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

Appendix 2: Nursing and Midwifery Council's Response

22.  The Nursing and Midwifery Council (NMC) welcomes the report of the House of Commons Health Committee and its support for changes in a number of critical areas that would enable us to become a more effective regulator. The Committee's support for legislative changes to improve the speed and effectiveness of our fitness to practise processes and the mandatory statutory regulation of healthcare support workers is particularly important.

23.  Nursing and midwifery regulation is pivotal in safeguarding the health and wellbeing of the public. We therefore fully support the Committee's commitment to hold annual accountability hearings to scrutinise and help us to improve our work.

24.  This memorandum sets out our response to the Committee's conclusions and recommendations.


Recommendation 1, 11 and 12

25.  We welcome the Committee's support for changes to our legislation that will improve the efficiency and effectiveness of our procedures, enabling us to take action to protect patients and the public more quickly.

26.  Since our oral evidence session on 14 June 2011, we have held detailed discussions with the Department of Health about the legislative changes that we require. We have developed proposals to change our rules relating to the investigation of fitness to practise allegations, procedures for seeking and making interim orders in fitness to practise cases and arrangements for allowing nurses and midwives to voluntarily remove themselves from the register.

27.  We opened a public consultation on these proposed changes on 1 September 2011 which concluded on 14 October 2011. We anticipate that our Council will approve the proposals on 24 November 2011. With the cooperation of the Department of Health we hope to have the new rules laid before Parliament in December 2011 coming into force by February 2012.

28.  The proposals do not address the Committee's recommendation that voluntary removal must only take place with the consent of the complainant. However, the rules will require that the complainant must be given a reasonable opportunity to comment before the application is considered and for their comments to be taken into account. This is in line with the approach taken by other healthcare regulators.

29.  Further safeguards have been put in place to ensure voluntary removal will only apply where specific criteria are met and not in cases where the public interest demands further investigation. In addition, the Registrar will take into account the fitness to practise history of any nurse or midwife who subsequently applies for readmission to the register.

30.  We are also strengthening the competencies required of the people who chair our fitness to practise panels. We will be recruiting against these competencies to drive up the standard of our panels' decision making.

Recommendation 2

31.  Since 2007 the NMC has had, along with the Health Professions Council (HPC) the lowest fee of the nine health professions regulators. We have considered arguments for a lower registration fee for new entrants. However the administrative costs would be considerable and the costs of regulating new entrants would remain. We also felt that it would be unfair to give a reduction to some and not all of those nurses and midwives on our register.

32.  Any future fee level will have to be considered against the dramatic increase in fitness to practise referrals. We received 4,211 referrals in 2010-11 compared to 2,988 in 2009-2010 - an increase of 41 per cent. Rising public awareness and media scrutiny of poor standards of care will mean this trend is likely to continue in the near future. This increased workload is putting more pressure on our resources. The legislative changes to streamline our fitness to practise operations will help mitigate these pressures to a degree.

33.  Even disregarding the financial impact of the increasing pressure on our fitness to practise function, the Government's proposals to make the Council for Healthcare Regulatory Excellence (CHRE) a self funding organisation via a levy on the healthcare professions regulators may have the unintended consequence of forcing us to increase the registration fee. Under the current options presented by the CHRE to the Department of Health, we would be expected to fund 35.5 per cent of their annual operating costs or £993,000 which is equates to an additional £1.50 for every nurse and midwife on the register.

34.  We do not support the proposed levy options. We undertook an assessment of the projected running costs of the CHRE and, based on activities they currently perform for us in terms of time and seniority of staff undertaking those tasks, we believe the costs are overestimated. We believe the work of CHRE could be undertaken - and paid for - on a case-by-case basis. This approach would be more proportionate, economical and less likely to impact on the current registration fee.

Recommendation 3 and 4

35.  We welcome the Committee's recognition that the NMC is a much improved organisation. However, we are not complacent and remain committed to making further improvements to our fitness to practise function and all other areas of our work. This includes proactive project work to develop UK regulatory policy where we believe it will further safeguard the health and wellbeing of the public. This would include, for example, exploring a mandatory model for regulation of healthcare support workers.

36.  We believe initiating projects in this way demonstrates to the public our leading role in enhancing patient safety and standards of professional practice in the public interest. Recent examples of this include:

15.1.  Launching the Meet the NMC monthly engagement events where directors of nursing, heads of midwifery and HR directors are invited to our offices to learn more about fitness to practise and emerging policy initiatives.

15.2.  Opening a new office in Edinburgh to increase our hearings capacity and to provide a focus for engagement with our stakeholders in Scotland. We are exploring options for opening an office in Wales.

