2 Fitness to practise
11. The NMC issues a Code of Conduct for Nurses and
Midwives. "The Code" sets out the "foundation of
good nursing and midwifery practice, and is a key tool in safeguarding
the health and wellbeing of the public", and as such establishes
the bar for fitness to practise.[15]
Members of the public, employers, nurses or midwives or others
who think that a nurse or midwife is in breach the code, or whose
practice is thought to be impaired[16]
can make a formal referral to the NMC.
12. In the last three years there has been a 102%
increase in referrals about nurses and midwives, and a 41% increase
in the last year alone.[17]
We asked the NMC why there has been such a significant increase
in referrals. The NMC has stated that there is an upwards trend
in referrals across the health professions, but they were not
able to articulate a satisfactory reason for this:
We are being proactive. We are saying to the people
who matter, "This is what we do and we are here to regulate
nurses and midwives and deal with the most serious concerns."
The NMC profile has been raised in the last couple of years, which
may explain it, but this is guesswork because I do not think we
or the other regulators really know.[18]
13. The General Medical Council has analysed its
fitness to practise cases and found that doctors who qualified
overseas were over-represented in its statistics, prompting further
research.[19] Fitness
to practise statistics are published annually by the NMC, and
an analysis of the register has been published up to and including
the year 2007-08.[20]
However, neither data set is broken down by profession i.e. nursing
or midwifery, or by the ethnicity of the registrant. The CHRE
has stated that the NMC started to collect ethnicity about registrants
in July 2009[21] and
in a Freedom of Information request the NMC had stated that this
data would be available in autumn 2010.[22]
In June 2011 the NMC Council minutes note that:
We are about to commence a programme of analysis
of this data in relation to the nurses and midwives on our register.
However, we cannot currently cross-refer this data to fitness
to practise cases. We hope to begin collecting equality and diversity
data for each of the six strands at each of the significant stages
of our FtP [fitness to practise] process in the near future.[23]
The Committee is very concerned
about the recent dramatic rise in the numbers of NMC referrals
of nurses and midwives, and that NMC reports make it difficult
to distinguish between referrals made about nurses or midwives.
We are surprised that the NMC has no clear answer to why referrals
are increasing, and recommend that the NMC undertakes urgent research
to establish the reasons for this increase. This data could and
should be used to support the development of revalidation and
a more proactive approach to regulation.
14. The
Committee is also concerned that an analysis of ethnicity data
on the nursing and midwifery register is still not available despite
having made assurances that this would take place in 2010. Of
more concern is the fact that, according to its own records, the
NMC is still not recording ethnicity or other diversity monitoring
in fitness to practise cases. Without this, neither the professions
nor the public can have confidence that the NMC discharges its
functions in a manner that is fair and equitable to minorities.
15. There are a number of sources of evidence which
suggest significant problems with poor care. The ongoing public
inquiry into the Mid Staffordshire NHS Foundation Trust is uncovering
poor standards at one Foundation Trust; unfortunately it is unlikely
that the experience of this Trust is unique. The Health Service
Ombudsman has raised significant issues with the care of older
people, particularly in acute hospitals.[24]
Following our report into complaints and litigation,[25]
the Committee remains very concerned about the standard of basic
nursing care for older people in hospital.
16. The NMC has published guidance to the professions
on the care of older people[26]
and in November 2010 on how they can raise concerns about fellow
registrants.[27] However,
the response from within the nursing and midwifery professions
to declining standards is disappointing. Despite poor standards
of practice in some clinical areas at the Mid Staffordshire Trust,
not one nurse or midwife reported concerns to the NMC.[28]
The NMC has approximately 40 fitness to practise cases open on
registrants from the Mid Staffordshire Trust, some of which are
related to failure to report another registrant to the NMC.[29]
The Patients' Association are concerned about the lack of
referrals to the NMC from Mid Staffordshire NHS Foundation Trust:
In light of the scale and durations of concerns about
nursing care the extremely low number of referrals is concerning.
It suggests a very low level of awareness amongst patients and
the public, at least in respect of the care being delivered at
Stafford hospital.[30]
17. Following
our earlier report into complaints and litigation, the Committee
remains very concerned about the existence of low standards of
basic nursing care in our acute hospitals and care homes, which
appear to be in breach of the code of conduct for nurses and midwives.
We are particularly concerned about this in light of the ongoing
inquiry into Mid Staffordshire NHS Foundation Trust, the Winterbourne
View scandal and the recent Health Service Ombudsman report into
care of the elderly in hospital.
18. This evidence
presents a challenge to the NMC which is responsible for professional
standards in the nursing and midwifery professions. Based on its
existing guidance on care of the elderly, we propose that the
NMC should develop a programme of action to deliver a demonstrable
improvement in outcomes for this vulnerable group.
19. Furthermore,
the NMC needs to send a clear signal to nurses and midwives that
they are at as much risk of being investigated by their regulator
for failing to report concerns about a fellow registrant as they
are from poor practice on their own part.
