Impairment is defined in the present tense. Key to considering current impairment, is insight and remediation – seeking legal advice at the earliest possible opportunity is important.
NMC Fitness to Practise
The Nursing & Midwifery Council (NMC) does not have a definitive definition of fitness to practise. Broadly speaking, however, when the NMC refers to fitness to practise, it says:
“Fitness to practise is about managing the risk that a nurse, midwife or nursing associate poses to patients or members of the public in the future.”
The NMC goes on to say that:
“Our overarching objective is the protection of the public, and it’s central to everything we do.
“To achieve this objective, we need to:
– protect, promote and maintain the health, safety and wellbeing of the public
– promote and maintain public confidence in the nursing and midwifery professions
– promote and maintain proper professional standards and conduct for nursing and midwifery professionals.”
The dictionary definition of impairment is “weakened or damaged” or “damaged in a way that makes something less effective”.
In the context of fitness to practise, “impairment” refers to circumstances where a nurse, midwife or nursing associate’s ability to practise safely and effectively has been weakened, damaged or negatively affected. This may mean that they should not practise at all, or that they should be limited in what they are allowed to do.
Specifically, in the context of the NMC, the test applied to help decide whether a professional’s fitness to practise is impaired is:
“Can the nurse, midwife or nursing associate practise kindly, safely and professionally?”
Relevant factors when deciding whether fitness to practise is impaired?
Before the NMC, or a committee, decides whether a nurse, midwife or nursing associate’s fitness to practise is impaired, they will have to make decisions on:
- what facts they find proven; and
- whether those facts prove the charges against the professional
During this process, consideration of the evidence and information will look at a number of factors relating to the nature of the concern and the public interest test.
The nature of the concern
Consideration of the nature of the concern involves looking at the following factors:
- Whether the professional has in the past acted and/or is liable in the future to act so as to put a patient at unwarranted risk of harm
- Whether the professional has in the past breached and/or is liable in the future to breach a fundamental tenet of the profession
- Whether the professional has in the past acted and/or is liable in the future to act dishonestly
- Context of the error/conduct involved in the concern
- Whether it’s highly unlikely that the conduct will be repeated
The public interest
Consideration of the public interest will require the NMC or a Fitness to Practise Committee to decide whether a finding of impairment is needed to:
- uphold proper professional standards and conduct
- maintain public confidence in the profession
It is important to say that a decision about impairment will very rarely be based on just one of the factors above.
Impairment in the present tense
A finding that some, or all, of the charges against a nurse, midwife or nursing associate are proven does not automatically, or always, result in a finding of impairment. This is because impairment is defined in the present tense, or in other words, whether the nurse, midwife or nursing associate’s fitness to practise is currently impaired.
In practice, this means that even where there has been harm to a patient or service user, if a nurse, midwife or nursing associate can demonstrate that they have learned from it, and therefore no longer a risk to patient safety, there is an increased probability that the NMC will find nurse, midwife or nursing associate’s fitness to practise’s fitness to practise not impaired.
Insight and remediation are therefore crucial considerations when deciding on current impairment. Both, insight and remediation must however be genuine, evidenced and comprehensive. Key to this is seeking legal advice at the earliest possible opportunity in order to agree the right strategy from the outset. Insight and remediation often takes a long time to achieve, and evidence which also points to the importance of seeking legal advice at the earliest possible opportunity.
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 Chambers
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.
Contact us today for a no obligation and free telephone consultation about your case in the knowledge that you are speaking to one of the best in the business.
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.