New South Wales Bills New South Wales Bills[Index] [Search] [Download] [Related Items] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Nurses and Midwives Amendment
(Performance Assessment) Bill 2004
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendment of Nurses and Midwives Act 1991 No 9 2
Schedule 1 Amendments 3
I certify that this PUBLIC BILL, which originated in the LEGISLATIVE ASSEMBLY,
has finally passed the LEGISLATIVE COUNCIL and the LEGISLATIVE ASSEMBLY of
NEW SOUTH WALES.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2004
New South Wales
Nurses and Midwives Amendment
(Performance Assessment) Bill 2004
Act No , 2004
An Act to amend the Nurses and Midwives Act 1991 with respect to the performance
assessment of the professional performance of nurses and midwives; and for other
purposes.
I have examined this Bill, and find it to correspond in all respects with the Bill
as finally passed by both Houses.
Chairman of Committees of the Legislative Assembly.
Clause 1 Nurses and Midwives Amendment (Performance Assessment) Bill 2004
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Nurses and Midwives Amendment (Performance
Assessment) Act 2004.
2 Commencement
This Act commences on a day or days to be appointed by proclamation.
3 Amendment of Nurses and Midwives Act 1991 No 9
The Nurses and Midwives Act 1991 is amended as set out in Schedule 1.
Page 2
Nurses and Midwives Amendment (Performance Assessment) Bill 2004
Amendments Schedule 1
Schedule 1 Amendments
(Section 3)
[1] Section 3 Definitions
Insert in alphabetical order in section 3 (1):
assessor means a person appointed as an assessor under
Division 6 of Part 4A.
Performance Review Panel means a Performance Review Panel
constituted under Division 6 of Part 4A.
[2] Part 4A
Insert after Part 4:
Part 4A Performance assessment
Division 1 Preliminary
42E Meaning of "professional performance"
For the purposes of this Part, a reference to the professional
performance of a nurse or midwife is a reference to the
knowledge, skill or care possessed and applied by the nurse or
midwife in the practice of nursing or midwifery.
42F Meaning of "unsatisfactory" in relation to professional
performance
For the purposes of this Part, the professional performance of a
nurse or midwife is unsatisfactory if it is below the standard
reasonably expected of a nurse or midwife of an equivalent level
of training or experience.
Division 2 Board may obtain performance assessment
42G Power to obtain assessment
The Board may have the professional performance of a nurse or
midwife assessed under this Part if any matter comes to its
attention that indicates that the professional performance of the
nurse or midwife, or any aspect of the nurse's or midwife's
professional performance, is unsatisfactory. This is not limited to
matters that are the subject of a complaint or notification to the
Board.
Page 3
Nurses and Midwives Amendment (Performance Assessment) Bill 2004
Schedule 1 Amendments
42H Serious matters not to be referred for assessment
(1) The Board must not have the professional performance of a nurse
or midwife assessed under this Part if a matter giving rise to the
proposed assessment:
(a) raises a significant issue of public health or safety, or
(b) raises a prima facie case of professional misconduct by the
nurse or midwife, or unsatisfactory professional conduct
by the nurse or midwife.
(2) Any such matter is to be dealt with as a complaint.
42I Persons may notify the Board of professional performance
matters
(1) A person may notify the Board of any matter that the person
thinks indicates that the professional performance of a nurse or
midwife is unsatisfactory.
(2) The Board is not to have the professional performance of the
nurse or midwife concerned assessed on the basis of that
notification if it is made anonymously.
Note. A complaint can be made by any person (see section 44). The
complaint must be in writing and contain particulars of the allegations on
which it is founded (see section 44). A complaint can be treated by the
Board as a performance assessment matter (see section 45), but the
Board must consult with the Commission before taking any action with
respect to the complaint (see section 46).
42J Commission may refer professional performance matters to Board
(1) If the Commission becomes aware of any matter that the
Commission considers indicates that the professional
performance of a nurse or midwife is unsatisfactory, 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.
