NMC Fitness to Practice Proceedings: The Complete Guide

NMC Fitness To Practice The Nursing and Midwifery Council (NMC) is the regulatory body for nurses and midwives in the United Kingdom. The fitness to practise (FTP) process is a formal procedure that the NMC follows when concerns are raised about the practice or behaviour of a registered nurse or midwife. The FTP process is designed to ensure that nurses and midwives are providing safe and effective care to patients and clients. This guide sets out the complete process for NMC FtP Proceedings, and what you should do at each stage. Here’s an overview of the FTP process in NMC cases:

Raising Concerns: Concerns about a nurse or midwife’s practice or behaviour can be raised by various parties, including employers, colleagues, patients, and the nurse or midwife themselves. We will talk about whistleblowing in another article in due course.

The FtP Process

Initial Assessment: The NMC’s Case Examiners will review the concerns and assess whether they warrant further investigation. They will consider whether there is a realistic prospect of finding the nurse or midwife’s fitness to practise impaired.

What to do at this stage?

Preparing what you may want to say at this stage. The things that you may want to detail are as follows:

Career History

You should gather information regarding your qualification date, employment history, including positions held and promotions, and any additional qualifications acquired or pursued during this period. It is crucial to inquire whether you have had any prior referrals to the NMC or if any disciplinary sanctions have been imposed on you previously.

You should also document your current employment status and responsibilities, including whether you are the sole nurse in charge. This information is particularly relevant in the context of an Interim Orders Hearing.

Preliminary response to allegations

At this stage, you may not have any particularised allegations in front of you to answer. However, you may have already been through a disciplinary process and may have an idea as to what the allegations may be and your response. Try to obtain as much information as possible.

Considering the context for admissions or denials, it’s important to recognise that your performance can be influenced by external factors. Therefore, you should try to gather relevant information that can serve as mitigating factors for any admitted charges.

Talk to your employer.

You should talk to your employers, and gain support early. This is particularly important if a situation arises where an interim orders hearing is listed (we will deal with this below).

Whether employers are willing to support conditions (Interim Orders Hearings) while the case law is clear that there is no necessity to have an employer in place to achieve conditions of practice (Perry v NMC), it is evident that it often helps. You should think about what conditions of practice will mitigate the concern that the panel is likely to have and ask that an employer provide a testimonial stating that it would be able to support the relevant conditions of practice.

Get references.

When considering references to support your current fitness to practise, it’s crucial to explore a range of references both predating and following the time of the subject allegations. These references should specifically address the allegations, providing evidence of remediation and insight. They should also illustrate a sustained period of practice without incidents and highlight any steps taken for improvement in your practice.

The references can include insights from the employer, emphasising details of supervision and training undertaken by you. Additionally, it’s important that the references reflect your openness and honesty regarding the subject allegations.

Any reference provided should avoid making comments about the specific allegations or expressing an opinion on your current fitness to practise.

The reference request template is available to purchase from us, just let us know.

CPD and training certificates

Training certificates from reputable sources can be valuable evidence for demonstrating current fitness to practise and insight. The most useful certificates are those that provide specific details of practical assessments that were completed successfully.

Important Considerations for Interim Orders Hearings

Financial Considerations:

The financial consequences of an interim order can significantly influence the panel’s decision. Therefore, it is advisable for an advocate to possess comprehensive financial information before any interim orders hearing. This information should include a detailed breakdown of income and expenses.

Up-to-Date Health Information (if applicable):

Health-related information can have a direct impact on the subject allegations. It may serve as a mitigating factor in conduct cases or be directly pertinent in health-related cases. You should carefully assess whether obtaining an early GP report or any relevant counselling reports would be beneficial.

Do I make a response at this stage?

The Screening Team is responsible for assessing whether the Order provides the authority to address the allegation should it prove to be well founded. If the Screening Team deems the allegation well founded, it should be referred to the appropriate subsequent forum, and a notice of referral to the investigating committee must be issued. If the allegation does not meet the necessary criteria, the case should be closed.

You should evaluate whether the allegations can be considered ‘well founded’ at this stage. If not, you should carefully consider whether an early response would potentially prejudice your case. This assessment should be made on a case-by-case basis, considering the unique circumstances of the case. If you’re not sure, please contact us.

In summary, at this stage, the NMC conducts initial inquiries to assess whether the issues mentioned in the referral fall within its purview and if there are valid grounds for a case. The Screening team, in line with the Nursing and Midwifery Order is responsible for determining whether the Order empowers them to address the allegation if it is substantiated. Consequently, the Screening team gathers preliminary information and, if deemed necessary, either concludes the matter or refers it to the case examiners.

