NMC Investigatory Stage
The Nursing and Midwifery Council (NMC) receives thousands of complaints each year against nurses. Complaints can be made by members of the public, colleagues, or employers. Complaints are initially considered by the NMC’s Case Officers, an Investigations Committee, and then the NMC’s Case Examiners. Later, allegations might be referred to the NMC Conduct and Competence Committee for a hearing.
When a complaint is first scrutinised by the NMC, there is a sift of complaints that do not warrant further investigation. Allegations that do not raise a cogent case that a registrant nurse or midwife’s fitness to practise is impaired will not be investigated. On occasions an allegation may be so trivial, obviously unfounded, or be outside of the NMC’s remit, that the NMC’s case officer chooses not even to place the complaint before the Case Examiners. The NMC investigation of complaints against nurses can be broken down into three stages.
Stage 1:- This is the stage when the registered nurse first receives notification of the allegation, sent by the NMC. The nurse is invited to comment if they so wish, in writing. There is no hearing for the nurse to attend as the Case Examiners meet in private. In certain circumstances an considered reply (backed up by evidence) from a nurse will lead to the case being closed on paper. However, where there is insufficient information for the Case Examiners to close the case in a way that demonstrates they have properly explored the evidence, the Case Officer or Case Examiners will instruct independent solicitors to investigate the case against the nurse. This entails the solicitors approaching witnesses who can give evidence against the nurse, in support of the allegations. Such an investigation can take several months to complete.
Stage 2:- Once the NMC’s independent solicitors have completed their investigation, they will supply the registered nurse with a copy of the evidence bundle to be placed before the NMC Case Examiners (a registered nurse and a lay person). The bundle will contain formal witness statements and exhibits. The solicitor also provides a report, summarising the evidence, setting out the allegations that can be proved, in their opinion, on the balance of probabilities. The allegations are then put into formal charges that the nurse can admit or deny. The nurse should seek in most cases to provide a reply, backed up by witness statements, exhibits, testimonials that report on character and competence, and other relevant documentation. The solicitor may comment further on the nurse’s written response. An in-house lawyer at the NMC, usually a barrister, will review the evidence and the charges and may redraft certain charges, propose that certain charges are dropped, or draft entirely new charges. The nurse is then given a further opportunity to comment. Where there is any failure in the process to enable to nurse to comment then the proceedings may be open to challenge by way of judicial review. A judicial review has time limits, and must be brought within three months or earlier if possible. The court can reject applications that are not brought promptly.
The NMC Case Examiners will look at whether there is a prima facie case against the nurse that the nurse’s fitness to practise is currently impaired (by reason of health, conduct/competence), or whether there is a case of fraudulent entry to the register. The case examiners look at whether the facts alleged can be proved on the balance of probabilities. While the Case Examiners will take into account the nurse’s response, the panel cannot ordinarily make findings of fact. This is because the credibility of the witnesses both against the nurse and for the nurse cannot be determined on paper. Therefore, where there is a clear difference of recollection or assertion about the history of events that took place, the panel must ask itself whether on one interpretation of the evidence against the nurse the case could be proved on the balance of probabilities. The panel will then also look at whether the facts alleged (about the actions or omissions of the nurse), if found proved proved (on the balance of probabilities), could constitute misconduct (or impairment by other reasons such as ill-health) that in turn could lead to a finding (by a panel that heard the evidence) that the nurse’s fitness to practise is currently impaired, the case will be referred to Stage 3, a hearing (usually in public) to determine the issues. An alternate procedure is there to deal with fraudulent entries to the register.
In some cases, the evidence obtained by the NMC will be such that it is inevitable that there will be a hearing, and it may therefore not be a wise move to reply to the allegations at either of stages 1 or 2. The NMC might however close the case in relaion to certain or all of the charges, if the nurse admits the history and provides strong evidence of insight, remediation, suitability to practise now and in the future, and that future risk of repetition is negligible.
Where a nurse admits fault they might be given a warning without being referred to a fitness to practise hearing. This is a relatively new measure (2017). Also, a warning might be imposed in relation to a nurses admissions, but where the NMC is of the view that it cannot prove the remainder of the case against the nurse. See the NMC Guidance on Warnings for more details:
Stage 3:- The NMC Case Examiners refer cases to the NMC’s Conduct and Competence Committee, where there is a prima facie case that a nurse’s current fitness to practise is impaired.
When the NMC Conduct and Competence Committee receives the referral from the NMC Case Examiners, it must write to the nurse to ask them whether they want their case to be determined at a hearing (in public) where they can question and challenge the witnesses who intend to give evidence against the nurse; or, to be referred to a meeting (a private hearing) which is determined on paper, without the nurse or any witnesses attending. In some cases a meeting may be entirely appropriate, but in the majority of cases a hearing is necessary. Nurses should beware of making a decision to have the case determined in private at a meeting (out of embarrassment or a fear of engaging in the process) because the nurse will have little real opportunity to challenge the case against them and to put their own side of events, except on paper. This carries high risks as an NMC meeting panel has all options available to it, including erasure (a striking off order). It is therefore important that a nurse chooses with some considerable care whether to elect for a NMC hearing or an NMC meeting. A hearing is often the better option to go for. Read more about NMC Hearings on other Nurses Defence Service web pages.
See our NMC IOP Procedural Flowchart:-
You can also download this NMC IOP document in PDF format: NMC Investigations Flow Diagram
Since January 2013 the NMC may also hold Consensual Panel Determinations, which avoids the need for a full fitness to practise hearing. Such hearings are usually suggested when there is little factual dispute over the allegations. A panel will determine whether a sanction can be imposed without the need for a full fitness to practise (FTP) hearing. In the event that there is no agreement the case will be referred to a FTP hearing.
Nurses Defence Service advises nurses who are going through an NMC Investigation. To discuss your case in confidence and without obligation, to see how Nurses Defence Service may be able to assist you, call us on: 0800 01 22 506