Fitness to Practise defence barristers, Kings View Chambers, looks at insight and strengthened practice for nurses and midwives.
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 “overarching objective”, the NMC states that it:
– protects, promotes and maintains the health, safety and wellbeing of the public
– promotes and maintains public confidence in the nursing and midwifery professions
– promotes and maintains proper professional standards and conduct for nursing and midwifery professionals.
When NMC allegations are found proven, a nurse’s fitness to practise could be found “impaired”. 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. The NMC test for deciding whether fitness to practise is impaired asks:
“Can the nurse, midwife or nursing associate practise kindly, safely and professionally?”
Impairment in the present tense
A finding that some, or all, of the charges against a nurse 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 Strengthened Practice
Insight and Strengthened Practice (also referred to as “remediation”) are therefore crucial considerations when deciding on current impairment. Both, insight and strengthened practice 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.
The NMC makes clear that remediation is central to deciding whether a nurse, midwife or nursing associate’s fitness to practise is impaired. When assessing remediation, decision makers at various stages of the NMC’s fitness to practise process will to take into account the following questions:
- Is the concern remediable – The NMC’s guidance recognise that whilst it can often be very difficult, if not impossible, to put right the outcome of the clinical failing or behaviour, decision makers should instead “assess the conduct that led to the outcome, and consider whether the conduct itself, and the risks it could pose, can be remedied.”
- Has the concern been remedied – When evaluating the strength of insight, the NMC will consider, for example, whether a nurse, midwife or nursing associate has:
- recognised what went wrong, why their actions, behaviour, or decisions are concerning;
- recognise and understood the potential public safety risks;
- fully engaged with the investigation process, including completing a reflective statement and action plans; and/or
- taken demonstrable steps and actions to remediate.
- Is it highly unlikely that the conduct will be repeated – Whilst the circumstances of each case will be determined by its own circumstances, the NMC does state that the likelihood of the conduct being repeated in the future may be reduced where:
- The nurse, midwife or nursing associate has demonstrated sufficient insight and has taken appropriate steps to remedy any concerns arising from the allegations.
- The behaviour in question arose in unique circumstances. While this does not excuse the nurse, midwife or nursing associate’s behaviour, this may suggest that the risk of repetition in the future is reduced.
- The nurse, midwife or nursing associate has an otherwise positive professional record, including an absence of any other concerns from past or current employers and of any previous action by us or another regulatory body.
- The nurse, midwife or nursing associate has engaged with us throughout our processes.
Insight Works Training
Developed by leading legal representatives for medical professionals facing health and social care tribunals, Insight Works Training have designed unique and practical courses with focus on impairment, reflections and remediation.
Courses are delivered by both leading healthcare experts with years of experience in mentoring and coaching who also sit on regulatory tribunal panels and, leading legal experts in the field of defence at health and social care regulatory tribunals.
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 Barristers
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.
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