20. The Commission for Healthcare Regulatory Excellence
(CHRE) conducts a performance assessment of regulators every year.
Its March 2011 report has found that only two-thirds of cases
are resolved within the fifteen month deadline.[31]
The CHRE has also undertaken an audit of fitness to practise activity
by the NMC and has found:
[…] continuing significant weaknesses in the
NMC's handling of fitness to practise matters. These weaknesses
create significant risks that the NMC will not always protect
the public or maintain confidence in the professions (our
emphasis).[32]
The performance of the NMC in handling fitness to
practise has been raised with the Committee by Unison who told
us that:
Nurses and Midwives continue to wait a significant
(and often unacceptable) amount of time for their case to be heard
and concluded. [33]
Unison do acknowledge that the NMC is making progress
on this matter and that new systems and processes will take time
to address the backlog in fitness to practise cases.[34]
21. NMC has stated that it cannot make much more
progress on this without reform of the Nursing and Midwifery Order.
In its memorandum of written evidence it told the Committee that:
In order for these [proposals for improved fitness
to practise] to become reality we need legislative changes to
the Nursing and Midwifery Order 2001. We have approached ministers
and Department of Health officials on a number of occasions with
requests for these changes, even to the extent of offering to
fund any associated legal costs that would be required to make
this happen. We have had a disappointing response to date.[35]
22. The
Government is proposing to have one Act of Parliament that establishes
the core functions of professional regulators, leaving them to
decide how they discharge these. The Committee welcome the Governments
plans for simplification of the legislation that underpins professional
regulation in the UK.
23. However,
in the light of criticisms by the CHRE about "significant
weaknesses" with the process, the Committee urges the Government
to bring forward amendments as soon as possible to the Nursing
and Midwifery Order 2001 so that the NMC can streamline its fitness
to practise procedures.
24. The NMC also requests that the Nursing and Midwifery
Order 2001 be amended to allow nurses and midwives to remove themselves
from the register voluntarily, so called voluntary erasure.[36]
This differs from what currently happens in that nurses and midwives
can allow their registration to lapse. In cases where an allegation
has been made about them, a registrant is unable to allow their
registration to lapse.[37]
If an allegation was made about a registrant who had allowed their
registration to lapse and subsequently then applied to rejoin
the register, this allegation would be flagged for investigation
by the NMC:
The NMC permanently holds records of registrants
who have removed themselves from register […] If a registrant
applied to restore themselves to the register having removed
their name during an ongoing FTP investigation, the application
for restoration would fall to FTP to consider and not the Registrar.
FTP would then pick up their investigation from the moment when
the registrant removed their name from the register.[38]
25. The
Committee supports the proposal that nurses and midwives be able
to voluntarily remove themselves from the register. However, where
concerns have been raised about a nurse or midwife seeking erasure,
or where an investigation is taking place into fitness to practise,
erasure must only take place with the consent of the complainant
and on publication of the full details of the case against the
registrant.
15 Nursing and Midwifery Council, The Code, December
2007 Back
16
For example, impairment may mean lack of competence, convictions
or cautions, poor physical or mental health Back
17
Ev 17 Back
18
Q 114 Back
19
Health Committee, Eighth Report of the Session 2010-12, Annual
Accountability Hearing with the GMC, HC 1429-II Back
20
"Statistics about nurses and midwives", NMC website,
23 February 2010, www.nmc-uk.org/about-us/statistics/ Back
21
The Council for Healthcare Regulatory Excellence, Performance
review report 2010/11, HC 1084-II, June 2011 Back
22
"Freedom of Information disclosure log July-December 2009",
NMC website, www.nmc-uk.org/Documents/FoI/Freedom-of-Information-Disclosure-Log_July-December-2009.XLS Back
23
Nursing and Midwifery Council, Meeting of the NMC Council,
23 June 2011 Back
24
Health Service Ombudsman, Care and compassion? Report of the
Health Service Ombudsman on ten investigations into NHS care of
older people, HC 778, 14 February 2011 Back
25
Health Committee, Sixth Report of the Session 2010-12, Complaints
and Litigation, HC 786-I Back
26
Nursing and Midwifery Council, Guidance for the care older
people, 16 March 2009 Back
27
Nursing and Midwifery Council, Raising and escalating concerns:
Guidance for nurses and midwives, 1 November 2010 Back
28
Q 93 Back
29
Q 97 Back
30
Ev 27 Back
31
The Council for Healthcare Regulatory Excellence, Performance
review report 2010/11, HC 1084-II, June 2011 Back
32
The Council for Healthcare Regulatory Excellence, Fitness
to practise audit report , March 2011 p48 Back
33
Ev 24 Back
34
Ibid. Back
35
Ev 17 Back
36
Ev 17 Back
37
Ev 31 Back
38
Ibid. Back
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