Part 5 Complaints and disciplinary proceedings Division 1 Complaints 43 Codes of professional conduct (1) The Board may establish one or more codes of professional conduct setting out guidelines that should be observed by nurses and midwives in their professional practice. The Board may from time to time amend or replace a code of professional conduct.(2) The Minister may require the Board to develop guidelines relating to any conduct of nurses or midwives that the Minister considers should be the subject of a code of professional conduct.(3) For that purpose, the Minister may:(a) direct the Board to establish a code of professional conduct, or(b) direct the Board to amend or replace a code of professional conduct,so that the code includes guidelines relating to that conduct.(4) The Board is to comply with any such direction of the Minister.(5) The provisions of a code of professional conduct are a relevant consideration in determining for the purposes of this Act what constitutes proper and ethical conduct by a nurse or midwife.(6) The procedure for the establishment of a code of professional conduct is as follows:(a) the Board is to prepare a proposed code in draft form and is to prepare an impact assessment statement for the proposed code in accordance with such requirements as the Minister may from time to time determine,(b) the draft code and impact assessment statement are to be publicly exhibited for a period of at least 21 days,(c) the Board is to seek public comment on the draft code during the period of public exhibition and public comment may be made during the period of public exhibition and for 21 days (or such longer period as the Board may determine) after the end of that period,(d) the Board is to submit the draft code to the Minister for approval together with a report by the Board giving details of public comment received during the period allowed for public comment and the Board’s response to it,(e) the Board is not to establish the draft code as a code of professional conduct unless the Minister approves the draft.(7) The procedure for the amendment or replacement of a code of professional conduct is the same as for the establishment of the code unless the Minister otherwise directs in respect of a particular amendment. 45 Referral or dismissal of complaints by Board (1) The Board must, as soon as practicable after a complaint is lodged with the Registrar or the Board has decided to make a complaint:(a) refer the complaint to a Panel, a Committee or the Tribunal (which is to be constituted in accordance with this Act to deal with the complaint), as the Board thinks fit, despite any previous action taken by the Board or the Commission, or(a1) refer the professional performance of the nurse or midwife concerned for assessment under Part 4A, or(b) direct the nurse or midwife concerned to attend for counselling, or(c) determine that no further action should be taken, except where the Board has decided to make the complaint.(2) The Board must refer a complaint to the Tribunal if the complaint is that the nurse or midwife has been guilty of professional misconduct or if the Board is of the opinion that the subject-matter of the complaint (not being, in the Board’s opinion, a frivolous or vexatious complaint), if substantiated, may provide grounds for the suspension or cancellation of the nurse’s or midwife’s registration or enrolment.(3) The Board may refer a complaint to a Committee even though, if substantiated, it may provide grounds for the suspension or cancellation of the nurse’s or midwife’s registration or enrolment, if:(a) the complaint is made, or the Board has decided to make the complaint, under section 44 (1) (b) or (e), and(b) the Board is of the opinion that no other complaint under any other provision of section 44 relating to the nurse or midwife concerned should be referred to the Tribunal.(4) Two or more members of the Board may be appointed by the Board for the purpose of carrying out the functions of the Board under this section, and in this Act and the regulations a reference to the referral of a complaint by the Board is taken to include a reference to a referral of a complaint by those members.(5) The Board may, before taking any action under this section, require the nurse or midwife concerned, by notice in writing given personally or by post to the nurse or midwife, to undergo at the Board’s expense a health examination:(a) by a registered health practitioner, and(b) at any reasonable time and place,specified in the notice.(6) A failure by a nurse or midwife, without reasonable cause, to comply with:(a) a direction under this section to attend for counselling, or(b) a notice given under this section to undergo a health examination,is, for the purposes of this Part or any inquiry or appeal under this Part, evidence that the nurse or midwife does not have sufficient physical and mental capacity to practise nursing or midwifery.(7) The Board:(a) is not to refer a complaint about a nurse or midwife who has died, and(b) may decide not to refer a complaint:(i) if the complainant fails to provide further particulars requested under section 44, or(ii) if the nurse or midwife concerned ceases to be registered or enrolled.(8) This section is subject to section 46. 46 Role of Health Care Complaints Commission (1) Before the Board takes any action under section 45, the Board and the Commission must consult in order to see if agreement can be reached between them as to the course of action to be taken concerning a complaint.(2) Division 2 of Part 2 of the Health Care Complaints Act 1993 applies to the consultation.(3) A complaint must not be referred to the Tribunal or a Committee until the complaint has been investigated by the Commission under the Health Care Complaints Act 1993.