Chapter 2: Safe or unsafe: Does nursing legislation on public safety apply equally? Perpetuating privilege and protection while failing to address oppression and harm.
Cultural acknowledgement
All authors of this article identify as First Nations women. We wish to acknowledge our respect to our Elders, past, present, and emerging. We acknowledge the Traditional Lands, Waters, Skies and Languages, of our respective Mobs, and extend this respect to the Lands and Peoples where we currently live and work. We acknowledge that First Nations people have been caring for each other and Country since Dreamtime and we continue this rich traditional song line of holistic care within our profession of nursing today.
Authors
Wilson, R.L., Burton, J., McDonagh, J., Mullins, C., Ward, K., & Hartz, D.
Author contribution
Wilson (75%): problem identification, conceptual plan, yarning (social yarning – socialisation of problem/topic, collaborative yarning, consensus yarning), thesis formulation, early drafts and edits, finalisation of manuscript.
Burton (5%), McDonagh (5%), Mullins (5%), Ward (5%) and Hartz (5%): yarning participation (social yarning – socialisation of problem/topic, collaborative yarning, consensus yarning), editing and finalisation of manuscript.
Abstract
Racism is known to cause health disparity and poorer outcomes for minority groups, including First Nations people. Cultural safety is a known mitigating factor for discrimination. In Australia, Nurses and Midwives’ regulations provide for the practice of cultural safety by all nurses and midwives. Nurses and midwives are required annually, upon registration renewal, to reaffirm their agreement to providing culturally safe care to their patients, to continue to legally practice as a nurse or a midwife in Australia. Despite legislation, it is currently possible for nurses and midwives to evade consequences for culturally unsafe practice by surrendering their registration prior to a hearing by the relevant Commission or Council. While this loophole in legislation exists, it remains impossible for the law to uphold its responsibility for provision of cultural safety to the public, and no consequence for individual or institutional unsafe conduct is forthcoming. We contend that legislation should be urgently amended to uphold the interests of First Nations people, as a matter of utmost importance, to ensure their public safety is a priority.
Key words
cultural safety; legislation; nurses; racism
Glossary
The academy: the environment comprised of the human, physical and intellectual products of academia.
Cultural safety: “Cultural safety is determined by Aboriginal and Torres Strait Islander individuals, families and communities. Culturally safe practice is the ongoing critical reflection of health practitioner knowledge, skills, attitudes, practicing behaviours and power differentials in delivering safe, accessible and responsive healthcare free of racism” (Australian Health Practitioner Regulation Agency, 2020).
Learning outcomes
1. Understand that experiences of racism are linked to poorer health outcomes for First Nations peoples.
2. Recognise that limitations in Australian nursing legislation result in poor outcomes in the context of public safety for First Nations patients.
3. Recognise opportunities to affirm cultural safety promotion as a mechanism to strengthen public/ patient safety related to First Nations peoples.
Improving health outcomes for First Nations people
Improving health outcomes for First Nations people requires prioritising cultural safety, which is essential for equitable care. Although Australian registered nurses are mandated to provide culturally safe care, current legislation inadequately addresses breaches, allowing culturally unsafe practices to persist. This systemic failure perpetuates discrimination, which invites the question of the true effectiveness of safety mandates.
Introduction
This chapter examines the critical role of health profession regulatory bodies and nursing accreditation organisations in ensuring the safe practice of healthcare professionals, with a specific focus on registered nurses. Globally, these organisations are responsible for overseeing professional conduct to safeguard public safety, as seen with institutions like the Royal College of Nursing in the United Kingdom, the Nursing Council of New Zealand, and the Australian Health Practitioner Regulation Agency in Australia. However, the bureaucratic processes involved in investigating complaints against healthcare professionals can often be complex and protracted. The rigid professional standards and systems in place frequently hinder the efficient and effective resolution of issues. Some contributors to this chapter have personally experienced the challenges of lodging complaints, only to be met with requests to reconsider the seriousness of the complaint, or to view the situation through the lens of a ‘reasonable person’, as suggested by regulatory delegates. This approach often reflects a dominance of colonised perspectives, particularly in matters related to cultural safety. This chapter aims to explore the specific challenges faced by First Nations peoples in navigating these processes, highlighting the frustration expressed by the public regarding the mechanisms within healthcare systems that are meant to protect their safety. Special attention is given to the Australian context, where cultural safety for First Nations peoples remains a significant public health concern.
