the FtP process
I’ve been referred to the NMC – Help
Don’t panic – you are not alone!
Remember to breathe.
First of all, The Midwives Haven has put some useful information on their website – have a look.
1. Learn about the FtP process
Read the NMC FtP pages, especially the guide to the various stages: Understanding Fitness to Practise – The Nursing and Midwifery Council. Each stage of the process has a section in the NMC’s Fitness to practise library where you can find out more detail: Fitness to practise library – The Nursing and Midwifery Council.
2. Link to support networks and peer expertise
If you are a midwife please contact The Midwives Haven – we work closely with them.
You can also join Midwives NMC Defence Research Group.
This group was set up in 2019 to help independent midwives referred to the NMC (IMs are referred disproportionally) but also has a number of employed midwives in the group. It helps midwives find the research and evidence they need to defend themselves, especially with regard to supporting women to make autonomous decisions surrounding care in childbirth.
Are you a whistleblower? Have you raised concerns in the workplace?
Whistleblowers UK is working hard to change the conversation around raising concerns in the workplace, challenging the restrictions of PIDA and campaigning strongly to establish the Office for the Whistleblower. Unlike the Freedom to Speak up Campaign, this will provide truly neutral advice, support and advocacy.
There is also an independent confidential careline available, paid for by registrants fees through the NMC but run by CiC – CiCwellbeing.com – to give support and practical help and advice to you during the FtP process.
“The careline counsellors are experienced working with sensitive and personal information. They can also signpost you towards specialist organisations to help with specific issues.”
You can contact the CiC Careline free on 0800 587 7396
3. Tell your employer
When you are referred to the NMC it is easy to bury your head in the sand and hope it all disappears – this is a natural reaction to any stressful situation. However, as part of your professional conduct, you are expected to be open and honest at all times. We reckon that this includes telling your employer if you have been referred.
Yes, you will be scared and worried – what if I get sacked? what will they think of me? people will judge me; these are all normal reactions. Generally, people will be supportive and you need a supportive employer in order to cope with the process.
The NMC will engage with your employer when a referral is received and they will also contact previous employers. However, unless you have an interim order issued against your practice while the NMC investigates the complaint, you are not obliged to tell your employer that you have been referred. Only you can decide, but we would advocate being open and honest. Tell them; if they aren’t supportive then do you really want to be working for them anyway?
4. Don’t ignore it
The NMC should update you every 6 weeks on your case progression. This is a relatively new approach by them so if this isn’t occurring please remind them politely and ensure they copy you and your legal representative into the updates. It’s easy to hide away and ignore the referral as a way of coping. The reality is that once referred it will not go away until the conclusion and so the more you prepare and engage the greater the potential for a positive outcome.
However, the process is not quick and even if closed down in the early stages this can take many weeks or months. Use this time to think about the alleged incident – write an initial reflection for your own records. It’s interesting to do this and then later on in the process look back at it to see how your opinion may have changed, or help you remember key aspects. If you are still at the employer where the incidents occurred gather testimonials from colleagues on your current practice. Ensure you are up to date on your mandatory training and, if not, update yourself. Keep all records of attendance and certificates in your portfolio – it can be difficult to access them later.
5. Do your research & gather evidence
Treat the process as professionally as you would planning care for a patient or client. This is your career and your livelihood. You have trained long and hard to get here – give this aspect as much time and energy as you have to your career to date. Being referred means that one day you may have to give evidence about what you did in connection with the event(s) leading to your being referred. So you have to remember as much as you can about what you did or did not do, the names of colleagues, dates and times and other material details about the care you have given or which it was claimed you did not give and write it down as your confidential record. If you haven’t already done so, start your own diary. You’ll need at least to record all communications, meetings and events – personnel, dates and times, and any verbal communication. You also need to record any meetings you had prior to, and which led to your being referred.
File all emails and letters carefully in date order (oldest at the front, most recent at the back), take screenshots of any texts and back them up to your personal computer, you’ll need at least one hard copy print of each (mobile phones have a habit of going on the blink just when you want to retrieve something). In our experience, being able to produce evidence about the process and who said what and when can be important later on. Follow up telephone conversations with an email to confirm any agreements reached with the NMC or disagreements about what has been said.
