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All you need to know about NMC fitness to practise cases

Fitness to practise cases are central to the NMC’s regulation of nursing standards

Fitness to practise cases are central to the NMCs regulation of nursing standards

  • The Nursing and Midwifery Council responds to complaints about nurses and midwives by investigating the registrants fitness to practise (FtP)
  • The process can be daunting, so this step-by-step guide to FtP investigations aims to demystify the process
  • Details of changes to the FtP process during the COVID-19 pandemic and where to find support and counselling if you are being investigated
Picture: Daniel Mitchell The NMC and nursing regulation

Every year, the Nursing and Midwifery Council (NMC) receives more than 5,000 complaints about nurses, midwives and nursing associates. Each of these cases will need looking at through the regulators fitness to practise process to

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Fitness to practise cases are central to the NMC’s regulation of nursing standards

  • The Nursing and Midwifery Council responds to complaints about nurses and midwives by investigating the registrant’s fitness to practise (FtP)
  • The process can be daunting, so this step-by-step guide to FtP investigations aims to demystify the process
  • Details of changes to the FtP process during the COVID-19 pandemic and where to find support and counselling if you are being investigated
Picture: Daniel Mitchell

The NMC and nursing regulation

Every year, the Nursing and Midwifery Council (NMC) receives more than 5,000 complaints about nurses, midwives and nursing associates. Each of these cases will need looking at through the regulator’s fitness to practise process to see if the registrant should be allowed to continue to work in the same way as before. This process has undergone significant change since a public consultation by the NMC in 2018.

For many nurses, the thought of being referred to the NMC is a daunting one. This article aims to demystify the process.

What is fitness to practise (FtP)?

All nurses, midwives and nursing associates must uphold the professional standards set out in the NMC’s Code.

The NMC will investigate whether someone on the register is fit to practise if an allegation is made that they don't meet the standards for skills, education and behaviour.

Only about 0.8% of the register is ever investigated, which is roughly eight cases per every 1,000 registrants.

Who can refer a nurse to the NMC?

Anyone can raise a concern about a nurse if they feel that a patient or public safety may be at risk. So this could be a patient, a member of the public, a manager or employer, a colleague, the police, a health or care regulator. It could also be the nurse themselves.

‘We are not here to punish people, we want to make sure people on our register are fit to practise. We want people to feel they can be open about their mistakes and from the outset demonstrate how they can learn from them’

Clare Strickland, NMC deputy director of professional regulation

Employers make the most referrals, accounting for 35% of cases in 2019-20, followed by the public at 29%. Some 8% of cases are self-referrals.

What cases will the NMC consider?

It investigates serious concerns that could put patient safety at risk or negatively affect public confidence in the nursing and midwifery professions.

Allegations could include abuse of professional position, such as an improper relationship with a patient or service user, discrimination, serious or repeated mistakes in patient care, serious criminal offences, violence, dishonesty or fraud, serious breaches of patient confidentiality, health concerns including addiction, and concerns about knowledge of the English language.

The regulator states it understands that people can make mistakes. Making a mistake doesn’t necessarily mean a nurse should be prevented from working. The regulator will consider whether it was a one-off event, how serious it was, how much the registrant has reflected on what happened and what they have done since to learn from the mistake.

‘We are not here to punish people, we want to make sure people on our register are fit to practise. We want people to feel they can be open about their mistakes and from the outset demonstrate how they can learn from them,’ says NMC deputy director of professional regulation Clare Strickland.

The NMC can also not make a nurse apologise to the complainant or investigate general concerns about a nurse’s place of work.

What is different about FtP due to COVID-19?

During the peak of the pandemic, the NMC scaled back fitness to practise services to the most essential public safety elements and carried out more work online.

At the end of June, planning was under way to resume services more fully.

Face-to-face FtP hearings were suspended as a result of the pandemic

Recognising the different and extreme challenges of the pandemic, the NMC joined other healthcare regulators to stress that context would be taken into account when investigating complaints made while working during the pandemic.

‘Where a concern is raised about a registered professional, it will always be considered on the specific facts of the case, taking into account the factors relevant to the environment in which the professional is working.