(4) If the Commission recommends to the Board in accordance with the Health Care Complaints Act 1993 that a complaint (whether made under that Act or this Act) be referred to the Tribunal, the Board must comply with that recommendation. This applies only to a complaint of a kind that could be made under this Act. A recommendation by the Commission for referral to the Tribunal is to be complied with even if the complaint has already been referred to a Committee or a Panel or the nurse or midwife concerned has been referred for performance assessment under Part 4A. 47 (Repealed) s 47: Rep 1993 No 105, Sch 3. 48 Suspension etc by Board (1) The Board may at any time:(a) by its order suspend the registration or enrolment of a nurse or midwife for such period (not exceeding 8 weeks) as is specified in the order, or(b) impose such conditions on the registration or enrolment of the nurse or midwife as it considers appropriate,if it is satisfied that such action is necessary for the purpose of protecting the life, or the physical or mental health, of any person.(2) The Board may take action under this section whether or not a complaint has been made to the Board about the nurse or midwife.(3) Subject to section 48A, the Board must, at or before the time it takes action under this section, refer:(a) any complaint about the nurse or midwife, and(b) particulars of the action taken and the Board’s reasons for taking the action,to the Tribunal, or, if the matter is one which could be referred to a Committee under section 45 (3), it may refer it to a Committee, and the matter is taken to be a complaint referred to the Tribunal or the Committee by the Board.(4) The Tribunal or a Committee is to be constituted in accordance with this Act to deal with a matter referred to it under this section.(5) The Board is to inform the Director-General and the Commission when it takes any action under this section.(6) A period of suspension imposed by the Board under this section may be extended, from time to time, by the Board by its order for a further period or further periods, each of not more than 8 weeks, if:(a) the extension has been approved in writing by the Chairperson or a Deputy Chairperson, and(b) the complaint about the nurse or midwife has not been disposed of.(7) A person whose registration or enrolment as a nurse or midwife is suspended by an order under this section is, except in the application to the person of a provision of Part 4 or this Part, taken not to be a nurse or midwife.(8) On the expiry of such a period of suspension, the person’s rights and privileges as a nurse or midwife are revived, subject to any order made by the Tribunal.(9) Conditions imposed under subsection (1) (b) following the making of a complaint about a nurse or midwife have effect until such time as the complaint is disposed of. 48A Special provisions—impairment (1) This section applies if the Board takes action against a nurse or midwife under section 48 because the Board is of the opinion that the nurse or midwife suffers from an impairment.(2) The Board must, as soon as practicable after taking that action and, in any event, within 7 days after taking that action, notify the Commission that it has taken that action.(3) The Board is to consult with the Commission to see if agreement can be reached as to whether the matter should be:(a) dealt with as a complaint against the nurse or midwife, or(4) The matter is to be dealt with as a complaint against the nurse or midwife only if, following that consultation:(a) the Board and the Commission agree that it should be dealt with as a complaint, or(b) either the Board or the Commission is of the opinion that the matter should be dealt with as a complaint.(5) In such a case, the Board is to refer the matter to the Commission and the matter is to be dealt with by the Commission as a complaint made to the Commission against the nurse or midwife concerned.(6) The Commission is to investigate the complaint or cause it to be investigated and, as soon as practicable after it has completed its investigation, refer the complaint to the Tribunal or a Committee if the Commission is of the opinion that the matter should be dealt with as a complaint.(7) If subsection (4) does not apply, the Board is to refer the matter to a Panel.(8) A matter may be referred to a Panel under this section even though the registration or enrolment of the nurse or midwife has been suspended under section 48. Division 4 applies in respect of such a referral as if the registration or enrolment of the nurse or midwife had not been suspended. 49 Appeals against suspension etc by Board (1) A person:(a) whose registration or enrolment has been suspended by the Board, or(b) on whose registration or enrolment conditions have been imposed under section 48,may appeal to the Tribunal against the suspension or conditions or any extension under that section of the period of suspension.(2) An appeal under this section is to be lodged with the Registrar who is to refer it to the Tribunal (which is to be constituted in accordance with this Act to deal with the appeal).(3) An appeal under this section against an order made or conditions imposed under section 48 is to be lodged not later than 21 days after notice of the order or notice of the imposition of the conditions is given to the affected person.(4) On an appeal under this section, the Tribunal may by its order:(a) terminate, vary or confirm the period of suspension, or(b) revoke, vary or confirm the conditions,as it thinks proper, but only so that the order does not have effect beyond the day on which any related complaint about the person is disposed of.(5) An appeal under this section does not affect any suspension or conditions with respect to which it has been made until an order is made under subsection (4). Division 2 Hearing of complaints by Professional Standards Committees 50 Professional Standards Committees (1) There are to be Professional Standards Committees.