Division 3 Assessment of professional performance by
assessor
42K How Board obtains an assessment
The Board has the professional performance of a nurse or
midwife assessed by having one or more assessors conduct an
assessment of the nurse's or midwife's professional performance,
or of any particular aspect or aspects of the nurse's or midwife's
professional performance.
Page 4
Nurses and Midwives Amendment (Performance Assessment) Bill 2004
Amendments Schedule 1
42L Information to be given to nurse or midwife
(1) As soon as practicable after deciding to have the professional
performance of a nurse or midwife assessed, the Board is to
inform the nurse or midwife in writing of that decision.
(2) The information given to the nurse or midwife is to include the
following:
(a) details of the matter or matters that gave rise to the
assessment,
(b) information about how the performance assessment
process under this Part works.
42M Report and recommendations by assessor
(1) An assessor who is required by the Board to conduct an
assessment of a nurse's or midwife's professional performance is
to:
(a) conduct an assessment of the nurse's or midwife's
professional performance, and
(b) report in writing on that assessment to the Board.
(2) The report is to include such recommendations as the assessor
considers appropriate.
(3) If more than one assessor is appointed to assess the professional
performance of a nurse or midwife, the report may be made
jointly or separately, but in any case is to be made in the manner
directed by the Board.
42N Action that may be taken by Board
(1) After receiving the report of an assessor, the Board may:
(a) determine that no further action should be taken in respect
of the nurse or midwife concerned, or
(b) require a Performance Review Panel to conduct a review
of the professional performance of the nurse or midwife, or
(c) make a complaint against the nurse or midwife in
accordance with Part 5, or
(d) refer the matter to an Impairment Panel, or
(e) counsel the nurse or midwife concerned or direct the nurse
or midwife concerned to attend counselling.
(2) The Board must make a complaint against the nurse or midwife
concerned if the assessment:
(a) raises a significant issue of public health or safety, or
Page 5
Nurses and Midwives Amendment (Performance Assessment) Bill 2004
Schedule 1 Amendments
(b) raises a prima facie case of professional misconduct by a
nurse or midwife, or unsatisfactory professional conduct
by a nurse or midwife.
(3) This section does not limit the Board's powers under section 48.
Division 4 Performance review by Performance Review
Panel
42O Performance Review Panel to conduct performance review
(1) A Performance Review Panel is to conduct a review (referred to
in this Part as a performance review) of the professional
performance of a nurse or midwife if required to do so by the
Board.
(2) The chairperson of the Performance Review Panel is to inform
the nurse or midwife concerned in writing that a performance
review will be conducted not less than 14 days before the time
and place appointed for the performance review.
42P Performance Review Panel not to take action while Commission
investigating
A Performance Review Panel is not to take any action in relation
to a nurse or midwife if the Panel becomes aware that the nurse
or midwife is the subject of a complaint that is being investigated
by the Commission, unless the Commission agrees to the
continuation of the performance review.
42Q Performance Review Panel must refer certain matters to Board
(1) A Performance Review Panel must terminate a performance
review if before or during the performance review the Panel
forms an opinion that:
(a) the performance review raises a significant issue of public
health or safety, or
(b) the performance review raises a prima facie case of
professional misconduct by a nurse or midwife, or
unsatisfactory professional conduct by a nurse or midwife.
(2) When the Performance Review Panel terminates a performance
review because of subsection (1), it must refer the issue or case
back to the Board with a recommendation that a complaint be
made against the nurse or midwife concerned.
(3) The Board is to deal with the matter accordingly.
Page 6
Nurses and Midwives Amendment (Performance Assessment) Bill 2004
Amendments Schedule 1
42R Actions by Performance Review Panel
(1) At the completion of a performance review, a Performance
Review Panel may make such recommendations to the Board in
respect of the nurse or midwife concerned as the Panel considers
appropriate.
