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What to do if you are referred to the NMC

Being subject to disciplinary proceedings can be a daunting experience; knowing about the process and being properly prepared can help reduce this anxiety

In this article…

  • Where to seek information on disciplinary proceedings
  • The stages of an investigation
  • Right to representation

 

Author

John Barker is barrister partner at Ronald Fletcher Baker LLP, London.

Abstract

Barker J (2014) What to do if you are referred to the NMC. Nursing Times; 110: 17, 10-12.
If you are subject to an investigation by a professional regulator, you need to be informed about the process and act quickly. This article outlines the process and offers some advice on how best to navigate it.

  • This article has been double-blind peer reviewed
  • Figures and tables can be seen in the attached print-friendly PDF file of the complete article in the ‘Files’ section of this page

 

5 key points

  1. A registrant is most likely to find out a complaint has been made against them to the NMC when they receive a letter of notification
  2. Delays in responding to a notice of referral can lead to further charges and reduce mitigation
  3. A complaint can be triggered in a variety of ways including by a person referring themselves, for example if they have a criminal conviction
  4. Fitness to practise committees can impose conditions of practice, such as suspension, during an investigation
  5. Professionals should seek representation from a lawyer familiar with this area of the law

 

All nurses and midwives are regulated by the Nursing and Midwifery Council. The role of this professional body is to uphold standards of practice and, therefore, public safety and confidence in the profession.

When registered practitioners are referred to the NMC, this can result in an investigation and a hearing to decide whether their fitness to practise is impaired. The NMC will investigate allegations about:

  • Misconduct - behaviour that falls short of what can be reasonably expected of a nurse or midwife;
  • Lack of competence - lack of knowledge, skills or judgement that means a practitioner is unfit to practise;
  • Character issues - usually some form of criminal behaviour;
  • Serious ill health - long-term, untreated or unacknowledged health conditions that negatively affect professional performance.

Being the subject of any professional regulator’s investigation can be a daunting experience. Many people in this situation feel caught up in a hostile mechanism where the regulator’s only concern seems to be achieving what may appear to be an already-decided outcome. This may be because the regulator is not only responsible for prosecuting but also for putting together the case, funding it, organising the investigation and hearings, and appointing the committees that will determine the outcome of the complaint.

Accused practitioners can take steps to help deal with this unfamiliar and unpleasant experience.

First steps

Practitioners usually hear they have been referred when they receive a letter of notification, which sets out how they will be expected to respond. Investigations and hearings should be approached with as much information as possible; this will make a satisfactory outcome more likely and help to reduce the stress of the experience.

A useful starting point for anyone who has received a letter of notification is to check the NMC website for information on the powers and procedures that are likely to be used (Box 1). The rules governing NMC fitness-to-practise procedures are listed in the Nursing and Midwifery Order (HM Government, 2002) and the Nursing and Midwifery Council (Fitness to Practise) Rules (NMC, 2004). Guidance notes are also provided on the same webpage, which are written in a more accessible way and the Health and Care Professions Council also provides an accessible general guide on fitness-to-practise proceedings (Box 2) .

What triggers disciplinary proceedings?

Fitness-to-practise proceedings are triggered by complaints or allegations referred to the NMC. Complaints can come from a report from another regulator or an investigating authority such as the police, from the monitoring arm of the regulator itself, or directly from a patient, client or employer. However, “self-referrals” are also common; this is when registrants inform the NMC that they have had a criminal conviction or caution. Not doing so results in extra charges and can even be considered by the regulator as more serious than the original offence.

Once a referral has been received, it is screened to check that it is covered by the regulatory process - for example, that the subject of the referral is registered with the NMC. If the referral is not covered the subject may not even know that a referral has been made.

If it is covered by the regulatory process, the NMC screening team sends the practitioner a copy of the referral and asks for information on their employment status. In some cases the screening team will decide it is more appropriate for an employer to deal with a referral through its own disciplinary process, and will refer it back to the employer.

If the NMC continues with the investigation, the practitioner will be sent a notice of referral giving details of the allegation, along with any relevant documents. He or she has 28 days in which to provide a response.

Interim hearings

The screening team also carries out a risk assessment on each referral. If particular risk factors are identified cases can be referred to an interim order hearing. These are only considered when it is necessary to protect the public, is in the public interest or in the practitioner’s interest.

Interim hearings are arranged as soon as possible and practitioners or their representatives are encouraged to attend or submit documents responding to the allegations. These hearings can impose an interim suspension from the register for up to 18 months, or conditions of practice to address the identified risks while allowing the practitioner to practise in a safe manner. Conditions can include the requirement to work under supervision or not to engage with a particular area of practice, type of case or patient.

Any condition that limits the extent to which a professional can practise is serious and it is always advisable to have representation at an interim hearing where these issues are decided. The investigation continues while an interim order is in place.

Responding to the referral

It is essential to respond to any correspondence from the regulator. Any delay can lead to further allegations or charges of failing to cooperate; even if a delay does not lead to further charges, it may reduce mitigation if the case goes against the practitioner.