(2) The Committees are to have and may exercise the jurisdiction and functions conferred or imposed on them by or under this Act.(3) When the Board decides to refer a complaint to a Committee, the Board is to appoint 3 persons to sit as the Committee for the purpose of conducting an inquiry into the complaint. 51 Constitution of Committees (1) For the purpose of conducting an inquiry arising from a complaint against a nurse or midwife, a Committee consists of:(a) 2 nurses or midwives having such qualifications as may be prescribed, and(b) 1 lay person (that is, a person who is not a nurse or midwife) appointed from among a panel of lay persons for the time being nominated by the Minister.(2) The Board is to appoint one of the members of a Committee as chairperson of the Committee.(3) A person who is a member of the Board may not be appointed to sit on a Committee.(4) One or more Committees may conduct more than one inquiry at the same time.(5) A member of a Committee, while sitting on the Committee, is entitled to be paid by the Board in accordance with the regulations. 52 Proceedings before a Committee (1) A Committee appointed under section 50 is to hold an inquiry into any complaint referred to it.(2) On appointment under section 51, the chairperson of a Committee is to fix a time and place for the holding of an inquiry by the Committee into the complaint and is to give not less than 7 days’ notice of the inquiry to:(a) the nurse or midwife concerned, and(b) the complainant, if any, and(c) the Director-General, the Commission and the Board.(3) In conducting an inquiry, a Committee is, unless it otherwise directs, to sit in the absence of the public and may conduct the proceedings as it thinks fit.(4) A Committee may be assisted by a legally qualified officer appointed by the Registrar for that purpose on the request of the Committee.(5) Schedule 2 has effect with respect to the conduct of any inquiry by a Committee. 53 Representation before a Committee (1) At an inquiry conducted by a Committee:(a) the nurse or midwife concerned, and(b) the complainant, if any,are entitled to attend and to be accompanied by an Australian lawyer or another adviser, but are not entitled to be represented at the inquiry by the Australian lawyer or other adviser, except as provided by subsection (1A) or (3).(1A) An adviser (other than an Australian lawyer) of a nurse or midwife may represent the nurse or midwife before the Committee at an inquiry.(1B) Subsection (1A) does not prevent the Committee from addressing questions directly to the nurse or midwife.(2) A Committee may grant leave for any other person (not being an Australian lawyer or another adviser representing any person) to appear at an inquiry if the Committee is satisfied that it is appropriate for that person to appear.(3) A Committee may grant leave for an Australian lawyer to represent a nurse or midwife at an inquiry into a complaint concerning the physical or mental capacity of the nurse or midwife if the Committee is satisfied that it is appropriate to do so. 54 Referral of certain matters to the Tribunal (1) A Committee must forthwith terminate an inquiry if, before or during the inquiry, the Committee:(a) forms the opinion that the complaint (not being a complaint referred under section 45 (3)), may provide grounds for the suspension or cancellation of the nurse’s or midwife’s registration or enrolment, or(b) becomes aware that the Board has referred the complaint or another complaint about the nurse or midwife concerned to the Tribunal.(2) The Committee must refer the complaint to the Tribunal unless it has already been referred to the Tribunal.(3) The Tribunal to which the complaint is referred may be the Tribunal as already constituted to deal with another complaint or the Tribunal as constituted in accordance with this Act to deal with the referred complaint.(4) A Committee is to inform the Board, the Director-General and the Commission when it takes any action under this section. 55 Determinations of a Committee (1) A Committee may make one or more of the following determinations if it finds the subject-matter of a complaint made against a person to have been proved:(a) caution or reprimand the person,(b) order that the person seek medical or psychiatric treatment or counselling,(c) direct that such conditions, relating to the person’s practice, as it considers appropriate be imposed on the person’s registration or enrolment,(d) order that the person complete such educational courses as are specified by the Committee,(e) order that the person report on his or her practice at the times, in the manner and to the persons specified by the Committee,(f) order that the person seek and take advice, in relation to the management of his or her practice, from such persons as are specified by the Committee.(2) A power conferred by subsection (1) (b)–(f) may not be exercised unless the person concerned is registered or enrolled.(3) An order may be made by a Committee that a person who is not registered or enrolled may be registered or enrolled subject only to compliance with an order made under subsection (1) (b), (d), (e) or (f) or conditions that might, if the person were registered or enrolled, be imposed under subsection (1) (c).(4) The Board may refer to the Tribunal any failure by a person to comply with the following orders or conditions imposed by a Committee:(a) an order under subsection (1) (b), (d), (e) or (f),(b) conditions imposed under subsection (1) (c), or(c) an order under subsection (3).(5) The Tribunal may, if it finds the failure to have been proved:(a) exercise any power that the Tribunal may exercise under section 64 (1) or (5) (if the person is registered or enrolled), or(b) make any order that the Tribunal may make under section 64 (2) or (5) (if the person is not registered or enrolled).