Bill 75 - Midwifery Act

BILL 75

Midwifery Act

Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:

INTERPRETATION

Definitions

1 The following definitions apply in this Act.

“Complaints Committee” means the Complaints Committee established under section 38. (comité des plaintes)

“Council” means the Midwifery Council of New Brunswick established under section 4. (Conseil)

“Discipline Committee” means the Discipline Committee established under section 38. (comité de discipline)

“health professional” means a person who provides a service related to (professionnel de la santé)

(a) the preservation or improvement of the health of individuals, or

(b) the diagnosis, treatment or care of individuals who are sick, disabled or infirm, and

who is registered or licensed under an Act of the Province of New Brunswick with respect to the provision of the services and includes a social worker registered under the New Brunswick Association of Social Workers Act, 1988.

“incapacity”, in relation to a member, means that the member is suffering from a mental or physical condition or disorder, emotional disturbance or alcohol or drug abuse that makes it desirable in the interest of the public that the member no longer be permitted to practice or that the member’s practice be restricted. (incapacité)

“incompetence”, in relation to a member, means that the member’s professional care of a patient displays a lack of knowledge, skill or judgment, or disregard for the welfare of the patient of a nature or to an extent that demonstrates the member is unfit to continue to practice or that the member’s practice should be restricted. (incompétence)

“member”, unless the context otherwise requires, means a person whose name is recorded in the register and for the purposes of disciplinary action and any investigations under this Act, includes a person whose registration is suspended or revoked or whose registration has expired or a member who has resigned. (membre)

“midwife”, unless the context otherwise requires, means a person registered as a midwife under this Act. (sage-femme)

“Minister” means the Minister of Health. (ministre)

“patient” includes a client. (patiente)

“professional misconduct” means such conduct, attitude or acts relevant to the profession that, having regard to all the circumstances, would reasonably be regarded as disgraceful, dishonourable or unprofessional and, without limiting the generality of the foregoing, includes (faute professionnelle)

(a) failing to maintain the standards of midwifery practice,

(b) failing to uphold the code of ethics adopted by the Council,

(d) misappropriating personal property, drugs or other property belonging to a patient or a member’s employer,

(e) inappropriately influencing a patient to make or change a will or power of attorney,

(f) wrongfully abandoning a patient,

(g) neglecting to provide care to a patient,

(h) failing to exercise discretion in respect of the disclosure of confidential information,

(i) falsifying records,

(j) inappropriately using professional midwifery status for personal gain,

(k) promoting for personal gain any drug, device, treatment, procedure, product or service that is unnecessary, ineffective or unsafe,

(l) publishing, or causing to be published, any advertisement that is false, fraudulent, deceptive or misleading, or

(m) engaging or assisting in fraud, misrepresentation, deception or concealment of a material fact when applying for or securing registration to practise midwifery or taking any examination provided for under the Act, including using fraudulently procured credentials.

“register” means the register kept pursuant to section 20. (tableau)

“Registrar” means the person holding the office of Registrar under section 18. (registraire)

Practice of midwifery

2(1) In this Act, “practice of midwifery” means the care, assessment and monitoring of women during normal pregnancy, labour and the postpartum period and of their healthy newborns, and the management of low-risk, spontaneous vaginal deliveries.

2(2) In engaging in the practice of midwifery, a midwife may

(a) consult with, make a referral to or transfer care to a medical practitioner as set out in the standards of practice established by the regulations,

(b) prescribe and administer drugs in accordance with the regulations,

(d) provide other health care services within the practice of midwifery as set out in the standards of practice established by the regulations.

Sexual abuse

3(1) In this Act, sexual abuse of a patient by a member means

(a) sexual intercourse or other forms of physical sexual relations between the member and the patient,

(b) touching, of a sexual nature, of the patient by the member, or

3(2) For the purposes of subsection (1), "sexual nature" does not include touching, behaviour or remarks of a clinical nature appropriate to the service provided.

MIDWIFERY COUNCIL OF NEW BRUNSWICK

Midwifery Council of New Brunswick established

4 There is established a body corporate to be known as the Midwifery Council of New Brunswick.

Composition of Council

5 The Council is composed of 7 members appointed by the Lieutenant-Governor in Council as follows:

(a) two persons who are registered as midwives in a province or territory of Canada;

(b) one person who is a member of the College of Physicians and Surgeons of New Brunswick;

(d) one person who is a member of the New Brunswick Pharmaceutical Society;

(e) one person who is an employee in the Department of Health; and

(f) one lay person who has never practiced midwifery.

Term of office

6(1) Each member holds office for a term not exceeding 3 years.

6(2) A member of the Council is eligible for reappointment but no person may serve more than 2 consecutive terms on the Council in addition to any term used to fill a vacancy.

6(3) If a member resigns, that person ceases to be a member on the day on which the resignation is received by the Council.

Remuneration and expenses

7 A member of the Council shall be paid such remuneration and expenses as may be determined by the Lieutenant-Governor in Council.

Vacancy

8(1) Where the office of a person appointed as a member of the Council becomes vacant, the Lieutenant-Governor in Council may appoint a person for the remainder of the term.

8(2) A vacancy in the membership of the Council does not impair the power of the remaining members of the Council to act.

Quorum

9 A quorum is a simple majority of members.

Objects of Council

10 The objects of the Council are to

(a) regulate the practice of midwifery,

(b) establish, maintain and promote standards of the practice of midwifery,

(d) perform such other duties and exercise such other powers as are imposed or conferred on the Council under this or any other Act, and

(e) advise the Minister on matters related to the practice of midwifery.