(2) Without limiting subsection (1), if the Performance Review
Panel finds that the professional performance of the nurse or
midwife, or a particular aspect of the professional performance of
the nurse or midwife, is unsatisfactory, the Panel may do any one
or more of the following things:
(a) direct that such conditions, relating to the person's
practising nursing or midwifery, as it considers
appropriate be imposed on the person's registration or
enrolment,
(b) order that the nurse or midwife complete such educational
courses as are specified by the Panel,
(c) order that the nurse or midwife report on his or her practice
of nursing or midwifery at the times, in the manner and to
the persons specified by the Panel,
(d) order that the nurse or midwife seek and take advice, in
relation to the management of his or her practice of nursing
or midwifery, from such persons as are specified by the
Panel.
(3) If the Performance Review Panel finds that a matter:
(a) raises a significant issue of public health or safety, or
(b) raises a prima facie case of professional misconduct by a
nurse or midwife, or unsatisfactory professional conduct
by a nurse or midwife,
the Panel must recommend to the Board that a complaint be made
against the nurse or midwife concerned, in which case the Board
is to deal with the matter accordingly.
(4) In any other case that the Board thinks it appropriate to do so, the
Board may make a complaint in respect of a matter that has been
considered by a Performance Review Panel, after consulting with
the Commission.
42S Re-assessment
(1) Without limiting section 42R, a Performance Review Panel may
direct that a nurse's or midwife's professional performance be
re-assessed at a future date.
Page 7
Nurses and Midwives Amendment (Performance Assessment) Bill 2004
Schedule 1 Amendments
(2) The Board is to have one or more assessors conduct that
assessment, when it is required, and report to the Board on the
assessment.
(3) The Board may take any action in respect of that assessment that
is available to the Board under section 42N, including requiring
a Performance Review Panel to conduct a further performance
review in relation to the nurse or midwife.
42T Decision
(1) A Performance Review Panel must provide a written statement of
a decision on a performance review to the nurse or midwife
concerned and to the Board, and must do so within one month
after the decision is made.
(2) The statement of the decision must include reasons for the
decision.
(3) The Board may provide a copy of the statement of decision to
such other persons as the Board thinks fit.
42U Statement need not contain confidential information
(1) A Performance Review Panel is not required to include
confidential information in the statement of a decision. If a
statement would be false or misleading if it did not include the
confidential information, the Panel is not required to provide the
statement.
(2) When confidential information is not included in the statement of
a decision provided to a person or the statement is not provided
to a person because of subsection (1), the Performance Review
Panel must give a confidential information notice to the person.
(3) A confidential information notice is a notice that indicates that
confidential information is not included or that the statement will
not be provided (as appropriate) and gives the reasons for this.
The notice must be in writing and must be given within one
month after the decision is made.
(4) This section does not affect the power of a court to make an order
for the discovery of documents or to require the giving of
evidence or the production of documents to a court, subject to the
provisions of this Act relating to protected reports.
Page 8
Nurses and Midwives Amendment (Performance Assessment) Bill 2004
Amendments Schedule 1
Division 5 Other provisions relating to performance
assessment
42V Monitoring by Board
(1) Following a performance review by a Performance Review
Panel, the Board is to:
(a) monitor compliance with any orders made by the Panel,
and
(b) from time to time evaluate the effectiveness of those orders
in improving the professional performance of the nurse or
midwife concerned to a standard that is commensurate
with other nurses or midwives of an equivalent level of
training or experience.
(2) The Board may take any action under this Act in respect of a
nurse or midwife that it considers appropriate as a result of the
exercise of its functions under subsection (1).
42W Other provisions relating to performance assessments
Schedule 2A has effect.
Division 6 Performance Review Panels and assessors
42X Performance Review Panels
(1) There are to be Performance Review Panels for the purposes of
this Act.
