The European Qualifications (Health and Social Care Professions) Regulations 2007

PART 10NURSES AND MIDWIVES: NURSING AND MIDWIFERY ORDER 2001

Amendment of Nursing and Midwifery Order 2001

155.  The Nursing and Midwifery Order 2001(1) is amended in accordance with this Part.

Amendment of article 6

156.  In article 6 (register), in paragraph (3), after sub-paragraph (a) insert—

“(aa)the register to include an annotation denoting that a registrant is a visiting nurse or midwife from a relevant European State;”.

Amendment of article 7

157.  In article 7 (the register: supplemental provisions), after paragraph (3) add—

“(4) Rules under this article shall not provide for fees to be charged in respect of a person’s registration in exercise of entitlement under article 39A or Schedule 2A (visiting nurses and midwives from relevant European States).”.

Amendment of article 8

158.  In article 8 (access to register etc), in paragraph (5)—

(a)for “EEA State” substitute “relevant European State”; and

(b)for “the relevant Directive” substitute “the relevant provisions of the Directive”.

Amendment of article 9

159.  In article 9 (registration)—

(a)in paragraph (1), for “A person” substitute “Subject to paragraph (7), a person”;

(b)after paragraph (3) insert—

“(3A) Where an exempt person makes an application under paragraph (1), the Registrar, within the period of one month beginning with the date of receipt of the application, must—

(a)acknowledge receipt of the application; and

(b)inform the applicant of any missing document required for the purposes of the application.”;

(c)for paragraphs (4) and (5) substitute—

“(4) Where a person makes an application under paragraph (1), the Registrar must, as soon as reasonably practicable and in any event within the specified period, notify the applicant in writing—

(a)of the result of the application; and

(b)if the Registrar refuses the application, of the reasons for the decision, and of the applicant’s right of appeal.

(5) In paragraphs (4) and (6) “the specified period”—

(a)except in a case specified in sub-paragraph (b), means the period of three months beginning with the relevant date;

(b)in the case of an application by a person seeking registration in the register on the basis that he is to be regarded as having an approved qualification by virtue of falling within article 13(1)(e) or (f), means the period of four months beginning with the relevant date.

(5A) The “relevant date”, in relation to an application, is—

(a)the date when the Registrar receives the application; or

(b)if any document required for the purposes of the application is missing when the Registrar receives the application, the date on which the Registrar first has all the documents required for those purposes.”;

(d)in paragraph (6), for “the time specified in paragraph (4)” substitute “the specified period”; and

(e)after paragraph (6) add—

“(7) This article does not apply to a person who seeks registration in exercise of entitlement under article 39A or Schedule 2A (visiting nurses and midwives from relevant European States).”.

Amendment of article 10

160.  In article 10 (renewal of registration and readmission)—

(a)in paragraph (1), for “Where a person” substitute “Subject to paragraph (6), where a person”; and

(b)after paragraph (5) add—

“(6) This article does not apply to a visiting nurse or midwife from a relevant European State.”.

Omission of article 11

161.  Article 11 (deemed registration of visiting EEA nurses and midwives) is omitted.

Amendment of article 13

162.  In article 13 (approved qualifications)—

(a)in paragraph (1), for sub-paragraphs (b) and (c) substitute—

“(b)he is an exempt person who has a qualification of the kind mentioned in article 14;

(c)subject to paragraph (1A), he is an exempt person (other than a person to whom sub-paragraph (b), (e) or (f) applies) who has a qualification awarded outside the United Kingdom, and either—

(i)the Council is satisfied that his qualification attests to a standard of proficiency comparable to that attested to by a qualification referred to in sub-paragraph (a), or

(ii)the Council is not so satisfied, but the applicant has undergone in the United Kingdom or elsewhere such additional training or experience as satisfies the Council, following any test of competence as it may require him to take, that he has the requisite standard of proficiency for admission to the part of the register in respect of which he is applying;

(d)he is not an exempt person and he has, elsewhere than in the United Kingdom, undergone training in nursing or midwifery, and either—

(i)the Council is satisfied that his qualification attests to a standard of proficiency comparable to that attested to by a qualification referred to in sub-paragraph (a), or

