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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2008-10-16 Daily Xml
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NURSING AND MIDWIFERY PRACTICE BILL

Introduction and First Reading

Received from the House of Assembly and read a first time.

Second Reading

The Hon. G.E. GAGO (Minister for State/Local Government Relations, Minister for the Status of Women, Minister for Consumer Affairs, Minister for Government Enterprises, Minister Assisting the Minister for Transport, Infrastructure and Energy) (15:29): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

The Nursing and Midwifery Practice Bill 2008 will replace the Nurses Act 1999. Although it has only been nine years since the Act came into force there have been significant changes in both nursing and midwifery practice and within the broader professions during this time. This Bill, which has a primary aim to protect the health and safety of the public, will modernise the regulation of the nursing and midwifery professions in South Australia.

In introducing this Bill I acknowledge the role played by the Hon Lea Stevens MP and her staff in commencing the development of this legislation. This Bill is based on the other health professional registration legislation that has been considered by Parliament.

The Nurses Board of South Australia has identified areas in which the current legislation can be improved and is very supportive of the proposed Act.

Key nursing and midwifery organisations, such as the Australian Nursing Federation, the Royal College of Nurses, the Australian College of Midwives, the Australian College of Mental Health Nurses Inc, have also identified areas for improvement and have been consulted during the development of the new proposed legislation. These groups recognise that the professions have advanced and that these advancements need to be reflected in the way in which we regulate professional practice.

We live in a world which is more demanding of its health professionals than in the past. In the 21st century, information is immediately available on the internet and the community is demanding a different relationship with their health professionals. I raise this matter as it demonstrates that the health consumer of today is vastly different in their expectations of health professionals than the consumer of 20 years ago.

Our standards in regard to transparency and accountability have also changed and are now much more demanding than in the past. While consumers have higher expectations of their health practitioners and governments have higher expectations of all professionals, we as a society have increasing expectations of the health system as a whole. The Bill will meet these expectations by ensuring that only properly qualified people are registered as nurses and/or midwives and enrolled as nurses, that the public is protected by the timely and effective investigation of complaints, that corporate providers of nursing and midwifery care can be held accountable for their services and that the decisions of the Board are transparent.

Nurses and midwives are the backbone of our health system. There are approximately 28,000 nurses and midwives in South Australia and more will be required in the future as our population ages. Nurses and midwives are better trained than they have ever been and they are increasingly taking on greater responsibilities within the health system.

Nurse practitioners, for example, can provide high level care to patients within their area of expertise. A nurse practitioner is a registered nurse who has been educated to function in an advanced clinical role and who has been authorised to practice in a specific area. The advanced practice role played by the nurse practitioner is accepted and has been welcomed, nationally and internationally.

The role of the nurse practitioner was introduced into South Australia in April 2002 and there are currently 28 authorised by the Nurses Board of South Australia and practising. Of these 28, five have gained authority to prescribe medicines, with four of the nurse practitioners working within acute care and one in mental health.

Nurse practitioners are currently practising in a number of clinical areas including palliative care, diabetes education, continence management, gastroenterology, neonatology and aged care, as well as acute care and mental health.

The State Government is investing $1.6 million over the next four years to establish eight mental health nurse practitioners in country South Australia as part of the response to the Social Inclusion Board’s report Stepping Up: A Social Inclusion Action Plan for Mental Health Reform 2007-2012. These Nurse Practitioners will provide additional mental health treatment and therapy to complement existing services. With changes in clinical practise the role of a nurse practitioner is becoming more important for the provision of health care to the community.

The Nursing and Midwifery Practice Bill 2008, with its focus on protecting the health and safety of the public, makes an important contribution to the overall safe functioning of the health system. The philosophy underpinning the Bill emphasises the need for transparency and accountability in all matters concerning the registration of nurses and midwives and the handling of disciplinary matters.

While legislation provides the framework, it is the actual administration of the legislation which is critical to achieving greater transparency and accountability. We cannot legislate for every conceivable situation which may arise. What we can expect however is that the spirit of the legislation will permeate and guide all the activities of the Nurses Board of South Australia.

The Bill is consistent with the Medical Practice Act 2004, which is the template for all health professional legislation. The changes from the current Act include, but are not limited to:

provisions to ensure the accountability of corporate providers

enhanced provisions in relation to medical fitness to practise

provisions in relation to obligations to report unprofessional conduct

anti-victimisation provisions

provisions requiring independent nursing and midwifery service providers to be indemnified (unless exempted by the Board)

fairer and more transparent disciplinary and accountability mechanisms.

Some of the key professional groups have requested that the internationally accepted definitions of nursing and midwifery be included in the Bill.

