Judge expresses 'considerable sympathy' for NAs.

The ongoing saga of the Nursing Council's decision to change the title of enrolled nurse (EN) to that of nurse assistant (NA) for those trained post-2000 has taken another intriguing turn. Thirty-six NAs who challenged in the District Court, the Nursing Council's change of title have had their legal challenge struck out. But in his 24-page judgement, released last month, Judge Broadmore stated he had "considerable sympathy" for the appellants' concerns and that he did not consider it appropriate to award costs to the Nursing Council.

"Although the appellants have failed, that is not because I consider that they do not have substantive ground for complaints about the decision. To the contrary, I have considerable sympathy for their concerns. Whether those concerns can be substantively addressed or the decision of which they complain reversed, through legal process is not for me to say. It is inappropriate for me to say anything further about the merits, save that my views are such that I do not consider it appropriate to award costs to the Council," the judge stated.

In the case, heard in the District Court in Wellington in September last year, Judge Broadmore considered two issues: whether the appellants could appeal under section 106 (1) of the Health Practitioners Competence Assurance Act and if the appeal was lodged within the requisite time frame. The Nursing Council had sought to have the appeal struck out. In his decision, Judge Broadmore found the appeal could not be brought under section 106 (1) of the HPCA Act because that section was not intended to cover matters of policy or disputes "over the manner in which an authority such as the Council exercises its functions". The decisions by the Council, of which the appellants complained, were not capable of appeal to the District Court. "This is a conclusion on a question of law," the judge stated.

In his judgement he also found the appeal had been lodged within the required time and said even if it hadn't been, he would have granted the appellants leave to make their appeal out of time. It was his view that the appeal did not amount to an abuse of process, as argued by the Nursing Council.

Appeal 'won judge's heart'

Commenting on the judgement, NZNO chief executive Geoff Annals, who had signed an affidavit in support of the appellants, said the nurses who appealed would be encouraged by the clear support Judge Broadmore gave to the "moral weight" of their complaints. "This appeal was struck out on a point of law but won the judge's heart," Annals said.

One of the appellants Ellen Raumati said the nurses were pleased they had had their day in court, had put their points across and had been listened to. "The judge heard what we were saying, but in the end the appeal was struck out. The end result was that we were not successful." Raumati, who has now changed careers, said the other appellants had yet to read the judgement and only after all had done so would they decide whether to take further action.

She urged nurses who felt unhappy about situations to speak out a lot more. "I really like the saying 'No-one cares how much you know unless they know how much you care.' Well, we cared enough about ourselves and others to do what we did," she said.

Nursing Council chief executive Marion Clark said the Council was relieved that the court action, which had been at considerable cost to the Council "and presumably the NAs who brought the action" was now terminated.

The Council supported the court's decision. "Although Council consults widely with the profession, not every decision will please everyone, particularly individuals who feel disadvantaged. Some decisions are appealable, in which case the court decides. Others, such as this one, are not."

The Council had no plans to reconsider its decision on the title and Clark said that Judge Broadmore had found the Council's consultation process was "exhaustive and comprehensive".

Clark said she hoped the issue of the NA title was now resolved. "There has already been considerable energy and resource directed to this issue. The Council would like to move the focus of the debate to improving the quality of care through the employment of qualified nurses, including NAs. (See story below.)

Referring to the fact the judge did not award costs to Council, Clark said the request for costs was a requirement of the Council's insurers and was instigated by them, not the Council.

Clark said it was sad when the nursing profession could not be seen to be working together to achieve good nursing services for the public. She made a plea for more "public unity" between the Council and NZNO in working "constructively to create positive environments for our people."

* The Regulations Review Committee has advised NZNO that it is proceeding with NZNO's complaint against the Nursing Council concerning the scope and title prescribed for enrolled nurses/nurse assistants.