CHAPTER 8 Professional regulation of nursing practice

This chapter will consider the legal regulation of nurses and midwives and standards of nursing practice in Australia, paying particular attention to the professional conduct provisions of the various registration regulations and their relationship with the relevant healthcare complaints bodies.

The major differences between criminal and civil law were explained in Chapter 1. However, the legal regulation of registered health professionals falls within the area of law known as administrative law. The reader will need to understand two further distinctions to be able to appreciate the ways in which decisions are made in each of the jurisdictions.

The first distinction relates to the burden of proof; in other words, the standard to which the person bringing the action is required to prove the case. In criminal law, the prosecution has to prove the facts to be true ‘beyond reasonable doubt’, whereas in civil law the plaintiff has to prove the facts ‘on the balance of probabilities’. In professional disciplinary matters, under administrative law, the burden of proof lies between the two. That is, it is a higher burden than a civil case, but not so high as a criminal case.¹

The second distinction, which will be discussed in further detail below, is the purpose of the jurisdiction. In criminal law, the purpose of the outcome is either to punish the offender or perhaps to deter potential offenders. In the civil courts, the most usual outcome is compensation for the plaintiff. By contrast, in disciplinary matters, the purpose is to protect the public, and the outcome will be designed to achieve that end primarily, whilst trying at the same time to give a just and fair outcome to the healthcare professional.

The purpose of professional regulation

It is agreed by both the International Council of Nurses and the World Health Organization that the main objective of the statutory regulation of nursing is the protection of the public.² This is what is known by the term ‘exercising a protective jurisdiction’. A protective jurisdiction forms part of a body of law known as administrative law, a branch of law which deals with the administrative processes of governments and quasi-judicial decision-making bodies. It has very different functions and processes from the criminal law, which exists ‘to punish offenders and to deter potential offenders’.³ Sometimes, when nurses and midwives hear of their colleagues losing their registration as a result of a finding of professional misconduct, this may seem as though a regulatory authority is punishing them. However, a decision to remove a nurse’s or midwife’s name from the Register or Roll would be made for the primary purpose of protecting the public, not to punish the nurse or midwife. The Supreme Court in HCCC v Litchfield accepted that the toll of disciplinary proceedings might be high in terms of ‘money and emotional stress’, but went on to explain that this was not the intention of a protective jurisdiction.

These matters would be highly relevant if the purpose of these proceedings was punitive, but their purpose is entirely protective. In Clyne v NSW Bar Association (1960) 104 CLR 186 at 201–2 the Court said: ‘Although it is sometimes referred to as ‘the penalty of disbarment’ it must be emphasised that a disbarring order is in no sense punitive in character. When such an order is made, it is made, from the public point of view, for the protection of those who require protection, and from the professional point of view, in order that abuse of privilege may not lead to loss of privilege’.⁴

A number of the statutes ⁵ now make explicit that the purpose of the legislation is to protect the public. For example, the long title of the Health Professionals Act 2004 (ACT) states that it is ‘An Act to protect the public from risk of harm by ensuring that the people who provide health services regulated by this Act are competent to provide health services, and for other purposes’.

The movement towards national regulation in Australia

The control and regulation of the nursing profession is today determined on an individual state or territory basis. Each state and territory has its own Act and accompanying regulations, which have commonality of purpose and function but vary in some details. At the time of writing, nurses and midwives must take care to read their own state or territory’s relevant legislation to obtain information relevant to their own jurisdiction. Each regulatory authority has a website that will provide valuable information about their expectations and processes and these are listed later in the chapter, in Table 8.1.

TABLE 8.1 Regulatory legislation for nursing and midwifery

STATE/TERRITORY	TITLE OF STATUTE	WEB ADDRESS
ACT	Health Professionals Act 2004	http://www.actnmb.act.gov.au
NSW	Nurses and Midwives Act 1991	http://www.nmb.nsw.gov.au/
NT	Health Practitioners Act 2004	http://www.nt.gov.au/health/org_supp/prof_boards/prof_licensing_auth.shtml
Qld	Nursing Act 1992	http://www.qnc.qld.gov.au/home/index.aspx
SA	Nurses Act 1999	http://www.nursesboard.sa.gov.au/
Tas	Nursing Act 1995	http://www.nursingboardtas.org.au/
Vic	Health Professions Registration Act 2005	http://www.nbv.org.au/
WA	Nurses and Midwives Act 2006	http://www.nbwa.org.au/

On 1 March 1993 the combined Commonwealth Mutual Recognition Act was proclaimed. The purpose of mutual recognition throughout Australia is to eliminate unnecessary restrictions which limit the mobility of workers in their employment. Mutual recognition legislation aims to cover a variety of occupations, including all those that are health related. In order for the Commonwealth to be able to enact their Mutual Recognition Bill, the Mutual Recognition Act 1992 (NSW) was proclaimed on 2 November 1992, referring the necessary Constitutional powers to the Commonwealth. All of the other states and territories have done likewise. In addition, there is also facility for mutual recognition between Australia and New Zealand through the Trans Tasman Mutual Recognition Act 1996 (Cth) and its New Zealand counterpart.⁶

In 1992 the Australian nurse regulatory authorities established the Australian Nursing Council (ANC) as a forum for considering the regulation of nursing in Australia within a national focus. The ANC is now the Australian Nursing and Midwifery Council (the ANMC) and is a peak national nursing and midwifery body concerned with national standards and processes for the regulation of nursing and midwifery within Australia. Each of the eight state and territory regulatory authorities is represented on this council.

The ANMC lists its core activities as being to:

Identify matters, which impact on, or are relevant to statutory nursing and midwifery regulation.

