“Regulation beyond the echo chambers”: who is listening?
The Nursing and Midwifery Council (NMC) is the statutory body responsible for regulating Nurses and Midwifes in England, Wales, Scotland and Northern Ireland.
On Monday 26 September the NMC made a significant alteration to their publication policy. Detailed in the NMC’s ‘Fitness to Practise (FTP) Publication guidance’ the NMC indicated that the particulars of allegations faced by registrants will now be kept private until they have been read out at the final hearing.
The NMC had previously published extensive detail on allegations faced by registrants, including specific particulars of the allegation faced. Such information was accessible to the public through the NMC’s website www.nmc.org.uk.
The reversal in policy does come after a consultation on the NMC conducted by the Department of Health in April 2016: ‘The Nursing and Midwifery Council - amendments to modernise midwifery regulation and improve the effectiveness and efficiency of fitness to practise processes’. However, as no mention is made of any intention to reduce information available prior to hearings, it appears that the NMC has taken this decision independently.
The NMC’s new publication guidance states at paragraph 20 “We do not (and are not obliged to) publish detailed charges against a nurse or midwife before the hearing starts. We consider that putting such information into the public domain at this stage is disproportionate and can be prejudicial to a nurse or midwife, in that the charges may be subsequently amended and / or not ultimately proved by the NMC. Once the charges have been confirmed to the panel on the day of the hearing, these will be available upon request.”
The move marks a step away from the practice adopted by other regulators in the health sector. For example, the General Medical Council (GMC) continues to publish details of upcoming hearings of the Medical Practitioners Tribunal Service (MPTS) and the General Dental Council (GDC) publishes particulars of the allegations to be heard by its Professional Conduct Committee.
The NMC now simply publishes the type of fitness to practise issue that the allegations against the registrant fall into. For instance, a cursory look at the NMC’s website shows a series of allegations against registrants now labelled under the heading of “misconduct” without elaboration on what this misconduct refers to. The headline allegation, along with the name of registrant and details about the date and venue of the hearing, will be available to the public five days before the hearing.
More detailed information about the case, including specific particulars, will only be openly available once charges have been formally read out during the final hearing that is open to the public. In cases held in private, this information will not be accessible until the conclusion of the case.
However, it seems that this initial protection is not afforded to those registrants subject to interim orders in the lead up to the final panel hearing. Paragraph 32 of the guidance makes clear “Interim order hearings before any of the NMC committees (including the IC) are held in public. So when an interim suspension or conditions of practice order is imposed the outcome and public conditions are published via the hearings and sanctions section on our website.”
Despite the NMC’s assurance that the move is designed to protect registrants from ‘disproportionate’ punishment ahead of a hearing, the move has left the regulator open to some criticism.
For one, it will now be difficult for those outside of the investigation to obtain an insight into the nature of the case that the registrant faces, which to some may fly in the face of the ‘open justice’ principle. Additionally, without public knowledge of individual particulars, the NMC will have an opportunity ahead of the public announcement of the allegation to drop any matters which may have caused embarrassment to the regulator if aired publicly.
In truth, it is too early to see any real impact of the move. However, it seems reasonable to suggest that cases will now be more rigorously reviewed before being brought to the public’s attention. The additional time before the allegations become public allows more time for scrutiny by the parties and re-drafting (if needs be) ahead of publication. This is a clear benefit for registrants in understanding the case against them.
Finally, the move comes at a time when regulators have come under increasing scrutiny to comply with The Data Protection Act 1998 to ensure that personal information is not unhelpfully released. The additional time that cases spend outside of the public eye should add a further layer of protection to the management of often extremely sensitive data.
At this stage, it remains to be seen whether the move will prove successful for the regulator, or pave a move towards similar measures from others in the health care sector. With the NMC’s commitment to reviewing and improving, the success of this move will no doubt become evident in the not too distant future.
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