Cultural safety
A depth of evidence exists to reliably inform the nursing and health professionals and their institutions, that racism (whether it is intentional or unintentional, conscious or unconscious bias or discrimination) causes health disparity and poorer health outcomes for minority groups, including First Nations people. Racism is a culturally unsafe paradigm that is known to cause harm (Elias & Paradies, 2021; Truong et al., 2021). Cultural safety, a quality that is described by the positioning of lived experience (Ramsden, 2002), is known to mitigate discrimination, thereby creating suitable conditions for improvement in health outcomes for minority populations (Nursing and Midwifery Board of Australia, 2016). In Australia, there have been recent calls to prioritise the dismantling of racism in the health and education institutions responsible for the education of nurses (and all health professionals), and among practitioners themselves (Geia et al., 2020). The most recent; the release of the Congress of Aboriginal and Torres Strait Islander Nurses and Midwives (CATSINaM) Report: ‘getting em n keepin em n growin em’ (GENKE II), calls for major reform at federal government policy levels to address the lack of adequate engagement, pipeline, growth and sustainability of nursing and midwifery education, and the academic workforce (Congress of Aboriginal and Torres Strait Islander Nurses and Midwives, 2022). One way to achieve cultural safety in health care delivery for First Nations nurses is the inclusion and growth of nurses from this group. This updated report revealed that since the original report 20 years ago, only a 0.76% increase in the number of Aboriginal and Torres Strait Islander registered nurses in the workforce has been achieved (Congress of Aboriginal and Torres Strait Islander Nurses and Midwives, 2022). Today a total of 1.4% of all registered nurses in Australia identify as Indigenous (well below parity), suggesting that policy be more thoroughly decolonised; a strengthening of the decolonisation of policy pertaining to, and integrated within, nursing curricula and the academy is paramount in achieving much needed improvements.
Reflective activity
Imagine a new graduate registered nurse (RN) has commenced in your unit and you are welcoming her to her first shift in this setting. She has identified as a First Nations woman. As you know, First Nations RNs workforce numbers are below parity. You are keen to promote an environment of cultural safety in the workplace, and, in turn, for the patients you will both care for in your unit? Can you think of steps you and/or your team members could take to demonstrate your commitment to promote cultural safety and collegial allyship? Discuss your answers with a colleague. List anything that will need to change in your unit, and amongst your colleagues/ or institution, to support the cultural safety and retention of First Nation colleagues working in your unit? If anything, what is the first thing on your list?
Legislation about registered nurses
Furthermore, in Australia, legislation mandates that registered nurses must adhere to culturally safe practice, a standard of professional practice that registered nurses must reaffirm annually when updating their registration to practice in Australia (Nursing and Midwifery Board of Australia, 2016; West et al., 2021). This Australian legislation also provides for the interests of public/ patient safety in the health care context. Therefore, the public should confidently expect that nurses (and other health professionals) will provide the public with the safe delivery of culturally appropriate clinical health care, and that their nurses will practice according to their professional standards: Inclusive of their individual agency, to provide a culturally safe context for care (Ahpra, 2020). The aim in this chapter is to highlight some gaps in legislative practice that perpetuate increasing disparity for First Nations people in terms of a reasonable expectation of public and patient safety. Further, there needs to be advocacy for reform to eliminate potential loopholes that enable evasion of personal and institutional responsibility regarding the public/patient safety matters in provision of cultural safety for First Nations people.
Poor cultural safety leads to worse health outcomes
Racism and the lack of cultural safety can be seen as acts of discrimination, omission or bias that, in the health care context, potentially or actually, endanger the lives and wellbeing of First Nations people (McGough et al., 2022). It has been established that there are higher levels of morbidity and longer durations of untreated illness for patients who have experienced racism in health care, with a reported reluctance to return to health care where a prior experience of racism has been encountered (Elias & Paradies, 2021). This reluctance to re-present after a racist episode compounds the inherent mistrust and fear of healthcare institutions, resulting from colonisation. This is reinforced by intergenerational trauma experienced by all First Nations people, which results in higher rates of chronic disease, poor health behaviours and disconnection from health services (Tujague & Ryan, 2021). In Australia, the most recent ‘Close the Gap’ report indicates greater disparity with regard to life expectancy, increasing disease such as cancers, higher rates of incarceration and suicide incidents for First Nations people (Commonwealth of Australia, 2020). Despite progress in the development of strategy to promote cultural safety (AHPRA, 2020), and while recognising that an intention to do better exists, it remains apparent that public health measures and institutions are fundamentally less safe for First Nations people in Australia. This is evidenced by the fact that First Nations people continue to experience many poorer outcomes than their other Australian counterparts.