Powers of Council

11 Subject to this Act and the regulations, the Council, with respect to its objects, has the capacity, rights, powers and privileges of a natural person, including the power to

(a) enter into any agreement with any government, person, agency, organization, institution or other body,

(b) acquire and hold assets and property, both real and personal, by way of purchase, lease, grant, hire, exchange or otherwise and to dispose of such property by any means,

(c) provide for the management of its property and assets and of its affairs and business, including the employment of staff,

(d) borrow and spend money for the purpose of carrying out any of the objects of the Council and give security for money borrowed on any of its real or personal property by way of mortgage, pledge, charge or otherwise, and

(e) do such things as are incidental or necessary to the exercise of the powers referred to in paragraphs (a) to (d).

By-laws

12(1) The Council may make by-laws

(a) providing for the holding of meetings of the Council or committees of the Council and the conduct of such meetings,

(b) fixing the time and place for regular meetings of Council, determining by whom meetings may be called, regulating the conduct of meetings, providing for emergency meetings and providing for the notice required in respect of meetings,

(d) respecting the composition, powers and duties of such committees as may be appointed by the Council and providing for the holding and conduct of meetings of such committees,

(e) prescribing fees payable by applicants for registration and members and, where the Council considers it advisable, prescribing different fees for different classes of applicants and members,

(f) prescribing forms and providing for their use,

(g) recommending to the Lieutenant-Governor in Council the qualifications to be met by candidates appointed to the Council,

(h) respecting the powers, duties and qualifications of the officers, agents and employees of the Council,

(i) approving a code of ethics, and

(j) respecting all other things necessary for the administration of the affairs of the Council.

12(2) The Regulations Act does not apply to by-laws referred to in subsection (1).

Business plan

13(1) The Council shall prepare and submit for the Minister’s approval a business plan for each fiscal year.

13(2) The Council shall not make changes to an approved business plan without obtaining the prior written approval of the Minister.

Budget

14(1) On or before October 31 in each year, the Council shall submit to the Minister a proposed budget containing the estimate of the amount of money required for the operation of the Council during the next fiscal year.

14(2) The Minister shall in each year pay to the Council such amounts of money as are appropriated by the Legislature for financing the operation of the Council.

14(3) The Council shall not run a deficit.

Fiscal year

15 The fiscal year of the Council begins April 1 in one year and ends on March 31 in the following year.

Annual report

16(1) The Council shall submit a report annually to the Minister containing the following information:

(a) a report on the activities of the Council for the preceding fiscal year; and

(b) such other information as the Minister may require.

16(2) The Council shall submit the annual report to the Minister no later than July 31 in each year for the preceding fiscal year.

16(3) The Minister shall lay the annual report before the Legislative Assembly if it is in session or, if not, at the next ensuing session.

Special reports

17 The Council shall prepare and submit to the Minister such reports, records, documents or other information that the Minister may require within the time and in the form specified by the Minister.

REGISTRATION AND PRACTICE OF MIDWIFERY

Registrar

18 The Council shall appoint a Registrar who shall hold office during the pleasure of the Council.

Delegation by Registrar

19 The Registrar may, by authorization in writing, delegate any of his or her powers or duties to any employee of the Council.

20 The Registrar shall keep or cause to be kept a register that is comprised of the following parts:

(a) an active practice register in which the name and address of every person who has met the qualifications for registration as a midwife under this Act and the regulations and who is entitled to engage in the practice of midwifery are entered;

(b) a temporary register in which the name and address of every person who has completed a midwifery education program at an approved school of midwives and who is eligible for registration as a midwife upon the completion of the requirements for registration are entered; and

(c) rosters in which the name and address of every person who is entitled to membership in any class of membership established by the regulations, other than persons whose names are entered in the active practice register or the temporary register, are entered.

Application for registration

21 Subject to the requirements of this Act and the regulations, an applicant is entitled to have his or her name entered in the appropriate part of the register if the applicant provides the Registrar with such evidence as may be required to establish that the applicant

(a) holds a baccalaureate degree from a Canadian university midwifery education program, or

(b) has educational qualifications equivalent to the degree referred to in paragraph (a).

Registration Appeal Committee

22(1) The Council shall appoint a Registration Appeal Committee, the membership of which shall be determined by the Council.

22(2) The Registration Appeal Committee shall perform the functions and duties set out in this Act, the regulations and the by-laws.

22(3) An applicant who is refused registration may, by written notice, appeal that decision to the Registration Appeal Committee within 30 days after receipt of the refusal.

22(4) An appeal before the Registration Appeal Committee shall be conducted in the manner and follow the procedure set out in the regulations.

22(5) The decision of the Registration Appeal Committee is final.

Registration in active practice register

23 Only a person whose name is inscribed in the register as an active practising member is entitled to practise or hold herself or himself out as a midwife in New Brunswick, subject to any restrictions imposed on the member’s registration.

Resumption of practice in the Province

24 Despite section 23, a member who was engaged in the practice of midwifery in the Province and who was subject to any disciplinary findings while engaged in the practice of midwifery outside the Province or who has outstanding complaints from outside the Province shall not engage in the practice of midwifery on the member’s return to the Province unless the member

(a) has provided the Council with notice of the disciplinary findings or complaints, and

(b) received a notice from the Council that she or he is authorized to resume the practice of midwifery in the Province.

Certificate of registration

25(1) The Registrar shall, upon application and payment of any required fee, cause a certificate of registration to be issued annually or at such other times as may be prescribed to every person whose name is entered in the register.

25(2) The certificate shall state the date upon which it expires, the type of membership registration and any restrictions imposed on the registration of the person to whom the certificate is issued.

Prohibition re practice

26 A person whose name is not entered in the active practice register shall not practise as a midwife or hold herself or himself out as a midwife, or take or use the designation “midwife”, “registered midwife” or “sage-femme” or “sage-femme inscrite” or other initials or designations, either alone or in combination with other words, letters or description, that imply the person is entitled to practise as a midwife.

