Chapter 3 Statutory framework for practice
After reading this chapter, you will be able to:
Legislation regulating the midwifery profession
Historical background
A separate Midwifery Committee was set up in Statute following protests from the Royal College of Midwives (RCM) and Assocation of Radical Midwives (ARM) that midwives would be over-ruled by nurses (Jowitt & Kargar 1997).
Government proposals that followed in Working Paper 10 (DH 1989) suggested setting up the purchaser–provider model – hospitals would contract with education providers for the requisite number of places to fulfil local workforce planning. These recommendations were accepted by the Government (DH 1991, Northern Ireland Office 1991, Scottish Office 1991) and were incorporated into the 1992, Nurses, Midwives and Health Visitors Act, including the revised structure of the UKCC and national boards. Consolidation of the 1979 and 1992 Acts, incorporating all the reforms, was made in the 1997 Nurses, Midwives and Health Visitors Act.
Reform of the health professions
The drive to strengthen control of the healthcare professions followed several scandals involving the nursing (Clothier et al 1994) and medical professions (DH 2002a). In 1997, a further review of nursing and midwifery legislation was commissioned by the four UK health departments and complete reform of the UKCC and four national boards was recommended (JM Consulting 1998).
In February 1999, the government response accepted the need for new regulation of the ‘various health professions’ and proposed an amendment to the new Health Bill in progress at the time ‘to make provision to repeal the Nurses, Midwives and Health Visitors Act 1997’ (NHS Executive 1999).
Current legislation regulating midwifery
Health Act 1999 (Section 60) (DH 1999)
The current legislation for midwives drawn up under Section 62(9) of the Health Act 1999 (DH 1999) set out the Order for the establishment of the Nursing and Midwifery Council (NMC).
Modernising regulation – the new Nursing and Midwifery Council – a consultation document (NHS Executive 2000)
Modernising regulation in the health professions – NHS consultation document (DH 2001b)
The NHS Plan (DH 2000) proposed the establishment of a UK Council of Health Regulators to act as a forum and coordinate complaints from all the professions and their regulatory bodies.
This framework was also suggested in the Kennedy report on the Bristol Royal Infirmary Inquiry (DH 2002a). This Council would be independent of the State and accountable to Parliament, as would all the professional regulatory bodies, through the new Council. This, in turn, would have the power to require changes to the regulatory framework. It would not have the power to take over or intervene in individual fitness-to-practise cases.
Nursing and Midwifery Order 2001 Statutory Instrument 2002 No. 253 (DH 2002b)
Midwifery-specific articles set out the following:
Trust, assurance and safety – the regulation of health professionals in the 21st century CM 7013 (DH 2007a)
This White Paper set out a major reform of the UK health professions following two reviews of professional regulation, ‘The regulation of non-medical healthcare professions’ (DH 2006a) and ‘Good doctors, safer patients’ (DH 2006b), and recommendations of the Fifth Report of the Shipman Inquiry (HM Government 2004) and recommendations of the Ayling, Neale and Kerr/Haslam Inquiries (HM Government 2007a, 2007b). It changed several areas:
It included changes to the size and membership of the Council for Healthcare Regulatory Excellence (CHRE), established in 2003 (DH 2002c) to promote best practice in regulating health professionals.
In response to a request for the CHRE to expedite its annual performance review by the Minister of State for Health in March 2008, a special report identifed areas of weakness in the management of fitness to practise by the NMC, and other issues related to approval of education provision and governance (CHRE 2008).
The Health and Social Care Act (DH 2008a) later extended CHRE’s powers to include reviewing fitness to practise where health is an issue and set up the Care Quality Commission.
The Nursing and Midwifery (Amendment) Order 2008 (DH 2008b)
This amended Paragraphs 16, 17 and 18 of Schedule 1 of the Nursing and Midwifery Order 2001 in direct response to the DH White Paper ‘Trust, assurance and safety’ (DH 2007a) and the Health and Social Care Act (DH 2008a). It updated the size and membership of the NMC Council, the Midwifery Committee and Practice Committees (Box 3.1) and came into force in January 2009.
Nursing and midwifery council
Role and functions of the NMC Statutory Committees
1 Midwifery Committee
The Midwifery Committee advises the NMC on any matter affecting midwifery practice (including midwives’ rules and standards), education (development of standards and guidance for pre- and post-registration midwifery education) and statutory supervision of midwives (standards for local supervising authorities and supervisors of midwives). It responds to policy trends, research and ethical issues and conducts consultations on behalf of the Council. It operates under the NMC Standing Orders 2009 (NMC 2010a).
Membership: five midwives and five lay members (at least one from each of the UK countries).
2 Investigating Committee
A registered medical practitioner will be present if the registrant’s health is in question. These deliberations take place in private and the panel decides whether there is a case to answer. If there is, referral is made to the Health Committee or the Conduct and Competence Committee (DH 2002b). The Panel may refer immediately to an Interim Orders hearing if the registrant is thought to be an immediate threat to the public. The panel can then impose the following:
In addition, a ‘removal’ from the Register can be authorised by the Investigating Committee to correct an incorrect or fraudulent entry (NMC 2008a).
3 Health Committee
The Panel’s role is to consider: ‘any allegation referred to it by the Investigating Committee or the Conduct and Competence Committee and any application for restoration referred by the Registrar’ (DH 2002b).
4 Conduct and Competence Committee
The Panel’s role is to consider any allegations referred to it by the Investigating Committee or the Health Committee. Hearings are held in public but parts of the case may be held in private to protect the identity of the person or confidential medical evidence (NMC 2008a). A panel must consist of at least three people, and must include a lay person and a ‘due regard’ (that is, someone from the same speciality as the professional being investigated).
Conduct and Competence Committee and Health Committee Panels’ sanctions
All decisions are based on evidence presented at the hearing of the case. The panel will only hear information about the previous history of the ‘respondent’ and any evidence in mitigation prior to making a final decision (NMC 2010d).
The range of powers it holds in relation to sanctions are as follows:
They may decide on no further action; or make one of the following orders to the Registrar:
An appeal may be made by the registrant within 28 days of a committee’s decision.
Restoration to the Register of practitioners who have been struck off
If an application is unsuccessful, an appeal may be made within 28 days of the decision date. If a second or subsequent application is made while a striking-off order is in force and is rendered unsuccessful, the Committee may direct that the person be suspended indefinitely (DH 2001a).
Civil Standard of Proof
The ‘Civil Standard of Proof’ was brought into force on 16th October 2008 following the DH White Paper (DH 2007a) and Health and Social Care Act 2008 (Commencement No. 3) Order 2008 (SI 2008/2717 [C. 120]) (DH 2008a). All NMC hearings have used this standard since 3rd November 2008. This means that evidence is based on the ‘balance of probabilities’ rather than the previously used ‘Criminal Standard of Proof’, where facts needed to be proved ‘beyond reasonable doubt’.
