Factors to consider before deciding on sanctions

Reference: SAN-1

Last Updated 31/08/2018

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Proportionality

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Being proportionate means finding a fair balance between the nurse or midwife’s rights and our overarching objective of public protection.We need to choose a sanction that doesn’t go further than we need to meet this objective. This reflects the idea of right-touch regulation2, where the right amount of ‘regulatory force’ is applied to deal with the target risk, but no more. 

The Fitness to Practise Committee has to be proportionate when making decisions about sanctions. It’s under a legal duty to make sure that any decisions to restrict a nurse or midwife’s right to practise as a registered professional are justified.

To be proportionate, and not go further than it needs to, the Committee should think about what action it needs to take to tackle the reasons why the nurse or midwife is not currently fit to practise.

They should consider whether the sanction with the least impact on the nurse or midwife’s practise would be enough to achieve public protection, looking at the reasons why the nurse or midwife isn’t currently fit to practise and any aggravating or mitigating features.

If this sanction isn’t enough to achieve public protection, they should consider the next most serious sanction. When the Committee finds the sanction that is enough to achieve public protection, then it has gone far enough.

They need to explain why the following most serious sanction is not necessary as it would be going further than is needed to achieve public protection – simply saying that it would be disproportionate isn’t enough.

Aggravating features

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Aggravating features are aspects of the case that make it more serious. They might mean that the Fitness to Practise Committee needs to order a sanction that has a greater impact on the nurse or midwife’s practice.

Some possible aggravating features are:

  • any previous regulatory or disciplinary findings
  • abuse of a position of trust
  • lack of insight into failings
  • a pattern of misconduct over a period of time
  • conduct which put patients at risk of suffering harm. 

If a nurse or midwife’s actions put people at risk of being harmed, this risk makes their case more serious. However, keeping patients safe also includes avoiding a culture of blame or cover up, so we do not want to punish nurses and midwives for making genuine clinical mistakes.

Generally, whether or not harm did happen is less important than whether the nurse or midwife’s actions caused a risk of harm. We explain why this is in our guidance on investigating what caused the death or serious harm of a patient. It confirms that the fact that someone did suffer harm will only make a nurse or midwife’s conduct or failings more serious if they deliberately chose to take an unreasonable risk with the safety of patients or service users in their care.

Mitigating features

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Mitigating features are aspects of the case that show it is less serious, and point towards a sanction with less impact on the nurse or midwife’s practice being appropriate. The Fitness to Practise Committee will always look carefully at any evidence about mitigation when they are deciding which sanction, if any, to impose.

Mitigation can be considered in three categories.

  • Evidence of the nurse or midwife’s insight and understanding of the problem, and their attempts to address it. This may include early admission of the facts, apologies to anyone affected, any efforts to prevent similar things happening again, or any efforts to put problems right.
  • Evidence of that the nurse or midwife’s has followed the principles of good practice. This may include them showing they have kept up to date with their area of practice, or their previous good character or history.
  • Personal mitigation, such as periods of stress or illness, personal and financial hardship, level of experience at the time in question, and the level of support in the workplace.

In regulatory proceedings, where the purpose of sanctions is to protect the public and not to punish nurses and midwives, personal mitigation is usually less relevant than it would be to punishing offenders in the criminal justice system. In some cases, sanctions might have an effect that could be described as being punitive, but this is not their purpose.

As we explained in the section about aggravating factors, we take patient harm extremely seriously. Putting patients at risk of harm makes a nurse or midwife’s failings more serious. If the nurse or midwife’s actions put patients or members of the public at a real risk of suffering harm, and the reason they did not suffer harm was down to chance, the fact that nobody suffered actual harm is generally not a good mitigating factor.

Nurses and midwives can submit references and testimonials as mitigation evidence. The Fitness to Practise Committee will use our guidance on remediation and insight when weighing up how useful these documents are to their decision making in each case.

Previous interim orders and their effect on sanctions

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Interim orders have a separate and different purpose from final sanctions.

The purpose of interim orders is to tackle risks while a case is being investigated and prepared, and before the Committee decides whether the nurse or midwife is fit to practise.

When making their decision on sanction, the Fitness to Practise Committee may be told that the nurse or midwife was under an interim order before they started deciding the case. The panel should consider the effect this might have.

Effects on which sanction to impose

If a nurse or midwife has been under an interim order they may have only had a limited chance to remedy the risks in their practice by working as a nurse or midwife.

If the nurse or midwife has followed the terms of the interim order, and made good progress under it, this can be relevant to questions about how much insight the nurse or midwife has shown, and how much of a risk they may present to the public in the future.

Equally, any evidence that the nurse or midwife did not fully comply with an interim order may be relevant to questions about insight, their attitude towards professionalism, and whether they are likely to comply with any order the Fitness to Practise Committee might make.

Effects on length of sanction

The fact that a nurse or midwife was previously under an interim order, and for how long, are relevant background factors in deciding on what a proportionate length of sanction might be.

However, it would usually be wrong to simply deduct or discount the length of time for which the nurse or midwife was previously restricted or suspended under an interim order from the sanction order the panel is thinking about making.

If a panel refers to a current risk to public protection as part of their decision about the nurse or midwife’s fitness to practise, and has first decided on the appropriate period of suspension or conditions of practice to protect patients, then patients may be put at risk of suffering harm if the 'time served’ under an interim order was simply taken off the original period of sanction. This decision could mean the order is not likely to be sufficient to achieve its purpose of public protection.

Previous fitness to practise history

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The nurse or midwife’s fitness to practise history with us can be relevant to a decision on sanction. It’s most likely to be useful in cases about similar kinds of concerns. If problems seem to be repeating themselves, this may mean that previous orders were not effective to help the nurse or midwife address them. If the panel is considering making a similar order to those made by previous panels, it may need to take this factor into account and reconsider if necessary.

The fact that a nurse or midwife does not have a past fitness to practise history is not generally a relevant consideration to the decision on sanction. Unlike a criminal court, the panel is not punishing the nurse or midwife. Its role is to decide which sanction is needed to achieve public protection. This includes protecting patients, maintaining public confidence and upholding the standards we expect of nurses and midwives.

Panels making sanction decisions will already have decided that the nurse or midwife's fitness to practise is impaired. It may already be clear that they need to take restrictive action to protect patients from harm. The fact that the nurse or midwife has not previously received a fitness to practise sanction is unlikely to be a relevant consideration in deciding which order is needed to achieve public protection.

Sometimes, panels will have to make decisions on sanction in cases where the nurse or midwife's conduct is so serious that it is fundamentally incompatible with continuing to be a registered professional. If this is the case, the fact that the nurse or midwife does not have any fitness to practise history cannot change the fact that what they have done cannot sit with them remaining on our register.

For these reasons, panels should bear in mind there will be usually be only extremely limited circumstances where the concept of a ‘previously unblemished career’3 will be a relevant consideration when they are deciding which sanction is needed, or in giving their reasons.

1 See the balance between the individual’s rights and the public interest in Huang v Secretary of State for the Home Department [2007] UKHL 11
2 See Right-touch regulation, published by the Professional Standards Authority in 2015.
3 For an example of a case where a panel's decision to rely on a 'previously unblemished career' and not impose a striking-off order was overturned on appeal, see Judge v Nursing and Midwifery Council [2017] EWHC 817 (Admin)