nursing Sister since 1997. The First Respondent’s details are set out in Form 2 filed with this pleading.
5. The Second Respondent is the National Minister of Health for the Republic of South Africa and is cited herein in her official capacity as the political head of the Department and as the authority ultimately responsible for the Kopanong Hospital and all Government Health facilities nation-wide. Her details are set out in Form 2 filed with this pleading.5.A. The Third Respondent is the Member of the Executive Council for Health for the Gauteng Province, cited herein in his official capacity as responsible for the Kopanong Hospital and Health services in Gauteng Province. His details are set out in Form 2 filed with this pleading.
6. From 1988 – 1992 the First Complainant trained at the Coronation Nursing College successfully qualifying as a registered nurse. From June 1994 to June 1995 she successfully completed a one year course in Theatre Nursing at the Military Hospital in Pretoria. In 1996 she was promoted to Senior Registered Nurse and in 1999 to Chief Professional Nurse.7. On the 8th January 1997 the First Complainant was appointed a Theatre Scrub Sister by the First Complainant at what was then known as the Vereeniging Hospital, now the Kopanong Hospital (hereinafter called ‘the Hospital’). She was continuously employed in theatre until May 2004 save for the following periods:
-
1. March 1997
– Jan 1998 during her first pregnancy when she asked to work elsewhere in view
of her pregnancy.2. April 2003
– November 2003 when she asked to work elsewhere because of her third
pregnancy.
3. November
2003 – April 2004 when she was granted maternity leave.
8. In February 2000 the staff at the Hospital were told that Terminations of Pregnancy (hereinafter called ‘TOPs’) were about to start in Ward 12. The First Complainant and other health workers at the Hospital who opposed induced abortion on conscientious grounds presented a petition to Dr Tshabalala on 25 May 2000. On the 28 February 2001 the First Complainant wrote a letter to the Hospital management in which she wrote inter alia:
- That she had become a Jehovah’s Witness and did not wish to help with any abortion evacuations.
- That CPN Smit, another theatre sister, had kindly offered to be called out for any evacuation in theatre should the First Complainant be on duty when such a case was referred to theatre.
- Making the suggestion that two sisters be allocated to theatre during the day, and one sister be on call after 1900 hours for TOP evacuations.
After the First Respondent received the said letter, the First Complainant became increasingly conscious of bad feeling against her from the Hospital management. She felt increasingly intimidated and on 20 August 2001 and again on 13 September 2001 she was forced to ‘scrub’ for a TOP case in the face of her protestations and contrary to her conscience.
9. On 19 February 2003, a TOP case was referred to theatre during the night when the First Complainant was on duty; she phoned both Sister Smit and Mrs C Jacobs, the area manager, and was told by Mrs Jacobs that she had no choice and she must scrub for the case. She did so very much against her wishes. She contacted the Second Complainant who faxed her a form entitled ‘Declaration of Health Professional’ that certified that she had a conscientious objection to induced abortion; she filled in the form and presented it to Sister Smit the next day, February 20. On the same day she saw the Hospital CEO, Mr Madonsela, who was supportive of her and said ‘they were not supposed to force you to scrub for that (abortion) case.’10. On 28 March 2003 there was a meeting of theatre staff to discuss the matter at which the First Complainant felt very intimidated.
11. In April 2003 the First Complainant was pregnant again and asked to be taken out of theatre to avoid any more stress during her latest pregnancy.12. On May 2 2004 the First Complainant returned from maternity leave but was not placed on the theatre roster. Since that date the First Respondent has failed to respond to requests from the First and Second Complainants to re-instate the First Complainant in theatre, and has failed to give any reasons in writing as requested by the Complainants.
13. In the premises the First and Second Respondents have unfairly discriminated against the First Complainant, directly or indirectly, on the ground of her religion, conscience and belief and she has suffered impairment of dignity, and emotional and psychological suffering.14. In view of the impairment of dignity, and emotional and psychological suffering, imposed on the First Complainant by the First Respondent, the First Complainant felt compelled to write a letter of resignation to the First Respondent dated 30 July 2004; in the circumstances the First Complainant has been constructively dismissed.
WHEREFORE THE COMPLAINANTS CLAIM:
1. A declaration that the First Complainant has been unfairly discriminated against by the First Respondent on the grounds of religion, conscience and belief in that she has been removed from theatre.
2. An INTERIM order that the First Complainant be re-admitted to her position as a theatre sister forthwith pending the hearing of this matter.
3. Damages for the First Complainant against the First Respondent for the impairment of her dignity, and emotional and psychological suffering from 28 February 2001 until this matter is resolved and her suffering ceases, in the sum of R.50,000.
4. An order that an unconditional apology be made by the First Respondent to the First Complainant.
5. An order directing the First and Third Respondents to take all reasonable steps to restrain unfair discriminatory practices on the ground of religion, conscience or belief at the Kopanong Hospital.
6. An order directing the Second Respondent to take all reasonable steps to restrain unfair discriminatory practices on the ground of religion, conscience or belief at Health facilities nation-wide.
7. An order for costs against each Respondent, save that the Third Complainant makes no claim for costs.
8. Further and/or alternative relief.
DATED AT UMDLOTI ON THE 16th DAY OF SEPTEMBER 2004John J Smyth,QC
Legal Advisor to First and Second Complainants, and Third Complainant in person
PO Box 200 Umdloti 4350
Tel/Fax 031-568-2521