During a NMC investigation, nurses have an opportunity to respond to enquiries and this could influence the outcome of the investigation but it is essential that legal advice is sought at an early stage.
Screening is the first stage in the Nursing & Midwifery Council’s (NMC) investigation process, where allegations or complaints are ‘screened’ to establish if these warrant further investigation.
If the screening team decides that a concern needs further investigation, they will pass it onto the investigation team that will gather further evidence including documents, witness statements and information from employers.
During this stage of the NMC’s fitness to practise investigation, nurses will have an opportunity to respond to allegations or complaints through NMC enquiries.
What the NMC investigates
The NMC investigates ‘serious concerns’ about a nurse’s fitness to practise which could place patients at risk, or negatively impact public confidence in the nursing and midwifery professions.
The NMC’s statutory powers to carry out investigations related to two kinds of allegations:
- fraudulent or incorrect entry of an individual nurse, midwife or nursing associate to our register
- fitness to practise of nurses, midwives or nursing associates.
Allegations about fitness to practise can be based on:
- lack of competence
- criminal convictions and cautions
- not having the necessary knowledge of English
- determinations by other health or social care organisations
The first thing to note is that nurses are under a duty to ‘cooperate’ with an investigation. In particular, the duty extends to nurses needing to provide the NMC with details of where they are working and any arrangements they have to provide nursing and midwifery services.
Beyond this, any information provided by nurses are at their discretion. However, it should be noted that responding to NMC investigation enquiries can influence the outcome of the investigation and nurses should carefully consider their position. The NMC makes a point of saying that lesser sanctions, such as warning or advice, would not be considered if a nurse does not respond to their enquiries.
Responding to NMC enquiries
How can a nurse respond to NMC enquiries?
At the outset of an investigation, the NMC will write to the nurse to ask them to send a response to the ‘regulatory concerns’ about their practice. In practical terms, this is normally a form which focuses on information the NMC says it would be ‘interested to hear about’ in order to understand the context within which a concern may have arisen.
It must be noted that this form does not provide an exhaustive list, and nurses can respond with any information they think is important for the NMC to know about the background to an incident.
Importance of legal advice
Beyond the limited information a nurse have to provide (under the Code), there is no further duty or requirement on a nurse to send a response, or provide a response to the concerns at all during the investigation.
In most cases, a carefully considered and clear response will be beneficial for a number of reasons:
- It can focus the investigation on the relevant aspects or issues;
- Address any facts that are in dispute;
- Help focus on the context in which the concerns came about;
- Provide an opportunity to present evidence of insight and strengthened practice; and
- Raise the likelihood of the matter being closed without the need for a Fitness to Practise Committee.
Nurses who are the subject of a NMC investigation and considering their position should seek legal advice at the earliest possible opportunity. Specialist legal advice can provide nurses with advice and guidance as to the need for a response, the contents of such a response and when to respond. In some cases, it may be appropriate for a nurse to not provide a response at all.
The NMC suggests that it will take into account the context in which an incident occurred and evidence of insight and ‘Strengthened Practice’ (or Remediation). Seeking legal advice at an early stage will also assist a nurse with by agreeing the right strategy, particularly with regard to insight and remediation. These often take time to gain and evidence, but can mean the difference between an investigation being closed or escalated to a full fitness to practise hearing.
Insight Works Training will help give you a clear and easy to follow understanding of the regulatory process, explanation of the central role of impairment, how to approach insight and remediation, how to evidence this at your hearing and a directed approach to presenting your learning with evidence in writing and verbally.
Kings View Barristers
With over 30 years combined experience, Kings View Chambers have established itself as one of the best when it comes to fitness to practise defence. We fully understand that fitness to practise defence is not merely about processes and procedures. We also understand that we are working with people who are anxious and worried about what investigations might mean for them, their professions and the reputations.
We are proud to be rated ‘excellent’ by our clients. Our commitment to client care is genuine in both seeking the very best outcomes for our clients, but also ensuring we do what we can to support them through the process.
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.