The decision making process

Reference: HEA-8b

Last Updated 28/07/2017

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Our decision making

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We first consider whether a nurse or midwife has met the essential criteria. If they have, we also consider if the nurse or midwife has the benefit of legal advice or representation. If there are concerns about whether the nurse or midwife is able to understand the effects of seeking a consensual panel determination, we will try to resolve those concerns, and may recommend that they seek legal advice. If it is not possible to resolve those concerns, it may not be possible to pursue a consensual panel determination.

If the case is (or may be) suitable to resolve by consent, we will reach a provisional view on the appropriate level of sanction. We do this by assessing all the circumstances of the case with reference to our sanctions guidance. We share our view on sanction with the nurse or midwife.

If, after discussing the sanction with the nurse or midwife, we cannot agree on the appropriate level of sanction, the case will proceed to a full hearing or meeting.

If we are able to agree on the appropriate level of sanction, we will then prepare a provisional agreement, which will include the sanction and any interim order that may be required. The nurse or midwife must sign the agreement to confirm that they admit the facts and accept that their fitness to practise is impaired.

At any stage before the provisional agreement is taken to a hearing or meeting, either party may decide they no longer want the case to be determined by consent. If this happens, the case will proceed to full panel determination at a hearing.

Referrer’s comments

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We will let the referrer know what has been provisionally agreed. We do not always show the referrer the full provisional agreement and we do not give the referrer any confidential information that will be considered by the panel in private. We will ask the referrer to send any comments about the proposal. We do not ask for comments where the referrer is a police force referring a conviction or caution, and neither the force nor its personnel have had a significant and ongoing involvement in the case.

If, after considering the comments, we decide that the provisional agreement is no longer appropriate we will try and reach a new provisional agreement with the nurse or midwife. If we cannot reach agreement, we will list the case for a full hearing.

Where we have reached agreement, the case will be listed for a substantive hearing before a panel. Where the most serious sanction available is agreed, the case may be listed for a meeting.

At the hearing, we may tell the panel what the referrer has said. This is so long as the referrer’s comments are relevant and it would be fair for the panel to hear them. In particular, the panel will usually be told if the referrer agrees with the proposed outcome.

A panel’s decision making

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A panel of the Fitness to Practise Committee will always make the final decision about the outcome of the case. A panel will decide if the sanction agreed between us and the nurse or midwife is appropriate and reasonable in all the circumstances with reference to our sanctions guidance.

A panel can:

  • accept the provisional agreement and announce that the allegation is proved and make an order as to the sanction
  • reject the provisional agreement and refer the case to a full hearing by a fresh panel
  • ask to be addressed on points or issues and then make the decision to accept or reject the provisional agreement as above.

A panel should consider the provisional agreement in the round. If it is concerned by any part of the provisional agreement, such as the sanction agreed, it should let the parties know and ask them to address it on the points raised. It should do this before making any final decision on the provisional agreement.

If a panel considers that they do not have enough information to decide on an appropriate outcome, it should identify what further information it needed, and ask the parties to address it on the issue of further information before reaching a final decision. If the parties have the information needed, or if the panel decides that further information is no longer essential to making its decision, it may accept the agreement or propose an alternative outcome.

If the further information is essential but not available, a panel should reject the provisional agreement and the case will be considered in full by a fresh panel.

A panel may make a finding of no impairment or substitute a different sanction to the one agreed by us and the nurse or midwife. This can only be done if the panel lets the parties know about its proposed course of action and we both agree. Consent by telephone or email is sufficient. Unless this happens, the case will be considered in full by a fresh panel.

Panel’s reasons

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If a panel accepts the provisional agreement, it should give reasons for its decision, detailing how the outcome satisfies the need to protect the public and the public interest. The reasons should explain what parts of the provisional agreement it accepts and why. It will also explain what parts, if any, the panel does not accept, and why it considers that an alternative sanction is appropriate.

The reasons should confirm if any alternative sanction has been raised with the parties, and that they have agreed to it. The panel should not amend the provisional agreement, other than to correct obvious typographical errors. The full public decision (provisional agreement and reasons) is published on our website.

If a panel rejects the provisional agreement, it should give reasons for its decision. The reasons should outline the steps taken to explore issues with the parties and the reasons why they decided to reject the provisional agreement.

If the case has to be considered by a fresh panel and where it is fair to do so, the fresh panel may be told by either party that the nurse or midwife has in the past signed an agreed statement of facts.

We will not tell the fresh panel that the nurse or midwife had previously indicated they accepted that their fitness to practise is impaired. The nurse or midwife can tell the fresh panel this if they wish.

Knowledge of any provisional agreement reached between the parties, including knowledge of the provisionally agreed sanction, will not normally be a good reason for the fresh panel to recuse itself from considering the case as it will not consider any irrelevant considerations in its role as a professional panel.

It is also open to the parties at a fresh hearing to enter into a further provisional agreement, taking account of and addressing the reasons why it was rejected by the first panel.