Today’s question relates to the use of protected titles. Whilst this question relates to nurses, it will also be relevant to paramedics. Once registered under the Health Practitioner Regulation National Law the title of ‘paramedic’ will, like the title of ‘nurse’ be a protected title.
The question is:
Given that the word nurse is a protected title under law and may be taken as someone who is registered with AHPRA. What would be the legal standing of an assistant in nursing who is not eligible for registration under AHPRA identifying themselves as a nurse? I ask as we have student nurses (RN etc) working as AINs in acute hospitals and nursing homes etc and identifying themselves as nurses. Could they be placing future registration at risk by identifying themselves as “nurse”?
As with most questions the answer depends on the context. The word ‘Nurse’ is both a noun ‘a person trained to care for the sick or infirm, especially in a hospital’ and a verb ‘give medical and other attention to (a sick person)’ (Oxford Dictionaries Online). A person can nurse another without being ‘a nurse’. One might imagine that in a nursing home or other place a person may describe the person who is providing nursing type care as a nurse without distinguishing the various categories of nurse that there may be. And a person may chose not to correct that or may identify that they are ‘nursing’ Mr Jones or say ‘I’m one of your mum’s nurses’ in order not to confuse matters where the people they are talking to are not aware of all the different categories of people involved. If a person is not trying to pass themselves off as something they are not, are not trying to obtain any advantage or mislead anyone then I can imagine the health regulators may not see that as an issue.
But let us turn to the letter of the law. The Health Practitioner Regulation National Law is set out as a schedule to the Health Practitioner Regulation National Law Act 2009 (Qld) and is then adopted, with some local variation, in each state and territory to create the national scheme. To answer this question I’ll refer to the national law as adopted in Queensland, that is the Health Practitioner Regulation National Law (Queensland) but the answer will be the same nationwide.
The Health Practitioner Regulation National Law does not define scope of practice nor does it make it an offence to practice one of the registered professions without being registered. There is not clear definition therefore of what it is to be, or practice as, a nurse or a medical practitioner or in due course, a paramedic. What it does do is make it an offence to adopt or use any of the protected titles. Section 113(1) says:
A person must not knowingly or recklessly—
(a) take or use a title in the Table to this section, in a way that could be reasonably expected to induce a belief the person is registered under this Law in the health profession listed beside the title in the Table, unless the person is registered in the profession, or
(b) take or use a prescribed title for a health profession, in a way that could be reasonably expected to induce a belief the person is registered under this Law in the profession, unless the person is registered in the profession.
Note, consistent with my opening comments, the offence is committed not so much by the use of the title, in this case ‘nurse’, but the use of the title ‘in a way that could be reasonably expected to induce a belief [that] the person is registered under this Law…’ as a health professional. For an individual the maximum penalty (at least in Queensland) is a fine of $30 000.
With respect to nurses, the protected titles are ‘nurse, registered nurse, nurse practitioner, enrolled nurse, midwife, midwife practitioner’ (s 113).
A person may be registered as a student health professional (ss 86-93). There is nothing in the National Law about the title for students’ but I would suggest someone who described themselves as a ‘student nurse’ is not adopting the title ‘nurse’ in a way that would mislead anyone into thinking they are registered as a nurse. And of course, a registered student nurse is registered in the profession of nursing, albeit as a student. Accordingly, although there is no specific mention of the title ‘student nurse’ it seems that the use of that title by a registered student of nursing is unproblematic.
When considering whether or not a person should be registered as a health professional, the relevant Board must determine whether or not ‘the individual is a suitable person to hold general registration in the health profession’ (s 52). Section 55(1) says:
A National Board may decide an individual is not a suitable person to hold general registration in a health profession if—
(b) having regard to the individual’s criminal history to the extent that is relevant to the individual’s practice of the profession, the individual is not, in the Board’s opinion, an appropriate person to practise the profession or it is not in the public interest for the individual to practise the profession; or …
(h) in the Board’s opinion, the individual is for any other reason—
i. not a fit and proper person for general registration in the profession; or
ii. unable to practise the profession competently and safely.
If the Board is satisfied that the person has been using a protected title and holding themselves out as a registered health professional or at least acting in a way that is likely to mislead others, then even without conviction the Board may determine that this indicates that the person is ‘not a fit and proper person for general registration’ (s 52(1)(h)). Where the person has been charged with and convicted of an offence contrary to s 113 then a finding that the person is not a fit and proper person is even more likely (s 52(1)(b)).
It is illegal to use the term ‘nurse’ ‘in a way that could be reasonably expected to induce a belief the person is registered under this Law’. Where a student nurse is practicing, in any capacity, to describe themselves as a ‘nurse’ may well induce a belief that are registered as a nurse (and not as a student of nursing). The aim behind the legislation is that anyone who is not eligible for general registration as a nurse should not, indeed must not, use the title ‘nurse’. Anyone who does could well be asking for trouble if they later seek registration as a nurse and that practice is brought to the attention of the Board.
The same answer will apply if, in the future, a person uses the title ‘paramedic’ without being registered as a paramedic and who subsequently does apply for registration in that profession.
