Fitness to practise referral: what every nurse manager needs to know
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Fitness to practise referral: what every nurse manager needs to know

Erin Dean Health journalist

FtP is inevitably distressing, but here is how you can support a team member going through the process

Every year, the Nursing and Midwifery Council (NMC) receives more than 5,000 complaints about nurses, midwives and nursing associates.

Nursing Standard. 35, 12, 35-37. doi: 10.7748/ns.35.12.35.s17

Published: 02 December 2020

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Picture credit: iStock

Each case needs to be considered using the regulator’s fitness to practise (FtP) process to decide if the registrant should be able to continue working in the same way as they have been.

But what effect does this have on the nurse and their manager?

What is fitness to practise?

All registrants must uphold the professional standards set out in the NMC code.

The NMC will investigate a registrant is fit to practise if an allegation is made that they do not meet the standards of skills, education and behaviour required. Only 0.8% of the register is ever investigated.

Who can refer a nurse?

Anyone can raise a concern if they feel an individual patient or public safety may be at risk: a patient, member of the public, a manager or employer, a colleague, the police, or a health or care regulator. It could even be the nurse themselves.

What kind of concerns should be raised with the NMC?

The regulator investigates issues that could put patients at risk or undermine public confidence in nursing or midwifery.

These could include abuse of position, such as a sexual relationship with a patient or service user, discrimination, mistakes in patient care, criminal convictions, breaches of patient confidentiality, health concerns including addiction, and safety concerns in relation to English language skills.

Will I know if a member of my team is referred?

The regulator generally engages with the registrant’s employer, but unless an interim order against their practice has been issued while the NMC investigates, nurses are not necessarily obliged to share their referral with their employer or manager.

I have been referred – what is the first thing I should do?

Your first phone call should be to seek legal advice, the RCN says.

‘Being referred is incredibly distressing, whether or not they have done anything wrong,’ says Rebecca Siegle, senior legal officer at the RCN. ‘Time is of the essence. We have various opportunities to shape and direct investigations.’

Cathryn Watters, nurse and founder of NMCWatch, which supports registrants going through FtP, says: ‘Don’t do it alone – contact us as we have all been through it and understand.’

Should managers get involved?

It is important managers are prepared to provide information quickly.

If an allegation arises about a nurse’s practice outside their employer, the NMC will still usually be in touch to ask the employer to provide details about their current practice.

The regulator may ask if the employer has any concerns.

It is helpful if the employer can share any information it has that shows the registrant has reflected on the issue, has insight, and has taken action to remedy it, the regulator says.

NMC deputy director of professional regulation Clare Strickland says: ‘We encourage managers to play their part in helping us resolve issues safely and efficiently by supporting any member of their team going through FtP. Managers can encourage them to engage with our processes, reflect on their practice, and take steps to remediate concerns raised.’

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Your first phone call should be to seek expert legal advice, the RCN advises

Picture credit: iStock

What is the screening stage?

Screening is the first step the NMC takes after it receives a complaint, although officers may already have spoken to employers seeking advice.

NMC Watch’s Cathryn Watters urges managers to consider whether a complaint needs to be made at all, or whether the registrant could be supported in other ways. ‘Often things have happened that lead to the issue that leads to a complaint. In one case, a newly qualified staff nurse made some drug errors, but she had had no induction, was put on a busy ward where she was the most senior member of staff, and she was asking for help. Instead of referral, she needed support.’

‘We encourage managers to help us resolve issues safely by supporting any member of their team going through FtP’

Clare Strickland, NMC deputy director of professional regulation

The regulator checks whether the complaint meets the criteria to take it further. Next, it establishes whether it can obtain credible evidence, and finally, whether the issue can be considered already settled. In most cases, referrals end here.

How can a nurse show they have remedied any issues?

Even if the case meets the criteria to move to the next stage, nurses may avoid this by showing they have acted to ensure the issue does not recur. If registrants submit evidence of having reflected, or undertaken extra training, the NMC may consider risk to the public has subsided and close the case.

What is an interim order?

If a case is considered serious enough, an FtP panel can impose an interim order on the registrant while the investigation continues. This could be an order to suspend practice, or a conditions of practice order that limits how a nurse can work, for example only allowing practice under supervision.

The nurse is responsible for notifying their employer immediately if an interim order is imposed. Where conditions are imposed, there will almost always be a condition requiring the nurse to inform their employer of those conditions.

