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NMC unveils measures to make fitness to practise process ‘fairer’

  • 9 Comments

Nurses and midwives will not be automatically struck off for attempting to cover up when things go wrong, under revised plans for a new approach fitness to practise.

The move is among measures designed to make the FtP process fairer with more emphasis on the context surrounding even the most serious types of misconduct and patient safety incidents.

“Encouraging registrants to learn from mistakes is more likely to promote a learning culture”

NMC report

Proposals for a new direction for FtP were first unveiled by the Nursing and Midwifery Council in March this year in response to concerns the current system could actually hamper efforts to improve patient safety.

A major consultation concluded in June and the NMC has now published the results alongside a near final version of the FtP strategy due to be considered by its governing body this week.

A report on the consultation shows nearly 900 individuals and organisations took part with more than 570 identifying themselves as a UK registered nurse or midwife.

The consultation also included independent research conducted with more than 200 registrants, employers and members of the public.

A total of 113 nurses and midwives from a mix of settings and areas of practice, different backgrounds and at different stages in their careers were involved in this phase of the consultation, said the report.

Overall, it shows there was broad support for the NMC’s attempt to move away from a “culture of blame and denial” to a system that put more emphasis on learning from mistakes.

“Automatic removal from the register in cases, such as deliberately covering up when things go wrong, is too restrictive”

NMC report

Respondents also welcomed new measures to reform the “cumbersome, lengthy and adversarial” FtP process, which has been shown to put immense strain on all concerned.

The revised version of the strategy to be put before the NMC Council at its meeting on July 25 shows the regulator intends to forge ahead with plans to hold most misconduct hearings in private despite some concern this would reduce transparency and remove a deterrent against poor conduct.

Under the strategy, full hearings will only take places in “exceptional circumstances”.

The strategy also places more emphasis on the context surrounding mistakes and makes it clear nurses who have done something seriously wrong may not necessarily be sanctioned if it is clear they owned up and have learned from the error.

The consultation report shows an overwhelming majority of respondents – 94% – felt the context in which a patient safety incident occurred was incredibly important.

“When incidents of poor practice actually happen because of underlying system failures, taking regulatory action against a registrant may not stop similar incidents happening again the future,” said the strategy.

“Regulatory action against an individual registrant may give false assurance, direct focus away from a wider problem and cause a future public protection gap,” it said.

“We’ve amended our policy principles to reflect this feedback and our position”

NMC report

Meanwhile, the strategy states that the NMC may not need to take action for a clinical mistake even when is caused “serious harm” as long as a registrant “has been open about what went wrong and can demonstrate that they have learned from it”.

“Encouraging registrants to learn from mistakes, including mistakes with serious consequences, is more likely to promote a learning culture that keeps patients and members of the public safe than taking regulatory action to ‘mark’ the seriousness of the consequences,” said the document.

The regulator also wants to see employers making more effort to resolve issues locally before resorting to an NMC referral.

Key changes made in the light of consultation include a pledge to ensure a more “person-centred” approach to FtP, especially when it comes to engaging effectively with patients and the public who raise concerns.

This follows severe criticism of the way the regulator dealt with families from Morecambe Bay and those affected by the care scandal at Gosport War Memorial Hospital.

Key questions raised by the consultation include the regulator’s role when it comes to maintaining public confidence in the nursing profession as a whole and upholding professional standards.

To date nurses and midwives have faced harsh sanctions because their actions could be seen to damage the reputation of the nursing profession – even if they had made a relatively minor mistake and clearly did not pose a risk to patients.

Despite concerns raised by its own regulator – the Professional Standards Authority (PSA) – the NMC said it would push ahead with plans to change the threshold for action in such cases.

In its response to the consultation, the PSA expressed concern that changing these thresholds risked “side-lining the importance of the regulator’s role in upholding professional standards”.

However, the NMC said it recognised punishing people who were not a risk “can have profound implications both for the individual registrant and the wider environment” and may increase “the potential for registrants to focus on avoiding blame rather than acknowledging errors or weaknesses in their practice”.

