According to the NMC’s data, in 2019-2020, it received 1,800 referrals from employers with more than 62% (1,129) of these referrals progressing to the investigation stage, and about 7% (128) progressing to a hearing as of early 2021.
Guidance for Employers – Manage or Refer?
Local Investigations
On the issue of managing concerns locally, the NMC’s guidance states that if a local investigation finds that a nurse, midwife, or nursing associate’s practice or behaviour are a risk to public safety, the employer is usually best placed to manage concerns and lessen that risk.
In terms of managing the concern locally, the NMC’s guidance continues: “You can often address public safety risks by supporting the professional to make any necessary changes or improvements.”
The guidance includes a range of options open to employers to help manage a concern. This section of the new guidance concludes by stating that, if an employer decides to make a referral to the NMC, the NMC will “…want to see all of this detailed information so that we’re clear about the steps that have been taken to address any concerns before the referral.”
Referral
Referring a nurse, midwife, or nursing associate to the NMC is a significant step. The guidance sets out clear considerations for employers to consider before making a referral to the NMC. This list of considerations includes:
- allegations that a nurse, midwife or nursing associate has fraudulently or incorrectly joined our register;
- criminal convictions and cautions; and/or
- lack of competence.
Employers will need to carefully consider issues such as any contextual factors, nature and seriousness of the concern and whether the referral is fair and unbiased.
The NMC has clearly stated however that the three types of concerns an employer should raise with it are:
- Concerns that pose a serious risk to people who use service and would be difficult to put right
- Concerns where local action can’t effectively manage any ongoing risks to people who use services
- Concerns requiring us to take action to protect public confidence in the professions and uphold standards
Insight, Reflection and Remediation
The NMC is keen to stress that its “person-centred approach to fitness to practise … encourages health and social care professionals to be open and learn from mistakes.”
The NMC’s new fitness to practise resource for employers also advise employers to “encourage reflection and document any insight the professional gives about the concerns, or any other responses they give during this process” including evaluating the strength of insight:
- Does the nurse, midwife or nursing associate recognise what went wrong or why their actions, behaviour, or decisions are concerning?
- Do they recognise potential public safety risks?
- Have they fully engaged with the investigation process, and the action plan, including completing a reflective statement?
If an employer decides to make a referral to the NMC, the NMC will ask for information about their level of insight and engagement.
Legal Advice
A referral to the NMC is a significant step for any nurse, midwife, or nursing associate. We are experienced barristers representing health and social care professionals in fitness to practise investigations including employer investigations. Early engagement with expert legal advice is key to good outcomes for health and social care professionals.
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.