Specialist Nursing and Midwifery Council (NMC) Defence Lawyers
What is the Nursing and Midwifery Council (NMC)?
The Nursing and Midwifery Council (NMC) is the independent regulator for nurses and midwives in the United Kingdom (UK), as well as, nursing associates in England. As of March 2023, there were over 780,000 people on the NMC’s permanent register which perhaps reinforces the importance of the regulator’s role in promoting the highest professional standards in order to protect the public and ensure public confidence in the professions.
The NMC aims to help deliver “safe, effective and kind nursing and midwifery practice that improves everyone’s health and wellbeing”; they do so by setting professional standards and promoting high standards of education and training. Like other regulators, the NMC will also investigate and where necessary, take action against nurses, midwives or nursing associates accused of putting patient safety or public confidence in the profession at risk.
Why chose Olliers for NMC proceedings?
Olliers Solicitors have a team of experienced solicitors who undertake purely defence work in both the regulatory and criminal sectors. Our lawyers are committed to providing straightforward, high quality legal advice and assistance to a range of professionals including nurses and midwives facing investigation or proceedings brought by the NMC.
Our experts have dealt with the full spectrum of cases, from allegations in relation to a lack of competence through to serious misconduct, dishonesty and cases concerning the health of the professionals themselves.
We provide expert representation for nurses, midwives and nursing associates throughout their dealings with the NMC, advising at all stages of the process, from initial referral to representation before an interim orders panel, and, if necessary, at fitness to practise hearings.
Our lawyers understand the stress and anxiety caused by any complaint which may call into question your professionalism and ability to carry out a role which you have no doubt trained for many years to do, indeed it may be a role that you have fulfilled for decades without incident which makes it all the more difficult and distressing.
We acknowledge and appreciate the potentially far –reaching consequences for your professional and personal reputation, your finances and even for your family life, not to mention the impact on your physical and mental health.
We work closely with our clients and take a pro-active approach to drafting appropriate submissions and making representations. We also work with specialist barristers and other experts, as may be necessary, to ease the burden on you, all with the intention of ensuring that you can continue to practise.
We have earned a reputation for meticulous preparation, sound advice and excellent results for those we represent. Therefore, if you are subject to NMC proceedings or find yourself under investigation by your NHS Trust or any other regulatory body, please get in touch and let us help you navigate the process.
What types of NMC cases can Olliers assist with?
Our team of lawyers have assisted medical professionals including nurses and midwives with a wide range of regulatory matters, as well as, associated criminal proceedings. Our experience includes:
- Providing appropriate advice and assistance during the course of NMC investigations
- Attendance at Trust meetings
- Preparation of responses to formal allegations
- Representation at interim orders hearings
- Representation at fitness to practise hearings
- Providing advice and assistance in respect of criminal investigations including representation at PACE interview
- Providing advice and representation for inquest proceedings
What can I expect following a referral to the NMC?
The NMC has been keen to stress that the aim of their fitness to practise procedures is not to punish anyone rather it is to foster a professional culture which embraces the principles of equality, diversity and inclusion whilst prioritising openness and learning in the interests of patient safety.
They have also stressed the point that the complaints and concerns that they do investigate each year affect only a small minority of those they regulate.
Legally, the NMC is allowed to investigate two types of concern, specifically:
- Allegations of fraudulent or incorrect entry of an individual on the register
- Allegations concerning the fitness to practise of nurses, midwives or nursing associates
In terms of allegations relating to fitness to practise, these will generally fall under one or more of the following:
- Lack of competence
- Criminal convictions or cautions
- Health issues if there is a risk of harm to patients or the public’s confidence in the profession
- A determination by another health or social care organisation or regulatory body
- Insufficient knowledge of the English language which calls into question the professional’s ability to practice safely.
On receipt of a concern, the first thing the NMC will do is consider whether or not they have the power to investigate. If they do, then the next question they ask is whether the case is so serious that some form of regulatory action may need to be taken. This is known as the screening process.