How are concerns investigated?

The NMC usually seeks documentary evidence. Investigators speak to the parties involved. The nurse is always asked to provide information.

Officials speak to referrers, employers and witnesses to gain a full picture. Any official witness statements will be passed to the registrant.

If the issue involves the nurse’s health, the NMC will contact the GP, and may ask the nurse to undergo a medical examination.

If English language skills are the concern, the registrant is likely to be asked to take a test.

The case examiner

Once the investigation is complete, a case examiner decides whether there is a case to answer but do not decide if it is proved.

If they decide there is no case to answer, they can still offer the registrant advice or issue a warning to them. If they deem there is a case to answer, they can resolve it by recommending undertakings with the nurse, including restrictions on practice and rehabilitative steps. Alternatively, they can refer the case to the FtP committee.

What happens in the committee?

The case still does not have to end with a full hearing.

If there is no disagreement between the nurse and the NMC about the critical issues, the case will generally be sent to a private meeting of the committee. The committee is a panel of three people, one of whom is a nurse or midwife.

A case is most likely to move to full hearing to resolve central aspects of a case where the regulator and registrant do not agree.

‘Nurse managers need to understand the trauma of NMC referral’

Going through the fitness to practise (FtP) process is a challenging experience for the nurse referred.

The NMC says it is important that employers – who have a duty of care to their team members – encourage their staff to engage with the process to enable the regulator to understand and resolve the issue as quickly as possible.

Cathryn Watters of NMC Watch, which supports nurses and midwives who have been accused of misconduct, has been through FtP proceedings herself and says a supportive and understanding manager can make a huge difference.

‘Managers need to understand just how traumatic the process can be,’ she says.

‘Someone going through the process will probably not be fully functioning, they will tend to have good days and bad days. The nurse they see may not be the nurse they would be normally.

‘There might need to be some realistic conversations about what kind of impact it is having, and the expectations of what they can achieve work-wise. The registrant will be loath to appear like they are not coping, but they are vulnerable.’

Empathy will help the registrant cope

Empathy and good management skills will go a long way to helping a nurse going through the process, she says.

Managers need to be aware that the impact can go on for a long time, even after the case is closed.

‘The affect on confidence, the paranoia and the ongoing fear of making a mistake does not go away quickly,’ says Ms Watters. ‘There are long-term psychological effects from referral and the process. Even if there is no case to answer, registrants feel lost, let down and lacking in confidence, with some elements of post-traumatic stress disorder.’

The NMC’s annual 2018-19 report revealed that four nurses were recorded as having died by suicide in 2018-19, while under FtP investigation. Registrants going through the process now have access to a free emotional support service established by the NMC in 2019.

The confidential 24-hour Careline service can provide counselling sessions, delivered face to face, via phone or Skype, or online using email or a secure chat room.

‘We know FtP referral has an impact’

NMC deputy director of professional regulation Clare Strickland says: ‘We know being referred to our FtP process can have a significant impact on those involved, which is why it’s important we continue to work with employers to support those involved.’

The RCN says it can point members to services that offer help, including immigration, employment legal advice and financial support.

Call the NMC’s FtP Careline on 0800 587 7396 or the Samaritans on 116 123.

What are the possible outcomes if the panel decides FtP is impaired?

The panel can decide to take no further action or impose a caution order, which imposes no practice restrictions; or a conditions of practice order, which impose practice restrictions for a period of time. Other orders are a suspension order, prohibiting the registrant from practising for a period of time, and, most seriously, a striking-off order.

The nurse can apply for voluntary removal from the register at any time during the fitness to practise process, including during a final hearing.

How long does FtP take?

This depends on what level of the process the complaint reaches. The NMC seeks to deal with the complaint at the earliest possible point. If the referral runs through to a full hearing it can take 15 months, but the vast majority do not get this far.

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‘The referred registrant will be loath to appear like they’re not coping, but they are very vulnerable’

Cathryn Watters, pictured left, nurse and founder of NMCWatch

Can the registrant appeal against the decision?

A nurse can appeal in court within 28 days.

In the case of a final substantive order, nurses in England and Wales appeal to the High Court, in Scotland, the Court of Session and to the High Court Justice if they are in Northern Ireland.

All you need to know about FtP cases rcni.com/fitness-to-practise

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