Dealing with the referral in a professional and appropriate manner can help to strengthen the defence case, as can demonstrating insight into the fault or behaviour that has resulted in the complaint or allegation.

It is important not to rush into responding without preparation. Practitioners should always take advice on setting out the initial response; a response that is hastily drafted or badly thought through can have serious consequences.

Advice can come from a union or professional body, or a regulatory solicitor with a solid background in healthcare fitness-to-practise law. Union stewards or representatives are a good first port of call for advice; they can refer practitioners to someone with specialist knowledge.

Regulatory law can be complex, and getting the best advice can save time, anxiety and, ultimately, money. The person giving advice should be sympathetic as well as sufficiently knowledgeable and experienced to get the best possible result.

What happens next?

Review and referral

Once the practitioner has been informed of the referral it is passed to an investigating committee, which will look at whether there is a case to answer. The committee reviews all the information available, including the response of the practitioner against whom the complaint had been made. It does not judge the arguments between the two sides, but determines whether the case should be taken further. The practitioner being investigated is not permitted to attend this meeting, so the importance of providing a careful, written response for the committee to consider cannot be overstated.

If the investigating committee decides there is no case to answer, the practitioner will be informed in writing; if the case is referred or “sent up”, the practitioner will be sent a notice of referral to the Conduct and Competence Committee or the Health Committee.

Hearing and adjudication

If the committee decides the case is strong enough, it is referred to the Conduct and Competence Committee or the Health Committee for a hearing and final adjudication. Hearings take place all over the UK, but most are held in London; they are similar to a trial although legal professionals are not required to wear formal court dress and proceedings are as informal as possible. Evidence can include witness testimony or statements, relevant documents and information, and can also include evidence from experts. Practitioners are encouraged to have representation and to present evidence in their defence.

The evidence called by the registrar at the hearing is usually presented to the committee by a prosecutor engaged by the NMC; this is normally a lawyer who is familiar with this area of law. It is not unusual for fitness-to-practise committees to also have a legal assessor or adviser assisting the committee in points of law and procedure.

The sanctions available to the Conduct and Competence Committee in the event of a finding against the registrant include:

  • Caution order (1-5 years);
  • Suspension order;
  • Conditions of practice order;
  • Striking-off order.

Committee members

The investigation committee and the adjudication committees (the Conduct and Competence Committee and the Health Committee) are made up of professional members and lay members (people

from outside the profession). They usually have support from the administrative staff who work for the registrar. The investigating committee has different members from the adjudication-stage committees; for reasons of fairness, these are kept separate.

Appeals

Practitioners can appeal against committee decisions or any sanctions that are imposed. This involves going to the High Court and appeals must be lodged within 28 days. In addition, the Professional Standards Authority is able to appeal against any decisions if it believes they are too lenient.

Conclusion

Becoming the subject of regulatory proceedings is something any professional hopes to avoid but it is not as rare as might be thought - in 2012-13 there were 4,106 referrals to the NMC. The journey from receiving the initial letter of notification through to disposal of the case is likely to be lengthy - in 2012-13 the average time from conclusion of an investigation to adjudication hearing was 8.4 months. However, the NMC is committed to reducing this to six months by December 2014.

If you are referred to the NMC, there are two golden rules to ensure you receive a fair hearing and decision:

  • No matter how frustrating it seems, engage with the process in a professional manner;
  • Ensure you have advice and representation from someone with sound knowledge of the area and in whom you have complete confidence.

 

 

Readers' comments (7)

  • Theoretically the NMC aim to be fair just and timely:
    but in my experience they were unfair- they discounted me from the word go, as the un-credible witness in an event that only I and the patient were in and all my dealings with the patient were recorded for the proof of what I was saying.

    They were unjust in their deliberations having decided that I was not worth listening to - even though only one panelist had any clinical experience, and what that way who knows.

    And as for timely - what a joke. 8 months the author says, poppycock! More like nearly 3 years in 2014, was my experience, and even then it might have been more.

    while trying to communicate with the NMc is probably a good idea, they are a nightmare to communicate with. theoretically you have a Case Manager, but these change on a frequent basis and you never know when, because although they are supposed to keep you informed, they never ever do. And they don't seem to think they should be required to answer questions no matter how urgent or sensible they are. They, all in every department i have dealt with, have breached their own standards of response.

    Bottom line, get another career which doesn't treat you so shoddily.

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  • The experience of the previous commentator is all too common. The NMC operate a 'guilty until proven innocent' approach while behaving as judge, jury and executioner. No other profession would tolerate such behaviour from their 'professional' body. Nurses should express their votes of 'no confidence' in the NMC in whatever ways they can until such a point that this 'star chamber' is disbanded and replaced with something more professional, balanced and appropriate.