‘We would also take account of any relevant information about resources, guidelines or protocols in place at the time,’ the regulators said in a joint statement.

 

What happens if I make a referral?

If a nurse refers themselves or a colleague, the NMC will confirm this with the registrant and keep them informed. The regulator urges people making a complaint to act quickly, as the registrant could pose a risk to patients.

What happens initially if I have been referred?

The NMC should contact anyone who is the subject of a complaint and ask if they want to comment on it. This letter will include information on their rights and it will encourage them to get help and talk to their representative body, such as the RCN.

Ms Strickland says: ‘We want to tell people what the concern is as early as possible and we want them to seek advice where it is available.

‘We try to get a registrant's input as that can make a big difference on whether we need to proceed at all and help us make the best possible decision.’

I have been referred to the NMC – what do I do now?

Rebecca Siegle: ‘The RCN gets
good outcomes for nurses’

FtP is a complex and daunting experience and the first phone call you make should be for good legal advice, the RCN says. RCN senior legal officer Rebecca Siegle says anyone referred should contact their union straight away.

‘Being referred to the regulator is incredibly distressing for a nurse, whether or not they have done anything wrong,’ Ms Siegle says.

‘We will always get back to someone referred to the NMC who contacts us within 48 hours, often sooner. Time is of the essence.

‘We have various opportunities to shape and direct investigations.

‘We try to work with the NMC while always working for the benefit of our members. We get good outcomes for nurses.’

Cathryn Watters: ‘Don’t go through
the FtP process alone’

Cathryn Watters, founder of NMCWatch, a support group for registrants going through FtP, says: ‘My advice to those going through it is don't do it alone – contact us as we have all been through it and understand the impact it can have so we can give you practical and emotional support and we really understand how you are feeling.’

Do I need to tell my employer if I am referred?

The NMC will generally engage with a nurse’s employer when a referral is received. But unless the nurse has an interim order issued against their practice while the NMC investigates the complaint, nurses are not necessarily obligated to tell their employer that they have been referred.

What support is available for nurses going through the FtP process?

Nurses have access to a free emotional support service established by the NMC in 2019.

The confidential 24-hour service is operated by an independent provider.

The NMC 24-hour Careline can help
support nurses during the FtP process
Picture: iStock

Registrants can access structured counselling sessions, delivered either face to face, via phone or Skype, or online using email or a secure chat room.

The NMC’s annual report revealed in 2018-19 four nurses were recorded as having died by suicide while under FtP investigation.

In its first five months up to the end of March 2020, it received 284 calls, the NMC said.

When it was launched last October, NMC chief executive Andrea Sutcliffe said: ‘The impact on someone’s physical and mental well-being as a result of being under such scrutiny mustn’t go unrecognised.’

Cathryn Watters, founder of NMCWatch, says the process can do severe harm to nurses going through it.

‘There are long-term psychological effects from referral and the investigation process. Even if there is ‘no case to answer’ registrants feel lost, let down and lacking in confidence with some elements of post-traumatic stress disorder.’

Many can struggle to find work during or after an investigation, even if a case does not go against them, she says.

The RCN says it can put its members in touch with their other services that can offer help, including immigration, employment legal advice and financial support.

Contact the FtP Careline by calling 0800 587 7396.

The Samaritans offers a safe place to talk any time, including about job-related stress or anxiety. Call free on 116 123.

 

The screening stage

This is the first step the NMC takes after it receives a complaint, although prior to that they may have spoken to employers seeking advice on whether a complaint needs to be made.

The regulator checks if it meets four thresholds to progress further:

  1. Are the concerns serious enough?
  2. Does it meet formal requirements, such as being about an identifiable registrant?
  3. Will the NMC be able to obtain credible evidence?
  4. If the nurse can demonstrate they have already remedied the issue, can it be considered dealt with.

The majority of cases are ended here.

How can I show I have remedied any issues?

Even if the case meets the threshold for moving forward, a nurse can stop this by showing they have taken action to prevent the issues being considered from happening again. If evidence is submitted of having personally reflected on the issues, or undertaking extra training, the NMC may consider there to be no ongoing risk to the public and close the case.

