NMC Fitness to Practice: a radical change?

In this post Roger Kline, Research Fellow at Middlesex University Business School, examines a new consultation document from the Nursing and Midwifery Council, which includes long-overdue changes to the NMC’s Fitness to Practice processes.

On March 28th 2018 the Nursing and Midwifery Council agreed a public consultation document on Fitness to Practise that states there is a pressing need for further change to fitness to practise for the following reasons:

• A growing body of evidence suggests that an unintended consequence of regulators’ current fitness to practise model is a culture of blame and denial. That runs contrary to the values of openness and learning that are central to a patient safety culture.
• We know from our own research that black and minority ethnic nurses and midwives are more likely to be referred to us by employers. That disproportionality creates a perception of unfairness which, again, runs contrary to patient safety,” Paper NMC /18/33.

Step forward anyone who would have imagined this five years ago.

The regulators of UK healthcare professionals have been heavily criticised (including by me) in recent years. Those criticisms have included failing to get the balance right between blame and learning; an inability to hold employers and senior managers to account whilst drawing individual registrants into long and damaging processes which are not obviously in the interests of patients but are damaging to staff; not supporting whistleblowers who are referred to the NMC as punishment; not sufficiently taking account of the context (such as staffing shortages, or bullying) in which fitness to practice is questioned;  and failing to respond to patterns of the disproportionate referrals of black and ethnic minority registrants without questioning why patterns exist.

In some senses, the regulators have mirrored the failings of employers who themselves have too often focussed on individual blame rather than systemic failings, on individual lapses rather than the context which made shortcomings in practice likely. The pattern of disproportionate referrals of BME staff to regulators reflect the pattern of disproportionate disciplinary action against BME staff in the NHS.

Why a new strategy?

So what has led to this change?

Firstly, there is a growing understanding within healthcare that learning from mistakes and poor performance is rather more productive than finding scapegoats for what went wrong. Fifteen years ago An organisation with a memory emphasised the importance of understanding systemic shortcomings rather than individual errors. More recently the thinking of patient safety advocates such as Sidney Dekker and the relentless work of the Clinical Human Factors Group has been influential.

Secondly, is a growing understanding that how staff are treated is intimately linked to the care and safety provided to patients. Staff engagement, respect and compassion are good for staff and patient care and safety whilst bullying and discrimination are not just morally offensive but are unacceptable because they waste talent, damage staff health, increase turnover and absenteeism, and are linked to poorer and less safe care. In particular, strong correlation has been established between the treatment of Black and Ethnic Minority staff (one third of doctors and one fifth of nurses and midwives) and the treatment of (all) patients. This understanding has led to the NHS Workforce Race Equality Standard, and a strategy for leadership development that explicitly links this evidence to healthcare improvement.

Thirdly there is now an awareness that the previous (unevidenced) dominant HR paradigm of primarily relying on policies, procedures and training to enable individual staff to challenge bullying, discrimination or unfair treatment was unlikely to ever succeed.  Instead, the best employers are now emphasising the employer’s responsibility to proactively intervene, prevent (not just respond to) unfair treatment and to try to ensure staff are treated fairly.

Parallels with disciplinary action

There are important overlaps between these themes which can decisively help in reducing levels of bullying, tackling discrimination and reducing the scale of unnecessary disciplinary action in the NHS, and in particular the disproportionate impact of such action on BME staff.  Early evidence from a number of NHS trusts suggests, for example, that inserting some form of accountability prior to any disciplinary investigation being started would help shift the focus from blaming individuals to considering system failures that are the predominant causes of errors. Together with applying the science of “human factors” which focusses on system shortcomings not just individual failings might allow healthcare employers to follow the expectation of the courts that they stop their “knee jerk” use of disciplinary suspensions.

It is much more likely that BME staff will enter the disciplinary process, and research suggests a prime reason for this is the failure of managers, at the point at which when errors or poor performance occur, to have the same informal and honest conversations with BME staff that they should normally expect to have with white staff. A small but growing number of NHS Trusts have demonstrated that radical reductions in the levels of disciplinary action, and not only for BME staff, can be achieved in ways which also prompt learning, not blame.

The nursing regulator sees the light too

I know from discussions with the NMC that their new strategy is in part a response to these developments. It is also a response to research commissioned by the NMC in which Elizabeth West and colleagues confirmed the nature and scale of disproportionate referrals of BME staff from employers, but interestingly not from members of the public.

The paper approved by the NMC Council on March 28^th rightly states that:

“We consider that effective and proportionate fitness to practise means putting patient safety first, and that an open, transparent and learning culture will best achieve this. We are not alone in thinking that a culture of blame and punishment is likely to encourage, cover-up, fear and disengagement.”

It goes on to explain that:

“To achieve these aims, we need to take a consistent and proportionate approach to fitness to practise. We also need to be fully transparent and accountable… We will need to deal with concerns when they are serious enough that we need to take regulatory action to ensure patient safety, or because they cannot be managed locally… In these types of cases we should take into account the context in which patient safety incidents occur and also enable registrants to remediate concerns at the earliest opportunity. Then we should only hold hearings where there are real areas of dispute to be resolved.”