(6) An order made by a Committee or the Tribunal under this section takes effect on the day on which the order is made or on such later day as is specified in the order.(7) A Committee is to inform the Registrar of the exercise of any power under this section by the Committee.(8) A power of a Committee is taken to have been exercised by the Committee if any person other than the Committee exercises the power under this section. 56 Decisions of a Committee (1) A decision supported by at least 2 members of a Committee on any question arising during an inquiry is the decision of the Committee.(2) A Committee must, within 30 days of making the decision resulting from any such inquiry, make available to the complainant, the nurse or midwife concerned and such other persons as it thinks fit, a written statement of the decision.(3) A written statement of a decision must:(a) set out any findings on material questions of fact, and(b) refer to any evidence or other material on which the findings were based, and(c) give the reasons for the decision.(4) A Committee is not required to include confidential information in any such statement (despite any other provision of this section), and if a statement would be false or misleading if it did not include the confidential information, the Committee is not required to provide the statement.(5) If, because of subsection (4), confidential information is not included or such a statement is not provided, a Committee must, within 30 days of the decision, give notice in writing to the person indicating that:(a) the confidential information is not included, or(b) the statement will not be provided,as appropriate, and giving the reasons why the confidential information is not included or the statement will not be provided.(6) In this section: 57 Appeals against decisions of a Committee etc (1) A nurse or midwife about whom a complaint is referred to a Committee, or the complainant, may appeal to the Tribunal against:(a) a finding of the Committee, or(b) the exercise by the Committee of any power under section 55,within the prescribed time.(2) The appeal is to be lodged with the Registrar who is to refer it to the Tribunal (which is to be constituted in accordance with this Act to deal with the appeal).(3) The appeal is to be dealt with by way of a new hearing and new evidence may be given in addition to or in substitution for any evidence received at the inquiry.(4) On the appeal, the Tribunal may:(a) dismiss the appeal, or(b) make any finding or exercise any power that the Tribunal could have made or exercised if the complaint had been originally referred to the Tribunal.(5) The appeal does not affect any finding or exercise of power with respect to which it has been made until an order is made under subsection (4) (b). 58 Appeals with respect to points of law (1) A nurse or midwife about whom a complaint is referred to a Committee, or the complainant, may appeal to the Chairperson, or a Deputy Chairperson nominated by the Chairperson, with respect to a point of law.(2) The appeal may be made in accordance with the regulations during the inquiry conducted by the Committee or within the prescribed time.(3) The inquiry by the Committee is not to continue until the appeal has been disposed of (if the inquiry has not been completed).(4) The Committee, on recommencing the inquiry, is not to make any decision that is inconsistent with the Chairperson’s or Deputy Chairperson’s determination with respect to the point of law. Division 3 Hearing of matters by the Nurses and Midwives Tribunal pt 5, div 3, hdg: Am 2003 No 45, Sch 1 [131]. 59 The Nurses and Midwives Tribunal (1) There is to be a Nurses and Midwives Tribunal.(2) The Tribunal has and may exercise the jurisdiction and functions conferred or imposed on it by or under this or any other Act.(3) The Board must inform the Chairperson and appoint 3 other persons to sit on the Tribunal when:(a) a complaint or other matter is referred to the Tribunal, or(c) an appeal or application under section 68 to the Tribunal is lodged with the Registrar.(4) On being informed of a complaint, matter, appeal or application under this section, the Chairperson is to nominate:(a) himself or herself, or(b) a Deputy Chairperson,to sit on the Tribunal for the purpose of conducting an inquiry into the complaint, matter or application or hearing the appeal.(5) For the purpose of conducting an inquiry or hearing an appeal, the Tribunal is to consist of:(a) the Chairperson or a Deputy Chairperson, and(b) 2 nurses or midwives, having such qualifications as may be prescribed, appointed by the Board, and(c) one lay person (that is, a person who is not a nurse or midwife) appointed by the Board from among a panel of lay persons for the time being nominated by the Minister.(6) A person is not to be appointed to sit on the Tribunal if the person is a member of the Board.(7) The Tribunal, as constituted by different persons or the same persons, may conduct or hear more than one inquiry or appeal at the same time.(8) A member of the Tribunal (other than the Chairperson or a Deputy Chairperson), while sitting on the Tribunal, is entitled to be paid in accordance with the regulations.(9) The Tribunal is to have a seal of which all courts and persons acting judicially are to take judicial notice. 60 Chairperson and Deputy Chairpersons of the Tribunal (1) The Governor may appoint:(a) a qualified person as Chairperson of the Tribunal, and(b) 1 or more qualified persons as Deputy Chairpersons of the Tribunal.(1A) A person is qualified for appointment as Chairperson, or as a Deputy Chairperson, if the person:(a) is a Judge of the District Court, or(b) is an Australian lawyer of at least 7 years’ standing.(2) The Chairperson and each Deputy Chairperson hold office for such period not exceeding 7 years as may be specified in the instrument of appointment as Chairperson or Deputy Chairperson, but are eligible (if otherwise qualified) for re-appointment.