When you send an email, set a “delivery receipt” and a “read receipt” on it so that you know it has reached its destination and not been ignored. You should also save to drive any delivery and read receipts for important emails you send. Mark anything confidential as “CONFIDENTIAL” in the subject line. These things can help you stay a little in charge of the time frame and conduct of the process.
Make a note of all the documents you may need to address the allegations made against you and start collecting them together in a separate electronic file and a hard copy “evidence” ring binder, again in strict date order, oldest at the front. This can help you and your representative to identify gaps in the documentation which you still need to get hold of.
Unlike in internal disciplinary procedures there’s nothing to stop you trying to contact witnesses if you have their contact details and believe they can help your case; many may say they cannot help but sometimes colleagues may be willing to speak up for you, and sometimes patients may have complaints about matters of which you have been held responsible by the employer but the patient’s complaint was not directed at you.
Data Protection Act 2018, Schedule 2, Para 5
Often we are scared to gather data that might assist our case for fear of breaching GDPR guidance, however, you can still do this if you ensure you are the gatekeeper of the information and you do not breach GDPR guidance when storing it. If the information you gather is related to you, you can collect it, e.g. emails informing management of concerns, email correspondence with HR, Datix and learning records. As long as you redact any patient-identifiable information you can keep a record of this to assist you defend your case.
The listed GDPR provisions do not apply to personal data where disclosure of the data:
- is necessary for the purpose of, or in connection with, legal proceedings (including prospective legal proceedings),
- is necessary for the purpose of obtaining legal advice, or
- is otherwise necessary for the purposes of establishing, exercising or defending legal rights, to the extent that the application of those provisions would prevent the controller from making the disclosure.
Freedom of Information requests (FOIs) and Subject Access Requests (SARs)
It will aid you greatly if you are able to scan, photocopy and print documents (such copying for the purpose of legal proceedings [and whistleblowing] is expressly permitted) and the ownership of or access to a good printer can prove invaluable and reduce stress at key times.
6. Do I need legal representation?
If you were a full member at the time of an incident giving rise to the referral, your union will, in most cases, offer you legal advice and representation.
Advice & Tips on legal representation
A note of caution – unions ask registrants they are representing to sign to agree that they will only seek advice from the union or union-appointed lawyer. If they believe you are seeking advice from anyone else, they reserve the right to cease to represent you. This means that peer support groups cannot give you legal advice, however, we can give you support and information. It also makes it difficult for you to seek a second legal opinion which can only be given by a legally qualified person.
For this reason, you are strongly advised to keep all other sources of advice under the radar and NOT to discuss them at all with a union representative or your lawyer. Likewise, always introduce those of us who may accompany you to a meeting or hearing as a ‘supporter’. The union stance, as above, suggests that it is they, not you, who instructs the lawyer. This is incorrect – the lawyer is there to represent YOU and it is YOU who needs to instruct her or him. This means that after considering the legal advice you are given, either confirm you agree with it or, if you do not agree with it, you state clearly what you would prefer to happen. Follow any verbal discussion with an email to confirm mutual understanding of the position. It is very important that you do not allow the process to take a course that you are unhappy with, or that your instructions be disregarded. You may end up disappointed about how your case was conducted yet have little comeback unless you can show that your instructions were disregarded.
The Nurses Defence Service has a lot of experience in regulatory law as do Kings View Barristers – read this article about their latest case.
We are piloting a program at NMCWatch to provide legal representation alongside our Buddy Scheme to mentor you through the process – email us at firstname.lastname@example.org for more information.
This is possible and some have done it successfully, having either dismissed or been without union representation. However, it is hard and when stressed it is difficult to have the detachment from your own case that you need in order to argue against the legal representation of the NMC.
You are allowed to have a McKenzie Friend at any civil hearing which includes regulation procedures. However, the NMC does not recognise the role of the McKenzie Friend and so it is up to the panel to decide if they will allow one to attend with you or not.
You can have a pro bono legal adviser (if you can find one) to accompany you and assist you both at the NMC and in the High Court and at any appeal.
The NMC has produced some guidance on attending when not represented and you can read it here. In this guidance, there is useful information about how the process will run during a hearing and who will be in attendance.
You may find this Advice Now guide helpful – it is written for people representing themselves in the court system but a lot of it is entirely relevant for self-representation at NMC hearings: A survival guide to going to court when the other side has a lawyer and you don’t | Advicenow.