(ii)the Council is not so satisfied, but the applicant has undergone in the United Kingdom or elsewhere such additional training or experience as satisfies the Council, following any test of competence as it may require him to take, that he has the requisite standard of proficiency for admission to the part of the register in respect of which he is applying,

and, in either case, he satisfies prescribed requirements as to knowledge of English;

(e)he is an exempt person—

(i)whose case falls within regulation 3(9)(a), (c), (d) or (e) of the General Systems Regulations,

(ii)to whom regulations 20 to 26 of those Regulations apply by reason of the operation of regulation 3(4) of those Regulations, and

(iii)who is permitted to pursue the profession of nursing or midwifery in the United Kingdom by virtue of Part 3 of those Regulations (having, in particular, successfully completed any adaptation period, or passed any aptitude test, that he may be required to undertake pursuant to that Part of those Regulations); or

(f)he is an exempt person (other than a person to whom sub-paragraph (e) applies) who is permitted to practise as a nurse in the United Kingdom by virtue of Part 3 of the General Systems Regulations (having, in particular, successfully completed any adaptation period, or passed any aptitude test, that he may be required to complete pursuant to that Part of those Regulations).”; and

(b)after paragraph (1) insert—

“(1A) In the case of an exempt person to whom paragraph (1)(c) applies, who holds a qualification in nursing or midwifery which was granted otherwise than in a relevant European State, and has not previously been accepted by a relevant European State as qualifying him to practise as a nurse or midwife in that State, that qualification shall not be regarded as an approved qualification unless the qualification—

(a)is evidence of nursing training that meets, or under article 22(a) of the Directive (part-time training) is to be treated as meeting, the requirements of article 31 of the Directive (training of nurses responsible for general care), or

(b)is evidence of training in midwifery that meets, or under article 22(a) of the Directive is to be treated as meeting, the requirements of article 40 of the Directive (training of midwives),

as the case may be.

(1B) In considering whether an exempt person to whom paragraph (1)(c) applies is to be regarded as having an approved qualification, the Council shall take into account—

(a)if the person holds a qualification in nursing or midwifery which—

(i)was granted otherwise than in a relevant European State, but

(ii)has been accepted by a relevant European State, other than the United Kingdom, as qualifying him to practise as a nurse or midwife in that State (as the case may be),

the acceptance of that qualification; and

(b)all other qualifications, knowledge or experience, wherever acquired, which are relevant to the determination of the application.”.

Amendment of article 14

163.  In article 14 (EEA qualifications)—

(a)in paragraph (1)—

(i)for “outside the United Kingdom” substitute “in a relevant European State other than the United Kingdom”, and

(ii)for “an EC Directive” substitute “the Directive”;

(b)in paragraph (2)(a)—

(i)for “a Directive issued by the Council of the European Communities” substitute “the relevant provisions of the Directive”, and

(ii)for “circumstances; and” substitute “circumstances.”; and

(c)omit paragraphs (2)(b) and (3).

Amendment of article 15

164.  In article 15 (education and training), in paragraph (2), for “provided for in the Second Nursing and Second Midwifery Directives” substitute “of article 31 (training of nurses responsible for general care) and article 40 (training of midwives) of the Directive”.

Amendment of article 19

165.  In article 19 (post-registration training), after paragraph (2) insert—

“(2A) Paragraphs (1) and (2), so far as relating to a person (“P”) who is is a registrant only as a result of being a visiting nurse or midwife from a relevant European State, have effect subject to, respectively, paragraphs (2B) and (2C).

(2B) Rules made under paragraph (1)—

(a)may not impose requirements on P if P is required to undertake, in P’s home State, continuing professional development in relation to the profession of nursing or midwifery (as the case may be); and

(b)where they impose requirements on P—

(i)shall take account of the fact that P is fully qualified to pursue that profession in P’s home State, and

(ii)shall specify that continuing professional development which P is required to undertake by the requirements may be undertaken outside the United Kingdom.

(2C) Where rules make provision such as is mentioned in paragraph (2), the rules must secure that any sanction imposed in relation to P by or under that provision is appropriate and proportionate in view of P’s continued lawful establishment in P’s home State as a nurse or midwife (as the case may be).

(2D) In paragraphs (2B) and (2C) “home State”, in relation to P, means the relevant European State in which P is lawfully established as a nurse or midwife (as the case may be).”.

