NCM Act 2003
PART II - THE COUNCIL
SUBPART A - ESTABLISHMENT AND FUNCTIONS OF THE COUNCIL3 . Establishment of Council
(1) There is established for the purposes of this Act a Council which shall be known as the Nursing Council of Mauritius.
(2) The Council shall be a body corporate.
4. Composition of Council
(1) The Council shall consist of –
(a) 12 persons elected from among registered nurses or midwives having at least 10 years' experience in accordance with the rules set out in the Schedule to this Act;
(b) a representative of the Ministry responsible for the subject of health;
(c) a representative of Attorney-General's Office;
(d) a representative of Prime Minister's Office;
(e) 4 persons, not being in the profession of nursing or midwifery, appointed by the Minister.
(2) The composition of the Council shall be published in the Gazette.
5 . Tenure of office of members
The members of the Council shall hold office for a period of three years and shall be eligible for re-appointment or re-election, as the case may be.
6. Vacation of office of member
(1) The Council may require a member to vacate his office if he -
(a) commits a gross negligence, misconduct, default or breach of trust in the discharge of his duties, as a member or otherwise, which in the opinion of the Council renders him unfit to be a member;
(b) is incapacitated by prolonged physical or mental illness;
(c) is convicted of an offence of such a nature as, in the opinion of the Council, renders him unfit to be a member;
(d) is absent without leave of the Council from three consecutive meetings of the Council of which he had notice;
(e) is disqualified under this Act from practising his profession as a nurse or midwife.
(2) A member may resign by giving notice in writing to the Registrar.
(3) Where a member resigns under subsection (2), his seat shall become vacant when the Registrar receives the notice.
(4) The Council may suspend a member against whom -
(a) criminal proceedings are instituted for an offence punishable by imprisonment;
(b) disciplinary proceedings are instituted -
(i) by the Council; or
(ii) in the case of a public officer, by the Public Service Commission,
on any ground involving fraud, dishonesty, gross negligence, infamous conduct or breach of the Code of Practice.
7. Filling of vacancies on Council
(1) Where a member of the Council dies, retires, resigns or is removed from office, the vacancy thereby caused shall be filled, for the remaining period of the term of office, -
(a) in the case of a member appointed by the Minister, by a fresh appointment;
(b) in the case of an elected member by appointing the person who obtained the highest number of votes in the relevant category of nurses or midwives, as appropriate, after the elected members at the previous election held in accordance with the provisions of the Schedule;
(c) where no person is qualified for appointment under paragraph (b), by holding of a fresh election for that category.
(2) Where a member absents himself with the approval of the Council for a continuous period of six months or more, the Council may cause him to be replaced by a new member appointed in the manner specified in subsection (1)(a) or 1(b) as the case may be, for the period during which the member absents himself.
8. Chairperson of Council
(1) The Council shall elect a member who is elected under section 4(1) as its Chairperson.
(2) The Chairperson shall preside at every meeting of the Council and shall have the right to vote.
(3) The Chairperson shall, in the event of an equality of votes, have a casting vote.
(4) Where the Chairperson is absent from a meeting the members present shall elect one of the members elected under section 4(1) to chair the meeting, and in case of prolonged absence, a temporary chairperson shall be elected
(5) A member who intends to stand as candidate for the office of Chairperson under subsection (1) shall, not less than 3 days before the date fixed for the election of the Chairperson, notify the Registrar by registered post of his intention.
9. Meetings of Council
(1) Ten members shall constitute a quorum at any meeting.
(2) The validity of any decision, proceeding or act of the Council or act done on the authority of the Council shall not be affected by –
(a) any vacancy among the members thereof;
(b) any defect in the appointment of a member thereof; or
(c) the fact that a person who was not entitled to participate in the deliberation of the Council, did so.
(3) The Council shall meet at least 3 times each year and shall be convened by the Registrar.
(4) A special meeting of the Council -
(a) may be convened by the Chairperson at any time;
(b) shall be convened by the Registrar within 7 days of the receipt by him of a request in writing signed by not less than 10 members of the Council and specifying the purpose for which the meeting is to be convened.
