Annual accountability hearings: responses and further issues - Health Committee Contents


Appendix 1 - Government's Response - Annual Accountability Hearing with the Nursing and Midwifery Council

Introduction

On 26 July 2011, the House of Commons Health Committee (the Committee) published the report: Annual Accountability Hearing with the Nursing and Midwifery Council (NMC).

The driver for the hearing was a recommendation made in the Health Select Committee's Fourth Report on Revalidation of Doctors, published on 8 February 2011, in which the Committee said that it intended to exercise on behalf of Parliament the power nominally held by the Privy Council to hold the General Medical Council (GMC) to account. The Committee subsequently agreed that this approach should be extended to include the Nursing and Midwifery Council (NMC).

The Department strongly believes that these hearings are of great value in strengthening the accountability of the professional regulatory bodies to Parliament and to the wider public.

Departmental response

We welcome this report and have carefully considered the Committee's recommendations and the issues it raises. The Government's Command Paper, 'Enabling Excellence: Autonomy and Accountability for Health and Social Care Staff', published on 16 February 2011, set out a comprehensive strategy for ensuring that professional regulation systems is robust and proportionate.

The Government's response to each of the recommendations made in relation to the NMC is shown below. Though many of the Committee's recommendations were clearly for the NMC to take forward, we have commented on all recommendations.

Introduction

Recommendation Para 3

The NMC has requested Department of Health support for further amendments to the legislation that governs its operation. The Committee broadly supports this request, as improvement to the performance of the NMC in some key areas is hampered by its current legal framework. The Government must prioritise this work if it wishes to see further improvement in the performance of the NMC.

Response

The Department is working with the NMC to reform its legislation. Following the Select Committee hearing, at which the NMC gave evidence, Departmental officials met with counterparts at the NMC and agreed that many of the immediate legislative changes that the NMC were seeking could be achieved through changes to the NMC's rules, rather than through more time consuming changes to the Nursing and Midwifery Order 2001. The Department is now supporting the NMC to make the necessary changes to its rules.

The Government has also commissioned a more fundamental simplification review of the legislative framework for regulation of health professions from the Law Commission with a view to giving greater autonomy to the regulatory bodies to decide how best to meet their statutory duties.

Recommendation Para 4

The Committee welcomes the improved financial performance of the NMC in recent years, but is concerned about the affordability of the registration fee for many lower paid registrants. We would urge the NMC to avoid further fee rises and to consider fee reductions for new entrants to the register.

Response

The health professions regulators are independent bodies and so are responsible for setting their own fees.

The Government notes that the NMC's registration fee, alongside the fee charged by the Health Professions Council (HPC), is the lowest of all the fees charged by health professions regulatory bodies at only £76 per head.

However, as the Government said in its Command Paper Enabling Excellence: Autonomy and Accountability for Health and Social Care Staff, "At a time of pay restraint in both the public and private sectors, the burden of fees on individual registrants needs to be minimised".

The Government would not expect registration fees to increase beyond their current levels, unless there is a clear and robust business case that any increase is essential to ensure the exercise of statutory duties.

Recommendation Para 9

The NMC is now leaving behind its previous organisational and financial instability, and is improving in many areas of its work. There remains however a significant amount of work to be done in order for it to be an effective regulator that has public protection as its principal concern.

Response

The Government welcomes improvements at the NMC but would urge it not to be distracted from the delivery of its core functions by activities outside of its current statutory remit, when improvements in its current performance could still be achieved.

Recommendation Para 10

Although, therefore, the Committee recognises that the NMC is developing a higher level of operational competence, it remains concerned that the leadership function of the NMC remains underdeveloped, particularly in the areas of fitness to practise, revalidation, education and training and proactive regulation. The Committee hopes that the NMC will embrace more ambitious objectives for professional leadership, some of which are described in this report.

Response

The Government agrees that the NMC should take a strong lead in setting high standards of practice and accountability for its registrants. In doing so, however, it needs to continue to see its primary purpose as public protection and public service, and not as a body that represents the profession.

The Government welcomed the launch of the NHS Leadership Framework in June. At the heart of the new framework is the Clinical Leadership Competency Framework which applies to every clinician at all stages of their professional journey - from the time they enter formal training, become qualified as a practitioner and throughout their continuing professional development as experienced practitioners. We would encourage the NMC to consider the contribution of the framework to revising existing standards for education, in fitness to practise cases and in developing the model for revalidation for registrants.

Fitness to practise

Recommendation Para 13

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.

Response

We would encourage the NMC to make progress in this area and we understand that the Council for Healthcare Regulatory Excellence (CHRE) is giving consideration to the issue of the underlying causes of fitness to practise referral rises across professions.

