S.I. No. 164/2008 - Recognition of the Professional Qualifications of Nurses and Midwives (Directive 2005/36/EC) Regulations, 2008

S.I. No. 164 of 2008

RECOGNITION OF THE PROFESSIONAL QUALIFICATIONS OF NURSES AND MIDWIVES (DIRECTIVE 2005/36/EC) REGULATIONS, 2008

Notice of the making of this Statutory Instrument was published in

“Iris Oifigiúil” of 10th June, 2008.

The Minister for Health and Children, in exercise of the powers conferred on her by Section 3 of the European Communities Act, 1972 (No. 27 of 1972), as amended by the European Communities Act 2007 (No. 18 of 2007), and for the purpose of giving effect to

Council Directive No. 2005/36/EC of 7 September 2005

Council Directive No. 2006/100/EC of 20 November 2006

Article 24 of Council Directive No. 2004/38/EC of 29 April 2004

Article 27 of Council Directive No. 2004/83/EC of 29 April 2004

Hereby makes the following Regulations:

Citation

1.

• (2) These Regulations shall come into operation on the date they are signed by the Minister.

Purpose of these Regulations

2.

Interpretation

3.

“adaptation period” means a period of pursuit of the profession of nurse responsible for general care or midwife in the State under the responsibility of a qualified member of that profession, such period of supervised practice possibly being accompanied by further training. This period of supervised practice shall be the subject of an assessment. The detailed procedures governing the adaptation period and its assessment as well as the status of an applicant under supervision shall be laid down by the Board;

“aptitude test” means a test limited to the professional knowledge of the applicant, made by the Board with the aim of assessing the ability of the applicant to perform the relevant profession. In order to permit this test to be carried out, the Board shall draw up a list of subjects which, on the basis of a comparison of the education and training required in the State and that received by the applicant, are not covered by the diploma or other evidence of formal qualifications possessed by the applicant.

The aptitude test must take account of the fact that the applicant is a qualified professional in the relevant state in which he or she is established. It shall cover subjects to be selected from those on the list, knowledge of which is essential in order to be able to pursue the profession in the State. The test may also include knowledge of the professional rules applicable to the activities in question in the State.

The detailed application of the aptitude test and the applicant’s status in the State shall be determined by the Board;

“attestation of competence” means any evidence of qualifications—

• (a) attesting to education and training other than education and training constituting a diploma or certificate, or

• (b) awarded following an assessment of the personal qualities, aptitudes or knowledge which it is considered essential that the applicant have for the pursuit of a profession by an authority designated in accordance with the laws, regulations or administrative provisions of a Member State without proof of prior education and training being required;

“the Board” means An Bord Altranais or the Nursing Board, established by the Nurses Act, 1985 (No. 18 of 1985);

“competent authority” means any authority or body empowered by a relevant state specifically to issue or receive training diplomas and other documents or information and to receive the applications, and take the decisions, referred to in the Professional Qualifications Directive in respect of the professions of nurse responsible for general care or midwife;

“establishment” means the actual pursuit of an economic activity, as referred to in Article 43 of the Treaty, by the provider for an indefinite period and, where applicable, through a stable infrastructure from where the business of providing services is actually carried out;

“evidence of formal qualifications” means diplomas, certificates and other evidence issued by an authority in a relevant state designated pursuant to legislative, regulatory or administrative provisions in that relevant state and certifying successful completion of professional training obtained mainly in a relevant state;

“Minister” means the Minister for Health and Children;

“national of a relevant state” includes a person who is not a national of a relevant state, but who is, by virtue of any enforceable Community right, entitled to be treated no less favourably than a national of such a state and, in particular:

• (a) family members of European Union citizens, as defined in Article 2(2) and Article 3 of Council Directive 2004/38/EC, who have been given the right of residence or permanent residence, under that Directive; and

• (b) persons granted refugee or subsidiary protection status in the State, and their dependent family members, as set out in Council Directive 2004/83/EC;

“professional experience” means the actual and lawful pursuit in another Member State of a corresponding profession;

