the FtP process – step 4 of 7
Navigating FtP: 4 stages of FtP hearing
The Nurses Defence Service has produced really useful information below we have added things we have learnt along the way as well to help you.
The Nursing and Midwifery Council (NMC) holds fitness to practice hearings where a nurse has fallen below the standards expected of them – whether as a result of ill health, a lack of competence, or because of misconduct – and the nurse’s fitness to practise appears to be currently impaired. The NMC first investigates allegations against nurses, but not all cases are referred to an NMC hearing.
Read more about NMC Investigations, which precede the NMC hearing process, to understand more about the types of cases that are closed at the NMC investigatory stages.
There is a separate section looking at Interim Orders Panel (IOP) hearings for you to read.
A nurse referred to a fitness to practise hearing can choose whether their case is heard by a Conduct and Competence Committee of the NMC, or be considered at an NMC Meeting.
There are four stages to an NMC fitness to practise hearing (FTP), before the NMC’s Conduct and Competence Committee. The panel must work to statutory rules and in accordance with statutory legislation and case law.
1. The facts stage of the NMC hearing:
The nurse is asked to identify him or herself and state their PIN number. The formal NMC charges (factual allegations) will be read out and the nurse will be invited to admit or deny each one in turn.
The barrister (a lawyer) for the NMC will then give an oral opening summarising the evidence in the case. If there is agreement about the evidence and the nurse has admitted all of the facts, the nurse has an opportunity to clarify any matters of fact (if needs be). Where the nurse denies all or some of the charges, there will be a trial on the facts. Evidence will be admitted. It may be in witness form (oral testimony) or documentary form (called exhibits). The NMC will call its own witnesses of fact and the barrister for the NMC will take the witnesses through their evidence.
For example, if a ward sister and a care assistant were to claim that they witnessed a nurse slapping a resident, they would be called to give evidence against the nurse. The nurse (or their representative ) would then have an opportunity to question the witnesses, to challenge their assertions and recollections, and put their own case for the witnesses to agree with them or not as the case may be. If the nurse were to deny that she slapped the patient, she would not only challenge the witnesses about their recollection of events but the nurse would also put their own version of events to the witnesses, for them to have an opportunity to agree or rebut what the nurse was claiming.
The nurse may instruct a barrister (lawyer) to represent them to put such questions to the witnesses. The NMC panel considering the case would also have an opportunity to ask questions of the witnesses. The nurse would then give evidence, supported by their own barrister (if they have instructed a barrister to act for them) who will take the nurse through their evidence. The barrister for the NMC would then ask questions of the nurse and directly challenge the nurse about their claims. The way the nurse witness answers the questions and their demeanour will be observed by the panel, while the witness gives evidence, and an assessment will be made of the witness’s credibility and honesty.
The panel then has an opportunity to ask questions. The same process applies to witnesses who are subsequently called in support of the nurse, as part of the defence case. The NMC barrister and then the nurse (or their barrister) will then make closing submissions on why the panel should find for a particular side.
The panel then receives legal advice from an independent Legal Assessor (usually a barrister) about the task that they have to undertake in assessing the evidence on the balance or probabilities. The Legal Assessor might give the committee further legal directions, based on the evidence heard and the determinations that need to be made.
The NMC barrister and the respondent nurse (or their barrister) are then given an opportunity to address the panel further on the legal advice that has been received. The NMC panel operates in accordance with rules and statutory law, and certain case law (judge-made law) may also be referred to. Some cases can be very legalistic, while others are less so, depending on the issues and the evidence before the panel, in a particular case. There may therefore in some cases be several hours of legal argument.
If the nurse has denied all of the charges and the NMC panel acquits the nurse, the case will come to an end, and the nurse will leave without any action having been taken against them. This does happen from time to time but will be fact and issue dependent. It is not a common occurrence.
In conviction cases, there is a modified procedure. The nurse admits the conviction and the case moves on to the impairment stage. A criminal conviction is automatically deemed to be misconduct.
2. The NMC Hearing Misconduct Stage:
Where the nurse is found to have acted or omitted to act in the way alleged in the NMC Charges, the panel will go on to determine whether the facts found provided constitute misconduct.
To look at the example given already, the nurse alleged to have slapped a patient, and the nurse is found to have done so – on the balance of probabilities – without any lawful excuse. It would be pretty obvious that the nurse would have fallen well below the standards of conduct expected of them, in such circumstances. The panel would be highly likely to find that the nurse was guilty of misconduct, additionally making specific reference to the section of the NMC Code of Conduct that has been breached.
Before the panel determines whether the nurse is guilty of misconduct the parties, the NMC through its barrister and the nurse (or their barrister) can make submissions as to why the facts that have been found proved do not constitute misconduct. There will be occasions where this leads to a finding in favour of the nurse.
A nurse may be found guilty of misconduct because they have not followed national or local policies, or conventions, have otherwise acted outside a reasonable body of medical/nursing opinion, and, in the process, have breached the NMC Code of Conduct and Professional Standards.