The definitions of nursing and midwifery in the Bill have been constructed recognising that as the professions of nursing and midwifery develop, a professional definition is liable to change. The Bill recognises this by requiring the Board, when it is preparing or endorsing codes of conduct, professional standards or guidelines to have regard to the definitions of nursing and midwifery prepared respectively by the International Council of Nurses and the International Confederation of Midwives.

These definitions are frequently updated, endorsed and adopted by the Board as it is required to determine scope of practice and will alter over time to reflect contemporary changes in public health needs and health care provision, professional education and research.

The Bill continues the Nurses Board of South Australia in existence as the Nursing and Midwifery Board of South Australia which reflects the current international and national trend recognising midwifery as a separate profession from nursing.

The first intake of direct entry midwives (that is those midwives who have not first undertaken registered nursing training) completed their studies in 2004 and have entered the workforce. Midwifery is recognised as a separate profession in a number of countries such as New Zealand and the United Kingdom, and regulated accordingly. In Australia, the majority of states and territories have passed amendments recognising midwifery separately through their equivalent legislation for the registration of nurses and midwives.

The Nurses Act 1999 does not provide for the registration of midwives separately from nurses. The midwives who have undertaken direct entry training have had to be registered as nurses with their practice restricted to midwifery as they do not meet the criteria to be registered as nurses without such restriction. The changes included in the Bill ensure that the needs of the midwifery profession are met in a consistent, cost efficient and effective manner while ensuring the protection of the health and safety of the public.

The Bill requires that a person or a body must, in making a determination of a person's medical fitness to provide nursing or midwifery care, have regard to the question of whether the person is able to provide such care personally to another without endangering the other’s health or safety.

The intent is that any decision about a nurse or midwife’s medical fitness is to be determined giving consideration to the context in which they work. For example, a nurse or midwife with a communicable disease may be perfectly safe working in a policy area but not safe to work in an operating theatre. This approach is adopted in all the health professional registration Acts. It is designed to protect the public while recognising that a nurse or midwife with a particular medical condition may work safely with appropriate restrictions on the practise areas.

The membership of the new Nursing and Midwifery Board has been retained at eleven due to the large numbers of nurses and midwives eligible for registration in South Australia. There are over 28,000 nurses and midwives currently registered or enrolled with the Nurses Board of South Australia. The Board membership has been adjusted to reflect this large professional group with seven of the 11 members required to be nurses and/or midwives.

The professional qualifications of elected Board members will be proportional to the numbers of the particular group on the register, however all those registered or enrolled are able to vote in the election for each position. The Board will consist of five elected persons of whom three (60 per cent) must be registered nurses (registered nurses comprise approximately 60 per cent of all registered and enrolled nurses and midwives), one (20 per cent) an enrolled nurse (enrolled nurses comprise 20 per cent of all registered and enrolled nurses and midwives), and one (20 per cent) a registered midwife (registered midwives comprise 20 per cent of all registered and enrolled nurses and midwives).

The Board membership of 11 persons is required to ensure that a member of each of the registered and enrolled groups (registered nurses, enrolled nurses and midwives) is on the Board and to accommodate the significant workload associated with disciplinary proceedings that require the participation of a presiding member and two Board members, of whom one must be a nurse or midwife.

In keeping with the other health professional registration Acts, the Bill contains a provision that will restrict the length of time which any one member of the Board can serve, to three consecutive terms. This is to ensure that the Board has the benefit of fresh thinking. This provision will not restrict a person's capacity to serve on the Board at a later time however it will mean that after three terms (or nine years) these long term serving Board members will need to be replaced.

The Bill allows the Minister to approve codes of conduct, professional standards or guidelines for nurses, midwives and students and codes of conduct for services providers. The codes, guidelines and standards are to be published in the Gazette, with a date on which a code, standard or guideline comes into effect, stated.

This will allow nurses and midwives to have a reasonable opportunity to be informed of the adoption of such provisions. Ultimately it is a professional requirement/responsibility of the nurse or midwife to make themselves aware of any codes, standards or guidelines that are approved by the Board.

This information will also be included by the Board when these documents are provided to nurses and midwives and when published on the Board’s website.

The Bill enables the registered or enrolled person to be properly informed about the nature of any complaint which allows misunderstandings or misapprehensions to be clarified. Natural justice requires that the person about whom the complaint is made, is given information about the complaint and as a matter of good practice they should also be provided with the allegation made against them.

The Bill makes changes to the process used by the Board in hearing complaints to ensure that the person with the complaint will always be involved in the proceedings and has a right to this. This ensures that the proceedings are transparent from the perspective of the person with the complaint.

The process for the disclosure of the allegation(s) is to be determined by the Board.

The Bill requires the following registers and nurses roll to be kept by the Registrar:

nurses register

nurses roll

midwives register

students register

register of nurses, midwives and students who have been removed from any of the registers or nurses roll.