I was under the impression, from what i saw in the past, the term “Registered Nurse”, “Enrolled Nurse” were the protected titles, not the term Nurse.
I also understand Tas and S.A. has paramedic listed as a protected title.
Tasmania, South Australia and New South Wales have all moved to protect the title ‘paramedic’ but that is not under the Health Practitioner National Law and one would assume that those examples of specific state legislation will be repealed when paramedics are registered under the national law. There is no longer a ‘register’ and a ‘roll’ for nurses. You can still register as an ‘enrolled nurse’ with the nursing and midwifery board (http://www.nursingmidwiferyboard.gov.au/documents/default.aspx?record=WD16%2f19441&dbid=AP&chksum=XyLXmbUDZ7c1m8EfMobYNQ%3d%3d). The term ‘enrolled nurse’ is not a protected title but a person who used the term, given it also uses the term ‘nurse’ and who is not an enrolled nurse could still be guilty of an offence under the National Law.
Confusing, because the employment category is still ‘Registered Nurse’ and ‘Enrolled Nurse ‘. One is not employed as a ‘Nurse’.
What no longer exists in NSW, is the different ‘Rolls’ for both categories – the Psychiatric Roll for RNs and the ‘Medication Endorsed’ Roll for ENs ( they were entitled to use the post nominal ‘EEN’ ) However, former EENs now require a ‘Medication Accreditation’ from their employer, in order to administer certain classes of medication.
What’s even more confusing, is why AHPRA continue to reject the requests of RNs to list their highest academic achievement on the publicly available website …. they only list the ‘registration qualification’ Eg. Bachelor of Nursing. An RN with a Master of Mental Health Nursing degree is the preferred qualification by employers, and if you have one, AHPRA won’t publish that for the public ( and current or prospective employers to view ).
AHPRA prosecuted a student nurse in September 2017. The facts of that matter closely resemble the correspondent’s query.
An aged care facility in Victoria employed the student nurse as a personal care assistant. The facility had also created a new role of community nurse for which the incumbent had to be either a duly qualified and registered enrolled or registered nurse. Over the months April to July 2016, the student began acting in that role, including performing various nursing duties and completing paperwork where she styled herself ‘enrolled nurse’ and ‘clinical nurse’. The misuse of the nurse protected titles extended to false claims made on her LinkedIn and Facebook pages.
A registered nurse, another employee of the facility, supported the student’s deception. Why the registered nurse would engage in such unsafe and unethical behaviour is unfathomable. Notwithstanding her motive, that nurse has since gained the dubious honour of being the first person prosecuted under section 113(2) of the National Law for holding out another as a registered health practitioner. As far as my research shows, it is also the first prosecution of a student nurse in these circumstances.
Both pleaded guilty to breaches of the National Law in the Geelong Magistrates’ Court. Each was fined $6,000 and ordered to pay $8,217 in costs. Neither received a conviction. Details of the case are at this link: http://www.ahpra.gov.au/News/2017-09-14-nmba-asks-nurses-and-students.aspx
Irrespective of the sanctions imposed by the court, both defendant’s will be subject to disciplinary action by the Nursing and Midwifery Board of Australia. I can find no directly comparable cases regarding the student, but I think the Board will prohibit her applying for registration for at least 5 years and will require ethical retraining and demonstration of considerable rehabilitation and insight before considering a future application for registration. That would be a good outcome as there is a distinct possibility the Board may permanently prohibit her from ever applying for registration! Whatever the decision, it will certainly set a precedent for those nursing students willing to flout the National Law.
I think the correspondent and other nurses need to consider their professional obligations in these types of situations involving student nurses working under their supervision as an assistant in nursing (AIN). All nurses, including student nurses, must adhere to the NMBA Standards of Practice and Codes of Conduct and Ethics. Broadly speaking, enrolled and registered nurses have an obligation to guide and teach their students; the fact the student is working as an AIN is irrelevant. In my opinion, the correspondent is obliged to directly correct the student’s misconduct or otherwise refer it to the Nursing Unit Manager for remediation. If the misconduct persists, there is a professional obligation, if not a statutory requirement under the National Law, to make a notification to the Board of the student’s misconduct.
Many nursing students work as AIN’s whilst studying. The title, ‘student nurse’, is commonplace amongst nursing students and is well accepted by the profession. It is a safe term when used in the general context of being a student, including its use on our social media platforms. When attending clinical practicums, the use of the term is mandatory, authorised and subject to direct supervision. Telling a patient, you are a ‘student nurse’ when working as AIN, as opposed to the case above where the student falsely claimed to be a nurse, may not be a breach of section 113, but, in my opinion, remains problematic.
Patients should not be expected to distinguish the nuances between an AIN, a student nurse and one that is fully qualified and registered; for many patients, all nurses look the same! Students working as AIN’s would be best advised to avoid the hassle and only use the term ‘student nurse’ in a clinical setting where it is both safe and appropriate to do so.
ABL | Dip.Nur (EN-Div 2) | BNUR (3rd year) & LLB (2nd year)