Notification of Mentally Incapacitated Persons
Section 34 of the Nurses and Midwives Act provides certain circumstances in which the Board is required to cancel the registration or enrolment of a nurse or midwife. One such circumstance is if the nurse or midwife becomes a "mentally incapacitated person".
The statutory definition of "mentally incapacitated person" is found in section 21 of the Interpretation Act 1987. This states that mentally incapacitated person means
- an involuntary patient or a forensic patient or a correctional patient within the meaning of the Mental Health Act 2007, or
- a protected person within the meaning of the Protected Estates Act 1983.
In general terms these are people who have been subject to legal processes not related to their profession and these processes have determined that the people are unable to take care of themselves. If circumstances are such that the law has removed their entitlement to make certain choices regarding their own wellbeing, it is evident that such people should not be able to make important decisions, sometimes life-and-death decisions, about others. Therefore it is important that registration or enrolment as a nurse or midwife is cancelled immediately. This does not preclude a return to professional practice at a later date, if the Board is satisfied that person is subsequently able to practise safely.
Specific definitions are found in the legislation, and links to particular provisions may be found at the bottom of this page. In general terms,
- If a person suffers from a mental illness, is admitted to a mental health facility, and is subject to a hearing before a magistrate, then the magistrate may determine that the person is required to remain in the facility as an involuntary patient in order to protect the person or perhaps for the protection of the community. Having a mental illness or being admitted to a mental health facility, even against one's wishes, does not lead to classification as an involuntary patient. This term, in its statutory meaning, applies only after a legal process involving a magistrate or the Mental Health Review Tribunal.
- a forensic patient is a person who as been charged with an offence but the accused person's mental state has been taken into account. It may include, for example, persons considered unfit to be tried because of mental illness or found to be not guilty of an offence because of mental illness.
- a correctional patient is someone who, while serving a sentence in a correctional facility, developed a mental illness and was transferred to a mental health facility.
- a protected person is someone who is unable to manage her/his own affairs and about whom an order is in force under the Protected Estates Act 1983 or the Guardianship Act 1987 regarding management of all or part of the person's estate. If legal processes have determined that a nurse or midwife is unable to make decisions abou her/his own affairs, it is not appropriate that the person should be making important healthcare decisions affecting the lives of patients.
Section 35 of the Nurses and Midwives Act 1991 and Clause 19 in the Nurses and Midwives Regulation 2008 provides direction in regard to notification of mental incapacity to the Board. If a nurse or midwife is a mentally incapacitated person and becomes a patient at a mental health facility because of that incapacity, the medical superintendent of the facility is required to notify the Board. If a nurse or midwife is a protected person under the Protected Estates Act 1983, then the Protective Commissioner is required to notify the Board.
Notice is to be given by telephone within one day, and posted within 7 days, after the nurse or midwife is admitted to the facility or becomes a protected person.
A person, whose registration has been cancelled because of provisions relating to mentally incapacitated persons, may apply to be registered or enrolled again. Applicants will be required to satisfy the Board that they can practise safely. Information about requirements for obtaining registration or enrolment again can be found under Cancellation of Registration or Enrolment For Reasons Other Than Non-Payment of Fee.
The above information refers to an instance in which the Parliament was sufficiently concerned that it has made specific provisions in legislation requiring notification to the Board and mandatory action by the Board.
However there will be other instances in which it will be appropriate for the Board to be notified of health or professional conduct concerns about nurses or midwives so that the Board can have the matter assessed and decide if action is required in order to protect the health and safety of the public. Nurses and midwives have professional and ethical responsibilities to ensure the protection of the members of our community and must not ignore unsafe practice or colleagues' health problems that may jeopardise patient safety. See Making a complaint or notification and Code of Professional Conduct.
Section 34 of the Nurses and Midwives Act 1991, regarding requirement for Board to cancel registration or enrolment
Section 35 of the Nurses and Midwives Act 1991, regarding requirement for Board to be notified if a nurse or midwife becomes a mentally incapacitated person.
Clause 19 of the Nurses and Midwives Regulation 2008, regarding requirement for Board to be notified if a nurse or midwife becomes a mentally incapacitated person.
Section 21 of Interpretation Act 1987, providing definition of "mentally incapacitated person" as an involuntary patient or a forensic patient or a correctional patient within the meaning of the Mental Health Act 2007, or a protected person within the meaning of the Protected Estates Act 1983.
Section 4 of the Mental Health Act 2007 which defines "involuntary patient" and refers to the Mental Health (Forensic Provisions) Act 1990 for definitions of "forensic patient" and correctional patient".
Section 42 of the Mental Health (Forensic Provisions) Act 1990 which defines "forensic patient"
Section 41 of the Mental Health (Forensic Provisions) Act 1990 which defines "correctional patient"
Section 4 of the Protected Estates Act 1983 which defines "protected person".
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