Nurses and Midwives Act 2011

• (a) shall continue in force,

• (b) shall be construed and have effect as if the name of the Board were substituted in the contract or agreement, for that of the Council or, as the case may be, for that of its trustee or agent acting on its behalf, and

• (c) shall be enforceable against the Board.

100. Transfer of staff.

100.— (1) A person who, immediately before the commencement of this section, was an officer or employee of the Council shall, on that commencement, be transferred to and become an employee of the Board.

• (2) Save in accordance with a collective agreement negotiated with any recognised trade union or staff association concerned, a person transferred by subsection (1) shall not, on that transfer, be brought to less beneficial conditions of service or remuneration than the conditions of service or remuneration to which the person was subject immediately before the commencement of this section.

• (3) The previous service of a person transferred by subsection (1) shall be reckonable for the purposes of, but subject to any exceptions or exclusions in, the following Acts:

• (a) the Redundancy Payments Acts 1967 to 2007;

• (b) the Protection of Employees (Part-Time Work) Act 2001;

• (c) the Protection of Employees (Fixed-Term Work) Act 2003;

• (d) the Organisation of Working Time Act 1997;

• (e) the Terms of Employment (Information) Acts 1994 and 2001;

• (f) the Minimum Notice and Terms of Employment Acts 1973 to 2005;

• (g) the Unfair Dismissals Acts 1977 to 2007;

• (h) the Maternity Protection Acts 1994 and 2004;

• (i) the Parental Leave Acts 1998 and 2006;

• (j) the Adoptive Leave Acts 1995 and 2005;

• (k) the Carer’s Leave Act 2001.

• (4) Any superannuation benefits awarded to or in respect of a person transferred by subsection (1) and the terms relating to those benefits shall be no less favourable than those applicable to or in respect of that person immediately before the commencement of this section.

• (5) The pension payments and other superannuation liabilities of the Council in respect of its former officers or employees shall become, on the commencement of this section, the liabilities of the Board.

• (6) In this section—

“conditions of service”, includes conditions relating to tenure;

“previous service”, in relation to a person transferred by subsection (1), means service of the person, before the commencement of this section, with the Council;

“recognised trade union or staff association” means a trade union or staff association recognised by the Board for the purposes of negotiations that are concerned with the remuneration or conditions of employment, or the working conditions of employees.

101. Transfer of records.

101.— (1) Each record held by the Council immediately before the commencement of this section—

• (a) shall, on that commencement, stand transferred to the Board, and

• (b) shall, on and from that commencement, be deemed to be held by the Board.

• (2) Any right of access, under the Freedom of Information Acts 1997 and 2003, to records that before that commencement day were held by the Council and that are transferred under subsection (1) is not affected by the transfer of those records.

• (3) For the purposes of section 18 of the Freedom of Information Act 1997, any act done by the Council before the commencement of this section is deemed to have been done by the Board.

PART 13 Miscellaneous

102. Privilege.

102.— (1) In any action for defamation, the following proceedings, reports and communications are absolutely privileged:

• (a) proceedings of a Preliminary Proceedings Committee or of the Fitness to Practise Committee;

• (b) communications by the Fitness to Practise Committee;

• (c) reports of the Fitness to Practise Committee;

• (d) communications by the Board of the steps taken under section 68; and

• (e) any other communication made by—

• (i) a committee pursuant to any of Parts 7, 8 and 9 in performing a function of the committee, or

• (ii) the Board pursuant to any of Parts 7, 8 and 9 in performing a function of the Board.

• F86[(1A) In any action for defamation, the proceedings, reports and communications of the chief executive officer under any of Parts 7, 8 and 9 are absolutely privileged.]

• (2) Subject to subsection (4), a document which relates to a nurse’s or midwife’s participation in a professional competence scheme, to the extent that it does so relate, shall not be admitted in evidence (whether by discovery or otherwise) in any civil proceedings except with the consent of the nurse or midwife concerned (in this section referred to as the “relevant consent”).

