Context is a key consideration in fitness to practise investigations.  In this article, we will look at contextual factors the Nursing and Midwifery Council (NMC) considers important.

Context in fitness to practise

Context and contextual factors are important in fitness to practise. Healthcare regulators do 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.

NMC states:

“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.”

Contextual factors the NMC considers important

The Nursing and Midwifery Council identified what factors it will take into account when consider the context of an incident.  During an investigation, the NMC will “routinely ask the nurse, midwife or nursing associate and their employer (if the incident happened at their place of work) these questions”.

Contextual factors

  • Past Performance – Understanding how someone has performed in the past will help us consider whether the concerns are ‘out of character’.
  • Health and Addiction – Physical or mental health issues could provide relevant context, and those affected may not always recognise the impact or effect.
  • Protected characteristics – Discrimination, harassment or victimisation can affect people’s behaviour, or be a factor in their referral.
  • Communication problems – Communication problems between people can be barriers to providing the right level of care.
  • Factors affecting attention – Distractions in the work environment or personal lives may mean people are unable to focus on what they are doing properly.
  • Tiredness/Sleep deprivation – Excessive tiredness due to sleep deprivation can affect people’s behaviour or ability to concentrate.
  • Lack of breaks – Everyone needs to take breaks for their wellbeing and if they cannot, this may affect their ability to carry out tasks or concentrate.
  • Emotions/Mood – Personal factors or stress can distract people from performing their roles.
  • Contributory factors – Sometimes a nurse, midwife or nursing associate may have to make a difficult decision or prioritise tasks or people in their care. They may feel that their actions were the only thing they could have done under the circumstances.
  • Analysis and impact – We want to know if the nurse, midwife or nursing associate understands what went wrong, the consequences and have taken steps to prevent this from reoccurring (if relevant).
  • Learning – Does the nurse, midwife or nursing associate understand what could and should have been done differently and/or how to act differently in the future to avoid similar problems happening? If so, this may reduce the risk of it happening again.
  • Insight and remediation – If a nurse, midwife or nursing associate has reflected and taken steps to remedy any gaps in their skills, knowledge or training, they may be less likely to be an ongoing risk to people in their care.
  • Workload – Workload or work pressures can sometimes get in the way of people providing the ideal level of care or stop them from doing the right thing.
  • Distractions – What was the environment like at the time of the incidents? Was it particularly busy or loud compared to normal, and could this have been distracting?
  • Substitution – Would another trained person have done the same thing? Ifso, this suggests the act may not be the fault of the nurse, midwife or nursing associate but the situation or environment.
  • Training and supervision – Was the nurse, midwife or nursing associate adequately trained and supported for the job they had to do?
  • Equipment – We need to know whether equipment or systems may have contributed to an incident. It may be that the right systems or equipment weren’t available, or weren’t in working order.
  • Relationships – Were there poor relationships between professional groups and what impact did this have on how people acted
  • Custom and practice – Was there a poor team culture or were poor practices or widespread workarounds part of the working environment.
  • Raising concerns – Could concerns be raised by staff and were they appropriately responded to.

Why does context matter?

  1. Fairness – Fitness to practise concerns are not always the fault, in whole or part, of a nurse, midwife or nursing associate.  Context is important to establish the circumstances and facts that might have led to, for example, mistakes or misconduct.  Understanding contextual factors can ensure a fair investigation, particularly where the circumstances were beyond the control of a nurse, midwife or nursing associate.
  2. Mitigation – It follows therefore that context can contribute to mitigating factors at various stages in a fitness to practise investigation, hearing and sanctions. 
  • Insight and remediation – Context can be an important learning tool.  Reflecting on contextual factors should lead to an understanding of what could and should have been done differently and/or how to act differently in the future.  Reflection leads to insight and remediation.  If a nurse, midwife or nursing associate has reflected and taken steps to remedy any gaps in their skills, knowledge, circumstances or training, they may be less likely to be an ongoing risk to people in their care.

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.