Summary

Changes are afoot - both imminent and on the horizon - in the world of regulation for doctors, nurses and midwives.

The Nursing and Midwifery (Amendment) Order 2017 will - from 31 March 2017 - bring about the ending of local statutory supervision of midwives, meaning that sole responsibility for midwifery investigations/sanctions will fall to the NMC.

The Order does not just affect midwives. There will be numerous changes to the NMC's fitness to practise rules for the nursing profession as a whole. The aim is to streamline procedures and allow for a more proportionate response where appropriate - e.g. more scope for the NMC to agree undertakings and give warnings, with the aim of reducing numbers of hearings. It is notable how many of the forthcoming new rules are already in place at other healthcare regulators - in particular, the GMC.

In the longer term, it appears that a single, joint regulator may once again be on the cards, with talk of the Department of Health planning to launch a consultation about this.

What will the changes be?

A central plank of the Nursing and Midwifery (Amendment) Order 2017 is that the current system of statutory supervision of midwives at local level will shortly be coming to an end. (This is despite 84% of those who responded to the Department of Health's consultation on this last year saying they disagreed with the proposal to remove statutory supervision of midwives). Whilst there will still be a system of supervision focusing on support and development of midwives, supervisors of midwives will no longer be involved in regulatory investigations and sanctions. Instead, sole responsibility for midwifery regulation will fall to the NMC, as it does for nurses generally.

The Order will also remove the statutory requirement for the NMC to have a Midwifery Committee, although this change may have limited impact in practice because there will still be a panel to provide expert advice on midwifery matters.

In terms of wider changes to NMC rules, these relate mainly to the introduction of new powers in relation to issuing warnings/agreeing undertakings and creating a single Fitness to Practise Committee (rather than having separate conduct/competence and health committees as currently). The proposal is for these changes to come into effect from 28 July 2017.

Under the current system, a warning can only be given if there is a finding that a registrant's fitness to practise is currently impaired and there is no provision for the NMC to accept undertakings from a registrant. The amendments to the rules will bring the NMC in line with the GMC, by giving case examiners the power to impose a warning (even if they find there is insufficient evidence to send the case to a hearing) and the power to "advise" a registrant as to their future conduct. The power to impose a warning, in the absence of a finding of current impairment, deals with the concern expressed in recent case law that a finding of no impairment at the NMC amounts to a "complete acquittal" of the registrant. In addition, the new rules will provide for the agreement of undertakings relating to the registrant's future practice (e.g. a commitment to undergo further training). All these innovations have been long tried and tested at the GMC and other regulators.

Practical Impact?

Removing the existing additional tier of regulation for midwives in the form of the Local Supervising Authorities will not only have a significant impact on how individual midwives are regulated, but will also be likely to change the approach of employing Trusts where issues or concerns are raised in relation to one of their midwives. At the moment, many Trusts tend to allow the LSA Midwifery Officer to investigate allegations and decide on what action to take (including a referral to the NMC where appropriate). The changes will mean that Trusts will have to become more involved in the disciplinary and regulatory process. Local systems for midwives and nurses are therefore likely to become far more similar.

The NMC procedural changes are likely to mean that some matters can be disposed of at a much earlier stage as they will no longer require a full hearing. This should lead to savings in time and costs, but many will no doubt be keeping a close eye on how this works in practice, including how warnings/undertakings without a finding of impairment will impact on the individuals concerned and ensuring that cases are not disposed of without a hearing inappropriately.

What does the future hold?

In the longer term, consideration is being given to the possibility of merging healthcare regulators to make them less expensive and more efficient. This has been suggested in the past and not taken forward, but it seems the idea is now back on the table.

There has been recent press coverage of a Department of Health plan to launch a consultation later this year about proposals to reform healthcare regulation. The aim would be to make healthcare regulation more efficient, with more consistency of approach and outcome and costs savings for registrants. It is not yet known exactly what will be proposed by this consultation, but options put forward may include merging all nine statutory regulators to form one 'super regulator', or to form a number of smaller 'merged' regulators, possibly including combining the GMC and NMC into a single body.

The proposed changes to NMC fitness to practise procedures would help to streamline the process of any such 'merger' if it were to happen in the future.