PART V

Fitness to Practise

38. —(1) The Board or any person may apply to the Fitness to Practise Committee for an inquiry into the fitness of a nurse to practise nursing on the grounds of—

(a) alleged professional misconduct, or

(b) alleged unfitness to engage in such practice by reason of physical or mental disability,

and the application shall, subject to the provisions of this Act, be considered by the Fitness to Practise Committee.

(2) Where an application is made under this section and the Fitness to Practise Committee, after consideration of the application, is of opinion that there is not sufficient cause to warrant the holding of an inquiry, it shall so inform the Board and the Board, having considered the matter, may decide that no further action shall be taken in relation to the matter and shall so inform the Committee and the applicant, or it may direct the Committee to hold an inquiry into the matter in accordance with the provisions of this section.

(3) Where an application for an inquiry is made under this section and the Fitness to Practise Committee, after consideration of the application, is either of opinion that there is a prima facie case for holding the inquiry or has been given a direction by the Board pursuant to subsection (2) of this section to hold the inquiry, the following shall have effect—

(a) the Committee shall proceed to hold the inquiry,

(b) the Chief Executive Officer, or any other person with the leave of the Fitness to Practise Committee, shall present to the Committee the evidence of alleged professional misconduct or unfitness to practise by reason of physical or mental disability, as the case may be,

(c) on completion of the inquiry, the Fitness to Practise Committee shall embody its findings in a report to the Board specifying therein the nature of the application and the evidence laid before it and any other matters in relation to the nurse which it may think fit to report including its opinion, having regard to the contents of the report, as to—

(i) the alleged professional misconduct of the nurse, or

(ii) the fitness or otherwise of that nurse to engage in the practice of nursing by reason of alleged physical or mental disability,

as the case may be.

(4) When it is proposed to hold an inquiry under subsection (3) of this section the person who is the subject of the inquiry shall be given notice in writing by the Chief Executive Officer sent by pre-paid post to the address of that person as stated in the register of the nature of the evidence proposed to be considered at the inquiry and that person and any person representing him shall be given the opportunity of being present at the hearing.

(5) The findings of the Fitness to Practise Committee on any matter referred to it and the decision of the Board on any report made to it by the Fitness to Practise Committee shall not be made public without the consent of the person who has been the subject of the inquiry before the Fitness to Practise Committee unless such person has been found, as a result of such inquiry, to be—

(a) guilty of professional misconduct, or

(b) unfit to engage in the practice of nursing because of physical or mental disability,

as the case may be.

(6) The Fitness to Practise Committee shall for the purpose of an inquiry held under subsection (3) of this section have the powers, rights and privileges vested in the High Court or a judge thereof on the hearing of an action in respect of—

(a) the enforcement of the attendance of witnesses and their examination on oath or otherwise, and

(b) the compelling of the production of documents,

and a summons signed by the Chairman of the Committee or by such other member of the Committee as may be authorised by the Committee for that purpose may be substituted for and shall be equivalent to any formal procedure capable of being issued in an action for enforcing the attendance of witnesses and compelling the production of documents.

(7) Where—

(a) a person on being duly summoned to attend before the Fitness to Practise Committee makes default in attending, or

(b) a person, being in attendance as a witness before the Fitness to Practise Committee, refuses to take an oath lawfully required by the Fitness to Practise Committee to be taken, or to produce any document in his power or control lawfully required by the Fitness to Practise Committee to be produced by him or to answer any question to which the Fitness to Practise Committee may lawfully require an answer, or

(c) a person, being in attendance before the Fitness to Practise Committee, does anything which, if the Fitness to Practise Committee were a court of law having power to commit for contempt, would be contempt of court,

such person shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,000.

(8) A witness before the Fitness to Practise Committee shall be entitled to the same immunities and privileges as if he were a witness before the High Court.

39. —(1) Where a nurse—

(a) has been found, by the Fitness to Practise Committee, on the basis of an inquiry and report pursuant to section 38 of this Act, to be guilty of professional misconduct or to be unfit to engage in the practice of nursing because of physical or mental disability, or

(b) has failed to pay a retention fee charged by the Board after the Board had, not less than two months previously by notice in writing sent by pre-paid post to the person, at his address as stated in the register, requested payment of the fee on more than one occasion,

the Board may decide that the name of such person should be erased from the register or that, during a period of specified duration, registration of the person's name in the register should not have effect.

(2) On making a decision under this section, the Board shall forthwith send by pre-paid post to the person to whom the decision relates, at his address as stated in the register, a notice in writing stating the decision, the date thereof and the reasons therefor.

