Citation, commencement and interpretation

1.–(1) This Order may be cited as the Nursing and Midwifery (Amendment) Order 2008.

(2) The following provisions shall come into force on the day after the day on which this Order is made–

(a) this article and articles 3 to 5; and

(b) in Schedule 1, paragraphs 1(a), 2, 3, 6(a), 7, 9, 10(1) in so far as it relates to paragraph 10(4)(b) and (c), 10(4)(b) and (c) and 12, and article 2(1) in so far as it relates to those paragraphs.

(3) Except as provided for by paragraph (2), the provisions of this Order which confer, amend or substitute powers enabling rules or orders to be made shall come into force on the making of this Order, but for the purpose only of the exercise of those powers.

(4) The following provisions shall come 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)–

(a) paragraph 4 of Schedule 1, and article 2(1) in so far as it relates to that paragraph; and

(b) paragraph 1 of Schedule 2, and article 2(2) in so far as it relates to that paragraph.

(5) Except as provided for by paragraphs (2) to (4), the provisions of this Order shall come into force on such day as the Secretary of State may specify in writing.

(6) Different days may be specified under paragraph (5) for different purposes.

(7) The Secretary of State shall notify any day specified and, if different purposes are specified, the purposes for which it is specified, in the London, Edinburgh and Belfast Gazettes at least one week before that day.

(8) In this Order, "the principal Order" means the Nursing and Midwifery Order 2001(3).

Amendment and revocation of nursing and midwifery legislation

2.–(1) The amendments to the principal Order set out in Schedule 1 shall have effect.

(2) The amendment to and revocations of subordinate legislation under the principal Order set out in Schedule 2 shall have effect.

Cancellation of elections

3. Elections shall not be held in respect of the vacancies which, but for the amendments to the principal Order set out in paragraph 12(1)(c) of Schedule 1, would have arisen in respect of the registrant and alternate members who were due to vacate office at the end of 31st July 2008 and 31st July 2009.

Transitional, transitory or saving provisions orders

4.–(1) In connection with the commencement of any provision of this Order, the Privy Council may by order make such transitional, transitory or saving provisions as it considers appropriate.

(2) The power to make an order under paragraph (1) may be exercised–

(a) so as to make different provision–

(i) with respect to different cases or different classes of cases, or

(ii) in respect of the same case or class of case for different purposes;

(b) in relation to all cases to which the power extends or in relation to all those cases subject to specified exceptions; or

(c) so as to make any supplementary, incidental or consequential provisions which the Privy Council considers necessary or expedient.

(3) The power to make an order under paragraph (1) shall be exercisable by statutory instrument.

(4) For the purposes of section 1 of the Statutory Instruments Act 1946(4) (definition of "Statutory Instrument"), paragraph (3) shall have effect as if contained in an Act of Parliament.

Privy Council procedures etc.

5.–(1) The power of the Privy Council to make an order under article 4(1) may be exercised by any two or more members of the Privy Council.

(2) The making of an order under article 4(1) shall be sufficiently signified by an instrument signed by the Clerk of the Privy Council.

(3) Where an order of the Privy Council under this Order is signified by an instrument purporting to be signed by the Clerk of the Privy Council, that shall be evidence, and in Scotland sufficient evidence, of–

(a) the fact that the order was duly made; and

(b) the order´s terms.

Article 2(1)

SCHEDULE 1 Amendments to the Nursing and Midwifery Order 2001

Amendment of article 3

1. In article 3 (the Nursing and Midwifery Council and its Committees)–

(a) for paragraph (5) substitute the following paragraphs–

"(5) In exercising its functions, the Council shall–

(a) have proper regard for–

(i) the interests of persons using or needing the services of registrants in the United Kingdom, and

(ii) any differing interests of different categories of registrants;

(b) co-operate, in so far as is appropriate and reasonably practicable, with public bodies or other persons concerned with–

(i) the employment (whether or not under a contract of service) of registrants,

(ii) the education or training of nurses, midwives or other health care professionals,

(iii) the regulation of, or the co-ordination of the regulation of, other health or social care professionals,

(iv) the regulation of health services, and

(v) the provision, supervision or management of health services.

