Non-contentious disposals By Claire Robinson

Advice, warnings & undertakings. A number of regulators already have the power to give advice, issue a warning or recommend undertakings. From the 28th July 2017 the NMC case examiners will have the power to give the nurse or midwife advice, issue a warning, recommend undertakings to be agreed or simply close the case. Nursing and Midwifery Order (Legal assessors) (Amendment) and the Nursing and Midwifery Council (Fitness to Practise) (Amendment) Rules Order of Council 2017 / 703 Schedule 1 The Nursing and Midwifery Council (Fitness to Practise) (Amendment) Rules 2017 which amends the Nursing and Midwifery (Fitness to Practice) Rules 2004.

The first step – is there a case to answer? The case examiners have to decide whether there is a realistic prospect that the Fitness to Practice Committee would find the nurse or midwife’s fitness to practice to be currently impaired.

If the decision is that there is no case to answer: Consideration will then be given to whether to: Give the nurse or midwife advice. Issue the nurse or midwife with a warning. Close the case.

Advice: This is an outcome that will be considered in cases where there have been only minor breaches of the Code. Cases that have got through screening, but the concerns that originally appeared to require restrictions have fallen away during the investigation, leaving just minor breaches. The purpose of the advice is to give the registrant private guidance to help them to keep their practice safe in the future. It is intended to give a reminder of their obligations under the Code. Since it is private guidance, it will not be published. It will only be done where the registrant has admitted the facts that formed the basis of the regulatory concern.

Warnings: In contrast to advice, warnings are publicly recorded and will remain against the entry on the register for 12 months. The NMC guidance indicates that they will be given to deal with concerns where the registrant’s practice does not present a risk to patients, including: (i) Serious clinical errors, where the problems have been addressed. (ii) Incidents which might affect public confidence but are not directly related to clinical practice. (ii) Criminal convictions or cautions that result from minor offending. It will not be considered appropriate to issue warnings in cases where the regulatory concern relates to the registrant’s health.

Warnings cont. The NMC guidance indicates that warnings will only be issued in situations where the registrant has: Accepted the regulatory concern. Demonstrated sufficient insight into the regulatory concern. Provided evidence of suitable remediation. It will therefore be important to confirm whether the registrant does accept the concern and / or precisely what is accepted. To demonstrate insight and remediation, a good reflective piece and (if appropriate) relevant training courses will need to be thought about at an early stage.

Warnings cont. The record of the warning that appears on the register will set out the statement of regulatory concern, the relevant standards of practice and behaviour under the Code and the reason that a warning has been issued. A copy of the statement of regulatory concern will be sent to the registrant once the investigation is complete and before the case examiners consider whether there is a case to answer. It will be crucial to check that this document is accurate and fair because if a decision is made to issue a warning, this is what is published.

If the decision is that there is a case to answer: Consideration will then be given to whether to: Recommend undertakings or Whether to refer the case to the Fitness to Practice Committee.

Undertakings: The types of case that may result in undertakings being considered are: Lack of competence. Misconduct where it relates to clinical practice. Not having the necessary knowledge of English. Health.

Undertakings cont. The aim of undertakings is to give the registrant the opportunity to demonstrate that they no longer present a risk to patients and there is therefore no longer a need to restrict their practice. If undertakings are imposed they are always agreed (whereas conditions of practice are imposed).

Undertakings cont. Before recommending undertakings the case examiners will have to be satisfied that: (i) The investigation has properly looked into the regulatory concern. (ii) That the concern is not so serious that permanent removal from the register is likely to be necessary. (iii) That the registrant agrees that the incidents did take place. (iv) That the registrant accepts that there is a need to put measures in place to address the areas of their practice which cause a risk to patients. (v) That proportionate, measureable and workable requirements can be identified, which are sufficient to protect patients.

Undertakings cont. There is an undertakings bank on the NMC website – they are very similar to conditions of practice. Any undertakings that concern health will be private. It should be clear from the undertakings how the registrant is expected to demonstrate that they have complied with the duties imposed. There should also be clear time limits. Any undertakings that are recommended by the case examiners will be sent to the registrant. There is a 28 days time frame to respond, indicating whether or not they agree to comply with the undertakings. It will be extremely important to respond during this 28 day period, because if there is no response the case will be referred for a hearing. There is a discretion to extend the 28 day period. Any application is likely to be looked on much more favorably if it is made before it expires and if the reasons are justified. An example may be if the registrant needs time to consider whether the undertakings are workable and / or wants to propose an amendment.

Undertakings cont. The statement of regulatory concern will form part of the undertakings published, unless it concerns health (it will be sent to the registrant at the end of the investigation and before the case examiners consider whether there is a case to answer). Undertakings will be monitored and there will be consideration of whether they need to be varied or can be lifted. If there appears to be non-compliance the undertakings can be revoked and the original allegation referred to the Fitness to Practice Committee.