Removal of names from register

27(1) The Registrar shall cause the name of a member to be removed from the register

(a) at the request or with the written consent of the member,

(b) where the name has been incorrectly entered,

(d) where the registration of the member has been revoked, or

(e) where the person no longer meets the requirements for continued registration.

27(2) The Registrar shall remove or cause the removal of the name of any person from the active practice register, the temporary register or one or more of the rosters, who fails to meet or maintain the qualifications and standards for entry in each such register or roster.

27(3) Except where otherwise provided, the registration of a member terminates and ceases to have effect when the member’s name is removed from the register.

Notification to member

28 Where the name of a member is removed from the register, the Registrar shall without delay, by registered mail addressed to the latest address shown in the register, notify the member that the member’s name has been removed from the register.

Return of certificate of registration

29 A member whose registration has been revoked shall immediately return the member’s certificate of registration to the Registrar.

Restoration of registration

30 The Council may restore the registration of a person whose registration has been suspended or revoked, subject to such terms and conditions as the Council may prescribe.

Liability insurance

31(1) No midwife shall engage in the practice of midwifery without first providing the Registrar with proof of valid professional liability insurance as may be required by the regulations upon renewal of the midwife’s registration.

31(2) The Registrar may suspend the registration of a midwife who fails to provide proof of valid professional liability insurance in accordance with subsection (1).

Recovery of fees

32 No person shall bring an action in any court to collect fees, compensation or other remuneration for services performed as a midwife, unless registered under this Act.

Reporting of sexual abuse

33(1) A member who, in the course of practising midwifery, has reasonable grounds to believe that another health professional has sexually abused a patient and who fails to file a report in writing in accordance with subsection (4) with the governing body of the health professional within 21 days after the circumstances occur that give rise to the reasonable grounds for the belief commits an act of professional misconduct.

33(2) A member is not required to file a report under subsection (1) if the member does not know the name of the health professional who would be the subject of the report.

33(3) If the reasonable grounds for filing a report under subsection (1) have been obtained from one of the member’s patients, the member shall use his or her best efforts to advise the patient that the member is filing the report before doing so.

33(4) A report filed under subsection (1) shall contain the following information:

(a) the name of the member filing the report;

(b) the name of the health professional who is the subject of the report;

(d) subject to subsection (5), if the grounds of the member filing the report are related to a particular patient of the health professional who is the subject of the report, the name of the patient.

33(5) The name of a patient who may have been sexually abused shall not be included in a report unless the patient or, if the patient is incapable, the patient’s representative, consents in writing to the inclusion of the patient’s name.

33(6) No action or other proceeding shall be instituted against a member for filing a report in good faith under subsection (1).

33(7) For the purposes of this section, section 3 applies with the necessary modifications to sexual abuse of a patient by another health professional.

Employer’s responsibility

34 Every person, other than a patient or any person acting on behalf of a patient without expectation or hope of monetary compensation, who engages a person as a midwife and every agency or registry that procures work for a person as a midwife

(a) shall ensure at the time of engagement and at least once each year thereafter if such engagement is continuing, that the person is the holder of an appropriate current registration under this Act and is not engaged to perform duties and functions contrary to any restrictions imposed on the person’s registration, and

(b) where a person’s engagement as a midwife is terminated because of dishonesty, incompetence or incapacity, shall without delay report the matter to the Council and provide a copy of the report to the person whose engagement is terminated.

Emergencies

35 Nothing in this Act prohibits or prevents any person from giving aid in case of urgent need.

Exclusions

36 Nothing in this Act prohibits or prevents

(a) the practice of medicine by a person authorized to carry on such practice under the Medical Act,

(b) the practice of pharmacy by a person authorized to carry on such practice under the Pharmacy Act,

(c) the practice of nursing or the practice of a nurse practitioner by a person authorized to carry on such practice under the Nurses Act,

(d) the practice of paramedicine by a person authorized to carry on such practice under the Paramedic Act, or

(e) any practice authorized under any statute of the Province of New Brunswick.

COMPLAINTS AND DISCIPLINE

Continuing jurisdiction of Council

37 A person whose registration is suspended or revoked or whose registration has expired or who resigns as a member continues to be subject to the jurisdiction of the Council for professional misconduct, incompetence and incapacity referable to the time when the person was a member or to the period of suspension.

Committees to be appointed

38(1) The Council shall have the following standing committees:

(a) Complaints Committee; and

(b) Discipline Committee.

38(2) The Council shall appoint the members of the committees, the composition of which shall be as follows:

(a) Complaints Committee - two persons who are registered as midwives under this Act or who are members in good standing of a regulated midwifery profession in another jurisdiction and one lay person who has never practised midwifery; and

(b) Discipline Committee - two persons who are registered as midwives under this Act or who are members in good standing of a regulated midwifery profession in another jurisdiction and one lay person who has never practised midwifery.

38(3) The Council shall appoint a chairperson for each committee from among the persons appointed to the committee.

38(4) Two members of a committee, one of whom shall be a lay person, constitute a quorum.

38(5) No person is eligible to sit as a member of the Complaints Committee if the person is a member of the Discipline Committee or a member of the Council.

38(6) No person is eligible to sit as a member of the Discipline Committee if the person has taken part in the investigation of the subject matter of the committee’s hearing or is a member of the Council.

Complaints to Registrar

39(1) A person may make a complaint to the Registrar regarding the conduct or actions of a member.

39(2) A complaint shall be in writing and shall include the complainant’s name and mailing address.

39(3) Where a complaint is filed with the Registrar, the Registrar shall refer the complaint to the Complaints Committee if the conduct or actions complained of may constitute professional misconduct, incompetence or incapacity.

