The Nursing and Midwifery Council (Constitution) Order 2008

Statutory Instruments

2008 No. 2553

Health Care And Associated Professions

Nurses And Midwives

The Nursing and Midwifery Council (Constitution) Order 2008

Made

29th September 2008

Laid before Parliament

6th October 2008

Coming into force in accordance with article 1(1)

At the Council Chamber, Whitehall, the 29th day of September 2008

By the Lords of Her Majesty’s Most Honourable Privy Council

Their Lordships make the following Order in exercise of the powers conferred by article 3(7A) of, and paragraph 1B of Schedule 1 to, the Nursing and Midwifery Order 2001(1).

PART 1 Introductory

Citation, commencement and interpretation

1.—(1) This Order may be cited as the Nursing and Midwifery Council (Constitution) Order 2008 and—

(a) apart from article 5(h), comes into force on 1st January 2009;

(b) article 5(h) comes into force on the coming into force of section 44(1) of the Safeguarding Vulnerable Groups Act 2006(2) (registers: power to apply for vetting information).

(2) In this Order—

“chair” means the chair of the Council;

“final outcome”, in relation to any proceedings where there are rights of appeal, means the outcome of the proceedings—

(a)

once the period for bringing an appeal has expired without an appeal being brought; or

(b)

if an appeal is brought in accordance with those rights, once those rights have been exhausted;

“licensing body” means—

(a)

any body, other than the Council, anywhere in the world that licenses or regulates any profession;

(b)

any body that regulated registered nurses or registered midwives before the Council;

“member”, unless the context otherwise requires, means a registrant member or a lay member and includes the chair;

“the principal Order” means the Nursing and Midwifery Order 2001; and

“spent conviction” means—

(a)

in relation to a conviction by a court in Great Britain, a conviction that is a spent conviction for the purposes of the Rehabilitation of Offenders Act 1974(3); or

(b)

in relation to a conviction by a court in Northern Ireland, a conviction that is a spent conviction for the purposes of the Rehabilitation of Offenders (Northern Ireland) Order 1978(4).

PART 2 Membership of the Council

Composition of the Council

2.  The Council shall consist of 7 registrant members and 7 lay members.

Terms of office of members

3.—(1) The duration of the term of office of each member of the Council shall be determined by the Privy Council, on appointment.

(2) No member of the Council may hold office as a member of the Council for more than an aggregate of 6 years.

(3) For the purposes of the computation of years under paragraph (2)—

(a) service as a member of the Council before 31st July 2006, of whatever duration, is to be treated as service for an aggregate of 3 years; and

(b) service as a member of the Council between 31st July 2006 and the end of 31st December 2008, of whatever duration, is to be treated as service for an aggregate of 3 years.

Education and training of members

4.  The Council shall make provision in standing orders with respect to the requirements with regard to education and training of members of the Council, and those standing orders may provide for—

(a) that education and training to be the responsibility of another body; and

(b) those requirements to be set and varied by that body from time to time.

Disqualification from appointment as a member

5.  A person is disqualified from appointment as a member of the Council if that person—

(a) has at any time been convicted of an offence involving dishonesty or deception in the United Kingdom and the conviction is not a spent conviction;

(b) has at any time been convicted of an offence in the United Kingdom, and—

(i) the final outcome of the proceedings was a sentence of imprisonment or detention, and

(ii) the conviction is not a spent conviction;

(c) has at any time been removed—

(i) from the office of charity trustee or trustee for a charity by an order made by the Charity Commissioners, the Charity Commission or the High Court on the grounds of any misconduct or mismanagement in the administration of the charity—

(aa) for which the person was responsible or to which the person was privy, or

(bb) which the person by their conduct contributed to or facilitated, or

(ii) under—

(aa) section 7 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990(5) (powers of Court of Session to deal with management of charities), or

(bb) section 34(5)(e) of the Charities and Trustee Investment (Scotland) Act 2005(6) (powers of the Court of Session),

from being concerned with the management or control of any body;

(d) has at any time been removed from office as the chair, member, convenor or director of any public body on the grounds, in terms, that it was not in the interests of, or conducive to the good management of, that body that the person should continue to hold that office;

(e) at any time has been adjudged bankrupt or sequestration of the person’s estate has been awarded, and—

(i) the person has not been discharged, or

(ii) the person is the subject of a bankruptcy restrictions order or an interim bankruptcy restrictions order under Schedule 4A to the Insolvency Act 1986(7) (bankruptcy restrictions order and undertaking);

(f) has at any time made a composition or arrangement with, or granted a trust deed for, the person’s creditors and the person has not been discharged in respect of it;

(g) is subject to—

(i) a disqualification order or disqualification undertaking under the Company Directors Disqualification Act 1986(8),

