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Fitness to practise cases set to be heard in private 'in most instances' under NMC plans

  • 4 Comments

Fewer fitness to practise hearings will be held in public in the future under a series of plans drawn up by the Nursing and Midwifery Council that will see most cases resolved in private, as well as a greater emphasis on the context surrounding an incident.

The regulator said there was evidence the current approach by regulators to dealing with FtP concerns, via public hearings, had unintentionally led to “a culture of blame and denial” and that changes were therefore needed.

“We should enable registrants to remediate regulatory concerns at the earliest opportunity”

NMC council papers

Public hearings, which the regulator described as “costly and time-consuming”, would only need to take place in “exceptional circumstances,” when there is a dispute, according to the NMC’s proposals.

The draft plans stated that a case could be handled without a full hearing, even if a concern about a registrant’s practice was so serious they may need to be removed from the register, or if they were still considered a risk to patient safety.

The NMC is already able to resolve cases without a hearing. But only around 25% are concluded in this way, by either a decision being made on paper at a meeting, a registrant agreeing to voluntary removal from the register, or a nurse or midwife agreeing to a sanction with a panel without witnesses involved.

Under its latest proposals, the regulator wants all cases in which nurses and midwives agree with the regulator’s assessment of events to be dealt with on paper at a private meeting – which would not require registrants or witnesses to be present.

“We should only take regulatory action if the concern has already been raised with and investigated by the employer”

NMC council papers

The process would remain “transparent and accountable”, said the NMC, because it plans to publish the panel’s reasons for the decision, which would allow the public to see the concerns and outcome.

In addition, the NMC said it intended to start publishing details of voluntary removals to improve transparency.

In draft consultation documents released this week, the regulator described its current approach of taking most cases to full hearings as “adversarial” and having a negative impact on witnesses, employers, and registrants.

“To ensure that registrants who are referred to us can practise safely and effectively, we should enable registrants to remediate regulatory concerns at the earliest opportunity and, if needed, reach an agreed position with us as to how the concern should be dealt with,” said the NMC.

The regulator added that it wanted to improve the way it takes context into account when a patient safety incident occurs. Currently, the circumstances in which a registrant does something wrong are considered by the NMC on a “case-by-case basis”.

“[The NMC] will set out very clearly for employers what we expect from a referral”

NMC council papers

In the future, it intends to introduce guidance setting out why context is relevant and how it should be taken into account when the regulator makes decisions. It will also introduce a standard approach of assessing context and will pass on intelligence to employers and regulators.

Meanwhile, in cases where a nurse or midwife has made an error, but is deemed no longer a risk to the public because they have corrected any issues with their practice, the NMC said it may not be necessary for it to investigate the case.

The regulator wants to see employers taking a greater role in dealing with complaints and helping staff to remediate their actions.

As reported over recent years by Nursing Times, managers have previously been accused of referring nurses to the regulator for performance issues that they should be sorting them out themselves, contributing to a spike in workload facing the regulator.

“We think that employers are usually in the best position to resolve concerns immediately, and we should only take regulatory action if the concern has already been raised with and investigated by the employer…unless there is an immediate risk to patient safety that we have to deal with,” said the NMC in its draft consultation.

The regulator said it will in the future pass on complaints it receives from the public to employers for them to investigate first. It will also “set out very clearly for employers what we expect from a referral”, which it will expect to be signed off by a senior manager.

The draft proposals will be discussed at an NMC council meeting next week on 28 March. If approved, a consultation will be launched on 3 April and changes would be brought in from 2018-19.

  • 4 Comments

Readers' comments (4)

  • PROBLEMS WITH THIS PROPOSAL:


    (1) -PAPER HEARING: The NMC will be able to cherry pick statements and DISREGARD contemporaneous documentary paper evidence. Therefore an INDEX of all paper evidence which the panel use must be sent to the registrant to ensure a fair, balanced and proportionate private meeting/ hearing is adhered to. If the NMC refuse to include supporting evidence for the registrant, then correspondence must be submitted to explain their rationale.

    (2) -ABSENCE OF TRIBUNAL TRANSCRIPTS: Transcripts of full NMC quasi-judicial hearings are imperative to show the High Court Judge of any failings. The transcripts will include how the witnesses have been cross examined along with the contemporaneous evidence which is an absolute core component. Any evidence which has been omitted by the panel will be transparent to the High Court Judge (as this will be evident on the full NMC transcripts). However, if the NMC only conclude on private paper meetings/ hearings, will they supply FULL TRANSCRIPTS of that private meeting/ hearing?

    (3) - ABSENCE OF TRIBUNAL HEARING: IS BREACHING ARTICLE 6 ECHR (RIGHT TO A FAIR HEARING): (Absolute Right) Refer to June Wright v Secretary State for Health and Another re: Care Standards Act 2000 R (Wright) v SSH [2009] UKHL 3 - Mental Health Law Online

    (4) - At the behest of the Information Commissioners Office (ICO) the NMC confirmed on 26/9/16 that they would no longer publish NMC draft charges as this was disproportionate in advance of the actual charges being confirmed on the day of a hearing and purported this could interfere with the registrants` rights under Article 8 (ECHR).............. Why does the same not apply when the registrants appeal at High Court? Surely the NMC should wait until the High Court conclusion before they publish the final outcome.

    (5) - The INVESTIGATORY COMMITTEE already receive paper evidence which is the stage before the final NMC/ CCC FtP hearing ........ So how will a final NMC/CCC FtP private meeting? hearing make a difference?

    (6) - NMC purport this new proposal will allow ".......registrants who are referred to us can practise safely and effectively"..... Again, this statement seems to be economical with the truth as 99% of interim order referrals receive an 18 month ban based upon statements without contemporaneous evidence being obtained.

    (7) - The NMC still fail to acknowledge that a substantial proportionate of employer referrals (45% annual average) are the catalyst after their employees have whistle-blown. The GMC do investigate this UNLIKE the NMC.

    FULL TRANSCRIPTS OF PRIVATE MEETINGS/ HEARINGS MUST BE SURRENDERED TO THE REFERRED REGISTRANTS` FOR THE PURPOSE OF APPEALS AT HIGH COURT.

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  • I find it absolutely terrifying the prospect of this happening in "private". How can our regulator ensure openness and honesty, transparency and fairness when they are suggesting practice which is completely abhorrent to this? We moved away from such practices many years ago - we should be continuing to move forwards not backwards. This will only result in more nurses leaving the profession and even further lack of faith in our regulator. I am sadly writing this anonymously as I can not be confident that my regulator will not suggest I have "brought my profession into disrepute" by stating my opinion - a very sad state of affairs.

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  • I agree with the comments posted by Vassanta Suddock, the right to appeal is essential in this whole process and to be able to appeal to an independant body who can review all evidence of the hearing and determine appropriate outcome. I would want reassurance from the NMC that full transcripts and documentary bundles are provided to registrant in complete form without the need for the registrant to have to manoeuvre through copious legal framework in order to get what is rightfully theres. The appeal system currently, through the High Court, although prevents many going to appeal as is a daunting prospect at least gives the registrant the potentially first opportunity to be heard impartially. I would be concerned that by hearings being held privately this may be a step in place to make appeal more difficult and less likely for a successful outcome. The evidence provided to the panel is sometimes weighted to support the accuser rather than the registrant which does nothing to protect public safety when the accuser has skewed motives.

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  • The language used by the NMC at the outset determine how they view allegations against nurses. They are not called allegations, but 'charges', which puts one in mind of criminal activity and so sets the tone of the hearing.

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