(5A) In carrying out its duty to co-operate under paragraph (5)(b), the Council shall have regard to any differing considerations relating to practising as a nurse or midwife which apply in England, Scotland, Wales or Northern Ireland.

(5B) In paragraph (5), "health care professionals" means persons regulated by a body, other than the Council, mentioned in section 25(3) of the National Health Service Reform and Health Care Professions Act 2002(5) (which relates to the Council for the Regulation of Health Care Professionals).";

(b) omit paragraph (7);

(c) before paragraph (8) insert the following paragraph–

"(7A) The Council shall be constituted as provided for by order of the Privy Council, subject to Part 1 of Schedule 1."; and

(d) in paragraph (8), after "of the Council" insert "and orders of the Privy Council under paragraph (7A)".

New article 6A

2. After article 6, insert the following article–

"Temporary annotations with regard to emergencies involving loss of human life or human illness etc.

6A.–(1) If the Secretary of State advises the Registrar that an emergency has occurred, is occurring or is about to occur and that action should be considered under this article, the Registrar may make–

(a) an annotation in the register against the name of a registrant to indicate that the registrant is qualified to order drugs, medicines and appliances in a specified capacity, notwithstanding that the registrant is not so qualified, if the Registrar considers that the registrant is a fit, proper and suitably experienced person to order drugs, medicines and appliances in that capacity with regard to the emergency;

(b) annotations in the register against the names of registrants comprising a specified group of registrants to indicate that they are qualified to order drugs, medicines and appliances in a specified capacity, notwithstanding that they are not so qualified, if the Registrar considers that the group is comprised of registrants who are of a type who may reasonably be considered fit, proper and suitably experienced persons to order drugs, medicines and appliances in that capacity with regard to the emergency.

(2) The Registrar may make the annotation in such a way so as to distinguish registrants against whose names in the register annotations are made by virtue of paragraph (1) from registrants in respect of whom the annotation is made otherwise than by virtue of paragraph (1).

(3) Annotations made by virtue of paragraph (1)–

(a) must be removed by the Registrar if the Secretary of State advises the Registrar that the circumstances that led the Secretary of State to advise the Registrar as mentioned in paragraph (1) no longer exist;

(b) may be removed by the Registrar at any time, including where the Registrar has grounds for suspecting that the registrant´s fitness to order drugs, medicines or appliances may be impaired.

(4) A registrant against whose name in the register an annotation is made by virtue of paragraph (1)(b) as one of a specified group may have that annotation removed without the Registrar removing the equivalent annotations against the names of the other members of the group or by virtue of a decision to remove the annotations made by virtue of paragraph (1)(b) against the names of all the members of the group.

(5) For the purposes of this article, "emergency" means an emergency of the type described in section 19(1)(a) of the Civil Contingencies Act 2004(6) (meaning of "emergency"), read with subsection (2) of that section."

Amendment of article 7

3. In article 7(7) (the register: supplemental provisions), after paragraph (4) insert the following paragraph–

"(5) Rules may not be made under this article in connection with annotations made under article 6A."

Amendment of article 22

4. In article 22 (allegations), in paragraph (1)(a), omit "or" at the end of paragraph (iv) and after paragraph (v) insert–

"(vi) the Independent Barring Board including the person in a barred list (within the meaning of the Safeguarding Vulnerable Groups Act 2006(8) or the Safeguarding Vulnerable Groups (Northern Ireland) Order 2007(9)), or

(vii) the Scottish Ministers including the person in the children´s list or the adults´ list (within the meaning of the Protection of Vulnerable Groups (Scotland) Act 2007(10))."