Registrar may request investigation

40 In the absence of a complaint, if the Registrar has reason to believe that the conduct or actions of a member may constitute professional misconduct, incompetence or incapacity, the Registrar may make a request to the Complaints Committee to investigate the member.

Council may request investigation

41 The Council, if it has reason to believe that the conduct or actions of a member may constitute professional misconduct, incompetence or incapacity, may on its own motion make a request to the Complaints Committee to investigate the member.

Investigations

42(1) The Registrar may appoint one or more investigators to investigate whether a member has committed an act of professional misconduct or is incompetent or incapacitated if

(a) the Complaints Committee has received a complaint about the member and has requested the Registrar to appoint an investigator, or

(b) the Complaints Committee is investigating the member at the request of the Registrar or the Council and has requested the Registrar to appoint an investigator.

42(2) An investigator appointed by the Registrar may at any reasonable time, and upon producing proof of his or her appointment, enter and inspect the business premises of a member or the premises of the member’s employer and examine anything found there that the investigator has reason to believe may provide evidence in respect of the matter being investigated.

42(3) No person shall, without reasonable excuse, obstruct or cause to be obstructed an investigator while the investigator is performing his or her duties under this section.

42(4) No person shall withhold, conceal or destroy, or cause to be withheld, concealed or destroyed, anything that is relevant to an investigation under this section.

42(5) For the purpose of carrying out an investigation, an investigator shall not exercise a power to enter a place that is being used as a dwelling, except with the consent of the occupier or under the authority of an entry warrant issued under the Entry Warrants Act.

Copies of records

43(1) In this section, "document" means a record of information in any form and includes any part of it.

43(2) An investigator may copy, at the expense of the Council, a document that the investigator may examine under subsection 42(2) or under the authority of an entry warrant under subsection 42(5).

43(3) An investigator may remove a document referred to in subsection (2) if it is not practicable to copy it in the place where it is examined or a copy is not sufficient for the purposes of the investigation and may remove any object that is relevant to the investigation, and shall provide the person in whose possession it was with a receipt for the document or object.

43(4) An investigator, where a copy can be made, shall return a document removed under subsection (2) as soon as possible after the copy has been made.

43(5) A copy of a document certified by an investigator to be a true copy shall be received in evidence in any proceeding to the same extent and shall have the same evidentiary value as the document itself without proof of the investigator’s appointment or signature.

Report to Registrar

44(1) An investigator shall report the results of the investigation to the Registrar in writing.

44(2) The Registrar shall report the results of an investigation to the Complaints Committee.

Complaints Committee to investigate

45 Upon receiving a complaint referred by the Registrar or a request made by the Registrar or the Council, the Complaints Committee shall investigate the matter raised by the complaint or in the request.

Notification to member

46(1) Where the Complaints Committee investigates the conduct or actions of a member, the committee shall

(a) promptly notify the member of the investigation,

(b) provide with the notice copies of all reports, documents and evidence presented to the committee in writing concerning the complaint, other than privileged documents, and

(c) advise the member that the member may submit to the committee in writing any explanation, evidence or document or representation the member wishes to make concerning the complaint within 30 days after receiving the notice.

46(2) The Complaints Committee shall consider only written evidence and in this section, “evidence” includes any documents or things that are presented to the Complaints Committee.

46(3) The Complaints Committee may engage such persons as it considers necessary, including legal counsel, to assist it in the consideration and investigation of complaints.

Examination of member

47(1) Where the Complaints Committee has reasonable grounds to believe that a member who is the subject of an investigation is incapacitated, the committee may require the member to submit to physical or mental examinations or both by one or more qualified persons selected by the committee and, subject to subsection (3), may make an order directing the Registrar to suspend the member’s registration until the member submits to the examinations.

47(2) Where the Complaints Committee has reasonable grounds to believe that a member who is the subject of an investigation is incompetent, the committee may require the member to submit to such examinations as the committee may require in order to determine whether the member has adequate skill and knowledge to practise in the profession and, subject to subsection (3), may make an order directing the Registrar to suspend the member’s registration until the member submits to the examinations.

47(3) No order shall be made by the Complaints Committee under subsection (1) or (2) with respect to a member unless the member has been given

(a) notice of the intention of the committee to make the order, and

(b) at least 10 days to make a written submission to the committee after receiving the notice.

47(4) Any person who conducts an examination under this section shall prepare and sign an examination report containing his or her findings and the facts on which they are based and shall deliver the report to the Complaints Committee.

47(5) The Complaints Committee shall without delay deliver a copy of the examination report to the member who is the subject of the investigation.

47(6) A report prepared and signed by a person under subsection (4) is admissible as evidence at a hearing without proof of its making or of the person’s signature if the party introducing the report gives the other party a copy of the report at least 10 days before the hearing.

47(7) The Complaints Committee, at any time after requiring a member to submit to examinations under this section, may refer the matter of the member’s alleged incapacity or incompetence to the Discipline Committee.

47(8) A member who fails to submit to an examination under subsection (1) or (2) commits an act of professional misconduct.

Action by Complaints Committee

48(1) The Complaints Committee shall within 90 days after receiving a complaint or a request under section 45, unless otherwise directed by the Council, complete its investigation of a member and after considering the submission of the member and considering or making a reasonable attempt to consider all documents and information it considers relevant to the matter, the Complaints Committee may

(a) direct that no further action be taken if, in the opinion of the committee, the complaint is frivolous or vexatious or there is insufficient evidence of professional misconduct, incompetence or incapacity,

(b) refer allegations of professional misconduct, incompetence or incapacity to a Discipline Committee,

(d) take such other action as it considers appropriate in the circumstances.

48(2) The Complaints Committee shall prepare a summary of its finding and its decision in writing and shall send a copy to the member and the complainant, if any, by registered mail.

48(3) Nothing in this section requires that examinations ordered under section 47 be carried out before the Complaints Committee acts under subsection (1).