“the Professional Qualifications Directive” means Directive 2005/36/EC of 7 September 2005 on the recognition of professional qualifications as amended by Council Directive 2006/100/EC of 20 November 2006 adapting certain Directives in the field of freedom of movement of persons by reason of the accession of Bulgaria and Romania;

“the Professional Qualifications Regulations” means the Recognition of Professional Qualifications (Directive 2005/36/EC) Regulations, 2008 ( S.I. No. 139 of 2008 );

“the register” means the register of nurses established under Section 27 of the Nurses Act, 1985 (No. 18 of 1985);

“relevant state” means—

• (a) a Member State of the European Union,

• (b) a State that is a contracting state to the EEA Agreement within the meaning given by the European Communities (Amendment) Act, 1993 (other than a Member State of the European Union),

• (c) the Swiss Confederation;

“service” means any self-employed economic activity normally provided for remuneration, as referred to in Article 50 of the Treaty;

“the Treaty” means the Treaty establishing the European Community, signed at Rome on 25 March 1957, as amended;

“visiting service provider” means a person seeking to provide service in the State pursuant to Regulation 11(1).

• (2) For the purposes of these Regulations, the professional activities of nurses responsible for general care and midwives are the activities pursued on a professional basis and referred to in Annex V, points 5.2.2 and 5.5.2 respectively, of the Professional Qualifications Directive.

• (3) In relation to the professional activities of midwives, Article 42 of the Professional Qualifications Directive shall apply.

• (4) A word or expression that is used in these Regulations and is also used in the Professional Qualifications Directive has, unless a contrary intention appears, the meaning in these Regulations that it has in the Professional Qualifications Directive.

• (5) In these Regulations—

• (a) a reference to a Regulation is a reference to a Regulation of these Regulations unless it is indicated that reference to some other Regulations is intended,

• (b) a reference to a paragraph or subparagraph is a reference to the paragraph or subparagraph of the provision in which the reference occurs unless it is indicated that reference to some other provision is intended,

• (c) any reference to an Annex of the Professional Qualifications Directive shall be treated as encompassing the Annexes set out in the Professional Qualifications Directive as updated by the additions in Council Directive 2006/100/EC on foot of the accession of Bulgaria and Romania,

• (d) any reference to an Annex of the Professional Qualifications Directive shall be treated as encompassing subsequent updates made from time to time on foot of the accession of additional Member States, or on the basis of decisions made by the Committee established under Article 58 of the Professional Qualifications Directive.

Competent Authority

4.

• (a) the Professional Qualifications Directive and the Professional Qualifications Regulations in relation to the nursing and midwifery professions including the professions of nurse responsible for general care and midwife

and,

• (b) the award of evidence of the formal qualifications of nurse responsible for general care and midwife listed in Annex V, points 5.2.2 and 5.5.2 respectively, of the Professional Qualifications Directive.

• (2) The functions of the competent authority in the State under the Professional Qualifications Directive and the Professional Qualification Regulations, in relation to the nursing and midwifery professions including the professions of nurse responsible for general care and midwife shall be performed by the Board.

Training of general nurses and midwives

5.

Registration of nurses responsible for general care and midwives under automatic system of recognition

6.

• (b) Every person, being a national of a relevant state, on making an application in the form and manner specified by the Board and on paying the prescribed fee, and who at the time of such application provides evidence that he or she holds a formal qualification as a midwife which is referred to in Annex V, point 5.5.2, of the Professional Qualifications Directive which satisfies the minimum training conditions referred to in Article 40 of that Directive, and the criteria set out in Article 41 of that Directive, shall be registered in the register. Such evidence of formal qualifications must be issued by the competent authority in the relevant state.

• (2) Applications for registration pursuant to this Regulation shall be subject to the provisions of Regulation 25 of the Professional Qualifications Regulations, in relation to knowledge of languages.

Registration of nurses responsible for general care and midwives — acquired rights

7.

