Undertakings

Reference: CAS-2c

Last Updated 15/02/2018

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Purpose

Undertakings are measures agreed between us and the nurse or midwife to address problems in the nurse or midwife's practice that pose a current risk to patients. Their purpose is to make sure patients are protected while giving the nurse or midwife an opportunity to work on areas of their clinical practice which cause concern.

Undertakings aim to allow the nurse or midwife to demonstrate that there is no longer a need to restrict their practice, because they no longer present any risk to patients. Undertakings include specific steps the nurse or midwife will be expected to take, within clearly defined time limits, along a pathway back to safe practice.

For this reason, undertakings are a flexible and responsive way of addressing concerns, which will be in place only so long as is necessary. They differ from conditions of practice orders in that they are always agreed, whereas conditions are imposed by the Fitness to Practise Committee. Conditions of practice orders run for fixed time periods, and require a review hearing, usually towards the end of their duration.

Thresholds

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If case examiners find a case to answer because a nurse or midwife acknowledges that one or more areas of their practice (including their health) presents a risk to patients in their care, undertakings may be a suitable way of addressing the regulatory concern.
Undertakings may be recommended in cases which, if they were being considered at a hearing, would involve:

  • lack of competence
  • misconduct (particularly where the conduct related to clinical practice)
  • not having the necessary knowledge of English
  • health


Undertakings are less likely to be capable of addressing the regulatory concern in cases involving:

  • misconduct not involving clinical practice
  • criminal convictions or cautions
  • determinations of impaired fitness to practise by another health or social care regulator

Requirements

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Before case examiners recommend undertakings, they will have satisfied themselves that:

  • our investigation fully explored the regulatory concern
  • the regulatory concern is not so serious as to mean that permanent removal from the register is likely to be necessary
  • the nurse or midwife agrees that the incidents we have concerns about did take place
  • the nurse or midwife accepts that there is a need for measures to address areas of their practice which cause patient risk
  • it is possible to identify a list of proportionate, measurable and workable requirements which will be sufficient to protect patients, judged against the background of the particular case. (If such measures cannot be identified then more restrictive outcomes are likely to be required, which means the case should be referred to the Fitness to Practise Committee.)

Agreeing undertakings and content

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When recommending undertakings, case examiners will consider the undertakings bank, looking at which measures would be sufficient to protect the public and provide a structured approach towards the nurse or midwife returning to safe practice. There may be cases where the measures need to be tailored to take account of particular features of the case, or of the setting in which the nurse or midwife practises.

Undertakings will normally be comprised of both ‘restrictive’ measures, which prevent a nurse or midwife from undertaking a particular activity, and ‘rehabilitative’ steps, which require a nurse or midwife to do something in order to remedy the outstanding regulatory concern. Standard requirements to inform employers and other parties that the nurse or midwife is subject to undertakings are a ‘restrictive’ measure.

The measures included in the undertakings should be specifically focused on addressing the concerns about the nurse or midwife’s practice. Case examiners will consider the guidance on remediation in identifying what steps are required to address the particular concerns in the case they are considering.

It is important that both case examiners and the nurse or midwife have a clear understanding of what the nurse or midwife needs to do in order to comply with the undertakings, which should be plainly expressed. The undertakings should also make clear how the nurse or midwife is expected to demonstrate that they have observed any duties the undertakings impose.

Because undertakings are a pathway back to safe practice, it is important that any ‘rehabilitative’ measures the nurse or midwife is required to complete have clear time limits to show by when the nurse or midwife will be expected to have taken the steps. ‘Restrictive’ measures, such as those which prevent a nurse or midwife from carrying out particular tasks, will not have fixed dates by which they will automatically expire. This is because the purpose of them is to prevent risks from occurring, so they must be in place until case examiners are satisfied, once the nurse or midwife has provided relevant evidence, that they are no longer needed to protect members of the public.

Any undertakings the case examiners recommend as being suitable to deal with the case will be sent to the nurse or midwife, who will then have 28 days to indicate to us whether or not they agree to comply to the recommended undertakings. If the nurse or midwife does not confirm that they are willing to agree the undertakings within the defined time period, the concerns will be referred for a hearing.

This period of 28 days can be extended at our discretion. Relevant factors will be whether any request for more time has been made within the original time period, and the nature of the reason why more time is needed. We recognise that there may be occasions where the nurse or midwife has concerns over whether the detail of the undertakings is workable, and may need to propose amendments to the recommended undertakings. Case examiners will consider whether the amendments can be made while ensuring that the undertakings are sufficient to address the concerns in the case.

Our statement of regulatory concern always accompanies the material we send the nurse or midwife at the end of an investigation. The nurse or midwife will have the opportunity to comment on that statement when they send us their response to the investigation material, before case examiners first consider whether there is a case to answer (and if there is, whether to recommend undertakings). The statement of regulatory concern will form part of the undertakings we publish (unless the concern is about the nurse or midwife's health, or is otherwise sensitive, in which case neither the concern nor any details of the undertakings which could identify a health condition or sensitive information would be published).