Engaging with the process is key for nurses to get the best and quickest outcome. Ms Siegel says: ‘The worst thing that nurses can do, and what can happen if they don’t have legal representation, is bury their heads in the sand.

'The best way is to engage with the process and provide evidence of fitness to practice.’

Interim orders

If a case is considered suitably serious enough to progress, a panel can impose interim orders on the nurse during the investigation. This can mean a suspension, leaving a nurse unable to work, or a conditions of practice order, that limits how they can work, such as working under supervision or avoiding particular aspects of practice.

Ms Siegle says the RCN always does its best to keep nurses in work during investigations, as this is the best way to provide evidence they are safe to practise.

How are concerns investigated?

This will usually begin with the NMC seeking documentary evidence of the concerns and speaking to those involved.

The NMC says it continually assesses the information and whether it affects the level of risk and the investigative steps that are required as a result. The nurse involved is always asked to provide information at the beginning and end of the investigation.

Investigators also speak to the person who has raised the concerns, employers and witnesses to ensure they have a full picture of what happened and how serious it was. If people are asked to provide an official witness statement, this will be sent on to the registrant involved.

If the issue involves a nurse’s health, the NMC will contact their GP and may ask the nurse to have a medical examination.

If the concern focuses on a nurse’s English language skills, they are likely to be asked to take a written language test.

If investigators are unable to obtain the information required or witnesses will not help, it is likely the case examiners will conclude that the concerns cannot be proved.

What does a case examiner do?

Once an investigation is complete, a case examiner will decide what will happen to the case. They don’t decide whether the case is proved, if the incidents happened, or if the nurse is fit to practise. But they do decide whether there is a case to answer and if there’s a realistic possibility that the FtP committee would decide the incidents in the case did happen, or that the issues, such as a health condition, are still present and that the nurse or midwife’s fitness to practise is currently impaired.

If they decide there is no case to answer, they can still offer the registrant advice or give them a warning. If they decide there is a case, they can resolve it by recommending undertakings with the nurse, which can include restrictions on practice and rehabilitative steps.

Alternatively, they can refer the case to the FtP committee.

Picture: Charles Milligan

What happens with the FtP committee?

After referral to the committee, the case still does not have to end with a full hearing.

If there is no disagreement between the nurse and the NMC about the issues in the case, it will generally be sent to a private meeting of the committee.

The committee is a three-person panel, one of whom will be a nurse or midwife. A meeting has the same powers as a hearing.

A case is most likely to move to a full hearing to resolve central aspects of a case when the regulator and the nurse don’t agree.

What are the possible outcomes if the panel decides the nurse’s FtP is impaired?

The panel will decide what sanction to impose. This can include taking no further action, a caution order (which imposes no practice restrictions) or a conditions of practice order, which imposes practice restrictions for a period of time. There is also a suspension order, which stops a nurse working for a period of time, and, most seriously, a striking-off order.

Nurses and midwives can also apply for voluntary removal during a hearing before the FtP committee.

How long does the whole process take?

This depends on how far the complaint goes. The NMC aims to deal with the complaint at the earliest possible point. If it runs through to a full hearing it can take 15 months, but the vast majority never make it this far.

Of the 5,373 complaints received in 2018-19, almost 3,400 were closed after initial assessment. This was because no action was needed or the registrant involved could not be identified. Only 520 were referred for a full hearing.

Can I appeal?

A nurse can appeal to the court against the outcome of a final hearing within 28 days of the decision being made. In the case of a final substantive order, the nurse can appeal to the High Court in England and Wales, the High Court Justice in Northern Ireland, and the Court of Session in Scotland.

In the case of an order to amend the register where an entry has been fraudulently procured or incorrectly made, a nurse or midwife can appeal to the county court.

Nurses who have been struck off the NMC register can apply for restoration after five years. The NMC will consider if they are a ‘fit and proper’ person to practise, and will consider a number of factors including the insight and remediation into the original concerns, the period of time since they were struck off, their work since then, and efforts they have made to keep up to date with professional practice.


Further information

NMC: what is fitness to practise?

NMC Code

FtP Careline: 0800 587 7396

The Samaritans: 116 123


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