• (2) Notwithstanding Regulation 6, and, in the case of nurses responsible for general care, subject to paragraph (1), each of the following persons, on making an application in the form and manner specified by the Board and on paying the prescribed fee, shall be entitled to be registered in the register:

• (a) a national of a relevant state who, at the time of the application, provides evidence of a formal qualification as a nurse responsible for general care or a midwife which does not satisfy all the training requirements referred to in Articles 31 or 40, respectively, of the Professional Qualifications Directive, but attests successful completion of training which began before—

• (i) the relevant reference date laid down in Annex V, points 5.2.2 or 5.5.2, respectively, in the case of a qualification issued by a Member State of the European Union, or

• (ii) 3 October 1990, in the case of a qualification obtained in the territory of the former German Democratic Republic,

and is accompanied by a certificate stating that the holder has been effectively and lawfully engaged in the activities in question for at least three consecutive years during the five years preceding the award of the certificate;

• (b) a national of a relevant state who, at the time of the application, provides evidence that he or she holds a formal qualification as a nurse responsible for general care or a midwife issued by the former Czechoslovakia, or whose training commenced, for the Czech Republic and Slovakia, before 1 January 1993, where the authorities of either of the two aforementioned Member States attest that such evidence of formal qualifications has the same legal validity within their territory as the evidence of formal qualifications which they issue as regards access to the professional activities of nurse responsible for general care or midwife, and the pursuit of such activities, and such attestation is accompanied by a certificate issued by those same authorities stating that the applicant has been effectively and lawfully engaged in the activities of a nurse responsible for general care or a midwife within their territory for at least three consecutive years during the five years prior to the date of issue of the certificate;

• (c) a national of a relevant state who, at the time of the application, provides evidence that he or she holds a formal qualification as a nurse responsible for general care or a midwife issued by the former Soviet Union, or whose training commenced—

• (i) for Estonia, before 20 August 1991,

• (ii) for Latvia, before 21 August 1991,

• (iii) for Lithuania, before 11 March 1990,

where the authorities of any of the three aforementioned Member States attest that such evidence of formal qualifications has the same legal validity within their territory as the evidence of formal qualifications which they issue in respect of access to the professional activities of nurse responsible for general care or midwife, and the pursuit of such activities, and such attestation is accompanied by a certificate issued by those same authorities stating that the applicant has been effectively and lawfully engaged in the activities of a nurse responsible for general care or a midwife within their territory for at least three consecutive years during the five years prior to the date of issue of the certificate;

• (d) a national of a relevant state who, at the time of the application, provides evidence that he or she holds a formal qualification as a nurse responsible for general care or a midwife issued by the former Yugoslavia, or whose training commenced, for Slovenia, before 25 June 1991, where the authorities of that Member State attest that such evidence of formal qualification has the same legal validity within their territory as the evidence of formal qualifications which they issue in respect of access to the professional activities of nurse responsible for general care or midwife, and the pursuit of such activities, and such attestation is accompanied by a certificate issued by those same authorities stating that the applicant has been effectively and lawfully engaged in the activities of a nurse responsible for general care or a midwife within their territory for at least three consecutive years during the five years prior to the date of issue of the certificate;

• (e) a national of a relevant state who, at the time of the application, provides evidence of formal qualifications as a nurse responsible for general care or a midwife which does not correspond to the titles given for the relevant Member State in Annex V, points 5.2.2 and 5.5.2, respectively, of the Professional Qualifications Directive, but is accompanied by a certificate issued by the competent authority or body in that Member State stating that the evidence of formal qualifications certifies successful completion of training in accordance with Articles 31 and 40, respectively, of the Professional Qualifications Directive and is treated by the Member State in the same way as the qualifications whose titles are listed in Annex V, points 5.2.2 and 5.5.2, respectively, of that Directive;

• (f) a national of a relevant state who, at the time of the application, provides evidence of formal qualifications as a nurse responsible for general care or a midwife awarded by, or whose training started in, Poland before 1 May 2004 and who does not satisfy the minimum training requirements laid down in Articles 31 and 40, respectively, of the Professional Qualifications Directive, but provides evidence of one of the following formal qualifications, accompanied by a certificate stating that he or she has been effectively and lawfully engaged in the activities of a nurse responsible for general care (including taking full responsibility for the planning, organisation and administration of nursing care delivered to the patient) or a midwife in Poland for the period specified:

I. Nurses responsible for general care

• (i) evidence of formal qualifications as a nurse at degree level (dyplom licencjata pielgniarstwa) and at least three consecutive years during the five years prior to the date of issue of the certificate,

• (ii) evidence of formal qualifications as a nurse certifying completion of post-secondary education obtained from a medical vocational school (dyplom pielgniarki albo pielgniarki dyplomowanej) and at least five consecutive years during the seven years prior to the date of issue of the certificate.

