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How case examiners decide there is a case to answer

Reference: CAS-1

Last Updated 31/08/2018

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 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

Nurses and midwives who pose no risk to patients will only have a case to answer about impaired fitness to practise if we need to take action to maintain public confidence or uphold professional standards.

To help case examiners make decisions about these issues, it’s important we say that it’s a high threshold which means:

  • the case was about clinical incidents so serious that they cannot be remedied (which could undermine public confidence in nurses or midwives), or
  • the case involves fundamental concerns about the nurse or midwife’s trustworthiness as a registered professional (meaning professional standards may need to be upheld by the Fitness to Practise Committee).

The threshold for clinical cases is based on the fact that we aren't here to punish people for past events. It refers to failings that were so serious that they cannot be put right.

The threshold for non-clinical cases is about serious breaches of professional standards. Where the conduct is related to professional practice, it involves actions like dishonesty, bullying and harassment. In a nurse or midwife's private life, examples would be convictions that relate to specified offences or result in custodial sentences.

We need to make sure that only the most serious cases go through to the Fitness to Practise Committee at the end of an investigation.

To make sure we are proportionate, case examiners won’t send cases to the Committee if:

  • there’s no risk to patients or members of the public
  • the case is about a past clinical concern that has been remedied
  • the concerns do not fundamentally affect the trustworthiness of the nurse or midwife as a registered professional.

However, case examiners will refer cases to the Committee if the nurse or midwife may need to be removed from our register, either for a short time or permanently.

Case examiners should usually consider if issuing a warning at this stage would be enough to protect public confidence in nurses and midwives, or to uphold professional standards.

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