Nurses mount legal challenge.

A regal battle is looming over the Nursing Council's decision to retain the title nurse assistant (NA) for second-level nurses trained post-2000. A group of 36 women who completed Northland Polytechnic's enrolled nurse (EN) programme, which began in July 2002, have filed an appeal under section 106 (1) of the Health Practitioners' Competence Assurance Act 2003 in the Wellington District Court against the Council's decision to change the scope of practice and title of ENs to NAs for those trained after 2000. The appeal was lodged on May 2, after the Nursing Council, in April confirmed the NA title and scope of practice.

The grounds for the appeal are based on the "arbitrary and discriminatory" nature of the Council's decision, which only applied to ENs who qualified after 2000; the fact the name change resulted in "a toss to the reputation of the appellants in the eyes of the medical profession and the public"; and that the appellants had completed the education needed to attain the qualification of EN.

The lawyer for the women, Jenni-Maree Trotman, said the name change was not necessary to protect the health and safety of the public; it did not fit with the purpose of the HPCA, was discriminatory and unreasonable.

Late last month the Nursing Council filed a notice to strike out the appeal It claimed the appeal had been lodged out of time, as the Council's original decision on the title was gazetted in September 2004. In addition, it claimed the appellants had no reasonable cause of action and the appear was an abuse of process of the Court.

"There has been a two-year period of review and consultation and the Council made its final decision on April 13 this year, so we believe we are within time. But even if we are out of time, we will be asking the Court to disregard that because of the prolonged consultation over the title the Council has undertaken," Trotman said. She would also be arguing that the Council as the decision maker, should not be a respondent to the proceedings.

She said the Council was applying for legal costs against the women. "As you can imagine this is quite worrying for these women, as many are on benefits or in low-wage jobs. The Council issued an ultimatum that they withdraw the appeal by a certain date or the Council would apply for security for legal costs. The women will probably have to apply for legal aid to fund the hearing. Any money for their case would be very much appreciated," she said.

NZNO supports appellants

NZNO's chief executive Geoff Annals has filed an affidavit in support of the appellants and opposing any move to strike out the appeal The parties had until July 14 to file notices of opposition and Trotman said a preliminary hearing would probably take place towards the end of August or early September. "It will be a one-day hearing to clear with the preliminary matters, such as whether the appeal will be struck out, whether we have filed the appeal out of time and whether the Council can be a respondent to the proceedings. If we are successful, a substantive hearing before a District Court judge will then be held."

Trotman thinks this hearing could take place by the end of the year.

One of the women who completed the first Northland Polytechnic EN course, Ellen Raumati, was a driving force behind getting the appear underway. She said she and many others had felt "humiliated and degraded" by the Council's decision. "We had all worked as ENs under the direction and supervision of a registered nurse after qualifying. But from March 31, 2005 work as an EN dried up. There's no work for nurse assistants. I'm working as a caregiver now and so are many others. Some of us have lost mortgages over this and some of us have had to have stress counselling."

She said she was stilt a nurse--"and nobody will tell me otherwise"--and, like many of the others, had made sacrifices to do the course originally. "I have stilt got my EN badge and nobody is going to take it from me," she said. In December last year, frustrated at the tack of any progress on the issue, Raumati called a meeting of those affected by the decision. That meeting considered options. Another meeting in March this year decided to go ahead with legal action and Raumati borrowed the money, "put it up front" and the regal process began. Annals said he supported the appeal which dovetailed with NZNO's complaint to the Regulations Review Committee over the Council's decision to change the title and scope of practice. The NZNO complaint will focus on the process used by the Council to reach its decisions, in particular the tack of adequate consultation, and the impact of the decisions on ENs' personal rights and liberties.