The role of the state in the construction of the competent nurse is realised in the enactment of particular statutes and corresponding regulations. Both Papps (1997) and French (1998) have comprehensively examined specific legislation that constructs the nursing identity, so it is the intention of this section to focus on the regulatory discourse produced, primarily, through the statutory body of the Nursing Council of New Zealand.
A regulatory discourse refers to a regulatory regime of discursive practices that construct a nurse as competent to practise. These practices are derived from the statutes that make provision for a regulated nursing45 workforce, specifically the Nurses Act, 1971, Nurses Act, 1977 and its regulations and amendments, (including the Health Occupational Registration Acts Amendment: Amendments to Nurses Act 1977, 1998) and the HPCA Act, 2003. These statutes firstly establish the Nursing Council as a legal and corporate entity and secondly, charge it with the responsibility to safeguard the public. This is achieved through disciplinary practices of surveillance over the educational institutes and staff delegated to provide quality nursing education programmes, the competencies required for registration and the conduct of state examinations. Monitoring
principles are then applied to the ongoing competence of post-registration nurses by surveillance of individual nurses throughout his/her career via competence- based annual practising certificates, and the exercise of disciplinary powers against nurses found guilty of professional misconduct (NZ Nursing Council, 2006, July). In turn, the nurse engages in self-monitoring practices, termed by Foucault as ‘technologies of the self’. As Rabinow and Rose (2003) point out, these techniques are complementary, but self-management is by far a more effective means of control than external management or domination. In sum, these techniques have the power to control nursing practice and normalise the standard of practice expected of a competent nurse.
Under the Nurses Regulations, 1979, the Nursing Council was able to appoint nurse inspectors (s. 27) to maintain its powers of surveillance of hospital schools of nursing and to have information furnished “on the staff concerned with the education of nursing students … particulars of the clinical experience and educational facilities available and the students” (Notifications to the Nursing Council, s. 21). However, this power of inspection did not extend to technical institutes46, although the Council was able to request information from an institute (Courses at technical institutes, s. 5) and did so in order to view curricula. A Nursing Council blueprint otherwise guided the curricula in respect to content areas (Nurses Regulations, 1979).
Kinross (1984a, p. 197) refers to a deliberate “move away from central curriculum guidelines devised by the Nursing Council to curricula developed by the faculty of nursing departments”. This move reflected the distinction of increased independence afforded the technical institutes, but not Schools of Nursing. The autonomy enjoyed by nurse educators in technical institutes amounted, however, to a loss of direct Nursing Council control of comprehensive programme curricula, although indirect control was possible via the state final examination. In education assessment philosophy this is called ‘backwash’ (Biggs, 2000) and means that the control of programme content can be achieved by setting the endpoint assessment. In this context, the state examination was set
46 “Technical institutes” or “Community Colleges” were renamed “polytechnics” (Education Amendment Act, 1990, Seventh schedule: Consequential amendments of regulations).
by the Council and served, to a certain extent, to determine the official curriculum set by an institution. How effective this was as a mechanism is doubtful, as Elaine Papps, Chair of the Nursing Council observed about the inclusion of cultural safety in the state examination:
I think it was 1991 that the Council resolved to have it included in state final exams, which really didn’t do anything… I don’t know that people in education really thought about what the implications might be to have this new concept called ‘cultural safety’ as part of what it had to do in its programmes… (in Wood & Papps, 2001, p. 91-92).
Proposals from nurse educators in 1983 to replace the state examination with internal assessment procedures (Watts et al., 1986) would have removed almost all control of pre-service education from the Council, had the plan proceeded.
In keeping with neoliberal political reforms designed to reduce special-interest group capture and improve accountability to the consumer, the establishment of the NZQA under the Education Act, 1989 shifted the approval and monitoring process for nursing education programmes to the NZQA and exposed nursing education to much wider scrutiny than that available previously (French, 1998). Despite past struggles for control of nursing education between the Council and educational institutes, the NZQA represented a significant threat to the sovereignty of nursing to determine its own future. Nursing Council participation in monitoring panels, as well as representatives from the nursing associations (see New Zealand Qualifications Authority, 2003/2007), became an important means of mitigating outsider control.