Nurses, midwives and students are required to have a nominated contact address but this need not be made available to the public. Unlike other health professionals, nurses, midwives and students are predominantly employees of a specified health service and, in the majority of cases, their nominated contact address will be their private home address and not a business or private practice address.

Nurse practitioners will be part of the nurses register. Nurse Practitioners will already be registered as a nurse, and their registration will be endorsed to identify the individual as a nurse practitioner in a particular area of practice.

Enabling the Board to endorse a nurse or midwife’s registration with recognition in a particular area of nursing or midwifery prescribed by the regulations, replaces the provisions in the current Act for separate registers to be established for special practice areas. Currently mental health nurses are registered on the mental health nurses register. The Bill will enable them to be registered on the nurses register and endorsed with recognition in the area of mental health. The title, mental health nurse, will be protected by inclusion in the regulations.

The Bill also provides the capacity for the Board to endorse either a registered nurse or midwife’s registration with the authorisation to prescribe prescription drugs in the ordinary course of their profession. This provision brings the Bill into line with the Controlled Substances Act 1984 which enables a nurse (which includes a midwife under the provisions of the Controlled Substances Act 2004) acting in the ordinary course of their profession to prescribe schedule 4 drugs. It does not represent a change of policy.

The nurse or midwife must satisfy the Board at the time of application that they have met the requirements for endorsement. The Bill also enables the endorsement to be removed should this be necessary.

All the registration Acts include provisions to register students. Since students at various stages of their training work directly with patients or clients in clinical practice settings, registration of nursing and midwifery students will ensure that they are subject to standards, codes of conduct and medical fitness. This Bill provides for the registration of nursing and midwifery students.

The provision that allows the Board to impose conditions if a nurse or midwife has not worked for five years or more has been retained from the current Nurses Act 1999. Nationally, there are differing requirements with some states and territories allowing conditions to be imposed if the nurse or midwife has not worked within a specified period of time, which is similar to that proposed in the Bill. Some states and territories also have the legal authority to 'evaluate or examine' a nurse or midwife’s competence. As COAG has agreed to establish a national registration and accreditation scheme by July 2010 the Government supports retaining the current system rather than moving to a different one at this stage.

The Bill requires nursing and midwifery services providers to adhere to any code of conduct developed by the Board and approved by the Minister. Professional standards do not apply to services providers as they are not nurses or midwives. There is cause for disciplinary action to be taken against a nursing or midwifery services provider if they, or any person employed or engaged by them, has, in connection with the provision of nursing or midwifery care by the provider, engaged in conduct that would, if the person were registered or enrolled, constitute unprofessional conduct. This means that staff of service providers are required to behave in ways which do not compromise the care being provided by the professional staff.

In order to streamline the administrative arrangements that apply to services providers the Bill modifies the requirement in other health practitioner registration Acts to advise the Board of any changes in the people employed by the provider. Because of the large number of services providers who employ nurses or midwives, and the large numbers of nurses and midwives employed, records of registered or enrolled staff will need to be maintained by the provider and made available to the Board if required.

The Bill, in line with the other health practitioner registration Acts, requires a person to answer questions even if that would tend to incriminate them. The information obtained can be used for disciplinary purposes but cannot be used as evidence for criminal proceedings. This clause places emphasis on protecting public health.

The Bill makes it an offence to hinder or obstruct an inspector, use insulting or abusive language to an inspector, fail to comply with a requirement of an inspector or refuse to answer a question.

These provisions do not permit a person to refuse to answer questions until they have appropriate advice or representation available to them. However, in ordinary circumstances, the person under investigation would be given some notice and consequently time to take advice.

Some additional provisions regarding inspectors have been added in response to concerns that have been expressed about the powers of the inspectors. Provisions are included which require the Board to develop guidelines to be followed by inspectors when investigating a matter under the Act. The guidelines must be approved by the Minister for Health who must consult with a range of bodies prescribed in the regulations. The guidelines must be reviewed as soon as possible after they have been in operation for two years and a report laid before Parliament. The expectation is that the Board will authorise inspectors to exercise powers commensurate with their competence, seniority and experience. This Bill makes it clearer that the authorisation of an inspector may be subject to conditions or limitations as the Board sees fit.

The Bill also modifies the current provisions that apply in regard to representative bodies or aggrieved persons directly taking a complaint to the Board. A single Board member may be nominated by the presiding member to determine if a complaint laid in this manner has merit, rather than the Board as constituted for disciplinary proceedings which requires three members. Complaints are rarely laid in this manner however this provision will ensure that they can be managed efficiently and effectively if they are.

The power of the Board to suspend or impose conditions prior to a hearing is a significant power. This power can only be exercised if the Board is of the opinion that it is desirable to do so in the public interest. This power has been included in all the Acts as there are situations where protection of the public requires the immediate suspension of the registered person. The Board can, subject to the legislation, determine its own procedures in relation to closing proceedings if it thinks fit.