Investigation: If the concerns are deemed serious and credible, an investigation will be initiated. This may involve gathering evidence, interviewing witnesses, and obtaining relevant documentation.

Once the referral has been forwarded to the Case Examiners, the NMC will undertake an investigation. This may involve obtaining witness statements, medical records, or expert evidence and will conclude with the preparation of an investigatory report.

In each of the above scenarios, you may wish to make early submissions. Below, likely scenarios in which you may want to make submissions are discussed. This is not an exhaustive list, nor are these hard and fast rules; the direction and strategies for the case are naturally subject to your discretion and your specific circumstances.

Early Admissions

Panels consider early admissions when determining their decision on impairment. Early admissions made during an Interim Orders Hearing (IOH) or the investigation stage can indicate substantial insight. If, following your review of the allegations, it becomes evident that you are making complete admissions to the allegations, you may want to consider presenting early submissions that highlight this fact. This can be particularly beneficial when the allegations involve issues of dishonesty or represent isolated incidents in an otherwise unblemished career. It’s important to mention that early admissions can be bolstered by a reflective statement prepared by you and supported by testimonials and references.

Habitual and/or Vexatious Referrals

Habitual and vexatious referrals are typically made by dissatisfied patients, their family members, or your own family and former partners.

These types of referrals are often evident from the outset and frequently pertain to incidents that cannot be substantiated or fall outside the NMC’s investigative scope. Presenting early submissions that highlight such referrals can lead to a prompt resolution of these matters. In many cases, these referrals are not ‘well founded,’ and it is advisable to include early submissions referencing this fact. Relying solely on the NMC to determine these cases as ‘not well founded’ should not be standard practice. If you can provide evidence that such referrals lack substantiation or are vexatious, this should be brought to the NMC’s attention at the earliest opportunity.

What if you don’t want to practice anymore?

Under the current code, the NMC cannot accept or consider an application for voluntary removal until after the investigation report has been completed and reviewed.

However, there are instances where you can speed up voluntary removal by taking proactive steps early on. This involves presenting early submissions that outline your intentions to voluntarily remove yourself from practice and the reasons for doing so.

Notifying the NMC of your intention to apply for voluntary removal can lead to a more streamlined application process. An early submission can serve as supporting evidence, alongside a reflective statement, medical reports, or details of career changes. This submission may also include full admissions, as previously described.

Should you shape the investigation?

Early submissions can also serve to guide the NMC’s investigative path. If you have information suggesting that specific documents or witness statements could corroborate your version of events, it’s often advantageous to propose obtaining them in an early submission.

In cases where there are apparent shortcomings in the evidence collected or a lack of evidence presented, an early submission can lead to various outcomes, including case closure, a determination of no case to answer, or a recognition that further investigation is warranted.

The case of R v Gleeson [2004] 1 CR App R 29 established that it is not acceptable for the defence to exploit a prosecution error and intentionally delay the identification of a factual or legal issue until the last possible moment.

It’s crucial to recognise that this process involves a delicate balancing act. While certain aspects of your case may benefit from a straightforward early submission, others may necessitate a more nuanced approach to avoid potentially prejudicing your position in relation to any other matters that the NMC may uncover.

It’s essential to strike a delicate balance in this process. While some aspects of your case may benefit from a clear early submission, others may require a more nuanced approach to avoid potentially prejudicing your position on any other matters that the NMC may uncover.

Responding to an Interim Order Hearing

The purpose of an IOH is to determine whether interim orders should be put in place to protect the public and maintain public confidence in the profession while a full investigation or fitness to practise proceedings are ongoing.

During an IOH, the regulatory body reviews the evidence and arguments presented and decides whether it is necessary to impose certain interim orders on a registrant (such as a nurse or midwife) to restrict or suspend their practice temporarily. These orders are usually made when there is a concern about the safety and well-being of patients, and they can include conditions on practice, suspension from practice, or even a total removal from the professional register, depending on the circumstances of the case.

It is not a final decision of the case.

When deciding whether to make early submissions before a panel at an IOH, you should consider the following factors:

Representation: Determine whether you will have an advocate present or if you intend to submit written statements.
Instructions for the Advocate: If you have an advocate, clearly communicate the submissions you want them to make and provide the reasons for your choices. The advocate may also wish to have discussions with you to ensure a unified approach.
Written Submissions: If you are preparing a written submission, remember that early submissions can significantly influence the entire case. Since you won’t be there in person to present your position to the panel, it’s crucial to be exceptionally clear and concise in your written statements. Those statements can be used during the investigation.