(3) A Deputy Chairperson may be appointed by the Governor for the purpose only of conducting or hearing a particular inquiry or appeal described in the instrument of appointment of the Deputy Chairperson (without limiting the generality of this section).(4) A Deputy Chairperson, while sitting on the Tribunal, has and may exercise all the functions conferred or imposed on the Chairperson by this Act (other than those conferred by section 59 (4)).(5) The Chairperson or a Deputy Chairperson sitting on the Tribunal is entitled to be paid in accordance with the regulations.(6) The Governor may appoint a Deputy Chairperson to act in the office of Chairperson during the illness or absence of the Chairperson.(7) Part 2 of the Public Sector Management Act 1988 does not apply to or in respect of the appointment of the Chairperson or a Deputy Chairperson.(8) (Repealed) 61 Proceedings before the Tribunal (1) The members of the Tribunal nominated and appointed under section 59 are to conduct an inquiry into any complaint, matter or application and are to hear any appeal referred to it.(2) On nomination under section 59, the Chairperson or a Deputy Chairperson is to fix a time and place for the conducting of the inquiry or the hearing of the appeal by the Tribunal and is to give not less than 7 days’ notice of the inquiry or appeal to the following persons:(a) the nurse or midwife concerned,(b) the complainant, if any,(c) the Director-General, the Commission and the Board,(d) the Chairperson of the relevant Committee, if appropriate.(3) In conducting an inquiry or hearing an appeal, the Tribunal is, unless it otherwise directs, to be open to the public and may conduct the proceedings as it thinks fit.(4) Schedule 2 has effect with respect to the conduct of any inquiry and the hearing of any appeal by the Tribunal. 62 Representation before the Tribunal (1) At an inquiry conducted or appeal heard by the Tribunal:(a) the nurse or midwife concerned, and(b) the complainant, if any,are entitled to attend and to be represented by an Australian legal practitioner or another adviser.(2) The Tribunal may grant leave for any other person to appear (whether in person or by an Australian legal practitioner or another adviser) at an inquiry or appeal if the Tribunal is satisfied that it is appropriate for that person to appear. 63 Chairperson or Deputy Chairperson not to review own decisions The Chairperson or Deputy Chairperson must not sit on the Tribunal for the purpose of conducting any inquiry or hearing any appeal relating to a particular matter before the Tribunal if a decision has been made by the Chairperson or Deputy Chairperson in relation to the matter. 64 Determinations of the Tribunal (1) The Tribunal may determine to do any one or more of the following if it finds the subject-matter of a complaint made against a person to have been proved:(a) caution or reprimand the person,(b) order that the person seek medical or psychiatric treatment or counselling,(c) direct that such conditions, relating to the person’s practice, as it considers appropriate be imposed on the person’s registration or enrolment,(d) order that the person complete such educational courses as are specified by the Tribunal,(e) order that the person report on his or her practice at the times, in the manner and to the persons specified by the Tribunal,(f) order that the person seek and take advice, in relation to the management of his or her practice, from such persons as are specified by the Tribunal,(g) by its order:(i) suspend the person from practising for such period as it specifies, or(ii) direct that the person’s name be removed from the Register of Nurses or the Register of Midwives, or both, or from the Roll.(2) A power conferred by subsection (1) (b)–(g) may not be exercised unless the person is registered or enrolled but an order may be made by the Tribunal that a person who is not registered or enrolled may be registered or enrolled only subject to compliance with an order under subsection (1) (b), (d), (e) or (f) or conditions that might, if the person were registered or enrolled, be imposed under subsection (1) (c).(3) If the Board has reason to believe that a person in respect of whom the Tribunal has:(a) made an order under subsection (1) (b), (d), (e) or (f), or(b) imposed conditions under subsection (1) (c), or(c) made any order under subsection (2),has failed to comply with the order or conditions, the Board may refer the matter to the Tribunal.(4) The Tribunal may, if it finds the failure to have been proved:(a) exercise any power that it may exercise under subsection (1) or (5) (if the person is registered or enrolled), or(b) make an order that the Tribunal may make under subsection (2) or (5) (if the person is not registered or enrolled).(5) If the Tribunal makes an order under subsection (1) (g) (ii) or the Tribunal finds the subject-matter of a complaint against a person who has ceased to be registered or enrolled to be proved:(a) the Tribunal may by its order fix a time after which the person whose name is removed from a Register or the Roll, or a person who has ceased to be registered or enrolled, may apply to be registered or enrolled, and(b) if a time has been so fixed, the person is not entitled to be registered or enrolled before that time, despite Part 4.(5A) If the Tribunal makes an order under subsection (1) (g) or (5) in respect of a person and it is satisfied that the person poses a substantial risk to the health of members of the public, it may by order (a prohibition order) do any one or more of the following:(a) prohibit the person from providing health services or specified health services for the period specified in the order or permanently,(b) place such conditions as the Tribunal thinks appropriate on the provision of health services or specified health services by the person for the period specified in the order or permanently.