Proposed changes to fitness to practise legislation

Changes will help us become more efficient and proportionate

The Government is proposing important changes to our fitness to practise legislation which will enable us to become a more efficient and proportionate regulator.

Our functions are set out in the Nursing and Midwifery Order 2001 (the Order). The Order is supported by a series of rules which detail how we will carry out our functions.

On 21 April 2016 the Department of Health consulted on proposed changes to the Order.

The proposed changes include:

1. Warnings, undertakings and advice

Case examiners decide if there is a case to answer at the end of an investigation into an allegation about a nurse or midwife’s fitness to practise. Currently, where a case examiner finds there is a case to answer, the case must progress to a hearing. Proposed changes will give case examiners expanded powers to give advice, issue warnings and recommend undertakings. This means we will be able to conclude less serious cases without the need to progress to a full hearing.

Warnings

This would involve a public marking (on our register) of serious concerns about a nurse or midwife without the need for a hearing. Warnings will only be appropriate where the nurse or midwife shows insight, remediation, and there is no risk to patients. Warnings will be published for 12 months on the nurse or midwife’s online entry on our register, including a short summary of the regulatory concern.

Undertakings

This would involve putting in place agreed measures to address areas of practice which cause a current clinical risk to patients. Undertakings would include steps the nurse or midwife should take within defined time periods to demonstrate remediation. Where undertakings are given, they would be published against the nurse or midwife’s entry on our register in all cases, with a brief summary of the regulatory concern (except in cases relating to health).

Advice

This would involve the NMC giving private guidance to a nurse or midwife to help them keep their practice safe following a minor breach of the Code. It would only be suitable where the concern is not serious enough to support an allegation of impaired fitness to practise. This would happen only if a nurse or midwife acknowledges the concern. This advice would not have to be made public at any point.

2. Reviewing case examiner decisions

Our current power to review case examiner decisions that there is no case to answer would be expanded. We would be able to review decisions by case examiners to issue warnings or give advice, and decisions that undertakings should no longer apply.

3. A single fitness to practise committee

There are currently two final practice committees – the Conduct and Competence Committee and the Health Committee. However, having two committees can cause delays and additional hearing days. Proposed changes will merge them into a single Fitness to Practise Committee.

4. Location of hearings

Currently, all preliminary meetings and hearings where the nurse of midwife is entitled to be present must be held in the UK country of the nurse or midwife’s address as it appears on the NMC’s register.

This provision can sometimes cause inconvenience and unnecessary extra costs, as registrants have told us in the past. We propose to remove this rule to give us flexibility to schedule hearings in the most convenient and cost effective location for all those involved in the hearing.

5. Interim order reviews

Interim orders temporarily suspend or restrict the nurse or midwife’s practice while their case is being investigated. Currently, an interim order is reviewed six months after it has been enforced. It is then reviewed again at three-month intervals for all subsequent reviews. Proposed changes would mean that all interim order reviews are held at six month intervals.

6. Interim order appeals

A nurse or midwife can apply to the High Court or Court of Session for their interim order to be revoked or varied, and we can apply to the courts to extend interim orders which are about to expire.

When either of these situations happens, the Court has to decide whether the interim order needs to remain in place. However the Court does not currently have the power to replace one kind of order with another.

For example, this could mean that, if the Court felt that a restriction was needed to protect the public, but that the interim suspension order in place was disproportionate, the Court would not be able to put a different order in place. Equally, if the Court was assessing a conditions of practice order but felt that the nurse or midwife’s practice presented such a risk that a suspension order was needed immediately, the Court would have no power to impose this. 

The proposed changes would give the courts these powers.

7. Substantive order reviews

Currently, practice committee panels are required to review every conditions of practice or suspension order they impose. Proposed changes would allow practice committee panels to direct whether or not there is a need to review an order. This would help in cases where the nurse or midwife’s practice does not present a current risk of harm to the public, but the suspension is otherwise necessary to uphold standards of professional conduct.

8. Notice requirements

Currently, the NMC is required to notify specified persons, including devolved governments, when any allegation referred for a hearing. We believe this requirement is unnecessary, as there is yet no finding of impairment and therefore there are no public protection implications. Proposed changes would remove this requirement.

The NMC consulted on proposed changes to its Rules which detail how we will carry out our functions. The consultation is now closed and we are analysing the feedback.