(2) A Performance Review Panel has and may exercise the
jurisdiction and functions conferred or imposed on it by or under
this or any other Act.
(3) When the Board decides to require a Performance Review Panel
to conduct a performance review of the professional performance
of a nurse or midwife, the Board is to appoint 3 persons to sit as
the Panel for the purpose of that performance review.
(4) Of those 3 persons:
(a) 2 are to be nurses if the performance review concerns a
nurse or are to be midwives if the performance review
concerns a midwife, and
(b) one is to be a lay person (that is, a person who is not a nurse
or midwife).
(5) One of the members of the Panel is to be appointed by the Board
as chairperson of the Panel.
Page 9
Nurses and Midwives Amendment (Performance Assessment) Bill 2004
Schedule 1 Amendments
(6) A person may be appointed to sit on a Performance Review 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 his or her capacity as a member of the Board.
(7) A member of a Performance Review Panel, while sitting on the
Panel, is entitled to be paid by the Board at a rate determined by
the Board.
(8) The rate is to be determined by the Board having regard to the
rate paid to witnesses who give expert evidence in the Supreme
Court.
42Y Decisions of Performance Review Panels
(1) A decision supported by a majority of members of a Performance
Review Panel is the decision of the Panel.
(2) The chairperson of a Performance Review Panel may exercise the
following functions of a Panel:
(a) power to terminate a performance review,
(b) power to hand down a decision of the Panel on a
performance review.
(3) Any power of a Performance Review Panel that is exercised by
the chairperson of the Panel under this Act is taken to have been
exercised by the Panel.
42Z Assessors
(1) The Board may appoint suitably qualified persons to be assessors
for the purposes of this Act.
(2) Assessors are to be appointed on such terms and conditions as the
Board thinks fit.
(3) An assessor has such functions as are conferred on an assessor by
this Act and such other functions, in connection with this Part, as
may be conferred on an assessor by the Board.
Division 7 Appeal against actions of Performance
Review Panel
42ZA Appeals against decisions of Panel
(1) A nurse or midwife who is the subject of a performance review
by a Performance Review Panel may appeal to the Tribunal
against a decision of the Panel or any order or direction made by
the Panel under this Part.
Page 10
Nurses and Midwives Amendment (Performance Assessment) Bill 2004
Amendments Schedule 1
(2) An appeal must be made within 28 days (or such longer period as
the Registrar may allow in a particular case) after notice of the
decision or the making of the order or direction is given to the
nurse or midwife concerned.
(3) The appeal must be lodged with the Registrar who is to refer it to
the Tribunal.
(4) The appeal is to be dealt with by way of rehearing and fresh
evidence, or evidence in addition to or in substitution for the
evidence received at the performance review, may be given.
(5) The Tribunal may, as it thinks appropriate:
(a) dismiss the appeal, or
(b) make any finding or exercise any power or combination of
powers that the Performance Review Panel could have
made or exercised.
(6) An appeal under this section does not affect any finding or
exercise of power with respect to which it has been made until the
Tribunal makes an order on the appeal.
42ZB Appeals on points of law
(1) A nurse or midwife who is the subject of a performance review
by a Performance Review Panel may appeal with respect to a
point of law to the Chairperson of the Tribunal or a Deputy
Chairperson nominated by the Chairperson.
(2) An appeal may be made:
(a) during a performance review--within 28 days after the
date of the Performance Review Panel's decision on the
point of law that is the subject of the appeal, or
(b) before the commencement of a performance review by a
Performance Review Panel but after the date the nurse or
midwife is informed of the performance review.
(3) If a performance review has not been completed when an appeal
is made, the Performance Review Panel must not continue with
the performance review until the appeal has been disposed of.
(4) The Performance Review Panel must not make any decision that
is inconsistent with the Chairperson's or Deputy Chairperson's
determination with respect to the point of law.
