Proceeding with hearings when the nurse or midwife is absent

Reference: CMT-8

Last Updated 12/10/2018

Overview

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There is a difference between criminal proceedings and regulatory proceedings, and as a regulatory body, we do not have the power to enforce attendance at our hearings.

A nurse or midwife is still entitled to be represented, either by a legally qualified person or by someone else.1

If the nurse or midwife is unable to attend, a panel can choose to proceed with the hearing and impose an interim order or sanction in their absence.2

This underpins our aim to protect the public, by dealing with allegations of impaired fitness to practise at the earliest opportunity by making sure that decisions are not unduly delayed due to a deliberate failure to engage in our proceedings.

Starting final hearings when the nurse or midwife doesn’t attend

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When deciding whether to proceed with a final hearing in the nurse or midwife’s absence, the panel must exercise care and caution.

Fairness to the nurse or midwife is a prime consideration.

However, fairness to the regulator and the interest of the public should also be taken in to account.

Because of this, the panel will first consider whether all reasonable efforts have been made to serve the notice of hearing on the nurse or midwife. This should be considered alongside the nurse or midwife’s duty to cooperate with our investigation and provide us with an address for correspondence.

The panel should consider all of the known circumstances, and be guided by the following principles:3

  • the public interest in the expeditious disposal of the case.
  • the inconvenience to any witnesses that have attended or due to attend.
  • whether the nurse or midwife has engaged with the proceedings and their reasons for non-attendance (this should include whether the reason for non-attendance is supported by independent evidence).
  • the unfairness to the nurse or midwife if the proceedings were to continue, for example, they will not have the opportunity to question evidence or provide their own evidence to the panel in person
  • whether it is fair, appropriate and proportionate to proceed in the nurse or midwife’s absence.

If the Panel decides not to proceed in the absence of a nurse or midwife they will consider whether to postpone the hearing.

Interim order hearings where the nurse or midwife doesn’t attend

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When it comes to interim order hearings different issues will apply when deciding whether to proceed in the absence of a nurse or midwife.

This is because, in contrast with final hearings, where a panel makes findings of fact based on the evidence, interim order hearings require panels to conduct an immediate risk assessment.

To proceed in the absence of a nurse or midwife, an interim order panel must be satisfied that all reasonable efforts have been made to serve the nurse or midwife with notice of the hearing.4

If the nurse or midwife has informed us that they do not wish to attend the hearing the panel should proceed with the consideration of the interim order.5

If the nurse or midwife has not attended nor given us any representations, we will generally still ask a panel to consider imposing an interim order.

This is because we have identified risks that show that an order is necessary for the protection of members of the public, or is otherwise in the public interest, or the nurse or midwife’s own interests. Referring a case for interim order consideration as soon as possible makes sure that we are properly fulfilling our legal duty.

When considering whether to proceed in the absence of the nurse or midwife, the panel should consider the nature of the allegation and our primary function of protecting the public and balance this with whether reasonable efforts have been made to serve the notice on the nurse of midwife.

1 Article 31(16) of the Order
2 Rules 8(6) and 21(2)(b) Nursing and Midwifery Council (Fitness to Practise) Rules 2004
3 R. v Jones (No.2) [2002] UKHL 5 and more recently GMC v Adeogba; and GMC v Visvardis [2016] EWCA Civ 162
4 Rule 8(6)(a) of the Nursing and Midwifery Council (Fitness to Practise) Rules 2004 ('the Rules')
5 Rule 8(6)(c) of the Rules

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