(5B) If the Tribunal is aware that a person in respect of whom it is proposing to make a prohibition order is registered under a health registration Act other than this Act, the Tribunal is, before making the prohibition order, to notify the board constituted under that other Act of the proposed order and give that board an opportunity to make a submission.(6) The Tribunal may award costs, but only if it is satisfied that there are special circumstances warranting an award of costs.(7) An order made by the Tribunal under this section takes effect on the day on which the order is made or on such later day as is specified in the order.(8) The Tribunal is to inform the Board of the exercise of any power under this section by the Tribunal.(9) A power of the Tribunal exercised by the Supreme Court under this section is taken to have been exercised by the Tribunal, except for the purposes of any appeal. 66 Decisions of the Tribunal (1) The decision of the Chairperson, or a Deputy Chairperson, on any question of law or procedure arising during an inquiry or appeal at which the Chairperson or Deputy Chairperson presides is the decision of the Tribunal for the purposes of the inquiry or appeal.(2) A decision supported by at least 3 members of the Tribunal with respect to a question (other than with respect to a point of law or procedure) arising during an inquiry or appeal before the Tribunal is the decision of the Tribunal or, if 2 members support the decision and 2 members oppose the decision, the decision of the Chairperson or Deputy Chairperson presiding is the decision of the Tribunal.(3) The Tribunal must, within 30 days of making the decision resulting from any such inquiry or appeal, make available to the complainant, the nurse or midwife concerned, the Board and such other persons as it thinks fit a written statement of the decision.(4) A written statement of a decision must:(a) set out any findings on material questions of fact, and(b) refer to any evidence or other material on which the findings were based, and(c) give the reasons for the decision.(5) The Tribunal is not required to include confidential information in any such statement (despite any other provision of this section) and if a statement would be false or misleading if it did not include the confidential information, the Tribunal is not required to provide the statement.(6) If, because of subsection (5), confidential information is not included or such a statement is not provided, the Tribunal must, within 30 days of the decision, give notice in writing to the person indicating that:(a) the confidential information is not included, or(b) the statement will not be provided,as appropriate, and giving the reasons why the confidential information is not included or the statement will not be provided.(6A) The Board:(a) must make publicly available a statement of a decision provided to it under this section if the decision is in respect of a complaint that has been proved or admitted in whole or in part, and(b) may disseminate any other statement of a decision as the Board thinks fit,unless the Tribunal has ordered otherwise.(7) In this section: 67 Appeals against decisions of the Tribunal (1) A person about whom a complaint is referred to the Tribunal under section 45, 46 or 54, or the complainant, may appeal to the Supreme Court against:(a) a decision of the Tribunal with respect to a point of law, or(b) the exercise of any power under section 64 by the Tribunal,within the prescribed time.(2) The Supreme Court may stay any order made by the Tribunal, on such terms as the Court sees fit, until such time as the Court determines an appeal made under this section.(3) In determining an appeal under this section, the Supreme Court may:(a) dismiss the appeal, or(b) make such order as it thinks proper having regard to the merits of the case and the public welfare and, in doing so, may exercise any one or more of the powers of the Tribunal under section 64.(4) In any case where the Supreme Court dismisses an appeal against an order directing that the name of a nurse or midwife be removed from a Register or the Roll or a person has ceased to be registered or enrolled:(a) the Court may by its order fix a time after which the person whose name is removed from a Register or the Roll, or the person who has ceased to be registered or enrolled, may apply to be registered or enrolled, and(b) if a time has been so fixed, the person is not entitled to be registered or enrolled before that time despite Part 4.(5) An appeal under this section with respect to a point of law may be made during an inquiry conducted by the Tribunal or within the prescribed time.(6) The inquiry before the Tribunal is not to continue until the appeal with respect to the point of law has been disposed of (if the inquiry has not been completed).(7) The Tribunal, on recommencing the inquiry, is not to make any decision that is inconsistent with the Supreme Court’s determination with respect to the point of law. 68 Review of suspension or cancellation of registration or enrolment by the Tribunal (1) A person:(a) whose registration or enrolment has been suspended under section 55 (5) or 64, or(b) whose name has been removed from a Register or the Roll under section 55 (5), 64 or 67, or(c) who is the subject of a prohibition order,may apply to the Tribunal for a review of the suspension, removal or prohibition order.(2) An application under this section is to be lodged with the Registrar who is to refer it to the Tribunal (which is to be constituted in accordance with this Act to deal with the application).