Amendment of article 32

5. In article 32 (investigation of allegations: procedural rules), in paragraph (4), for "Chairman" substitute "chair".

Amendment of article 37

6. In article 37(11) (appeals against Registrar´s decisions)–

(a) after paragraph (2), insert the following paragraph–

"(2A) No appeal lies to the Council where the Registrar has refused to make, or has removed, an annotation under article 6A."; and

(b) in paragraph (5)(g), for "Chairman" substitute "chair".

Amendment of article 48

7. In article 48 (exercise of powers by the Privy Council), after paragraph (2) insert the following paragraph–

"(2A) For the purposes of section 1 of the Statutory Instruments Act 1946 (definition of "Statutory Instrument"), paragraph (2) shall have effect as if contained in an Act of Parliament."

Substitution of article 50

8. For article 50 (annual reports), substitute the following article–

"Annual reports, statistical reports and strategic plans

50.–(1) The Council shall publish, by such date in each year as the Privy Council shall specify–

(a) a report on the exercise of its functions which includes a description of the arrangements that the Council has put in place to ensure that it adheres to good practice in relation to equality and diversity (and for these purposes "equality" and "diversity" have the meanings given in section 8(2) of the Equality Act 2006(12) (equality and diversity));

(b) a statistical report which indicates the efficiency and effectiveness of, and which includes a description of, the arrangements which the Council has put in place under article 21(1)(b) to protect members of the public from registrants whose fitness to practise is impaired, together with the Council´s observations on the report; and

(c) a strategic plan for the Council in respect of such number of years as the Council shall determine.

(2) The Council shall submit copies of the reports and the plan published under paragraph (1) to the Privy Council and the Privy Council shall lay copies of the reports and the plan before each House of Parliament."

Amendment of article 52

9. In article 52 (accounts of the Council), for paragraph (3) substitute the following paragraph–

"(3) The Council shall ensure that the persons it appoints are eligible for appointment as statutory auditors under Part 42 of the Companies Act 2006(13) (statutory auditors)."

Amendment of Schedule 1

10.–(1) Schedule 1 (the Nursing and Midwifery Council and committees) is amended in accordance with the provisions of this paragraph.

(2) In Part 1(14), for paragraphs 1 to 11 substitute the following paragraphs–

"Membership: general

1A.–(1) The Council shall consist of–

(a) registrant members, that is members who are registrants; and

(b) lay members, that is members who–

(i) are not and never have been registered nurses or registered midwives (and article 5(5) does not apply for these purposes), and

(ii) do not hold qualifications which would entitle them to apply for registration under this Order.

(2) The members of the Council shall be appointed by the Privy Council.

(3) The Privy Council shall ensure that, at any time, at least one member of the Council lives or works wholly or mainly in each of England, Scotland, Wales and Northern Ireland.

(4) Before the Privy Council directs the Appointments Commission under section 60 of the Health Act 2006 to exercise any function of the Privy Council relating to the appointment of members of the Council, the Privy Council shall consult the Council.

(5) The Privy Council may, by a direction under section 60 of the Health Act 2006(15) (Commission to exercise Privy Council´s appointment functions), require the Appointments Commission to appoint the person who held office as President of the Council on the day before the first order under article 3(7A) comes into force as a member of the Council as constituted on the day the first order under article 3(7A) comes into force.

Matters for the order of the Privy Council under article 3(7A)

1B.–(1) An order under article 3(7A) shall include provision with regard to–

(a) the numbers of registrant members and lay members of the Council;

(b) the terms of office for which members of the Council are appointed, and the order may provide that these are to be determined by the Privy Council, on appointment;

(c) the grounds on which persons are to be disqualified from appointment as registrant or lay members of the Council;

(d) the appointment of a chair of the Council and the chair´s term of office;

(e) deputising arrangements in respect of the chair;

(f) the quorum of the Council; and

(g) the circumstances in which members cease to hold office or may be removed or suspended from office.

(2) But an order under article 3(7A) must not include any provision which would have the effect that a majority of the members of the Council would be lay members.