Page 11
Nurses and Midwives Amendment (Performance Assessment) Bill 2004
Schedule 1 Amendments
[3] Section 45 Referral or dismissal of complaints by Board
Insert after section 45 (1) (a):
(a1) refer the professional performance of the nurse or midwife
concerned for assessment under Part 4A, or
[4] Section 46 Role of Health Care Complaints Commission
Insert "or the nurse or midwife concerned has been referred for performance
assessment under Part 4A" after "Panel" in section 46 (4).
[5] Section 56 Decisions of a Committee
Insert ", subject to the provisions of this Act relating to protected reports" after
"to a court" in section 181 (4).
[6] Section 66 Decisions of the Tribunal
Insert ", subject to the provisions of this Act relating to protected reports" after
"to a court" in section 66 (8).
[7] Section 76A
Insert after section 76:
76A Confidentiality of protected reports
(1) A person must not directly or indirectly make a record of or
disclose to any person any information contained in a protected
report which has come to the person's notice in the exercise of the
person's functions under this Act, except for the purposes of
exercising functions under this Act.
Maximum penalty: 50 penalty units.
(2) This section does not prevent the disclosure of a protected report
to the Commission.
Note. For types of protected reports see clauses 8 and 14 of Schedule
2A.
[8] Section 77 Protection from liability
Insert at the end of section 77 (e):
or
(f) a Performance Review Panel or a member of a
Performance Review Panel,
Page 12
Nurses and Midwives Amendment (Performance Assessment) Bill 2004
Amendments Schedule 1
[9] Schedule 2A
Insert after Schedule 2:
Schedule 2A Provisions relating to performance
assessments
(Section 42W)
Part 1 Provisions relating to assessors
1 General
(1) An assessor may exercise the powers conferred by this Part only
for the purpose of conducting an assessment of the professional
performance of a nurse or midwife when required by the Board
or a Performance Review Panel.
(2) An assessment is to be conducted in accordance with any
directions given by the Board or a Performance Review Panel.
(3) If the Board or a Performance Review Panel instructs an assessor
to limit his or her assessment to a particular aspect or aspects of
a nurse's or midwife's professional performance, the assessment
is to be limited to that aspect or those aspects.
(4) However, an assessor may assess other aspects of the
professional performance of a nurse or midwife if during the
course of an assessment the assessor forms the opinion that other
aspects of the professional performance of the nurse or midwife
may be unsatisfactory and should be assessed.
2 Entry to premises
(1) An assessor may at any reasonable time enter and inspect:
(a) any premises that the assessor reasonably believes are used
by a nurse or midwife in connection with his or her
professional practice, and
(b) any premises in or on which the assessor reasonably
believes records relating to the carrying out of a
professional practice by a nurse or midwife are kept.
(2) An assessor may enter premises only:
(a) with the consent of the occupier and the nurse or midwife
to whom the assessment relates, or
Page 13
Nurses and Midwives Amendment (Performance Assessment) Bill 2004
Schedule 1 Amendments
(b) after having given the occupier of the premises, and the
nurse or midwife to whom the assessment relates, at least
14 days notice of the assessor's intention to enter the
premises.
(3) On premises entered on the basis that they are used by a nurse or
midwife in connection with his or her professional practice, an
assessor has the following powers:
(a) power to examine any equipment that the assessor
reasonably believes is, has been or may be used in
connection with the professional practice,
(b) power to take photographs of the premises, or of any
equipment on the premises (being equipment that the
assessor reasonably believes is, has been or may be used in
connection with the professional practice),
(c) power to require the production of and inspect any stocks
of any substance or drugs in or about those premises,
(d) power to require any person on those premises to produce
any records in the possession or under the control of that
person relating to the carrying out of that professional
practice,
(e) power to take copies of, or extracts or notes from, any such
records,
(f) power to ask questions of any person on those premises,
(g) power to require the owner or occupier of those premises
to provide the assessor with such assistance and facilities
as is or are reasonably necessary to enable the assessor to
exercise the functions of an assessor under this clause.
