In this guide
If we receive new concerns about a nurse or midwife within three years of a previous decision that they had no case to answer, the case examiners can take the original concerns (which led to the closed case) into account when they consider the new case. The case examiners can also refer both the closed case, and the new case, to the Fitness to Practise Committee.1
Whether or not case examiners will consider the closed case as part of their case to answer decision, and whether they will refer it on to the Fitness to Practise Committee will depend on:
- whether the concerns in the new case are similar to the concerns in the closed case
- whether the facts of the closed case were capable of being proved, and
- why the case examiners originally decided there was no case to answer in the closed case.
Similar concernsBack to top
The case examiners are more likely to look at the concerns in a closed case if those concerns are similar to those raised in the new case. Similar concerns could indicate a pattern of conduct or practice that could cause harm to patients or undermine public confidence in the professions.
Was it possible to prove the facts of the closed case?Back to top
Generally, it will not be fair for case examiners to consider a closed case if it was closed because there was not enough evidence that the incidents we investigated actually happened. The fact that there is a new, similar concern about the nurse or midwife’s conduct or practice will generally not have any effect on the strength of evidence in the closed case.
Cases closed because of current fitness to practiseBack to top
The case examiners are more likely to take the closed case into account as part of their decision making in the new case if they previously found no case to answer because, at that time, there was no realistic prospect that the nurse or midwife’s fitness to practise would be found to be currently impaired.
This is because as part of the case to answer decision, case examiners will look at the risk of concerns reoccurring. If it seems that similar concerns have reoccurred within a three years of a previously closed case, case examiners will be unlikely to decide that there is a low or acceptable risk of the concerns being repeated. This consideration will be particularly important if the closed case was based on what seemed, at the time, to have been an isolated incident.
Referring previously closed cases to the Fitness to Practise CommitteeBack to top
If case examiners decide to take the closed case into account when considering the new case, and decide that the nurse or midwife has a case to answer, they next decide whether to recommend undertakings, or refer the case to the Fitness to Practise Committee.
If the overall risk of harm the nurse or midwife presents can be addressed by undertakings in the new case, then this outcome is likely be appropriate.
If the risk of harm to patients, public confidence in the professions, or proper standards and conduct, means that the appropriate outcome is to refer the new case to the Fitness to Practise Committee, then case examiners can also refer the closed case to the Fitness to Practise Committee at the same time.
It will generally be reasonable to consider the concerns in the closed case together with the concerns in the new case if they raise similar issues. The Fitness to Practise Committee will be best able to assess the risk the nurse or midwife presents if they are given more information that is relevant to the concerns about the nurse or midwife’s practice.
When case examiners are deciding whether or not to refer the previously closed case to the Fitness to Practise Committee, their decision relates only to whether or not they should refer it. They are not reassessing the evidence, or making a second case to answer decision.
There will sometimes be cases where it is clear to case examiners that although there was previously a case to answer on the closed case, there are now in difficulties in the state of the evidence which would prevent us from presenting that evidence to the Fitness to Practise Committee. In cases like this, then they can decide not to refer the closed case to the Committee.
1 Rule 7 of the Nursing and Midwifery Council (Fitness to Practise) Rules 2004
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.
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