Guidance on being a witness at an NMC Hearing - NHS North West

<strong>Guidance</strong> on being a witness at an
NMC Hearing
Norma Fryer July 2010

NMC Referrals
Consideration of cases where there are
allegations of impaired ‘fitness to practise’
– Misconduct
– Lack of competence
– Health concerns
[Nursing & Midwifery Order 2001 Part V - Health Act 1999
Article 21 Fitness to Practise Rules ]

NMC Referrals for Investigation [ total number of
nurses and midwives on Register 680,000 in 2008 - 2009 ]

Who Refers ?

Midwifery referrals
• Clinical concerns/
– poor antenatal surveillance
– medication errors
– fetal monitoring
– failure to respond to ‘deviations’
– perineal care issues
• Untimely referrals – lack of assertion or urgency
• Communication
– unclear systems
– inappropriate attitude/ behaviour to clients or staff
– poor records
• Lack of insight into accountability
• Dishonesty; fraud
• Lack of competence
[ see Analysis of 2008 -2009 LSA Annual Reports to NMC (2009b) and North West LSA
Annual Report 2008 – 2009 (2009) ]

Health Referrals
Mental health illnesses
Alcohol/drug misuse
Physical illness
Account for around 8% of all total cases investigated ( includes midwifery
referrals) NMC (2009a) Fitness to Practise Annual Report 2008 - 2009

Fitness to Practise
Committees
• 3 Main Committees
– Investigating Committee
– Conduct and Competence Committee
– Health Committee
• Panellists appointed to each Committee
– Registrant members
– Lay members
– Medical practitioners for health cases

Judgement of proof
Evidence is judged on the civil standard of
proof i.e. the alleged incident or behaviour is
more likely than not to have occurred
‘the balance of probabilities’

INVESTIGATION PROCESS
INVESTIGATION
required
REFER for
Interim
Order
Case CLOSED
Further
information
requested
Case CLOSED
REFER to
Health
Committee
REFER for
Fraudulent
Entry
Hearing
Solicitors Investigation
REFER to Conduct
and Competence
Committee

REFERRAL for INTERIM ORDER
HEARING
NO ORDER
REQUIRED
–
substantive
investigation
continues
INTERIM
CONDITIONS OF
PRACTICE ORDER
Imposed
INTERIM
SUSPENSION
ORDER
Imposed
REVIEW after 6
months and then
every 3 months

CONDUCT AND COMPETENCE
HEARING
CAUTION
ORDER
CONDITIONS OF
PRACTICE ORDER
Imposed
SUSPENSION
ORDER
Imposed
NO ORDER
REQUIRED
REVIEW
STRIKING
OFF
ORDER

Appeals and restoration
• Council for the Health Care Regulators [CHRE]
review outcomes of all cases to determine any undue
lenience
– reasons given inadequate or
– sanction does not fit the fitness to practise decision
• Registrant also has a right to appeal to CHRE who
may exercise a right to overturn an unfair sanction
considered to be too harsh
– reasons given were inadequate
– not possible to assess the merits of a decision
• Restoration – practitioners may apply after 5 years

What is a WITNESS?
• PROFESSIONAL:
– witness to the facts
relating to an incident
• EXPERT:
– person whose expertise
and knowledge is called
upon by a professional
regulator or the courts
• ‘NON’ PROFESSIONAL:
– citizen who may have a
legal responsibility to
provide evidence in court
or at a tribunal

PROFESSIONAL Witness
• Direct observation of an incident or event
• Non direct observation of event but has
• accountability for care provision at the time of an event
e.g. manager
• knowledge and/or has some professional accountability
for the supervision of an individual where an allegation
has been made e.g. manager or Supervisor of Midwives
• statutory responsibility for a particular discipline e.g. LSA
Midwifery Officer

Role of the PROFESSIONAL
Witness
• Cooperation - investigation
• Submission - documentary evidence
• Attendance - NMC Conduct and
Competence Committee ‘hearing’

Use of witness STATEMENTS
• Documented FACTUAL account
• Revised into an appropriate format - approved and verified
as the TRUTH by an external solicitor
• Considered and presented as EVIDENCE by the NMC ‘In
House Legal Team’ at a hearing [Case Presenter]
• Needs to stand up to scrutiny at a hearing
– evidence that falls short of required standards are
unlikely to be used at a hearing
– will enhance the credibility of a witness

Role of NMC Case Presenter
NMC Case Presenter
– Presents the case on behalf of the NMC
– Determines who shall be called as a
witness
– Guides witnesses prior to the hearing but is
not ‘on your side’ – represents the NMC

