Nurses Misconduct

Table of Contents

Complaints

There are grounds on which the Board or any person may make a complaint to the Preliminary Proceedings Committee concerning a registered nurse or a registered midwife.

The grounds are:

professional misconduct,
poor professional performance,
inappropriate behaviour,
a relevant medical disability,
a failure to comply with a relevant condition,
a failure to comply with an undertaking or to take any action specified in a consent given in response to a request
a contravention of a provision of this Act (including regulations and rules),
an irregularity in relation to the custody, prescription of supply of a controlled drug under the Misuse of Drugs Act 1977 and 1984 or another drug that is likely to be abused, or
a conviction for an indictable offence in the State or in another jurisdiction.

The Act provides for keeping the complainant informed of decisions taken and for the use of the services of a person appointed to assist with the investigation. Where the complaint relates to a conviction on indictment, it is referred immediately to the Board which may decide, if appropriate, to provision cancel the registration of the person, or refer the matter back to the Preliminary Proceedings Committee.

For complaints after the commencement date of the 2020 Act, there is no requirement for one nurse and one midwife to sit on the Preliminary Proceedings Committee and the Fitness to Practise Committee. A new subsection is included to provide for subcommittees of the Preliminary Proceedings Committee and the Fitness to Practise Committee.

Investigation

The chief executive officer can investigate complaints. It also provides that if the chief executive officer is absent or the position is vacant, another employee can be designated chief executive officer. The chief executive officer can delegate any of his or her functions to a member of staff and revoke a delegation.

The Board may appoint persons, including members of its staff, to assist the Preliminary Proceedings Committee in the investigation of a complaint. The functions to be undertaken by and the powers of such persons are outlined. The Board shall provide a warrant to any such persons which must be produced for inspection on request.

There is a Preliminary Proceedings Committee to consider a complaint. Where appropriate, it may inform the complainant that the complaint is more proper to the procedures of another body or authority, including the complaints procedures of the Health Service Executive under the Health Act 2004. There are procedures to be undertaken by the Committee including notifying the complaint to the relevant nurse or midwife.

The Committee shall consider whether the complaint is trivial or vexatious, without substance or in bad faith. It provides that where a complaint is withdrawn, the committee may proceed or decide that no further action should be taken, subject to the Board’s agreement. The Committee will have the power to compel the production of records for the purpose of its investigations.

The Board may apply ex parte to the High Court to suspend the registration of a nurse or midwife where it is considered necessary to protect the public. Such applications are to be heard in private, unless the Court decides otherwise. The Court may decide to suspend the registration or give any other direction which the Court may decide.

The Preliminary Proceedings Committee shall inform the Board where it considers no further action is necessary or that the complaint relates to another body or authority or to a matter of professional competence or could be resolved by mediation.

The Board may decide that the matter should not be pursued further or direct that the complainant should be referred to another body or authority or refer information to another body in accordance with a co-operation agreement or refer the complaint to a Professional Competence scheme or for resolution by mediation or direct that further action should be taken by the Committee. The nurse or midwife and the complainant must be kept informed as appropriate.

The Board may develop and publish guidance on the resolution of complaints by mediation or other informal means. Resolution of a complaint by mediation or other means can only be undertaken with the consent of the complainant and the nurse or midwife and cannot be resolved by the payment of any financial compensation. Matters discussed may not be used for the purposes of disciplinary, civil or criminal proceedings.

The Preliminary Proceedings Committee may, if it considers that a prima facie case exists or if the Board directs further action be taken, refer a complaint to the Fitness to Practise Committee. The Preliminary Proceedings Committee may, in certain circumstances, change the grounds of the complaint from the original grounds to one or more other grounds.

Fitness to Practise Committee

The Chief Executive Officer is to notify the registered nurse or midwife of the referral of the complaint to the Fitness to Practise Committee and the nature of the matter to be the subject of the inquiry, including the evidence and the date, time and place of the hearing in sufficient time for the nurse or midwife to prepare for the hearing.