Amendment of article 37

166.  In article 37 (appeals against Registrar’s decisions), in paragraph (1), after sub-paragraph (a) insert—

“(aa)refuses to register a person under article 39A (visiting general systems nurses from relevant European States) or Schedule 2A (visiting midwives, and certain visiting nurses, from relevant European States);”.

Amendment of article 38

167.  In article 38 (appeals)—

(a)in paragraph (1)(b), for “any decision of the Council under article 37” substitute “a decision of the Council mentioned in paragraph (1A)”;

(b)after paragraph (1) insert—

“(1A) The decisions referred to in paragraph (1)(b) are—

(a)any decision of the Council under article 37;

(b)a decision of the Council under Part 3 of the General Systems Regulations requiring an exempt person to complete an adaptation period, or pass an aptitude test, in connection with becoming entitled by virtue of that Part of those Regulations to have access to, and to pursue, the profession of nurse or midwife in the United Kingdom.”; and

(c)in paragraph (4)(c), omit the words “in the case of a visiting EEA nurse or midwife or”.

Substitution of article 39

168.  For article 39 substitute—

“Visiting midwives, and certain visiting nurses, from relevant European States

39.  Schedule 2A (visiting midwives, and certain visiting nurses, from relevant European States) shall have effect.”.

Insertion of article 39A

169.  After article 39 insert—

“Visiting general systems nurses from relevant European States

39A.—(1) This article applies to an exempt person (“V”)—

(a)who is lawfully established as a nurse in a relevant European State other than the United Kingdom (“State A”); and

(b)who seeks to provide, or is providing, nursing services in the United Kingdom of a kind which are provided, in the United Kingdom, by nurses admitted to—

(i)sub-part 1 of the nurses’ part of the register whose field of practice is mental health nursing, learning disabilities nursing or children’s nursing, or

(ii)sub-part 2 of the nurses’ part of the register.

(2) Paragraph (3) applies if V has the benefit of regulation 8 of the General Systems Regulations in connection with the provision by V of nursing services in the United Kingdom on a temporary and occasional basis (V having complied with any requirements imposed under Part 2 of those Regulations in connection with the provision by V of nursing services).

(3) V is entitled to be registered in the appropriate part of the register; and the Registrar shall give effect to the entitlement.

(4) If V is entitled under paragraph (3) to be registered, but is not registered in the appropriate part of the register, V shall be treated as being registered in that part.

(5) V’s entitlement under paragraph (3) ceases if V ceases, whether as a result of the operation of regulation 17 of the General Systems Regulations or otherwise, to have the benefit of regulation 8 of those Regulations in connection with the provision by V of nursing services in the United Kingdom on a temporary and occasional basis.

(6) If—

(a)V’s entitlement under paragraph (3) ceases by reason of the operation of paragraph (5), and

(b)V is registered,

the Registrar may remove V’s name from the register.

(7) Paragraph (8) applies if—

(a)V’s establishment in State A is subject to a condition relating to V’s practice as a nurse,

(b)V’s name is registered in the appropriate part of the register, and

(c)for any of the purposes of this Order it falls to be decided whether V’s fitness to practise is or may be impaired on the ground of misconduct.

(8) The matters that may be counted as misconduct include (in particular) any act or omission by V during the course of the provision by V of nursing services in the United Kingdom on a temporary and occasional basis that is, or would be if the condition applied in relation to practice as a nurse outside State A, a breach of the condition.

(9) In paragraphs (7) and (8) “condition” includes limitation.

(10) Paragraphs (1) to (6) are not to be taken to prejudice the application, in relation to registrants, of any other provision of this Order under which a registered nurse’s name may be removed from the register or under which a registered nurse’s registration may be suspended.”.

Substitution of article 40

170.  For article 40 substitute—

“The Directive: designation of competent authority etc.

40.—(1) The Council is designated as the competent authority in the United Kingdom for the purposes of the Directive so far as relating to the professions of nurse responsible for general care(2) and midwife.

(2) Accordingly, the Council shall in the United Kingdom carry out (in particular) the functions specified in Schedule 3.

(3) The Council is designated as the competent authority in the United Kingdom for the award of—

(a)evidence of formal qualifications of nurses responsible for general care listed in relation to the United Kingdom in Annex V, point 5.2.2 of the Directive; and

(b)evidence of formal qualifications of midwives listed in relation to the United Kingdom in Annex V, point 5.5.2 of the Directive.