The Bill requires the Board to conduct proceedings as expeditiously as possible. This is to ensure that the registered or enrolled person is not unduly penalised by not being able to work, while still ensuring that the public is protected.

This provision provides for a change to the appeal process from the Supreme Court to the Administrative and Disciplinary Division of the District Court.

Transitional provisions have been included in the legislation in relation to the elected Board members. This will avoid the Board having the expense of conducting a further election for Board members in 2009 when one will be held in October 2008 under the provisions of the current Act.

This Bill will provide an improved system for ensuring that South Australians receive high standards of nursing and midwifery care and I commend it to all members.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

3—Interpretation

This clause defines key terms used in the measure.

4—Medical fitness to provide nursing or midwifery care

This clause provides that in making a determination as to a person's medical fitness to provide nursing or midwifery care, regard must be given to the question of whether the person is able to provide the services personally to a patient without endangering the patient's health or safety.

Part 2—Nursing and Midwifery Board of South Australia

Division 1—Continuation of Board

5—Continuation of Board

This clause continues the Nurses Board of South Australia in existence as the Nursing and Midwifery Board of South Australia.

Division 2—Board's membership

6—Composition of Board

This clause provides for the Board to consist of 11 members appointed by the Governor, including 7 nurses or midwives (with 5 being chosen by election, 1 nominated by the Minister and 1 person who teaches nursing or midwifery). The remaining members are to be nominated by the Minister—1 medical practitioner, 1 legal practitioner and 2 other persons. The clause also provides for the appointment of deputy members and makes procedural provisions.

7—Elections and casual vacancies

This clause sets out that, of the 5 members of the Board who are nurses or midwives elected at an election, 3 must be registered nurses, 1 must be an enrolled nurse and 1 a midwife, unless the regulations specify otherwise. The clause also requires an election to be conducted under the regulations in accordance with the principles of proportional representation. It provides for the filling of casual vacancies without the need to hold another election.

8—Terms and conditions of membership

This clause provides for members of the Board to be appointed for a term not exceeding 3 years and to be eligible for re-appointment on expiry of a term of appointment. However, a member of the Board may not hold office for consecutive terms that exceed 9 years in total. The clause sets out the circumstances in which a member's office becomes vacant and the grounds on which the Governor may remove a member from office. It also allows members whose terms have expired, or who have resigned, to continue to act as members to hear part-heard proceedings under Part 4.

9—Presiding member and deputy

This clause requires the Minister, after consultation with the Board, to appoint a nurse or midwife member of the Board to be the presiding member of the Board, and another nurse or midwife member to be the deputy presiding member.

10—Vacancies or defects in appointment of members

This clause ensures acts and proceedings of the Board are not invalid by reason only of a vacancy in its membership or a defect in the appointment of a member.

11—Remuneration

This clause entitles a member of the Board to remuneration, allowances and expenses determined by the Governor.

Division 3—Registrar and staff of Board

12—Registrar of Board

This clause provides for the appointment of a Registrar by the Board on terms and conditions determined by the Board.

13—Other staff of Board

This clause provides for the Board to have such other staff as it thinks necessary for the proper performance of its functions.

Division 4—General functions and powers

14—Functions of Board

This clause sets out the functions of the Board and requires it to perform its functions with the object of protecting the health and safety of the public by achieving and maintaining high professional standards both of competence and conduct by nurses, midwives, students and services providers.

15—Committees

This clause empowers the Board to establish committees to advise the Board or the Registrar, or to assist the Board to carry out its functions.

16—Delegations

This clause empowers the Board to delegate its functions or powers to a member of the Board, the Registrar, an employee of the Board or a committee established by the Board.

Division 5—Board's procedures

17—Board's procedures

This clause deals with matters relating to the Board's procedures such as the quorum at meetings, the chairing of meetings, voting rights, the holding of conferences by telephone and other electronic means and the keeping of minutes.

18—Conflict of interest etc under Public Sector Management Act

This clause provides that a member of the Board will not be taken to have a direct or indirect interest in a matter for the purposes of the Public Sector Management Act 1995 by reason only of the fact that the member has an interest in the matter that is shared in common with persons registered or enrolled under this measure, or a substantial section of such persons.

19—Powers of Board in relation to witnesses etc

This clause sets out the powers of the Board to summons witnesses and require the production of documents and other evidence in proceedings before the Board.

20—Principles governing proceedings

This clause provides that the Board is not bound by the rules of evidence and requires it to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms. It requires the Board to keep all parties to proceedings before the Board properly informed about the progress and outcome of the proceedings.

21—Representation at proceedings before Board

This clause entitles a party to proceedings before the Board to be represented at the hearing of those proceedings.