Recommendation Para 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.

Response

We agree with the Committee's comments.

Recommendation Para 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.

Response

The Department shares the Committee's commitment to the highest standards of nursing in all care settings and welcomes the more proactive approach that the NMC has taken on particular incidents over the past two years. The Government will be studying carefully the conclusions of the public inquiry into events at Mid-Staffordshire NHS Foundation Trust to consider whether any changes are needed, including to the professional regulatory system to address these concerns.

Recommendation Para 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.

Response

The Department acknowledges the comments made by the Committee, which are a matter for the NMC as the independent regulator for nurses and midwives. We would be interested to see any programme of action that the NMC develops regarding this issue.

Recommendation Para 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.

Response

There is a long standing duty upon nurses and midwives - including students - to act upon / report any concerns they have about anything which puts patients in their care at risk, including the performance of other individuals. The NMC has published guidance on its website called 'Raising and Escalating Concerns' which provides details of individual roles and responsibilities and information on where to go for advice in such situations. Paragraph 3 of the guidance makes it clear to the professional that failure to raise concerns is unacceptable and may call into question their own fitness to practise.

It would also be open to nurses to refer concerns about NHS organisations or management through a public interest disclosure to the Care Quality Commission (CQC) or Monitor.

The NHS Constitution draws attention to the protection available to staff and the handbook to the constitution specifically cites the Public Interest Disclosure Act 1998 and staff rights to "protection from detriment in employment and the right not to be unfairly dismissed" under the Act.

Recommendation Para 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.

Response

The Government has commissioned a simplification review of the legislative framework for professional regulation from the Law Commission with a view to giving greater autonomy to the regulatory bodies to decide how best to meet their statutory duties.

The Department intends to seek Parliament's agreement in due course to create an enabling legislative framework for the regulatory bodies, under which the regulators would have statutory duties both to inform the public of their functions and to consult on the way they delivered them.

Recommendation Para 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.

Response

We are working very closely with the NMC on this issue, particularly around whether changes to the 2001 Order are needed in this context. In particular, it is our shared belief that changes to the NMC's own underpinning rules (which can be delivered more quickly than changes to the 2001 Order) can successfully address this issue.

See the response to the recommendation at paragraph 3 for further details of the Government's action.

Recommendation Para 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.

Response

The NMC and the Department are working on proposals that are intended to lead to efficiencies in how voluntary removal cases are processed.

The purpose of fitness to practise action is to ensure that the public are appropriately protected from the activities of poorly performing professionals. Its purpose is not to provide a means of direct redress for the victim of the actions of a poorly performing professional. Whilst sanctions such as suspension, removal from the register or conditions on practice may have a punitive effect, that is not their primary purpose. As such, the Department does not believe it is appropriate that voluntary erasure should only take place with the consent of a complainant. That should be a matter for the regulator, after consideration of all relevant evidence. Where complainants wish to seek individual redress against civil or criminal offences committed by health professionals, this would be a matter for the police and the courts.

The Nursing and Midwifery Order 2001 restricts rules from allowing lapsing of registration on administrative or voluntary grounds where the registrant has been suspended, or is subject to a conditions of practice order, or an interim order which imposes conditions or suspension.

The Department and the NMC are collaborating on reforms to its voluntary erasure rules at present and will take the Committee's views into account when so doing.

Revalidation of Nurses

Recommendation Para 31

The current standard for re-registration - completing 450 hours of practice and 35 hours of professional development - is wholly inadequate, as this tells patients and the public nothing about the quality of nursing and midwifery practice undertaken by the registrant. There is also no routine assessment of whether nurses and midwives have even met this minimal standard. The NMC instead relies on honesty within the profession and "whistle-blowing" when registrants are dishonest. For many nurses and midwives this may well be adequate, but for a significant minority, including those most at risk of manifesting low professional standards, it may not be.

Response

Enabling Excellence asked the regulatory bodies for the non-medical healthcare professionals to continue to develop the evidence base that will inform their proposals for revalidation over the next year.

Recommendation Para 32

The Committee supports the NMC's risk-based approach to the current reregistration process. However, we are concerned that there are nurses and midwives who could be failing to meet the already unacceptably low standards for reregistration but who do not come to the attention of the NMC and are therefore reregistered unchallenged. Registrants must feel that their regulator could call in their re-registration evidence at any time and as such the NMC should undertake an annual random audit of the registration renewal evidence supplied by a sample of registrants.

Response

Revalidation involves additional centralised regulatory effort. For those professions where there is evidence to suggest that this effort gives significant added value (in terms of increased safety or quality of care for users of health care services), the Government will agree the next steps for implementation with the relevant regulators, the Devolved Administrations, employers and the relevant professionals.