(3) An order under article 3(7A) may include provision with regard to–

(a) the maximum period for which a member of the Council may hold office as a member during a specified period;

(b) the maximum period for which a member of the Council may serve as chair of the Council during a specified period;

(c) the education and training of members of the Council, and the order may provide for the Council to include the requirements with regard to education and training of its members in standing orders, and for those standing orders to provide for–

(i) that education and training to be the responsibility of another body, and

(ii) those requirements to be set and varied by that body from time to time;

(d) the attendance of members of the Council at meetings of the Council;

(e) the effect (if any) of any vacancy in the membership of the Council or any defect in the appointment of a member; and

(f) enabling the Privy Council to appoint as the chair of the Council, for a specified period, the person who held office as President of the Council on the day before the first order under article 3(7A) comes into force.

(4) An order under article 3(7A) may make different provision for different cases or different classes of case and may contain such incidental, consequential, transitional, transitory, saving or supplementary provisions as appear to the Privy Council to be necessary or expedient."

(3) For paragraph 12, substitute the following paragraph–

"12.–(1) Subject to any provision made by this Order or under this Order (otherwise than by standing orders), the Council may by standing orders make provision in respect of–

(a) its procedure;

(b) the performance of its functions;

(c) the constitution of its committees and sub-committees, other than the Practice Committees and the Midwifery Committee;

(d) the procedure of any of its committees or sub-committees;

(e) the performance by any of its committees or sub-committees of their functions; and

(f) the standards of education, training, attendance and performance expected of the members of its committees and sub-committees.

(2) Standing orders of the Council may make provision with regard to the provisional suspension of a member from office, pending the taking of a decision about the suspension or removal from office of the member in accordance with the provisions of an order under article 3(7A)."

(4) In paragraph 14 (which relates to voting)–

(a) in sub-paragraph (2), for "Chairman" substitute "chair";

(b) omit sub-paragraph (3); and

(c) in sub-paragraph (4), for "statutory committees" substitute "Practice Committees".

(5) In paragraph 15 (powers of the Council)–

(a) omit sub-paragraph (2)(g); and

(b) omit sub-paragraphs (6) and (7).

(6) In paragraph 16 (Midwifery Committee), for sub-paragraphs (1) and (2) substitute the following sub-paragraphs–

"(1) The Council shall by rules make provision with regard to the constitution of the Midwifery Committee, and those rules shall include provision with regard to–

(a) its size and membership;

(b) the appointment, suspension and removal of its members;

(c) its chair, including the deputising arrangements for its chair; and

(d) the quorum at its meetings.

(2) The rules may make provision for a body (including a committee of the Council other than the Midwifery Committee) to assist the Council in connection with the exercise of any function relating to the appointment of members or particular members of the Midwifery Committee, including any function relating to tenure of office or suspension or removal from office.

(2A) The Council shall have regard, when selecting non-Council members for the Midwifery Committee, to the guidance issued by the Commissioner for Public Appointments.

(2B) Subject to any provision made by this Order or under this Order, including provision made by standing orders of the Council under paragraph 12(1)(d), the Midwifery Committee may regulate its own procedure."

(7) For paragraph 17 (which relates to the constitution of Practice Committees), substitute the following paragraph–

"17.–(1) The Council shall by rules make provision with regard to the constitution of each Practice Committee, and those rules shall include provision with regard to–

(a) its size and membership;

(b) the appointment, suspension and removal of its members;

(c) its chair, including the deputising arrangements for its chair; and

(d) the quorum at its meetings.

(2) The rules may make provision for a body (including a committee of the Council which is not one of the Practice Committees) to assist the Council in connection with the exercise of any function relating to the appointment of members or particular members of a Practice Committee, including any function relating to tenure of office or suspension or removal from office.

(3) Subject to any provision made by this Order or under this Order, including provision made by standing orders of the Council under paragraph 12(1)(d), each Practice Committee may regulate its own procedure."

(8) In paragraph 18 (which relates to supplemental matters relating to Practice Committees)–

(a) omit sub-paragraphs (1) to (3) and (6); and

(b) in sub-paragraph (8), for "Chairman" substitute "chair".