22—Costs

This clause empowers the Board to award costs against a party to proceedings before the Board and provides for the taxation of costs by a Master of the District Court in the event that a party is dissatisfied with the amount of costs awarded by the Board.

Division 6—Accounts, audit and annual report

23—Accounts and audit

This clause requires the Board to keep proper accounting records in relation to its financial affairs, to have annual statements of account prepared in respect of each financial year and to have the accounts audited annually by an auditor approved by the Auditor-General and appointed by the Board.

24—Annual report

This clause requires the Board to prepare an annual report for the Minister, sets out what the report must contain and requires the Minister to table the report in Parliament.

Part 3—Registration, enrolment and practice

Division 1—Registers and nurses roll

25—Registers and nurses roll

This clause requires the Registrar to keep a nurses register, midwives register, students register, the nurses roll and a register of persons who have been removed from such registers or the nurses roll. The clause specifies the information required to be included in each register and the nurses roll. It also requires the registers and nurses roll to be kept available for inspection by the public and permits access to be made available by electronic means. The clause requires registered or enrolled persons to notify a change of name or nominated contact address within 1 month of the change.

The nurses register and the midwives register are to include relevant qualifications and endorsements.

The clause also sets out procedural and evidentiary matters related to the registers and nurses roll.

Division 2—Registration and enrolment

Subdivision 1—Registration and enrolment

26—Registration on nurses register

This clause provides for full and limited registration of natural persons on the nurses register.

27—Enrolment on nurses roll

This clause provides for full and limited enrolment of natural persons on the nurses roll.

28—Registration on midwives register

This clause provides for full and limited registration of natural persons on the midwives register

29—Registration on students register

This clause requires persons to be registered on the students register before undertaking a course of study that provides qualifications for registration on the nurses or midwives register or the nurses roll, or before providing nursing or midwifery care as part of a course of study related to nursing or midwifery being undertaken outside the State, and provides for full or limited registration of students.

30—Concurrent registration and enrolment

A person may be concurrently registered on more than 1 register under this Act, but must not be concurrently registered on the nurses register and enrolled on the nurses roll.

31—Application for registration or enrolment and provisional registration or enrolment

This clause deals with applications for registration or enrolment. It empowers the Board to require applicants to submit medical reports or other evidence of medical fitness to provide nursing or midwifery care or to obtain additional qualifications or experience before determining an application. It also empowers the Registrar to grant provisional registration or enrolment if it appears likely that the Board will grant an application for registration or enrolment.

32—Removal from register or nurses roll

This clause requires the Registrar to remove a person from a register or the nurses roll on application by the person or in certain specified circumstances (for example, suspension or cancellation of the person's registration or enrolment under this measure).

33—Reinstatement on register or nurses roll

This clause makes provision for reinstatement of a person on a register or the nurses roll. It empowers the Board to require applicants for reinstatement to submit medical reports or other evidence of medical fitness to provide nursing or midwifery care or to obtain additional qualifications or experience before determining an application.

34—Fees and returns

This clause deals with the payment of registration, enrolment, reinstatement and annual practice fees, and requires registered or enrolled persons to furnish the Board with an annual return in relation to the provision of nursing or midwifery care, the undertaking of any course of nursing or midwifery education or training and other matters relevant to their registration or enrolment under the measure. It empowers the Board to remove from a register or nurses roll a person who fails to pay the annual practice fee or furnish the required return.

35—Imposition of conditions if nurse or midwife has not practised for 5 years

Under this clause the Board may impose conditions on a nurse or midwife's registration or enrolment if satisfied that the nurse or midwife has not practised for a period of 5 years or more, including—

a condition restricting the places or times at which the person may provide nursing or midwifery care;

a condition limiting the nursing or midwifery care that the person may provide;

a condition requiring the person to undertake a specified course of education or training, or to obtain specified experience;

a condition requiring that the person be supervised in the provision of nursing or midwifery care by a particular person or by a person of a particular class;

such other conditions as the Board thinks fit.

Subdivision 2—Endorsements of registration

36—Endorsement

This clause provides that a registered nurse may have his or her registration endorsed with recognition as a nurse practitioner in a particular area of practice.

The clause also provides that the registration of a registered nurse or midwife may be endorsed with recognition in a particular area of nursing or midwifery (such areas to be prescribed by regulation) if the nurse or midwife satisfies the Board that he or she has qualifications approved or recognised by the Board for the purposes of the endorsement and has met any requirements determined by the Board to be necessary for the purposes of the endorsement.

The clause also provides that, if the registration of a nurse or midwife is endorsed with an authorisation to prescribe prescription drugs, the nurse or midwife may prescribe prescription drugs while acting in the ordinary course of his or her profession.

37—Application for endorsement

This clause sets out requirements relating to the application for endorsement under this proposed Subdivision.