Interim order by Complaints Committee

49(1) Where the Complaints Committee refers an allegation to the Discipline Committee and where the Complaints Committee considers the action necessary to protect the public pending the conduct and completion of proceedings before the Discipline Committee in respect of a member, the Complaints Committee may, subject to subsection (2), make an interim order

(a) directing the Registrar to impose specified restrictions on the member’s registration, or

(b) directing the Registrar to suspend the member’s registration.

49(2) Where an order is made by the Complaints Committee under subsection (1), the committee shall notify the member of its decision in writing and of the reasons for the decision and the member shall be given an opportunity to make representation to the committee in respect of the matter.

49(3) Where a member makes representation under subsection (2), the Complaints Committee may

(a) confirm its order under subsection (1), or

(b) remove the restrictions imposed on, or lift the suspension of, the member’s registration.

49(4) An order made under subsection (1) continues in force until the matter is disposed of by the Discipline Committee or by the Complaints Committee under paragraph (3)(b), unless the order is stayed pursuant to an application under subsection (5).

49(5) A member against whom action is taken under subsection (1) may apply to The Court of Queen’s Bench of New Brunswick for an order staying the action of the Complaints Committee.

49(6) If an order is made under subsection (1) by the Complaints Committee in relation to a matter referred to the Discipline Committee, the Discipline Committee shall act expeditiously in relation to the matter.

Referral to Discipline Committee, hearing

50(1) The Discipline Committee shall hold a hearing respecting the allegations of professional misconduct, incompetence or incapacity of a member that have been referred to it by the Complaints Committee.

50(2) The Discipline Committee shall, not less than 30 days before the date set for the hearing, serve a notice of the date, time and place of the hearing on the Council, the member against whom the allegations have been made and the complainant, if any.

50(3) The notice to the member against whom the allegations have been made shall describe the subject matter of the hearing and advise the member that the committee may proceed with the hearing in his or her absence.

50(4) The Discipline Committee may at any time permit a notice of hearing of allegations against a member to be amended to correct errors or omissions of a minor or clerical nature if it is of the opinion that it is just and equitable to do so and it may make any order it considers necessary to prevent prejudice to the member.

Open hearing

51(1) Subject to subsection (2), a hearing is open to the public.

51(2) The Discipline Committee may make an order that the public, in whole or in part, be excluded from a hearing or any part of it if the committee is satisfied that

(a) financial or personal or other matters may be disclosed at the hearing of such a nature that the harm created by disclosure would outweigh the desirability of adhering to the principle that hearings be open to the public,

(b) a person involved in a criminal proceeding or in a civil suit or proceeding may be prejudiced, or

51(3) Where it thinks fit, the Discipline Committee may make orders it considers necessary to prevent the public disclosure of matters disclosed at a hearing, including orders prohibiting publication or broadcasting of those matters.

51(4) No order shall be made under subsection (3) that prevents the publication of anything that is contained in the register and available to the public.

51(5) The Discipline Committee may make an order that the public be excluded from the part of the hearing dealing with a motion of an order under subsection (2).

51(6) The Discipline Committee may make any order necessary to prevent the public disclosure of matters disclosed in the submission relating to any motion described in subsection (5), including prohibiting the publication or broadcasting of those matters.

51(7) The Discipline Committee shall state, at the hearing, its reasons for any order made under this section and any such order and the reasons for it shall be made available to the public in writing.

51(8) Where the Discipline Committee makes an order under subsection (2), wholly or partly, because of the desirability of avoiding disclosure of matters in the interest of a person affected, the committee

(a) shall allow the parties, the complainant and their legal and personal representatives to attend the hearing, and

(b) may allow such other persons as the panel considers appropriate to attend the hearing.

Parties to hearing

52 The Council and the member against whom allegations have been made are parties to a hearing.

Parties may appear with counsel

53 The parties to a hearing may appear with counsel at the hearing.

Complainant may attend hearing

54(1) The complainant, if any, may attend the hearing in its entirety with or without counsel, and may make a written or oral submission to the committee before the calling of evidence and after the completion of evidence.

54(2) Despite subsection (1), at the request of a witness whose testimony is in relation to allegations of a member’s misconduct of a sexual nature involving the witness, the committee may exclude a complainant from the portion of the hearing that receives the testimony of the witness.

54(3) In subsection (2), "allegations of a member’s misconduct of a sexual nature" means allegations that the member sexually abused the witness when the witness was a patient of the member.

Attendance of witnesses and production of records

55(1) The chairperson of the Discipline Committee or the Registrar may order a person to attend a hearing to give evidence before the committee and to produce records, documents and other things in the possession of or under the control of the person.

55(2) The chairperson of the Discipline Committee or the Registrar shall order a person referred to in subsection (1) by serving a notice on the person requiring the person’s attendance, stating the date, time and place of such attendance and requiring the production of the records, documents or other things in the person’s possession or under the person’s control.

55(3) The chairperson of the Discipline Committee or the Registrar, upon the written request of a party or the party’s counsel, shall provide the party or party’s counsel with any notices that the party requires to secure the attendance of witnesses at the hearing, without charge to the party.

55(4) A person, other than the member whose conduct is the subject of the hearing, who is served with a notice under this section shall be tendered the same fees as are payable to a witness in an action in The Court of Queen’s Bench of New Brunswick at the time the notice is served, unless the fees are otherwise prescribed by regulation.

55(5) Any party to a hearing may call witnesses to give evidence.

Failure to attend or produce records

56(1) On application by the chairperson of the Discipline Committee to The Court of Queen’s Bench of New Brunswick, a person who has been served a notice under section 55 and who fails to attend or to produce records, documents or other things as required by an order of the chairperson or the Registrar, or who refuses to be sworn or affirmed as a witness or to answer any question the committee directs that person to answer, may be found liable for contempt as if the person were in breach of an order or judgement of The Court of Queen’s Bench of New Brunswick.