“It has considerably less justification in cases where the nurse or midwife has already addressed the concern, or where it’s of a less serious nature,” said the document.

“Indeed, in pursuing a case in such situations on the basis that it is necessary to maintain public confidence or uphold standards has the potential to conflict with our patient safety responsibilities, if by doing so we undermine a culture of openness and learning,” it added.

The strategy now makes it clear that in cases about clinical practice, taking action “solely to maintain public confidence or uphold standards” is only likely where a concern cannot be remedied.

In cases unrelated to clinical practice, taking action on this basis “is only likely to be needed if the concerns raise fundamental questions about the trustworthiness of a registrant as a professional”.

Another key change to come out of the consultation is a decision not to automatically strike people off for certain types of misconduct.

Initial proposals suggested a nurse or midwife should automatically be removed from the register if it could be shown they had attempted to cover up something that had gone wrong – such was the seriousness of this kind of behaviour,

“How will registrants be able to put across the merits of their if they are not heard face to face”

Cathryn Watters

The regulator also suggested there were other regulatory concerns, particularly those that raised fundamental questions about a registrant’s professionalism, that simply could not be remedied and warranted an automatic striking off order.

However, the NMC decided to row back on these policies due to fears they were too restrictive and did not allow individual circumstances to be taken into account.

“We agree that automatic removal from the register in cases, such as deliberately covering up when things go wrong, is too restrictive and that removal will not always be appropriate in all circumstances,” said the consultation report.

“We agree that there may be other factors and context to consider. We’ve amended our policy principles to reflect this feedback and our position.”

Instead registrants will be warned that “restrictive regulatory action” is either required or highly likely.

The strategy sets out a series of steps the NMC will take in 2018-19 and 2019-20 to put it into practice. These include making more effort to engage with nurses and midwives whose conduct has been called into question in order to sort out issues early on.

It will also update its criteria for holding full hearings, produce new guidance for employers on making referrals and bring in new guidance on context and how this should be taken into account in decision-making.

Cathryn Watters, founder of the NMCWatch group, which campaigns for improvements to FtP for registrants, welcomed the spirit of the proposals but said she had concerns about various aspects including how success would be measured.

Her group is calling for all registrants undergoing FtP to be surveyed to capture their experiences and has said the NMC generally needs to do more to reach out to nurses and midwives who have gone through FtP to inform their plans.

She said it was vital registrants, who can still opt for a full hearing, were given clear information about how hearings in private and on paper only would be conducted in order to make an informed choice.

“Many registrants will agree to holding their case in private in order to ‘get it over with’ but may not understand the implications of this,” she said. “How will registrants be able to put across the merits of their if they are not heard face to face?”

She said it was important registrants were also given clear guidance on the kind of evidence they needed to present to show they had learned from mistakes and had take steps to improve their practice.

Meanwhile, she hoped the regulator’s new “tone of voice” would also apply to communication with nurses and midwives and said the NMC needed to start from a position of neutrality with registrants seen as “innocent” until proved otherwise.

“How will the NMC ensure registrants can trust ‘open and honest’ conversations with them?” she asked. “At the moment they are frightened of being open for fear the information given will be turned against them in their case.”

  • 9 Comments

Readers' comments (9)

  • That taking things into the wider context might be interesting: perhaps a lady who had a sex with her boyfriend in the room of the decased child she was caring for, wouldn't escape with the 3 months supervision, while the guy that protected himself from another slap (the first one broke his glasses) wouldn't be sanctioned for over a year. Sometimes hearing minutes are truly fascinating lecture.

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  • I feel that the real reason for this change is that,
    A- Many nurses feel the NMC is too heavy handed in its judgement of nurses who come before it.
    B- Many nurses feel that the NMC's findings are at least partially political.
    C- The NMC is starting to realise that due to the above two points and other issues that it is in fact, running out of nurses.

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  • never too late! 40,000 shortage needs to be addressed!!

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  • there is a typo in the quote here - it should read "merits of their CASE..."

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  • That's it? That is their idea of making the process fairer? Nursing is an irreparably damaged profession and I am out in just over a week.