38—Removal of endorsement

This clause requires the Registrar to remove from a person's registration an endorsement, either on application by the person or in certain specified circumstances (for example, cancellation of the person's endorsement under this measure).

Division 3—Special provisions relating to services providers

39—Information to be given to Board by services providers

This clause requires a services provider to notify the Board of the provider's name and address and the names and addresses of all persons who occupy a position of authority. It also requires the provider to notify the Board of any change in particulars required to be given to the Board and makes it an offence to contravene or fail to comply with the clause. The Board is required to keep a record of information provided to the Board under this clause available for inspection at the office of the Board and may make it available to the public electronically.

40—Records to be kept by services providers

A service provider is required to keep the specified records in relation to the nurses and midwives through whom the provider provides services and to make certain information available to the public.

41—Services providers to be indemnified against loss

A service provider is required to have certain insurance as approved by the Board.

Division 4—Offences

42—Illegal holding out as being registered

It is an offence for a person to hold himself or herself out as a registered nurse, midwife or student or permit another person to do so unless registered on the appropriate register. It is also an offence for a person to hold out another as a registered nurse, midwife or student unless the other person is registered on the appropriate register

43—Illegal holding out as being enrolled

It is an offence for a person to hold himself or herself out as an enrolled nurse, or permit another person to do so, unless enrolled on the nurses roll. It is also an offence for a person to hold out another as an enrolled nurse unless the other person is enrolled on the nurses roll.

44—Illegal holding out concerning limited registration or enrolment, conditions or authorisation

It is an offence for a person whose registration or enrolment is limited or conditional to hold himself or herself out, or permit another person to hold him or her out, as having registration or enrolment that is not subject to a limitation or condition. It is also an offence for a person to hold out another whose registration or enrolment is limited or conditional as having registration or enrolment that is not subject to a limitation or condition.

Similar offences are provided in relation to being authorised under proposed section 27(3) (which allows an enrolled nurse to provide nursing care without the supervision of a registered nurse or midwife).

45—Illegal holding out as having endorsed registration

It is an offence for a person to hold himself or herself out, or permit another person to hold him or her out, as having registration that is subject to an endorsement if the registration is not, in fact, subject to the endorsement. It is also an offence for a person to hold out another as having registration that is subject to an endorsement if the registration is not, in fact, subject to the endorsement.

46—Use of certain terms or descriptions prohibited

This clause creates a number of offences prohibiting a person who is not appropriately registered or enrolled from using certain words or their derivatives to describe himself or herself or services that they provide, or in the course of advertising or promoting services that they provide.

47—Improper directions to registered or enrolled persons

It is an offence for a person who provides nursing or midwifery care through the instrumentality of another person to direct or pressure the person to engage in unprofessional conduct. It is also an offence for a person occupying a position of authority in a corporate or trustee services provider to direct or pressure a nurse or midwife through whom the provider provides nursing or midwifery care to engage in unprofessional conduct.

48—Offence to contravene conditions of registration or enrolment

This clause makes it an offence for a person to contravene or fail to comply with a condition of his or her registration or enrolment, and provides a defence in the case of where the contravention etc occurred in relation to an emergency.

49—Procurement of registration or enrolment by fraud

This clause makes it an offence for a person to fraudulently or dishonestly procure registration or enrolment, or reinstatement of registration or enrolment, or endorsement of registration (whether for himself or herself or another person).

50—Nurse or midwife to produce certificate of registration or enrolment

A nurse or midwife is required to produce his or her certificate of registration or enrolment to—

an inspector; or

a person to whom the nurse or midwife has provided, or is providing, nursing or midwifery care; or

a services provider who has provided, or who is proposing to provide, nursing or midwifery care through the nurse or midwife; or

any other person prescribed by the regulations.

51—Report to Board of cessation of status as student

The person in charge of an educational institution is required to inform the Board when a student completes or ceases to be enrolled in, a course of study at that institution providing qualifications for registration or enrolment (as is the student).

Part 4—Investigations and proceedings

Division 1—Preliminary

52—Interpretation

This clause provides that in this Part the terms occupier of a position of authority, services provider and person registered or enrolled under this Act includes a person who is not but who was, at the relevant time, an occupier of a position of authority, a services provider, or a registered or enrolled person.

53—Cause for disciplinary action

This clause specifies what constitutes proper cause for disciplinary action against a person registered or enrolled under the measure, a services provider or a person occupying a position of authority in a corporate or trustee services provider.

Division 2—Inspectors

54—Authorisation of inspectors

This clause enables the Board to authorise persons to be inspectors for the purposes of this measure, and further provides that such an authorisation may be made subject to specified conditions or limitations.

55—Guidelines

This clause requires the Board to prepare guidelines to be followed by inspectors when investigating a matter under this Act. The Minister must approve the guidelines. The clause also makes provision about public access to the guidelines.

