Hearing Fitness to Practise allegations together guidance

Introduction

1 This policy sets out the NMC’s approach to hearing more than one fitness to

practise allegation at the same time. It applies where:

1.1 A single nurse or midwife is the subject of more than one allegation of impaired fitness to practise.

1.2 Two or more nurses or midwives are the subject of related allegations of impaired fitness to practise.

Aims of the policy

2 The aims of the policy are to:

2.1 Provide assistance to panels considering whether to hear more than one fitness to practise allegation at the same time.

2.2 Provide clarity to nurses and midwives facing fitness to practise allegations as to when their hearing may consider more than one allegation against them, or allegations against another nurse or midwife.

3 Under Article 22(1)(a) of the Nursing and Midwifery Order 2001 (the Order) a nurse’s or midwife’s fitness to practise may be impaired by reason of any or all of the following.

3.1 Misconduct.

3.2 Lack of competence.

3.3 A conviction or caution in the United Kingdom for a criminal offence, or a conviction elsewhere for an offence which, if committed in England and Wales, would constitute a criminal offence.

3.4 Physical or mental health.

3.5 Not having the necessary knowledge of English.

3.6 A determination by a body in the United Kingdom responsible under any enactment for the regulation of a health or social care profession to the effect that the nurse’s or midwife’s fitness to practise is impaired, or a determination by a licensing body elsewhere to the same effect.

4 Article 26(6)(1)(b) says that where there is a case to answer on an allegation of impairment by reason of health, it shall be referred to the Health Committee (HC). All other allegations shall be referred to the Conduct and Competence Committee (CCC).

5 Rule 29(1) of the Nursing and Midwifery Council (Fitness to Practise) Rules 2004 (the FtP Rules) sets out the circumstances in which the CCC may consider an allegation against two or more registrants at the same hearing. It states that, unless there is a risk of prejudice to the fairness of proceedings, and having taken the advice of the legal assessor, the CCC may hear allegations against two or more registrants where:

5.1 The allegation against each registrant arises out of the same circumstances OR

5.2 In the view of the committee, a joint hearing is necessary.

6 Rule 29(2) confirms that the CCC may consider one or more categories of allegation against a nurse or midwife provided always that an allegation relating to a conviction or caution is heard after any allegation of misconduct has been determined.

7 Rules 29(3) and (4) cover the situation where a new allegation arises against a nurse or midwife who is already facing an allegation before the CCC that has not been heard. Where the new allegation is of a similar kind, or is founded on the same facts, the CCC may consider that allegation at the same time as the original allegation, notwithstanding that it was not included in the notice of hearing. However, where this is proposed, the NMC must inform the nurse or midwife of the new allegation and the alleged facts on which it is based, and give her an opportunity to make written representations. These representations should be made within 28 days or any other period agreed by the parties.

The NMC’s approach to allegations against two or more registrants 8 The NMC will notify the nurses or midwives concerned of its intention to consider

allegations against them at the same hearing as soon as possible after the cases have been referred to the CCC. It will disclose sufficient information about the case against one registrant to the other to enable them to understand the basis on which the NMC says the cases should be joined. This information may include the charges faced by each registrant and a list of witness statements/exhibits.

9 In the event that neither objects, the cases will be scheduled for a joint hearing. If either nurse or midwife raises any objection to the proposal to consider the cases jointly, the NMC will arrange a preliminary meeting so that the issue can be determined.

10 In the circumstances described in Rule 29(1) of the FtP Rules, the NMC would expect the allegations to be considered at a joint hearing. This is because:

10.1 It reduces the risk of inconsistent determinations being made.

10.2 It saves on the time and expense of more than one hearing.

10.3 It reduces the stress and inconvenience to witnesses, who only have to give evidence once.

11 When considering whether there is a risk of prejudice to the fairness of proceedings, it should be remembered that the committee is required to consider the case against each nurse or midwife separately, and makes its decision only on that evidence which is admissible against each nurse or midwife. In the event that the committee hears evidence about one nurse or midwife that is inadmissible and potentially prejudicial against the other, regard should be had to the professional panel’s ability to put such evidence out of its mind1, recognising that this will not always be possible2.

12 Another relevant factor to the risk of prejudice to the fairness of proceedings may be whether a joint hearing would be unduly long and complicated3. This may adversely affect the nurse or midwife’s ability to attend and/or be represented throughout the hearing. However, the committee should also take account of its powers to manage cases in such a way as to ensure that procedural matters are resolved fairly to all4.

13 In a case where allegations against two or more nurses or midwives are to be heard at the same hearing, the NMC will consider what material it has received from one nurse or midwife needs to be disclosed to the other, applying its test for disclosure of unused material5. Purely personal mitigation, especially related to a person’s health, will not be disclosed unless that person has consented and/or the disclosure is necessary for the NMC to fulfil its statutory duty.

The NMC’s approach to more than one allegation against a single nurse or midwife

Notification

14 The NMC will notify the nurse or midwife concerned of its intention to consider allegations against her at a single hearing at the earliest opportunity.

15 In the event that the nurse or midwife does not object, the allegations will be scheduled for a single hearing. If she does raise any objection to the proposal to consider the cases jointly, the NMC will arrange a preliminary meeting so that the issue can be determined.

