Understanding the competence review process: new legislation governing the profession has caused anxiety for many nurses. Understanding the reasons behind the new competency provisions within the legislation is important.

The Health Practitioners Competence Assurance Act 2003 (HPCA) has resulted in some significant changes for nurses, notably the introduction of competence-based annual practising certificates (APCs) and a competence review process. The competence review process is still in its infancy but is designed to support nurses whose competence has been called into question, to continue practising while their competence issues are addressed. It has the potential to become a major force in maintaining competence within the profession and thus, the public's faith in nursing. Separate from the competence review process is an annual audit of five percent of nurses applying for APCs. The nurses are randomly selected from the register. This process is designed to ensure the continuing competence of nurses to protect public safety. (1)

Both processes have the potential to cause nurses a great deal of stress, so it is important all nurses have a good understanding of these processes and why the Nursing Council, under the authority vested in it by the HPCA Act, has introduced them.

Background to the HPCA Act

The HPCA Act applies to a range of health practitioners. It came into force in September 2004 and effectively repealed 11 existing Acts which collectively regulated the health professions. The effect has been to bring existing legislation up to date--the Nurses' Act, 1977 in the case of nursing--and to recognise the partnership between health consumers and health practitioners. It brought all health practitioners under the one regulating statute, creating greater consistency. The overriding purpose of the Act is public safety. It mandates the regulatory authority of each health profession--the Nursing Council for nursing--to ensure its practitioners are competent and don't pose a risk of harm to the public.

The functions of each regulatory authority are set out in s118 of the HPCA Act. This section gives the regulatory authority the power to set standards of competence; review and promote competence; and to receive and act upon information from health practitioners, employers, and the Health and Disability Commissioner about the competence of health practitioners. (2) These powers were not contained in the old Nurses' Act and the inclusion of these competence processes is one of the biggest changes for nurses within the new legislation.

The competence review process

The competence review process is set out in sections 34-39 of the HPCA Act. (2) Section 34 outlines who may notify the regulatory authority about a health practitioner's competence. Subsection (3) requires mandatory reporting by the employer when a health practitioner either resigns or is dismissed over a matter of competence. Thus resignation of the nurse concerned does not halt the competence review process. Each regulatory authority has developed its own competence assessment system and how it responds to information sent regarding a health practitioner within their profession.

In response to its function of setting clinical cultural and ethical standards, the Nursing Council has developed four scopes of practice--for nurse practitioners (NP), registered nurses (RN), enrolled nurses (EN) and nurse assistants (NA). It is against these scopes of practice that a nurse's competence is assessed. The Council has also developed four domains that complete a nurse's scope of practice. These are: professional responsibility; management of nursing care; interpersonal relationships; and interprofessional health care and quality improvement.

Section 36 sets out when the regulatory authority may inquire into a health practitioner's practice. But there is an exception if the regulatory authority considers the notification by a health practitioner to be either frivolous or vexatious. This exception has been included in case a person has a vendetta against another and there are no sound grounds for review. However, the regulatory authority (ie the Nursing Council for nurses) is permitted to inquire into the practice of a health practitioner who holds an APC, whether or not there is reason to believe the practitioner's competence is deficient. My experience is that the Nursing Council will err on the side of caution and investigate.

The Nursing Council has developed a process for when it receives information about a nurse's competence. Generally, the information comes from an employer when a nurse has been under review and her employment has ended, either by resignation or dismissal. The Health and Disability Commissioner can also refer, and this is potentially a source of more referrals to the Nursing Council.

Once the Council receives the referral, it assesses the information and decides whether it is a competence issue, a health issue, or a professional misconduct issue. If it is a competence issue, the nurse is sent a letter which requests a response to the allegation of incompetence. This letter will request information on the competence issues and whether the nurse intends to continue to practise, any performance appraisals the nurse has, evidence of professional development and her/his curriculum vitae.

Advice recommended

Often a nurse will respond to this letter without first seeking advice. NZNO does not recommend this, as usually the nurse's response will not be detailed enough. It is also important to separate the employment issues from the competency issues. The employment environment is important, as it provides the background to the competency issues but the Nursing Council's focus is dearly on the competence. Because the nurse is usually emotionally distressed about this process, it is beneficial to seek assistance early from NZNO, as this can help bring objectivity and clarity.

