When should a hearing be cancelled?

Reference: HEA-9a

Last Updated 28/07/2017

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Overview

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A decision to cancel a hearing should only be made when it is in the public interest to do so and where there is no public interest in a case proceeding to a hearing. There are three circumstances where its use may be appropriate.

  • Where the nurse or midwife’s registration would have lapsed but for the fitness to practise proceedings, they do not intend to practise in the future, and there is no public interest in pursuing the regulatory concern.
  • If, in a serious case, evidence is not available to prove the factual charges but could be available in the future.
  • When there is some other compelling reason for not holding a hearing, for example, severe ill health of the nurse or midwife.

Allowing a nurse or midwife’s registration to lapse

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A nurse or midwife’s registration cannot lapse while they are subject to fitness to practise proceedings. In some cases it is only the existence of the allegations that keeps the nurse or midwife on the register. In these cases, if the hearing is cancelled, the registration will automatically lapse. The nurse or midwife will not be able to practise and poses no risk to public protection.

In such cases it is important to be satisfied that the nurse or midwife will not apply for readmission to the register once the hearing has been cancelled. Therefore, before the preliminary meeting, they must sign a declaration stating that they will not practise as a nurse or midwife in the future. This declaration should be supported by evidence. This could include evidence of retirement or ill-health.

Another essential requirement is that there is no public interest in pursuing the allegations to a conclusion. This is important as, when a nurse or midwife is allowed to lapse their registration, there will be no public record of the fitness to practise allegation. It follows that it will not be appropriate to cancel a hearing where the absence of a public marker against a nurse or midwife could give rise to a risk of harm to the public. Relevant factors would be:

  • Whether the allegations have been considered in other proceedings, for example by another regulator. If they have, there is less likely to be a public interest in pursuing the allegations as there has already been a public finding against the nurse or midwife.
  • Whether there is evidence that the nurse or midwife will not be working in any health or social care settings or with vulnerable adults or children in the future. In the absence of such evidence, there is likely to be a public interest in pursuing the allegation. However, this will also depend on the nature of the allegation. This factor is likely to be less relevant where the allegation does not relate to patient interaction or care.

Before signing the declaration that they will not seek to return to the register, the nurse or midwife will be informed that if they breach the declaration and apply for readmission, they may be subject to a further allegation of misconduct. In addition, the original allegations will be reopened.

If the nurse or midwife admits the allegations, voluntary removal may be a more appropriate method of removing them from the register and concluding the case. This is because if the nurse or midwife does apply for readmission, we can rely on the admissions to prove the allegations.

Evidential difficulties

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Where there is not enough evidence to prove the facts of the case, the normal course is to offer no evidence. However, if the allegations in a case are very serious, and the public interest outweighs the nurse or midwife’s interest in matters being brought to a final conclusion, we may, exceptionally, seek to cancel the hearing.1

For example, if a witness has made an allegation of a serious sexual assault against a nurse or midwife, but then becomes too unwell to give evidence within a reasonable period of time, we may be unable to prove the allegation. If there is a chance that the witness might recover in the future and be able to give evidence, the public interest may require that the hearing is cancelled.

Other reasons

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There may be other compelling reasons where it is no longer in the public interest to hold a hearing, for example if a nurse or midwife is terminally ill, or so unwell that they are unable to participate in the process.  Any such grounds must be supported by appropriate evidence.

Rule 33 of The Nursing and Midwifery Council (Fitness to Practise) Rules 2004