The NMC takes a flexible but generally staged approach to screening. In the first instance, they will ask “Do we have a written concern about a nurse, midwife or nursing associate on our register?” They will then want to establish the answer to the second question of, “Is there evidence of a serious concern that could require us to take regulatory action to protect the public?” The final question they will tend to pose is, “Is there clear evidence to show that the nurse, midwife or nursing associate is currently fit to practise?”
The question of seriousness is perhaps one of the most difficult because concerns will no doubt be serious for the person making them, therefore the NMC has openly stated that whilst many concerns will not be deemed serious enough for them to take regulatory action, it does not mean that the concerns are not worthy of proper investigation and resolution at a local level with the employer or local trust and they certainly encourage this, where possible.
The NMC have usefully indicated that some of the factors they will consider in relation to seriousness at the screening stage include whether or not the alleged actions of the professional put a member of the public at serious risk of harm; were there any breaches of the duty of candour or allegations of dishonesty; evidence of bullying, discrimination or harassment and whether or not the alleged conduct could seriously damage the public trust and confidence in the profession, amongst other considerations.
If your case does warrant further investigation, it will be passed to an investigations team. You will be told about the concerns received and invited to comment upon them if you wish, but you are not obliged to do so at this stage.
It is important to seek legal advice before providing any information or comments in relation to the concerns, but it is worth bearing in mind that well-crafted early representations can result in matters being concluded sooner rather than later although the process is invariably a lengthy one.
At the beginning of an investigation the NMC will also consider whether the concerns raised require immediate action in the form of a suspension or restrictions being placed on your practice. If necessary, your case will be referred to an interim orders panel.
Interim Orders in NMC cases
Although interim orders tend to be considered at the outset of a case, they can be made at any time during the process. It is important to note that an interim orders panel does not make findings of fact or determine any allegations which may be made against a midwife or nurse.
The function of the interim orders panel is to consider if it is necessary to make an order against the nurse/midwife/nursing associate on an interim basis in order to protect the public or where it is the public interest, as well as in cases where it is actually in the best interests of the registered professional.
Examples of the type of cases which may be considered by an interim orders panel include those alleging a serious lack of competence or poor clinical practice, serious illness and those in which there is a real risk of harm to the public, although each case will be considered on its own specific circumstances.
Powers of the Interim Orders Panel
An interim orders panel can impose the following orders:
- Interim conditions of practice
- Interim suspension order
An initial interim order can be imposed for a maximum period of 18 months. An order should be reviewed every six months but can be reviewed at any stage if new evidence comes to light which is relevant to the same.
The NMC can apply to the High Court to extend an interim order pending the conclusion of a case; the court can extend an interim order for up to 12 months
What does an NMC investigation involve?
As part of the investigation into the concerns raised, the NMC investigation team will collate evidence from all relevant sources to help inform the decision about what, if any, action needs to be taken next. This will inevitably include taking statements from the complainant and may also include gathering statements or evidence from your employer or colleagues, as well as, relevant expert evidence.
The investigation stage is a long process by its very natures and although the NMC strive to complete their enquiries as quickly as possible, it is not uncommon for investigations to take up to 12 months, sometime longer.
Having concluded the investigation, the NMC will write to you and set out the findings of their investigation along with the documents and evidence that they have gathered. You will be given at least 28 days to respond and we would strongly urge any nurse, midwife or nursing associate who receives such correspondence to get in touch. Our lawyers have considerable experience in drafting responses and appropriate submissions at this stage of the process and it can lead to matters being concluded without any further action.
Once the NMC have collated all of the information including any written submissions made on your behalf, the case will be passed to two case examiners for a decision. One case examiner will be a nurse, midwife or nursing associate and the other a lay person.
The case examiners will review all of the material available to them in order to decide whether there is a case to answer or not.
In reaching their decision, the case examiners will need to consider whether there is a realistic prospect that a fitness to practise committee, having reviewed the evidence available, would conclude that the facts alleged have been proved and secondly that the nurse, midwife or nursing associate’s fitness to practise is currently impaired.
No case to answer
Although a case will be closed if the case examiners decide there is no case to answer, it does not preclude the case examiners from giving advice to the nurse, midwife or nursing associate involved.