(ii) a disqualification order under Part II of the Companies (Northern Ireland) Order 1986(9),

(iii) a disqualification undertaking under the Company Directors Disqualification (Northern Ireland) Order 2002(10), or

(iv) an order made under section 429(2) of the Insolvency Act 1986 (disabilities on revocation of a county court administration order);

(h) has been included by—

(i) the Independent Barring Board in a barred list (within the meaning of the Safeguarding Vulnerable Groups Act 2006(11) or the Safeguarding Vulnerable Groups (Northern Ireland) Order 2007(12)), or

(ii) the Scottish Ministers in the children’s list or the adults’ list (within the meaning of the Protection of Vulnerable Groups (Scotland) Act 2007(13));

(i) has at any time been subject to any investigation or proceedings concerning the person’s fitness to practise by any licensing body, the final outcome of which was—

(i) the person’s erasure from a register held by the licensing body or a decision that had the effect of preventing the person from practising the profession licensed or regulated by the licensing body,

(ii) the person’s suspension from a register held by the licensing body, and that suspension has not been terminated, or

(iii) a decision that had the effect of only allowing the person to practise that profession subject to conditions, and those conditions have not been lifted;

(j) has at any time been subject to any investigation or proceedings concerning the person’s fitness to practise by the Council, or by any body that regulated registered nurses or registered midwives before the Council, in the course of which or where the final outcome has been that—

(i) the person has been removed from or struck off the register (for a reason connected to the person’s fitness to practise),

(ii) the person’s registration in the register has been suspended (including by an interim suspension order) and that suspension has not been terminated,

(iii) the person’s registration in the register has been made conditional upon their compliance with any requirement (including an interim conditions of practice order) and that requirement has not been lifted, or

(iv) the person’s registration in the register has been annotated by virtue of a caution order and that order is still in force;

(k) has at any time been subject to any investigation or proceedings relating to an allegation that the person’s entry in the register was fraudulently procured, the final outcome of which was the removal of the person’s entry in the register;

(l) is or has at any time been subject to any investigation or proceedings concerning the person’s fitness to practise by—

(i) any licensing body, or

(ii) the Council,

and the Privy Council is satisfied that the person’s membership of the Council would be liable to undermine public confidence in the regulation of the nursing and midwifery professions; or

(m) has at any time been convicted of an offence elsewhere than in the United Kingdom and the Privy Council is satisfied that the person’s membership of the Council would be liable to undermine public confidence in the regulation of the nursing and midwifery professions.

Removal of members from office

6.—(1) A member shall be removed from office by the Privy Council, if—

(a) the member resigns, which a member may do at any time by a notice in writing to the Privy Council;

(b) in the case of—

(i) a registrant member, that member’s registration becomes lapsed, or

(ii) a lay member, that member becomes a person who no longer satisfies the criteria for being a lay member in paragraph 1A(1)(b) of Schedule 1 to the principal Order(14) (membership: general);

(c) the member becomes a person of the type mentioned in article 5(a), (b) or (e) to (h) (irrespective of whether or not they subsequently cease to be a person of the type mentioned in those provisions);

(d) the member becomes a person of the type mentioned in article 5(c) or (d);

(e) in the case of a registrant member, the member has become the subject of any investigation or proceedings concerning the member’s fitness to practise by the Council, as a result of which—

(i) the member has been struck off the register,

(ii) the member’s registration in the register has been suspended,

(iii) the member’s registration in the register has been made conditional upon the member’s compliance with any requirement, or

(iv) the person’s registration in the register has been annotated by virtue of a caution order,

and the proceedings relating to that particular sanction have reached their final outcome;

(f) in the case of a registrant member, the member has become the subject of any investigation or proceedings relating to an allegation that the person’s entry in the register was fraudulently procured or incorrectly made, the final outcome of which is the removal of the person’s entry in the register;

(g) the Privy Council is satisfied that the member’s level of attendance at meetings of the Council falls below a minimum level of attendance acceptable to the Privy Council, having regard to—

(i) any recommended minimum levels of attendance that the Council have set in their standing orders, and

(ii) whether or not there were reasonable causes for the member’s absences;

(h) the Privy Council is satisfied the member has failed, without reasonable cause, to undertake satisfactorily the requirements with regard to education and training for members that apply to that member and which the Council have included in their standing orders;

(i) the Privy Council is satisfied that the member is no longer able to perform their duties as a member of the Council because of adverse physical or mental health;

(j) the Privy Council is satisfied that the member’s continued membership of the Council would be liable to undermine public confidence in the regulation of the nursing and midwifery professions.