(3) A person to whom a decision under this section relates may, within the period of 21 days, beginning on the date of the decision, apply to the High Court for cancellation of the decision and if such person so applies—

(a) the High Court, on the hearing of the application, may—

(i) cancel the decision, or

(ii) declare that it was proper for the Board to make a decision under this section in relation to such person and either (as the Court may consider proper) direct the Board to erase such person's name from the register or direct that during a specified period (beginning not earlier than 7 days after the decision of the Court) registration of the person's name in the register shall not have effect, or

(iii) give such other directions to the Board as the Court thinks proper,

(b) if at any time the Board satisfies the High Court that such person has delayed unduly in proceeding with the application, the High Court shall, unless it sees good reason to the contrary, declare that it was proper for the Board to make a decision under this section in relation to such person and either (as the Court may consider proper) direct the Board to erase the person's name from the register or direct that during a specified period (beginning not earlier than 7 days after the decision of the Court) registration of the person's name in the register shall not have effect,

(c) the High Court may direct how the costs of the application are to be borne.

(4) Where a person to whom a decision of the Board under this section relates does not, within the period of 21 days beginning on the date of the decision, apply to the High Court for cancellation of the decision, the Board may apply ex parte to the High Court for confirmation of the decision and, if the Board so applies, the High Court, on the hearing of the application shall, unless it sees good reason to the contrary, declare accordingly and either (as the Court may consider proper) direct the Board to erase the name of such person from the register or direct that during a specified period (beginning not earlier than 7 days after the decision of the Court) registration of the person's name in the register shall not have effect.

(5) The decision of the High Court on an application under this section shall be final, save that, by leave of that Court or the Supreme Court, an appeal, by the Board or the person concerned, from the decision shall lie to the Supreme Court on a specified question of law.

(6) (a) On erasing the name of a person from the register under this section, the Board shall forthwith send by pre-paid post to such person, at his address as stated in the register, notice in writing of the erasure.

(b) Where a direction is given under this section that during a specified period registration of the name of a person in the register shall not have effect, the Board shall, before the commencement of that period, send by pre-paid post to such person, at his address as stated in the register, notice in writing of such direction.

(7) The name of any person which has been erased from the register under this section may at any time be restored to that register by direction of the Board but not otherwise, and when a person's name is so restored to that register, the Board may attach to the restoration such conditions (including the payment of a fee not exceeding the fee which would be payable by such person for registration if he was then being registered for the first time) as the Board thinks fit.

(8) Where the registration of a person in the register has ceased to have effect under this section for a period of specified duration, the Board may, if it so thinks fit, on application made to it by such person, by direction terminate the suspension.

(9) On the hearing of an application under this section, the High Court may, if it thinks proper to do so, admit and have regard to evidence of any person of standing in the nursing profession as to what is professional misconduct.

40. —(1) The Board, following an inquiry and report by the Fitness to Practise Committee pursuant to section 38 of this Act, may decide to attach such conditions as it thinks fit to the retention in the register of a person whose name is entered in the register.

(2) On making a decision under this section, the Board shall forthwith send by pre-paid post to the person to whom the decision relates, at his address as stated in the register, a notice in writing stating the decision, the date thereof and the reasons therefor.

(3) A person to whom a decision under this section relates may, within the period of 21 days beginning on the date of the decision, apply to the High Court for cancellation of the decision and if he so applies—

(a) the High Court, on the hearing of the application, may—

(i) cancel the decision, or

(ii) declare that it was proper for the Board to make a decision under this section in relation to such person and either (as the Court may consider proper) direct the Board to attach such conditions as the Court thinks fit to the retention of the name of such person in the register, or

(iii) give such other directions to the Board as the Court thinks proper,

(b) if at any time the Board satisfies the High Court that such person has delayed unduly in proceeding with the application, the High Court shall, unless it sees good reason to the contrary, declare that it was proper for the Board to make a decision under this section in relation to such person and (as the Court may consider proper) direct the Board to attach such conditions as the Court may specify to the retention of the name of such person in the register,

(c) the High Court may direct how the costs of the application are to be borne.

(4) Where a person to whom a decision of the Board under this section relates does not within the period of 21 days beginning on the date of the decision, apply to the High Court for cancellation of the decision, the Board may apply ex parte to the High Court for confirmation of the decision and, if the Board so applies, the High Court, on the hearing of the application shall, unless it sees good reason to the contrary, declare accordingly and (as the Court may consider proper) direct the Board to attach such conditions as the Court may specify to the retention of the name of such person on the register.

(5) The decision of the High Court on an application under this section shall be final save that, by leave of that Court or the Supreme Court, an appeal by the Board or the person concerned from the decision shall lie to the Supreme Court on a specified question of law.

(6) On attaching conditions under this section to the retention of the name of a person on the register, the Board shall forthwith send by pre-paid post to such person, at his address as stated in the register, notice in writing of the conditions.