(5) The Council may set up a Committee of 2 or more members for such purpose as it may determine.
10. Registrar
(1) There shall be a Registrar who shall be a registered nurse or midwife.
(2) The Registrar shall be appointed by the Council and shall hold office on such terms and conditions as the Council thinks fit.
(3) The Registrar shall be responsible to the Council for -
(a) the proper administration of the Council;
(b) executing the decisions of the Council; and
(c) carrying out such duties as may be assigned to him by the Council.
(4) In the exercise of his functions, the Registrar shall act in accordance with such directions as he may receive from the Council.
(5) The Registrar shall also be the Secretary to the Council.
(6) Where the Registrar is for any reason unable to carry out his functions, the Council may appoint another person to act as Registrar.
(7) The service of any summons, notice or process by or on behalf of the Council shall be sufficient if made by or on behalf of the Registrar.
11. Appointment of employees
(1) The Council may, on such terms and conditions as it thinks fit, appoint such employees as it considers necessary for the proper discharge of its functions under this Act.
(2) Every employee of the Council shall be under the administrative control of the Registrar.
12. Functions of Council
The Council shall -
(a) exercise and maintain discipline in the practice of nursing and midwifery;
(b) establish and maintain registers kept under section 20;
(c) advise the Minister on any matter governed by the provisions of this Act or any matter connected therewith or incidental thereto;
(d) advise the Minister on the establishment and improvement of the standards of education of nurses and midwives;
(e) promote the education and training of nurses and midwives;
(f) establish a code of practice for the nursing and midwifery professions and monitor compliance with such code; and
(g) publish the annual list.
SUBPART B - DISCIPLINE
13. Preliminary investigation by Council
(1) The Council may investigate any complaint of dishonest practices, negligence, professional misconduct or malpractice, infamous conduct, or any breach of the Code of Practice against a registered person, provided that in the case of a public officer the prior approval of the Responsible Officer is obtained.
(2) Where the Council investigates a complaint -
(a) it shall notify the person whose conduct, act or omission is under investigation of the nature of the complaint;
(b) it may summon and hear the person;
(c) it may summon and hear witnesses; and
(d) it may call for relevant documents and make such copies thereof as it thinks fit.
(3) The Council shall keep a proper record of its proceedings under subsection (2).
(4) Notwithstanding section 9(1), for the purposes of an investigation under subsection (1), the Council may appoint an Investigating Committee of not less than 3 members.
(5) Where, in the course of an investigation, a person refuses to give evidence or, to communicate any document, on the ground of confidentiality, the Registrar may apply to a Judge sitting in Chambers for an order directing that person to disclose the evidence required, or to communicate any document needed for the purposes of the investigation.
(6) The Judge shall make an order under subsection (5) where he is satisfied that the information or document the disclosure of which is sought is bona fide required for the purposes of the investigation.
14. Disciplinary proceedings
(1) Where after having carried out a preliminary investigation under section 13, the Council is satisfied that a registered person has committed -
(a) a breach of the Code of Practice;
(b) an act of dishonesty or negligence;
(c) an act of professional misconduct or malpractice; or
(d) any other act likely to bring the nursing or midwifery profession into disrepute,
the Council may institute disciplinary proceedings against the registered person before the Tribunal.
(2) Notwithstanding subsection (1), where after the preliminary investigation, the Council considers that -
(a) there is prima facie evidence of gross negligence, incompetence, or serious misconduct on behalf of a registered person; and
(b) public interest requires that the registered person should instantly cease to practice nursing or midwifery,
the Council may, suspend the registered person from the practice of nursing or midwifery until a decision is taken under section 17(4), provided that in the case of a public officer, the prior approval of the Responsible Officer and the Public Service Commission is obtained.