Once the Nursing Council has received the initial response, the panel assigned to the case considers all the information. If all its questions are not answered, then the case is set down for a panel hearing. The time from initial notification to Nursing Council to a panel hearing can take six to eight months, or even longer. The nurse involved can continue to practise during this time. This can be a good opportunity for a nurse to continue to work and show her competence, usually at a different workplace. If, at any time during the competence review process the Nursing Council considered the nurse posed a risk of serious harm, it could suspend the nurse on an interim basis.

Panel hearing

The day-long panel hearing is the nurse's opportunity to put forward her/his case. The panel will decide the nurse's competence on the nurse's manner and ability to answer questions. The role of the nurse's representative is to help prepare the nurse for the hearing. This involves discussing the types of questions likely to be asked and the depth of answers required. It is also the role of the representative to ensure the process is fair and adheres to the principles of natural justice. The nurse must take the opportunity to show her/his competence through interaction with the panel.

The panel is a delegated authority, so its decision comes in the form of recommendations to the Nursing Council. The final decision lies with the Council and it can make changes to the recommendations. The panel may decide the nurse is competent and take no further action. But if it decides the nurse does not meet the required standard of competence, it may make one of the following orders:

* the nurse undertakes a competence programme;

* one or more conditions are included in the nurse's scope of practice;

* the nurse sits an examination or assessment;

* the nurse is counselled or assisted by a nominated person.

If one of these conditions is put in place, it means the panel thinks the nurse is able to practise, but with restrictions, until the conditions are fulfilled. In assessing competence, the panel considers the nurse's scope of practice in detail This is why it is important nurses understand their scope of practice, as it clearly defines the parameters of competent practice.

The panel could decide on an interim suspension, if it considered the nurse posed a serious risk to the public. The nurse has 20 days in which to challenge a suspension.

The Nursing Council wants this competence review process to be supportive. But nurses who have been involved in it often see it as an attack. The competence review process often starts at the end of a bitter employment dispute, where the nurse has felt compelled to leave. However, the intent is to enable the nurse to continue practising, though s/he may have to complete some form of competence programme. Nurses need to remember that the regulatory authority is concerned with public safety.

In the last 12 months, I have been involved in 20 competence cases. Of these cases, 13 went to a panel hearing. One nurse had no conditions placed on practice; two nurses were suspended, and ten nurses had conditions placed on their practice. Four cases stopped after the first response, so did not proceed to a panel hearing, and three nurses chose to stop nursing and not go through with the competence review process.

Auditing of health professionals

Qualifications form the basis of a health practitioner's ability to practise, but they are no longer sufficient to prove competence to practise. The HPCA allows authorities to audit health practitioners and to emphasise the importance of ongoing education to competence. This education needs to be related to each health practitioner's scope of practice and area of practice. This change also reflects the purpose of the Act, ie to ensure public safety and to ensure that only those health practitioners who are competent and registered to practise are granted a practising certificate.

Competence throughout the profession is assessed through auditing health practitioners and is a separate process from the competence review process. Each regulatory authority sets its own requirements. The Nursing Council has set a minimum of 450 hours of clinical practice and 60 hours of professional development in the last three years of practice. (1) It is clear from the Letters to the editor of Kai Tiaki Nursing New Zealand that this issue is casuing much heated debate and some distress among nurses. Professional development and recognition programmes (PDRP) are being used as a way for nurses to prove they are maintaining their competence. If a nurse is on an approved PDRP and is randomly chosen for audit, then the nurse will automatically have shown s/he has maintained the required level of competence. These programmes will become increasingly acceptable as a way of proving competence is being maintained.

Tips on competence

In conclusion, I offer some practical tips on the issue of competence.

* Know your scope of practice and how it relates to your area of nursing.

* If you are involved in an employment/disciplinary process about your competence, ensure you have an NZNO representative as part of the process.

* Make sure your employer conforms to whatever conditions and assessments are set.

* Keep everything in writing.

* Try to remain in your job but, if that is not possible, be aware that if you are dismissed or resign, the employer will notify Nursing Council and the competence review process will start.

* Once the competence process is started, seek assistance from NZNO immediately.

* Remember you can continue to work, unless you are suspended by the Nursing Council It is important to support colleagues who are involved in the competence process and to be open to change within your practice. Reflective practice undoubtedly assists in maintaining competence.

References

1) The Nursing Council of New Zealand. Continuing Competence Framework. www.nursingcouncil.org.nz, retrieved 05/09/06.

2) Health Practitioners Competence Assurance Act. (2003) Wellington: New Zealand Government.

Rebecca Keenan, LLB, RN, is NZNO's individual case organiser responsible for supporting nurses facing the competence review process.