Construction of public/patient safety undermines an equitable ideal
Recognition of racially discriminatory bias in our institutions, and occasionally among some health professionals, is important if we are to tackle the challenging racism problems of our era (McGough et al., 2022). One such challenge is the full integration and implementation of cultural safety as a foundational tenet in the context of public/patient safety (AHPRA, 2020; McGough et al., 2022). Public/ patient safety is held as a societal ideal, but cannot necessarily reflect the ideals of all. It must also be considered who benefits from the privileges of a public/patient safety ideal. Who is safe? Who is not safe? What types of safety are valued, and to what extent? These are concepts that do not easily lend themselves to measurement (West et al., 2021) and so there is reliance on more subjective forms of expression, that is: safety and cultural safety, being that which the person who experiences it, describes what it is and how they experience it. It may be argued that safety can be measured by, for example, longevity. Escalating death rates due to suicide of First Nations people in Australia, together with a consistently shorter life expectancy, surely points to a lack of (cultural) safety, yet safety is usually not equated with cultural safety using this type of expression. More questions must be asked about the widespread disparity and investigate to understand the nature of who is safe, while revealing the attributes associated with those who are not, if disparity is to be genuinely addressed. No action is to perpetuate the safety of those who are already safe and to reinforce the lack of safety of those for whom a lack of public/patient safety already exists.
Can public/patient safety be achieved in the absence of cultural safety? No!
One explanation, from a feminist theoretical perspective, could be that the concept of public/patient safety is a construct by default due to western, white biomedical and masculine privilege and white standpoint (Moreton-Robinson, 2015). If this is the case, then it stands to reason that public/patient safety is privileged and understood by those who constructed it. As such, only this version of public and patient safety is understood and remains the powerful and dominant narrative. Meanwhile, cultural safety is passive and relegated to a lessor status, a notion that is somehow vague and difficult to engage within the systems and institutions available in westernised and colonial societies.
A further (or expanded) explanation might be that the benevolence of an insipid veneer of institutionalised indigenisation, that is compiled with tick boxes, appearing culturally cognisant, yet aloof, still does not invite authentic integration of ‘others’ to the institutional place (Bond et al., 2021). For example, some authors have had recent communications with early career, First Nations nurses, who shared with them a lack of support for nurses once registered. The support they had felt while students at a university, had evaporated once they commenced a graduate position.
Health care institutions can do more to provide support for First Nations nurses. For example, ensuring that support officers are conveniently accessible and/or facilitating regular yarning circles for First Nations nurses to share their experiences and generate new, integrated knowledges to embed First Nations ways of knowing, doing, being and belonging into the profession. These are difficult conversations; however, it is necessary that all nurses and nursing academics engage and improve their authentic agency for cultural safety, to ensure the discipline moves beyond mediocracy and rather, builds competence. The academy remains an unsafe place for many First Nations academics who feel safer in their own ‘hood’ than in nursing, and in other health faculties (Mukandi & Bond, 2019). If, for example, First Nations nursing academics are not yet assured cultural safety in their workplaces, then like a domino effect, students, future nurses, and their institutions are likely to also remain unsafe. Unless the nursing profession acknowledges that their First Nations colleagues are themselves survivors of intergenerational trauma requiring decolonised, trauma-informed support, the nursing profession cannot effectively achieve the goal of “…keepin em n growin em’ (GENKE II). The nursing academy has begun this important work; however, they must continue to push further into decolonisation if they wish to have timely returns on their collective efforts within their communities.
Codes of conduct and loopholes
In all workplaces, health settings or academic institutions, registered nurses in Australia are bound by the Code of Conduct for Nurses to “use their expertise and influence to protect and advance the health and wellbeing of individuals as well as communities and populations” (Nursing and Midwifery Board, 2022). In regards to First Nations people, it is necessary for registered nurses to conduct themselves as fit and proper people to uphold public safety, and with it, implicitly, cultural safety. These are the conditions of continued registration. Yet, our legislation does not adequately privilege cultural safety in the context of public safety, where it must surely sit. While many nurses are keen to enhance and improve their culturally safe practices, and intentionally work with reflexivity to safeguard their patients and colleagues against cultural harms, it must be recognised that, as with other disciplines and professions, occasionally a few individuals may not share these values to promote cultural safety. Thus, it is necessary to ensure that legislation exists to address these rare circumstances. Where a registered nurse conducts themselves in potentially unsafe practice, the legislative processes exist to assess the conduct, and where necessary, address unsafe practice with remediation or discipline. However, this only occurs while they remain registered, leaving the possibility that remediation or discipline does not occur, and consequently, perpetrators can avoid penalty entirely.
