Appendix 1 - Government's Response - Annual
Accountability Hearing with the Nursing and Midwifery Council |
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
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.
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.
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.
The health professions regulators
are independent bodies and so are responsible for setting their
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.
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
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.
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.
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
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.
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.
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.
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.
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)
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
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
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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
The Department also welcomes this
initiative, which relies on powers available to the NMC in its
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
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
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
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
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.
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
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.
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
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.