15.3.  Making greater use of the proactive powers given to us under Article 22(6) of the Nursing and Midwifery Order 2001 to intervene where we become aware of poor standards of patient care.

37.  CHRE's most recent performance review acknowledges these achievements, and refers to our project helping to "protect the safety of some of the most vulnerable patients" (paragraph 16:17) and "contribute to improvements in patient safety." (paragraph 16:18).

38.  We are committed to demonstrating our leadership role not just to nurses and midwives but to the public and other stakeholders. Our new publication NMC Review, launched in spring 2011, provides policy news, features and comment of for leaders and managers in the nursing and midwifery professions. More than 70,000 have subscribed to the publication (October 2011).

39.  Other channels of communication include our Facebook page which communicates our work to over 20,000 people and our email newsletters which are targeted to specific audiences such as employers and reaches over 130,000 subscribers. In November 2011 we will commence distribution of a new leaflet: Complaints against nurses and midwives: Helping you support patients and the public - which tells patient support organisations what they can expect from a nurse or a midwife, and what action we can take if they make a complaint to us.

40.  In January 2012 we will launch a new service for nurses and midwives: the standards and ethics helpline. This will provide a direct communications channel for nurses and midwives to seek advice about ethical dilemmas they face in practice.

Fitness to Practise

Recommendation 5

41.  We acknowledged in our written evidence that we need to understand what is driving the increase in the number of referrals. We have recently completed a key piece of work funded by the Department of Health to consolidate fitness to practise historical data into a single database. This will enable us to compare our analysis of recent referrals with historical trends and should add to our understanding of why referrals are increasing and demonstrate concentrated areas of risk. The findings will be reported to our Council in January 2012 and will feed into revalidation and other areas of work.

Recommendation 6

42.  In August 2011 we appointed a new Head of Equality and Inclusion who is currently analysing the diversity data contained in our register. A preliminary report will be made to our Council by the end of the year. Once this work is complete we will examine how the data can be captured at each of the significant stages of our fitness to practise process.

Recommendation 7 and 8

43.  We share the Committee's concerns about poor standards of care. There is no excuse for abusive behaviour, neglect or failure to deliver basic standards of care.

44.  It is clearly stated in the code, that nurses or a midwives have a professional obligation to "make the care of people your first concern, treating them as individuals and respecting their dignity". As soon as we become aware of situations in which nurses or midwives may have fallen short of the code, we take action. Our response to critical incidents such as Mid Staffordshire NHS Foundation Trust, the Parliamentary Health Service Ombudsmen report and Winterbourne View is detailed in our evidence to the Committee.

45.  The majority of these cases involved vulnerable adults, particularly older people. We are determined to drive up the standards of care for these groups. The Committee noted that our Guidance for the care of older people, which outlines best care practice, provides a good platform on which to build. Since its launch in March 2009 we have distributed almost 400,000 copies of the guidance, which includes a leaflet for the public.

46.  In the autumn of 2010 we launched our safeguarding hub: an online information and training resource focused on safeguarding adults. The hub is designed around an award winning suite of films depicting challenging scenarios relating to the care of vulnerable people. The hub is designed to facilitate discussion and promote local solutions to help improve the care of vulnerable people.

47.  The importance of providing safe, effective and fundamental care to older people and other vulnerable groups is being built into all existing project work and will be embedded in our review of the code which is currently underway.

48.  However, driving up standards of care requires a multi-track approach that includes ensuring nurses and midwives report incidents of poor care, keep their professional knowledge and development up to date and ensuring the fundamentals of nursing and midwifery care are reflected in all the training programmes we approve.

Recommendation 9

49.  Nurses and midwives are required by the code to report their concerns about poor practice and we encourage employers to foster a collaborative approach and clinical culture that welcomes reporting.

50.  Our Guidance on raising and escalating concerns provides a step by step guide on how to raise a concern, when to escalate it and to whom. It acknowledges local whistle blowing policies and safeguarding procedures and makes clear that nurses and midwives have a professional duty to put the interests of the people in their care first and to act to protect them if they consider they may be at risk. The guidance also states that not acting in this way could result in a nurse or midwife being subject to fitness to practise proceedings. We recognise how vital it is to patient safety to promote this message and have in recent months made it a priority to do so. Our Chief Executive made a clear statement on this point following the publication of the Committee's report on 26 July 2011 and again in response to the Care Quality Commission's (CQC) report into the quality of care in the homes in the Castlebeck Group on 28 July 2011.