Recommendation Para 33

The Committee will monitor progress against the 2014 deadline for the introduction of revalidation by the NMC at subsequent accountability hearings.

Response

The Department looks forward to receiving and reviewing the NMC's proposed model for revalidation in due course.

Recommendation Para 39

Revalidation of nurses and midwives is a significant undertaking that the NMC is progressing with due caution. The Committee notes that statutory supervision of midwives is a tried and trusted means of assuring the quality of midwifery practice. The NMC should consider the costs and benefits of extending the statutory supervision framework as a potential means of delivering an effective revalidation process for all registrants.  

Response

The Department of Health looks forward to receiving the NMC's proposed model for revalidation in due course. It is sensible that the NMC looks at this model when gathering evidence on which to base their decisions on a cost effective, risk based and proportionate model of revalidation.

Recommendation Para 40

The NMC needs to ensure that it monitors the number of nurses and midwives who retire, leave the profession, have conditions placed on their practice or fail revalidation. It must develop and share this evidence with employers to ensure that the future workforce planning includes the developing outcome of the revalidation process.

Response  

For the past two years, the NMC has concentrated on developing a robust evidence base for revalidation by commissioning research to assess the potential risks posed by their respective registrant groups. Last year the Department of Health (England) gave a grant to the NMC to enable the next stage of development. This grant allowed the NMC to look closely at what their fitness to practise data (historical and current) could tell them about risk. This piece of work is essential in allowing the NMC to develop a risk-based and proportionate proposal for a framework for revalidation.

Recommendation Para 41

The Department of Health must clarify how it will maintain the continuity of statutory supervision of midwives through Local Supervising Authorities once Strategic Health Authorities are abolished.  

Response

The Local Supervisory Authority (LSA) for midwives is a statutory function currently held by Strategic Health Authority Chief Executives; each SHA employs an LSA Midwifery Officer to deliver this function. The NHS is in the process of mapping functions currently held by SHAs to determine which are required to continue and where these will reside in the design of the new NHS. We recognise the need to provide clarity about the future of LSAs in the new NHS structures.

Recommendation Para 45

Nurses and midwives from the European Economic Area and Switzerland seeking to practise in the UK cannot routinely be language and competence tested by the NMC. The NMC, along with other professional regulators and the Government is working towards resolution of this with partner organisations across Europe. The Committee takes the view that the current legal framework is at odds with good clinical practice, which is clearly unacceptable.

Response

Employers and those contracting with health care workers can and should verify the language knowledge of any person they appoint but we recognise the need to strengthen the system of checks to ensure that local checks are applied consistently. Our intention now is to work with a wide range of partners including the European Commission and the Devolved Administrations to develop a proportionate new system of checks to ensure that any person appointed to a clinical post in the NHS has the necessary skills for the role, before they take up post.

The relevant piece of European Legislation that governs the movement of health professionals across Europe (Directive 2005/36/EC) is currently under review. The European Commission has consulted on the possibility of a change in the relevant European law in a recent Green Paper, with firm proposals due before the end of 2011. The Government sought evidence of the extent of concerns about the issue as part of the consultation and the UK's response to the consultation will be published shortly.

Recommendation Para 46 and 47

The Government, the NMC and the other health professions regulators must now grasp this as a significant risk to patients and dramatically pick up the pace in resolving or mitigating it.

The Committee is concerned that waiting for regulatory action at a European level will expose patients to a high risk over an unacceptably long period of time. We would like to see prompt action on this matter along the lines taken by the GMC where Responsible Officers sign off a doctor as competent and fit to practise.

Response

Any changes to the Directive will take time to deliver and it remains essential that employers carry out their checks effectively. On the issue of competence, it is vital that employers and contracting bodies continue to ensure that those nurses and midwives whom they seek to engage are competent to carry out the duties expected of them.

Proactive Regulation

Recommendation Para 50

We welcome the NMC's initiative in opening proactive investigations into registrants without a formal referral from an employer, a member of the public or another professional.  

Response

The Department also welcomes this initiative, which relies on powers available to the NMC in its governing legislation.

Recommendation Para 55

The NMC's plans for investigation of and intervention in a healthcare organisation where concerns are being raised is a creative and interesting approach to regulating what is a large group of professionals working across a variety of settings. It offers the NMC another tool to strengthen public protection.

Response

The Department welcomes the steps that the NMC are taking in this regard, working closely with other regulators (such as the system regulator in England, the CQC) to ensure that the regulatory frameworks for professionals and providers work effectively to identify and resolve issues of concern.