(4) On premises entered on the basis that records relating to the
carrying out of professional practice by a nurse or midwife are
kept there, an assessor has the following powers:
(a) power to require any person on those premises to produce
any records in the possession or under the control of that
person and relating to the carrying out of that professional
practice,
(b) power to take copies of, or extracts or notes from, any such
records.
(5) This clause does not authorise an assessor to enter any part of
premises that is being used for residential purposes except with
the consent of the occupier.
Page 14
Nurses and Midwives Amendment (Performance Assessment) Bill 2004
Amendments Schedule 1
(6) This clause does not authorise an assessor to require a person to
answer any question, and a failure or refusal by a person to
answer any question does not constitute an offence against
clause 5.
(7) However, a failure or refusal by a nurse or midwife, without
reasonable excuse, to answer any question asked by an assessor
is evidence that the professional performance of the nurse or
midwife is unsatisfactory.
3 Power to conduct assessment exercise
(1) An assessor may, by notice given to a nurse or midwife who is
the subject of an assessment, require the nurse or midwife to take
part in an assessment exercise.
(2) An assessment exercise is an exercise during which the assessor
observes and assesses the professional performance of the nurse
or midwife.
(3) If practicable, an assessment exercise is to be based on a
simulated clinical situation.
(4) However, an assessment exercise may be based on an actual
clinical situation if a simulated exercise is not practicable in the
circumstances.
(5) The time and place for, and the length of, the assessment exercise
must be reasonable.
(6) A failure or refusal by a nurse or midwife to take part in, or to
continue with, an assessment exercise does not constitute an
offence against clause 5.
(7) However, a failure or refusal by a nurse or midwife, without
reasonable excuse, to take part in or to continue with an
assessment exercise is evidence that the professional
performance of the nurse or midwife is unsatisfactory.
(8) This clause does not authorise an assessor to be present during
any clinical examination of a person, or at the giving or
performance of any other service or treatment by a nurse or
midwife in respect of a person, without the consent of the person.
4 Answers to questions
(1) Any information furnished by a person in answering a question
asked by an assessor for the purposes of an assessment under
Part 4A of this Act is not admissible against the person in any
civil proceedings before a court except with the consent of the
person.
Page 15
Nurses and Midwives Amendment (Performance Assessment) Bill 2004
Schedule 1 Amendments
(2) Subclause (1) does not extend to any information furnished by a
person that is a record required to be kept by or under this or any
other Act.
(3) In this clause:
court includes any tribunal, authority or person having power to
require the production of documents or the answering of
questions, but does not include the Tribunal, a Committee or a
Performance Review Panel or the Supreme Court (in respect of
appeal proceedings under this Act).
5 Offences
A person must not:
(a) prevent an assessor from exercising any function conferred
or imposed on the assessor under this Part, or
(b) hinder or obstruct an assessor in the exercise of any such
function, or
(c) furnish an assessor with information knowing it to be false
or misleading in a material particular.
Maximum penalty:
(a) for an offence under paragraph (a) or (b)--50 penalty
units, or
(b) for an offence under paragraph (c)--20 penalty units.
6 Offence of impersonating assessor
A person must not impersonate or falsely represent that the
person is an assessor.
Maximum penalty: 50 penalty units.
7 Certificates of authority
(1) An assessor is to be provided with a certificate of authority in a
form approved by the Board.
(2) An assessor must, on exercising in any place any function of the
assessor under this Part, produce the assessor's certificate of
authority to any person apparently in charge of the place who
requests its production.
8 Confidentiality of assessor's report
(1) A report by an assessor to the Board or a Performance Review
Panel about his or her assessment of the professional
performance of a nurse or midwife may not be admitted or used
in any civil proceedings before a court except with the consent of:
Page 16
Nurses and Midwives Amendment (Performance Assessment) Bill 2004
Amendments Schedule 1
(a) the person giving the report, and
(b) the nurse or midwife concerned.