A nurse at the facts stage may have been found to have done only one of the things alleged against her, and she might successfully argue that the finding of a minor error of judgment on one occasion is insufficient for a panel to make a finding of misconduct. If the panel were to agree with that submission, the whole case against the nurse may then fall away at that stage.
A nurse can be charged, alternatively, with a lack of competence. This would also be a matter of judgment for the panel considering the case. The facts would be established in the usual way, on the balance of probabilities, and then the panel would ask themselves whether the evidence demonstrates a lack of competence. If the answer is yes, the case would go onto the fitness to practise stage.
3. Impairment of Fitness to Practise Stage:
Where findings of misconduct are made, the NMC panel must then determine whether the nurse’s fitness to practise is impaired. NMC hearings are therefore often referred to as FTP hearings, because of this test.
Impairment is not an easy concept to define but the code of conduct, local and national protocols and guidelines, as well as public policy, will all inform the panel’s decision. The nurse may call evidence to demonstrate that she is not guilty of misconduct and is not impaired. The nurse might give evidence herself, call witnesses who can vouch for her competence, insight, and steps of remediation.
The panel must also look at future risk of repetition. The nurse or her lawyer, and the NMC’s case presenter also make submissions. The legal assessor again advises on the law as it relates to the stage that has been reached. Misconduct and Impairment are usually determined by the NMC panel at the same time, though the panel must consider misconduct first, and only if they find misconduct do they then go on to consider whether the nurse’s fitness to practise is currently impaired. Not all nurses are found to be impaired. The panel may decide that the nurse was impaired at the time of the incident, but is now not currently impaired. If the nurse has taken appropriate steps to remediate their shortcomings and presents good evidence to the NMC panel that their fitness to practise is not currently impaired, the NMC panel may make a finding that the nurse’s fitness to practise is not currently impaired. In such a situation, the case against the nurse would be formally closed, without any sanction being imposed. The panel might, though, make recommendations.
Public policy significantly influences the decision of the NMC panel at the sanction stage. Where it is in the public interest and it is important to uphold the reputation of the NMC and the profession, impairment is likely to be found even if the nurse has demonstrated self-awareness, insight, learning and remediation. If the nurse has been unwell, in such a way that ill health has contributed to the history of failings, good medical evidence should be provided to the panel.
4. Sanction Stage:
In the event that the NMC panel determines that a nurse’s fitness to practise is currently impaired, the case will move to the Sanction Stage. The NMC panel will determine whether a sanction should be imposed in light of the findings of fact, findings of misconduct, and findings of impairment. The nurse can once again give evidence of insight and learning, and mitigation. The nurse can also call further witness evidence. The nurse must demonstrate that she is at low risk of repeating her mistakes, demonstrate that she is competent, and has developed or is developing insight. The nurse should identify any future learning points and compile a programme or action plan as to how she is going to achieve her aims. She should provide strong evidence of engagement in the process of rehabilitation if there are certain health issues that have caused the nurse to act in the way charged. The barrister for the NMC will make a closing speech and might suggest the sanction that should be imposed. The nurse or her barrister can then reply, making submissions on the sanction that should be imposed in all of the circumstances. The panel can ask questions at any time.
The panel will retire and determine which sanction to impose. This can take many hours so be prepared for a long wait. Once the panel have made its decision the decision needs to be written up and checked, so it is wise to make plans to distract yourself whilst waiting as it can be stressful. When the panel retire to make their decision they will give you an estimated timeframe so you know roughly how long you will have to wait.
They can decide to take No Action, impose a Caution of between one and five years, impose conditions of practice (restrictions) or impose a strike-off order (also called ‘erasure from the register’). The NMC panel, if striking off particularly, must have regard to the NMC’s Sanctions Guidance.
A nurse or midwife who is unhappy with the sanction that has been imposed can appeal via the appropriate High Court, within 28 days of the sanction being handed down. See our appeals section for more information.
The panels on both the NMC Investigating Committee and the NMC Conduct Committee are made up of nurses and lay people who are independently appointed, and who are independent of the NMC itself. The above process is modified for those cases where the nurse’s ill health is a past and ongoing contributory factor, relevant to the alleged wrongdoing. There is also a slightly different, modified procedure when a nurse faces allegations of impairment due to a lack of competence.
NMC hearings will be held in public (except in certain prescribed circumstances, such as when evidence of the nurse’s health is referred to). Applications can be made to an NMC panel to have all or part of an NMC hearing to be held in private. If matters touch on the ill health of a nurse, the application may well be successful. If the nurse is merely embarrassed by the public nature of the proceedings, then that would not amount to a sufficient reason to hold a hearing in private.
Be aware that if the hearing is held in public anyone can observe and attend including journalists – for this reason, you may wish to request a private hearing.
Information is also available on the fitness to practice library section of the NMC website – here is one area of interest to help you prepare for a hearing – the guide to panels