Jurisprudence. JU-res-PRU-dence. What a finely poised word - the rhythmic alliteration of the r's and the even-handed distribution of the syllables, balanced like the scales of Justice.
Ever since that thick, brown envelope arrived in my post box a few weeks ago, I have found myself using the word jurisprudence incessantly. But not only has it shifted from, what linguists call, my passive vocabulary to my active vocabulary, I am also actively wrestling with the legal concepts and notions of jurisprudence as applied to health care. And so are all my Therapeutic Massage Therapy (TMT) colleagues, thanks to a decision by the Allied Health Professions Council of SA (AHPCSA) to grant immediate full registration to all TMT therapists who currently hold temporary registration on condition that they have a current first aid certificate and have completed a jurisprudence course.
What exactly is jurisprudence and why should I, as a TMT therapist, have to study law? Informative as it is, the manual, which accompanies the AHPCSA's multiple choice assessment form, doesn't explain the concept nor does it give much background to contextualise the subject. So I went and investigated.
WHAT IS JURISPRUDENCE?
The word jurisprudence is derived from the Latin term juris prudenta. In its widest sense, jurisprudence refers to the theory or science of law (Osborn 1948:1, Pound 1959:7). Although jurists explain the concept as a formal science and distinguishes among different types of jurisprudence depending on the legal system and underlying philosophies in particular countries, colloquially the term is used as a synonym for 'the law', 'knowledge of the law' or 'study of the law'. It is from the more informal sense that we derive phrases such as medical jurisprudence, engineering jurisprudence and health care jurisprudence (Osborn 1948:2, Pound 1959:2). Some legal eagles consider this custom 'indefensible" (Pound 1969:9) but admit that it has become established in everyday use. Jurisprudence as 'the law' or 'knowledge of the law' therefore leads to a definition of health care jurisprudence as knowledge of the law pertaining to those activities that make up the notion of health care.
WHY DO TMT THERAPISTS NEED TO KNOW THE LAW?
So why do we need to know the law? The easy answer is so that we can play the game according to its rules! Whereas prior to registration, the only form of control over the actions of therapists was voluntary membership of an association such as MTA, we are now bound by legislation and governed by the Department of Health. TMT has shifted from a leisure and recreation activity in the service industry to therapeutic massage in a clinical setting as part of the South African primary health care system. This shift has brought with it an increase in expert power (higher level of theory, techniques, clinical governance, accountability and social validation) as well as a regulated responsibility towards the state and the public to provide a safe, ethical and effective service. It has also presented the profession with the challenge of providing a service relevant to the health and social needs of the wider South African population (Kruger 2003: 2-3).
In the process, TMT has been adopted into a new family with a particular structure, culture and value system as well as a well-defined way of doing things. This distinct character is expressed as collective language, understanding and interpretation of the world as well as shared traditions, norms, values and philosophical underpinnings of the discipline (Fakier 2001, Luckett 2000 in Kruger 2003: 191). Each family operates within a particular paradigm and is revealed in the way that its members act in this world - that is how and what they practise.
The practice of TMT constitutes more than what we as therapists have been taught (theory) and the way we apply our knowledge (skills). The notion of practice refers to those traditions, values and norms that bind the family together, that distinguishes it from other families e.g. the difference between massage as part of a beauty treatment and massage practiced by a TMT therapist in a primary health care setting. It also refers to the rules and regulations that a community implements to organise and monitor its members' actions in the light of a particular way of looking at the world. For the sake of efficacy, professions set up systems and structures to co-ordinate the governing processes (regulatory bodies such as AHPCSA) and to socialise new members (training institutions).
BRINGING UP THE YOUNG
Preparing learners for a career as a TMT therapist therefore becomes more than imparting knowledge and skills. It is the introduction to professional skills that help the student to be assimilated into the lifeworld of the group. It initiates them into the rules and boundaries, the theories and explanations, the discourses and debates - the environment in which the profession functions. It forms their professional entity or framework of understanding of the subject they are studying as well as the profession itself (Petocz & Reid 2002:7 in Kruger 2003:71). It becomes a process of socialisation whereby particular group values and commitments are internalised. Learners are taught to see the disciplinary domain in a particular way and approach problems and implement solutions in a particular manner.
The answer to the question: 'Why should established, experienced TMT therapists now do a jurisprudence assessment?' lies in the socialisation component of training or rather the lack thereof in the case of therapists trained prior to the new dispensation. Before the establishment of the AHPCSA, little or no training in respect of professional ethics and jurisprudence was conducted. The Assistant Registrar of the Council, Debbie Drake-Hoffmann explained to In Touch that the majority of transgressions brought to the Council's attention, relate to professional ethics and jurisprudence e.g. misleading advertising and touting. The assessment was introduced to address this gap in training.
SOCIALISATION THROUGH THE LAW
The notion of jurisprudence implies more than merely knowing what rules to follow to stay out of trouble. Knowledge of the law pertaining to health care becomes a journey of exploration, a map into what has, until February 2001, been foreign territory to the newly regulated complementary health practitioners. It offers us a guide to:
What our new family expects of us - the content of the legislation as well as the legal system. Pound (1959:12) calls it the "aggregate of laws, the whole body of legal precepts which obtain in a given politically organised society" (in this case health care) as well as the different philosophies and systems of law;
The family's values and norms or the body of philosophical, moral and ethical principles that underpin the law and which leads to social control of the group. According to Pound (1959:13) "…when we speak of respect for the law we mean respect for the legal order". He considers social control the "control of each of us by the pressure, of his fellow men (sic), whether unconscious and involuntary or direct and purposive" (1959:15). So one might not agree with a particular law but still respect the legal order. For example: not all therapists might agree with the process of regulation and professionalisation of TMT, but because they respect the legal order, they abide by the regulations. Social control is not only achieved through the law. Very often our actions are guided and modified by our cultural and religious customs and the discipline of kin groups such as a professional association. We do not only abide by the laws and regulations enforced by the State. We are also assimilated into the lifeworld or culture of the profession as it manifests in the group's the code of ethics and ethos.
How the family structure is organised. The juristic process is the third sense of jurisprudence - the administrative aspect or according to Pound (1959:14) "all that is done officially". The " … province of jurisprudence is social control through the systematic application of the force of politically organised society." In order to make sure that we obey all those laws and regulations that the State wishes us to obey, it puts in place a legal system to facilitate and implement the laws and regulations ratified by Parliament. Jurisprudence as knowledge of the juristic process is discussed in the AHPCSA manual under Section 1 (The law in South Africa) and Section 2 (Registration and professional discipline in South Africa). This network includes the courts, local authorities (by-laws), statutory boards (e.g. AHPCSA, Board for Health Funders) and a host of other institutions.
So, what did I find out about jurisprudence? In a way our studying health care jurisprudence is like reading a book on social etiquette, only the consequences of not following the rules are more dire than a red face and being shunned by friends. After all the safety of the public is at stake here.
Kruger, E. (2003). Learners' and Educators' perceptions of the Massage Therapy Institute's combined practicum and community service programme. Unpublished Masters thesis, Randse Afrikaanse Universiteit.
Legal Information Institute, 8 August 2004, more...
Osborn, P.G. (1948). Questions and answers on Jurisprudence. London: Sweet & Maxwell.
Pound, R. (1959). Jurisprudence. St. Pauls Minnasota, U.S. West Publishing Company