Fitness to practise procedures do not exits as a general complaints resolution procedure. The scope of what regulators can consider relevant is usually set out in statutory Regulations. In the case of the Nursing and Midwifery Council (NMC), its statutory powers to carry out investigations are limited to two kinds of allegation:

• Allegations of fraudulent or incorrect entry of an individual nurse, midwife or nursing associate to our register
• Allegations about the fitness to practise of nurses, midwives or nursing associates.

Allegations about fitness to practise can be based on:

Misconduct

If a nurse, midwife or nursing associate falls short of the Code, what they did or failed to do may be serious professional misconduct. It is this “misconduct” that the NMC investigates.

It is important to make a distinction between poor clinical practice and serious professional misconduct. On the whole, the NMC will not consider one-off clinical incidents as serious professional misconduct.

The NMC has set criteria for determining how serious clinical practise might be and therefore what action to take. In cases deemed serious, the NMC will usually only need to take action if it’s clear that the nurse, midwife or nursing associate deliberately chose to take an unreasonable risk with the safety of patients or service users in their care.

Protect your registration

It is important to also note that “serious harm to a patient” does not automatically mean the NMC will take action. The NMC is looking for honesty, reflection and remedial action in these cases. It said:

“Even where there has been serious harm to a patient or service-user, provided there is no longer a risk to patient safety, and the nurse, midwife or nursing associate has been open about what went wrong and can demonstrate that they have learned from it, we will not usually need to take action.”

Lack of competence

Substandard care can call into question a nurse, midwife or nursing associate’s competence criminal convictions and cautions. Generally speaking, unless it was exceptionally serious, a single clinical incident would not indicate a general lack of competence on the part of a nurse, midwife or nursing associate.

Substandard care is care that usually involve an unacceptably low standard of professional performance, judged on a fair sample of their work, which could put patients at risk.

Criminal convictions and cautions

Criminal offences are normally viewed with particular seriousness by the NMC. Nurses, midwives and nursing associates are under an obligation to declare any cautions or convictions (unless these are for a protected) both when they apply to join the register and/or if they become involved in criminal offending while they’re on the register.

The NMC takes a particularly serious view of fraudulent register entries where a nurse, midwife or nursing associate failed to declare criminal convictions.

Whilst each case will be determined on its individual facts, certain convictions are deemed “the most serious cases of criminal offending” and these types of offences are referred straight to the Fitness to Practise Committee. These are:

• hate crimes
• sexual offences
• offending previously known as ‘serious arrestable offences’
  

Certain criminal conviction and cautions are not within the NMC’s jurisdiction to act on. These include:

• Protected cautions and convictions
• Driving offences and penalty fares (with the exception of Drink-driving offences)
• Conditional discharges, absolute discharges and admonitions

Health

The NMC will not need to intervene in a nurse, midwife or nursing associate’s practice due to ill health unless there is a risk of harm to patients or a related risk to public confidence in the profession.

Protect your registration

As mentioned above, the NMC will not need to intervene unless there is a public safety risk.

The following is what a nurse, midwife or nursing associate can do to avoid regulatory action:

• demonstrated good insight into the extent and effect of their condition
• taking appropriate steps to access treatment and is following any advice from the health professionals treating them
• occupational health (where available) is providing support through the employer
• managing his or her practice appropriately, for example by taking sickness absence.

English language proficiency

English language proficiency is likely to become a fitness to practise issue when it presents a public safety risk.

Examples of language concerns that could place the public at risk of harm include:

• poor handover of essential information about patient treatment or care to other health professionals because of an inability to speak English
• serious record keeping errors or patterns of poor record keeping because of an inability to write English
• serious failure(s) to give appropriate care to patients because of an inability to understand verbal or written communications from other health professionals (or patients themselves).
• drug error(s) caused by a failure to understand or inability to read prescriptions.

Other health or social care organisations

Cases about determinations of other regulators will generally lead to regulatory action by the NMC. The only exceptions to this are:

• where the NMC has determined that the nurse, midwife or nursing associate presents no current risk of harm to patients
• the determination involves no potential impact on public confidence in the nursing or midwifery professions
• there is no need, in the particular case, to take action to maintain proper professional standards and conduct.

In cases relating to other health or social care organisations, the NMC’s approach is to “consider the scope and nature of the other organisation’s determination and the factual background.” The NMC will also “assess how closely the issues relate to the practice of nursing or midwifery in the UK and the underlying facts or issues.”