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Regulatory News 

Protecting the public

This year we have again seen a 13% increase in the number of fitness to practise cases notified to us by the regulators, from 3,566 in 2013/14 to 4,043 in 2014/15. This continues the trend of increases year on year in the number of cases, which we noted in last year's report. The majority of the cases (nearly 65%) relate to NMC panel decisions.

During 2014/15, we considered 49 cases at formal section 29 case meetings, compared to 29 cases during 2013/14.  We referred 21 cases to court.

There are currently five live appeals. Two High Court appeal hearings have taken place.  In one, an appeal of an HCPC panel decision was dismissed.  A High Court hearing of an appeal against a GMC decision was heard on 28 April 2015.  The High Court has reserved its judgement in that appeal.

Court hearings, which are open to the public, are listed to take place on 1 July, 10 July and 21 July 2015.

Learning from our cases: the importance of candour
One of our cases was recently reported in the Nursing Times,  high-lighting the need for nurses (and all health and care professionals) to put patients first – in front of loyalty to colleagues.  The appeal was heard in December 2014, but it is timely to consider it now, in advance of the introduction of new guidance for professionals on their responsibility under the Duty of Candour.

The evidence available to the NMC about the incident was that a Charge Nurse, al-leged that she had been assaulted by a patient and reported this assault to the po-lice (April 2011).  A nurse, who had witnessed the incident, provided a brief factual report in which he did not raise any concerns about the incident and made no other comments (orally or in writing) about what he had witnessed (April 2011).  

The nurse’s employer began an investigation into the events that occurred that day on the psychiatric ward, as did the police, on the basis that the patient had assault-ed the Charge Nurse.  It was only when the police contacted the nurse in August 2011 that he sent an email to a manager in which he asked for his name to be re-moved from the witness list as ‘the statement that I give would not help [the Charge Nurse’s] case as I did have concerns for the events of the shift/period on question…I feel that I should be supportive to team members, and support their case. Please could you advise the most appropriate course of action. Thanks’.

It was clear from the evidence that the nurse had concerns on the day of the assault but did not raise these issues with anyone:  The nurse had seen the Charge Nurse standing on a sofa, jumping onto the back of the patient and holding her in a head-lock; he also stated that the Charge Nurse had been verbally abusive to the patient.  When asked why he did not immediately escalate his concerns he said that he was waiting for people to come to him; that he had reported the matter to his supervisor and that initially his interest was to protect the Charge Nurse.

The nurse appeared before an NMC Conduct and Competence Committee (CCC) for failing to complete a serious incident report in relation to an allegation that the patient had assaulted the Charge Nurse and that he failed to immediately report that he had witnessed the Charge Nurse acting inappropriately towards the patient. The CCC concluded that the nurse’s fitness to practise was impaired and that conditions of practice were the appropriate sanction as they could be formulated to address the issues identified in his practice (that is that he needed to update his knowledge on safeguarding vulnerable people).  The CCC also stated that there was no evidence of the registrant being generally incompetent, or any evidence of attitudinal problems.  The CCC rejected imposing a more severe sanction (a suspension order) on the basis that suspending the registrant would not address the concerns identified in his practice, or allow him the opportunity to improve his knowledge and understanding so that he could safely return to unrestricted practice.  He was given a nine- month conditions of practice order.

We appealed the case on the grounds that the NMC’s decision was unduly lenient and the NMC should have included dishonesty in its charges as in failing to do so the NMC allegations did not sufficiently reflect the seriousness of the registrant’s conduct. The High Court held that whilst it may not have been necessary to include an allegation of dishonesty, there was ample evidence to justify an allegation that the nurse had deliberately failed to report the incident in order to protect the Charge Nurse , and in doing so, put the Charge Nurse’s interests ahead of those of the patient. 

The High Court said ‘…the root cause of the problem lies in the failure by the NMC to adequately reflect the seriousness of the registrant’s conduct in the charges…This is therefore a case of undercharging, not because the NMC should have alleged dishonesty, but because in these particular circumstances the reasons why there was a failure by the registrant to report the incident for five months matter a great deal in evaluating (a) the true seriousness of the registrant’s behaviour and (b) what the appropriate sanction should be – including making a decision as to whether this is really a problem that can be rectified by further education, or whether there is a deep seated attitudinal problem, and therefore whether the public interest would demand a period of suspension.’

This case is particularly important now, in the light of professionals’ new responsi-bilities under the Duty of Candour and the legal obligations of their employers.

The responsibility for putting patients first is already set out clearly in the revised NMC Code (effective from 31 March 2015):

‘You put the interests of people using or needing nursing or midwifery ser-vices first. You make their care and safety your main concern…’.  

The nine regulators we oversee have signed up to a joint statement on the professional Duty of Candour and further guidance is due later this year.

Health and care professionals and their employers will need to work together to put the Duty of Candour into effect.  Employers may find the research paper we published in support of our advice to the Secretary of State on the duty of candour helpful.  The paper sets out a number of conditions that need to be met to help professionals speak out. Download candour research paper.

Performance Review
The performance review is our annual check on how effective the regulators have been in protecting the public and promoting confidence in health professionals in the UK, in social workers in England and in the regulators themselves. We will lay our Annual Report and Performance Review 2014/15 before Parliament in June.  

We are planning to change the way in which we carry out performance reviews in future. You can respond to our public consultation about those changes here.

Rosalyn Hayles
Director of Scrutiny and Quality