56—Review of guidelines

The Minister must, as soon as practicable after the second anniversary of the commencement of this section, conduct a review in relation to the operation and effectiveness of the guidelines prepared and approved under proposed section 55, must prepare a report based on the review and must then, within 12 sitting days after the report is prepared, cause copies of the report to be laid before each House of Parliament.

57—Powers of inspectors

This clause sets out the powers of inspectors to investigate suspected breaches of the Act and certain other matters.

Proposed subsection (6) also requires inspectors exercising the relevant powers to do so in accordance with the guidelines prepared by the Board and approved by the Minister under proposed section 55.

58—Offence to hinder etc inspector

It is an offence for a person to hinder an inspector, use certain language to an inspector, refuse or fail to comply with a requirement of an inspector, refuse or fail to answer questions to the best of the person's knowledge, information or belief, or falsely represent that the person is an inspector.

Division 3—Proceedings before Board

59—Obligation to report medical unfitness or unprofessional conduct of registered or enrolled persons

This clause requires certain classes of persons to report to the Board if of the opinion that a person registered or enrolled under the measure is or may be medically unfit to provide nursing or midwifery care. It also requires services providers and exempt providers to report to the Board if of the opinion that a person registered or enrolled under the measure through whom the provider provides nursing or midwifery care has engaged in unprofessional conduct. The Board must cause reports to be investigated.

60—Medical fitness of registered or enrolled persons

This clause empowers the Board to make an order suspending the registration or enrolment of a person or imposing conditions of registration or enrolment restricting practice rights or requiring the person to undergo counselling or treatment or enter into any other undertaking. The Board may make an order if, on application by certain persons or after an investigation under the measure, and after due inquiry, the Board is satisfied that the person is medically unfit to provide nursing or midwifery care and that it is desirable in the public interest.

61—Inquiries by Board as to matters constituting grounds for disciplinary action

This clause requires the Board to inquire into a complaint relating to matters alleged to constitute grounds for disciplinary action against a person (unless, in the case of a complaint laid by or on behalf of an aggrieved person the Board considers the complaint to be frivolous or vexatious).

If after conducting an inquiry, the Board is satisfied that there is proper cause for taking disciplinary action, the Board can censure the person, order the person to pay a fine of up to $5 000 or prohibit the person from carrying on business as a services provider or from occupying a position of authority in a corporate or trustee services provider. If the person is registered or enrolled, the Board may impose conditions on the person's right to provide nursing or midwifery care, cancel an endorsement of the person's registration, suspend the person's registration or enrolment for up to 1 year, cancel the person's registration or enrolment, or disqualify the person from being registered or enrolled. In the case of services providers, the Board can prohibit the person from carrying on business as a services provider, or from occupying a position of authority in corporate or trustee services providers.

If a person fails to pay a fine imposed by the Board, the Board may remove them from the appropriate register or the nurses roll.

62—Contravention of prohibition order

It is an offence to contravene a prohibition order made by the Board or to contravene or fail to comply with a condition imposed by the Board.

63—Register of prohibition orders

This clause requires the Registrar to keep a register of prohibition orders made by the Board. The register must be kept available for inspection at the office of the Registrar and may be made available to the public electronically.

64—Variation or revocation of conditions imposed by Board

This clause empowers the Board, on application by a registered or enrolled person, to vary or revoke a condition imposed by the Board on his or her registration or enrolment.

65—Constitution of Board for purpose of proceedings

This clause sets out how the Board is to be constituted for the purpose of hearing and determining disciplinary proceedings under proposed Part 4 of the measure. Additional members may be appointed for the purpose. The Board is to be constituted of 3 members selected by the presiding member. In proceedings directly related to the practice of midwifery, 1 must be a midwife and, in other proceedings, 1 must be a nurse.

66—Provisions as to proceedings before Board

This clause deals with the conduct of disciplinary proceedings by the Board. The Board may make an interim order suspending registration or enrolment or imposing conditions restricting practice rights pending hearing and determination of the proceedings if the Board is of the opinion that it is desirable to do so in the public interest.

Proceedings under the proposed Part must be conducted as expeditiously as possible (and must, if the Board has taken action under proposed subsection (5), be heard and determined as a matter of urgency).

Part 5—Appeals

67—Right of appeal to District Court

This clause provides a right of appeal to the District Court against certain acts and decisions of the Board.

68—Operation of order may be suspended

This clause empowers the Board or the Court to suspend the operation of an order made by the Board where an appeal is instituted or intended to be instituted.

69—Variation or revocation of conditions imposed by Court

This clause empowers the District Court, on application by a registered or enrolled person, to vary or revoke a condition imposed by the Court on his or her registration or enrolment.