II. Midwives

• (i) evidence of formal qualifications as a midwife at degree level (dyplom licencjata poonictwa) and at least three consecutive years during the five years prior to the date of issue of the certificate,

• (ii) evidence of formal qualifications as a midwife certifying completion of post-secondary education obtained from a medical vocational school (dyplom poonej) and at least five consecutive years during the seven years prior to the date of issue of the certificate.

• (g) a national of a relevant state who, at the time of the application, provides evidence of formal qualifications as a nurse responsible for general care or a midwife awarded in Poland on the basis of training completed before 1 May 2004, which did not comply with the minimum training requirements laid down in Articles 31 and 40, respectively, of the Professional Qualifications Directive, attested by the diploma ‘bachelor’ which has been obtained on the basis of a special upgrading programme contained in Article 11 of the Act of 20 April 2004 on the amendment of the Act on professions of nurse and midwife and on some other legal acts (Official Journal of the Republic of Poland of 30 April 2004 No. 92, pos. 885), and the Regulation of the Minister of Health of 11 May 2004 on the detailed conditions of delivering studies for nurses and midwives, who hold a certificate of secondary school (final examination — matura) and are graduates of medical lyceum and medical vocational schools teaching in a profession of a nurse and a midwife (Official Journal of the Republic of Poland of 13 May 2004 No. 110, pos. 1170), with the aim of verifying that the person concerned has a level of knowledge and competence comparable to that of nurses or midwives holding the qualifications which, in the case of Poland, are defined in Annex V, points 5.2.2 and 5.5.2, respectively, of the Professional Qualifications Directive;

• (h) a national of a relevant state who, at the time of the application, provides evidence of formal qualifications as a nurse responsible for general care or a midwife awarded by, or whose training started in, Romania before 1 January 2007 and which does not satisfy the minimum training requirements laid down in Articles 31 and 40, respectively, of the Professional Qualifications Directive, but provides evidence of the following formal qualification, accompanied by a certificate stating that he or she has been effectively and lawfully engaged in the activities of a nurse responsible for general care or a midwife in Romania for a period of at least five consecutive years during the seven years prior to the date of issue of the certificate:

• (i) formal qualification as a nurse responsible for general care (Certificat de competene profesionale de asistent medical generalist) with post-secondary education obtained from a coal postliceal, or

• (ii) formal qualification as a midwife (asistent medical obstetric-ginecologie/obstetrics-gynecology nurse).

• (i) a national of a relevant state who, at the time of the application, provides evidence of formal qualifications as a midwife satisfying all the minimum training requirements laid down in Article 40 of the Professional Qualifications Directive, but which, by virtue of Article 41 of that Directive, requires to be, and is not, accompanied by a certificate of professional practice referred to in Article 41(2) of that Directive, where the evidence of formal qualifications—

• (i) was issued in a Member State of the European Union before the relevant reference date referred to in Annex V, point 5.5.2, of the Professional Qualifications Directive, or

• (ii) attests a course of training received in the territory of the former German Democratic Republic which began before 3 October 1990,

and is accompanied by a certificate stating that he or she has been effectively and lawfully engaged in the activities in question for at least two consecutive years during the five years preceding the award of the certificate.

• (3) As regards the acquired rights relating to the Polish qualifications of nurse responsible for general care and midwife, only paragraph (2), subparagraphs (f) and (g), shall apply.

• (4) As regards the acquired rights relating to the Romanian qualifications of nurse responsible for general care and midwife, only paragraph (2), subparagraph (h) shall apply.

• (5) Applications for registration pursuant to this Regulation shall be subject to the provisions of Regulation 25 of the Professional Qualifications Regulations, in relation to knowledge of languages.