A loophole exists whereby, if a complaint is made about the conduct of a registered nurse in relation to cultural safety (or other matters), and that registered nurse surrenders their registration prior to the Council or Commission hearing of that matter, then, it is possible (and likely) that the Council or Commission investigating the complaint will render a decision about the matter such as; to take no further action because the person is no longer a registered health practitioner. This is provided for by section 145I of the Law, “A Council or the Commission may decide not to refer a complaint under this Subdivision if the registered health practitioner or student has ceased to be registered” (Health Practitioner Regulation (Adoption of National Law) Act, 2009). This then means that on the one hand, the matter of future public safety with regard to culturally safe practice is potentially improved by the (self) removal from the register, instigated by the former nurse, which prevents them from future nursing practice in any form, and the public is no longer at (potential) risk from their unsafe practice. However, the matter of strengthening the measures for enhancing and promoting public safety, in the context of cultural safety, will remain untested and unexplored. In effect, as there appears to be no consequence, the possibility of repetition of these types of events can relentlessly continue unmitigated by law. Thus, the privilege of the protection of the law to uphold public safety is reinforced in a way that substantiates bias and perpetuates discrimination. The question of who is safe is perhaps answered by the reinforcement of every missed, culturally unsafe event.
Privileging the powerful and perpetuating discrimination
The object and strategies of our western and colonial institutions continue to perpetuate discrimination in our systems, and these serve to privilege the powerful and reinforce and perpetuate racism in our discipline, and in our health systems. As this continues unabated, the evidence is clear; racism in health will continue to be problematic and health and social disparity will continue. The inertia that is represented in effectively sweeping matters under the carpet because a legal provision accommodates the possibility of a safe legal haven for nurses who surrender their registration prior to investigation outcomes, reinforces a privileged and powerful standpoint.
Furthermore, accommodating racist discourse through the mechanism of parliamentary privilege to seek to rescind cultural safety strategies and legislation does little to restore confidence where there are those voices that seek to cancel decolonisation ideals within legislative processes (Roberts, 2024). In doing so, the law continues to privilege the safety of powerful provocateurs, yet demonstrates that the cultural safety of the public is not a priority worthy of their pursuit. Meanwhile, legislators have a responsibility to advocate for uptake or change in strengthening cultural safety and in doing so, strengthening public and patient safety, particularly as it pertains to First Nations people (Molloy et al., 2021).
Reflective activity
In this chapter we have highlighted a risk to public and patient safety whereby legislation has not been able to adequately respond to nurses who conduct themselves in a culturally unsafe manner. What would you do if you thought one of your RN colleagues conducted their work in a culturally unsafe manner? Would you speak up? Why/why not?
Conclusion
The peak body, CATSINaM, has recently called for a strengthening of cultural safety among practitioners as well as within and across governments, health and education institutions (Congress of Aboriginal and Torres Strait Islander Nurses and Midwives, 2022). This, together with the rising disparity for First Nations health and wellbeing across Australia (Commonwealth of Australia, 2020), should sound a gong for our instruments of law and our investigative processes. While there may be aspirations and momentum for high level change to support the public/patient safety of First Nations people, this must be matched with legislative reform that supports the remediation, discipline and prosecution of registered nurses who fail in their duty to conduct their practice in a culturally safe manner. The intention is not to alarm nurses who have clear intent to abide by the law, but rather to ensure that where (it is envisaged a small minority) nurses fail in their duty to properly adhere to cultural safety, there is adequate scope within the legislation to uphold the interests of First Nations people as a matter of public safety priority. Serious risks have been identified and highlighted, and any actions by registered nurses that place cultural safety of First Nations people at risk, is a real and present risk to public/patient safety.
Failure to address the legal aspects of legislation adequately, in tandem with other progressive domains, will perpetuate historic oppressions and reinforce the benevolent malignancy that exists in the current legislative practices. This would allow racism to continue unchallenged, hazed in utterances of ‘public safety’, but only for the same privileged few. There is well established evidence that institutional racism and racism in health services is aligned with poor health and social outcomes for First Nations people. Our institutions should carefully consider the contributions they make to the perpetuation of biases that reinforce disadvantage and should affirmatively act to dismantle racism within their decision-making processes. There is a continuing need to remove racism from the health discipline, and on rare occasions, that may mean the need for investigative powers to remove offending nurses from the register. This commentary serves as a reminder of the need to continue to have challenging conversations and to promote the conditions that will invigorate cultural safety in our health systems and among registered nurses, to better support cultural safety and improved health outcomes for First Nations people.
This chapter has demonstrated that instances of racism in health institutions continue to be experienced and are linked to poorer health outcomes for First Nations peoples. Further work needs to be prioritised to address the limitations in Australian nursing legislation because First Nations patients and health professionals continue to experience inequitable and unsafe conditions in the absence of cultural safety. However, there are opportunities to affirm the promotion of cultural safety and acceptance of these opportunities will strengthen public/ patient safety related to First Nation peoples.
Takeaway message
Speaking up to improve cultural safety in legislation regarding registered nursing practice is imperative to the aspirations of achieving better health outcomes for First Nations people.
References
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