Witnesses, including the complainant, and the nurse or midwife, may request that some or all of the hearing be held in private, if reasonable and sufficient cause can be shown. A Fitness to Practise hearing shall be held in public unless the Committee decides, on foot of a request, that some or all of the hearing should be held otherwise than in public. There are provisions for the conduct of the hearing including presentation of evidence, oaths and cross-examination.

For the purposes of an inquiry the Fitness to Practise Committee has all the powers, rights and privileges vested in the High Court or a Judge of that Court that relate to enforcing witness attendance, examining witnesses on oath and compelling the production of records.

Subject to any rules in force and to fair procedures, the committee may receive evidence orally before the committee, by affidavit or by live video link, a video recording or a sound recording or other mode of transmission.

Witnesses before the committee have the immunities and privileges of a witness before the High Court. It is an offence for a person to fail to answer a summons to attend, refuse to take an oath, refuse to produce a record or refuse to answer a question. The maximum penalty on summary conviction is a fine of €5,000. The provision also protects the medical records of a patient from production for the purposes of an inquiry unless the patient has consented to production or the committee has directed in writing the nurse or midwife to make the records available.

The Committee may, with the Board’s agreement, during an inquiry, request the nurse or midwife to undertake not to repeat the conduct, undertake to be referred to a professional competence scheme, undertake steps specified including education or training, consent to undergo medical treatment or

consent to being censured by the Board. Where a required undertaking or consent is given, the inquiry into the complaint shall be considered to be completed. Where such an undertaking or consent is not given, the Committee may proceed with the inquiry.

If a complaint is withdrawn while under consideration by the Fitness to Practise committee, the committee may, with the agreement of the Board, decide to take no further action or proceed as if the complaint had not been withdrawn.

The Fitness to Practise Committee to submit a report in writing to the Board on its findings following an inquiry and will specify the Committee’s findings as to whether any allegation is proved, whether on the grounds on which the complaint was made or on any other grounds.

The Board, on receipt of the report where there is an undertaking or consent to impose the measures, dismiss the complaint where no allegation is proved or imposes a sanction as appropriate where any allegation is proved.

Sanctions

The following sanctions to be imposed:

an advice or admonishment, or a censure, in writing,
a censure in writing and a fine not exceeding €2,000,
attachment of conditions to registration,
transfer of registration to another division of the register,
suspension of registration,
cancellation of registration,
prohibition from applying for restoration of registration for a specified period.

Where there is an undertaking or consent, the measures shall be those in the report. There are matters supplementary to the sanctions, such as the amount of a fine, the details of conditions to be attached to registration, the period of suspension etc.

There are matters to be considered in relation to a proposed sanction of cancellation of registration pursuant to a conviction for an indictable offence.

The Board is to notify a registered nurse or midwife of the sanction it has decided to impose and the rights of the nurse or midwife to appeal the decision. The decision must also be notified to the complainant.

Apply to Court

The High Court is to confirm the decision of the Board to impose a sanction (other than advice, admonishment or censure in writing alone), on an appeal against the Board’s decision or an application for confirmation by the Board to the Court.

There is the right of a nurse or midwife to appeal the decision of the Board to the High Court within 21 days. The Court may consider any evidence adduced or argument made to the Fitness to Practise Committee or otherwise and may decide to confirm the decision of the Board or cancel it and replace it with another decision to impose no sanction or a different sanction. The Court may make a direction as to costs.

The Board is to make an application to the Court, on an ex parte basis, for confirmation of its decision where no appeal is made. The Court to consider the evidence of any person of good standing in the nursing or midwifery profession as to what constitutes professional misconduct, poor professional performance or inappropriate behaviour in relation to the practice of that profession. Provision for appeal to the Supreme Court on a specified question of law is provided for.

The Board is to notify the nurse or midwife of any conditions attached, the transfer of registration to another division of the register, or the suspension or cancellation of registration as confirmed by the High Court.