56(2) If the person referred to in subsection (1) who has been served a notice is a member, the failure or refusal may be held by the Discipline Committee to be professional misconduct.

Absence from hearing

57 The Discipline Committee, on proof of service of the notice of hearing on the member against whom allegations are made, may

(a) proceed with the hearing in the absence of the member, and

(b) without further notice to the member, take any action that is authorized to be taken under this Act, the regulations or the by-laws.

Other matters

58 If any other matter concerning the member against whom allegations have been made arises during the course of a hearing, the Discipline Committee may hear the matter, but it shall notify the parties of its intention to do so and shall ensure that the member is given a reasonable opportunity to respond to the matter.

Examination of evidence before hearing

59(1) The member against whom allegations have been made shall, at least 10 days before the hearing, be provided with

(a) copies of all documents and written evidence to be presented to the Discipline Committee, other than privileged documents,

(b) in the case of evidence of an expert, the identity of the expert and a copy of the expert’s written report or, if there is no written report, a written summary of the evidence, and

59(2) The member against whom allegations have been made shall give the Registrar or the chairperson of the Discipline Committee at least 10 days before the hearing, in the case of evidence of an expert, the identity of the expert and a copy of the expert’s written report or, if there is no written report, a written summary of the evidence.

59(3) The Discipline Committee may, in its discretion, allow the introduction of evidence that has not been disclosed under subsection (1) or (2) and may make such directions it considers necessary to ensure that the member or the Council is not prejudiced, as the case may be.

Legal advice

60 The Discipline Committee may obtain legal advice with respect to the hearing from an adviser independent from the parties.

Oral evidence to be recorded

61 The Discipline Committee shall ensure that the oral evidence is recorded and copies of the transcript of the hearing are available to a party on the party’s request and at that party’s expense.

Testimony of witness

62 At a hearing before the Discipline Committee, the testimony of witnesses shall be taken under oath or solemn affirmation, which shall be administered by a commissioner of oaths, and shall be recorded.

Right to examine

63 Each party to a hearing before the Discipline Committee has the right to examine, cross-examine and re-examine witnesses and call evidence.

Communication with parties

64 No member of the Discipline Committee shall communicate outside the hearing, in relation to the subject matter of the hearing, with a party or the party’s representative unless the other party has been given notice of the subject matter of the communication and an opportunity to be present during the communication.

Determination of procedure

65 Subject to this Act and the regulations, the Discipline Committee may determine its rules of procedure.

Not bound by rules of evidence

66 The Discipline Committee is not bound by the rules of evidence that apply to judicial proceedings.

Adjournment

67 The Discipline Committee may adjourn a hearing from time to time.

Continuity of membership

68 If the registration of a member of the Discipline Committee who is a midwife expires after the hearing commences, the member shall be deemed to remain a member of the committee for the purpose of disposing of that matter.

Participation in decision

69 Only the members of the Discipline Committee who were present throughout the hearing shall participate in the committee’s decision.

Action by Discipline Committee

70(1) On the completion of a hearing, the Discipline Committee may

(a) dismiss the matter, or

(b) find that the member has committed an act of professional misconduct, is incompetent or is incapacitated or any combination of them.

70(2) If the Discipline Committee finds that the member has committed an act of professional misconduct, the committee may, by order, do one or more of the following:

(a) reprimand the member;

(b) direct the Registrar to impose specified restrictions on the member’s registration for a specified or indefinite period of time or until specified criteria are satisfied, or both;

(c) direct the Registrar to suspend the member’s registration for a specified period of time or until specified criteria are satisfied, or both;

(d) direct the Registrar to revoke the member’s registration; or

(e) make such other order as the committee considers appropriate.

70(3) If the Discipline Committee finds that a member is incompetent or incapacitated, the committee may, by order, do one or more of the following:

(a) direct the Registrar to impose specified restrictions on the member’s registration for a specified or indefinite period of time or until specified criteria are satisfied, or both;

(b) direct the Registrar to suspend the member’s registration until specified criteria are satisfied;

(d) make such other order as the committee considers appropriate.

70(4) Where the Discipline Committee makes an order under subsection (2) or (3), the committee may, by order, do one or both of the following:

(a) direct the Registrar to give public notice of any order by the committee that the Registrar is not otherwise required to give under this Act; or

(b) direct the Registrar to enter the result of the proceeding before the committee in the records of the Council and to make the result available to the public.

70(5) When the Discipline Committee makes an order under paragraph (2)(d) or (3)(c), the committee may specify a period of time before which the person whose registration is revoked may not apply for registration.

70(6) Where the Discipline Committee finds that a member has committed an act of professional misconduct or is incompetent or incapacitated, the parties to the hearing and the complainant or the complainant’s counsel may, before the penalty is determined, make submissions to the committee as to the penalty and the parties may, subject to the discretion of the committee, call further evidence in respect of the penalty.

Decision to be in writing

71 The Discipline Committee shall give its decision, the reasons for its decision and the penalty imposed in writing and shall serve a copy of it on the parties and provide a copy to the complainant, if any, along with a statement of the rights of the parties to appeal the decision to The Court of Queen’s Bench of New Brunswick.

Suspension or revocation of registration

72(1) The Discipline Committee, if it is satisfied that a member has violated or failed to comply with an order of the committee, may, without notice to the member, direct the Registrar to suspend or revoke the member’s registration, and the Registrar shall act without delay in accordance with the direction given.

72(2) The Registrar shall without delay send the member a written notice of the suspension or revocation of the member’s registration.

