The NMC has introduced a raft of new powers, designed to divert cases away from a full hearing where appropriate. ‘Warnings’, ‘undertakings’ and ‘advice’ are new strings in the Case Examiners’ bow.
In the same stroke, the former ‘Conduct and Competence’ and ‘Health’ committees have been consolidated into a single ‘Fitness to Practice Committee’, and review of substantive orders will no longer be compulsory in every case.
The stated impetus behind the move was to “improve the efficiency and effectiveness” of the process, overhauling a system that the NMC denounced as “out of date and costly”.
Whilst it is hoped the new powers will bring welcome nuance and flexibility to the professional discipline process, there may be concerns about the accountability and unintended consequences of these changes.
An Overview of the Four Key Changes
The amendments to the Nursing and Midwifery Council (Fitness to Practice) Rules 2004 bring in four key changes, effective from 28 July 2017.
- New Case Examiner Powers: Warnings, Undertakings and Advice
Previously Case Examiners would simply decide if there was a case to answer or not. This decision would then either propel a case towards a full Fitness to Practise (‘FTP’) hearing or bring it to a close all together. The new rules allow Case Examiners to take three new courses, without recourse to a full FTP hearing.
The new NMC FTP Library contains detailed guidance on the purpose, thresholds and requirements of these new powers, as well as situations where they are likely and unlikely to be used. This can be found here
The three new powers can be summarised as follows:
According to the NMC FTP Library, a warning will be a public record that a “nurse of midwife’s past conduct was unacceptable”.
Warnings are issued where a registrant “accepts the basis of [the NMC’s] concern” and demonstrates they would not be a clinical risk if they practice unrestricted.
Warnings are dependent on demonstrating sufficient insight and, where appropriate, remediation. They appear on the register for 12 months.
Undertakings are measures agreed between the NMC and a registrant to address problems in their practice that “pose a current risk to patients”.
Undertakings will be specific steps that a registrant agrees to take within a certain time and are designed to address areas of concern in a registrant’s clinical practice.
They may include restrictions as well as rehabilitative steps.
Advice is issued to help avoid future incidents, often where there have been “minor breaches of the Code” which have been accepted by the registrant.
Unlike warnings, advice is given privately and won’t appear on public record.
- Review of Warnings, Undertakings and Advice
The NMC will also now be able to review Case Examiners’ decisions to issue warnings or give advice, and will be able to decide that undertakings should no longer apply.
- A Single Fitness to Practice Committee
Until recently, the Fitness to Practise branch of the NMC had two limbs: a ‘Conduct and Competence Committee’ and a ‘Health Committee’. These have now been consolidated into a single ‘Fitness to Practice Committee’.
The stated purpose behind this move is to avoid unnecessary delays and extra hearing days.
- Review of Substantive Order
Previously, all substantive orders imposed by an FTP committee, including Conditions of Practice Orders and Suspension Orders, were subject to periodic reviews.
Under the new rules this is no longer a compulsory requirement. Panels will now be able to decide and state whether or not there is a need to review an order.
The NMC envisage that this will be helpful where there isn’t a current risk of harm, but where a period of suspension is necessary to uphold standards or public confidence in the professions.
The New Powers: The Hopes
Of particular interest in the new rules is the significant expansion and diversification of the Case Examiners’ powers.
The NMC have embraced these powers as a means to “conclude less serious cases without the need for a full hearing”. They state that this will allow the NMC to “better focus on cases which involve the greatest risk to the public”.
They are intended to bring nuance to a previously black-and-white system, improving both fairness and efficiency.
Nurses and midwives, whose not insubstantial annual registration fee funds FTP hearings, may well welcome these early diversions as a relief on the time and money spent on full hearings. Equally, at the individual level, a number registrants will be spared the expense and significant emotional strain of a full FTP hearing.
At the other end of the spectrum, the new powers may ensure cases of concern are properly kept on the NMC’s radar. For example where a single or first incident does not in itself cross the seriousness threshold, a warning or advice will allow the NMC to keep track of the concern rather than it disappearing with a terminatory decision of ‘no case to answer’.
The New Powers: The Concerns
However, the changes may well also be met with some concern. Many will feel uncomfortable with the expansion of powers at a stage of proceedings which is not subject to the same checks and public scrutiny of a public hearing.
Whilst they may not have the weight of a formal FTP ruling, warnings, advice and undertakings should not be seen as a ‘light touch’. They will inevitably have some impact on a nurse or midwife’s career going forward, particularly with warnings and undertakings being a matter of public record.
What has emerged from Substantive Order Review hearings is that many registrants struggle to find employment when they are subject to a Conditions of Practice Order. It remains to be seen how employers will regard and accommodate the new powers.
Furthermore, there will surely be concerns about registrants who feel undue pressure to accept allegations or outcomes to avoid the financial and psychological strain of a full hearing. These will mirror concerns about the unintended and perhaps unavoidable consequences of the caution in the criminal justice system.
If deployed appropriately, there is real hope that these powers will improve the NMC’s fitness to practise procedure, reducing the cost to the regulator on the one hand, whilst minimising distress and delay to the registrant. As ever, much will depend on the manner in which these new powers are used in practice.
 Brought in through an amendment to the Fitness to Practise Rules 2004