The devil is in the detail for preventative regulation

8 September 2015

The NMC released a statement last month in which they recognised that their legal framework is not fit for purpose.  NMC Chief Executive and Registrar Jackie Smith said that they need new legislation in order to improve the way they regulate nurses and midwives. 

This statement was made in response to a report from August 2015 entitled Rethinking Regulation by the Professional Standards Authority (PSA) (the body which regulates health and social care regulators). In her response to this report, Jackie Smith specifically referred to the need to focus more on prevention rather than on responding to concerns.  This was one of the main themes in the PSA’s report.  The PSA proposed that regulators “shift the allocation of their resources to a greater focus on preventing breaches of standards”.  This is a topical concern, with the NHS Five Year Forward View calling for a “radical upgrade in prevention” in public health. 

Nobody would argue that this is a bad idea: clearly it would be better if the regulatory regime contributed to improvements in healthcare and to the prevention of mistakes, rather than simply responding when standards have been breached and mistakes have happened.  The more difficult question is how this can be achieved.

The NMC’s new revalidation proposals (echoing the system put in place by the GMC in 2012) go some way towards placing the emphasis on prevention rather than cure, by requiring nurses and midwives to demonstrate that they practise safely and effectively throughout their career.  This should hopefully mean that deficiencies in a nurse or midwife’s performance will be spotted and addressed before a mistake is made, leading to a fitness to practise referral.

The statutory duty of candour introduced in 2014 (which requires NHS providers to be open with service users about their care and treatment, including when it goes wrong, within a “no blame” culture) should also serve to promote a culture of openness and transparency, where mistakes are reported and acted upon at an early stage, to prevent further harm. 

However, more is needed to deliver this fundamental shift in focus.  The Health and Care Professions Council (HCPC) and General Osteopathic Council (GosC) commissioned some research into this preventative approach.  One suggestion was the creation of “reflective spaces” away from  regulators “where professionals can discuss professional issues and problems freely with each other without fear of recrimination, and enquire freely of each other about any areas of concern”.  In theory, this sounds like a good idea, although it is unclear how uptake would be encouraged by under-performing registrants in most need of such a forum.   

The PSA and the NMC are right to highlight the problems with the existing system and the need for a change of focus.  The current system is very expensive, with investigations taking months to complete and hearings sometimes lasting for several weeks.  There must be a way that these resources could be redirected towards improving standards at the outset.   It remains to be seen however what practical detailed measures can be put in place to achieve this. 

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