Each national board is responsible for ensuring that the public are not placed at risk by the actions of a regulated professional. Nurses are professionally responsible to the Nursing and Midwifery Board of Australia (NMBA). A practitioner is eligible for general registration provided that they are: appropriately qualified; a ‘suitable person’;
not ‘disqualified’ from making an application; and meet ‘any other requirements … stated in an approved registration standard …’.54
There are several factors which may make a person ‘unsuitable’ to hold general registration, including significant impairment (mental or physical); a criminal conviction; insufficient competency in English; or conditions on registration imposed (or pending) elsewhere.55 In addition, a person may be ineligible for registration if the
‘nature, extent, period and recency of any previous practice’ are deemed insufficient to meet the relevant ‘approved registration standard’. Finally a person may be unsuitable
51 Australian Health Ministers’ Advisory Council (AHMAC), 'Regulatory Impact Statement for the Decision to Implement the Health Practitioner Regulation National Law' (2009), 17.
52 For example, fire-fighters are not regulated. Where a state faces an extreme fire danger interstate fire-fighters can be mobilised: Helen Kempton, 'Cavalry flies in to support firies', Mercury (online), 16 February 2016.
53 National Health Law 2009 s 233.
54 Section 52(1) of the National Health Law 2009, see n 47.
55 National Health Law 2009 s 55(1).
148 because they fail to meet an ‘approved registration standard’ or, in the opinion of the relevant Board they are ‘not a fit and proper person’ or not able ‘to practise the profession competently and safely’.
The NMBA has published a number of registration standards including English language, criminal history and recency of practice.56 Each standard needs to be satisfied in order to achieve (or maintain) general registration. A registrant must demonstrate they have worked, as a nurse, for ‘a minimum of 450 hours’ in the preceding five years57 and completed an annual minimum of 20 hours of Continuous Professional Development.58 Nurses, who do not wish to work for up to 12 months, can apply for a ‘non-practising registration’.59 A nurse can surrender their registration.60 Registration will lapse if the annual fee is not paid.61
Professional codes of conduct and ethics applying to nurses and medical staff are sometimes seen as ‘aspirational’ rather than binding.62 However, under the Australian National Health Law, codes and guidelines ‘provide [professional] guidance’63 to the practitioner and an approved code is ‘evidence of what constitutes appropriate professional conduct or practice’.64
56 NMBA http://www.nursingmidwiferyboard.gov.au/Registration-Standards.aspx last accessed 10 June 2016.
57 Ibid, the 450 clinical hours can be spread over the five year period.
58 Ibid.
59 National Health Law 2009, s 73. In which case the nurse is not required to maintain CPD:
http://www.nursingmidwiferyboard.gov.au/Codes-Guidelines-Statements/FAQ/Non-practising-registration-for-nurses-and-midwives.aspx last accessed 6 April 2016.
60 National Health Law 2009, s 137.
61 NMBA http://www.nursingmidwiferyboard.gov.au/Registration-and-Endorsement/Registration-Renewal.aspx last accessed 17 September 2015. Registration runs from May–May but a ‘grace’
period of 1 month is given.
62 Code of Ethics for nurses 2008 and Code of Professional Conduct for nurses 2008:
http://www.nursingmidwiferyboard.gov.au/Codes-Guidelines-Statements/Professional-standards.aspx last accessed 1 June 2016; Good medical practice: a code of conduct for doctors in Australia: http://www.medicalboard.gov.au/Codes-Guidelines-Policies/Code-of-conduct.aspx last accessed 1 June 2016. See eg: Heidi Malm et al, 'Ethics, Pandemics, and the Duty to Treat' (2008) 8(8) American Journal of Bioethics 4, 12- 16. Since 1953 the International Council of Nurses (ICN) has published a Code of Ethics for Nurses which was last updated in 2012: www.icn.ch/who-we-are/code-of-ethics-for-nurses last accessed 11 January 2017.
63 National Health Law 2009, s 39(1).
64 National Health Law 2009, s 41.
149 If the action(s) of a health professional potentially constitute ‘a significant departure from accepted professional standards’65 then, under the National Law, this is conduct which must be reported by another health professional or an employer.66 Given this is a mandatory requirement ‘[t]he threshold required to trigger the requirement to report notifiable conduct … is high and the practitioner or employer must have first formed a reasonable belief that the behaviour constitutes notifiable conduct’.67
In the alternative, behaviour considered inappropriate, although falling short of
‘notifiable conduct’, can be raised via a voluntary notification.68 If an investigation determines a regulated health professional failed to uphold the professional codes, this could potentially lead to the imposition of a professional sanction.69 The employer may report a practitioner to the NMBA but the decision as to sanction, if any, lies with the NMBA. Many sanctions (reprimand, caution or even conditions) will not prevent the practitioner from continuing to be employed in their profession. If the matter is found to be sufficiently serious as to constitute professional misconduct70 the matter must be referred to a tribunal.71 It is at the tribunal level that a finding could lead to revocation, or suspension, of registration,72 meaning the practitioner could no longer work in the profession.
Although enforceable the codes provide little in the way of clear advice in the context of an infectious disease outbreak. Under the Code of Professional Conduct
65 National Health Law 2009, s 140(d).
66 National Health Law 2009, ss 141 (health practitioner),142 (employer).
67 Guidelines for Mandatory Notifications: http://www.nursingmidwiferyboard.gov.au/Codes-Guidelines-Statements/Codes-Guidelines/Guidelines-for-mandatory-notifications.aspx.
68 National Health Law 2009, s 144.
69 Sanctions range from a reprimand, accepting an undertaking or conditions imposed on registration (National Health Law 2009 s 178(2)).
70 Under s 5 of the National Health Law 2009, Professional misconduct is defined as being: ‘(a) unprofessional conduct … that amounts to conduct that is substantially below the standard reasonably expected of a… practitioner of an equivalent level of training or experience; and (b) more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a … practitioner of an equivalent level of training or experience; and (c) conduct of the practitioner, whether occurring in connection with the practice of the health practitioner's profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration …’.
71 National Health Law 2009, s 193(1)(a). Decisions from a tribunal or court are summarised at:
http://www.ahpra.gov.au/Publications/Tribunal-Decisions.aspx.
72 National Health Law 2009, s 196(2)(d)&(e).
150 nurses are required to ensure that they ‘maintain and build on the community’s trust and confidence in the nursing profession’.73 Obviously a failure to attend work and provide care during a pandemic could clearly impact upon trust of the community.
Yet the code of ethics reminds nurses that they ‘have a moral and legal right to practice in a safe environment, without fear for their own safety or that of others’.74 While it has been argued that the health worker is not at a significantly higher risk of infection (or death) when working during an influenza pandemic, an increase in workloads may cause the nurse to fear that they are unable to care safely for patients, particularly if additional suitably qualified and experienced staff cannot be found. Of course failure of some individuals to work would further increase the risks, to patient and staff, and lead to additional stress for staff remaining at work.
As a public sector employee, a nurse has an obligation to undertake their duties to the best of their ability as well as in accordance with the codes and guidelines issued by the NMBA. A nurse who refuses to work during an influenza pandemic could be sanctioned by their employer75 and potentially also by the NMBA. By way of fact sheet or general statement, the NMBA could of course clarify this expectation that workers will continue to work during a pandemic. The difficulty here lies in ensuring that nurses continue to work during a pandemic without reverting to the kind of sanctions like de-registration or termination that would paradoxically lead to fewer nurses being available. But what about mobilising those nurses who are outside the health sector during times of influenza pandemic? For this purpose, some form of easily accessible temporary registration is needed.