In considering any amendments to the undertakings that the nurse or midwife may suggest, case examiners will assess whether the measures contained within the undertakings will, taken together, be sufficient to protect patients while the nurse or midwife is given the opportunity to put concerns right.

We are able to resolve cases by the use of undertakings at any stage until the start of a Fitness to Practise Committee hearing. However, there are only very limited circumstances in which we would exercise this discretion if, when case examiners first recommended undertakings, the nurse or midwife did not respond within the 28 day period, or explicitly rejected them.

Monitoring undertakings

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Undertakings are intended to be a pathway back to safe practice, which require positive and time-limited steps to be taken by the nurse or midwife. We monitor the progress of nurses and midwives who have agreed undertakings with us in a proactive way.

Our monitoring and compliance team will maintain regular contact with the nurse or midwife, and where required, review the nurse or midwife's progress against the undertakings on an ongoing basis. The team considers any material that we receive about the case, and assesses whether the undertakings may need to be varied, can be lifted, or whether the case may need to be sent to the Fitness to Practise Committee for a full hearing because the nurse or midwife appears not to be observing the undertakings. If we receive new information relevant to the undertakings, the team will refer the case to case examiners, who will consider whether one of the above outcomes is necessary.

Lifting undertakings

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If case examiners are satisfied that the nurse or midwife has completed the steps identified in their undertakings, and that on review of their progress no other steps are necessary to deal with the risks that arise out of the original regulatory concerns, they will direct that the undertakings should be lifted and the case will be closed.

Case examiners will only recommend further steps if they are needed to deal with the underlying concerns about the nurse or midwife’s fitness to practise. This could, for example, happen where a nurse or midwife has completed a period of practice under direct supervision, and needs to demonstrate that they are safe to practise by operating under indirect supervision.

Variations

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Variations to the agreed undertakings may be needed for a number of reasons. These may include changes that are needed so that the undertakings can remain workable (for example, if changes in the setting in which the nurse or midwife practises, such as a change in management or supervision arrangements, mean that the current undertakings can no longer be observed).Variations can also be used to deal with minor or technical breaches of undertakings. This is likely to be appropriate where case examiners are satisfied that the nurse or midwife still has insight into the need for regulatory restrictions, and for example, requests further time to complete one or more of the steps identified, in which case the undertakings could be varied by extending the time periods.

It is also open to case examiners to acknowledge that the nurse or midwife has completed the steps that were initially included in their undertakings, but that some further progress is required before they are able to return to safe practice without restriction. One example of this is where the undertakings initially require the nurse or midwife to carry out retraining, such as a preceptorship, and when this is completed, there remains a residual issue in an area of clinical practice related to the original regulatory concern.

If case examiners recommend variations to undertakings, and the nurse or midwife does not agree to them, the case is subject to review by the registrar, who reviews the case examiners’ decision to recommend the original undertakings.

This review takes place in light of the new information that the nurse or midwife no longer agrees with the measures which we now deem necessary to protect patients. If the registrar decides that a new decision is required, they then have all of the available outcomes that were originally open to case examiners.

Breach of undertakings

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If case examiners receive information from the monitoring and compliance team that suggests that the nurse or midwife is in breach of the agreed undertakings, there is a range of options to address it. These are:

  • to restate the requirements of the undertakings to the nurse or midwife
  • write to the nurse or midwife proposing varied undertakings
  • revoke the undertakings and refer the original allegation to the Fitness to Practise Committee.


Our rules give case examiners the power to revoke undertakings where it appears that the nurse or midwife has not observed them. However, there would need to be exceptional circumstances to revoke agreed measures to deal with ongoing patient safety concerns without also referring the matter on to the Fitness to Practise Committee.

If there has been a minor breach of the undertakings, such as late (but substantial or genuinely attempted) compliance with one or more of the requirements, and the nurse or midwife still has insight into the need for restrictions to be in place, case examiners may write to the nurse or midwife, restating that the undertakings are in effect, and need to be complied with. Alternatively, if a variation to the undertakings was requested, for example where the nurse or midwife requests further time to complete one or more of the steps identified, case examiners would have the discretion to approve the variation as the proportionate way of dealing with the breach.

Where the failure to observe undertakings was deliberate, repeated, or of itself created a significant risk to patient safety, it will be more appropriate to refer the allegation to the Fitness to Practise Committee for a hearing.

There may be a need to refer cases to the Fitness to Practise Committee even if the nurse or midwife still has insight into any failings in their practice. This could arise if they have been unable to complete the steps necessary to demonstrate that they have put the concerns right after having been given repeated opportunities or extensions of time, and there appears no real prospect of the requirements being complied with.

Referral of the original allegation to the Fitness to Practise Committee would generally involve charges noting that the nurse or midwife had accepted the original regulatory concern, and alleging the breach of the undertakings. That breach would usually be the central part of our case as to why the nurse or midwife's fitness to practise is currently impaired.

Cases involving failures to observe undertakings will usually involve putting into evidence the fact that the nurse or midwife accepted our statement of regulatory concern.