Nurses and Midwives Amendment
(Performance Assessment) Bill 2004

New South Wales
Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.

This Bill is cognate with the Health Legislation Amendment (Complaints) Bill 2004.

Overview of Bill

The object of this Bill is to amend the Nurses and Midwives Act 1991 (the Principal
Act) to include provisions enabling the performance assessment of nurses and
midwives that mirror those existing in the Medical Practice Act 1992.

Outline of provisions

Clause 1 sets out the name (also called the short title) of the proposed Act.

Clause 2 provides for the commencement of the proposed Act on a day or days to be
appointed by proclamation.

Clause 3 is a formal provision that gives effect to the amendments to the Nurses and
Midwives Act 1991 set out in Schedule 1.

Schedule 1 Amendments
Schedule 1 [2] inserts proposed Part 4A into the Principal Act which contains
proposed sections 42E–42ZB dealing with performance assessment.

Proposed section 42E contains a definition of professional performance, being the
knowledge, skill or care possessed and applied by the nurse or midwife in the practice
of nursing or midwifery.

Proposed section 42F contains a definition of unsatisfactory professional
performance, being performance below the standard reasonably expected of a nurse
or midwife of an equivalent level of training or experience.

Proposed section 42G enables the Nurses and Midwives Board (the Board) to have
the professional performance of a nurse or midwife assessed under the proposed Part
if a matter comes to the Board’s attention that indicates that the nurse’s or midwife’s
professional performance is unsatisfactory.

Proposed section 42H provides that professional performance raising certain
serious questions may not be the subject of performance assessment.

Proposed section 42I enables a person (if the person is identified) to notify a matter
to the Board if the person thinks that the professional performance of a nurse or
midwife is unsatisfactory.

Proposed section 42J enables the Health Care Complaints Commission to refer a
matter to the Board if the Commission thinks that the professional performance of a
nurse or midwife is unsatisfactory.

Proposed section 42K provides that the professional performance of a nurse or
midwife referred for performance assessment is to be assessed by one or more
assessors.

Proposed section 42L requires the Board to inform a nurse or midwife if the Board
decides to have his or her performance assessed.

Proposed section 42M requires an assessor to conduct the assessment and report to
the Board on the assessment.

Proposed section 42N sets out the options that the Board has following assessment.

This includes taking no further action, requiring a Performance Review Panel to
conduct a review of the professional performance concerned, making a complaint,
referring the matter to an Impairment Panel or giving counselling.

Proposed section 42O requires a Performance Review Panel to conduct a review of
the professional performance of a nurse or midwife if required to do so by the Board.

Proposed section 42P prevents a Performance Review Panel conducting a review of
the professional performance of a nurse or midwife if the Health Care Complaints
Commission is investigating a complaint against the nurse or midwife.

Proposed section 42Q requires a Performance Review Panel to terminate the review
of the professional performance of a nurse or midwife and refer the matter to the
Board if it forms an opinion that certain serious issues are raised or there is a prima
facie case of professional misconduct or unsatisfactory professional conduct.

Proposed section 42R provides that a Performance Review Panel may make
recommendations to the Board as to certain specified action to take in relation to the
nurse or midwife concerned.

Proposed section 42S provides that a Performance Review Panel can also direct that
the nurse’s or midwife’s professional performance be re-assessed at a future date.

Proposed section 42T requires a Performance Review Panel to provide a written
statement of its decision on the performance review to the nurse or midwife
concerned and the Board.

Proposed section 42U enables a Performance Review Panel to exclude certain
confidential information from the statement of its decision.

Proposed section 42V requires the Board to monitor whether any orders made by a
Performance Review Panel are being complied with.

Proposed section 42W gives effect to proposed Schedule 2A which contains
provisions relating to performance assessment outlined below.

Proposed section 42X provides for the establishment of Performance Review
Panels.

Proposed section 42Y provides for a decision of a majority of members of a
Performance Review Panel to be the decision of the Panel.

Proposed section 42Z enables the Board to appoint suitably qualified persons as
assessors.

Proposed section 42ZA enables a nurse or midwife who has been the subject of a
performance review by a Panel to appeal to the Nurses and Midwives Tribunal. Such
an appeal is to be dealt with by way of a rehearing.

Proposed section 42ZB enables a nurse or midwife who is the subject of a
performance review by a Performance Review Panel to appeal to the Chairperson or
Deputy Chairperson of the Nurses and Midwives Tribunal on a point of law.

Schedule 1 [9] inserts proposed Schedule 2A into the Principal Act which contains
further provisions relating to performance assessments.

Part 1 of proposed Schedule 2A gives assessors certain powers, including powers of
entry to premises and inspection of premises and equipment and powers to ask
questions and require the production of substances and records. The powers of
assessors also include requiring a nurse or midwife to take part in an assessment
exercise. The proposed Part creates certain offences for obstructing assessors in the
performance of their functions, furnishing false information and impersonating
assessors. The proposed Part provides that an assessor’s report to the Board or a
Performance Review Panel is not admissible in civil proceedings without consent.

Part 2 of proposed Schedule 2A contains provisions in relation to the conduct of a
performance review by a Performance Review Panel. A Panel may summon
witnesses and take evidence, obtain documents, seek reports from experts and gain
assistance from assessors. The nurse or midwife concerned is entitled to make
representations to the Panel and the Panel may allow affected third parties to make
submissions.

Schedule 1 [1] and [3]–[8] make consequential amendments.

Schedule 1 [10] enables regulations to be made of a savings or transitional nature
consequent on the enactment of the proposed Act.

Note: If this Bill is not modified, these Explanatory Notes would reflect the Bill as passed in the House. If the Bill has been amended by Committee, these Explanatory Notes may not necessarily reflect the Bill as passed.

 

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