On 2 April 2014 the Law Commission published its report on the future regulation of health and social care professionals. The report has been 3 years in the making and includes a 200-page draft Bill.
The Nursing and Midwifery Council (NMC) is one of the nine health care profession regulators. The NMC currently operates under the Nursing and Midwifery Order 2001 with each of the other health care regulators also operating using their own specific legal framework. The Law Commission has proposed that the current legal framework for each regulator be repealed and replaced with a single Act of Parliament that will cover all of the health professions. The Law Commission has suggested the title of ‘Draft Regulation of Health and Social Care Professions etc. Bill 2014’. The idea for this is that it will produce a UK-wide approach to health care regulation.
The Law Commission has proposed a number of changes that will potentially affect all practising midwives. Every midwife in the UK is aware of the need to be registered with the NMC, by submitting the appropriate forms and fees, but, beyond that, fortunately, most midwives will never have first-hand experience of their regulator.
Currently, Part 8 of the Nursing and Midwifery Order allows the NMC to have a Midwifery Committee to advise the NMC on all matters that affect midwifery. This adds a layer of protection to midwifery practise but also permits an additional layer of regulation in the form of the midwife's Local Supervisory Authority (LSA).
The Law Commission did not make any specific proposals regarding midwifery as part of the consultation process but received a number of responses commenting on midwifery-specific aspects of the current legal framework. The Royal College of Midwives (RCM) considered that statutory protection in the form of LSAs remained necessary as without it there would be a constant fight between midwifery professionals and the NMC to ensure that the role of the midwife was recognised and regulated for the specific demands placed on midwifery professionals. Midwives are long regarded as autonomous practitioners providing simultaneous care to two lives, sometimes with competing interests, a unique role amongst health professionals. In contrast, Independent Midwives UK felt that the additional layer of regulation for midwives should be removed to bring midwives into line with other health professionals. Indeed, the consultation process also brought a view that there should be a clear evidence base to justify the additional layer of supervisions for midwives that currently exists.
The Law Commission's response to these midwifery-focused concerns was the recommendation that there was no longer a requirement for a statutory-based Midwifery Committee within the NMC. With the abolition of the statutory Midwifery Committee the Law Commission believes that the Government should be given regulation powers to make provision for the general supervision of midwives. The Government could then use this power to establish a reformed system or give the NMC the ability to reform the system for the supervision of midwives, including the power to continue with the Midwifery Committee. While generally welcoming the Report, the RCM has reacted with dismay to this recommendation, expressing concern that the voice of the midwife will be lost in the NMC and dominated by the voice of nursing.
Fitness to practise is one of the main areas for any health care regulator to ensure that its members are safe to practise and therefore appear on the register without any restrictions on their practice. Where concerns are raised, the regulator investigates and if there is a realistic finding of the practitioner's fitness to practise being impaired then a hearing is held to determine if allegations are capable of proof and if the allegations impair the practitioner's practice using a number of criteria.
The Law Commission has proposed that these grounds for a finding of impairment be altered and increased across all regulators operating within the same legal framework. The current ground of misconduct is, in the future, to be seen as deficient professional performance (DPP), mostly concerned with a practitioner's clinically based performance. DPP would therefore cover current grounds of lack of competency as well as many allegations that currently fall as misconduct. The Law Commission recommends that current ground of misconduct be narrowed and elevated to a new ground of ‘disgraceful misconduct’. This ground would capture allegations where the practitioner's conduct is not necessarily directly clinically based.
Also recommended is that a ground for a finding of impairment could be made if practitioner's knowledge and use of the English language is not sufficient.
The Law Commission has also suggested a 5-year cut off point after which fitness to practise allegations should not be taken forward. Some health care regulators already operate within set time limits. The NMC has no such time limits. These time limits for allegations will therefore be of relevance to all those registered with the NMC but of particular relevance to midwives where issues about labour and delivery can be raised a numbers of years after the birth of a baby. However, as this recommendation has the ‘get out’ clause; ‘unless it is in the public interest, convictions or determinations by another regulator’. It is difficult to understand how the 5-year limit will actually operate in practise and may actually offer little real change to the NMC's seemingly unlimited time limits for investigating concerns about midwives.
The NMC has welcomed the Law Commission's recommendations and the draft bill. The RCM's response, along with other health professionals' representative organisations, has welcomed the simplification and flexibility that may be offered to health care regulators by the draft bill, but is a little more muted about what the recommendations will actually mean in practice and how ultimately public protection will be improved.