Her Majesty, by and with the advice and
consent of the Legislative Assembly of New Brunswick, enacts as follows:
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,
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
“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
“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
(c) abusing a person verbally, physically, emotionally
(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
(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
(c) order and interpret screening and diagnostic tests in
accordance with the regulations, and
(d) provide other health care services within the practice
of midwifery as set out in the standards of practice established by
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
(c) behaviour or remarks of a sexual nature by the member
towards the patient.
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;
(c) one person who is a member of the Nurses Association
of New Brunswick;
(d) one person who is a member of the New Brunswick Pharmaceutical
(e) one person who is an employee in the Department of Health;
(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.
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.
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
(c) establish, maintain, develop and promote standards of
professional ethics in 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
(e) advise the Minister on matters related to the practice
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).
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,
(c) providing for the appointment of such committees as
the Council considers expedient,
(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).
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.
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
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.
15 The fiscal year of the Council begins April 1 in one year and ends
on March 31 in the following year.
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.
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
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,
(c) where notification is received of the member’s
(d) where the registration of the member has been revoked,
(e) where the person no longer meets the requirements for
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.
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
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
(a) the name of the member filing the report;
(b) the name of the health professional who is the subject
of the report;
(c) the information the member has of the alleged sexual
(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.
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.
35 Nothing in this Act prohibits or prevents any person from giving
aid in case of urgent need.
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
(b) the practice of pharmacy by a person authorized to carry
on such practice under the Pharmacy
(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
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.
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,
(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
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
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
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
47(8) A member who fails to submit to an
examination under subsection (1) or (2) commits an act of professional
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
(b) refer allegations of professional misconduct, incompetence
or incapacity to a Discipline Committee,
(c) caution the member, or
(d) take such other action as it considers appropriate in
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
(a) directing the Registrar to impose specified restrictions
on the member’s registration, or
(b) directing the Registrar to suspend the member’s
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
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
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
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.
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
(c) the safety of a person may be jeopardized.
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
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
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
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,
(b) without further notice to the member, take any action
that is authorized to be taken under this Act, the regulations or
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,
(c) in the case of evidence of a witness, the identity of
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
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.
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.
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
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;
(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
(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;
(c) direct the Registrar to revoke the member’s registration;
(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
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
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
(b) refer the matter back to the committee, with or without
(c) substitute its decision or order for that of the committee.
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
(a) the result of every proceeding before the Discipline
(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
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
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.
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.
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.
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.
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
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
(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,
(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.
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
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.
99 With the approval of the Lieutenant-Governor in Council, the Council
may make regulations
(a) respecting the powers, duties and qualifications of
(b) respecting the recognition of midwifery schools and
examinations as prerequisites to registration;
(c) respecting the assessment process required for registration
as a midwife;
(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
(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
101 This Act or any provision of this Act comes
into force on a day or days to be fixed by proclamation.