The Nursing and Midwifery Council (NMC) has developed eight new commitments it will apply when investigating and dealing with fitness to practise concerns.

The relevance of context and contextual factors are not new in fitness to practise.  Almost without exception, healthcare regulators will, to varying degrees, take into account the context that led to fitness to practise concerns or investigations.

It is a fundamental principle that fitness to practise investigations and any hearings to follow must be fair and transparent.  Nurses, midwives and nursing associates must be treated fairly throughout the entire NMC fitness to practise process.

Basis for commitments

Setting out its approach, the NMC stated:

“When things go wrong, it can be easy to assign blame rather than take the time to understand why something happened and what can be done to prevent it from happening again.

“This means we need to look beyond the actions of an individual and understand the role of other people, the culture and environment they were working in when something went wrong. Only then can we identify what needs to happen to keep people safe in the future – even if we’re not the ones who can take that action.”

Fitness to Practise Commitments

The NMC’s eight new commitments are:

1. It will approach cases on the basis that most people referred to us are normally safe

 “Unless evidence shows that someone deliberately caused harm or acted recklessly, our starting position will be to assume the nurse, midwife or nursing associate is usually a safe and competent professional, but something got in the way of them being able to deliver safe care.”

2. It will seek to build an accurate picture about the nurse, midwife or nursing associate’s practising history

 “We’ll always seek to build up, take account of and present an accurate picture of someone’s practising history, rather than viewing an incident or concerns in a vacuum. A person-centred approach means looking at things that have gone well, not just the period of time when a concern has arisen.”

3. It will always carefully consider evidence of discrimination, victimisation, bullying or harassment

 “Where we receive a complaint that a nurse, midwife or nursing associate may have been responsible for discriminating, victimising, bullying or harassing people and there’s some evidence to support the complaint, we’ll treat this as a potentially serious breach of the NMC Code. We’ll look to understand why the individual behaved in this way and concentrate on taking action to minimise the risk of the same thing happening again.”

4. Where risks are caused by system and process failures, it will concentrate on the action we can take to help resolve the underlying issues

“Genuine mistakes and errors caused by problems in the working environment are unlikely to be issues that call into question someone’s fitness to practise. If the evidence shows that a similarly qualified nurse, midwife or nursing associate would have done the same thing this may indicate the root cause of the incident is not the person’s fitness to practise.”

5. In cases where a nurse, midwife or nursing associate was required to use their professional judgement it will respond proportionately

“Where individuals are forced to make difficult choices, we’ll focus on how they tried to escalate their concerns, if they did so before the incident or after, and how they exercised their professional judgement with reference to the Code. Examples of such situations could be choosing to prioritise certain tasks or people over others due to short staffing or other kinds of problems in the working environment.”

6. It will look for evidence of remediation where a serious concern was caused by a gap in knowledge or training or personal context factors

“Where we identify a gap in the nurse, midwife or nursing associate’s knowledge or training, we’ll try to help them understand what they can do to address this gap and demonstrate they’re safe to practise.”

7. It will always look into whether group norms or culture influenced an individual’s behaviour before taking action

“When things go wrong there will usually be a number of people and different factors involved which contributed to some degree. Holding one individual to account where group norms or culture played a part in what happened may be unfair. It may also give false assurance and direct focus away from a wider problem.”

8. Where an incident has occurred because of cultural problems, it will concentrate on taking action to minimise the risk of the same thing happening again

“While we expect nurses, midwives and nursing associates to comply with the Code at all times, we recognise the psychological evidence about how hard it can be to speak up or to disobey group norms, even if that means people acted in a way that looks unacceptable with hindsight. If the evidence shows that an incident occurred because of a poor culture we’ll take this into account when deciding what action we need to take.”

Fairness, openness and learning?

Is the NMC’s fitness to practise process fair?

Its fitness to practise processes have been criticised for not being “fair and transparent”.  The last two reviews by the Professional Standards Authority found that the NMC fell short of its standards of good regulation in this regard.

The most recent review the PSA report commented:

“We also identified continuing concerns about the NMC’s drafting of charges and failures to investigate or obtain and present relevant evidence. In some cases we considered that the decision reached was insufficient to protect the public. While we found these issues in a small number of cases in the context of the NMC’s caseload, they have significant implications for the fairness of the process.”

Perhaps in part, these principles seek to address these criticisms.  In setting out these commitments, the NMC said it “understands the importance of making sure our processes and decisions support a culture of fairness, openness and learning.”

Disclaimer: This article is for guidance purposes only. Kings View Chambers accepts no responsibility or liability whatsoever for any action taken, or not taken, in relation to this article. You should seek the appropriate legal advice having regard to your own particular circumstances.