The Nurses and Midwives Act 2011 is designed to update provisions relating to the regulation of nurses and midwives by the regulatory body and to enhance the protection of the public in its dealing with these professions.
Unregistered nurses and midwives may not practise nursing or midwifery or advertise that they practise that profession. It also protects the title of advanced nurse practitioner, advanced midwife practitioner, nurse practitioner and midwife practitioner.
A person is prohibited from attending a woman in childbirth for payment, unless the person is a midwife with adequate indemnity insurance, a registered medical practitioner or a person undergoing training to be a medical practitioner or training as a midwife or undergoing training in obstetrics. It states that it is not an offence if the person attends in an emergency situation.
It is an offence to contravene this section. Penalties for summary convictions are a maximum fine of €5,000 and/or 6 months imprisonment. Penalties on convictions on indictment are, for a first offence, a maximum fine of €65,000 and/or 5 years imprisonment and for a subsequent offence, a maximum fine of €160,000 and/or 10 years imprisonment.
A person does not commit an offence in emergency situations where first aid is provided or where a person is in the State for humanitarian purposes and for less than 30 days and who is practising nursing or midwifery in accordance with a permit issued by the Board for this purpose.
The Minister may, after consulting with the Board or following a recommendation by the Board, make regulations to designate titles which may only be used by registered nurses and midwives or certain specified classes of registered nurses and midwives. Any such action shall be subject to prior consultation with interested persons, organisations or bodies and must be in the public interest. Only persons entitled to use designated titles may do so.
There are offences and penalties relating to registration, including contravening relating to the practise of nursing or midwifery or relating to the unauthorised use of a designated title. It will be an offence to falsely represent oneself as a registered nurse or midwife or falsely represent oneself as registered in a particular division of the register or to make a false declaration for the purpose of obtaining registration or to help another person make a false declaration.
There are penalties for summary convictions which are a maximum fine of €5,000 and/or 6 months imprisonment. Penalties on convictions on indictment are, for a first offence, a maximum fine of €65,000 and/or 5 years imprisonment and for a subsequent offence, a maximum fine of €160,000 and/or 10 years imprisonment. Provisions for the awarding of costs are included.
A nurse or midwife who is not registered cannot charge or recover fees for nursing or midwifery services provided while the nurse or midwife was unregistered.
The Act establishes three registers. The register of nurses and midwives, the candidate register and the AMP/ANP posts register which may be maintained in paper or electronic format. The register of nurses and midwives will include the names and qualifications of registered nurses and midwives and will consist of at least four divisions — the nurses division, the midwives division, the advanced nurse practitioners division, the advanced midwife practitioners division.
The Board can create other divisions by rule. The candidate register will include the name and details of all candidates who are pursuing education and training leading to first time registration with the Board. It will consist of at least two divisions, the nurse candidate division and the midwife candidate division.
The AMP/ANP post register will contain the names and details of advanced nurse practitioner posts and advanced midwife practitioner posts and any other information required by rules. It will consist of at least two divisions, the advanced nurse practitioners posts division and the advanced midwife practitioners posts division. It provides for the Board’s and the individual’s responsibilities in relation to the maintenance of the registers.
There was provision for the transition of registration from the register of nurses under the Nurses Act 1985 to the new nurses and midwives register and provides for accredited posts to transfer to the AMP/ANP posts register. The Minister shall specify the date on which the new registers are to be established.
There is provision for registration applications by nurses and midwives. It also provides for annotation of registration in accordance with Board rules.
There is provision for registration in the advanced nurse practitioner division or the advanced midwife practitioner division of the register where the nurse or midwife meets the standards and criteria set by the Board and who is employed, or has an offer of employment, in a registered advanced nurse practitioner post or registered advanced midwife practitioner post. It also provides for the removal of registration in these divisions where the nurse or midwife no longer meets the criteria or is no longer employed in the registered post.
There is a candidate register of persons who are pursuing the requirements for first time registration in the register of nurses and midwives. It also provides for the removal of registration in the candidate register where the person is awarded a qualification leading to registration in the register of nurses and midwives or where the person ceases to be qualified to be registered.
There is a system for the registration of advanced nurse practitioner posts and advanced midwife practitioner posts where the Health Service Executive or other service provider applies and where the post meets the standards and criteria specified by the Board. It also provides for the removal of posts where the Health Service Executive or service provider applies to have a post removed or where the post no longer meets the standards or criteria specified.
There are procedures for a registered nurse or midwife to apply to have his or her name removed from the register. The Board shall not consider such an application where the registered nurse or midwife is the subject of an unresolved complaint or has been convicted of an indictable offence until the Board decides whether such registration should be cancelled.
The Board may remove from the register a nurse or midwife who is suffering from an illness or condition of a permanent or terminal nature which renders their practice unsafe and where he or she is unable to request such removal due to the illness or condition. There is provision for the declaration of relevant medical disabilities by applicants for registration and for the attachment of conditions to the registration where it is in the interest of public safety. In the situations where conditions are to be attached and the nurse or midwife agrees to these conditions, the Board will register the nurse or midwife as appropriate.
The Board may refuse registration by the Board on the grounds of the unfitness of a nurse or midwife to practise nursing or midwifery. Such a decision may be appealed to the High Court, which may confirm the decision or cancel it and replace it with another decision, including the attachment of conditions to registration. The Court may direct how the costs of the appeal are to be borne.
The Board is to keep the registers correct and up to date. It also provides for registered nurses and midwives to notify the Board of absence from the State for more than 12 months and to notify the Board of material matters which could affect the continuation of his or her registration within 30 days. These matters include imposition of sanctions by a regulatory body in another jurisdiction and also include any conviction of a criminal nature.