• (3) No witness in any civil proceedings shall be obliged or permitted to disclose, in the absence of the relevant consent—

• (a) subject to subsection (4), the contents of a document which relates to a nurse’s or midwife’s participation in a professional competence scheme to the extent that it does so relate, or

• (b) subject to subsection (5), any deliberation, in relation to a nurse’s or midwife’s participation in a professional competence scheme, of a person.

• (4) Neither subsection (1) nor subsection (3)(a) shall apply in the case of a document the subject of an allegation that it has not been made in good faith.

• (5) Subsection (3)(b) shall not apply in the case of a deliberation the subject of an allegation that it has not been made in good faith.

103. Investigation.

103.— (1) F87[The chief executive officer shall, at the request of the Minister, or may, of his or her] own initiative or upon a complaint made by a member of the public, investigate any case of an individual—

• (a) who, not being a registered nurse or registered midwife, is suspected of practising or having practised nursing or midwifery in contravention of a provision of this Act, or

• (b) who, not being a registered nurse or registered midwife, is suspected of claiming or having claimed to be a registered nurse or registered midwife in contravention of a provision of this Act.

• (2) Where the F87[chief executive officer has carried out an investigation under subsection (1), the chief executive officer shall, if he or she] has reasonable grounds to believe that the individual the subject of the investigation—

• (a) is not a registered nurse or registered midwife, and

• (b) either—

• (i) is practising or has practised nursing or midwifery in contravention of a provision of this Act, or

• (ii) is claiming or has claimed to be a registered nurse or registered midwife,

report the matter forthwith to the Garda Síochána and the Minister and may seek an injunction in the Court requiring the person to cease the activities F87[the chief executive officer reasonably] believes to be in contravention of this Act.

103A. F88[Admissibility of certain documents relating to proceedings in other jurisdictions.

103A. (1) In any proceedings under this Act concerning a nurse or midwife, a document that purports to be a relevant document shall be admissible as evidence of any fact stated therein of which evidence would be admissible in those proceedings.

• (2) In any proceedings under this Act concerning a nurse or midwife, a document purporting to be a certification by a court, tribunal or other authority of a document purporting to be a relevant document (and whether or not the certification is incorporated into the document) and to be signed by or on behalf of that court, tribunal or other authority shall be deemed, for the purpose of this section, to be such a certificate and to be so signed, unless the contrary is proved.

• (3) Where a document is admissible in evidence under this section, any document which purports to be a translation of that document shall be admissible as evidence of the translation if it is certified as correct by a person competent to do so and a document purporting to be a certificate under this subsection shall be deemed to be such a certificate, and to be signed by the person purporting to have signed it, unless the contrary is proved.

• (4) In this section—

"final determination", in relation to any relevant proceedings and a nurse or midwife, means—

• (a) the conclusion of those proceedings without any party to the proceedings making an appeal, against a decision in those proceedings to impose or to not impose a sanction on the nurse or midwife, within the ordinary time in the State or other jurisdiction concerned, as appropriate, for making such an appeal, or

• (b) if such an appeal is made—

• (i) the abandonment or withdrawal of the appeal, or

• (ii) the determination of the appeal,

whichever first occurs;

"relevant document", in relation to a nurse or midwife, means any of the following:

• (a) a copy of a transcript of all or any part of relevant proceedings that has been certified, by or on behalf of the court, tribunal or other authority before which the proceedings were held, to be a true and accurate copy of that transcript;

• (b) a copy of all or any part of a report arising out of such proceedings certified, by or on behalf of the court, tribunal or other authority which made the report, to be a true and accurate copy of that report;

• (c) if, after the final determination of such proceedings, sanctions are, or continue to be, imposed on the nurse or midwife in consequence of such proceedings, a statement in writing giving particulars of such sanctions so imposed certified, by or on behalf of the court, tribunal or other authority which imposed the sanctions, to be true and accurate particulars of the sanctions that are, or continue to be, imposed on the nurse or midwife after the final determination of the proceedings;

• (d) if, after the final determination of such proceedings, no sanctions are, or continue to be, imposed on the nurse or midwife in consequence of such proceedings, a statement in writing to that effect certified by or on behalf of the court, tribunal or other authority before which the proceedings were held;

"relevant proceedings", in relation to a nurse or midwife, means any disciplinary or judicial proceedings (other than proceedings under this Act), in respect of which the nurse or midwife is the subject—