(3) An application under this section:(a) may not be made by a person while the person is subject to an order fixing a time after which the person may apply to be registered or enrolled, and(b) may not be made if an appeal to the Supreme Court in respect of the same matter under section 67 has not been disposed of.(4) On an application being made under this section, the Tribunal may, after such inquiry as it thinks fit:(a) dismiss the application, or(b) by its order, terminate any suspension, or(c) order:(i) that a person whose name has been removed from a Register or the Roll be registered or enrolled under the provision of this Act under which the person was registered or enrolled immediately before the person ceased to be registered or enrolled or under any equivalent provision of this Act, and(ii) that such conditions, if any, as the Tribunal may impose on the person’s registration or enrolment and as are specified in the order be imposed on the person’s registration or enrolment, or(d) by its order terminate or shorten the period of a prohibition order or alter the conditions to which the person is subject under a prohibition order (including by imposing new conditions).(5) The Tribunal may award costs but only if it is satisfied that there are special circumstances warranting an award of costs.(6) A person registered or enrolled pursuant to an order referred to in subsection (4) (c) (i) is taken to be registered or enrolled pursuant to a determination made by the Board under Part 4.(7) A condition imposed pursuant to an order referred to in subsection (4) (c) (ii) is taken to be a condition that has been imposed by the Board under section 18, 19, 27 or 28, as the case requires. 69 Inquiries etc where other proceedings A complaint may be referred to a Committee or the Tribunal, and dealt with by the Committee or Tribunal, even though the nurse or midwife about whom the complaint is made is the subject of proposed or current criminal or civil proceedings relating to the subject-matter of the complaint. 69A Cancelled registrations or enrolments to be publicly available (1) The Board is to make publicly available:(a) the name of each person who is subject to an order of the Tribunal or the Supreme Court that the person’s name be removed from a Register or the Roll, and(b) such other information about the person as may be prescribed by the regulations.(2) The Board is to ensure that the information required to be made publicly available under subsection (1) is provided to the Commission.(3) The Board is not required to make publicly available information about a person:(b) who belongs to a class of persons prescribed by the regulations for the purposes of this section. 69B Protection from liability for certain publications (1) A publication in good faith under section 66 or 69A does not subject a protected person to any liability (including liability in defamation).(2) In this section: 70 Giving of information to other Australian registration bodies The Board is authorised to inform any body which, under the law of another State or a Territory, is responsible for the registration, enrolment or authorisation to practise (however described) of nurses or midwives of a determination of the Tribunal under section 64. Division 4 Impairment matters concerning nurses and midwives pt 5, div 4: Ins 1996 No 61, Sch 2 [4]. pt 5, div 4, hdg: Ins 1996 No 61, Sch 2 [4]. Am 2003 No 45, Sch 1 [161]. 70A Referral of impairment matters concerning nurses and midwives (1) The Board may refer any matter to a Panel if the Board considers that the matter indicates that a nurse or midwife suffers from an impairment. This is not limited to matters that are the subject of a complaint to the Board.(2) If the Board is aware that a complaint has been made to the Commission about a nurse or midwife who is the subject of a referral to a Panel, the Board is to notify the Commission of the referral. 70B Persons may notify Board of impairment matters concerning nurses or midwives A person may notify the Board of any matter which the person thinks indicates that a nurse or midwife suffers or may suffer from an impairment. 70C Commission may refer impairment matters to Board (1) If the Commission becomes aware of any matter that the Commission considers indicates that a nurse or midwife suffers or may suffer from an impairment, the Commission may refer the matter to the Board.(2) This section does not affect the functions of the Board in relation to a complaint made to the Commission or a matter referred to the Commission for investigation. 70D Panel to inquire into matter referred to it (1) A Panel is to inquire into any matter referred to it and may obtain reports and other information concerning the matter from any source it considers appropriate.(2) The Panel may request a nurse or midwife who is the subject of a matter referred to the Panel, to attend before the Panel for the purpose of enabling the Panel to obtain information on the matter and make an assessment. 70E Panel not to take action while Commission is investigating A Panel is not to investigate or take any other action in relation to any matter if the Panel is aware that the matter is the subject of an investigation by the Commission, while the investigation is being conducted. 70F Board to give notice of proposed inquiry The Board is to give notice to a nurse or midwife of any proposed inquiry by a Panel concerning the nurse or midwife. The notice is to include sufficient details of the matters to which the inquiry relates. 70G Nurse or midwife entitled to make representations A nurse or midwife who is the subject of any inquiry by a Panel is entitled to make oral or written representations to the Panel with respect to the matters being or to be the subject of the inquiry. 70GA Board may require nurse or midwife to undergo examination (1) The Board may by notice given to a nurse or midwife who is the subject of a matter referred or proposed to be referred to a Panel direct the nurse or midwife to undergo an examination by a specified registered health practitioner at a specified time and place.