Meanwhile, interest in the establishment of professional standards had arisen from a number of authorities outside nursing, such as the Industry Training Organisation, Crown Health Enterprises and Regional Health Authorities. Internal to nursing, special interest groups and clinical career path initiatives were developing nursing standards too (O'Connor, 1995). Encompassing a wider understanding of professional standards to include all the services provided by a hospital, a new organisation, the New Zealand Council on Healthcare Standards, was set up in 1990 for hospitals to voluntarily seek accreditation by comparing the
quality of their services with nationally approved (Australian) standards ("Council formed," 1990).
Ashton (1990, p. 23) mentions two methods of measuring competency: “either examine the product – nursing care in this instance; or examine the practitioner – the individual nurse.” Industry interest in quality and standards measure the end product, but where the regulatory interest of the Nursing Council lay, was in the competence or safety of the individual nurse. Expecting a legislative change in the Nurses Act, 1977 that would remove the requirement for state final examinations, as well as general unease about the Nursing Council’s automatic procurement process for annual practising certificates, as well as following international trends in competency development, the Nursing Council indicated there was a need to develop a set of measurable national competencies or standards for registration (see the Strategic Plan 1994/1997). This was also in line with the Health and Disability Commissioner Act, 1994, which introduced the right of consumers to services of an appropriate standard (s. 20, f). The Nursing Council competencies are, as Papps (1997) points out, a regime of truth, an instrument of power to which nurses become subject. Given the wider political interest in professional standards outside of nursing, it was important, therefore, that nurses in practice engage with the process of competency development (O'Connor, 1995). The Nursing Council consulted widely with the profession on draft consultation documents, but discussion about what constitutes competence appears to have been overtaken by the practicalities of how competence should be assessed (Gallagher, 1997; Oliver, 1999; Trim, 1998).
Over this period, the terms ‘standards’ and ‘competencies’ were used interchangeably, as in the Nursing Council Annual report:
… initiatives to develop and pilot competencies for safe nursing and midwifery practice, including cultural safety, were completed in 1996. These competencies were incorporated into the 1997 Standards for Registration of Comprehensive Nurses and the Standards for Registration
of Midwives approved by the Council on 13 October 1996 along with the
One year later, the standards for registration were replaced with competencies, as shown in the Annual Report:
“…Competencies for Entry to the Register of Comprehensive Nurses
which replaced the Standards for Registration of Comprehensive Nurses
and now incorporated with “specific mental health performance criteria” (NZ Nursing Council, 1998b, p. 6).
The significance of this shift in language reflects the need to refer to the requirements for education programmes in terms of ‘standards’, but the practice of an individual nurse in terms of ‘competencies’. Where previously the emphasis of Council was on the adequacy of nursing education programmes and their production of registration-ready nurses, focus was now turning towards the competence of individual nurses on the register. Rather than assume all nurses were competent on the basis of no receipt of complaint, the onus of proof of competence was turning to each nurse to substantiate his/her claim to an annual practising certificate. In this respect, and along with Clinical Career Paths, a new totalising and individualising subjectivity had emerged of articulated competence that established normal levels of competence and increased the visibility of what nurses were doing in their day-to-day practice.
Establishing competencies for entry to the register served a number of important discursive functions: nursing had autonomy over a competency framework; the competencies became the basis for the performance-based annual practising certificate renewal scheme under discussion (Strategic Plan, 1994/1997); and the introduction of competencies justified the regulatory tools of audit and allowed the Nursing Council to regain more control of nursing curricula than could be gained from setting the state examination alone47. In fact, the opportunity to audit all the polytechnics with nursing schools arose in 1996 following a Select Committee review of the cultural safety curricula component of nursing education (Wood & Papps, 2001). Given that it was the polytechnics and universities that
47 The competencies at that time contained eleven specific aspects of nursing practice, a description of the standard expected and up to nine itemised performance criteria for each competency. The competencies were: communication, cultural safety, professional judgement, inter-professional responsibilities, ethical and legal responsibilities, management of patient care and the environment, patient education, quality improvement and professional development.
prepared students for entry to the register and that Nursing Council programme approval occurred only once every five years, the surveillance role of the Council fell only on educational programmes and not individual student nurses (Gallagher, 1998).