Establish, review and promote a national standards framework for nursing and midwifery practice in Australia.

Undertake assessments of internationally qualified nurses and midwives consistent with the registration and/or enrolment requirements of the Australian Nursing and Midwifery Regulatory Authorities.

Initiate and participate in relevant projects on regulation that aid the future growth and development of the nursing and midwifery professions.

Ensure nursing and midwifery standards reflect the contemporary needs of the Australian community.

Develop and be guided by a strategic view of statutory nursing and midwifery regulation in the national and international contexts.

Foster cooperation, consult with and provide advice to government bodies, professional and other organisations, and International Nursing and Midwifery Regulatory Authorities.⁷

The ANMC has developed a number of important documents which have set national standards for nursing practice and education in Australia. These include the Code of Ethics for Nurses in Australia (now in Final Draft 2006), the Code of Professional Conduct for Nurses in Australia (now in Final Draft 2006), the Registered Nurse Competency Standards (2005), the Enrolled Nurse Competency Standards (for review 2007), the Midwife Competency Standards (2006) and the Nurse Practitioner Competency Standards (2006).

The National Nursing and Nursing Education Taskforce ⁸

In November 2003, state, territory and Australian Government Ministers for Education and Health announced the establishment of a National Nursing and Nursing Education Taskforce (N³ET). N³ET was set up to implement the recommendations of Our Duty of Care (2002)⁹, the report of the National Review of Nursing Education that was undertaken by the (then) Department of Education, Science and Training (DEST) of the Australian Government in 2002. The recommendations in Our Duty of Care were wide ranging and covered issues such as the skill mix and work organisation of nurses, augmentation and retention of the current nursing workforce, training of care assistants, funding of clinical education and national education standards. N³ET was not asked to implement all of the issues or recommendations of the DEST review. However, it was also given responsibility for some of the recommendations from three Australian Health Workforce Advisory Committee (AHWAC) nursing workforce reports: The Critical Care Workforce in Australia 2001–2011 (2002),¹⁰The Midwifery Workforce in Australia 2002–2012 (2002)¹¹, and Australian Mental Health Nurse Supply, Recruitment and Retention (2003)¹², in addition to further work regarding nurse specialisation.

The report, Our Duty of Care, identified the ‘need for a national focus, a coherent voice on nursing issues, nursing leadership and recognition and affirmation of nurses’¹³ and the taskforce was charged with the role of developing that national focus. Some of the projects commissioned or undertaken by the N³ET taskforce that impact directly on nursing and midwifery regulation included ‘A select analysis of the legislation and professional regulation of nursing and midwifery in Australia and the Atlas of legislation and professional regulation of nursing and midwifery in Australia’.¹⁴ Other related work addressed issues such as specialisation, scope of practice and nurse practitioners.

The Australian Productivity Commission report

In January 2006, following a review of ‘the institutional, regulatory and funding arrangements within its area of focus’, the Australian Productivity Commission published its Australia’s Health Workforce Research Report.¹⁵ The report sought to ‘identify reforms which would produce a more sustainable and responsive health workforce, while maintaining a commitment to high quality and safe health outcomes’.¹⁶ The Commission received a large number of submissions and had consultations with governments, representatives of the health workforce and an array of other interested groups and individuals. One of the key workforce structure reforms recommended by the Productivity Commission was to ‘provide for national registration standards for health professions and for the creation of a national registration board with supporting professional panels’.¹⁷

The Council of Australian Governments (COAG) agreed to the Productivity Commission’s detailed recommendation but also stated that there would be further consultation with stakeholders on COAG’s preferred model for the scheme. The detailed recommendation was that:

‘The Australian Health Ministers’ Conference should establish a single national registration board for health professionals. Pending the development and adoption of national registration standards by the new board, the board should subsume the operations of all existing registration boards and entities, including the authority to impose conditions on registration as appropriate. The new board should be given authority to determine which professions to register and which specialities to recognise. Initially, however, the new board should cover, at a minimum, all professions which currently require registration across eight jurisdictions. Membership of the board should contain an appropriate mix of people with the necessary qualifications and experience, and be constituted to reflect the broader public interest rather than represent the interests of particular stakeholders. Profession specific panels should be constituted within the board to handle matters such as the monitoring of codes of practice and those disciplinary functions best handled on a profession specific basis’.¹⁸

Plans to move towards a national regulatory scheme are in train at the time of writing and it is anticipated that the scheme will be in place by July 2008. However, it does now seem to be emerging that, although there will be a national regulatory scheme, each discipline will still maintain its own regulatory authority, rather than there being one overarching national regulatory authority for all professions. In the speech of the Health Minister, the Hon Tony Abbott MHR, to the Global Access Partners Conference on 16 February 2007, the Minister announced the following changes to the original scheme:

As part of the COAG process, a draft scheme was circulated for consultation late last year. As a result of feedback, it now seems that the best way forward is to have separate national registration boards for medicine and for each of the other health professions, supported by profession-specific committees in each of the states and territories …

The draft scheme circulated last year proposed a single national health registration board with authority over all the professions. A national advisory committee (perhaps comprising the chairmen of the various national registration boards) now seems more feasible. This committee would meet regularly to discuss issues of common interest and would report to the Health Ministers’ Council but would not have authority over the professions’ individual national boards. It would operate in much the same way as the committee of medical college presidents, a sounding board for ideas and a forum for finding common ground.¹⁹

Thus it is fair to say that the national registration scheme is currently undecided, although it certainly looks as though individual national regulatory authorities will be the outcome. Even this development should hopefully introduce greater coherence and standardisation than the existing system.