(7) The Board may at any time remove in whole or in part the conditions attached to the retention of the name of any person on the register.

41. —(1) The Board, following an inquiry and report by the Fitness to Practise Committee pursuant to section 38 of this Act into the conduct of a person whose name is entered in the register may, on receipt of the report of the Committee, if it so thinks fit, advise, admonish or censure such person in relation to his professional conduct.

(2) The powers conferred by subsection (1) of this section may be exercised either in addition to or in substitution for any of the powers conferred by sections 39 , 40 and 42 of this Act.

42. —(1) Where a nurse is convicted in the State of an offence triable on indictment or is convicted outside the State of an offence consisting of acts or omissions which would constitute an offence triable on indictment if done or made in the State, the Board may decide that the name of such person should be erased from the register.

(2) On making a decision under this section, the Board shall forthwith send by pre-paid post to the person to whom the decision relates, at his address as stated in the register, a notice in writing stating the decision, the date thereof and the reasons therefor.

(3) A person to whom a decision under this section relates may, within the period of twenty-one days, beginning on the date of the decision, apply to the High Court for cancellation of the decision and if such person so applies—

(a) the High Court, on the hearing of the application, may—

(i) cancel the decision, or

(ii) confirm the decision and direct the Board to erase the name of such person from the register, or

(iii) give such other directions to the Board as the Court thinks proper,

(b) if at any time the Board satisfies the High Court that such person has delayed unduly in proceeding with the application, the High Court shall, unless it sees good reason to the contrary, confirm the decision and direct the Board to erase the name of such person from the register,

(c) the High Court may direct how the costs of the application are to be borne.

(4) Where a person to whom a decision of the Board under this section relates does not within the period of twenty-one days, beginning on the date of the decision, apply to the High Court for cancellation of the decision, the Board may apply ex parte to the High Court for confirmation of the decision and, if the Board so applies, the High Court, on the hearing of the application, shall, unless it sees good reason to the contrary, confirm the decision and direct the Board to erase the name of such person from the register.

(5) The decision of the High Court on an application under this section shall be final, save that by leave of that Court or the Supreme Court, an appeal, by the Board or the person concerned, from the decision shall lie to the Supreme Court on a specified question of law.

(6) On erasing the name of a person from the register under this section, the Board shall forthwith send by pre-paid post to such person, at his address as stated in the register, notice in writing of the erasure.

(7) The name of any person which has been erased from the register under this section may at any time be restored to the register by direction of the Board but not otherwise, and when a person's name is so restored to the register, the Board may attach to the restoration such conditions (including the payment of a fee not exceeding the fee which would be payable by such person if he was then being registered for the first time) as the Board thinks fit.

43. —Where the former Board has decided to hold, or has appointed any member or members of that Board to hold, an inquiry pursuant to the Nurses Act, 1950 , and that inquiry has not been completed before the commencement of this Act, the inquiry shall be discontinued and shall be recommenced by the Fitness to Practise Committee as if this Act had been in force at the time at which such decision was taken or such member or members were appointed and the provisions of this Part of this Act shall apply to any inquiry discontinued and recommenced pursuant to this section.

44. —(1) Whenever the Board is satisfied that it is in the public interest so to do, the Board may apply to the High Court for an order in relation to any person registered in the register that, during the period specified in the order, registration of that person's name in the register shall not have effect.

(2) An application under this section may be made in a summary manner and shall be heard otherwise than in public.

(3) The High Court may make, in any application under this section, such interim or interlocutory order (if any) as it considers appropriate.

45. —Proceedings under section 38 of this Act, proceedings of or communications to or by the Board pursuant to sections 39 , 40 , 41 and 42 of this Act, reports made by the Fitness to Practise Committee to the Board under this Part of this Act and any other communications between the Committee and the Board made in the exercise or performance of the powers, duties or functions of the Committee or the Board, as the case may be, shall in any action for defamation, be absolutely privileged.

46. —The Board shall notify the Minister, and, in the case of a person the name of whose employer is known to the Board, such employer, on the occasion of—

(a) the erasure of the name of a person from the register.

(b) the restoration of the name of a person to the register.

(c) the suspension of the name of a person from the register.

(d) the termination of a period of suspension from the register, or

(e) the attachment of conditions to the retention of the name of a person on the register.

of the erasure, restoration, suspension, termination of suspension or attachment of conditions, as the case may be.

47. —(1) The Board shall, on the payment of a special fee to the Board by any person whose name was erased or whose registration was suspended pursuant to section 39 (1) (b) of this Act from the register for non-payment of a retention fee (and for no other reason) restore the person's name to the register or terminate the suspension, as the case may be.

(2) In this section “special fee” means a fee of such amount as may be fixed from time to time by the Board with the consent of the Minister.