1 R (on the application of Mahfouz) v General Medical Council [2004] EWCA Civ 233, White and Turner v Nursing and Midwifery Council [2014] EWHC 520 (Admin) 2 Nursing and Midwifery Council v Ogbonna [2010] EWCA Civ 1216 3 See, for example, R v Novac 65 Cr.App.R. 107 4 R (O’Brien) v General Medical Council [2006] EWHC 51 (Admin) 5 See the NMC’s Fitness to Practise Publication and Disclosure Policy

Mixed allegations including an allegation of impairment by reason of health

16 In light of the FtP Rules, the HC can only consider allegations of impairment by reason of health, and the CCC cannot consider allegations of impairment by reason of health.

17 Health may be a relevant factor in all other types of allegation of impairment. However, before a decision is made to pursue an allegation of impairment by reason of health alone, the following should be borne in mind:

17.1 A practice committee should not refer a case to the HC unless and until it is satisfied that a striking-off order would not be the right decision to make6.

17.2 When considering an allegation, a panel of the CCC may only refer an allegation to the HC if it appears that the allegation would be “better dealt with” by the HC7. Even where this is the case, the CCC shall not transfer to the HC unless it is satisfied that it would not make a striking-off order8.

17.3 Where the CCC does refer an allegation to the HC, and the HC certifies that the nurse or midwife’s fitness to practise is impaired by reason of health, the CCC shall have no further function in relation to the allegation9. It loses the ability to deal with any allegations of impairment on grounds other than health.

17.4 Where the CCC refers and allegation to the HC and the HC does not find that there is current impairment by reason of health, that is not the end of the matter. The CCC must resume its consideration of the allegation10

18 When considering whether an allegation would be “better dealt with” by the HC, the CCC should bear in mind:

18.1 The composition of an HC panel is the same as the composition of a CCC panel.

18.2 The CCC has a wider range of sanctions available to it.

18.3 The CCC can make factual findings about what the nurse or midwife has done or failed to do. It can then go on to make findings about whether any of the other grounds of impairment (apart from health) are made out. The HC is not required to do this.

18.4 The CCC can hold all or part of the hearing in private where this outweighs the public interest in a public hearing11.

6 Crabbie v General Medical Council [2002] UKPC 45 7 Rule 14(1) FtP Rules 2004 8 Rule 14(2) FtP Rules 2004 9 Rule 14(4) FtP Rules 2004 10 Rule 14(3) FtP Rules 2004

18.5 The CCC can receive evidence and consider submissions about the nurse or midwife’s health.

18.6 Referral of an allegation to the HC may delay the conclusion of the proceedings, and ultimately, may result in the case returning to the CCC if the HC find that there is no current impairment by reason of health.

18.7 The HC does have the power to invite a nurse or midwife to submit to medical testing or examination.

19 In considering whether a referral to the HC is likely to secure further medical evidence, the CCC should consider:

19.1 The nature and extent of any medical evidence already available.

19.2 The extent to which the nurse or midwife has engaged with the proceedings, including any previous refusals to consent to medical testing or examination.

Mixed allegations including an allegation of impairment by reason of conviction and/or caution

20 Generally, the NMC will seek to deal with the non-conviction/caution allegation(s) first. The committee will only be informed of non-conviction/caution allegation(s) at the outset of the hearing, and will only hear evidence relating to it (them). Having made findings of fact and determined whether the other allegation(s) amounts to one of the grounds for impairment, the panel will be informed about the conviction/caution allegation, and invited to make findings about it before going on to consider impairment.

21 The exception to this is where the non-conviction/caution allegation necessarily requires the panel to hear evidence about the conviction/caution that is also relied on as a ground of impairment. For instance, where the allegation is that a nurse or midwife was convicted of an offence, and failed to disclose that conviction to her employer when required to do so, the panel will be informed at the outset of the hearing that the allegation is one of impairment by reason of misconduct and conviction. Also, the panel may hear evidence about a conviction where it is relevant and fair to include it as similar fact evidence, or evidence of bad character.

Other mixed allegations

22 Where the NMC is alleging that a person’s fitness to practise is impaired by reason of misconduct and lack of competence, it will specify those facts it alleges

11 Article 3(4) Nursing and Midwifery Order 2001 states the over-arching objective of the NMC’s Fitness

to Practise (FtP) function is to protect the public. Article 3(4A) states that this is achieved by undertaking to: a) protect, promote and maintain the health, safety and well-being of the public; b) promote and maintain public confidence in the professions regulated under this Order; and c) promote and maintain proper professional standards and conduct for members of those professions.

amount to misconduct, and those it relies on to demonstrate a lack of competence.

Allegations received while a nurse or midwife is subject to a substantive caution order, conditions of practice order or suspension order

23 In these circumstances, the NMC will not seek to rely on the new allegation at an early review of the substantive order unless the new allegation is accepted by the nurse or midwife.

24 Instead, the NMC will open a new case and, if a risk assessment suggests an interim order may be necessary, refer the matter to a practice committee for consideration of an interim order. The practice committee considering the interim order application will be made aware of the existing substantive order and reasons for it, as well as details of the new allegation.

25 If the practice committee considering the interim order application determines that it is necessary to make an interim order that is more restrictive than the existing substantive order, the interim order will take precedence. The existing substantive order will continue to be reviewed in accordance with the legislation, and at any review hearing, the practice committee will apply the NMC’s guidance12

Approval date: 24 April 2014

Revised by the Director of Fitness to Practise 15 January 2016

Updated version approved by the FtP Director on 24.06.16

Effective from 26.09.16

12 For example, Guidance to panels on conditions of practice