Partial submissions to an Interim Orders Committee

If you’re uncertain about whether an early submission would benefit your case, consider making a partial response as a damage limitation strategy. It’s important to note that, by default, the NMC typically requests a suspension order at any IOH. Therefore, you are encouraged to oppose this default position when it’s feasible, highlighting significant issues or arguments, such as:

Necessity vs. Desirability of the Order: Emphasise that the NMC must be satisfied that the order is necessary for public protection, interest, or your own interest.
Health Concerns – Discuss any health-related aspects, which may influence whether the NMC pursues a Health Committee (HC) or Conduct and Competence Committee (CCC) route.
Work-Related Issues Present evidence of grievances, harassment, or bullying in the workplace, and consider systematic failures (e.g., CQC reports).
External Stresses: Highlight any external factors or stresses affecting you.
Positive References/Testimonials. Provide exemplary references or testimonials from current employers as detail above.
Financial Implications: Offer a breakdown of financial implications on your situation where possible.
Remediation: Include reflections or training undertaken as part of the remediation process.
Suggesting Conditions: Propose practical, workable conditions that you are willing to adhere to; this demonstrates thought and insight while engaging with the proceedings.
Additionally, consider the implications of media and public interest. You can request that the proceedings be heard in private, if necessary.

How long will my case take?

Consider the case’s complexity, as it often directly correlates with the length of the investigation.

Typically, investigations last no less than three months. An exception might include a situation involving a single criminal conviction (e.g., criminal damage) unrelated to workplace matters, where the NMC only needs to obtain a certificate of conviction and a case summary.

Complexity increases when there are multiple allegations, a wide variety of allegations, numerous potential witnesses, the need for medical testing, multiple defendants, media attention, sexual allegations, vulnerable witnesses, interactions with other agencies (e.g., police or coroner), and concurrent disciplinary investigations.

High-profile cases with significant media attention and involving numerous registrants can extend over several years. In most cases, investigations are concluded within a timeframe of six to nine months. The pandemic has considerably increased the delay with some cases taking a very long time.

What to do once you receive the investigation report?

Upon receiving the NMC’s investigatory report, you should thoroughly review the report and any additional enclosures. Here’s a summary:

The panel of Case Examiners (CE) must take all reasonable steps to gather as much information as possible about the case when considering a fitness to practise allegation.
Based on the investigation, representations, and observations from you and/or the complainant, the panel must determine whether there is a ‘case to answer.’ This means they must be satisfied that there is a real prospect that the ultimate decision-making committees (the CCC or HC) could find your fitness to practise impaired.

The investigatory report can result in two possible conclusions:

No Case to Answer (NCTA)
Case to Answer (CTA)

While the panel gives weight to the report, they are not bound by its findings. It’s essential to respond to the report, even if you’re not making submissions. Providing a limited response demonstrates your full engagement in the process and offers an opportunity to further organize your case.

No Case to Answer (NCTA)

Following an NCTA report, it’s important to make submissions that concur with and reinforce the report’s findings. Use this opportunity to succinctly bring all aspects of the matter to the panel’s attention.

The two common reasons for an NCTA finding are:

Insufficient evidence to establish the facts.
Insufficient evidence for a finding of current impairment.

For either reason, highlight the weaknesses and target them directly in your submissions. Direct the panel’s attention to pages in the bundle that support your assertions and attach documents for their reference.

The CE Panel exercises caution when finding there is no case to answer, so don’t assume they will simply agree with the report.

Insufficient evidence to establish the facts.

The burden of proof lies with the NMC, and they need to satisfy the civil standard, the balance of probabilities. Panels should be satisfied that what is alleged is more likely than not to have occurred. They can direct further investigations and propose charges for review.

Insufficient evidence for a finding of current impairment

Even if there’s a case to answer based on the facts, the NMC must demonstrate that the allegations amount to misconduct or a severe lack of competency and that such misconduct results in a finding of current impairment. The panel must consider the ‘material facts of your fitness to practise.’ Your demonstration of sufficient remediation, resulting in no current impairment, must be considered.

The CE Panel cannot apply the same test to remediation as a panel at a CCC or HC hearing, so a submission emphasising and reaffirming such remediation is valuable for convincing a CE panel. It’s beneficial to direct the panel’s attention to supporting documents and include aspects of your previous unblemished or lengthy career in such submissions.

In addition to finding impairment, it’s crucial for the panel to conclude that the impairment is current. I.E that you’re currently not fit to practise.

