Memorandum by the Nursing and Midwifery
Council
1. The Nursing and Midwifery Council (NMC)
is the regulatory body for nusing, widwifery and health visiting.
Established by Parliament, and with a UK-wide remit, the Council's
primary purpose is to protect the public. It achieves this through
maintaining a register of nurses, midwives and health visitors,
through setting and monitoring standards of education, practice
and conduct, and through handling complaints about misconduct
and unfitness to practise of those on the register.
2. The NMC was established under the Nursing
and Midwifery Order 2001 and opened for business on 1 April 2002.
The first Council is a transitional one and, as such, has been
wholly appointed by the government. The first "proper"
Council, which will most likely start in April 2005, will be part
elected and part appointed (see paragraph 5).
BACKGROUND
3. The legal basis for the Council's powers
is the Order (see above). These powers could be amended or revoked
by Parliament. Ordinarily, the Council's sole source of funding
is through the registration fees paid by those on its register;
the 644,000 people on the register currently pay £60 every
three years. Given that the NMC has been given new responsibilities
which its predecessor body did not have and which were funded
out of general taxation, the Department of Health has provided
some £1.869 million of grant funding for 2002-03. Further
funding is expected in 2003-04.
4. Parliament decides on the need for the
regulation of nurses, midwives and health visitors and has always
done so. In the case of midwifery, statutory regulation is 100
years old while nursing regulation is some 80 years old. While
the Council can change the way it fulfils its statutory requirements,
it cannot change its primary purpose or core functions. Only the
Privy Council can do this. Any decision to cease regulating these
professions would, presumably, be a matter for Parliament.
5. The Council has 35 members, of whom 23
having voting rights at Council meetings. The 23 comprise 12 practitioner
members (four nurses, four midwives and four health visitors—one
of each from England, Scotland, Wales and Northern Ireland) and
11 lay members. The other 12 members are alternate practitioner
members, mirroring the same professional and country breakdown.
Members are not representatives as such. Notwithstanding the transitional
arrangements referred to in paragraph 2 above, the practitioner
members are ordinarily elected to serve on the Council—and
the NMC is consulting this year on a draft election scheme—while
the lay members are appointed by the Privy Council under Nolan
principles. Once elected, those members still, technically, have
to be appointed by the Privy Council. Members of the current transitional
Council were all appointed under Nolan principles.
The Council's purpose is set out in the Order,
as are its core functions. The Order makes the Council's purpose
clear: "to safeguard the health and well-being of persons
using or needing the services of registrants". The Order
also spells out in some detail the Council's functions. The Order
states that "the principal functions of the Council shall
be to establish from time to time standards of education, training,
conduct and performance for nurses and midwives and to ensure
the maintenance of those standards". There is internal and
external assessment of the Council's effectiveness; the latter
is covered in the section on accountability. Internal assessment
of effectiveness is managed in several ways, namely through:
— The Council and its committees setting
and monitoring performance targets for the organisation;
— Use of a tool known as the balanced
scorecard, which is a means of recording and reporting organisational
success (or failure) and developments over and above purely financial
measures;
— An Audit Committee and internal audit
function.
6. Articles 37 and 38 of the Order set out
the several and various appeals processes open to those wishing
to challenge a decision of the NMC. Article 37 covers appeals
against decisions made by the Registrar, and these cover registration
decisions—refusal to accept an application or readmission
to the register, or renewal of registration. The appeals process
is internal, involving at least three Council members sitting
to hear the appeal, none of whom will have been involved in any
capacity in the case. Article 38 covers appeals against decisions
of the Health Committee and the Conduct and Competence Committee.
The appeals process is external, and involves application to and
consideration by the appropriate court. Depending on the nature
of the appeal, this is specified as the County Court, the sheriff
(in Scotland), the Court of Sessions (Scotland), the High Court
of Justice in Northern Ireland, or the High Court of Justice in
England and Wales.
ACCOUNTABILITY
7. The Nursing and Midwifery Council has
a number of clearly-defined external accountabilities and these
are shown below. However, its overriding accountability as set
out in the Order is to the Privy Council:
— Annual external financial audit and
National Audit Office audit;
— The presentation of reports to the
Privy Council. The Order states that "The Council shall consult
the Privy Council, or such person as the Privy Council may designate,
at least once in each calendar year, on the way in which it proposes
to exercise its functions . . .;".
