This week, the Nursing & Midwifery Council (“NMC”) announced their decision to introduce ‘agreed removal’ for nurses, midwives and nursing associates (“registrants”) replacing the previously known process of ‘voluntary removal’.
As readers will be aware, voluntary removal was the process by which registrants applied to voluntarily remove themselves from the NMC register for various reasons e.g. health, retirement or a change in circumstance whilst subject to actual or potential Fitness to Practise allegations.
Under the voluntary removal process, registrants would apply to the NMC to remove themselves from the register at any point during the Fitness to Practise process. The NMC, however, would not consider any applications until they had completed their investigation(s) of current Fitness to Practise matters and the Case Examiners had determined there was a case to answer.
On receipt of an application for removal, the NMC would consider whether the registrant intended to reapply to join the register within the next five years in addition to considering comments received from the referrer, the registrant’s interests, and the public interest in accordance with The Nursing and Midwifery Council (Education, Registration and Registration Appeals) Rules 2004 (“Rules”).
The NMC would only accept applications for voluntary removal where the following conditions were met:
- The registrant accepted the allegations raised against them and impairment of their Fitness to Practise;
- The concerns raised against the registrant were not so serious as to be fundamentally incompatible with being a registrant. [If the concerns were serious, and action needed to be taken to uphold the Standards and protect the reputation of the profession, the NMC would not entertain the application in the first place]; and
- The registrant accepted they had no intention to continue practising as a nurse, midwife or nursing associate etc.
Under the ‘new’ agreed removal process, the NMC has essentially removed the above-stated three conditions from their guidance and confirmed that the Registrar or Assistant Registrar (together “Registrar”) will now consider an application for agreed removal based on all relevant information. As such, applications for agreed removal can be considered at any stage during the Fitness to Practise process including during a substantive hearing (see below for further information).
When considering an application for removal, the NMC will continue to seek comments from the referrer and consider the registrants interests alongside the public interest in accordance with the Rules. As such, and where concerns raised are so serious and could result in the registrant being struck off the register, “they will always need to be fully investigated and put before an independent panel”.
Where an application for agreed removal is successful, the NMC will amend the register so that ‘removed by agreement – outstanding fitness to practise question’ is recorded on the registrant’s register entry and the NMC will publish a brief summary of the regulatory concern(s), the registrant’s response, and the reasons for agreeing the removal. This information will stay on the registrant’s register entry for one year from the date of removal and the NMC will share the draft narrative with the registrant so “they can comment on it before it is finalised and placed on the website”.
The NMC have also stated that details of the regulatory concern(s) may be shared with employers or recruitment agencies on request providing the public interest test is met and the registrant will duly be notified of the information shared, where applicable.
Applications during a hearing
Whilst applications for voluntary removal have previously been possible during substantive Fitness to Practise hearings, the new agreed removal guidance states, in brief that:
- The Fitness to Practise Panel (“Panel”) will decide when the application should be considered with a view to minimising disruption caused to the hearing and the Panel will be invited to make a recommendation as to whether the application for removal should be agreed; and
- Once the Panel have made a recommendation, the hearing will adjourn and the application will be considered by the Registrar who “will take any recommendation given by the Panel into consideration as one of the factors relevant to their decision”. Where the Registrar agrees the application, the hearing will automatically conclude unless there is an interim order in place. If the Registrar does not agree with the application, the hearing will continue.
Where an interim order is in place, the interim order will need to be revoked by an interim order’s panel (or the Panel if the hearing is currently in progress) before the agreed removal can take effect.
Application before an investigation has concluded
In connection with removal applications made prior to the conclusion of an investigation, the guidance states that the Registrar will agree to removal if:
- they have sufficient information to make a fully informed decision;
- they are confident that immediate removal will protect the public; and
- they can explain their decision to remove the registrant to third parties.
Whilst the removal of conditions will create, at face value, greater flexibility for the NMC, the fact remains that the Registrar is still bound by the criterion detailed in the Rules, serious concerns will only be considered by a Panel and, in the NMC’s own words, “the fact that a professional hasn’t accepted the concern could in some cases be relevant to the Registrar’s assessment of whether there is an overriding public interest in those concerns being considered by a Panel”.
Therefore, and whilst the aforesaid conditions are no longer criterion to be routinely applied by the Registrar in considering removal applications, they still remain, by their very nature, relevant considerations for the Registrar to consider when making an agreed removal decision. By and large, they will also form the basis of legal submissions to be made by legal representatives, on behalf of registrants, when addressing removal from the register.
Further, and whilst the process permits applications to be considered before an investigation has concluded, the current guidance states that the Registrar has to be in receipt of all relevant, salient information prior to making a removal decision. Arguably, this is akin to the completion of an investigation and therefore very little appears to have changed under the new process.
Going forward, it will also be interesting to see how agreed removal applications made during substantive Fitness to Practise hearings (“hearing”) will play out in practice. As a means of example, how long will it take the Registrar to make and draft a decision, how detailed will the Registrar’s decision be, and how many hearings will go part-heard as a result? In addition, and most concerningly, how will the flow of a hearing be impacted by an unsuccessful application, will allowances be made for the registrant’s reaction(s) following an unsuccessful application, especially if the registrant is not legally represented, and how will the Panel react should their recommendation not be heeded by the Registrar and what impact will this have on the hearing?
Whilst we wait to see how this process manifests itself in future hearings, what is glaringly apparent, right now, is that the move from voluntary removal to agreed removal is purely a change in name with very little meaningful change in substance benefitting registrants.
If you are a nurse, midwife or nursing associate facing an NMC Fitness to Practise investigation or hearing and need legal assistance, please contact Ridouts on 0207 317 0340.