15. Reference to Tribunal
(1) Where -
(a) after an investigation under section 13, the Council is of the opinion that disciplinary proceedings should be instituted against a registered person; or
(b) pursuant to section 89(2) of the Constitution, the Public Service Commission refers to the Council a case of alleged negligence or professional misconduct against a registered person who is a public officer,
the Council shall refer the matter for hearing to the Tribunal.
(2) Notwithstanding subsection (1)(a), the Council shall not refer a case involving a public officer before the Tribunal unless the approval of the Public Service Commission is obtained.
16. Membership of Tribunal
(1) Notwithstanding section 15 (2)(b) of the Medical Council Act, in relation to a matter referred to the Tribunal under section 15, the Prime Minister shall, subject to subsections (2) and (3), appoint 2 persons -
(2) The Prime Minister shall not appoint a member of the Council as a member of the Tribunal.(a) one of whom shall be a registered nurse or midwife and the other a medical practitioner; and
(b) have at least 10 years' experience in the practice of nursing, midwifery or medicine as appropriate,
as members of the Tribunal.
(3) The Prime Minister may appoint a person who is not registered under this Act as member of the Tribunal, if the Prime Minister is satisfied that the person –
(a) has wide experience in the practice of nursing, midwifery or medicine; and
(b) is registered as nurse, midwife or medical practitioner outside the Republic of Mauritius .
17. Disciplinary measures
(1) The Tribunal shall, after having enquired into the matter, forward its report to the Council as soon as practicable and at any rate not later than one month from the termination of the proceedings.
(2) The report of the Tribunal shall include –
(a) a statement as to whether the charge has been proved and a brief statement of the reasons for those findings;
(b) details of any matters which, in the Tribunal's opinion aggravate the charge or alleviate the gravity of the charge; and
(c) the record of the proceedings of the Tribunal.
(3) The Tribunal shall not make any recommendation regarding the form of punishment.
(4) Subject to subsections (8) and (9), where the Council receives a report from the Tribunal under subsection (1) stating that the charge has been proved, it may -
(a) administer a warning or a severe warning to the registered person;
(b) administer a reprimand or a severe reprimand to the registered person;
(c) suspend the registered person from the practice of nursing or midwifery for a period not exceeding 12 months; or
(d) remove the name of the registered person from the register.
(5) The decision of the Council under subsection (4) shall be communicated to the registered person as soon as reasonably practicable and at any rate not later than 15 days from the date the Tribunal arrives to the decision.
(6) A registered person aggrieved by the decision of the Council may appeal to the Supreme Court by way of judicial review.
(7) Where -
(a) a registered person has been suspended under subsection (4) or section 14 (2); or
(b) the name of a registered person has been removed from the register under section 17 (4)(d);
such suspension or removal shall not be stayed pending the determination of any related appeal.
(8) Where the registered person is a public officer the Council shall refer the report of the Tribunal to the Public Service Commission, with such recommendations as it may deem necessary, for the Public Service Commission to take such appropriate action as it may deem necessary.
(9) Where the Public Service Commission has dismissed the registered officer from the public service as a result of action taken under subsection (8), the Council may after having given him an opportunity to show cause in writing why disciplinary measures specified in sub-section (4) should not be taken against him, take against him any measure specified in that subsection.
18. Disciplinary measures following conviction
(1) Where a registered person, who is not a public officer, has been convicted of a criminal offence involving negligence, professional misconduct, fraud or other dishonesty in the exercise of his calling, the Council may after giving him an opportunity to show cause in writing why disciplinary measures should not be taken against him, take against him any of the measures specified in section 17(4).
(2) Where a registered person, who is a public officer, has been dismissed from service under regulation 36 of the Public Service Commission Regulations, the Council may, after giving him an opportunity to show cause in writing why disciplinary measures should not be taken against him, take against him any measure specified in section 17(4).
19. Summary proceedings
Notwithstanding section 15, the Council may, without reference to the Tribunal and after an investigation carried out under section 13, inflict on a registered person, who is not a public officer -
(a) a warning;
(b) a severe warning;
(c) a reprimand; or
(d) a severe reprimand.