Amendment of Schedule 4

11. In Schedule 4(16) (interpretation)–

(a) omit the definitions of "alternate member", "corresponding practitioner member", "corresponding registrant member", "national constituency" and "registrant member"; and

(b) for the definition of "lay member" substitute the following definition–

""lay member" shall be construed in accordance with paragraph 1A(1)(b) of Schedule 1;".

Temporary measures pending the introduction of the new constitution of the Council

12.–(1) In Schedule 1(17) (the Nursing and Midwifery Council and committees)–

(a) in paragraph 1 (which relates to membership of the Council)–

(i) in sub-paragraph (1)(c), before "12 members" insert "subject to sub-paragraph (2A),",

(ii) in sub-paragraph (2), before "The Council" insert "Subject to sub-paragraph (2A),", and

(iii) after sub-paragraph (2) insert the following sub-paragraph–

"(2A) The Council need not appoint an alternate member for a particular registrant member, where to do so would require it to hold a by-election, and in these circumstances there shall be no alternate member for that registrant member (and the number of alternate members of the Council shall be reduced accordingly) unless or until an election (including a by-election) needs to be held to replace that registrant member.";

(b) in paragraph 2(2)–

(i) in paragraph (b), before "at least one" insert "subject to paragraph 1(2A),", and

(ii) in paragraph (f), for "paragraph 7(3)" substitute "paragraphs 1(2A) and 7(3)"; and

(c) in paragraph 8(18) (tenure of members)–

(i) in sub-paragraph (1), for "Subject to paragraph 6 of Schedule 2," substitute "Subject to sub-paragraphs (1A) and (1B),", and

(ii) after sub-paragraph (1) insert the following sub-paragraphs–

"(1A) The term of office of any registrant or alternate member who holds office on 31st July 2008 shall expire at the end of 31st July 2010 or on the coming into force of the first order of the Privy Council under article 3(7A), whichever is the sooner.

(1B) The full term of office of any registrant or alternate member who ceases to be a member before 31st July 2008 and whose vacancy remains unfilled at the end of 31st July 2008 shall, for the purposes of paragraph 7(2), be treated as if it would have expired at the end of 31st July 2010 or on the coming into force of the first order of the Privy Council under article 3(7A), whichever is the sooner."

(2) In Schedule 2 (transitional provisions), omit paragraph 6(19) (which relates to the tenure of office of members following the end of the second transitional period).

Article 2(2)

SCHEDULE 2 Amendment to and revocations of subordinate legislation

Amendment of the Nursing and Midwifery Council (Education, Registration and Registration Appeals) Rules 2004

1. In the Nursing and Midwifery Council (Education, Registration and Registration Appeals) Rules 2004(20), in rule 6 (requirements for declarations of good health and good character), in paragraph (6), after sub-paragraph (c) insert the following sub-paragraphs–

"(ca) any inclusion by the Independent Barring Board of the applicant in a barred list (within the meaning of the Safeguarding Vulnerable Groups Act 2006 or the Safeguarding Vulnerable Groups (Northern Ireland) Order 2007);

(cb) any inclusion by the Scottish Ministers of the applicant in the children´s list or the adults´ list (within the meaning of the Protection of Vulnerable Groups (Scotland) Act 2007);".

Revocation of the Nursing and Midwifery Council (Election Scheme) Rules 2005 and the Rules amending those Rules

2.–(1) The Nursing and Midwifery Council (Election Scheme) Rules Order of Council 2005(21), and the Rules approved by that Order, are revoked.

(2) The Nursing and Midwifery Council (Election Scheme) (Amendment) Rules Order of Council 2007(22), and the Rules approved by that Order, are revoked.

Revocation of the Nursing and Midwifery Council (Practice Committees) (Constitution) Rules 2006

3. The Nursing and Midwifery Council (Practice Committees) (Constitution) Rules Order of Council 2006(23), and the Rules approved by that Order, are revoked.

