Particular features of misconduct charging

Misconduct

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A misconduct charge will usually start with a short preamble. The body of the charge should then contain a series of concise descriptions of the nurse, midwife or nursing associate’s acts or omissions, which individually or cumulatively we say amount to misconduct, and wherever possible, the dates on which or periods of time during which we allege the acts or omissions occurred.

We will generally not refer to the sections of the Code that may be relevant to the Fitness to Practise Committee panel’s consideration of misconduct. The Code will instead be used at the hearing as evidence of the obligations of the nurse, midwife or nursing associate.

The charge should conclude with an allegation that the nurse, midwife or nursing associate’s fitness to practise is impaired by reason of their misconduct.

Guidance on charging dishonesty can be found in the Dishonesty guidance.

Serious clinical outcomes

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If a person receiving care died or suffered serious harm because of a nurse, midwife or nursing associate’s clinical failings we may include the fact that the nurse, midwife or nursing associate’s misconduct caused the death or serious harm in the charges. Our guidance on investigating what caused the death or serious harm of a patient explains when we will do this, and why. It explains that we will only charge a nurse, midwife or nursing associate with causing death or serious harm to someone receiving care if, in those particular circumstances, any reasonable and competent professional would have known that the misconduct alleged could have resulted in serious harm. Evidence that the nurse, midwife or nursing associate’s failings caused death or serious harm will only be admissible if we bring a charge stating that the misconduct caused death or serious harm.¹

In cases where a patient died or suffered serious harm, but we have decided not to bring an additional charge of causing death or serious harm, we may refer to the death or harm as part of the background of the case. We will, however, make it very clear to the panel that we are not suggesting that the nurse, midwife or nursing associate’s misconduct caused the death or serious harm.

Motivation

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This section provides detailed guidance about the circumstances where it will be appropriate to charge a racial or discriminatory motivation. Guidance on charging sexual motivation can be found in Sexual Misconduct.

Racially motivated misconduct

There may be times when we are concerned that the actions or behaviour of one of the professionals on our register demonstrates an underlying hostility or discriminatory attitude relating to race.²

If that is the case, then we are likely to need to consider charges that:

1. Specify the alleged misconduct, and
2. Specify that the misconduct was “racially motivated”.

Racially motivated misconduct could cover a broad range of behaviour or situations, for example:

• Where somebody has said overtly racially abusive words to another person with the clear purpose of causing offence
• Where somebody has posted comments of a derogatory nature online as a means of “humour”, or where somebody has engaged in conduct with a colleague that they consider to be “banter”.
• Where a person has routinely singled out a more junior colleague for certain difficult or unpleasant tasks at work, and where the underlying concern is that the person setting the tasks is bullying the person based on their race or perceived race.

When deciding whether an act is “racially motivated” it is likely to be helpful to consider the following questions:³

• Did the act in question have a purpose behind it which at least in significant part is referable to race? and;
• Was the act done in a way showing hostility or a discriminatory attitude to the relevant racial group?⁴

If we are considering actions or behaviour that includes words, we may first need to assess whether what was said was in fact racist in nature. It is important that when we assess the meaning of words we do so from an objective perspective. This means that we consider what the reasonable person, with all the information in front of them, would conclude. This part of the assessment of what was said does not include taking into consideration what the professional intended when they said it.⁵ If the professional said multiple things, then it is important that we consider cumulatively what was said, and not necessarily just focus on individual words or phrases in isolation.⁶

Whether the purpose behind an act is “referable to race” is likely to depend on the evidence we have in a particular case. When considering “racial motivation” we are primarily focused on what the professional had in mind at the time they said or did the thing in question.

There may be cases in which a Panel could decide that the evidence of an underlying racial motivation is not made out, but nevertheless that the use of objectively racist language by the professional still constitutes serious professional misconduct. In those cases, it would be the potential impact of the use of the language that would be of concern to the Panel, irrespective of what the professional had in mind when they said it. Such a finding is likely to depend on the specific facts of an individual case.

Discriminatory motivation

The Equality Act 2010 makes it unlawful to discriminate against anyone based on the nine characteristics protected by the Act (age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, sexual orientation).

In our guidance above we have talked about charging racially motivated misconduct. However, it’s important to recognise that similar principles apply to the other characteristics protected by the Equality Act.

So, for example, where we consider that misconduct demonstrates an underlying hostility or a discriminatory attitude to people with disabilities, or based on a person’s religion or belief or sexual orientation, the discriminatory motivation will need to be charged separately.