Lack of competence involves an unacceptably low standard of professional performance, judged on a fair sample of a professional’s work, which could put people receiving care at risk.1 This includes when a professional on our register demonstrates a lack of knowledge, skill or judgement which shows that they are incapable of safe and effective practice.
What amounts to a fair sample of a professional’s work will vary, depending on:
- the types of concerns raised,
- the seriousness of the concerns, and
- how much work the professional undertakes.
Unless it was exceptionally serious, a single clinical incident would not indicate a general lack of competence on the part of a professional. Similarly, a less serious incident would need to have occurred on a number of occasions to amount to lack of competence.
A nursing associate is making observations about a patient in an outpatient diabetes clinic. She fails to escalate to a nurse that a patient (A)’s condition has deteriorated since their last appointment. A nurse reviews A’s notes before they are discharged, so A is not harmed. While observations are a common task for a nursing associate, a single incident of this type would not constitute lack of competence; a larger number of incidents would be required. The nursing associate also works part time; to ensure a fair sample of her work is considered, we may need to consider either fewer cases, or cases over a longer period of time, because she will work with fewer patients at any one time.
We recognise that professionals sometimes make mistakes or errors of judgement. Our starting position is that the professional is usually safe and competent, but something may have happened on this occasion that got in the way of them delivering safe care.
If concerns are raised about the general competence of a professional we’ll seek to understand the circumstances at the time. We’ll also look at their practising history and not just at the period of time when the concerns arose. This will help us understand if there has been a change in any relevant contextual factors that may have altered the professional’s ability to practise safely. It may also help our understanding of whether there is a particular area of practice where there may be concerns or whether the concerns are more general in nature.
If we identify a gap in the professional’s knowledge or training, they may be able to address this gap and demonstrate they’re safe to practise. However, it’s important that we find out how this gap occurred. In particular, there may be concerns about the support and supervision at their workplace, or evidence of discrimination, victimisation or wider cultural/systemic problems in the workplace. If there is such evidence we may need to take additional action, such as sharing information with other regulators or employers.
We receive concerns about a midwife’s practice in a community role; her employer tells us that there have been three occasions where pregnant women with a smaller than average fundal height (a measurement of uterus size) have reported reduced foetal movements and she has not referred them to hospital.
Following the referral she undertakes further training on when women should be referred to hospital and has requested further supervision by a more senior midwife. Since then there have been no further concerns about her practice.
Given that the concerns are limited to one area of her practice, the midwife has recognised the issue and has taken steps to avoid this happening again, we would be unlikely to continue fitness to practise proceedings.
The difference between competence and misconduct
Back to top
Sometimes, a set of concerns about a professional’s practice may raise issues of both lack of competence and misconduct. However, lack of competence and misconduct are two distinct concepts and it is important that the differences are recognised.
Put simply, competence is about what professionals know and are able to do. Conduct is about what the professional actually does with that knowledge and those skills.2 If a professional lacks the necessary knowledge and skills, this may be a lack of competence; by itself, it is not also misconduct.3 However, there may be scenarios where a particular incident could show both lack of competence and misconduct.
A mental health nurse uses an inappropriate physical restraint on someone in their care. While the incident does not physically harm them, the patient becomes distressed by it. If the inappropriate restraint was because her restraint training was out of date, this may indicate an issue with her competence. If she does know how to restrain someone appropriately, but lost her patience in the moment, this may indicate an issue with her conduct.
We need to use our culture of curiosity to understand whether the concerns about a professional could be misconduct or a lack of competence. This is because we need to understand the professional’s knowledge and what led to the concerns.
We need to be clear to professionals what our concerns are, so that they can respond with the information we need. This may also help the professional understand what they need to do to remediate the concerns.
An employer informs us of an incident where a midwife gave an opioid painkiller intravenously to a woman in labour, rather than by injection, resulting in the woman going into cardiac arrest. An event this serious, even as a single incident, could amount to a lack of competence.
Through the course of our investigation, it becomes apparent that the midwife is internationally qualified and has only recently moved to the UK; where she practised previously midwives were not permitted to give opioid painkillers. In addition, the painkiller had been dispensed by two other professionals without clear instructions to the midwife, because they assumed she was familiar with the painkiller. The midwife has now undergone further training on pain management. Provided we are satisfied that the incident was caused by a lack of knowledge and skills we will not treat the incident as misconduct.
How we draft competence charges
Back to top
Where we’re alleging that the professional’s FtP is impaired because of a lack of competence, we’ll state that they failed to demonstrate the required standards of knowledge, skill and judgment over a period of time.
The charges should then set out the incidents that we are relying on to demonstrate the failure, including any that occurred while the professional was being supervised or subject to a capability process. The charges may also refer to the professional failing to meet objectives or pass assessments.
When a case includes concerns about both lack of competence and misconduct, we’ll make sure the charges are clear which alleged facts show a lack of competence and which show misconduct, so that the professional understands our concerns and can represent themselves properly.
1R (Calhaem) v GMC [2007] EWHC 2606 (Admin)
2Paragraph 24.10 of the Fifth Report of the Shipman Inquiry
3Calhaem v General Medical Council [2007] EWHC 2606 (Admin), para 39(e)
Want to download and print whole sections of this FtP library? Visit the downloads page.