(4) Subject to paragraph (5), the Secretary of State may give directions to the Council in connection with its functions specified in Schedule 3, and it shall be the duty of the Council to comply with any such directions.

(5) Directions given under paragraph (4) may be as to matters of administration only.

(6) In Schedule 3—

“non-UK nursing qualification” means a nursing qualification that—

“non-UK midwifery qualification” means a midwifery qualification that is awarded to a person by a competent authority of a relevant European State other than the United Kingdom;

“UK nursing qualification” means a nursing qualification that—

“UK midwifery qualification” means a qualification that is awarded to a person by a competent authority in the United Kingdom.”.

Insertion of Schedule 2A

171.  After Schedule 2 insert—

Article 39

“SCHEDULE 2AVISITING MIDWIVES, AND CERTAIN VISITING NURSES, FROM RELEVANT EUROPEAN STATES

Application and interpretation

1.  This Schedule applies to an exempt person—

(a)who is lawfully established as a nurse in a relevant European State other than the United Kingdom; or

(b)who is lawfully established as a midwife in a relevant European State other than the United Kingdom.

2.  In this Schedule—

(a)a “visiting practitioner” means an exempt person to whom this Schedule applies;

(b)the “home State”, in relation to a visiting practitioner, means the relevant European State in which the practitioner is lawfully established as a nurse or midwife;

(c)a reference to the provision of occasional nursing services is a reference to the provision, in the United Kingdom, of nursing services—

(i)of a kind which are provided, in the United Kingdom, by nurses whose training satisfies the requirements of article 31 of the Directive (training of nurses responsible for general care), and

(ii)on a temporary and occasional basis; and

(d)a reference to the provision of occasional midwifery services is a reference to the provision of midwifery services in the United Kingdom on a temporary and occasional basis.

Registration in respect of provision of occasional nursing services or occasional midwifery services

3.—(1) A visiting practitioner is entitled to be registered in the appropriate part of the register if the practitioner is entitled under paragraph 4 or 7 to provide occasional nursing services or occasional midwifery services; and the Registrar shall give effect to the entitlement.

(2) A visiting practitioner who is entitled under sub-paragraph (1) to be registered, but who is not registered in the appropriate part of the register, shall be treated as registered in that part.

(3) Sub-paragraph (4) applies where a person’s entitlement under sub-paragraph (1) to be registered ceases because, by reason of the operation of paragraph 8(1), (2) or (5), the person ceases to be entitled under this Schedule to provide occasional nursing services or occasional midwifery services.

(4) If the person’s name is registered, the Registrar may remove the person’s name from the register.

(5) Sub-paragraphs (1) to (4) are not to be taken to prejudice the application, in relation to persons registered on the basis of entitlement under sub-paragraph (1), of any other provision of this Order under which the name of a registered nurse or midwife may be removed from the register or under which the registration of a registered nurse or midwife may be suspended.

Entitlement to provide occasional nursing services or occasional midwifery services: first year

4.  A visiting practitioner is entitled to provide occasional nursing services or occasional midwifery services if—

(a)the practitioner has complied with the requirements of paragraph 5, and

(b)where the practitioner’s case falls within regulation 3(9)(a), (c), (d) or (e) of the General Systems Regulations, the provision by the practitioner of occasional nursing services or occasional midwifery services is in accordance with regulations 14 to 16 of those Regulations (the practitioner having, in particular, successfully completed any adaptation period, or passed any aptitude test, that the practitioner may be required to undertake pursuant to Part 2 of those Regulations),

but paragraph 8 contains provision about the duration of entitlement under this paragraph.

First provision of services: required documents

5.—(1) A visiting practitioner who proposes to provide occasional nursing services or occasional midwifery services for the first time must, before providing any such services, send or produce to the Registrar the required documents.

(2) The required documents are—

(a)a written declaration that states the practitioner’s wish to provide occasional nursing services or occasional midwifery services;

(b)if the practitioner is a national of a relevant European State, proof of nationality;

(c)if the practitioner is not a national of a relevant European State, proof of the Community right by virtue of which the practitioner is an exempt person;

(d)evidence of qualifications in nursing or midwifery (see paragraph 6); and

(e)a certificate (or certificates) issued by a competent authority in the practitioner’s home State confirming—

(i)that the practitioner is lawfully established as a nurse or midwife in that State, and

(ii)that the practitioner is not prohibited (whether on a permanent or temporary basis) from practising as a nurse or midwife there.

