Stage one: should we start a review?
Last Updated 28/07/2017Print
In this guide
- Do we have the authority to investigate?
- Who can request a review?
- Time limit and exceptional circumstances
- Reviewing all or part of the decision
- Grounds for a review
- Would a review be in the public interest or necessary to prevent injustice to the nurse or midwife?
- Public interest
- Necessary to prevent injustice to the nurse or midwife
- Notification of a review
- Is further investigation needed?
Do we have the authority to investigate?Back to top
The Registrar has the power to review and reopen a no case to answer decision as long as it was made after 9 March 2015.
When we receive a request to review, decision makers must check that the nurse or midwife is still on our register. This is so we know whether we have the authority to start the review. If the nurse or midwife has lapsed from our register between the time that the decision was made and the power to review request was received, we have no authority and the reviewable decision will remain in place.
Who can request a review?Back to top
Anyone can request a review, but generally requests come from one of three sources.
- The original referrer of the allegation.
- A third party who was somehow connected with the events that led to the referral (for example a patient, colleague or an employer).
- A member of our staff.
In order for a review request to be considered by the Registrar, the request must specify which of the two review grounds is relevant and provide detail to the Registrar in support of this. We should not commence a review if the review request is only an expression of general unhappiness with the decision.
Time limit and exceptional circumstancesBack to top
The Registrar cannot start a review of a decision more than one year after the date of that decision, unless there are exceptional circumstances.1
When the Registrar is assessing whether there are exceptional circumstances, they should consider:
- the seriousness of the allegation
- the extent of the lapse of time beyond one year
- the reasons (if any are provided) as to why the review request was not made sooner.
Reviewing all or part of the decisionBack to top
A review request can be made in respect of a decision relating to all or part of the allegation. It is not necessary for the entirety of the decision to have been called into question.
Grounds for a reviewBack to top
The Registrar can review the entire decision, or just part of the decision if they have reason to believe one or both of the following:2
- the decision may, in whole or in part and for any reason, be materially flawed and a review would be in the public interest or necessary to prevent injustice to the registrant; or
- there is new information which may have led to a decision that is wholly or partly different from the decision and a review would be in the public interest or necessary to prevent injustice to the registrant.
There are many ways in which a decision can be flawed,3 both substantively and procedurally. For example:
- by applying the wrong legal test
- reaching a conclusion that is not supported on the available evidence or relying on evidence which is not relevant.
- not undertaking an investigation properly
- failing to comply with certain procedural requirements.
The whole decision does not need to be flawed, just an element of it. The Registrar will need to look at what happened during the investigation and the way that the case examiners came to their decision.
If the Registrar decides that the decision may be flawed, they will then consider if the flaw is a material one.
To determine if the flaw is material, the Registrar will assess the impact that the flaw may have had on the decision. If the flaw could have led to a different outcome, then it is likely that the flaw is a material flaw.
New information4 is any information that was not in our possession at the time that case examiners or Investigating Committee made a no case to answer decision. The Registrar should consider whether the new information could have made a difference to the decision if it had been available at that stage.
This ground raises two questions.
- Has any new information been supplied or identified?
- If the information was available at the time of the decision, could it have made a difference to the decision?
The onus is on the person requesting the review to explain what the new information is, provide any supporting documentation, and justify why the new information is likely to change the decision. New information which amounts to a new allegation is usually treated as a new referral.
Would a review be in the public interest or necessary to prevent injustice to the nurse or midwife?Back to top
If either one or both of the grounds (see above) for review are met, the Registrar will consider whether it is in the public interest for a review to be commenced or if a review is necessary to prevent injustice to the nurse or midwife. At this stage the Registrar does not need to consider the possible outcome of the review of the decision.
Public interestBack to top
Our overarching objective is to protect the public. When the Registrar is thinking about the wider public interest, they will consider how the decision will impact on public protection, maintaining public confidence and upholding standards of conduct and behaviour. In this context, the Registrar will take into account the following points:
- would a failure to review the decision leave the public at real risk of harm from the nurse or midwife?
- does the nurse or midwife currently pose a risk to the health, safety or wellbeing of the public, which requires some form of restriction on their registration?
- is a review of the decision required to enable the NMC to uphold standards or maintain confidence in the profession?
If the Registrar decides that a review of the decision would be in the public interest, they will inform all interested parties through a notification.
If the Registrar decides to not start a review of a decision, they will confirm the decision and inform the interested parties.
Necessary to prevent injustice to the nurse or midwifeBack to top
This consideration is only likely to be relevant where a nurse or midwife has been given advice or issued with a warning as part of the case examiners no case to answer decision. The Registrar will consider the seriousness of the regulatory concern, the need to promote and maintain public confidence and proper professional standards and conduct, and assess whether the decision is proportionate to these factors.
Once a case has met the criteria in stage one, the review is deemed to have started.
Notification of a reviewBack to top
The Registrar must5 notify the following parties of any decision taken to review a decision.
- The nurse or midwife.
- The referrer (maker of the allegation).
- Any other person who the Registrar thinks has an interest in being informed through a notification.
The Registrar should provide the above parties with any new information6 (where it is appropriate to disclose this to them) and seek representations from them.7 In practice, there could be sensitive information that is not appropriate to disclose to anyone other than the nurse or midwife. The Registrar must be careful as to what information in particular is appropriate to be disclosed to the referrer.
We ask relevant parties to send us any written representations on the review of the decision.
Once the Registrar has decided to commence a review, they are allowed to conduct the necessary investigative work. No investigative work should be carried out before this decision is taken.
Is further investigation needed?Back to top
The Registrar can carry out any further investigation that they consider appropriate for the purposes of making a decision.8
There may be new information that comes to light during the investigation that the Registrar has to deal with. The Registrar’s powers are not intended to be used for them to re-investigate a case. At the end of the further investigation the Registrar will be able to make a decision on whether the grounds have been met to start stage two of the review.9 If the Registrar decides that no further investigation is needed, we move on to stage two.
1 Rule 7A (10)
2 Rule 7A(2)(a-b)
3 Rule 7A(2)(a)
4 Rule 7A(2)(b)
5 Rule 7A(3)(a)
6 Rule 7A(3)(b)
7 Rule 7A(3)(c)
8 Rule 7A(5)
9 Rule 7A(6)(a-b)