Delivery of decision and record to Registrar

73 The Discipline Committee shall forward to the Registrar

(a) the written decision of the committee, and

(b) the record of the hearing and all the documents and other things put into evidence.

Record of hearing

74 The parties or the complainant, if any, may, upon request and at their expense, examine the record of the hearing or any part of the record and the documents and other things put into evidence.

Release of evidence

75 The Registrar shall release documents and other things put into evidence at a hearing to the person who produced them, on request, within a reasonable time after the matter in issue has been finally determined.

No stay of order

76 An order of the Discipline Committee under section 70 takes effect immediately or at such other time as the committee may direct, even though an appeal has been taken from the decision of the committee.

Application for stay

77(1) A member who appeals a decision of the Discipline Committee may apply to The Court of Queen’s Bench of New Brunswick for a stay of the committee’s order pending the disposition of the appeal, and The Court of Queen’s Bench of New Brunswick may make any order it considers appropriate.

77(2) The member shall give the Council at least one week’s notice of an application to The Court of Queen’s Bench of New Brunswick to stay an order of a committee.

Registrar to give notice

78 Where a member’s registration is restricted, suspended or revoked by a disciplinary order, the Registrar shall

(a) without delay notify

(i) the Minister,

(ii) the administrator of the medical services plan for the Province of New Brunswick,

(iii) the operator of any hospital, clinic or other facility by which the member is paid or at which the member has practising privileges, and

(iv) such other persons as are required to be notified by the regulations, and

(b) cause the disciplinary action to be made public, with the reasons or a summary of them.

Response to subsequent inquiries

79 The Registrar shall report the disciplinary action and reasons and the current status of the member’s registration to any person who subsequently requests information from the register about the member’s entitlement to practice, and shall make a notation in the register with respect to such matters.

Appeal of order

80(1) A party may appeal from the decision or order of the Discipline Committee to The Court of Queen’s Bench of New Brunswick.

80(2) An appeal under this section shall be commenced within 30 days after the date of the decision or order.

80(3) An appeal under this section shall be conducted in accordance with the Rules of Court, where not inconsistent with this Act.

80(4) On the request of a party to an appeal under this section and on payment by the party of any reasonable expenses related to the request, the Registrar shall provide the party with copies of part or all, as requested, of the record of the proceedings before the committee.

80(5) An appeal under subsection (1) shall be founded upon the record of the proceedings before the Discipline Committee and upon the committee’s decision.

80(6) On the hearing of an appeal under this section, The Court of Queen’s Bench of New Brunswick may

(a) affirm, vary or reverse the decision or order of the Discipline Committee,

(b) refer the matter back to the committee, with or without directions, or

80(7) The Court of Queen’s Bench of New Brunswick may make any order respecting the costs of an appeal that it considers appropriate.

Record of results

81(1) The Registrar shall without delay enter into the records of the Council

(a) the result of every proceeding before the Discipline Committee that

(i) resulted in the suspension or revocation of a member’s registration, or

(ii) resulted in a direction by the committee to make the result public, and

(b) where the findings or order of the committee that resulted in the suspension or revocation of a member’s registration or the direction are appealed, a notation that they are under appeal.

81(2) Where an appeal of the findings or order of the Discipline Committee is finally disposed of, the notation referred to in paragraph (1)(b) shall be removed and the records adjusted accordingly.

81(3) For the purpose of paragraph (1)(a), "result", when used in reference to a proceeding before the Discipline Committee, means the committee’s findings and the penalty imposed, and in the case of a finding of professional misconduct, a brief description of the nature of the professional misconduct.

81(4) The Registrar shall provide the information contained in the records referred to in subsection (1) to any person who inquires about a member or former member

(a) for an indefinite period if the member or former member was found to have sexually abused a patient, and

(b) for a period of 5 years following the conclusion of the proceedings referred to in subsection (1) in all other cases.

81(5) The Registrar, upon payment of a reasonable fee, shall provide a copy of the information contained in the records referred to in subsection (1) that pertain to a member or former member to a person who requests a copy.

81(6) Despite subsection (5), the Registrar may provide, at the Council’s expense, a written statement of the information contained in the records in place of a copy.

OFFENCES AND PENALTIES

Offence re practice

82 A person who violates or fails to comply with section 26 commits an offence punishable under Part II of the Provincial Offences Procedure Act as a Category H offence.

Offences re obstruction, concealment

83 A person who violates or fails to comply with subsection 42(3) or (4) commits an offence punishable under Part II of the Provincial Offences Procedure Act as a category E offence.

False information

84 Any person who makes a false statement in any application, declaration or other document under this Act or the regulations commits an offence punishable under Part II of the Provincial Offences Procedures Act as a category H offence.

Failure to comply with order

85 Any person who violates or fails to comply with an order made under subsection 51(3) or (6) or subsection 55(1) commits an offence punishable under Part II of the Provincial Offences Procedures Act as a category H offence.

Strict liability offences

86 The offences in sections 82, 84 and 85 are strict liability offences.

Single act sufficient

87 In any prosecution under this Act, it is sufficient proof of an offence if it is proved that the accused has done or committed a single act of unlawful practice or has committed on one occasion any of the acts prohibited by this Act.

Laying of information

88 Any information alleging an offence under this Act may be laid in accordance with the Provincial Offences Procedure Act in the name of the Council on oath or solemn affirmation by the Registrar or a person authorized by the Council.

Continuing offence

89 Where an offence under this Act continues for more than one day,

(a) the minimum fine that may be imposed is the minimum fine set by the Provincial Offences Procedure Act multiplied by the number of days during which the offence continues, and

(b) the maximum fine that may be imposed is the maximum fine set by the Provincial Offences Procedure Act multiplied by the number of days during which the offence continues.

Injunction

90 The Council may apply to The Court of Queen’s Bench of New Brunswick for an interim or permanent injunction to restrain a person from violating or failing to comply with any provision of this Act or the regulations, whether or not a penalty or other remedy has been provided for under this Act.

