To refer or not to refer

Launching a new monthly column analysing the hot legal and regulatory topics in social care, Nicola Wheater, a solicitor at Ridouts, examines when to make a misconduct referral to the Nursing and Midwifery Council (NMC).

Having reviewed some of the most recent NMC fitness to practise decisions, it appears care home providers continue to make referrals to the NMC. While some misconduct exhibited by nurses or nursing associates is relatively clear cut, some conduct or competency concerns fall below the threshold for referral and lead providers to question whether they should make a referral or not.

When to refer?

In accordance with its website, the NMC states that a provider should make a referral if there are:

1) Concerns that pose a serious risk to service users and would be difficult for the provider to put right - examples of this could include:

• Verbally, physically, or sexually abusing service users

• Stealing money from service users and/or taking advantage of them

• Deliberately falsifying service user records

• Causing avoidable clinical harm to service users

• Falsifying their nursing qualifications and incorrectly stating they are NMC registered.

2) Concerns where localised action is unable to manage effectively ongoing risks to service users - this largely applies to competency concerns where localised action taken by the provider has not worked or the nurse has suddenly left its employment. Practical examples of this could include:

• A nurse managing a health condition with the knowledge and support of the provider but thereafter fails to engage/ take medication impacting the safety of service users

• A nurse required to undergo further training and supervision to remediate clinical concerns but suddenly quits without notice. In doing so, and without restriction of practice, the nurse poses a risk of harm to future service users when starting new employment.

3) Concerns requiring the NMC to take action to protect public confidence in the profession and to uphold standards - examples could include:

• Stealing from the care home

• Obtaining a criminal conviction and intentionally failing to notify the provider or the NMC

• Posting homophobic, sexist or racist content online or exhibiting such behaviour towards colleagues in the care home.

In most cases, it is likely the provider (in the employer/employee context) would have commenced and completed its own internal disciplinary or conduct and capability proceedings prior to referring the concern to the NMC. However, and where the conduct or competency concerns raised are serious, a referral should be made straight away. Any conduct or competency concerns which do not meet the threshold for a referral, and are therefore considered low level, should be dealt with using the provider’s own internal disciplinary, conduct and capability processes, or through further training and supervision.

Care Quality Commission

Referral to the NMC may also coincide with notification to the CQC under Regulation 18 of the CQC (Registration) Regulations 2009 (Notification of other incidents) and failure to do so can result in prosecution. A safeguarding investigation may also arise out of the same set of factual particulars and any notifiable safety incidents will need to be disclosed to the service user and/or their family in accordance with Regulation 20 of the of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (Duty of Candour).

Conclusion

While deciding whether to make a referral to the NMC can be a daunting decision, the NMC has provided detailed guidance on its website to assist providers. The NMC has also established an Employer Link Service which enables employers to speak with the service where they remain uncertain whether to make a referral or not. Providers can also seek independent legal advice.

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