(3) A declaration under sub-paragraph (2)(a) may be supplied by any means.

6.—(1) Subject to sub-paragraph (3), the evidence referred to in paragraph 5(2)(d) is evidence of the European-recognised qualifications which entitle the visiting practitioner to provide, in the practitioner’s home State, the nursing or midwifery services that the practitioner proposes to provide in the United Kingdom on a temporary and occasional basis.

(2) This sub-paragraph applies to a visiting practitioner whose case falls within regulation 3(9)(a), (c), (d) or (e) of the General Systems Regulations (with the result that the practitioner is not entitled to provide occasional nursing services or occasional midwifery services unless their provision by the practitioner is in accordance with regulations 14 to 16 of those Regulations).

(3) If sub-paragraph (2) applies to a visiting practitioner, the evidence referred to in paragraph 5(2)(d) of the practitioner’s qualifications in nursing or midwifery is evidence of the qualifications which entitle the practitioner to practise as a nurse or midwife in his home State.

(4) In this paragraph, “European-recognised qualifications” means qualifications which relevant European States are required by the Directive to recognise.

Entitlement to provide occasional nursing services or occasional midwifery services after first year: renewals

7.—(1) Sub-paragraph (2) applies where the Registrar receives the required renewal documents from a visiting practitioner who is entitled under this Schedule to provide occasional nursing services or occasional midwifery services.

(2) The visiting practitioner is entitled to continue to provide occasional nursing services or occasional midwifery services, but paragraph 8 contains provision about the duration of entitlement continued under this sub-paragraph.

(3) Sub-paragraph (4) applies where the Registrar receives the required renewal documents from a visiting practitioner—

(a)who is not entitled under this Schedule to provide occasional nursing services or occasional midwifery services;

(b)who has been previously entitled under this Schedule to provide occasional nursing services or occasional midwifery services; and

(c)whose registration in the register is not suspended.

(4) The visiting practitioner is once again entitled to provide occasional nursing services or occasional midwifery services but, in a case where the practitioner’s name is not in the register as a result of removal otherwise than under paragraph 3(4), only if the Registrar decides, after having regard (in particular) to the fact of that removal and the reasons for it, that the entitlement should be renewed.

Paragraph 8 contains provision about the duration of entitlement under this sub-paragraph.

(5) In relation to a visiting practitioner “the required renewal documents” are—

(a)a renewal declaration; and

(b)each evidence of change document (if any).

(6) In this paragraph “renewal declaration”, in relation to a visiting practitioner, means a written declaration that states the practitioner’s wish to provide occasional nursing services or occasional midwifery services in a further year.

(7) Where a document—

(a)is, in relation to a visiting practitioner, one of the required documents for the purposes of paragraph 5,

(b)is not a declaration under paragraph 5(2)(a), and

(c)substantiates a matter as respects which there has been a material change since the practitioner last (whether under paragraph 5 or this paragraph) supplied the then-current version of the document to the registrar,

the version of the document current when under this paragraph the practitioner supplies a renewal declaration to the registrar is an “evidence of change document” for the purposes of sub-paragraph (5)(b).

(8) A renewal declaration supplied under this paragraph may be supplied by any means.

Duration of entitlement to provide occasional nursing services or occasional midwifery services

8.—(1) Unless an entitlement under paragraph 4 or 7(4) is continued (or further continued) by paragraph 7(2), the entitlement ceases at the end of the year that begins with the end of the day on which the Registrar received the documents whose receipt gave rise to the entitlement.

(2) Where an entitlement under paragraph 4 or 7(4) is continued (or further continued) by paragraph 7(2), the entitlement is extended so as to cease at the end of the year that begins with the end of the relevant day.

(3) For the purposes of sub-paragraph (2)—

(a)if the day on which the Registrar receives the documents whose receipt gives rise to the continuation (or further continuation) is an anniversary of the start day, “the relevant day” means the day on which the Registrar receives those documents;

(b)otherwise, “the relevant day” means the anniversary of the start day that is the first such anniversary to occur after the Registrar receives the documents whose receipt gives rise to the continuation (or further continuation).

