Marie Dancer offers her guidance on when you should think about reporting a colleague
What should you do when you become concerned about a colleague’s fitness to practise as a nurse?
The decision whether to talk to your colleague about your concerns, escalate the issue to your employer, or refer it to the Nursing and Midwifery Council (NMC) is a difficult balancing act, which is dependent on the particular circumstances.
Most concerns about nurses are better dealt with by an employer than the NMC. Employers should be left to investigate most concerns, at least initially. The NMC is increasingly keen to encourage local resolutions, particularly if it may be possible for the nurse to remediate any problems. Examples where this is likely include concerns about the competency of a colleague, which may be resolved by training or mentoring.
In the first instance, it may be sensible to have a private discussion with your colleague, if you feel there is a prospect of resolving your concerns informally. However, it may not be practical or productive to raise your concerns with your colleague directly. Your colleague may be senior to you or you may feel uncomfortable in raising your concerns face-to-face. In which case, you may prefer to talk to your employer. Most employers are receptive to having an informal discussion about your concerns.
If, once you have escalated your concerns to your employer, you are still worried that your colleague is unfit to practise, you may wish to informally engage with the NMC. You can call the new referrals team of the NMC to discuss your concerns.
Alternatively, you may wish to consider going straight to the NMC, without giving your colleague or your employer the opportunity to deal with your concerns locally — for example, if you are worried that your colleague is putting the public or patient safety at risk.
What sort of concerns do the NMC want to hear about?
The NMC considers the following types of allegations, which we will explore in more detail below:
- Lack of competence.
- Criminal conviction or caution.
- Not having the necessary knowledge of English.
- Fraudulent and incorrect entry onto the register.
- Serious ill health.
Most concerns about nurses involve an element of misconduct. This can include a multitude of issues, such as:
- A sexual relationship with a patient.
- Breaches of patient confidentiality.
- Serious or repeated mistakes in patient care.
Lack of competence
The NMC will usually expect your employer to have attempted to resolve competency concerns, to see if they can be dealt with locally. However, there may be circumstances when your concern is so serious that the NMC needs to be involved from the outset. For example, if you are aware that your colleague has additional employment elsewhere that may present a risk, your colleague is not willing to engage, or it is not possible to put appropriate safeguards in place.
Criminal convictions and cautions
When a nurse receives a criminal conviction or caution, usually the police will notify the NMC. The nurse also has an obligation to self-refer to the NMC. If a nurse fails to do so and the NMC finds out, then a nurse risks the allegation that they have dishonestly withheld the information.
The NMC is most concerned about criminal offences that involve dishonesty, such as theft or fraud, sexual or violent offences, or offences that suggest an underlying substance abuse problem. However, unless it is a simple motoring offence resolved by way of a fixed penalty notice, the NMC should be notified about a conviction/caution to enable it to assess the risk this may pose to
a colleague’s fitness to practise.
Not having necessary knowledge of English
The NMC regards this as a fitness-to-practise issue, as there are situations when a lack of knowledge of English may present a risk to patient safety.
Fraudulent and incorrect entry onto the register
If your colleague has lied about their qualifications or experience when applying for NMC registration, then you should make an urgent referral direct to the NMC.
Concerns about a colleague’s health is only regarded as a fitness-to-practise issue if they are not taking appropriate treatment and their health is putting patients at risk. Examples include long-term untreated alcohol or drug dependency, or unmanaged serious mental health illness.
This is a situation when you may wish to have a preliminary friendly discussion with your colleague. But if their problem is deep-seated, then this is likely to be unproductive. You may therefore decide to refer this to your employer. However, if you remain concerned about patient safety then consider also referring the matter to the NMC without delay.
What is the legal duty of a nurse to report a colleague to the NMC?
The NMC, alongside the other healthcare regulators, recently introduced the concept of ‘duty of candour.’ This imposes an obligation on nurses not to turn a blind eye to patient safety. Nurses have a professional obligation to take personal responsibility to ensure that their appropriate concerns are reported. You may liable to a fitness-to-practise investigation if you fail to do so.
What are the time limits for reporting a colleague to the NMC?
There are no time limits, but if you are concerned that your colleague poses a serious risk to patients, then you should make an urgent referral to the NMC and your employer.
How to refer a colleague to the NMC
This can be done in writing using the NMC’s referral form or by phone. The NMC will want detailed information about you as the referrer, your colleague and the incident.
Should you inform your colleague or employer that you have made a report to the NMC?
There is no right or wrong answer to this. But it is important to be aware that the NMC will share any information you provide to it with your colleague. You will therefore need to be prepared for your colleague and employer being made aware that you have referred your colleague to the NMC.
It is possible to anonymously refer your colleague to the NMC. However, there are inherent difficulties with this. For example, if the NMC wishes to clarify any aspect of your referral, it will be unable to do so, which may seriously hinder what it is able to do about your concerns.
How will the NMC deal with your referral about your colleague?
The NMC will write to your colleague explaining it has received a referral. And then it will write to your employer for information about any investigation it has already taken.
The NMC will then screen the referral to check that your colleague is a registered nurse, that it is something that it should be involved in and evaluate the prospect of obtaining credible evidence against your colleague.
When serious allegations are made, the NMC will consider holding an interim orders hearing to decide whether it should impose conditions or suspend your colleague, pending the outcome of its investigation.
If the NMC decides to proceed, it will investigate your concern, which will involve them talking to the relevant people to take a statement from them about what has happened. The NMC will then write to your colleague, to provide them with their evidence and to invite them to respond in writing with their version of events.
Your colleague’s case will then be considered by two case examiners, who will review the documentation and decide whether to:
- Request further investigation.
- Take no further action and close the case.
- Give your colleague formal advice or a warning.
- Refer your colleague for a hearing.
If your colleague is referred to the NMC’s Fitness to Practise Committee, a hearing is usually held in due course. Evidence is heard by the Committee and decisions are made about whether the allegations are found proven. If the allegations are found proven, the Committee will decide whether the findings amount to misconduct. If so, the Committee will decide whether the case is sufficiently serious to mean that the nurse’s fitness to practise is impaired, and if this is the case, then a decision is made about the most appropriate sanction. Sanctions can include a caution, imposing conditions on the nurse’s registration, suspension or removal from the register.
What your ongoing involvement may be in the process
The NMC will keep you updated regarding its actions about your concerns. If, for example, you have witnessed any misconduct or incompetence yourself, the NMC will take a witness statement from you about what happened. Depending on how matters develop, the NMC may require you to attend the hearing to give evidence.
Marie Dancer is a partner at Richard Nelson LLP and specialises in defending nurses and other healthcare professionals in fitness to practise matters