Registration of nurses responsible for general care and midwives under general system of recognition

8.

Procedure, documentation and formalities relating to applications for registration

9.

• (2) When considering an application pursuant to Regulation 6, 7 or 8, the Board may, in accordance with the provisions of Annex VII of the Professional Qualifications Directive—

• (i) demand the documents and certificates listed in that Annex, and

• (ii) invite the applicant to provide information concerning his or her training to the extent necessary in order to determine the existence of potential substantial differences between it and the required national training, or, where it is impossible for the applicant to provide this information, address the contact point, the competent authority or any other relevant body in the relevant state.

• (3) The documents referred to in Annex VII, points 1(d), (e) and (f), of the Professional Qualifications Directive shall not be more than three months old by the date on which they are submitted.

• (4)
• (a) Subject to paragraphs (5) and (6), the Board shall determine an application pursuant to Regulation 6, 7 or 8 as soon as possible after receiving all documents prescribed for the purposes of determining the application or required by the Board under paragraph (2) and, in any event, within three months after such receipt.

• (b) The Board may extend the period laid down in subparagraph (a) by 1 month in relation to applications considered under Regulation 8.

• (5) Where the Board has a reasonable and justified doubt in relation to an application pursuant to Regulation 6, 7 or 8 it may require of a competent authority of a relevant state—

• (a) confirmation of the authenticity of the attestations and evidence of formal qualifications of nurse responsible for general care or midwife awarded in that relevant state, and

• (b) where applicable, confirmation that a person applying for registration pursuant to Regulation 6 or 7 has fulfilled the minimum training requirements for the profession of nurse responsible for general care or midwife, specified in Articles 31 and 40, respectively, of the Professional Qualifications Directive.

• (6) Where the Board has reasonable and justified doubt in relation to an application pursuant to Regulation 6, 7 or 8 by a person whose evidence of formal qualifications was issued by a competent authority in a relevant state and includes training received in whole or in part in an establishment legally established in the territory of another relevant state, the Board may verify with the competent body in the state of origin of the award:

• (a) whether the training course at the establishment which gave the training has been formally certified by the educational establishment based in the state of origin of the award;

• (b) whether the evidence of formal qualifications issued is the same as that which would have been awarded if the course had been followed entirely in the state of origin of the award; and

• (c) whether the evidence of formal qualifications confers the same professional rights in the territory of the state of origin of the award.

• (7) The Board shall ensure the confidentiality of information received under paragraph (2).

• (8) Where an applicant is required to swear a solemn oath or make a sworn statement, the form of which is such that it cannot be taken or made by applicants of a relevant state, the Board shall ensure that an appropriate equivalent form or oath or declaration is available for those applicants.

• (9) In accordance with Article 56(2) of the Professional Qualifications Directive, the Board shall exchange, with competent authorities of other relevant states, information regarding disciplinary action or criminal sanctions taken or any other serious, specific circumstances which are likely to have consequences for the pursuit of activities under that Directive.

Appeal to the High Court

10.

• (2) Upon the hearing of an appeal under this Regulation the High Court may do one or more of the following:

• (a) affirm or set aside any decision of the Board in relation to the application concerned,

• (b) make any decision in relation to the application that could be made by the Board,

• (c) remit the application with or without directions to the Board for reconsideration and the making of a new decision in relation to it,

• (d) make such other order as may be appropriate for the purpose of doing justice.

• (3) An appeal under this Regulation shall be brought—

• (a) within 42 days of the date upon which the decision concerned is communicated to the applicant concerned, or

• (b) in the case of failure by the Board to make a decision in relation to the application concerned within 42 days of the expiration of the periods of time specified in Regulation 9(4).

• (4) A decision of the High Court on an appeal under this Regulation shall be final and not subject to appeal.

Visiting service providers

11.

• (2) In order to be registered under paragraph (1), a visiting service provider must give to the Board, in advance of the services being provided and thereafter on an annual basis if the visiting service provider intends to provide services during that year, a written declaration, which shall include particulars of the services to be rendered and the period or periods in which the visiting service provider expects to render them.

