The Nursing & Midwifery Council
The NMC makes clear that remediation is central to deciding whether a nurse, midwife or nursing associate’s fitness to practise is impaired. When assessing remediation, decision makers at various stages of the NMC’s fitness to practise process will to take into account the following questions:
- Is the concern remediable?
- Has the concern been remedied?
- Is it highly unlikely that the conduct will be repeated?
These factors are key points for decision makers to consider, but they are not a definitive test of whether a nurse, midwife or nursing associate’s fitness to practise is currently impaired.
Is the concern remediable?
The NMC’s guidance recognise that whilst it can often be very difficult, if not impossible, to put right the outcome of the clinical failing or behaviour, decision makers should instead “assess the conduct that led to the outcome, and consider whether the conduct itself, and the risks it could pose, can be remedied.”
More often than not, remediation is possible in cases involving clinical failing or behaviour that alleges impaired fitness to practise. However, it is also the case that, sometimes, the conduct of a particular nurse, midwife or nursing associate can fall so far short of the standards that remediation may not be possible. Usually, this involves cases where the behaviour suggests underlying problems with the nurse, midwife or nursing associate’s attitude.
Examples of cases that might be difficult to remedy include:
- criminal convictions that led to custodial sentences
- inappropriate personal or sexual relationships with patients, service users or other vulnerable people
- dishonesty, particularly if it was serious and sustained over a period of time, or directly linked to the nurse, midwife or nursing associate’s practice
- violence, neglect or abuse of patients.
Has the concern been remedied?
Where things have gone wrong, reassurances will need to be demonstrated that there will be a negligible risk and that any ongoing risk can be adequately managed.
It is a well-established fact that simply saying sorry is not enough. Insight and remediation must be genuine and demonstrable. NMC guidance states that “Decision makers do more than simply look at whether a nurse, midwife or nursing associate has shown ‘any’ insight or not. They need to assess the quality and nature of the insight.”
When evaluating the strength of insight, the NMC will consider, for example, whether a nurse, midwife or nursing associate has:
- recognised what went wrong, why their actions, behaviour, or decisions are concerning;
- recognise and understood the potential public safety risks;
- fully engaged with the investigation process, including completing a reflective statement and action plans; and/or
- taken demonstrable steps and actions to remediate.
A brief word on apologies and insight. Careful though needs to be given because an apology might be interpreted as an admission of guilt. On the issue, the NMC states:
“While a willingness to apologise for mistakes or failings should be encouraged, there is no requirement for the nurse, midwife or nursing associate to make admissions at an early stage. Decision makers should be sensitive to circumstances which may prevent a nurse, midwife or nursing associate from offering a clear apology. Offering an apology may be perceived as an admission of guilt, which could have implications for any separate legal proceedings.”
It is always advisable that you seek expert legal advice at the earliest opportunity to ensure your response and approach to any allegation is well considered.
Is it highly unlikely that the conduct will be repeated?
Much of this article has focussed on remediation. However, remediation can only follow once a nurse, midwife or nursing associate has gained the appropriate insight.
When considering the likelihood of repeating wrong conduct, the NMC will assess the extent of the nurse, midwife or nursing associate’s insight into the concerns, and will also consider whether the steps taken to remedy concerns are sufficient.
Whilst the circumstances of each case will be determined by its own circumstances, the NMC does state that the likelihood of the conduct being repeated in the future may be reduced where:
- The nurse, midwife or nursing associate has demonstrated sufficient insight and has taken appropriate steps to remedy any concerns arising from the allegations.
- The behaviour in question arose in unique circumstances. While this does not excuse the nurse, midwife or nursing associate’s behaviour, this may suggest that the risk of repetition in the future is reduced.
- The nurse, midwife or nursing associate has an otherwise positive professional record, including an absence of any other concerns from past or current employers and of any previous action by us or another regulatory body.
- The nurse, midwife or nursing associate has engaged with us throughout our processes.
Practical considerations – Reflection & Insight
Reflecting on the circumstances that might have led to alleged impairment of your fitness to practise will vary based on the circumstances but you must be able to demonstrate you have gained real and genuine insight.
Some things to consider when undertaking a reflective piece:
- Where things have gone wrong, this should be accepted (where appropriate – seek legal advice in the first instance)
- Think about the circumstances that lead to something going wrong (personal, organisational etc.)
- Consider the wider impact/consequences (colleagues, reputation and public confidence in medical profession and on your reputation)
- Consider each NMC allegation separately, making comprehensive notes on the reasons for things going wrong and your reflection/thoughts
- Consider the lesson(s) to be learnt from the reflection above. This must demonstrate a genuine understanding of how/why things went wrong.
- What steps are necessary remediation? There is no single answer for this because each case will be determined on its own merits. It could, for example, include further training or development requirements or engagement with counselling or other professional support services.
- Showing remorse is an important remediation step. Without feeling and showing remorse, healthcare regulators are unlikely to be persuaded that you are capable of genuine remediation.
NMC Defence Barrister
I am an experienced Nursing & Midwifery Council (NMC) Defence Barrister who has represented nurses and midwives at all levels of a fitness to practise investigation and panel hearings. I am a practising healthcare and medical law defence barrister with a proven track record of success, years of experience and renowned for being “hands on”.
I can help with all matters relating to NMC Fitness to Practise Referrals issues including:
- What to do if you have been referred to the NMC
- Advice on the NMC investigatory process
- Consensual Panel Determinations
- Interim Orders Hearings
- Advice, assistance and representation for hearings before the Conduct and Competence Committee
- Advice, assistance and representation for hearings before the Health Committee
- Appeals against the decisions of the NMC
If you have been notified by the NMC that you’re under investigation or are facing difficulties with your registration, contact me today for an initial free and no obligation consultation on 0207 060 1983 or Stephen.McCaffrey@kingsviewchambers.com.
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.