DISCRIMINATION IN EMPLOYMENT ON THE
BASIS OF CRIMINAL RECORD

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Submission No. 12 - Nurses Board of Western Australia

The Chief Executive Officer of the Board can be contacted in regard to this submission.

Margaret Watson
Chief Executive Officer
Nurses Board of Western Australia
Locked Bag 6, East Perth WA 6892
Tel (08) 92256504, Fax (08) 94211217

The Nurses Board of Western Australia (the Board) is established under the Nurses Act 1992 (the Act) to protect the public of Western Australia through the regulation of the practice of nursing. The objects of the Act as detailed in Part 1 are:

(a) to promote suitable standards of knowledge and clinical skills among nurses for the purpose of protecting the health of the people of Western Australia ;

(b) to establish and maintain suitable standards of education among nurses; and

(c) to regulate the practice of nursing and ensure safe standards of nursing care.

Whilst the Board is not an employer of nurses, Part 3 - Registration of Nurses and Part 5 - Disciplinary Procedures of the Act make specific reference to persons with convictions as follows:

Part 3 Division 1 - Applications for Registration

Registrations of natural persons

22 (2) (a) has not been convicted of an offence the nature of which renders the person unfit to practice as a nurse

Part 5 Disciplinary matters

61 (b) that a person has been convicted of an offence the nature of which renders the person unfit to practise as a nurse

As well, persons applying to renew registration or restore to the register are asked to respond to the following question in regard to their fitness to practice as a nurse:

Have you been convicted in this State or elsewhere of an offence since your last application for registration?

If a conviction is declared by the nurse, or such information becomes known to the Board (eg from the media or a complainant,), the full details of the offence is requested. The subsequent process depending on whether it is a registration or disciplinary matter is somewhat different and will be described separately.

Registration

On receipt of the full details of the offence, the application is considered by a sub-committee of the Board, the Registration Review Committee (RRC), which is a legislated committee established under the Act and consists of three nurses, one of whom is a board member and chair of the Committee.

The RRC examines the details of the offence and generally will consider one of the following options:

To recommend to Board that the nurse be registered based on their view that the offence does not interfere with the applicant's ability to practice as a nurse. Examples of such offences may be non payment of fines, disorderly conduct when not at work or shoplifting
To seek further information such as a written statement as to why the person believes they should be registered, recent references to be sent directly to the Board and any other evidence the Board may require as to the current position of the conviction. Upon receipt of the additional documentation, the RRC will then consider all of the information and make a recommendation to Board.

Upon receipt of the recommendation from the RRC, the Board reviews the basis on which the recommendation was made and, with its primary function of protection of the community in mind, the Board will make the final decision. Legal advice is generally sought in difficult cases prior to Board making its decision.

Disciplinary Matters

Most of these matters are brought to the attention of the Board as a result of receiving a complaint, or through a report in the media. In both instances, the complaint or media report is considered by the Complaints Assessment Committee (CAC), a non-legislated sub-committee of Board consisting of the Manager Professional Standards, Manager Practice, two other nurses and chaired by the Chief Executive Officer. The information is triaged at this point and one of the following options is recommended to Board:

That no further action is taken (this option is not generally taken when dealing with offences)
To refer the complaint directly to Formal Inquiry. In making this recommendation there is sufficient evidence available which indicates this is a serious offence. An example of such may be a conviction for falsifying prescriptions, or stealing from residents in a residential home.
To appoint an investigator to inquire further into the nature of the offence
To suspend the nurse from the practice of nursing, pending the outcome of a formal inquiry, where there is a view that harm to the public may arise if the nurse is allowed to continue to practice. Generally these are convictions of a serious nature such as paedophilia, manslaughter, assault on patients.

As is the case when considering convictions with regard to registration, Board will review the basis upon which CAC makes its recommendation and will then make a decision . In all cases where suspension of registration is considered legal advice is obtained and there must be reasonable cause for Board to be concerned for the safety of the public.

If an Investigator is appointed, a report is prepared and considered by the Presiding Member of the Board and the matter may not proceed further, may be referred to an informal hearing or a formal inquiry. In the case of an informal hearing or formal inquiry, the matter is heard by the Professional Standards Committee (PSC), a legislated sub-committee of the Board comprising one board member who is the chair and at least two other nurses relevant to the specialty of the nurse's practice. Once the hearing/inquiry has been held, the PSC makes a recommendation on penalty to the Board if the nurse is found guilty.

In all instances where Board has made a decision regarding a registration or disciplinary matter, the affected nurse has the right of appeal. Prior to January 1 2005 this was to the Local Court but is now to the State Administrative Tribunal. To date one appeal has been lodged against the Board with regard to a decision concerning a criminal conviction. This appeal is currently in progress.

Conclusion

Whilst the Board processes for dealing with a declaration/complaint of a criminal offence are clear, the decision on whether the offence has an implication for the person's practice as a nurse is often not as clear. It is no longer sufficient to say that if the offence did not occur when the person was working as a nurse, then the offence should have no bearing.