Registration Issues

The Board may remove a person’s registration where an appropriate fee has not been paid, unless a complaint against that person has not been disposed of. The Act provides for the restoration of registration removed where the fee is paid within 6 months.

There are circumstances in which a person whose registration has been cancelled may be restored to the register, including the right of the Board to attach conditions to registration it proposes to restore.

The Board, may in certain circumstances, remove all or any conditions attached to a nurse or midwife’s registration or to refuse to do so.

There is a right of a nurse or midwife to appeal against the decision of the Board not to restore registration or to remove conditions to the High Court. The Court may confirm the Board’s decision, or make another order, including the attachment of conditions, removal of conditions or replacement of conditions to registration or restore the registration with or without conditions attaching. The Court may give directions to the Board and make an order as to costs.

There is notification to the Minister, the Health Service Executive and other employers regarding the imposition of sanctions on a nurse or midwife by the Board or in another jurisdiction, where known. It also provides for the Board to notify a registration body in another jurisdiction of sanctions imposed by the Board on a nurse or midwife.

The Board may advise the public, where it considers it to be in the public interest, when a sanction imposed takes effect or when a sanction imposed in another jurisdiction takes effect on a nurse or midwife and may publish a transcript of all or part of the proceedings of the Fitness to Practise inquiry.

2020 Act Amendments

A nurse or midwife must give the Board annually details of any proceedings in the State or another jurisdiction which might result in the person being restricted or prohibited from working as a nurse or midwife or working in one or more kind of health or social care profession, or if the proceeding could result in a conviction. They also need to provide details within 3 months of the case concluding.

The Board may get information from another health or social care regulatory body in or outside the State in relation to a nurse or midwife who has been refused registration; has been suspended; has had conditions placed on his/her registration; or has a conviction; or may get information relating to the registrant’s qualification for registration.

New Complaint Procedures 2020

Under the 2011 Act, complaints were made to the Preliminary Proceedings Committee. The 2020 Act provides that complaints are made to the chief executive officer. It also inserts two new grounds of complaint. These new grounds are:

prohibition on providing one or more kind of health or social care in the State or another jurisdiction; and
The restriction on providing one or more kinds of health or social care in the State or another jurisdiction.

The chief executive officer, in relation to a complaint, may request the Garda Síochána to provide information on a nurse or midwife’s criminal record. The chief executive officer may also request the Registrar of a Court to provide a certificate of conviction.

The chief executive officer need not proceed with a complaint where he/she is satisfied that the complaint was not made in good faith, or the complaint is frivolous or vexatious. The chief executive officer can tell other parties to the complaint of decisions made. The section also provides that where a complaint was made before this section was commenced, the complaint will be dealt with under the old provision.

Authorised officers may be appointed by the chief executive officer to investigate complaints and to assist the chief executive officer and the Preliminary Proceedings Committee in relation to complaints. The chief executive officer will specify the functions of authorised officers.

The functions of persons assisting committees (authorised officers) was amended to include investigating complaints, reporting to the chief executive officer rather than to the Preliminary Proceedings Committee; to request persons to provide the chief executive officer rather than the Preliminary Proceedings Committee with statements; and to include the chief executive officer in relation to advice and assistance. Authorised officers will be provided with a warrant which will specify the officer’s functions.

Investigation of complaints 2020

The chief executive officer will, following receipt of a complaint, have the complaint investigated and will appoint an authorised officer to investigate the complaint. The authorised officer will investigate the complaint and prepare a report for the chief executive officer.

The authorised officer may require the complainant to verify or provide more information regarding a complaint. The chief executive officer may refuse to consider a complaint if the complainant does not verify or provide more information as requested. The nurse or midwife who is the subject of the complaint will be notified of the complaint by the authorised officer, who can require the nurse or midwife to provide information. The nurse or midwife may provide the authorised officer with any information that needs to be considered by the Preliminary Proceedings Committee or Fitness to Practise Committee.

