Responding to NMC Investigations

During a NMC investigation, nurses have an opportunity to respond to enquiries and this could influence the outcome of the investigation but it is essential that legal advice is sought at an early stage.

NMC Screening

Screening is the first stage in the Nursing & Midwifery Council’s (NMC) investigation process, where allegations or complaints are ‘screened’ to establish if these warrant further investigation.

If the screening team decides that a concern needs further investigation, they will pass it onto the investigation team that will gather further evidence including documents, witness statements and information from employers.

During this stage of the NMC’s fitness to practise investigation, nurses will have an opportunity to respond to allegations or complaints through NMC enquiries.

What the NMC investigates

The NMC investigates ‘serious concerns’ about a nurse’s fitness to practise which could place patients at risk, or negatively impact public confidence in the nursing and midwifery professions.

The NMC’s statutory powers to carry out investigations related to two kinds of allegations:

fraudulent or incorrect entry of an individual nurse, midwife or nursing associate to our register
fitness to practise of nurses, midwives or nursing associates.

Allegations about fitness to practise can be based on:

misconduct
lack of competence
criminal convictions and cautions
health
not having the necessary knowledge of English
determinations by other health or social care organisations

NMC Investigations

The first thing to note is that nurses are under a duty to ‘cooperate’ with an investigation. In particular, the duty extends to nurses needing to provide the NMC with details of where they are working and any arrangements they have to provide nursing and midwifery services.

Beyond this, any information provided by nurses are at their discretion. However, it should be noted that responding to NMC investigation enquiries can influence the outcome of the investigation and nurses should carefully consider their position. The NMC makes a point of saying that lesser sanctions, such as warning or advice, would not be considered if a nurse does not respond to their enquiries.

Responding to NMC enquiries

How can a nurse respond to NMC enquiries?

At the outset of an investigation, the NMC will write to the nurse to ask them to send a response to the ‘regulatory concerns’ about their practice. In practical terms, this is normally a form which focuses on information the NMC says it would be ‘interested to hear about’ in order to understand the context within which a concern may have arisen.

It must be noted that this form does not provide an exhaustive list, and nurses can respond with any information they think is important for the NMC to know about the background to an incident.

Importance of legal advice

Beyond the limited information a nurse have to provide (under the Code), there is no further duty or requirement on a nurse to send a response, or provide a response to the concerns at all during the investigation.

In most cases, a carefully considered and clear response will be beneficial for a number of reasons:

It can focus the investigation on the relevant aspects or issues;
Address any facts that are in dispute;
Help focus on the context in which the concerns came about;
Provide an opportunity to present evidence of insight and strengthened practice; and
Raise the likelihood of the matter being closed without the need for a Fitness to Practise Committee.

Nurses who are the subject of a NMC investigation and considering their position should seek legal advice at the earliest possible opportunity. Specialist legal advice can provide nurses with advice and guidance as to the need for a response, the contents of such a response and when to respond. In some cases, it may be appropriate for a nurse to not provide a response at all.

The NMC suggests that it will take into account the context in which an incident occurred and evidence of insight and ‘Strengthened Practice’ (or Remediation). Seeking legal advice at an early stage will also assist a nurse with by agreeing the right strategy, particularly with regard to insight and remediation. These often take time to gain and evidence, but can mean the difference between an investigation being closed or escalated to a full fitness to practise hearing.

Insight Works Training will help give you a clear and easy to follow understanding of the regulatory process, explanation of the central role of impairment, how to approach insight and remediation, how to evidence this at your hearing and a directed approach to presenting your learning with evidence in writing and verbally.

Kings View Barristers

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 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.