Misconduct

What do we mean by “Misconduct” in Regulatory Proceedings:

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Misconduct is about the nurse, midwife or nursing associate’s behaviour. It can involve either an act or an omission, and it can be something that happened either within or outside the professional’s practice.

The Code sets out the professional standards of practice and behaviour that we expect from the professionals on our register. However, not all breaches of the Code or issues with practice will be a matter of regulatory concern. In respect of potential misconduct concerns, we should only take regulatory action where there is evidence of serious professional misconduct.¹

When we talk about serious professional misconduct within somebody’s professional practice we are referring to something that has occurred:

• When they are acting in the course of their professional practice, such as providing direct care to individuals, groups or communities, or
• When they are undertaking activities closely related to their professional practice, such as leadership, education, or research. To determine whether an activity is closely related to professional practice, we will look to the nature and setting. For example, the exercise of specific clinical skills, such as infection control or administration of medication, is likely to be closely linked to professional practice, whether or not the professional was performing a nursing or midwifery role at the time

There may also be concerns which are related to their professional practice or to the nurse, midwife or nursing associate’s role as a registered professional. For example, bullying or harassing colleagues (including sexual harassment), abusing their position as a registered nurse, midwife or nursing associate or other position of power to exploit, coerce or obtain a benefit, failing to maintain clear professional boundaries with people receiving care, and dishonesty about qualifications or employment history.

We discuss our approach in respect of behaviour outside professional practice which may be “serious professional misconduct”, in more detail in the concerns outside professional practice guidance.

Some concerns are more serious because they may lead to people receiving care or members of the public suffering harm or losing trust and confidence in the professionals we regulate.

In assessing whether concerns we receive could amount to ‘serious professional misconduct’ we will always consider the risk that conduct could pose to our overarching objective of protecting the public and, in particular, any:

• risks to public safety
• risks to public confidence in the professions we regulate
• risk of undermining professional standards

Conduct is unlikely to constitute ‘serious professional misconduct’ unless it poses risks to public safety, public confidence or professional standards that could require regulatory action by us.

Vulnerability in misconduct

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The Code states that professionals must “treat people in a way that does not take advantage of their vulnerability or cause them upset or distress.”²

As explained in What we mean by vulnerability, while there are some people who will always be considered vulnerable, most people will be on a sliding scale of vulnerability. As a result when considering allegations of misconduct we should consider whether the alleged victims were in a vulnerable position at the time.

Protecting people from harm, abuse and neglect goes to the heart of what professionals do. Failure to do so, or intentionally causing a person harm, will always be treated very seriously due to the high risk of harm to those receiving care, if the behaviour is not put right. It may also harm the public’s confidence in the professions we regulate, even if harm, or failure to protect from harm, occurs outside of professional practice.

Where a person’s vulnerability is part of what makes the allegations of misconduct so serious, it should be specified in the allegations³.

As with any others, allegations relating to treatment of vulnerable people will need to set out what aspect of the professional’s actions amounted to misconduct. If our position is that the professional failed to protect someone, we will need to explain how they had an obligation to protect that person. This might be because they were providing care to that person (whether professionally or personally) or, where the concerns occurred outside professional practice, had a personal relationship with them. Similarly, if a professional is alleged to have harmed someone, we will need to set out what the harm was and why the professional had an obligation to avoid the harm.