51.  However, creating an open reporting culture will require collaborative working from healthcare regulators, employers and healthcare professionals. We therefore welcome recommendation 19 in the Committee's report on the Annual Accountability Hearing with the CQC. The recommendation states "it should be a key objective of CQC inspections to ensure that the culture of each provider organisation recognises and respects this professional obligation, and provides proper security to those professional staff who discharge it effectively." We will work closely with the CQC through our memorandum of understanding to ensure this happens.

Recommendation 10

52.  We strongly support the Government's proposed review of the legislative framework to give greater autonomy to regulators to discharge their statutory duties. We are at the very early stages of engagement with the Law Commission in its work to create a single Act of Parliament to cover all existing health professions by 2014.


Recommendation 13 and 14

53.  The NMC is committed to delivering a revalidation system that will address the concerns raised by the Committee. It will require nurses and midwives to demonstrate that: they continue to be fit to practise; their knowledge and skills are up to date and specific to their current area and scope of practice; and the learning activities they undertake help them improve their practice.

54.  In the meantime we are working to strengthen the existing post registration education and practice (Prep) system to increase the safeguards for the public. We have refreshed the handbook that contains the Prep standards, by removing the examples, which no longer reflect contemporary practice. The new version of the handbook has been published and became effective on Wednesday 12 October 2011. We are also increasing the scrutiny of nurses and midwives who apply to be readmitted to the register within five years of their registration lapsing. They must now demonstrate that they meet our post registration practice requirements by providing a full record of practice undertaken during the period since their last renewal of registration.

55.  To further emphasise the importance of keeping practice up to date, our registrations department will in the new year, commence the annual calling in of re-registration information of a random sample of nurses and midwives on the register.

Recommendation 15

56.  We are confident that we will be able to deliver a system for revalidation by 2014. We have already engaged with 1,700 stakeholders to validate our initial proposals, address key issues and ensure that contributions to the development of the system are visible. This includes ongoing engagement with the Department of Health who gave their support for our high-level principles for revalidation.

57.  In early 2012 we will consult on a draft revalidation standard which clearly sets revalidation against the revised code, together with a draft revalidation guidance or advice focused on revalidation processes. We will also define options, assess their respective costs and benefits (both for the NMC and for nurses and midwives) and select the preferred option. We will pilot the system in late 2012 before starting to roll it out to the whole register in 2014.

58.  Revalidation and any legislative changes needed to implement it will be developed in close cooperation with the four UK departments of health.

Recommendation 16

59.  We welcome the Committee's recognition of the effectiveness of the midwifery supervisory model. The model provides expert advice, clinical leadership and support to midwives and acts as an independent monitor of safe midwifery practice.

60.  However the model is sustainable largely because of the number of midwives on our register, approximately 40,000 across the UK. The current phase of the revalidation programme focuses on consolidating the evidence base for revalidation. Part of this phase will focus on exploring the potential costs and benefits of extending to nurses a statutory supervision model. However, with over 630,000 nurses on our register it is unlikely this would prove economically sustainable.

Recommendation 17

61.  We already record on our register those nurses and midwives who have conditions imposed on their registration or who retire, leave the profession and inform us or if their registration lapses. This will continue to be done when revalidation is implemented.

62.  We are happy to co-operate with workforce planners to share any data we hold. It should be remembered that not all nurses and midwives work within the NHS. We therefore need to explore how any trends emerging for revalidation can be incorporated into planning both inside and outside the NHS.

Recommendation 18

63.  Since the Government's proposed abolition of the strategic health authorities in England, we have written to the Department of Health several times to express our concern about the impact this would have on the current hosting and functions of local supervisory authorities and local supervisory authority midwifery officers (LSAMOs). We would not want to see this valuable and effective system lost as part of the reorganisation and any changes may necessitate legislative changes to the Nursing and Midwifery Order 2001 and the NMC Midwives Rules 2004. We welcome the Committee's continued support in seeking further information.

European Issues

Recommendation 19, 20 and 21

64.  We welcome the Committee's view that the current legal framework governing the automatic recognition of European Economic Area (EEA) trained healthcare professionals, the EU Directive 2005/36/EC on Mutual Recognition of Professional Qualifications (the directive), needs to be changed to reflect modern practice and to better safeguard the public.

65.  Since our oral evidence to the Committee in June we made a submission to the European Commission's Green Paper consultation making our recommendations for changes to the directive. The recommendations included: the ability for healthcare regulators to undertake mandatory checks for language competence; updating of the minimum training requirements that allow healthcare professionals to qualify for automatic recognition and introducing mandatory continuous professional development. The next stage will be the consideration of draft legislative proposals by the Commission to the European Parliament and Council of Ministers later this year.

66.  In their Green Paper submission the Government broadly supports our proposals except those in relation to compulsory language testing at registration stage. In the meantime, we will continue to make our case at a European level.