New strategic principles

The proposed strategy sets out its two “desired regulatory outcomes” as:

• “A professional culture that values equality, diversity and inclusion and prioritises openness and learning in the interests of patient safety.”
• “Being fit to practise means that a registrant has the skills, knowledge, health and character to do their job safely and effectively.”

The consultation document sets out a number of (welcome) strategic principles which include:

• “Fitness to practise is about managing the risk that a registrant poses to patients or members of the public in the future. It isn’t about punishing people for past events.”
• “We will take account of the context in which the registrant was practising when deciding whether there is a risk to patient safety that requires us to take regulatory action.”
• “We may not need to take regulatory action for a clinical mistake, even where there has been serious harm to a patient or service-user, if there is no longer a risk to patient safety and the registrant has been open about what went wrong and can demonstrate that they have learned from it.”

The paper argues there will always be instances where disciplinary action by employers and regulatory action by the NMC is appropriate:

• “We will always take regulatory action when there is a risk to patient safety which is not being effectively managed by an employer.”
• “Deliberately covering up when things go wrong seriously undermines patient safety and damages public trust in the professions. A registrant who does so should be removed from the register.”
• “We will only take regulatory action to uphold public confidence if the regulatory concern is so serious that otherwise the public would be discouraged from using the services of registrants.”
• “Some regulatory concerns, particularly if they raise fundamental concerns about the registrant’s professionalism, can’t be remedied and require removal from the register.”

A change of culture

The paper calls for “a professional culture that values equality, diversity and inclusion and prioritises openness and learning in the interests of patient safety” and explains that:

“When looking at harm, we need to differentiate carefully between accidental errors or failures in the system, and deliberate or reckless behaviour and those who conceal patient safety concerns… Maintaining public confidence in the professions doesn’t mean that we need to punish people when something goes wrong. Making a registrant go through a lengthy fitness to practise process just to punish them would be counterproductive, given that a blame culture undermines patient safety.”

The paper continues:

“Research also tells us that our current fitness to practise processes don’t contribute to a healthcare culture that values diversity, equality and inclusion. There is an overrepresentation of registrants from outside the EU and from black and minority ethnic (BME) backgrounds in fitness to practise proceedings, driven by disproportionate referrals from employers.”

This is not just an issue for nursing and midwifery registrants. The paper notes that:

“This is a concern in other parts of the regulatory sector. General Medical Council research found that BME and non-UK doctors are overrepresented in investigations, (General Medical Council: ‘The state of medical education and practice in the UK 2015’  (pp. 58- 83) ) while five years of General Dental Council hearings data reviewed by the British Dental Journal in 2009 showed that dentists trained outside the UK made up 42% of registrants charged (Singh et al ‘A five-year review of cases appearing before the General Dental Council’s Professional Conduct Committee’ British Dental Journal vol 206 no. 4 Feb 28 2009).

The PSA too

At its Board meeting the week previously the Professional Standards Authority (the regulator of professional regulators) finally moved in a similar direction by including a new draft Standard 3 on diversity, for consultation, which adds a new requirement that:

“The regulator understands the diversity of the registrant population and its service users and ensures that its processes do not impose inappropriate barriers or otherwise disadvantage people with protected characteristics”.

Reflection

This changed paradigm for the regulation of nurses and midwives is very welcome. However, setting out the new strategy is one thing, applying it may be another. To do so successfully will inevitably mean the NMC will need to:

• Query why some employers have much higher levels of referrals than others and what the implications for a learning culture are
• Ask some employers why BME nurses and midwives are being disproportionately referred. NMC investigation panels and staff will need to rethink how every referral is handled
• Insist on greater diversity on panels and amongst senior staff at the NMC
• Query employment practices within some employers which discriminate against some BME registrants (deliberately or otherwise)
• As the strategy itself explains this will involve the NMC “holding full hearings only in exceptional circumstances”
• Acknowledge the evidence that referrals can seriously damage the health of nurses and midwives most of whom are cleared eventually of any breach of the NMC Code.

There are elements of the report which need scrutiny, notably regarding transparency in those hearings that do still take place. But, in my view, this welcome consultation document signals that the NMC is now serious about adopting an evidenced approach which draws on human factors and the evidence of discrimination. At a time of immense pressures on front line staff and their managers it has never been needed more. The real test now is whether this change of direction in policy can be effectively translated into improved practice. For that to happen will requiring not only holding the NMC to account, but the leadership of nursing and midwifery throughout this land. Read it and decide for yourself.

Read the full consultation document ‘Ensuring patient safety, enabling professionalism’ on the NMC’s website

Roger Kline is Research Fellow at Middlesex University Business School. He was previously joint director of the NHS Workforce Race Equality Standard implementation team. He was co-author with Michael Preston Shoot of Professional Accountability in Social Care and Health: Challenging unacceptable practice and its management (Sage. 2012)