Nursing and Midwifery (Amendment) Order 2014

Baroness Brinton Excerpts

Thursday 27th November 2014 Grand Committee

[The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)]

My Lords, the Government have identified improvements that can be made to the legislation within which the Nursing and Midwifery Council operates, to improve public protection and increase public confidence in the Nursing and Midwifery Council. Therefore, the department carried out a UK-wide consultation on proposed changes to the Nursing and Midwifery Order 2001, which is the Nursing and Midwifery Council’s governing legislative framework. The majority of respondents supported these amendments.

The first of the proposed changes is to enable the Nursing and Midwifery Council to appoint case examiners who will be given powers currently exercised by the investigating committee to consider allegations of impairment of fitness to practise, following an initial screening which has considered that an investigation is appropriate. Two case examiners—one lay and one registrant—will consider the allegation, following the procedure set out in amendments to the Nursing and Midwifery Council (Fitness to Practise) Rules, which are being developed in parallel to this order by the Nursing and Midwifery Council.

The case examiners will then agree their decision on whether or not the registrant has a case to answer—this is the same process used by General Medical Council case examiners—and whether the allegation should therefore be considered by the health committee or by the conduct and competence committee. If case examiners fail to agree on whether there is a case to answer, the allegation will be referred to the investigating committee for determination. The introduction of case examiners should lead to the swifter resolution of complaints and thereby improve public protection and the efficiency of the Nursing and Midwifery Council’s fitness to practise processes, as well as reducing the stress to registrants caused by lengthy investigations.

The second change is to introduce a power for the council to review “no case to answer” decisions made at the end of the investigation stage in fitness to practise cases, and to make rules in connection with the carrying out of such a review. This will bring the Nursing and Midwifery Council’s power in line with the General Medical Council’s power.

The third change is to introduce a power to allow the council to delegate this function to the registrar—the chief executive. The amendments to the fitness to practise rules being developed by the NMC will provide that the registrar may review a “no case to answer” decision where new evidence comes to light that has a material impact on the original decision or if it is considered that the decision may be materially flawed, and in both cases that it is in the public interest to review. Save in exceptional circumstances, a review of a “no case to answer” decision cannot be commenced more than one year after the date of that decision.

The fourth change is to revise requirements for the composition of the registration appeal panel by removing the requirements for a Nursing and Midwifery Council member to chair the panel, which is intended to establish a clear separation of duties between the operational and governance functions to avoid suggestions of perceived bias and conflict. Additionally, it will remove the requirement for a registered medical practitioner to be on the panel in cases where the health of the person bringing the appeal is an issue. It is intended that medical advice will be provided by independent medical witnesses and reports to ensure the panel remains detached from that part of the process, and therefore making the process more robust and transparent. This will also ensure more consistency between registration appeals and fitness to practise appeals.

The fifth element is to clarify existing legislation that the Nursing and Midwifery Council’s Health Committee or Conduct and Competence Committee has the power to make a strike-off order in a health or lack of competence case upon a review of a final suspension order or conditions of practice order, provided the registrant has been the subject of such a final order for at least two years. This is not a new power but provides clarification of the existing legislation to protect patients and the public by ensuring that those whose fitness to practise is impaired cannot continue to practise.

The sixth change is to introduce a power for the Nursing and Midwifery Council to disclose to a third party certain information relating to a person’s indemnity arrangements for the purpose of verifying that information for the Nursing and Midwifery Council’s purposes. This will enable the Nursing and Midwifery Council to verify the information it receives to ensure that indemnity arrangements are in place and provide sufficient cover against the liabilities that many be incurred by a practising nurse and practising midwife registrant.

The seventh change is to give the Investigating Committee a new power to also make an interim order after it has referred a case to the Health Committee or to the Conduct and Competence Committee if that committee has not begun its consideration of the case. At present, once the Investigating Committee refers a case, the power to make an interim order rests only with the Conduct and Competence Committee or the Health Committee. This will ensure that if new information is received which suggests that an interim order is necessary for the protection of the public after a case has been referred to another practice committee, but before the committee has started to consider it, the Investigating Committee will have the power to make an interim order.

The introduction of case examiners and the power to review “no case to answer” decisions, made at the end of the investigation stage in fitness to practise cases will bring the Nursing and Midwifery Council in line with the General Medical Council. The implementation of these recommendations requires a Section 60 Health Act 1999 order to amend the legislation governing the Nursing and Midwifery Council. I commend this order to the Committee, and I beg to move.

[Baroness Brinton (LD)]

My Lords, this amendment to the Nursing and Midwifery Order is to be welcomed. A regulatory body has to balance the respected traditions and structures of an informed 150 years of experience with the urgent needs of the current issues that the council faces when there may be rare problems with registered nurses and midwives. Much of what is proposed follows good practice. However, there is one area in which I have some minor queries and I wonder whether my noble friend the Minister can help.

The move away from independent consultants forming an investigation committee to having an in-house employed case examiner raises two minor concerns that are not reflected in the consultation response at paragraph 8.6 of the Explanatory Memorandum. Will the case examiners have extensive training in gathering the evidence that they will have to present to the quasi-judicial relevant committee considering each case? Will the benefits that other investigating groups such as Ofsted and local government inspectors have, given that at least one member of those teams comes in from outside, ensuring that there is always fresh challenge, be lost with this new arrangement?

Secondly, as employees of the council, will their job specification make it absolutely clear that they must conduct their role without fear or favour? It may be obvious when they are dealing with people outside the council but occasionally—very rarely—there may be a case where, for example, a decision not to have an interim suspension might have resulted in further injury or damage, and therefore members of the council themselves and other judgments might be being examined. The case examiners must be truly free to examine the council’s own processes and to feel no pressure from their own managers.

The no case to answer decision and the independent chair of the appeals panel are important and to be welcomed. However, given what I have just said about the case examiners, I find it slightly peculiar to remove the requirement for a registered medical practitioner to be on the panel, because that person in the past has provided that independent voice from the members of the council.

The points that I have raised are minor ones, and I welcome the order. However, I hope that I can have some reassurance on these points relating to the new role of case examiners.