If a complaint is withdrawn, the chief executive officer can decide whether to proceed or that no further action is to be taken. The chief executive officer can compel the production of records and can get medical records of a patient.

The 2020 Act provides for the investigation and report by the chief executive officer. It deletes the functions of the Preliminary Proceedings Committee in relation to investigating complaints. Instead, the Committee will consider the investigation report and any other information from the chief executive officer. If the Committee needs more information, it shall advise the chief executive officer of that and the chief executive officer will seek the information or further investigate and give it to the Committee.

If a complaint is withdrawn while being considered by the Committee, the Board’s agreement is no longer required in relation to the Committee’s decision to proceed or not.

Fitness to Practise Stage 2020

The 2011 Act provides for undertakings and consents at Fitness to Practise stage. The 2020 Act inserts a similar provision at Preliminary Proceedings Committee stage. The Preliminary Proceedings Committee can request the nurse or midwife not to repeat the conduct; to demonstrate her or his competencies; to take such steps as may be specified by the Board which could include taking a course of education or training or gaining clinical experience; to undergo medical treatment; or to consent to being censured by the Board.

If the nurse or midwife agrees, then the investigation into the complaint is considered completed and the complaint is not referred to the Fitness to Practise Committee. If the nurse or midwife refuses the request, then the Preliminary Proceedings Committee proceeds as if the request was not made.

The Fitness to Practise Committee may order that some or all of the information regarding a hearing should not be published. Information can be disclosed if it does not identify anyone. A person is guilty of an offence if they contravene this.

The 2020 Act

removes the requirement for the Board’s agreement for the Fitness to Practise Committee to request an undertaking or consent.
removes the requirement for the Board’s agreement to the Committee’s decision to either continue or not with a complaint when a complaint is withdrawn.

Measures to be taken by Board after receiving report 2020

If an undertaking/consent was given to the Preliminary Proceedings Committee, the measures taken by the Board are those contained in the report from the Preliminary Proceedings Committee.

A nurse/midwife who had a sanction of advice, admonish or a censure in writing imposed is notified of their right to appeal. Sanctions which are part of an undertaking/consent agreed by the nurse/midwife cannot be appealed.

Confirmation by the Court is required for the minor sanctions of advice, admonishment or censure in writing. Sanctions which are part of an undertaking/consent agreed by the nurse or midwife do not require confirmation by the Court.

There is a right of appeal of minor sanctions of advice, admonishment or a censure in writing. Sanctions which are part of an undertaking/consent agreed by the nurse or midwife cannot be appealed.

There is provision for confirmation by the Court of the minor sanctions of advice, admonishment or a censure in writing (other than sanctions which are part of an undertaking/consent agreed by the nurse or midwife). It also provides for the Court to direct who bears the cost of the confirmation.

The HSE will be notified of the minor sanctions of advice, admonishment or a censure in writing. In relation to sanctions imposed by other states, the Board shall notify the HSE and the employer if it is in the public interest. If the Board believes that the person is registered in another country and that country may not be aware of the sanctions imposed, the Board can notify the relevant body in that country. In relation to sanctions imposed by a third country, the Board can, if it is in the public interest, notify another country where the person is registered.

All sanctions imposed by the Board are published. Formerly the sanction of advice and admonishment are not published, and the other sanctions are only published if in the public interest. In relation to measures imposed by other countries, these are published if it is in the public interest. In relation to publication of the transcript, the requirement to consult with the Fitness to Practise Committee is removed.

Non-Registered

The chief executive officer investigates cases in relation to a person who is not registered as a nurse or midwife but who claims to be or who is practising nursing or midwifery in contravention of this Act.

Evidence of proceedings in relation to a registrant being prohibited or restricted from providing one or more kind of health or social care or having been convicted in the State or another jurisdiction, can be admissible as evidence of the facts stated in the documents.