Failure to notify the Board is sufficient grounds for a complaint to be made to the Preliminary Proceedings Committee. There is provision for publication of an up-to-date version of the registers no less frequently than once a year. Personal details of nurses and midwives, in the interests of security, should be protected from disclosure.
2020 Act Changes
The Board may charge a fee for recognition of a qualification.
A nurse or midwife may apply to have their registration removed. Formerly a nurse or midwife could not be removed from the register if there was a complaint against the nurse or midwife which had not been finalised. Registration may be removed if it is in the public interest. If the nurse or midwife seeks to be restored to the register, the Board does not have to restore registration if it is satisfied that the nurse or midwife is not a fit and proper person.
The 2011 Act provides that conditions can be attached to registration where a person has a relevant medical disability, i.e., which impairs their ability to practise nursing or midwifery or if the nurse or midwife develops a medical disability. Conditions can be attached where any material matter has occurred, i.e., if they have been refused registration; have been suspended or removed from registration; had conditions imposed in relation to working in any health or social care profession; or if the person has a conviction in the State or another jurisdiction.
Board decisions may be appealed to the High Court. These are decisions to refuse to recognise a qualification; to refuse to register a person; to register in a division other than the division applied for; to attach conditions to the registration; or to refuse to restore registration. The person has three months to appeal a decision and the Court can either confirm the decision; cancel the decision and replace with another decision; recognise the qualifications; register or restore registration with or without conditions in the division the Court considers appropriate; remove or replace conditions; or require the Board to reconsider a decision or give the Board directions. The Court can direct how costs of the appeal are to be borne.
There is an appeal by candidates of Board decisions regarding a decision to refuse to register or restore registration.
Education and Training
The Health Service Executive has duties with regard to nursing and midwifery education and training. The Health Service Executive shall facilitate, as far as practicable, the education and training of candidates who are pursuing education and training leading to first time registration with the Board, in in accordance with the Health Act 2004.
In relation to specialist nursing and midwifery education and training, the Health Service Executive shall promote and co-ordinate their development in co-operation with the Board and the nursing and midwifery training bodies. It shall also undertake appropriate workforce planning in order to meet the needs of nursing and midwifery specialist staffing and training needs of the public health service. It must advise the Minister on these matters, including related financial matters.
The Minister may request information on the Health Service Executive’s functions under this Act by notice given in writing and the Health Service Executive shall carry out any other functions assigned to it by the Minister in relation to nursing and midwifery education and training.
The Board has duties with regard to nursing and midwifery education and training. The Board shall set and publish standards of education and training for first time registration and post-registration specialist nursing and midwifery. It shall approve programmes and bodies which may deliver such programmes of nursing and midwifery education and training and inspect places in the State where training is provided for the purposes of monitoring adherence to the nursing and midwifery education and training standards. The Board must prepare and publish guidelines for bodies approved to deliver education programmes on ethical standards and behaviour appropriate for nurses, midwives and candidates.
The bodies approved under the Nurses Act 1985 to be deemed to be approved for the purposes of the 2011 Act unless the Board determines otherwise. The Board may recognise a nursing or midwifery qualification awarded in a third country as equivalent to a qualification for first time registration.
The Board shall prepare guidelines on ethical matters relating to the acceptance or otherwise of non-Exchequer funding offered or provided in relation to nursing and midwifery education and training for registration purposes.
The Board, in consultation with the Health Service Executive, is also given a role in relation to the provision of career information on nursing and midwifery. A body which has been refused approval by the Board for nursing and midwifery education and training to appeal to the Court against the Board’s decision.
Maintenance of Competence
It is the duty of registered nurses and midwives to maintain their professional competence on an ongoing basis. It also provides that a nurse or midwife shall demonstrate competence when required by the Board and to co-operate with any requirements imposed by rules. It is the duty of registered nurses and midwives to demonstrate competence to the satisfaction of the Board.
The Board may require a nurse or midwife who fails to demonstrate competence to attend a course or courses of further education or training. It also provides for the Board to make a complaint to the Preliminary Proceedings Committee in specific situations including where a nurse or midwife refuses or fails to cooperate with a requirement imposed or poses an immediate risk of harm to the public.
The Board is to develop, establish, operate and keep under review one or more than one scheme for monitoring the maintenance of professional competence by nurses and midwives. Schemes will not be established or operated until approved by the Minister and the Minister for Finance. Employers are to facilitate the maintenance of professional competence of registered nurses and midwives pursuant to a professional competence scheme.
The employer may facilitate the maintenance of professional competence by providing learning opportunities in the workplace.
There is confidentiality for information disclosed as part of a professional competence scheme. The Board may, however, disclose information in summary form which prevents the identity of individual nurses and midwives being ascertained. It can disclose information for the purposes of criminal proceedings or investigations, or for the purposes of civil proceedings to which it is a party. Provision for an offence relating to unlawful disclosure of information is included, with a penalty of a fine not exceeding €5,000 and/or imprisonment for 6 months.
A clinical supervising authority appointed under the rules shall perform the functions of clinical supervising authorities as specified in the rules.
Certain matters are absolutely privileged in any action for defamation, in particular matters relating to Parts 7, 8 and 9 (Fitness to Practise) and documents relating to nurses and midwives’ participation in a Professional Competence Scheme, unless it has been made in bad faith.
The Board shall, at the request of the Minister, or may, of its own initiative, investigate unregistered persons suspected of practising nursing or midwifery in contravention of this Act or claiming to be registered. If the Board has reason to believe that this is the case, it shall report the matter forthwith to An Garda Síochána and the Minister and may seek an injunction in the High Court requiring the person to cease the activities.
There are summary proceedings for an offence under this Act may be prosecuted by the Board. The Board or a Committee may specify the form of documents required for the purposes of this Act.