Nursing is often referred to as a science and an art. A science in the sense that the nursing profession is based on research and an art because nursing is a profession grounded on caring for others and this entails building therapeutic relationships with patients.
When things go wrong however, nurses are held to account as professionals. This article examines the notification and investigative processes by which registered nurses can be held to account under the Health Practitioner Regulation National Law (National Law) as in force in each State and Territory.
AHPRA and the NMBA
The Nursing and Midwifery Board of Australia (NMBA) is one of 14 national boards established under section 31 of the National Law. Comprised of senior nursing and midwifery professionals and of a community representative, the NMBA has, amongst other roles, overseen the receipt, assessment and investigation of notifications about Registered Nurses and Midwives since 1 July 2010.
Where appropriate the NMBA establishes health, performance and processional standards panels and/or makes referrals to responsible tribunals in each State or Territory. The NMBA replaced the former State and Territory nursing and midwifery boards.
The Australian Health Practitioner Regulation Agency (AHPRA) receives notifications and complaints about nurses and midwives on behalf of the NMBA. Where the notification or complaint received both relates to a nurse or midwife and relates to a matter which is a ground for a notification, then that matter is referred to the NMBA for consideration. AHPRA does not make decisions on how the notification is ultimately dealt with; that is the NMBA’s role.
In 2014/2015, AHPRA received 1,807 notifications in relation to registered nurses and midwives. This accounted for 21% of the total notifications (8,426) made in that year. Of the total notifications made against all health practitioners, 52.1% (4,389) related to issues to do with the registered practitioners’ clinical care or health impairments. The other types of issues that notifications were made about included pharmacy/medication issues, communication, confidentiality, documentation and informed consent.
Types of notifications
A notification can either be a voluntary notification or mandatory notification. Anyone can make a voluntary notification under the National Law about a registered nurse or registered midwife (‘Practitioner’) or nursing/midwifery student (‘Student’). This includes other nurses, midwives, students, health practitioners and members of the public. The grounds for making a voluntary notification against Practitioners include that (among others):
(a) The Practitioner’s professional conduct is or may be of a lesser standard than might be expected;
(b) The Practitioner’s knowledge, skill or judgment may be below the standard reasonably expected of the practitioner;
(c) The Practitioner is not a fit and proper person;
(d) The Practitioner has an impairment; and
(e) The Practitioner has contravened the National Law.
Mandatory notifications are required to be made by a registered health practitioner (e.g. nurse, doctor, physiotherapist, pharmacist) where, in the course of practising their health profession they form a reasonable belief that another registered health practitioner (e.g. nurse, doctor, physiotherapist, pharmacist) has behaved in a way that constitutes notifiable conduct or that a student has an impairment that in the course of undertaking clinical training causes the student to behave in way that constitutes notifiable conduct.
For the purposes of mandatory notifications, notifiable conduct means:
(a) Practising while intoxicated by alcohol or drugs;
(b) Engaging in sexual misconduct in connection with the Practitioner’s practice;
(c) Placing the public at risk of harm because of an impairment;
(d) Placing the public at risk of harm through practising the profession in a way which is a significant departure from accepted professional standards.
It is important to note that mandatory notification provisions apply to nurses individually and the NMBA may take action against a nurse who fails to notify it of notifiable conduct. The Health Services Commission in each State and Territory may also refer matters to the NMBA.
Once notification has been received by AHPRA, the NMBA has 60 days to conduct a preliminary assessment of the notification and decide what further action may be required.
The NMBA on assessment of a notification may decide:
(a) To take no further action; or
(b) Conduct an investigation of the notification received; or
(c) Take immediate action to cancel, suspend or impose a condition/undertaking on the Practitioner’s registration.
The NMBA may take no further action where a notification is frivolous, vexatious, misconceived or lacking in substance. Conversely, immediate action is taken where the NMBA believes that immediate action is necessary to protect public health or safety.