67.  We strongly agree with the Committee that measures must be taken to mitigate the risk under the existing legislation. We welcome the Government's announcement on 4 October 2011 regarding the introduction of powers for "responsible officers" to have a mandatory duty to check all non-UK doctors that apply to work in the UK have sufficient English language skills. We believe that this is a positive step towards a more robust approach that includes the regulator as well as the employer, although we continue to believe that checks should be made before registration rather than after.

68.  The "responsible officer" model is part of the GMC's revalidation framework and not currently applicable to the NMC. We are therefore in the process of discussing with the Department of Health, other possible models that could be applied.

69.  In the meantime we plan to write to directors of nursing highlighting their duty under the code to escalate concerns they may have regarding the communication competencies of registrants they interview for prospective employment, regardless of the outcome of the interview. We will also continue to work with CQC to help enforce the responsibility of employers to ensure that their staff have sufficient knowledge of English.

Proactive regulation

Recommendation 22, 23 and 24

70.  We welcome the Committee's support for our proactive approach as we strongly believe this will help to drive up standards of care within the professions. So far in 2011, we have opened 241 cases where we have proactively found evidence of poor care.

71.  Since our oral evidence to the Committee we have appointed a Head of Critical Standards Intervention who will manage and further develop a knowledge management framework that responds proactively to the identification of poor practice. As part of this work they will consider trends in NHS and social care provider outcome and complaints data and take action accordingly.

72.  As part of the Law Commission work to help create a single Act of Parliament we will explore the scope to make clearer our existing powers of proactive investigation and where appropriate extend them.

The future of regulation

Recommendation 25 and 26

73.  We welcome the Committee's support for a mandatory statutory regulatory model for healthcare support workers working under the direct supervision of nurses and midwives.

74.  We agree with the Committee's view that only a mandatory regulatory model will be sufficiently robust to fully safeguard against those workers that present the greatest risk to patient safety and public wellbeing. Any final regulatory response to this risk should include:

53.1.   consistent UK wide standards of training and practice for healthcare support workers that would assure the public and employers they have the knowledge and skills to practise safely

53.2.  a mandatory register to keep track of a nationally mobile workforce and ensure workers who have been struck off the register maintained by the NMC are not re-employed in a healthcare support role

53.3.  statutory powers to take action to prevent those support workers that present the highest risk to the public from practising elsewhere.

75.  We have begun a project to fully scope the cost, standards and training requirements needed for us to establish such a mandatory model. We would welcome assurance from Government that clauses 225 and 226 of the Health and Social Care Bill as submitted to the House of Lords - which legislates for the powers for regulators to establish voluntary registers - will not bias against any future considerations of proposals for a mandatory model.

76.  In the absence of regulation of healthcare support workers, we believe that the only way to ensure public protection is to provide standards that will give nurses and midwives real clarity about safe delegation. Inappropriate delegation of care to healthcare support workers is a serious public protection issue. Delegation of nursing or midwifery care must be appropriate, safe and in the best interests of the person in the care of the nurse or midwife. We are therefore developing standards that will enable the registered nurse or midwife to be confident in the tasks they delegate. The standards will also ensure they recognise that they are accountable for the delegation of the task while at the same time retaining responsibility for the standards of care delivered in their areas.

Addendum to the Nursing and Midwifery Council's (NMC) response to the House of Commons Health Committee's annual accountability hearing with the NMC

Recommendation 26

The NMC's response to its annual accountability hearing with the Health Committee submitted in October 2011 stated that we would "develop a plan to work towards regulating healthcare assistants, support workers and assistant practitioners". Since the submission of our response, over the last few months there have been a number of developments which have led us to clarify our policy position.

We believe that any initiative which enhances the skills, knowledge and competence of healthcare support workers in enhancing patient and public protection is to be welcomed. We were clear in our response to the Committee that consistent national standards of training and practice for healthcare support workers will help to assure the public they have the knowledge and skills to practise safely.

We therefore support the government's announcement that Skills for Health and Skills for Care have been commissioned to develop common training standards and a code of conduct for healthcare support workers. We believe that together with the proposals for assured voluntary registration to be administered by the Council for Healthcare Regulatory Excellence (CHRE) and our own development of a delegation standard for nurses and midwives, this provides an effective framework for public protection.

The NMC has a challenging programme of work that we are committed to delivering particularly in making operational improvements to our fitness to practise service and developing a system of revalidation for nurses and midwives - two key recommendations of the Committee. The focus of our work and resources has to be on these priorities and therefore it is neither appropriate nor feasible for us to develop a mandatory model of regulation of healthcare support workers.

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