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  • dikod1

    Mine was worse than the last. I was referred by a forensic LD trust who I had repeatedly complained about for serious abuses for two years despite eight malicious "disciplinary" counter allegations..steadiy disproven. The trust was forced to hold an internal inquiry which I rejected as a cover-up then a second for which the CEO begrudgingly thanked me then whose deputy then fired me for accessing the abuse victims file for "too long" although it was a forensic hospital and legitimate. The trust referred me claiming that my practice was "out of date"..but the inquiry team had already commented upon just one good piece of work found in the forensic LD service...MINE. However the NMC took up the case with zeal and, revisiting my file predated original allegations to their disproven originals and created a new charge of stopping abuses without the victims permission (I kid you not). I proved trust managers who dismissed me to be "shy of the truth" despite being under NMC oath and other "witnesses" memories were sufficiently poor to need dementia screening. The NMC declared them and their testimonies as credible however but which was actually incredible. I proved that panellists consistently don't read case material and formally complained which was ignored. Their commercial solicitors case was replete with hugelyn obvious errors and no one noticed, case workers, panellists etc. Panellists chose not to question me when their QC was cross examining. I had already been subject to 18 months of "interim" conditions which is like working under hyper scrutiny and am now subject to a further 18 months. I have to write and submit a personal development plan explaining the importance of not reporting serious abuse without the victims consent and to submit regular accounts of how my practice is benefitting. I was suspended last year for months when I explained to my NMC case worker why I was leaving an abusive nursing home to work in a sister home (the home was closed for financial abuse). I was suspended by the NMC because one of my "conditions" stated that the home was where I worked despite being open and transparent with the NMC and describing my intentions and without any inkling of a problem. MY NMC substantive outcome stated that I used whistle blowing as an excuse and that I had ignored trust policies and procedures for making complaints. In fact my persistent formal complaints ran to 100's of pages which the NMC are aware of. The NMC is preoccupied with secrecy. Referring to patient A is one thing but "witness A"? when witnesses haven't even been asked whether they are prepared to consent. I am happy to identify myself. I met others in NMC waiting rooms who had their own compelling stories. I believe that there is something seriously wrong at the NMC. My full account can be found on twitter under "my blog".

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  • dikod1

    http://t.co/pr8Wtxu4

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  • Growth is dependent upon increasing market demand. Demand is increased via marketing (advertising) or given the power direct market manipulation. Within a closed regulated industry all that is required are adjusted intervention determinants, either downwards, upwards, sideways or all three. Downwards insofar as new cases are created from increasingly less urgent material acquired via more imaginative means, e.g. by increasing the industries operational scope to include "concerned employer" (therefore interested to sift any level of "concern" submitted by any employer for whatever reason or motive) and increasingly through to encouraging direct anonymous unsubstantiated informant tip-offs from any direction in the manner of a secret police force. Very well paid lawyers are on hand to investigate anything. Upwards by imperceptibly raising the guilt-bar minimum just sufficiently to ensure that subjects remain in the loop i.e. via "conditions of practice" penalties rather than cautions for even first and comparatively trivial charges thereby enabling full on-going involvement. And finally sideways by simply stringing out cases, applying slow motion, duplicated and repeating formalities to both interim and substantive actions. Any query is directed immediately to the need to protect the public. The effect is that more and more nurses find themselves subject to what the earlier commentator described currently as a "Star Chamber" where literally life and death outcomes can depend simply on the personal psychology profile and inclination of the chairman. Increased activity spending and debt is pointed to as indication of the now effective approaches to combating the problem (compared to the past) and that of course there is much more to be done because this may well represent only the tip of the iceberg. The minimum personal effect notwithstanding any outcome is inevitable mental exhaustion and emotional devastation particularly from a nurse. The maximum is suicide (cf Doctors for Justice).

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  • Yes David in a way. yours is worse. But mine in my own way, both from an employer's perspective and from the NMC's behaviour is just the same really making up accusations which the original event simply didn't sustain and a complete white wash in the hearing in favour of the reporter, allowing the accusers to say any old rubbish they liked and not question it, because the NMC crowd were too brainless to realize there was a problem( nay, too many problems to start mentioning them) with the nonsense that the NHSD were spouting...( just I didn't go into details). The NMC have a formula and it works beautifully. They are rotten to the core. Interesting though that they bray on about protecting the public from Nurses, and yet it is us who need protecting from their dishonest devious activities. Even though Parliament is supposed to hold them accountable they don't. There is something very bad going on there.


    Anonymous | 22-Apr-2014 12:36 pm, thanks, that was a meaty chunk!The minimum personal effect notwithstanding any outcome is inevitable mental exhaustion and emotional devastation particularly from a nurse. But who cares about us?

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  • After being a whistleblower and suffered for my efforts, I wonder if it is worth continuing in nursing. I would say to young nurses, be careful if you report. You will be vilified, lied about,, have false allegations made about you, be threatened with complaints that cant be detailed as it may violate the potential complainants human rights?
    Is nursing worth it
    If you can go through that then continue, nursing is a fantastic job and only the young can wipe out abuse

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