Scrutiny of evidence
• The Conduct and Competence Panel
– Power to determine whether to admit (accept)
certain pieces of evidence
– Do not know anything about the case beforehand
– Written evidence presented on the day of the
hearing [under review]
– Establish and clarify context, circumstances and
points of evidence
– Confirm practices or systems in place within the
organisation at the time of the incident (s)
• Judgements on evidence
– Discussions held in private
– Decisions disclosure in public

NMC ‘Public’ Hearing
• Environment
– Venue usually London
– ‘Hearing’ room very formal
– Rooms for witnesses allocated away from Registrant
– Delays possible before being called
– Access to hearing only after you have given evidence
• Process
– Adversarial system requires examination and cross
examination
– You may feel YOU are ‘on Trial’ - techniques may be
adopted to disconcert you e.g. present challenges to your
records and evidence

Conduct and Competence Panel
• Panel of lay and registrant members
– Usually 3
– One acts as Chair
– One on same part of Register (due regard)
• Legal Assessor
– Independently appointed
– Advises on process and point of law
– Does not take part in any decisions made
1
2
3

‘The Hearing’ Process
• Charges
Registrant
– Confirms ‘admission or ‘denial’ of charges?
• Presentation of evidence
Witnesses
– Examined by NMC Case Presenter
– Cross examined by Registrant or their representative
Registrant
– Examination of facts by Registrant or their representative
– Cross examined by NMC Case Presenter
• Consideration of evidence
Panel
– Is there proof that the event (s) occurred ?
– Does the charge (s) prove misconduct or lack of competence?
– Is the Registrant’s current ‘fitness to practise’ impaired?
– What is the appropriate and proportionate restriction on practice
i.e. sanction?

Being’ a Witness - Process
• Sworn in
• affirmation of truth or oath to a religious text
• Personal introduction
• state who you are
• rehearse your professional biography
• Relationship with Registrant and case
• knowledge of the event or events
• knowledge of the person
• knowledge of the context - organisational systems
• Presentation of evidence
• examined – NMC Case Presenter
• cross examined – Registrant/Representative
• Questions from the Panel

‘Presenting’ yourself as a Witness
• Presentation
• body language
• eye contact with person asking
questions
• professionalism - you are
representing your profession as
well as yourself
• Language
• voice - speak slowly and clearly ;
silence and pauses are OK
• respond calmly – you are not
there to win arguments
• avoid being vague i.e. using
words/phrases such as probably;
I think, it was usually done that
way; I assume
• stick to the point

Response to Questions
• Give considered responses that give a clear picture of your
association with the Registrant and events
• Present fact not opinion about the charges
• Know when to say you ‘don’t know’ or ‘can’t remember’
• Ask for questions to be repeated if unclear or if you are
distracted by background noise
• Be prepared to answer questions regarding practices and or
policies at the time of the incident
• I accept this practice has now been questioned/changed
• I can confirm that this happened
• It is my recollection that at the time ….
• I am not able to comment on that
• That is the information passed to me at the time
• That is what I observed

Personal preparation for being a Witness
• Support
– LSA Midwifery Officer and Supervisors of Midwives - may be
attending as witness or may come to support you
• Expectations
– familiarisation/update on NMC processes
– access and familiarisation with personal statement prior to being
‘called’ - you will not have a copy when you give evidence
– be ‘well rehearsed’ – both in knowledge of personal statement
and the reason why you are involved as a witness
• Physical and emotional preparation
– travel, accommodation and subsistence requirements
– personal presentation – ‘dress code’
– strategies to deal with personal stress

Feedback from Midwives –
personal experience
• Unprepared/unaware of the NMC Fitness to Practise processes
• Naïve in understanding the role of being a witness
• Having to spend long periods of time before being called
• Unclear of the roles of the Panel and personnel
• Belief that the NMC legal presenter was ‘on their side’
• Time lapse – memory of events and content of statement
• Not having access to evidence at the hearing
• Feeling that you were being scrutinised rather than the midwife
• NMC lawyer not prepared/fully conversant with the case
• Feeling threatened by the examination /cross examination
process
• New experience
• Distractions when being asked questions
• Supervision – recognising the importance of evidence
presented regarding supervised practice - documentation
inadequate

References
• See NMC website www.nmc-uk.org
• NMC (2004) Midwives rules and standards, NMC London
• NMC (2009a) Fitness to Practise Annual Reports 2008 – 2009,
NMC London
• NMC (2008) The Code : standards for conduct performance and
ethics, NMC London
• Nursing & Midwifery Order 2001 [Statutory Instrument 2002 No
253] Order on Council 2001 set up under the Health Act 1999 -
Article 21
• NHS North West (2009) Drazek M North West LSA Annual
Report to the NMC on the Statutory Supervision of Midwives
and Midwifery Practice
• NMC (2009b) Supervision support and safety – analysis of the
2008 -2009 LSA Annual reports to the NMC, NMC London