Part 6—Miscellaneous

70—Exemptions

The Minister may, after consulting the Board, grant exemptions from specified provisions of the measure by notice in the Gazette.

71—Statutory declarations

This clause empowers the Board to require information provided to the Board to be verified by statutory declaration.

72—False or misleading statement

This clause makes it an offence for a person to make a false or misleading statement in a material particular (whether by reason of inclusion or omission of any particular) in information provided under the measure.

73—Registered or enrolled person must report medical unfitness to Board

This clause requires a registered or enrolled person who becomes aware that he or she is or may be medically unfit to provide nursing or midwifery care to immediately give written notice of that fact to the Board.

74—Information relating to claim against registered or enrolled person or services provider to be provided

This clause requires a person against whom a claim is made for alleged negligence committed by a registered or enrolled person in the course of providing nursing or midwifery care to provide the Board with prescribed information relating to the claim. It also requires a services provider to provide the Board with prescribed information relating to a claim made against the provider for alleged negligence by the provider in connection with the provision of nursing or midwifery care.

75—Victimisation

This clause prohibits a person from victimising another person (the victim) on the ground, or substantially on the ground, that the victim has disclosed or intends to disclose information, or has made or intends to make an allegation, that has given rise or could give rise to proceedings against the person under this measure. Victimisation is the causing of detriment including injury, damage or loss, intimidation or harassment, threats of reprisals, or discrimination, disadvantage or adverse treatment in relation to the victim's employment or business. An act of victimisation may be dealt with as a tort or as if it were an act of victimisation under the Equal Opportunity Act 1984.

76—Self-incrimination

This clause provides that if a person is required to provide information or to produce a document, record or equipment under this measure and the information, document, record or equipment would tend to incriminate the person or make the person liable to a penalty, the person must nevertheless provide the information or produce the document, record or equipment, but the information, document, record or equipment so provided or produced will not be admissible in evidence against the person in proceedings for an offence, other than an offence against this measure or any other Act relating to the provision of false or misleading information.

77—Punishment of conduct that constitutes an offence

This clause provides that if conduct constitutes both an offence against the measure and grounds for disciplinary action under the measure, the taking of disciplinary action is not a bar to conviction and punishment for the offence, and conviction and punishment for the offence is not a bar to disciplinary action.

78—Vicarious liability for offences

This clause provides that if a corporate or trustee services provider or other body corporate is guilty of an offence against this measure, each person occupying a position of authority in the provider or body corporate is guilty of an offence and liable to the same penalty as is prescribed for the principal offence unless it is proved that the person could not, by the exercise of reasonable care, have prevented the commission of the principal offence.

79—Application of fines

This clause provides that fines imposed for offences against the measure must be paid to the Board.

80—Board may require medical examination or report

This clause empowers the Board to require a registered or enrolled person or a person applying for registration or enrolment or reinstatement of registration or enrolment to submit to an examination by a health professional or provide a medical report from a health professional, including an examination or report that will require the person to undergo a medically invasive procedure. If the person fails to comply the Board can suspend the person's registration or enrolment until further order.

81—Ministerial review of decisions relating to courses

This clause gives a provider of a course of education or training the right to apply to the Minister for a review of a decision of the Board to refuse to approve the course for the purposes of the measure or to revoke the approval of a course.

82—Confidentiality

This clause makes it an offence for a person engaged or formerly engaged in the administration of the measure or the repealed Act to divulge or communicate personal information obtained (whether by that person or otherwise) in the course of official duties except—

as required or authorised by or under this measure or any other Act or law; or

with the consent of the person to whom the information relates; or

in connection with the administration of this measure or the repealed Act; or

to an authority responsible under the law of a place outside this State for the registration or licensing of persons who provide psychological services, where the information is required for the proper administration of that law; or

to an agency or instrumentality of this State, the Commonwealth or another State or a Territory of the Commonwealth for the purposes of the proper performance of its functions.

However, the clause does not prevent disclosure of statistical or other data that could not reasonably be expected to lead to the identification of any person to whom it relates. Personal information that has been disclosed for a particular purpose must not be used for any other purpose by the person to whom it was disclosed or any other person who gains access to the information (whether properly or improperly and directly or indirectly) as a result of that disclosure.

83—Service

This clause sets out the methods by which notices and other documents may be served.

84—Evidentiary provision

This clause provides evidentiary aids for the purposes of proceedings for offences and for disciplinary proceedings.

85—Regulations

This clause empowers the Governor to make regulations in relation to the measure.

Schedule 1—Repeal and transitional provisions

This Schedule repeals the Nurses Act 1999 and makes transitional provisions with respect to the Board (including by allowing the most recently elected nurses and midwives to serve out the remainder of their terms), registrations and enrolments and the completion of proceedings commenced but not completed under the repealed Act.

Debate adjourned on motion of Hon. J.M.A. Lensink.

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