• (a) in the State or another jurisdiction which may directly or indirectly result in the nurse or midwife—

• (i) being prohibited from providing one or more than one kind of health or social care in the State or that jurisdiction, or

• (ii) having a restriction placed on his or her ability to provide one or more than one kind of health or social care in the State or that jurisdiction,

• (b) in another jurisdiction which may result in the nurse or midwife being convicted, in that jurisdiction, for an offence consisting of acts or omissions that, if done or made in the State, would constitute an offence triable on indictment, or

• (c) in the State which may result in the nurse or midwife being convicted, in the State, for an offence triable on indictment;

"sanction" includes any restriction or measure.]

104. Prosecution of offences.

104.— (1) Summary proceedings for an offence under this Act may be prosecuted by the Board.

• (2) Notwithstanding section 10(4) of the Petty Sessions (Ireland) Act 1851, summary proceedings for an offence under this Act may be instituted at any time within 2 years from the date of the alleged commission of the offence.

105. Power to specify forms.

105.— (1) The relevant body may specify the form of documents required for the purposes of this Act as the relevant body thinks fit.

• (2) The relevant body’s power under subsection (1) may be exercised in such a way as to—

• (a) include in the specified form of any document referred to in that subsection a statutory declaration—

• (i) to be made by the person completing the form, and

• (ii) as to whether the particulars contained in the form are true and correct to the best of that person’s knowledge and belief,

and

• (b) specify 2 or more forms of any document referred to in that subsection, whether as alternatives, or to provide for particular circumstances or particular cases, as the relevant body thinks fit.

• F89[(2A) The relevant body’s power under subsection (1) may be exercised in such a way as to include in the specified form of any document a statement requiring the person completing the form to verify any particulars contained in the form, or contained in any document accompanying the form, in such manner as is specified in the form.]

• (3) A form specified under this section shall be—

• (a) completed in accordance with such directions and instructions as are specified in the form,

• (b) accompanied by such documents as are specified in the form, and

• (c) if the completed form is required to be provided to—

• (i) the relevant body,

• (ii) another person on behalf of the relevant body, or

• (iii) any other person,

so provided in the manner, if any, specified in the form.

• (4) Without prejudice to the generality of subsection (1), the Board may—

• (a) specify a form to be completed by a registered nurse or registered midwife, or a person who wishes to practise nursing or midwifery, in connection with the payment by the nurse or midwife of any fee determined under section 38(1),

• (b) in that form, require the registered nurse or registered midwife to supply the Board with such information that the nurse or midwife would have to supply the Board if he or she were not registered but were seeking registration (including information about any relevant medical disability F89[or material matter]).

• (5) In this section, “relevant body” means—

• (a) subject to paragraph (b), the Board, and

• (b) in relation to a function under this Act performed by a committee of the Board, that committee.

106. Construction of references.

106.— (1) Every reference to a midwife contained in any enactment, any statutory instrument or any other document shall be construed as a reference to a registered midwife.

• (2) Every reference to a nurse contained in any enactment, any statutory instrument or any other document shall, unless the context otherwise requires, be construed as a reference to a registered nurse.

• (3) Every reference to An Bord Altranais or Bord Altranais agus Cnáimhseachais na hÉireann contained in any enactment, any statutory instrument or any other document shall be construed as a reference to the Board.

• (4) Every reference to the register of nurses contained in any enactment, any statutory instrument or any other document shall be construed as a reference to the register of nurses and midwives.

106A. F90[Notifications under Act.

106A. (1) Where the Board, the Preliminary Proceedings Committee, the Fitness to Practise Committee or the chief executive officer is required or authorised under this Act to notify a registered nurse, former registered nurse, registered midwife, former registered midwife, registered candidate or former registered candidate of a decision or other matter concerning the person, the notification shall be sent by pre-paid post or electronically to him or her at the address stated in the register of nurses or midwives or candidate register (as the case may be) in which his or her name is or was (as the case may be) entered.