(2) A member who becomes, or may be about to become, a person to whom paragraph (1)(b) to (f) applies must notify the Privy Council and the Council in writing of that fact as soon as the person becomes aware of it.

(3) Any member or employee of the Council may notify the Privy Council if they are of the view that the Privy Council may need to exercise its functions under paragraph (1).

(4) The chair shall notify the Privy Council if the chair is aware that—

(a) a member has become, or may be about to become, a person to whom paragraph (1)(b) to (f) applies; and

(b) that member has not notified the Privy Council in writing of that fact and the chair is not satisfied that the member will do so immediately.

Suspension of members from office

7.—(1) The Privy Council may suspend a member from office by a notice in writing served on the member—

(a) if the Privy Council has reasonable grounds for suspecting that the member has become a person to whom article 6(1)(b)(ii) to (d) applies, for the purposes of determining whether or not the member has become such a person;

(b) while the Privy Council is considering whether or not it is satisfied as to the matters set out in article 6(1)(g) to (j);

(c) if the member is subject to any investigation or proceedings concerning the member’s fitness to practise by—

(i) any licensing body, or

(ii) the Council,

and the Privy Council is satisfied that it would not be appropriate for the member to continue to participate in proceedings of the Council while the investigation or proceedings concerning the member’s fitness to practise is or are ongoing;

(d) if the member is the subject of any investigation or proceedings concerning whether the member’s entry in the register was fraudulently procured or incorrectly made and the Privy Council is satisfied that it would not be appropriate for the member to continue to participate in proceedings of the Council while the investigation or proceedings concerning the member’s entry in the register is or are ongoing; or

(e) if the member is subject to any investigation or proceedings in the United Kingdom relating to a criminal offence, or in any other part of the world relating to an offence which, if committed in any part of the United Kingdom, would constitute a criminal offence, and—

(i) either—

(aa) the investigation or proceedings relate to an offence involving dishonesty or deception, or

(bb) the final outcome of the investigation or proceedings may be that the person is sentenced to a term of imprisonment or detention, and

(ii) the Privy Council is satisfied that it would not be appropriate for the member to continue to participate in proceedings of the Council while the investigation or proceedings is or are ongoing.

(2) The Privy Council shall suspend a registrant member from office by a notice in writing served on the member if the member is the subject of an order under article 31 of the principal Order (interim orders by a Practice Committee).

(3) The notice in writing under paragraph (1) or (2) shall set out the reasons for the suspension and the duration of the period of suspension, which shall (in the first instance) not be for more than 6 months.

(4) The Privy Council may stay its consideration under paragraph (1) of whether or not to suspend a member while the Council considers whether or not to provisionally suspend the member under standing orders of the Council.

(5) If a member has been provisionally suspended under standing orders of the Council—

(a) the Council shall notify the Privy Council in writing of the provisional suspension as soon as is reasonably practicable; and

(b) the Privy Council shall consider the matter with a view to determining whether or not to suspend the member under paragraph (1) or to remove the member under article 6(1).

(6) If after considering the matter under paragraph (5)(b), the Privy Council decides not to suspend the member, and not to remove the member from office, the Council must terminate its provisional suspension of the member under its standing orders.

(7) The Privy Council—

(a) may at any time review a suspension of a member by it; and

(b) shall review any suspension of a member by it after 3 months from the start of the period of suspension, if requested to do so by the suspended member.

(8) Following a review, the Privy Council may—

(a) terminate the suspension;

(b) if that review is within 3 months of the end of a period of suspension, extend the suspension for a further period of up to 6 months from the date on which the suspension would otherwise come to an end.

(9) The Privy Council shall notify the suspended member in writing of the outcome of any review and that notice in writing shall include the reasons for any decision taken.

PART 3 Chair of the Council

Appointment, term of office and cessation of office of the chair

8.—(1) The Privy Council shall, as one of its functions relating to the appointment of members of the Council, appoint the chair of the Council.

(2) The Privy Council may appoint a person to be chair of the Council—

(a) when it appoints the person to be a member of the Council; or

(b) whom it has already appointed as a member of the Council.

(3) The term of office of a member of the Council as chair shall be determined by the Privy Council on appointment of the member as chair, but it shall be for a period that is no longer than the period between the chair’s date of appointment as chair and the date on which the chair’s term of office as a member is due to expire (irrespective of whether or not they are thereafter reappointed as a member).

(4) A member serving as chair shall cease to be chair—

(a) on ceasing to be a member;

(b) if the member resigns as chair, which the member may do at any time by a notice in writing to the Council;

(c) if the member’s membership of the Council is suspended by the Privy Council; or

(d) if a majority of the Council, excluding the chair (but not simply a majority at a quorate meeting), votes to terminate the member’s appointment as chair.