(4) In sub-paragraph (3) “the start day”, in relation to an entitlement under paragraph 4 or 7(4), means the day on which the Registrar receives the documents whose receipt gives rise to the entitlement.

(5) An entitlement under this Schedule to provide occasional nursing services or occasional midwifery services ceases if—

(a)the visiting practitioner concerned becomes established as a nurse or as a midwife in the United Kingdom; or

(b)a disqualifying decision is made against the visiting practitioner concerned.

(6) In sub-paragraph (5) “disqualifying decision”, in relation to a visiting practitioner, means a decision made by a competent or judicial authority in the practitioner’s home State that has the effect that the practitioner—

(a)ceases in that State to be registered or otherwise officially recognised as a nurse or midwife; or

(b)is prohibited (whether on a permanent or temporary basis) from practising as a nurse or midwife in that State.

(7) If in the case of a visiting practitioner—

(a)the practitioner’s registration in the register is suspended or the practitioner’s name is removed from the register, and

(b)immediately before the time when the suspension or (as the case may be) removal takes effect, the practitioner is entitled under this Schedule to provide occasional nursing services or occasional midwifery services,

that entitlement ceases at that time.

Conditions

9.—(1) Paragraph (2) applies if—

(a)the establishment of a visiting practitioner in the practitioner’s home State is subject to a condition relating to the practitioner’s practice as a nurse or midwife;

(b)the practitioner’s name is registered in the appropriate part of the register; and

(c)for any of the purposes of this Order it falls to be decided whether the practitioner’s fitness to practise is or may be impaired on the ground of misconduct.

(2) The matters that may be counted as misconduct include (in particular) any act or omission by the visiting practitioner during the course of the provision by the practitioner of occasional nursing services or occasional midwifery services that is, or would be if the condition applied in relation to practice as a nurse or midwife outside the practitioner’s home State, a breach of the condition.

(3) In paragraphs (1) and (2) “condition” includes limitation.”.

Substitution of Schedule 3

172.  For Schedule 3 substitute—

Article 40

“SCHEDULE 3DIRECTIVE 2005/36: FUNCTIONS OF THE COUNCIL UNDER ARTICLE 40(2)

Amendment of Schedule 4

173.  In Schedule 4(3) (interpretation)—

(a)omit the definition of “the Accession of Greece Act”;

(b)omit the definition of “the Accession of Spain and Portugal Act”;

(c)omit the definition of “the Accession of Austria, Finland and Sweden Act”;

(d)omit the definition of “the Act of Accession 2003”;

(e)omit the definition of “Community law”;

(f)for the definition of “competent authority” substitute—

““competent authority” means any authority or body of a relevant European State designated by that State for the purposes of the Directive as competent to—

in connection with the practice of nursing or midwifery;;”;

(g)after the definition of “the Council” insert—

““the Directive” means Directive 2005/36/EC of the European Parliament and of the Council of 7th September 2005 on the recognition of professional qualifications(4), and references in this Order to the Directive or to any provision of the Directive are references to the Directive, or to that provision of the Directive, as amended from time to time;”;

(h)omit the definition of “EEA Agreement”;

(i)omit the definition of “EEA national”;

(j)omit the definition of “EEA State”;

(k)for the definition of “exempt person” substitute—

““exempt person”, in relation to the profession of nursing or in relation to the profession of midwifery, means—

(l)after the definition of “exempt person” insert—

““General Systems Regulations” means the European Communities (Recognition of Professional Qualifications) Regulations 2007(5);”;

(m)omit the definition of “Midwifery Directive”;

(n)in the definition of “national”, for “an EEA State” substitute “a relevant European State”;

(o)omit the definition of “Nursing Directive”;

(p)after the definition of “Registrar” insert—

““relevant European State” means an EEA State or Switzerland;”;

(q)omit the definition of “second Nursing Directive”;

(r)omit the definition of “second Midwifery Directive”;

(s)omit the definition of “the Swiss Agreement”; and

(t)after the definition of “United Kingdom country” insert—

““visiting nurse or midwife from a relevant European State” means a nurse or midwife registered in exercise of entitlement under article 39A (visiting general systems nurses from relevant European States) or Schedule 2A (visiting midwives, and certain visiting nurses, from relevant European States); and”.