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How case examiners decide there is a case to answer

Reference: CAS-1

Last Updated 10/01/2020

What cases examiners need to consider

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Once our investigations team has completed their investigation into the concerns about a nurse or midwife, our case examiners decide whether or not a nurse or a midwife has a case to answer. They also decide what happens to the case. For example, if they decide the nurse or midwife has no case to answer, case examiners can still issue a warning, or give advice.

They can recommend that we need to do further investigation before they can decide whether or not there is a case to answer.

In deciding whether there’s a case to answer or not, case examiners need to consider whether there’s a realistic possibility that the Fitness to Practise Committee would decide, using the evidence we’ve gathered so far, that:

  • the incidents in the case did happen, or that the issues (such as a health condition) are still present
  • the nurse or midwife’s fitness to practise is currently impaired.

Case examiners do not decide whether the case against the nurse or midwife is proved, whether or not the incidents in the case happened, or whether or not the nurse or midwife is fit to practise. These decisions should only be taken by the Fitness to Practise Committee.

Considering if facts are capable of being proved

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Case examiners have to decide if there’s enough evidence to make it a realistic possibility that the Fitness to Practise Committee would decide that the incidents or issues in the case did happen.

When making their decision, case examiners will carefully look at all of the relevant information and evidence collected so far, along with anything the nurse or midwife has told us about the facts of what happened, and any evidence they’ve given us.

At this stage, we’ll usually have shared the nurse or midwife’s comments about the issues with the people involved, and given them a chance to respond, so they’ll also look at any comments from the patients, families or loved ones, or members of the public involved in the case.

If our concerns about a nurse or midwife’s fitness to practise are about more than one area of practice, or more than one incident or issue, case examiners will consider the information and evidence about each incident or issue separately.

However, they won't always need to comment on each individual piece of evidence about each separate issue in their decision, because the case to answer decision is about our concerns about the nurse or midwife’s fitness to practise as a whole, rather than individual factual scenarios.

It isn’t the case examiners’ role to make final decisions about whether the incidents or issues in the case did or didn’t happen. They can’t test the evidence and they don’t decide whose evidence they would choose if there is a disagreement between two witnesses. However, they look carefully at the overall weight, or impression, of the evidence as a whole.

If they decide that there isn’t enough evidence to make it a realistic possibility that the Fitness to Practise Committee would decide that the incidents or issues did happen, they won’t find a case to answer.

Considering whether the nurse or midwife’s fitness to practise may be currently impaired

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Case examiners have to consider whether there’s a realistic possibility that the Fitness to Practise Committee would decide that the nurse or midwife’s fitness to practise is currently impaired.

When making their decision, case examiners ask themselves two questions.

  • Is the nurse or midwife currently a risk to the health, safety or wellbeing of the public, meaning their practice needs to be restricted in some way?
  • If not, is it a realistic possibility that the Fitness to Practise Committee would need to take restrictive action to promote public confidence or professional standards for nurses and midwives?

How case examiners assess risk to patients or members of the public

Case examiners will look at how much risk of harm to patients was caused by the nurse or midwife in the past. They’ll also ask how serious the possible harm was, and whether there would be similar risks if the incidents or issues happened again.

Case examiners will consider our guidance on remediation and insight when deciding whether there’s a realistic possibility of the issues or incidents happening again. Important questions to ask in this case include:

  • will it be easy for the nurse or midwife to remedy the concerns that led to their fitness to practise concerns?
  • how much insight have they shown?
  • what steps have they taken to remedy the failings?
  • what is the risk of the failings happening again?

We should try to avoid sending cases to the Fitness to Practise Committee if the nurse or midwife accepts our concerns, and they can be remedied.

Where there’s no dispute about the facts, we think the best way of dealing with cases about clinical incidents, or areas of practice that cause risk, is usually for the nurse or midwife to accept the concerns in the case and look at how this can be remedied.

Case examiners can recommend undertakings for us to agree with the nurse or midwife which should address the problems raised in their practice.

How case examiners approach public confidence and professional standards

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We need to make sure that only the most serious cases that haven’t been remedied go through to the Fitness to Practise Committee at the end of an investigation. If a nurse or midwife poses no risk to the safe care of patients, they will only have a case to answer if there may be a need for the Committee to take restrictive regulatory action to promote and maintain professional standards, or public confidence in nurses and midwives.

This means case examiners won’t send cases where there’s no risk to patients or service users to the Committee unless the nurse or midwife’s right to practise may need to be restricted (including temporary or permanent removal from the register) because their past conduct raises fundamental concerns about their trustworthiness as a registered professional.

What do cases that may need restrictive action look like?

It will be more difficult to remedy concerns about past clinical incidents and there may be a need for restrictive action, if the evidence about the incident shows there’s an underlying concern about the nurse or midwife’s attitude towards people in their care. We explain more about what this might look like in our seriousness guidance.

Restrictive action may also be needed to promote and maintain public confidence or professional standards where there is a concern about professionalism, which could include, among other things, dishonesty, bullying or harassment.

Away from work, concerns about professionalism could also follow if the nurse or midwife has been convicted of a specified offence, or received a sentence of imprisonment.

The value of reflection and insight

When making decisions about whether there is a case to answer where the concerns may be difficult to remedy, case examiners pay close attention to our guidance on remediation.

They take into account the quality of the nurse or midwife’s reflection, the steps they have taken to try and remedy the concerns, and what the evidence tells them about how likely they would be to repeat the conduct.

No case to answer and warnings

Case examiners may decide that the nurse or midwife does not have a case to answer where there is a serious concern that has the potential to impair their fitness to practise but there is no realistic prospect of such a finding because of the quality of their reflection and insight.

We explain when case examiners may issue a warning to the nurse or midwife after they’ve decided there’s no case to answer in our guidance on warnings.

The guidance in our library, needs to be read alongside our NMC Guidance during the Covid-19 emergency period. We have new rules that are in force during the period of  the coronavirus emergency that are relevant to how it applies.

Want to download and print whole sections of this FtP library? Visit the downloads page.