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  • So if they're unveiling measures to make ftp fairer that means they don't think it's fair at present. Hell, yeah, don't we know it!

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  • Will believe it when we see.it

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  • It needs to take into consideration the difficult and sometimes hostile environment that nurses and midwives work in staff shortages and unsafe conditions.

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  • Support to move away from culture of blame and denial:
    this is a positive step but how will this be measured to ensure it is happening?
    Will registrants undergoing FtP be surveyed at the end with full transparency to learn about how the process has been conducted? We have asked this of M MCClelland and C. Strickland at previous meetings and they have said they will look into it..
    How will they ensure that the referal is genuine and not vexatious or motivated by an employer or colleague with a grudge?
    How will they ensure that proceedings start on the basis of the registrant being "innocent" and workign forward from that rather than the current system which believes all information given to them at point of refferal and then builds a case to make the accusation hold?

    private meetings
    How will registrants be educated on the pro's and con's of this aspect so they can make an informed decision
    Many registrants will agree to holding the case in private in order to "get it over with" but may not understand the implications of this
    How will registrants be able to put across the merits of their case if they are not heard face to face.
    Will the NMC give clear guidance to the registrant on what information they need from them to conduct their private meeting fairly - eg reflection, evidence of practice / superivsion etc. Or will they, as is currently done, just see it negatively if this information is not presented? Many registrants do not understand what needs to be presented and are not legally represented so have no one to advise them

    Denial of charges
    There is no constructive information on the NMC website about what registrants need to do if they are denying charges, except one or two basic lines. This gives the emplasis that all charges / accusations have merit and makes the registrant feel that they are guilty before they are heard. Many registrants have no concrete evidence to prove their innocence but this does not make them guilty - how will teh NMC ensure fairness and avoid any miscarriages of justice?

    Learning from mistakes
    This is very positive and what we all want. How will teh NMC assist the registrant in demonstrating they have learnt from their mistake. A "speed awareness course" for example that will fulfill soem criteria and help show some learning. How will the NMC proactively support the registrant to remain a safe practitioner?

    Cross departmental learning
    It is very positive that it has been recognised that more closer workign needs to occur between different agencies. If during investigations or hearings the NMC panels establish that a trust has failed eg with documentation, record keeping ,safeguarding - how will they ensure this is flagged to CQC for example to ensure ongoing patient safety issues are not neglected?

    Engagement
    To date there has been no engagement with registrants who have been through FtP to help teh NMC learn from how the process is for those going through it. In the same way as they promise to engage with families how will they do this with registrants?

    Fair process:
    Nothing has been discussed about fair process and equality over the process. For example witnesses for the NMC are assisted with travel, accomodation, loss of earnings etc in order to attend. Witnesses for the registrant have to have this provided by the registrant which often means they can't attend in person. By not attending their credibility can not be tested and it also means that teh case is weighted to teh NMC and not fairly represented to both parties on teh basis of finances. REgistrants can be assisted with costs but many are not aware of this as it is not routinely offered. How will this balance be changed?

    Aspects not related to clinical practice:
    How will this be vetted?
    Many charges are built around potential character flaws of the registrant rather than solid clinical concerns - this has to stop as no one other than psychologists can determine an individual's motivation and mindset for potential future misconduct

    Tone of voice:
    Nothing has been clarified about communication with the registrant
    Multiple letters, often with conflicting or repetative information is sent out - this is confusing and can mean key aspects are missed
    The tone of letters to the registrant is often legally weighted rather than thinking about how it will be recieved - for example keeping a registrant's case "open" incase of future concerns is very biased - when a registrant is found as no case to answer that shoudl be the end to it. If new concerns are found then they should be examined as new concerns and determined on teh weight of the evidence only

    Trust:
    How will the NMC ensure that registrants can trust "open and honest" conversations wtih them- currently they are in fear of how open they are for fear that the information given will be turned against them in their case. How will the NMC ensure the right information is assessed? How will the NMC demonstrate that investigations are starting from a point of neutrality?

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