EXPLANATORY NOTE

(This note is not part of the Order)

This Order makes various amendments to the framework legislation for the regulation of nurses and midwives, the Nursing and Midwifery Order 2001 ("the principal Order"), and contains some consequential changes. Many of the amendments relate to the governance arrangements for the Nursing and Midwifery Council (NMC).

Schedule 1 contains the amendments to the principal Order. The NMC is to be reconstituted as provided for by Order of the Privy Council. Instead of a mix of elected members who are registered nurses or midwives and appointed lay members, all its members will be appointed, and the former system of alternate members for the registrant members is discontinued. If the Privy Council, which is the body responsible for appointing the membership of the NMC, directs the Appointments Commission to carry out any of the Privy Council´s appointment functions, it must consult the NMC first. There is a transitional provision which allows the existing elected membership of the NMC to remain in place, without the need for further elections, until either the new constitution Order comes into force or they have served a maximum of four years since they were elected, which will be in 2010. As a result of this transitional provision, the elections in respect of particular national constituencies that would otherwise have been held in 2008 and 2009 have been cancelled (article 3 and paragraphs 1(c) and (d), 10(2), 11 and 12 of Schedule 1).

The constitutional arrangements for the statutory committees of the NMC are revised so that these have to be set out in rules, with less of the detail included in the principal Order itself. The statutory committees are given express powers to regulate their own procedures by standing orders, subject to the requirements of legislation and Council standing orders. The NMC will be responsible for appointing the members of these committees, but is given powers to seek the assistance of other bodies with its appointment functions. The restrictions on the voting and chairing arrangements where the Council or a committee is dealing with only one of the professions regulated under the principal Order have been removed, and there have been some amendments to take account of gender neutral drafting. The NMC is also given revised duties of co-operation with other bodies and individuals (paragraphs 1(a), 5, 6(b) and 10(3) to (8) of Schedule 1).

A new article 6A is inserted into the principal Order, which will enable the NMC to make emergency, temporary annotations to its register in circumstances where a major emergency such as one involving the loss of human life or illness has occurred, is occurring or is about to occur. These annotations will enable fit, proper and suitably experienced registrants to order drugs, medicines and appliances that they would not otherwise be able to order, as the annotations will give them prescribing rights under medicines legislation in relation to most prescription only medicines. The annotations will be at the discretion of the Registrar, but will need to be removed if the Secretary of State advises the Registrar that the circumstances which gave rise to the need for emergency registration no longer exist. There are also some consequential amendments (paragraphs 2, 3 and 6(a) of Schedule 1).

Article 22 of the principal Order is amended so that the inclusion of a person in a barred list kept by the Independent Barring Board, or in the children´s list or the adults´ list by the Scottish Ministers, becomes a reason for finding that a registrant´s fitness to practise is impaired (paragraph 4 of Schedule 1).

Article 48 of the principal Order has been revised to make it clear that the Statutory Instruments Act 1946 applies to statutory instruments under the principal Order (paragraph 7 of Schedule 1).

Article 50 of the principal Order has been revised so that it contains new arrangements for annual reports. There are three documents that the NMC has to produce: an annual report that includes a description of the arrangements that it has in place to ensure that it adheres to good practice in relation to equality and diversity, a statistical report relating to its fitness to practise functions and a strategic plan. The current arrangements for consulting the Privy Council about the exercise of its functions are repealed. As regards annual accounts, there is an updating of the reference to the auditors to take account of changes introduced in the Companies Act 2006 (paragraphs 1(b), 8 and 9 of Schedule 1).

A consequential amendment and some revocations are set out in Schedule 2. The Order also contains powers to make transitional, transitory or saving provisions by order of the Privy Council (articles 4 and 5).

An impact assessment has been prepared in relation to this Order and is available from the Department of Health, Quarry House, Quarry Hill, Leeds LS2 7UE. Copies of the assessment have been placed in the libraries of both Houses of Parliament.