• (2) Where the Board or the chief executive officer is required or authorised under this Act to notify a person (not being a registered nurse, former registered nurse, registered midwife, former registered midwife, registered candidate or former registered candidate) who has made an application under this Act of a decision or other matter concerning the application, the notification shall be sent by pre-paid post or electronically to the person at the address stated in the application.

• (3) Where a notification under this Act has been sent to a person in accordance with subsection (1) or (2), the notification shall be deemed, in the absence of evidence to the contrary, to have been duly delivered to the person on the 3rd working day after the day on which it was so sent.]

107. Amendment of Freedom of Information Act 1997.

107.— The Freedom of Information Act 1997 is amended—

• (a) in the First Schedule—

• (i) by substituting “Bord Altranais agus Cnáimhseachais na hÉireann” for “An Bord Altranais”, and

• (ii) by deleting “The National Council for the Professional Development of Nursing and Midwifery”,

and

• (b) in the Third Schedule—

• (i) by inserting “Nurses and Midwives Act 2011” in the second column of Part 1, and

• (ii) by inserting “Section 17” in the third column of that Part.

108. F91[Special measures registration having regard to Covid-19

108. (1) A previous registrant may make an application to the Board to be registered in the register of nurses and midwives pursuant to this section.

• (2) Subject to subsections (3) to (7), the provisions of this Act shall, with all necessary modifications, apply to—

• (a) a section 108 registration as they apply to a registration in the register of nurses and midwives effected by another section of this Act, and

• (b) a section 108 registrant as they apply to a registered nurse or registered midwife, as appropriate, who is not a section 108 registrant.

• (3) No fee shall be charged for, or relating to—

• (a) a section 108 application, or

• (b) a section 108 registration or the retention of such registration.

• (4) Where a previous registrant’s name is entered in the register of nurses and midwives pursuant to a section 108 registration, the Board shall enter in that register, or cause to be entered in that register, the term "(section 108 registration)" immediately after the name to indicate that his or her registration arises from the operation of this section.

• (5)
• (a) Nothing in this section shall be construed to prevent a previous registrant’s name from being entered in the register of nurses and midwives pursuant to the operation of another section of this Act, whether or not his or her name is already entered in that register pursuant to a section 108 registration.

• (b) Where a previous registrant’s name is entered in the register of nurses and midwives pursuant to the operation of this Act (other than this section) when his or her name is already entered in that register pursuant to a section 108 registration, the Board shall remove from that register, or cause to be removed from that register, the latter entry at the same time as the first-mentioned entry is made.

• (c) The refusal of a section 108 registration for a previous registrant shall not prevent that registrant from making an application under another section of this Act to be registered in the register of nurses and midwives.

• (6)
• (a) Subject to subsection (7), each section 108 registration that is still in force on the 31st day of July 2020, shall, on and after that date, cease to have effect.

• (b) The Board shall remove from the register of nurses and midwives, or cause to be removed from that register, on the date referred to in paragraph (a), or as soon as is practicable thereafter, each name that was entered in that register pursuant to a section 108 registration.

• (7)
• (a) The Minister may, by order, specify a different date for the purposes of subsection (6) (including a different date for a previous different date specified in an order made under this paragraph), and if the Minister so specifies, that subsection shall be construed, with all necessary modifications, to take account of that first-mentioned date.

• (b) Section 3(3) shall, with all necessary modifications, apply to an order made under paragraph (a) as that section applies to a regulation made under this Act.

• (8) In this section—

"previous registrant" means a former registered nurse or former registered midwife, as appropriate, whose name was removed from the register of nurses and midwives pursuant to section 50 or 77;

"section 108 application" means an application under subsection (1);

"section 108 registrant" means a registered nurse or registered midwife, as appropriate, who is such pursuant to—

• (a) the Board’s determination of a section 108 application, or

• (b) a decision (howsoever called) of the Court arising from the Board’s determination of a section 108 application;

"section 108 registration" means registration in the register of nurses and midwives pursuant to—

• (a) the Board’s determination of a section 108 application, or

• (b) a decision (howsoever called) of the Court arising from the Board’s determination of a section 108 application.]