Advice is issued on a private basis and not visible on the public register. It tends to only be issued in cases where the concern isn’t considered so serious as to affect the individual’s fitness to practise but it does necessarily involve the nurse, midwife or nursing associate accepting the concern.
Alternatively, in more serious matters, the case examiners may issue a warning to the professional and this is public and placed on the register for 12 months. A warning will be largely dependent on the nurse, midwife or nursing associate having not only addressed the concerns but also the level of insight conveyed and the reassurance that there is no ongoing risk to patient safety.
Clearly the best outcome in a no case to answer situation will always be no action and this is an option available to the examiners.
Case to answer
For those situations where there is a case to answer, the examiners can recommend undertakings or conclude that a case ought to be considered before a fitness to practise panel.
Undertakings are effectively measures which can be put in place to allow the professional to continue to work whilst addressing the areas of their practice which gave rise to the concern, with the aim of demonstrating that there is no longer a risk to patient safety. Except in cases relating to the health of the nurse, midwife or nursing associate, undertakings will be published on the register along with a summary of the concern.
NMC Fitness to Practise Committee
A committee is usually made up of three members and there must be at least one nurse, midwife or nursing associate and a lay member; the Chair of the panel can be a professional or lay person.
The committee is permitted to conduct meetings or hearings and the registrant will generally be asked which they would prefer. The main difference is that a meeting is decided upon the documents and the nurse/midwife/nursing associate will not attend. An independent legal assessor will be on hand to provide advice and to ensure that the meeting is conducted fairly; they will not play any part in the actual decision making process.
For those cases that are dealt with at a hearing, they will usually begin with the Chair introducing themselves and their fellow panel members. The hearing will then deal with any preliminary legal arguments before moving on to hear the evidence.
A case presenter will set out the case on behalf of the NMC and this may include calling witnesses to give evidence. You will have the opportunity to put questions to any witnesses called, often through your legal representative. Once the NMC have presented their case you will then be allowed to call evidence in support of your own case which may involve giving evidence yourself and calling witnesses.
Both sides will then have the opportunity to make closing submissions on the evidence before the panel retires to reach a decision on the facts. It is for the NMC to prove their case against you and they must do so to the civil standard of proof, which means that they must prove that it is more likely than not to have happened.
In essence what the panel must decide is whether or not the NMC have proved the facts and if so whether those facts mean that your fitness to practise is currently impaired. It should be noted that just because the facts are proved, it does not automatically mean that your fitness to practise is currently impaired. Indeed, there will be many cases where the professional involved has already taken steps to address the issues and improve their practice such that they do not pose a risk to the public.
On the other hand, there will, of course, be cases where the facts have been proved and the individual’s practice is considered to be impaired. In those circumstances, the panel will need to decide whether or not to impose a sanction; any sanction must be appropriate to ensure that the public is protected and the options available include:
- A caution order which can last for between one and five years and which is published on the NMC register
- A conditions of practice order for one to three years, examples of which may include working under supervision or undertaking specific training
- A suspension order for between one and 12 months
- A striking off order which will mean that you are removed from the NMC register*
(*you can apply to re-join the register after five years)
There are circumstances in which a case may be dealt with by way of a consensual panel determination. This means that the NMC and the nurse/midwife/nursing associate agree the facts of the case and also that their fitness to practise is impaired. They will then agree upon an appropriate sanction which will be put before a panel for approval. It is considered a quicker and easier way to resolve cases.
Olliers’ NMC experience
We have considerable experience in professional discipline cases, particularly in the health and social care sectors. Our lawyers regularly deal with the full range of fitness to practise issues, including:
- Clinical incidents
- Surgical, prescribing, and diagnostic errors
- Poor performance
- Criminal convictions/allegations
- Dishonesty allegations
- Misuse of drugs or alcohol
Olliers can assist you on either an hourly rate basis or we can also offer a fixed fee service to provide peace of mind that costs will not escalate beyond what is agreed. We are always happy to provide a bespoke quotation for your individual case. We also have experience dealing with many of the leading insurance providers and medical defence organisations so can discuss your needs with them to ensure that you get the best representation from your legal team of choice.
Should you require assistance with any matter before the NMC please contact our specialist team for an initial confidential discussion as to how Olliers can assist.