(2) A person may not be compelled to produce the report or to give
evidence in relation to the report or its contents in any such civil
proceedings.
(3) A report referred to in this clause is a protected report for the
purposes of this Act.
(4) In this clause:
court includes any tribunal, authority or person having power to
require the production of documents or the answering of
questions, but does not include the Tribunal, a Committee or a
Performance Review Panel or the Supreme Court (in respect of
appeal proceedings under this Act).
report includes a copy, reproduction and duplicate of the report
or any part of the report, copy, reproduction or duplicate.
9 Employment-related performance assessment
(1) In this clause, employment-related assessment means an
assessment of the performance of a nurse or midwife that has
been carried out by or on behalf of the employer of the nurse or
midwife in connection with that employment.
(2) The employer of a nurse or midwife may provide a copy of an
employment-related assessment to an assessor who is conducting
an assessment of the professional performance of the nurse or
midwife for the Board or a Performance Review Panel.
(3) The assessor may attach a copy of the assessment to the
assessor's report to the Board or a Performance Review Panel as
a part of the assessor's report.
Part 2 Provisions relating to performance reviews
10 Conduct of performance review
(1) A performance review is to be conducted in the manner
determined by the Performance Review Panel.
(2) The performance review is to be conducted:
(a) with as little formality and technicality, and as much
expedition, as the requirements of this Act and the proper
consideration of the matter permit, and
(b) in the absence of the public.
Page 17
Nurses and Midwives Amendment (Performance Assessment) Bill 2004
Schedule 1 Amendments
(3) In conducting a performance review a Performance Review
Panel is not bound by the rules of evidence but may inform itself
on any matter in any way it thinks appropriate.
11 Power to summon witnesses and take evidence
(1) The chairperson of a Performance Review Panel may summon a
person to appear at a performance review and to produce such
documents (if any) as are referred to in the summons.
(2) The chairperson of the Panel may require a person appearing at
the performance review to produce a document.
(3) A person served with a summons to appear at a performance
review to give evidence must not, without reasonable excuse:
(a) fail to attend as required by the summons, or
(b) fail to attend from day to day unless excused, or released
from further attendance, by a member of the Panel.
Maximum penalty: 20 penalty units.
(4) A person appearing at a performance review to give evidence
must not, without reasonable excuse:
(a) fail to answer a question that the person is required to
answer by the chairperson of the Panel, or
(b) fail to produce a document that the person is required to
produce by this clause.
Maximum penalty: 20 penalty units.
12 Power to obtain documents
(1) A member of a Performance Review Panel may, by notice in
writing served on a person, require the person:
(a) to attend, at a time and place specified in the notice, before
a person specified in the notice, being a member of the
Performance Review Panel or a person authorised by the
Panel in that behalf, and
(b) to produce, at that time and place, to the person so
specified a document specified in the notice.
(2) A person who fails, without reasonable excuse, to comply with a
notice served on the person under this clause is guilty of an
offence.
Maximum penalty: 20 penalty units.
Page 18
Nurses and Midwives Amendment (Performance Assessment) Bill 2004
Amendments Schedule 1
13 Nurse or midwife entitled to make representations
(1) A nurse or midwife who is the subject of a performance review is
entitled to attend at the performance review and make oral or
written representations to the Performance Review Panel with
respect to the subject matter of the performance review.
(2) The nurse or midwife is entitled to be accompanied by a legal
practitioner or other adviser, but is not entitled to be represented
by the legal practitioner or other adviser.
(3) This clause does not prevent a Performance Review Panel from
conducting a performance review in the absence of the nurse or
midwife, as long as the nurse or midwife has been informed of the
performance review.
