NMC Restoration Where There Are New Concerns

NMC Restoration Law and Policy

Restoration where there are new facts to consider – an article by Penny Maudsley, Barrister, and former nurse and midwife.

Where a clinical practitioner has been removed from the professional register, be it medical, nursing or other regulator, for disciplinary matters, they can apply for restoration onto the register after 5 years have elapsed.

However, there are occasions when the practitioner has received a further misconduct or other referral before they were removed and, due to the removal, the regulator did not investigate the new issues. Additionally, there may be fitness to practise issues that arise after removal, which will not have been dealt with as the practitioner was already removed from the register. What is a restoration tribunal to do in such instances?

When the practitioner applies for restoration, these new, unresolved matters will have to be considered by the restoration panel as part of the restoration hearing and the assessment of the applicant’s suitability to return to the register.

Recently, this author noted some inconsistency in the approach by the General Medical Council and the Nursing and Midwifery Council when assisting a person’s application for restoration where there are new matters of concern.

The Medical Practitioner Tribunal Service guidance (a comparison to NMC policy)

The Medical Practitioner’s Tribunal Service (MPTS) has produced guidance for the Medical Practitioner’s Tribunal; Guidance for medical practitioners tribunals on restoration following disciplinary erasure.

According to the Guidance, the test to be applied by tribunals when considering if a doctor should be restored is that ‘having considered the circumstances which led to erasure and the extent of remediation and insight, is the doctor now fit to practise having regard to each of the three elements of the overarching objective?’

This is in line with case law, GMC v Chandra [2018] EWCA Civ 1898 (August 2018), which states that the overarching objective is the primary consideration at restoration cases;

♦ protect, promote and maintain the health, safety and well-being of the public;

♦ promote and maintain public confidence in the professions;

♦ promote and maintain proper professional standards;

The test at the MPT very much focuses on impairment. Part C of the Guidance sets out ‘the approach tribunals should take in restoration hearings following disciplinary erasure where there are new allegations of impairment.’

Part C of the guidance

At Part C, the MPTS Guidance states:

The approach which tribunals should take is to consider all the factors detailed in part B in relation to the original matters which led to erasure. In addition, where there are previously untested allegations which call into question the doctor’s fitness to practise, tribunals must weigh the evidence carefully to reach a judgment:

♦ firstly on whether the new allegations are proved on the balance of probabilities;
♦ secondly on whether the doctor’s fitness to practise is impaired by reason of those new allegations.

Part B of the guidance

Part B sets out the approach tribunals should take in restoration hearings following disciplinary erasure. It highlights the key factors that tribunals should consider, emphasising the importance of evaluating all three elements of the overarching objective when determining a doctor’s fitness to practise.

The Tribunal must consider the circumstances that led to disciplinary erasure and whether the doctor has demonstrated insight into the matters that led to erasure, taken responsibility for their actions, and actively addressed the findings about their behaviour or skills.

The Tribunal must also consider what the doctor has done since their name was erased from the register and what steps they have taken to keep up their knowledge and skills since they were erased.

The NMC guidance

The Nursing and Midwifery Council’s guidance, Deciding on applications for restoration Reference: NMC APP-2a sets out the NMC’s approach.

The test for the NMC is stated as being:

‘In deciding whether the applicant is now a fit and proper person to practise as a nurse, midwife or nursing associate, the Fitness to Practise Committee needs to consider our overarching objective of public protection and explain how its decision fits with that objective.’

The NMC’s guidance refers to unresolved matters and states:

Our legislation states that when the panel makes its decision on whether to restore an applicant to the register, it must be satisfied “on such evidence as it may require.”

Similarly, our legislation says that we can direct the panel “to any relevant evidence.”

It is for the NMC to prove the unresolved concerns on the balance of probabilities. If the panel find those concerns proved, we’ll ask the panel to consider them along with any other relevant factors when making its decision on whether to restore the applicant to the register.

Both regulators agree that when there are new allegations that have not been resolved at a restoration hearing, there will be a finding of facts on the new matters.

This is similar to a substantive hearing before a fitness to practise committee. The Council, GMC or NMC, has the burden of proving the facts on the balance of probabilities. The committee will then make a finding on whether the facts are proved.

Thereafter, this is where the regulators appear to part company on the topic.

The MPTS approach

The MPTS states that the Tribunal is required firstly to determine the facts and secondly to determine whether the practitioner’s fitness to practise is impaired.

This implies a specific consideration of current impairment on the new facts, if found proved.

Impairment, of course, may include a finding of misconduct, depending on the allegations, as well as consideration of impairment.

However, if there is a finding of impairment immediately following a finding of facts, there would be no need to consider restoration, as the doctor would not be fit to practise as a result of the factual findings. This makes a restoration application redundant and surely not what the MPTS intended in its guidance.

The exercise, therefore, has to be conducted as part of the restoration case. The Tribunal must consider both the new and original matters. It has to consider the doctor’s level of insight, attempts at remediation and therefore risk of repetition separately, as outlined in Part B of the guidance. The result, however, is the same. If the Tribunal conducts the deliberations on impairment on the new facts and finds misconduct and impairment, as the guidance states it must, it is irrelevant whether the doctor has remedied everything that led to erasure.

The NMC approach

The NMC takes a very different approach once there has been a finding of facts.

The NMC considers all the ‘relevant evidence,’ which includes the new matters if found proved.

The findings are considered alongside all the evidence that led to striking off. There is no separate ‘impairment’ stage which means any issues of misconduct will not be considered by the Panel and no consideration of current impairment on the new facts.

If the finding of facts arguably do not amount to misconduct, then that will be a factor in the applicant’s favour when considering all the ‘relevant factors.’ However, there is no separate finding of misconduct as there is with the MPT.

The Panel will decide, overall, whether the applicant is now a fit and proper person to be restored. This will, of course, include any reflection and attempts at remediation to determine whether there is a future risk and whether the overarching objective is satisfied if the applicant is restored.

Misconduct and impairment are matters that are relevant to a substantive fitness to practise hearing, not restoration. A committee decides impairment prior to the imposition of a sanction. The NMC did refer to impairment as ‘suitability to remain on the register without restrictions.’  If a practitioner is not on the register, how is impairment a consideration?

However, overall, the objective of both regulators may amount to the same thing. A ‘fit and proper person’ is not defined. Does it essentially mean impaired?

Should committees just consider that the only test for restoration is the overarching objective, whether the applicant, if restored, will protect the public, maintain standards and confidence in the profession? To determine this, the committee will still need to consider the level of insight, reflection, remediation and remorse. There is no need to make separate findings of ‘impairment’ or determine whether the applicant is a ‘fit and proper person.’

Other Pages: Restoration Guidance

If you are a nurse or midwife applying for restoration to the NMC register and seek advice and guidance, call Nurses Defence Service. Call Nurses Defence Service on 0800 01 22 506