(2) A nurse or midwife must not be directed to undergo an examination unless it is reasonable to require the examination, given the nature of the matter that is the subject of the referral or proposed referral. The time and place specified for the examination must be reasonable and the examination is to be at the expense of the Board.(3) If a nurse or midwife refuses, without reasonable excuse, to comply with a direction to undergo an examination, that refusal is, for the purposes of this Act and any inquiry or appeal under this Act, evidence that the nurse or midwife does not have sufficient physical and mental capacity to practise nursing or midwifery. 70H Assessment, report and recommendations by Panel (1) A Panel is to make an assessment in respect of each referral to it, based on the results of its inquiry into the matter.(2) On the basis of its assessment, the Panel may do any one or more of the following things:(a) counsel the nurse or midwife concerned or recommend that the nurse or midwife undertake specified counselling,(b) recommend that the nurse or midwife consent to conditions being placed on his or her registration or enrolment or to having his or her registration or enrolment suspended for a specified period,(c) make recommendations to the Board as to any action that the Panel considers should be taken in relation to the matter.(3) The Panel is to report in writing to the Board on each referral to the Panel. The report is to detail the results of the Panel’s inquiries and assessment in respect of the referral and any action taken by the Panel under this Division in relation to it. 70I Voluntary suspension or conditions on registration or enrolment The Board may impose conditions on or suspend the registration or enrolment of a nurse or midwife if:(a) a Panel has recommended that the Board do so, and(b) the Board is satisfied that the nurse or midwife has voluntarily agreed to the conditions. 70IA Review of conditions (1) A nurse or midwife who agrees to conditions being imposed on his or her registration or enrolment, or to his or her registration or enrolment being suspended, may, by notice in writing to the Board, request:(a) that those conditions be altered or removed, or(b) that the suspension be terminated or shortened.(2) On receipt of such a request, the Board is to require a Panel to review the matter and report in writing to the Board on the results of its review.(3) After considering the Panel’s report on the matter and any recommendation made in the report, the Board may grant the request or refuse to grant it, as the Board thinks fit.(4) The Board is to give the nurse or midwife concerned notice in writing of its decision in respect of the request.(5) The Board may specify in the notice a period in which a further request by the nurse or midwife under this section is not permitted. The Board may reject a request that the conditions be altered or removed, or that the suspension be terminated or shortened, if it is made during that period. 70J Some matters to be dealt with as complaints (1) If a Panel recommends that a nurse or midwife consent to conditions being placed on the nurse’s or midwife’s registration or enrolment, or to the suspension of the nurse’s or midwife’s registration or enrolment, and the nurse or midwife fails to comply with the recommendation, the Board is to deal with the matter that was the subject of the referral to the Panel as a complaint against the nurse or midwife.(2) If the Panel recommends that a matter referred to it be dealt with as a complaint, the Board is to deal with the matter as a complaint against the nurse or midwife concerned.(3) In any other case that the Board thinks it appropriate to do so, the Board may treat a matter which has been referred to a Panel as grounds for a complaint under this Division and may deal with the matter accordingly. 70K Confidentiality of Panel’s report to Board (1) A person must not directly or indirectly make a record of or divulge to any person any information contained in a report by a Panel to the Board that has come to the person’s notice in the exercise of the person’s functions under this Act, except for the purpose of exercising functions under this Act. 70L Board to consider Panel’s report when assessing application (1) The Board is to take the following matters into account when considering a person’s application for registration or enrolment under this Act:(a) any report of a Panel concerning any matter involving the person (including any recommendations made in the report),(b) any failure by the person to attend before a Panel in accordance with a request of the Panel.(2) This section does not limit the matters that the Board may take into account when it considers an application for registration or enrolment. Division 5 Impairment Panels pt 5, div 5: Ins 1996 No 61, Sch 2 [4]. pt 5, div 5, hdg: Ins 1996 No 61, Sch 2 [4]. Subst 2003 No 45, Sch 1 [177]. 70N Board to constitute Panel when required (1) If the Board decides to refer a matter to a Panel, it is to appoint 3 persons to sit as the Panel for the purpose of dealing with the matter.(2) At least one of the appointed persons must be a nurse or midwife, and at least one must be a registered medical practitioner.(3) A person may be appointed to sit on a Panel whether or not the person is a member of the Board, but not if the person has previously dealt with the particular matter before the Panel in the person’s capacity as a member of the Board.(4) A member of a Panel, while sitting on the Panel, is entitled to be paid at the rate determined by the Minister. |
What extension of the law is addressed in the nurse practice act
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