14 Panel may obtain reports
(1) A Performance Review Panel may, for the purpose of conducting
a performance review, obtain a report from a person who, in the
opinion of the Panel, is sufficiently qualified or experienced to
give expert advice on the matter that is the subject of the
performance review.
(2) Such a report may not be admitted or used in any civil
proceedings before a court except with the consent of:
(a) the person giving the report, and
(b) the nurse or midwife concerned.
(3) A person may not be compelled to produce the report or to give
evidence in relation to the report or its contents in any such civil
proceedings.
(4) A report referred to in this clause is a protected report for the
purposes of this Act.
(5) In this clause:
court includes any tribunal, authority or person having power to
require the production of documents or the answering of
questions, but does not include the Tribunal, a Committee or a
Performance Review Panel or the Supreme Court (in respect of
appeal proceedings under this Act).
report includes a copy, reproduction and duplicate of the report
or any part of the report, copy, reproduction or duplicate.
15 Assessors may assist Panel
(1) The Board may appoint one or more assessors to assist a
Performance Review Panel with a performance review.
Page 19
Nurses and Midwives Amendment (Performance Assessment) Bill 2004
Schedule 1 Amendments
(2) The Performance Review Panel may direct such an assessor:
(a) to conduct an assessment of the professional performance
of a nurse or midwife, and report on that assessment to the
Panel, and
(b) to provide such other assistance in connection with the
performance review as the Panel directs.
16 Release of information
(1) The chairperson of a Performance Review Panel may, if the
chairperson thinks it appropriate in the particular circumstances
of the case (and whether or not on the request of the nurse or
midwife concerned or any other person):
(a) direct that the name of any witness is not to be disclosed in
the performance review, or
(b) direct that all or any of the following matters are not to be
published:
(i) the name and address of any witness,
(ii) the name and address of a nurse or midwife,
(iii) any specified evidence,
(iv) the subject matter of the performance review.
(2) A direction may be amended or revoked at any time by the
chairperson of the Performance Review Panel.
(3) A direction may be given before or during a performance review,
but must not be given before the performance review unless
notice is given of the time and place appointed by the chairperson
of the Performance Review Panel for consideration of the matter
to the following persons:
(a) a person who requested the direction,
(b) the nurse or midwife concerned,
(c) such other persons as the person presiding thinks fit.
(4) A person who contravenes a direction given under this clause is
guilty of an offence.
Maximum penalty:
(a) in the case of a corporation, 150 penalty units, or
(b) in any other case, 20 penalty units.
Page 20
Nurses and Midwives Amendment (Performance Assessment) Bill 2004
Amendments Schedule 1
17 Panel to consider impact of order or direction on third parties
(1) If as a result of a performance review a Performance Review
Panel proposes to give a direction or make an order that in the
opinion of the Panel will impose an appreciable burden on an
identifiable third party in connection with a nurse's or midwife's
practice, the Panel:
(a) is to give the third party an opportunity to make
submissions to the Panel with respect to the direction or
order, and
(b) is to take any such submission into account before giving
the direction or making the order.
(2) If a Performance Review Panel decides to give a direction or
make an order that will, in the opinion of the Panel, impose an
appreciable burden on an identifiable third party in connection
with a nurse's or midwife's practice, the Panel is to give the third
party notice of the direction or order as soon as practicable after
it is given or made.
(3) An example of a direction or order that may impose an
appreciable burden on an identifiable third party in connection
with a nurse's or midwife's practice is a direction or order that
has the effect of requiring the practice of a nurse or midwife to be
supervised by an identified third party.
(4) In this clause:
third party means a health service provider other than the nurse
or midwife to whom a review relates, but does not include a
person or body exercising functions conferred by this Act or the
Health Care Complaints Act 1993.
[10] Schedule 3 Savings and transitional provisions
Insert at the end of clause 2 (1):
Nurses and Midwives Amendment (Performance Assessment)
Act 2004
Page 21
[Index] [Search] [Download] [Related Items] [Help]