SCHEDULE Board: Membership and Meetings

Section 6(4)

Tenure of Office

• (2) Of the members of the Board appointed immediately after the commencement of section 6(4) of this Act—

• (a) 11 members shall hold office for a period of 3 years, and they shall be selected as follows:

• (i) by unanimous agreement of the members of the Board attending the meeting, or

• (ii) where no such agreement can for whatever reason be reached, by the drawing of lots by the members so attending,

and

• (b) the remaining members shall hold office for a period of 5 years.

Resignations and Termination of Membership

• (a) the request is accompanied by evidence which satisfies the Minister that—

• (i) the member has been given a reasonable opportunity to make representations in writing to the Board to explain the reasons why the member has failed to comply with paragraph 12, and

• (ii) the member has failed or refused to make those representations,

or

• (b) the request is accompanied by—

• (i) evidence which satisfies the Minister that the member has been given a reasonable opportunity to make representations in writing to the Board to explain the reasons why the member has failed to comply with paragraph 12,

• (ii) copies of the representations in writing made by the member to the Board, and

• (iii) a statement by the Board that it has given due regard to those representations in writing but has reached the conclusion that they do not afford a reasonable excuse for the member’s failure to comply with paragraph 12,

and

• (c) where subparagraph (b) is applicable, the Minister is satisfied that the conclusion referred to in clause (iii) of that subparagraph is reasonable in the circumstances of the case.

Casual Vacancies

• (2) Where a casual vacancy occurs among the members of the Board appointed under section 22(1)(c), the Board, after consultation with the Minister, shall co-opt a person who would, pursuant to the provisions of this Act, be eligible for election to fill such vacancy and any person so co-opted shall, subject to the provisions of this Act, serve as a member of the Board for such period as is unexpired of the term of office of the person whom the person so appointed replaces.

• (3) Where a casual vacancy occurs among the members of the Board appointed under section 22(1)(i) or (j), the Minister may appoint a person who would, pursuant to the provisions of this Act, be eligible to fill such vacancy and any person so appointed shall, subject to the provisions of this Act, serve as a member of the Board for such period as is unexpired of the term of office of the person whom the person so appointed replaces.

Quorum

Meetings

President and Vice-President

• (2) The President and Vice-President of the Board shall each hold office as such for such term as may be specified by the Board at the time of their respective appointments unless—

• (a) the President or Vice-President, as the case may be, ceases to be, or becomes disqualified from being, a member of the Board,

• (b) the President or Vice-President, as the case may be, resigns that office and the resignation becomes effective under this paragraph, or

• (c) the Board passes a resolution, for which not less than two-thirds of the members of the Board vote, that terminates the appointment of the President or Vice-President, after notice of not less than 7 days of the intention to pass the resolution is given to every member of the Board.

• (3) The President or Vice-President of the Board may at any time resign from that office by giving notice in writing signed by him or her, to the Board, but the resignation shall not become effective until the meeting of the Board next held after the receipt by the Board of the notice of resignation.

• (4) Where, at an election of the President or Vice-President of the Board, there is an equality of votes for 2 or more members, it shall be determined by lot which of those members shall be President or Vice-President, as the case may be.

Proceedings at Meetings

• (a) may convene a meeting of the Board,

• (b) shall convene a meeting of the Board when requested to do so by a requisition signed by not less than 10 members of the Board.

• (2) Where the President or, in the absence of the President, the Vice-President of the Board, without so refusing, does not, not later than 7 days after the presentation of a requisition for that purpose signed by not less than 10 members of the Board, convene a meeting of the Board, any 5 members of the Board may, on the expiration of those 7 days, convene a meeting of the Board.

• (a) the President of the Board shall, if present, be the chairperson,

• (b) if and so long as the President of the Board is not present, or if the office of President is vacant, the Vice-President of the Board shall, if present, be the chairperson,

• (c) if and so long as the President of the Board is not present or the office of President is vacant and the Vice-President is not present or the office of Vice-President is vacant, the members of the Board who are present shall elect one of their number to be chairperson of that meeting.

• (2) The minutes of a meeting shall be submitted for confirmation as an accurate record at the next meeting of the Board.

• (3) When confirmed, with or without amendment, the minutes of a meeting shall be signed by the person chairing the meeting at which they were submitted for confirmation.