GENERAL

Annual report by Registrar

91 The Registrar shall submit a written report annually to the Council containing a summary of the complaints received during the preceding fiscal year by source and type of complaint and the disposition of such complaints.

Inspection of register

92 The register shall be open to inspection by any person at the office of the Registrar at all reasonable times during regular business hours free of charge, but any officer or employee of the Council may refuse such access to the register if there is reasonable cause to believe that the applicant seeks the access merely for commercial purposes.

Actions done in good faith

93 No person shall commence any action or other proceeding for damages against the Council or against a member, officer, employee, agent or appointee of the Council, the Complaints Committee or the Discipline Committee for an act done in good faith in the performance of a duty or the exercise of a power under this Act or a regulation or by-law made under this Act or for the neglect or default in the performance or exercise in good faith of the duty or power.

Service of documents

94(1) Any notice or other document that is to be given to, filed with or served on the Council shall be sufficiently given, filed or served if it is delivered personally or sent by registered mail to the Registrar.

94(2) Any notice or other document which is to be given to, sent to or served upon any other person shall be sufficiently given, sent or served if it is delivered personally or if it is sent by registered mail to

(a) the latest address of that person as reported to the Registrar, or

(b) the address for service endorsed upon the notice of intention to appeal.

94(3) Service by registered mail shall be deemed to be effected 5 days after the date the notice or other document is deposited in the mail.

Confidentiality of information

95(1) Except for the purposes of a prosecution under this Act, or in any court proceedings, or for the purpose of the administration and enforcement of this Act, no person acting in an official capacity under this Act or the regulations shall

(a) knowingly communicate or allow to be communicated any information obtained by him or her in the course of administering this Act, the regulations or the by-laws, or

(b) knowingly allow any other person to inspect or have access to, any document, record, file, correspondence or other record obtained by him or her in the course of administering this Act, the regulation or the by-laws.

95(2) A person who violates or fails to comply with subsection (1) commits an offence punishable under Part II of the Provincial Offences Procedure Act as a category E offence.

Limitation of actions

96 No action shall be brought against a member or former member for negligence, malpractice or otherwise by reason of services requested, given or rendered except within

(a) two years from the day when, in the matter complained of, such services terminated,

(b) two years after the person commencing the action knew or ought to have known the facts upon which the person alleges negligence, or

(c) where the person entitled to bring the action is, at the time the cause of action arose, a minor, a mental incompetent or a person of unsound mind, two years from the date when such person becomes of full age or sound mind, as the case may be.

Limitation period

97 No prosecution for an offence shall be commenced after the expiration of one year from the date of the last act that is part of the alleged offence.

Certificate of Registrar or officer of Council

98(1) A statement purporting to be certified by the Registrar as a statement of information from the records kept by the Registrar in the course of the Registrar’s duties is admissible in court or in any hearing under this Act as proof, in the absence of evidence to the contrary, of the information in it without proof of the Registrar’s appointment or signature.

98(2) A statement purporting to be certified by the Registrar or an officer of the Council respecting the registration status of a person is admissible as proof, in the absence of evidence to the contrary, of the facts specified in the statement respecting the registration status of that person under this Act and of any restriction set out in the statement, if any, as applicable to that person without proof of the Registrar’s or officer’s appointment or signature.

Regulations

99 With the approval of the Lieutenant-Governor in Council, the Council may make regulations

(a) respecting the powers, duties and qualifications of the Registrar;

(b) respecting the recognition of midwifery schools and examinations as prerequisites to registration;

(d) respecting the registration of applicants and members, including qualifications for registration and continued registration in the active practice register, the temporary practice register or a class of membership established in the rosters;

(e) establishing classes of membership for the purposes of paragraph 20(c);

(f) respecting information to be included on the register;

(g) respecting the period of time for which a person’s name may be maintained in the temporary register;

(h) respecting the powers, functions and duties of the Registration Appeal Committee;

(i) respecting the type and amount of professional liability insurance a member is required to hold;

(j) respecting a continuing competency program and requiring members to participate in any such program and providing for any other matter that will facilitate or give effect to such program;

(k) respecting the verification of members’ compliance with the continuing competence program;

(l) establishing standards of the practice of midwifery;

(m) respecting consultations with, referrals to or transfer of care of a patient to a medical practitioner;

(n) establishing a therapeutics committee and authorizing the committee to recommend

(i) the classifications of drugs a midwife may prescribe and administer, and

(ii) the screening and diagnostic tests a midwife may order and interpret;

(o) prescribing the procedure to be followed by the therapeutics committee in making recommendations pursuant to paragraph (n);

(p) requiring the approval of the Council and the Minister of recommendations made pursuant to paragraph (n) before implementation;

(q) prescribing other health care services that may be provided by a midwife in the practice of midwifery;

(r) respecting the suspension or revocation of registration of members and the reinstatement of registration and providing for the restrictions that may be attached;

(s) prescribing the manner and form of hearings, and the procedures to be followed at hearings, of the Registration Appeal Committee, the Complaints Committee or the Discipline Committee;

(t) prescribing fees that are payable to a person pursuant to subsection 55(4);

(u) specifying persons that the Registrar is to notify under subparagraph 78(a)(iv);

(v) governing such other matters as the Council considers necessary or advisable for the effective discharge of its functions or the exercise of its powers.

Consequential amendment to Public Service Labour Relations Act

100 Part I of the First Schedule of the Public Service Labour Relations Act, chapter P-25 of the Revised Statutes, 1973, is amended by adding the following in alphabetical order:

Midwifery Council of New Brunswick

Commencement

101 This Act or any provision of this Act comes into force on a day or days to be fixed by proclamation.