Revision of the Nurses Act, 1977 had been anticipated since at least 1994, as indicated in the Nursing Council Strategic Plan by the intention to establish renewal criteria for competence-based annual practising certificates. Additionally, the Ministry of Health had issued a discussion paper on the reform of statutes regulating health sector workers, suggesting the introduction of principles similar to those contained in the Medical Practitioners Act, 1995, particularly those pertaining to continuing competence (Ministry of Health, 1996). The paper proposed the devolution of power from centralised government to registration authorities and was designed to increase the autonomy in professional decision- making by eliminating the detail of registration administration from legislation and Ministerial approval. Essentially a reshuffle of power, the changes would diminish special-interest group capture and improve consumer protection by introducing lay participation in both registration and disciplinary functions.
Six years after the Ministry’s discussion paper and following a change of government, the Nurses Act was replaced with omnibus legislation that covered all health practitioners in New Zealand under the HPCA Act, 2003. As expected, the new Act introduced competency-based practising certificates and added surveillance of registered nurse ongoing competence to the Council’s legal power. The burden of proof of competence shifted to the nurse, whereas previously, the Council must prove a nurse’s incompetence to refuse an annual practising certificate. Thus under the Act, the Council can withhold or place restriction on a nurse’s APC pending evidence of competence, thereby impacting directly on a nurse’s employment (NZ Nursing Council, 2001).
The requirements for an APC are a minimum of 450 hours of practise over three years, a minimum of 60 hours of professional development over three years, a self declaration stating the nurse has met the required standard of competence and payment of the set fee. It is expected that evidence supporting the required
standard of competence will be compiled in a personal professional portfolio for submission to the Council in the event of selection by random audit. Such evidence may be by self-assessment, and/or peer review, and/or senior nurse appraisal, but must “be verified by someone who can attest to the accuracy of the assessment information” (NZ Nursing Council, 2004a, p. 8). In short, a nurse is provided each year with the opportunity to self-examine his or her practice against the competencies and sign a legal document (the APC application form) to that effect.
Where previously the regulatory role of the Nursing Council concerned education programmes that led to entry to the register, the state nursing examinations and disciplinary proceedings, the ongoing competence of registered nurses was added to the Council’s surveillance portfolio. Where once, under the Nurses Registration Act, 1901, information entered on the register about a nurse was her name, address and hospital at which she trained, in 2006 under the increased administrative requirements of the HPCA Act, 2003, a dossier on each nurse is held by the Council containing “all communication of initial registration, practising certificate applications, audit round, verifications, applications for change of scope … and conditions and all miscellaneous correspondence” (NZ Nursing Council, 2006, July, p. 2).
Foucault (1977a) problematises dossiers as a documentary apparatus of surveillance, a point already raised in chapter five in relation to the portfolio compiled by a nurse for progression on a clinical career path. The effect of the dossier with regard to the Nursing Council, however, is “a certain crossing of power and knowledge” (Dreyfus & Rabinow, 1983, p. 160) where disciplinary techniques of surveillance combine with the developing science of (most probably) workforce planning. Such planning can lead to highly desirable and productive outcomes and as Foucault (1983a) points out, is not necessarily bad – although it is dangerous. Making claims to ‘truth’, the effect of the dossier is one of power, always at work to encourage its acceptance as necessary and inevitable, all the while containing knowledge that classifies, categorises and constructs particular subjectivities that may or may not be occupied (Mansfield, 2000). And so, the dossier can pronounce a nurse as competent because there is no evidence
to the contrary; or not competent because of substantiated evidence; or possibly not competent on the basis of a poorly articulated portfolio. As Mansfield suggests, these documentary constructions should be regarded with skepticism as they may or may not reflect the ‘truth’ about a nurse at all.
The Council’s new form of power can be described as “continuous, disciplinary, and anonymous” (Dreyfus & Rabinow, 1983, p. 189). The nurse continually collects evidence that his or her practice compares favourably to the normalising judgment of the competencies; and, the nurse is selected for audit by anonymous randomisation techniques and then audited by a Council staff member, who will likely remain anonymous to the nurse, unless more information is required. As a disciplinary technique of meticulous ritual, APCs subject a nurse to an application of hierarchical observation and normalising judgment in the optics of Nursing Council surveillance (Foucault, 1977a).