Recommendation Para 56

We do feel however that whilst the power to look at the quality of educational environments gives the NMC "a foot in the door", clear power must be established in law for further expansion of this role, and we encourage the Government and the NMC to work together to develop this approach. The Committee would particularly like to see the NMC responding to trends in outcome and complaints data from NHS and social care providers.

Response

We broadly accept the recommendation of the Health Select Committee. We rely on the skills, knowledge and values of frontline health professionals and we need their training and education to be of the highest quality. While it is important that there is effective quality assurance of education and training providers, it is also important that quality assurance processes do not create an unnecessary burden on education and training providers.

We would consider any specific proposals from the NMC for new powers.

To reinforce the importance of ensuring high quality education and training for healthcare workers, we intend to introduce an explicit duty for the Secretary of State to maintain a system for professional education and training as part of the comprehensive health service.

We are also developing a national education and training outcomes framework, setting out the outcomes that the new body for education and training for health, Health Education England, which is planned to go fully operational in April 2013, will expect providers of education and training to meet. These outcomes will be designed to help health and care professionals, including nurses and midwives, to meet the clinical outcomes set out in the NHS, public health and social care outcomes frameworks.

Future of Regulation

Recommendation Para 63

As previously mentioned, the Committee has ongoing concerns about the care and treatment of older people both in hospitals and care homes. Of particular concern to the Committee is the lack of regulation of a range of groups who undertake many basic nursing care tasks.

Response

The Government's view, as set out in Enabling Excellence, is that national statutory regulation must be proportionate and targeted.

Employers of unregulated workers must take responsibility for the quality of services provided and ensure appropriate use of existing systems such as referrals to the Independent Safeguarding Authority, which has the power to bar unsuitable workers from the sector.

It is essential that appropriate professional responsibility is taken for effectively supervising any unregulated support staff to whom tasks are delegated by qualified professionals. The NMC is currently updating its guidance to make this crystal clear.

The Government intends to establish the Professional Standards Authority for Health and Social Care (currently the CHRE) as the national accrediting body for a system of assured voluntary registers for groups that are currently not subject to statutory professional regulation.

It is the Government's view that voluntary registration should be encouraged for healthcare support workers and we will explore scope for the Health and Care Professions Council to establish a voluntary register of such workers in England by 2013.

Recommendation Para 64

The Committee endorses mandatory statutory regulation of healthcare assistants and support workers and we believe that this is the only approach which maximises public protection. The Committee notes that the Government intends to give powers to the relevant regulators to establish voluntary registers for non-regulated professionals and workers, but would urge it to see healthcare assistants, support workers and assistant practitioners as exceptions to this approach who should be subject to mandatory statutory regulation. However, the NMC needs to make significant improvements in the conduct of its existing core functions (such as in how it manages fitness to practise cases) before powers to register these groups are handed to it.

Response

Despite the seriousness of what was highlighted in the recent BBC Panorama programme, the Government does not believe that the extension of statutory regulation to all workers in the health sector across the UK and the social care sector would necessarily be a proportionate response. Employers of workers, unregulated by statute, must take responsibility for the quality of services provided and ensure appropriate use of existing systems such as internal governance arrangements and referrals to (in the case of England) the Independent Safeguarding Authority, which has the power to bar unsuitable workers from the sector.

In addition, under the Health and Social Care Act 2008 all providers of regulated activities in England, including NHS and independent providers, have to register with CQC and meet a set of essential requirements of safety and quality. The requirements include a requirement to operate effective recruitment procedures to ensure that no person is employed for the purposes of carrying on a regulated activity unless that person is of good character and has the qualifications ,skills and experience which are necessary. The registered person must also have suitable arrangements in place to ensure that staff are appropriately supported in relation to their responsibilities, including by receiving appropriate training, professional development.

It is also essential that appropriate professional responsibility is taken and accountability demonstrated for effectively supervising any unregulated support staff and we note that the NMC is investigating the nurses responsible for ensuring that was provided in the way that patients and their families have a right to expect with a focus on the interests of service users.

The Government's view, as set out in Enabling Excellence, is that national statutory regulation must be proportionate and targeted. We do not believe that statutory regulation should be used as a 'cure all' for matters that are largely the responsibility of local care providers.

The Government intends to establish the Professional Standards Authority for Health and Social Care (currently the CHRE) as the national accrediting body for a system of assured voluntary registers for groups which are currently not subject to statutory professional regulation.

We think that it makes sense to explore how far assured voluntary registration might provide a suitable alternative to statutory regulation for this group of workers, in the first instance. It is our view that voluntary registration should be encouraged for the adult social care workforce and we will explore scope for the Health and Care Professions Council (currently the HPC) to establish a voluntary register of social care workers in England by 2013.


 
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Prepared 7 March 2012