Deputising arrangements in respect of the chair

9.—(1) Subject to paragraph (2), if, for any reason, the chair is absent from a meeting of the Council, the members who are present at that meeting shall nominate one of their number to serve as chair at that meeting.

(2) If, for any reason—

(a) the Council is on notice that their chair is likely—

(i) to be absent for more than one meeting of the Council, or

(ii) to be unavailable to perform the duties of a chair for more than one month; or

(b) the office of chair is vacant,

the Council may nominate a member (“deputy chair”) to serve as chair during the absence or unavailability of the chair or the vacancy.

(3) A member serving as deputy chair shall cease to be deputy chair—

(a) in the case of—

(i) the absence or unavailability of the chair, once the chair notifies the Council that they are able to resume their duties, or

(ii) the office of chair being vacant, once the vacancy is filled;

(b) if the member ceases to be a member;

(c) if the member resigns as deputy chair, which the member may do at any time by a notice in writing to the Council;

(d) if the member’s membership of the Council is provisionally suspended by the Council or suspended by the Privy Council; or

(e) if the Council votes (by a majority at a quorate meeting) to terminate the member’s appointment as deputy chair.

PART 4 Proceedings of the Council

Quorum of the Council

10.  The quorum of the Council shall be 8.

Effect of vacancies etc. on the validity of proceedings

11.—(1) The validity of any proceedings of the Council shall not be affected by—

(a) any vacancy among the members of the Council;

(b) any defect in the appointment of a member of the Council;

(c) a member whom the Privy Council must remove from the Council under article 6(1)(b) to (f) participating in the proceedings;

(d) a member whom the Privy Council has removed under article 6(1) having participated in the proceedings; or

(e) a member who has been provisionally suspended by the Council under its standing orders or suspended by the Privy Council under article 7(1) or (2) having participated in the proceedings.

(2) Notwithstanding paragraph (1)(c), a member whom the Privy Council must remove from the Council under article 6(1)(b) to (f) is not entitled to participate in proceedings of the Council, pending the member’s removal from the Council by the Privy Council.

Judith Simpson

Clerk of the Privy Council

EXPLANATORY NOTE

(This note is not part of the Order)

This Order makes provision with regard to the constitution of the Nursing and Midwifery Council (“the NMC”). The NMC is to consist of 7 registrant members, who are nurses or midwives registered with the NMC, and 7 lay members (article 2). Their terms of office will be determined by the Privy Council – or if directed by the Privy Council to do so, the Appointments Commission – on appointment. There are limitations on the period for which members may serve on the NMC (article 3). The NMC is to make provision with regard to the education and training of its members in standing orders (article 4).

Certain categories of people, for example people who have been convicted of certain types of offences where the conviction is not spent, are disqualified from being members of the NMC, and once members have been appointed, there are certain circumstances in which they may be removed from office (articles 5 and 6). In some circumstances, a member may also be suspended from office, and there are provisions relating to the provisional suspension by the NMC itself, pending the taking of a decision by the Privy Council (or, in its place, the Appointments Commission) to suspend or remove that member.

There are also provisions relating to the appointment of the chair, who is to be appointed by the Privy Council – or if directed to do so by the Privy Council, by the Appointments Commission. The chair will cease to be chair if that person is suspended as a member of the NMC or loses a vote of no confidence (article 8). There are provisions relating to the deputising arrangements for the chair, and the NMC will have powers to appoint a deputy chair to serve during the absence of a chair that is likely to be for more than one month or one meeting, or the position of chair is vacant (article 9).

There are also provisions relating to the proceedings of the NMC. Its quorum is 8, and there are special provisions to prevent its proceedings being invalidated by matters such as a vacancy or a defect in the appointment of a member (articles 10 and 11).

(1)

S.I. 2002/253; paragraph (7A) of article 3 of, and paragraph 1B of Schedule 1 to, the Order were inserted by S.I. 2008/1485.

(2)

2006 c.47.

(3)

1974 c. 53.

(4)

S.I. 1978/1908 (N.I. 27).

(5)

1990 c.40; section 7 was repealed by the Charities and Trustee Investment (Scotland) Act 2005 (asp 10), Schedule 4, paragraph 7(b).

(6)

2005 asp 10.

(7)

1986 c.45; Schedule 4A was inserted by section 257 of, and Schedule 20 to, the Enterprise Act 2002 (c.40).

(8)

1986 c.46.

(9)

S.I. 1986/1032 (N.I. 6).

(10)

S.I. 2002/3150 (N.I. 4).

(11)

2006 c.47.

(12)

S.I. 2007/1351 (N.I. 11).

(13)

2007 asp 14.

(14)

Paragraph 1A was inserted by S.I. 2008/1485.