As a result of the NMC’s revised guidance, nurses and midwives may be at greater risk of a referral to the Interim Orders Panel of the NMC
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NMC Guidance 19 August 2011
Richard Nelson LLP have analysed NMC guidance revised on 19th August 2011. A summary of this guidance and what we can do to assist is set out below.
On 19th August 2011, the NMC issued a revision of its advice and information for employers, reminding employers to make referrals to the NMC as quickly as possible when they believe that the public may be at risk.
The NMC revised the advice to encourage employers to refer nurses at an early stage, before internal investigations have been carried out. This guidance will allow the NMC to consider issuing an interim order whilst both the internal and the NMC investigations are ongoing.
In addition, the revised guidance allows cases to be referred back to the employer to be dealt with internally where the employer can conduct a local investigation in a managed environment.
What is an IOP?
NMC committees all have the power to impose an interim order of either conditions or suspension on a Registrant’s registration, whilst a case is being investigated and awaiting a final decision as to whether or not a referral to a Conduct and Competence Committee hearing is necessary.
For an interim order to be made, a panel must hold a hearing so that the nurse or midwife can attend, with their representative, to make submissions about the necessity for any interim order. Panels can impose interim orders for up to 18 months; the initial order must be reviewed after six months and any subsequent reviews every following three months.
If the NMC’s investigation is not concluded within the 18 month period, the NMC can apply to the High Court in England (or equivalent court in the other countries of the UK) for an extension. The courts can extend an interim order for up to one year.
Figures published in the NMC’s Fitness to Practise Annual Report 2010 – 2011 show that around 670,000 nurses and midwives were registered with the NMC.
Of this 670,000, around 4,020 were referred to the NMC. Not all of these Registrants were referred by their employers as referrals to the NMC can be made by anyone.
Of the 4,020 Registrants referred to the NMC, around 2,010 cases were fully investigated by the NMC’s Fitness to Practise Directorate, with 670 of these Registrants having a sanction imposed on their registration.
This means that 0.1% of the total number of Registrants had sanctions imposed on their registration by the NMC in 2010 – 2011. Whilst this figure is low, this percentage is undoubtedly on the increase due to a combination of the following factors:
- The trend in statistics from the NMC and other healthcare regulators shows an increase in referrals, Interim Order Panel hearings and Fitness to Practise hearings over the course of the last few years. According to the NMC’s Annual Fitness to Practise Report, “During 2010 – 2011, the NMC received an unprecedented number of new cases, which suggests increasing confidence on the part of the public, employers, and others to refer cases to us.” Referrals are therefore set to increase in an ever more litigious society.
- The NMC’s revised guidance actively encourages employers to refer Registrants to the NMC at an earlier stage. This will result in an increase in NMC Interim Orders Panel hearings in cases where previously, internal investigations may have been carried out without any action being taken against the Registrant.
- The revised guidance published by the NMC is a public document and may therefore lead to an increase in the referral of Registrants by members of the public and others.
What is “serious”?
The NMC Director of Fitness to Practise, Jackie Smith, states that employers should refer a Registrant to the NMC if “they believe that the public’s health and wellbeing is at immediate and serious risk.”
This poses an immediate problem. What is the definition of “serious risk” to the public? This is a subjective test in that what may be “serious” to one employer, may not be “serious” to another.
The decision as to what constitutes “serious” may depend on a number factors, as follows:
- The circumstances of the case
- The length of employment service
- The relationship between employer and registrant
- Any previous internal conduct issues
The subjectivity of any such referral to the NMC may result in unnecessary referrals and unnecessary Interim Orders Panel hearings.
Many Registrants are members of defence organisations such as the Royal College of Nursing or UNISON.
Increasing litigation against healthcare professionals in recent years has affected the amount of funding available to members of these organisations when they require assistance. This has led to defence unions exercising their discretion not to assist members.
The NMC’s revised guidance will increase pressure on defence unions in relation to funding and this in turn, may lead to an increase in nurses and midwives finding themselves without representation during internal/NMC investigations and hearings.
Effect on the nursing profession
In summary, as a result of the NMC’s revised guidance, nurses and midwives, with or without Union membership, may be at greater risk of a referral to the Interim Orders Panel of the NMC.
If this happens, the nurse or midwife can either choose not to attend the Interim Orders Panel hearing or can attend to explain their position. If the nurse or midwife chooses to attend, he/she can choose to attend alone or with legal representation. This can be costly, particularly when defence organisations are increasingly withdrawing assistance.
What can we do to help?
Everyone knows that legal fees can be expensive. However, would you be confident representing yourself in front of your employer or the NMC? If the answer is “no”, then we can help you, even when your defence union has declined to assist you.
Whilst many nurses and midwives are fortunate enough to be members of a defence union such as the Royal College of Nursing or UNISON, the reality of the situation is that some are not, or that the problem with which they need assistance falls outside the benefits of their membership.
We can help to fill that gap by providing prompt and effective guidance and professional advice to any nurse or midwife who finds themselves without the appropriate assistance.
Some nurses/midwives under investigation instruct solicitors privately, some of whom may not have the appropriate skills and experience in this area of the
law. Alternatively, some nurses and midwives represent themselves, sometimes out of a belief that other forms of assistance are not available. Nurses and midwives in this position find the service offered by MedicAssistanceScheme to be timely and invaluable.
Operated by Richard Nelson LLP, with the benefit of a panel of expert lawyers and counsel to draw upon, the MedicAssistanceScheme provides comprehensive regulatory guidance for healthcare professionals. In this way the scheme can ensure that you are provided with the advice and guidance you need in what are likely to be extremely difficult times.
MedicAssistanceScheme offers all healthcare professionals who call its helpline with access to up to one hour’s preliminary “diagnostic” guidance free of charge. You can be assured, therefore, that when you call our helpline, you will receive a realistic assessment of your situation and sensible advice.
We understand the financial difficulties faced by nurses and midwives under investigation, with the threat of an interim order on their registration which may limit their ability to work. We therefore strive to offer the best funding package for each particular case.
There is a call-back request service from the main website in which you can fill in your details and a request a call back to discuss your case further or alternatively contact us direct on 0161 880 0040 or by email at email@example.com.
For further information and advice, visit us at www.medicassistancescheme.co.uk and follow us on Twitter @MedAssistScheme. Don’t suffer in silence!
1. Nursing and Midwifery Council: Annual Fitness to Practise Report 2010 - 2011