In conclusion, making full submissions in response to investigations recommending NCTA can be crucial for the benefit of your case as a registrant.

If there’s a case to answer, this may be the time to make a full response.

Case to answer (CTA)

When a report recommends a ‘case to answer,’ you should review the material to determine if a comprehensive response is necessary for your specific case.

It’s crucial to note that the report’s recommendation doesn’t automatically bind the Case Examiners (CE) panel to the same conclusion. CE panels can consider and follow NCTA submissions made on your behalf.

Submitting a full response doesn’t solely aim to achieve an NCTA finding. It serves as a multifaceted tool to advance your case, emphasise critical aspects, pinpoint weaknesses in the NMC’s case, address important legal points (e.g., hearsay evidence), and potentially redirect the referral to the Health Committee, thereby shaping the case’s progression.

When deciding whether to make submissions, it’s crucial to consider the specifics of each case. Ultimately, the decision lies with the legal officer. Here’s how to make that decision:

Review your material:

Assess the evidence, if available (duty rotas, records, witness statements, and other evidence, with a focus on CQC reports if applicable).
You may find it helpful to create a table or chart presenting the case for both sides to evaluate the merits and disadvantages of each.

Determine your key arguments:

Are you disputing the facts, alleging misconduct or a severe lack of competence/impairment, or arguing against current impairment?
Consider whether bringing specific aspects of your case to the NMC’s attention at this stage is beneficial.
Identify conflicts in evidence that need to be addressed.
Assess your ability to demonstrate insight.
Evaluate your ability to argue against the evidence, current impairment, and the case’s future direction.

After considering the above factors, you will be better positioned to decide whether full submissions are beneficial at this stage.

For cases where a ‘case to answer’ is recommended, you will typically consider four main types of submissions:

Submissions on Facts

Evaluate the clarity of the facts; are they straightforward or disputed?
Consider whether additional evidence or highlighting existing evidence can affect the balance in your favour.
Decide whether such submissions serve your best interests, as they may lead to a finding of NCTA (No Case to Answer) by the panel.

Submissions on Misconduct or Competence/Impairment

If you are not disputing the facts and admit to the charges as drafted, focus on:

Whether the actions can be categorised as misconduct or a severe lack of competence.
Whether such misconduct or lack of competence amounts to impairment.
Misconduct is behaviour that falls short of what’s reasonably expected of a nurse or midwife.
Lack of competence is the absence of appropriate knowledge, skill, or judgment.
Reference The NMC Code of conduct, performance, and ethics for nurses and midwives to support your case.
Highlight your career achievements, commendations, thank-you cards, and testimonials in your submission.
Emphasise that a finding of misconduct or lack of competence must also prove that the conduct or competence is serious enough to amount to impairment.

Submissions on Current Impairment

Provide evidence and arguments demonstrating that your actions do not indicate current impairment.
Reference recent case law, such as R (Calhaem) v GMC, Cohen v GMC, and Azzam v GMC, to support your position. These can be looked up online.
Highlight any rehabilitation or remediation efforts you have made, which may include reflections and additional training.

Limited Response (No Submission)

Consider whether a limited response without making substantive submissions is strategically beneficial for your case.

Keep in mind that some actions are more likely than others to result in a finding of impairment, including criminal convictions resulting in a prison sentence, dishonesty, sexually motivated behaviour, and abuse of patients.

Highlighting these aspects at an early stage may lead to the removal or redrafting of charges and a referral to either the HC or CCC. However, strategically, it may not always be wise to draw the NMC’s attention to these case elements.

Other things to think about:

Unused material

Unused material, in the context of an NMC investigation, refers to any evidence, documents, or information that is collected or held by the NMC or investigative authorities during the course of the investigation but is not presented as part of the NMC’s case in disciplinary proceedings or fitness to practise hearings. This unused material may include witness statements, documents, recordings, or other information that could be relevant to the case but is not included in the NMC’s formal case against you.

Disclosure of unused material in NMC proceedings is crucial for a fair investigation and hearing, allowing you to access all relevant evidence, even if it doesn’t support the NMC’s case. Failing to disclose such material can harm the fairness of the process and affect the outcome of fitness to practise proceedings.

The NMC has a legal duty to provide you with any material relevant to your case, whether it supports or undermines their case. This ensures you have all the necessary information for an effective defence.

Non-compliance with disclosure obligations can have serious consequences for the outcome of fitness to practise hearings and other NMC proceedings.

This is exactly why you should request any unused material to assist you.