• (3) The declaration in paragraph (2) shall be accompanied by the following documents in the case of the first such declaration (and thereafter only if there is a material change in the situation substantiated by such documents):

• (i) proof of the nationality;

• (ii) an attestation from the relevant competent authority, certifying that the visiting service provider is—

a. legally established in a relevant state for the purpose of practising as a nurse responsible for general care or midwife, and

b. not prohibited from practising in the particular profession, even temporarily, at the moment of delivering the attestation;

• (iii) evidence of formal qualification as a nurse responsible for general care or midwife in a relevant state.

• (4) Subject to paragraph (5), in the case of a visiting service provider who would not be eligible for automatic recognition as a nurse responsible for general care or a midwife under Regulation 6 or 7, the Board may check the professional qualifications of the visiting service provider prior to the first provision of services where the purpose of the verification is justified and proportionate in order to avoid serious damage to the health or safety of the recipient of the service, due to a lack of professional qualifications of the person, and the check does not go beyond what is necessary to achieve that purpose.

• (5)
• (a) Where paragraph (4) applies, the Board shall, within the first month following receipt of the declaration and accompanying documents required under this Regulation, endeavour to inform the visiting service provider of its decision not to check his or her qualifications, or of the outcome of such a check.

• (b) Where there is a difficulty which would result in a delay of decision pursuant to paragraph (4), the Board shall notify the visiting service provider within the first month of the reason for the delay and the timescale for a decision, which must be finalised within the second month of receipt of completed documentation under this Regulation.

• (6) Subject to the time periods specified in paragraph (5), where a check pursuant to paragraph (4) reveals a substantial difference between the professional qualifications of the visiting service provider and the training required for the particular profession in the State, to the extent that that difference is such as to be harmful to public health or safety, the Board shall give the visiting service provider the opportunity to show, in particular by means of an aptitude test, that he or she has acquired the knowledge and competence lacking.

• (7) The Board may, in respect of a visiting service provider who has made a declaration pursuant to paragraph (2), request any competent authority in the relevant state in which the visiting service provider is established, for each provision of services specified in the declaration, to provide any information relevant to the legality of the visiting service provider’s establishment and the visiting service provider’s good conduct and the absence of any disciplinary or criminal sanctions of a professional nature.

• (8) The service shall be provided under the professional title of “general nurse”, in the case of nurses responsible for general care, and “midwife”, in the case of midwives, where:

• (i) the service provider would be eligible for automatic recognition as a nurse responsible for general care or a midwife under Regulation 6 or 7,

• (ii) the service provider would not be eligible for automatic recognition as a nurse responsible for general care or a midwife under Regulation 6 or 7, but his or her professional qualifications have been verified under paragraph (4).

• (9) A visiting service provider registered in accordance with paragraph (1) shall be subject to rules made by the Board, as well as Part V of the Nurses Act, 1985 (No. 18 of 1985).

• (10) The temporary and occasional nature of the proposed provision of services by a visiting service provider from a relevant state shall be assessed by the Board on a case by case basis, in particular in relation to its duration, its frequency, its regularity and its continuity.

• (11) The Board shall enter in the particular division of the register the particulars referred to in paragraph (2).

• (12) A visiting service provider shall not practise in the State otherwise than in accordance with a declaration made under paragraph (2) and within the scope of practice of the particular profession.

Transition Arrangements

12.

Repeals

13.

the European Communities (Recognition of General Nursing Qualifications) Regulations, 1980 ( S.I. No. 237 of 1980 )

the European Communities (Recognition of Midwifery Nursing Qualifications) Regulations, 1983 ( S.I. No. 20 of 1983 )

GIVEN under my Official Seal,

4 June 2008

MARY HARNEY.

Minister for Health and Children.

EXPLANATORY NOTE

(This note is not part of the Instrument and does not purport to be a legal interpretation)

The purpose of these Regulations is to implement Council Directive 2005/36/EC of 7 September 2005 on the recognition of professional qualifications as amended by Council Directive 2006/100/EC of 20 November 2006, insofar as those Directives concern the professions of nursing and midwifery.