Investigations are commenced where the NMBA considers that a Practitioner’s practice or conduct may be unsatisfactory. An AHPRA investigator is appointed by the NMBA to conduct the investigation in a timely manner. The investigator reports to the NMBA, which then determines what further action may be required.
The NMBA may, after considering the investigator’s report:
(a) Take no further action; or
(b) Caution the practitioner; or
(c) Impose conditions/require undertakings (including for further education or supervision);or
(d) Refer the matter to a performance and professional standards panel; or
(e) Refer the matter to a Tribunal.
At various points, a Practitioner may be asked to provide a written submission to assist the NMBA make an appropriate decision on the notification. It is important to seek advice early and ensure you provide the NMBA with clear, insightful and honest responses to the matters on which submissions have been sought.
Examples of conduct/practice that have resulted in disciplinary consequences for the registered nurse involved are set out below:
Example 1: Competence1
The registered nurse completed her Australian nursing qualification in 2003 and had worked as a registered nurse in geriatrics, orthopaedics and community health. The registered nurse then commenced work in a perioperative and critical care ward after having completed the required orientation and also specific in-service training.
Concerns were raised by other nursing staff on the critical care ward and a notification was made about the registered nurse’s competence. Strategies were developed for the nurse to improve and these included attending more in-service training and supervision by senior staff. Although these strategies were implemented the nurse continued to have problems. The incidents involved:
(a) 8 documentation errors;
(b) 16 clinical knowledge issues;
(c) 21 clinical care issues;
(d) 22 clinical communication issues; and
(e) An ongoing issue regarding ‘lack of hand washing’.
An external assessment was performed and concluded the nurse ‘could perform particular tasks but lacked the full understanding required to provide appropriate nursing care in a safe manner… also stated that she would expect that a new graduate nurse would function at a higher level’.
The registered nurse chose to represent herself through the investigation process. The registered nurse also chose not to attend the Tribunal hearing. In statements previously provided the registered nurse referenced “stress and adverse effects of close scrutiny” as affecting her performance.
The Tribunal found that the registered nurse had engaged in unsatisfactory professional conduct and professional misconduct.
Example 2: Social media/Breach of confidentiality
The NMBA received an anonymous complaint about a registered nurse working in a small community. The registered nurse was posting pictures of patients who had been treated on a social media website. The patients were able to be identified on the social media website.
The registered nurse admitted to posting pictures on social media but stated that the patients had consented. Additionally, the social media site was not available to the public.
After conducting an investigation, the NMBA imposed a caution on the registered nurse involved.
What should nurses do when faced with a notification?
A notification to AHPRA and the subsequent investigation process is stressful. This process involves preparing statements and may also involve having to appear personally before a panel or Tribunal.
All notifications made to AHPRA should be taken seriously, even if you personally think that the allegations are baseless or without merit. Even if you consider that the allegations are baseless, they may in fact still result in you being cautioned by the NMBA.
The outcomes of an AHPRA investigation can detrimentally impact on future employment options, promotions and current registration. Insight into the behaviours that may constitute professional misconduct and unprofessional conduct may go a long way to assisting the NMBA in having comfort that a registered nurse is not a danger to the public. Not seeking assistance and deciding to represent yourself or worse, not attending a hearing, will not help you at all.
If you are the subject of a notification, at first instance you should seek assistance from your professional indemnity insurer. Given the potentially serious outcomes of an AHPRA investigation, it is important that you give serious consideration to taking out your own policy for professional indemnity insurance.
You should consider doing so, even if you are an employee as your employer’s insurance does not usually provide legal assistance to employees in connection with disciplinary (and coronial) investigations. There may also be the need for separate representation from your colleagues at the place of employment, and having your own legal representation will potentially provide much needed reassurance.
Meridian Lawyers works closely with Guild Insurance, which offers insurance to nurses and nurse practitioners. Please contact our Health Law team if you have any questions.