— The Council for the Regulation of
Health Care Professionals—a new body which comes into effect
in April 2003 and which has oversight of the eight statutory health
regulators, including the NMC;
— The Charities Commission—as
a registered Charity, the Council has to meet the legal and other
requirements laid down in areas such as accounting procedures.
8. The accountability to the Privy Council
includes the default powers and a specific reporting mechanism.
If it appears to the Privy Council that the NMC has "failed
to perform any functions which . . . should have been performed",
the Privy Council may require the NMC to make representations
to it. Following those representations, the Privy Council may
give any direction to the NMC it deems appropriate. If the NMC
fails, in the Privy Council's view, to comply with a direction,
it may exercise any power of the NMC or designate a third party
to exercise that power.
9. The NMC is required under the Order to
publish at least annually a statistical report indicating the
"efficiency and effectiveness of the arrangements it has
put in place to protect the public from persons whose fitness
to practise is impaired . . .". A further de facto annual
report is also required on the NMC's wider functions. While not
directly accountable to Parliament, the Order specifies that this
report shall be laid by the Privy Council before each House of
Parliament.
10. As set out in paragraph 5, 24 of the
35 Council members are elected by those on the register. As stated
in paragraph 3, the NMC's main source of income is the fee paid
by those on the register. There is, therefore, an accountability
to registrants. The NMC has a duty to be an effective and efficient
regulator of the professions and to use its money wisely and with
probity. But the Order makes clear that our primary purpose is
public protection which may, on occasion, be in conflict with
the interests of those on the register.
11. The NMC sees itself as an open and transparent
organisation. All Council meetings are open to the public other
than for a segment covering matters such as staffing and appointments.
Meetings are attended by the press and public. All hearings of
the Professional Conduct Committee are open to the public. Again,
hearings are attended by the press and public. The Council's internal
assessment measure—the balanced scorecard (see paragraph
6)—is published on its website regardless of whether individual
figures show success or failure.
12. The NMC has in place, and is developing
further, a range of means by which the public can provide feedback
and contribute to policy:
— Through a public appointments process,
the Council has co-opted lay people onto its policy committees;
— Through a public appointments process,
the Council has established an 80-person reference panel to assist
with policy issues; more than half the members are lay people;
— The Council has established a panel
of lay people to sit on its Professional Conduct Committee panels,
hearing allegations of misconduct. (Each panel comprises one Council
member, one lay person and one practitioner;)
— The Council's website has a separate
entry point for members of the public;
— The Council consults user/consumer
groups on all major aspects of policy as well as on, for example,
the style and content of its public information leaflets.
13. Like many organisations, the NMC has
particular problems involving large numbers of the public in its
policy-making. The organisation has discussed the matter with
leading user/consumer groups, who frequently have the same problem.
Their advice is to use collective consumer bodies rather than
seek to contact individual members of the public. Such groups
certainly contribute to NMC policy-making and consultations. From
2003-04, and after one year of operation, the NMC will hold an
annual meeting in each of the four countries of the UK. Though
not a requirement, the Council is doing this in order to demonstrate
accountability to all its stakeholders, including the general
public. Such meetings are likely to be advertised in the main
regional daily press. While still in the minority, a growing proportion
of complaints received by the NMC about the conduct of nurses,
midwives and health visitors comes from members of the public.
(NB. Employers are the largest single source.)
14. The NMC is neither an instrument of
government nor a representative of the public. As set out in paragraphs
1 and 6, the Council's primary purpose is to protect the public.
As such, everything the Council does is guided by the concerns
of the public. The catch-phrase used by the Council on all its
publications is: Protecting the public through professional
standards.
15. The Council is not wholly independent
of government, nor can it be, but it is an independent body. It
is not, for example, a body sponsored by the Department of Health—a
non-departmental public body. The NMC currently has a great deal
of contact with officials in the Department of Health and the
equivalent health departments in Scotland, Wales and Northern
Ireland. But in the transitional phase that the Council is in,
there are good reasons why the dialogue between the Council and
the Department of Health should be an active one. There are matters
of interpretation of the Order, advice on delivering aspects of
the Order, consultation issues and, as already stated, transitional
funding.
16. Those issues which could in theory compromise
a regulator's independence from government include:
— On-going and/or substantial one-off
government funding;
— Involvement of government in individual
professional conduct cases;
— Appointment of the chairman/president
of the Council;
— Appointment of members of the Council;
— Direct accountability to the Government
(as opposed to Parliament or the Privy Council).
Sarah Thewlis
Chief Executive and Registrar
12 March 2003
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