NMC Consensual Panels Explained

Nurses can avoid the anxiety and cost of a full fitness to practise hearing through consensual panel determinations but care should be taken when deciding the best route to take.

NMC Consensual Panel – Overview

A consensual panel determination offer nurses and midwives an alternative means of dealing with fitness to practise allegations found proven by the NMC, thereby avoiding the need for a full fitness to practise hearing.

There are certain criteria to meet to be considered for a consensual panel determination, but most importantly, a nurse must admit the factual allegations against them and agree that their fitness to practise is impaired as a consequence.

As part of the consensual panel determination process, the NMC will also decide on the appropriate sanction, and the nurse must agree to this.

Sanctions

The NMC have the full range of sanctions available to them as part of the consensual panel determination process. The outcome of the panel can either decide to:

accept the provisional agreement, or
reject the provisional agreement.

Insight and Remediation

Evidence of insight and remediation can play a critical role in the outcome for nurses and midwives. The consensual panel will refer to the NMC sanctions guidance when considering whether the sanction proposed is appropriate and proportionate.

The NMC, and guidance, considers an “admission of impairment” as an indication of “a level of insight that’s essential for a sanction to be agreed and for the case to be resolved by a consensual panel determination agreement.”

The guidance goes on to say that aggravating features include “lack of insight and remediation”. Conversely, mitigating features include “evidence of insight and understanding of the problem, and their attempts to address it” and the “early admission of the facts, apologies to anyone affected, any efforts to prevent similar things happening again, or any efforts to put problems right”.

Caution must be taken

Consensual panel determinations might appear an attractive option or alternative to a nurse or midwife, but care must be taken before agreeing to this option. It will not be appropriate in certain circumstances where their allegations or evidence are in dispute.

The NMC itself recognise the importance and necessity of legal representation for nurses. Its guidance states that:

If they meet the criteria, we consider if the nurse, midwife or nursing associate has legal advice or representation.

If there are concerns about the nurse, midwife or nursing associate’s ability to understand the effects of seeking a consensual panel determination, we’ll try to resolve them, and may recommend that they seek legal advice. If it’s not possible to resolve those concerns, it might not be possible to pursue a consensual panel determination.

Admitting to the factual allegations against you and agreeing that your fitness to practise is impaired as a consequence is significant. The implications of this could have long reaching implications for nurses. For example, a consensual panel determination would likely be considered in any future fitness to practise issues arising.

Our case success

With over 30 years combined experience, Kings View Chambers have established itself as one of the best when it comes to fitness to practise defence. We fully understand that fitness to practise defence is not merely about processes and procedures. We also understand that we are working with people who are anxious and worried about what investigations might mean for them, their professions and the reputations.

We have represented hundreds of nurses and midwives for over this period. Recent case success for nurses include:

We are proud to be rated ‘excellent’ by our clients. Our commitment to client care is genuine in both seeking the very best outcomes for our clients, but also ensuring we do what we can to support them through the process.

Contact us today for a no obligation and free telephone consultation about your case in the knowledge that you are speaking to one of the best in the business.

In upholding the appeal, Alan Bates, sitting as a Deputy Judge of the High Court, said:

Failure to assess witness credibility and reliability The panel did not sufficiently evaluate the general credibility and reliability of key witnesses, whose evidence was essential to the charges. It failed to consider factors such as contradictions between witnesses' accounts and whether their testimonies should be approached with caution. This omission undermined the panel's ability to justify its conclusions.
Lack of explanation for preferred evidence The panel failed to provide adequate reasons for preferring the complainants' evidence over the appellant nurse's and the paramedic's. Simply stating a preference for certain witnesses' accounts without detailed justification left the appellant without a clear understanding of why her evidence was rejected.
Errors in evidence evaluation The panel assessed each charge in isolation without considering broader patterns or contextual evidence. It failed to recognize that inaccuracies in one allegation (contradicted by CCTV) could cast doubt on the reliability of witnesses' accounts in other allegations, leading to flawed conclusions.
Improper handling of contextual evidence The panel neglected to evaluate the behaviour of the complainant nurses during the investigation, which was relevant to determining their credibility. Additionally, it overlooked the appellant nurse's claims that the allegations were fabricated to remove her from her managerial position.
Insufficient reasoning for findings The panel provided inadequate reasoning for its findings of misconduct. It did not fully explain how the evidence supported its conclusions, including why the NMC had met the burden of proof for each disputed allegation. This failure left the appellant with unsubstantiated conclusions, undermining the credibility of the process.

Lessons

This case highlights several critical considerations for fitness to practise tribunals. One key lesson is the importance of thoroughly evaluating the credibility and reliability of witnesses, particularly when their testimony is central to the charges. Without such assessments, the accuracy and fairness of the tribunal’s findings can be compromised. Witness accounts must be examined not only in isolation but also in a broader context, taking into account patterns and inconsistencies to achieve a holistic evaluation.

Additionally, tribunals must provide clear and rational reasoning for their decisions. Merely preferring one witness’s account over another without detailed explanations can lead to procedural unfairness. Ensuring transparency in decision-making fosters trust in the process and supports robust outcomes. Tribunals must also maintain procedural fairness by upholding the burden of proof on the prosecuting body. Accused parties should never feel pressured to disprove allegations, as fairness is crucial to preserving the system’s integrity.

Finally, the impact of procedural delays cannot be underestimated. Prolonged proceedings can cause undue harm to the accused, affecting their career and reputation. Timely resolutions are essential to upholding justice while minimizing unnecessary stress on all parties involved. By focusing on these principles, fitness-to-practise tribunals can enhance the fairness and effectiveness of their proceedings.

Disclaimer: This article is for guidance purposes only. Kings View Chambers accepts no responsibility or liability whatsoever for any action taken, or not taken, in relation to this article. You should seek the appropriate legal advice having regard to your own particular circumstances.