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Determining seriousness at FtP: a legal view

Apr 19, 2021 | Fitness to Practice, Opinion | 0 comments

Barrister Stephen McCaffery has shared this blog with us about the FtP process.
We hope you find this one useful.
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In fitness to practise proceedings, the seriousness of a case is an important consideration which informs various stages of the regulatory processes for nurses and midwives. Generally speaking, the seriousness of a case will influence the speed of the investigation, impact on consideration of interim steps and lead to more severe outcomes.
In this article, I will look at how the Nursing and Midwifery Council (NMC) determine seriousness in fitness to practise proceedings and decisions.
At a very basic level, the NMC will undertake a risk assessment to determine “what risks are likely to arise if the nurse, midwife or nursing associates doesn’t remedy or put this concern right.” This risk assessment can be divided into three distinct parts to determine the seriousness of a NMC fitness to practise case:
  • Serious concerns which are more difficult to put right
  • Serious concerns which could result in harm to patients if not put right
  • Serious concerns based on public confidence or professional standards

Serious concerns which are more difficult to put right

The NMC will consider a case as serious where remedial action is not easy. Unless a nurse, midwife or nursing associate’s practice is (or can be) improved, there is a residual risk of harm to patients and the profession’s reputation.
In some specific circumstances, a case will be referred to the NMC’s Fitness to Practise Committee because the nature of the circumstances outlined below is not easily remedied:
  1. breaching the professional duty of candour to be open and honest when things go wrong
  2. sexual assault, relationships with patients in breach of guidance on clear sexual boundaries, and accessing, viewing, or other involvement in child pornography
  3. deliberately causing harm to patients
  4. deliberately using false qualifications or giving a false picture of employment history which hides clinical incidents in the past, not telling employers that their right to practise has been restricted or suspended, practising or trying to practise in breach of restrictions or suspension imposed by us
  5. exploiting patients or abusing the position of a registered nurse, midwife or nursing associate for financial or personal gain
  6. being directly responsible (such as through management of a service or setting) for exposing patients or service users to harm or neglect

Serious concerns which could result in harm to patients if not put right

The NMC will undertake a review of the evidence before it to assess the risk associated to nurse, midwife or nursing associate’s conduct or failings in the past, and what harm did or could have happened to patients because of those failings.
An important aspect of this assessment of the evidence includes an assess of “how likely the nurse, midwife or nursing associate is to repeat similar conduct or failings in the future, and if they do, if it is likely that patients would come to harm, and in what way.”
The criteria against which this assessment of the evidence is measured is, more often than not, based on a serious departure from standards such as the NMC’s Code.

Serious concerns based on public confidence or professional standards

The seriousness of a case does not always need to relate to patient safety. Professional standards and public confidence in nurses and midwives are also a relevant NMC consideration in fitness to practise cases.
The NMC says “This means we may need to take action even if the nurse, midwife or nursing associate has shown that they have put serious clinical failings right, if the past incidents themselves were so serious they could affect the public’s trust in nurses, midwives and nursing associates.”

Engagement and Remediation

Throughout the assessment by the NMC on the seriousness of a case, there is opportunity for nurses and midwives to influence the outcome of the investigation.
The NMC’s own guidance repeatedly refers to two important things:
  1. Remediation – “When our decision makers are looking at overall fitness to practise, they’ll always consider what the nurse, midwife or nursing associate has done to remediate the concerns.” This means that it is important for a nurse or midwife to reflect on what has gone wrong and what is necessary to remedy the mistake. It is equally important to be honest and open about mistakes.
  2. Engagement – A further consideration is also whether the nurse of midwife has engaged in the process. The NMC’s guidance says: “…if we don’t hear from the nurse, midwife or nursing associate we will usually focus on preparing the case for the Fitness to Practise Committee at the earliest possible opportunity.”
  3. This clearly indicates that failure to engage in the process is likely to lead to poorer outcomes in fitness to practise proceedings.

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