Grounds for complaints about nurses and midwives

The grounds for complaints against a registered nurse or midwife are set out in the Nurses and Midwives Act 2011. These grounds are:

1. Professional misconduct
2. Poor professional performance
3. Non-compliance with a code of professional conduct
4. A medical disability
5. A failure to comply with a condition
6. A failure to comply with an undertaking or to take any action to which consent was given
7. A breach of the provisions of the Nurses and Midwives Act, 2011 or any rules or regulations made under the Act
8. An irregularity in relation to the custody, prescription or supply of a controlled drug under the Misuse of Drugs Acts, 1977 or 1984, or another drug that is likely to be abused
9. A conviction in the State for an offence triable on indictment

Here is an explanation of each of the grounds.

1. Professional misconduct

Professional misconduct is not defined in the Act itself but has been defined in case law. As matters stand, the definition is that originally set down in a case of O’Laoire v Medical Council which involved a medical practitioner. That definition was applied by the High Court to nursing in the case of Perez v An Bord Altranais [2005].

Misconduct can be defined as follows:

• Conduct which is infamous or disgraceful in a professional respect is professional misconduct. In this regard, conduct that would not be infamous or disgraceful in any other person, if done by a nurse or midwife in relation to his / her profession, may be considered professional misconduct
• Infamous or disgraceful conduct is conduct involving some degree of moral turpitude, fraud or dishonesty.

This is commonly referred to as the “moral turpitude test”.

• Conduct which could not be properly described as infamous or disgraceful and which does not involve any degree of moral turpitude, fraud or dishonesty may still constitute professional misconduct if it is conduct connected with his / her profession in which the registered nurse or registered midwife has seriously fallen short, by omission or commission, of the standards of conduct expected amongst nurses or midwives.

This is commonly referred to as “the expected standards test”. In the Perez v An Bord Altranais case, the judge went on to say that “it is irrelevant that such misconduct is attributable to honest mistake” and that “there is a duty to protect the public against the genially incompetent as well as the deliberate wrongdoers”. The full judgment in the Perez case can be found on the Courts Services website.

2. Poor professional performance

This term is defined in section 2 of the Act. It is a new ground of complaint and did not exist under the Nurses Act, 1985. “Poor professional performance”, in relation to a nurse or midwife, means a failure by the nurse or midwife to meet the standards of competence (whether in knowledge and skill or the application of knowledge and skill or both) that can reasonably be expected of a registered nurse or registered midwife, as the case may be, carrying out similar work.

3. Non-compliance with a code of professional conduct

Non-compliance with a code of professional conduct will relate to the code which was applicable at the time of the alleged events. If a new code is published after the date of the alleged non-compliance, it will not be relevant in the case.

4. A relevant medical disability

This term is defined in section 2 of the Act: “relevant medical disability”, in relation to a nurse or midwife, means a physical or mental disability of the nurse or midwife (including addiction to alcohol or drugs) which may impair his or her ability to practise nursing or midwifery or a particular aspect thereof.

5. A failure to comply with a relevant condition

A relevant condition is a condition attached to the registration of the nurse or midwife under the provisions of the Act. Details of when a relevant condition can be attached to the registration of a nurse or midwife can be found in a number of sections of the Nurses and Midwives Act, 2011, including 51, 52(4), 69, 74, 79(3) and 81(3).

In summary, conditions may be attached at the time of entry to the register, following a fitness to practise inquiry or following restoration to the register. Depending on the circumstances, the conditions may be attached by the Board or by the High Court.

6. A failure to comply with an undertaking or to take any action specified in a consent given in response to a request under section 65(1)

This relates to agreements reached during the course of a fitness to practise inquiry held under the Act. Such agreements require approval by the Board. Full details are set out in section 65(1) of the Act.

7. A contravention of this Act (including a provision of any regulations or rules made under the Act)

Regulations and rules, as they are made under the Act, will be published on the NMBI website. New regulations and rules will be published in on the NMBI website and via the Board’s eZine.

8. An irregularity in relation to the custody, prescription or supply of a controlled drug under the Misuse of Drugs Acts 1977 and 1984 or another drug that is likely to be abuse

Guidance with regard to controlled drugs has been provided by the Board of the NMBI over many years in various medication management guidance documents.

The Misuse of Drugs Acts 1977 and 1984 and regulations made under these Acts can be accessed on the Irish Statute Book website.

9. A conviction in the State for an offence triable on indictment or a conviction outside the State for an offence consisting of acts or omissions that, if done or made in the State, would constitute an offence triable on indictment

Under Irish law, there are two ways in which criminal offences may be tried:

1. In a District Court before a judge. There is no jury in such a case
2.  In the higher courts before a judge and jury. A summary offence is one which is dealt with by a judge sitting without a jury. An offence ‘triable on indictment’ is one which may be or must be tried before a judge and jury. A clear explanation of the difference can be found on this section of the Citizens Information website.

Submitting a complaint

The PPC of NMBI can only deal with written complaints. If you wish to make a complaint, please put your complaint in writing and post to: 

PPC Division 
Fitness to Practise Department
Nursing and Midwifery Board of Ireland
18-20 Carysfort Avenue
Blackrock
Co. Dublin

Alternatively please email your complaint to complaints@nmbi.ie.

If you are considering making a complaint to NMBI, you should also consider what documentation you have to support any allegations. This may include completed investigation reports, copies of patients’ records, local or organisational protocols, and sick leave records.  

Note on criminal convictions

Under the Nurses and Midwives Act, 2011, anyone (including the Board) may make a complaint to the Preliminary Proceedings Committee (PPC) concerning a registered nurse or registered midwife on one or more the grounds listed above. If the grounds covered in the complaint include a conviction in Ireland or outside the state for a serious offence, the PPC must refer the complaint immediately to the Board of NMBI.
 
The Board must then consider the complaint. If it forms the opinion that the offence renders the nurse or midwife permanently unfit to practise nursing or midwifery and that it is in the public interest to take action immediately, the Board can cancel the nurse or midwife’s registration (Nurses and Midwives Act, 2011, Section 55(6)).
 
Similarly, under the Nurses Act, 1985, the Board could decide that the name of a nurse convicted of a serious offence should be erased from the register (Nurses Act, 1985, Section 42(1)).
 
The Board’s decisions relating to such cases will be published in the Findings and Decisions page and in accordance with the appropriate publication policy.