The vast majority of nurses go through their careers without ever making serious mistakes or getting into trouble with their employer or the Nursing and Midwifery Council (NMC), so the odds are you’ll never need the support of the RCN legal team.
But this section explains some of the ways in which nurses can find themselves in hot water – often unwittingly – and how the RCN can step in if one of those nurses is you. The RCN has the largest in-house legal team of any trade union; they are here to help.
Sometimes problems arise at work. You might be absent for a health reason and wonder what will happen to you, have a disability that your employer is failing to accommodate, find your performance is under scrutiny, face a disciplinary matter, witness poor practice, or experience bullying in the workplace.
The RCN has local reps to provide you with support in the workplace, backed up by RCN regional officers who might represent you in hearings before your employer. We also have a wide range of advice guides covering legal and employment issues.
If the case is sufficiently serious to require legal support, the RCN has a specialist Employment Law team who can even take your case to the Employment Tribunal (provided it meets our value and merits threshold). We would hope that nurses always receive fair treatment at work, and the RCN regional and legal teams aim to sort out problems as they arise and keep our members in their workplaces whenever they can.
However, sometimes nurses are not treated fairly, and in 2020 alone our Employment Law team recovered damages payments of £1.5m that went to RCN members to compensate them for unfair treatment by employers.
The NMC received 5,547 new concerns in 2020/2021, which is a slight decrease from the previous year. The number of concerns received this year represents around eight referrals for every 1,000 registrants on the NMC register. The RCN has a dedicated in-house legal team that supports RCN members through the NMC process from the moment that they receive a referral letter from the NMC to the final decision which, in the majority of cases, is before it is referred for a fitness to practise hearing. Many RCN members are surprised at how fairly common errors can result in them facing an NMC investigation. The most common misconduct allegations heard at the NMC involve:
- prescribing and medicines management
- poor patient care
- poor record keeping
- failing to keep clear professional boundaries with patients and colleagues.
Dishonesty features frequently in these cases and many nurses do not realise that if they alter a record after the event, this may be treated as evidence that the nurse is dishonest.
Nurses need to be especially careful that they don’t exaggerate their CVs by claiming, for example, that a partly completed course has been awarded, or that a colleague supplying a reference was a supervisor rather than a peer. One of the most common dishonesty scenarios is the nurse who works a bank shift while signed off sick from their main job.
RCN members represented by the legal team are encouraged to engage with the process and are supported to present their best case. This includes taking steps to put any deficiencies in their practice right and obtaining evidence that they can be considered safe and insightful practitioners.
It is very important and an obligation under The Code (NMC, 2018) that you tell the NMC and your employer as soon as you can if you are charged with an offence, or you have received a conviction or a caution. Failure to do so can lead to a further accusation that you have not been open and honest with your regulator, which is treated seriously. There are some other situations when something has happened that has not resulted in a caution or conviction, but you may need to tell the NMC.
The good news is that RCN data shows that members of the RCN are less likely to be referred to the NMC in the first place, and if they are referred, they are more likely to come out of the process with a less serious outcome or no sanction at all. Therefore, if something has gone wrong, you should contact the RCN as quickly as possible and make sure that you benefit from the service that is there for you when you need it.
All nurses must obtain a DBS (formerly CRB) certificate before they can work with the public. Nurses occasionally run into problems with checks by the DBS or Disclosure Scotland. These can include, in the enhanced disclosure section, details of accusations that have been made against them, even if these were never tested in court. An entry might set out the nature of the allegation.
This can sound very serious, such as “Ms X was investigated for abuse of an elderly patient” and might conclude: “A prosecution was not pursued due to insufficient evidence.” It might be that the patient was someone who was confused and had made many complaints about other health care professionals. An entry of this type can ruin a career. Where it is clearly unfair for this sort of information to be included, the RCN legal team has successfully challenged certificates and removed damaging entries.
The DBS also runs a barring scheme for those who are deemed too much of a risk to work with children or vulnerable adults. Those listed on its register are barred from that work for 10 years. If you receive a letter from the DBS, please contact our advice team immediately. Our online information may also be helpful.
When a patient dies, in some circumstances there will be an inquest. Every year coroners hold about 30,000 inquests. You may be called to give evidence at an inquest, and the RCN website has guidance about the process and tips to bear in mind if you are a witness. Usually, there is nothing for the nurse to worry about, they are simply assisting the coroner to establish the cause of death.
However, sometimes nurses are criticised at an inquest. If you are at risk of criticism, you might require representation and your employer may represent you, or you may need RCN representation.Further information is available in our Inquest and Fatal Accident Inquiry advice guide. If you are concerned please contact our advice team, you will be referred to the RCN legal team if you need representation.
Nurses are sometimes unaware that if they are convicted or cautioned for a crime, both they themselves and the police have a duty to report that fact to the NMC. When there has been a family fracas or an over-indulgent night out, and a nurse ends up in the police station, it is important that they take legal advice before accepting a caution for a minor offence. The NMC will treat the facts of the accepted caution as an admission of the offence.
The police will issue a caution where there is evidence that the offender is guilty, the offence has been admitted, or the offender agrees to a caution. The offender will be advised that a simple caution is not a criminal conviction, but may not realise that it will be recorded on the police database. The fact that it is recorded means that it will be revealed to a prospective or existing employer on a DBS check.
Although it doesn’t necessarily mean that if this happens the nurse will not get a job, the fact of the caution might influence the employer. At the very least, the nurse will need to give an explanation to the employer for the offence, and perhaps offer some mitigation.
The lesson from this is that if you are questioned by the police in relation to a suspected criminal offence, wherever it occurs, you should not accept a caution until you have taken legal advice. If the accusation arises from a workplace situation, contact our advice team without delay. It is important that you do not speak to the police without support from us or a Duty Solicitor. Remember that you have obligations under The Code (NMC, 2018) to tell the NMC and your employer if you are charged with an offence or you receive a conviction or caution.
Further information is also available at:
Negligence and patient injury
Nurses can find themselves criticised if a patient has been injured through clinical negligence and is suing for compensation. In most cases, the employer and their insurers are defending the case, but the nurse involved will be a witness. By taking care with your record keeping you are much less likely to be involved in a clinical negligence action.
When creating records, you need to be sure that they capture the whole picture. For example, some cases turn on whether the nurse gave a patient clear advice about when to return for further medical advice if their symptoms fail to improve (safety-netting). If the records do not show, with precision, the advice given, the nurse is unable to prove to the court that the right advice was given, and the case may be found against them. Careful record keeping is vital.
Finally, don’t be put off by thoughts of NMC hearings, troublesome tweets or police cautions. They are only mentioned here to serve as a reminder that occasionally nurses can get into trouble, particularly if they have not realised that, as a regulated professional, they are held to a high standard of behaviour.
We can support you with a claim for compensation for injuries you suffer following an accident or incident that was not your fault. This may have happened at work or away from work. If successful, you'll keep 100% of your compensation. We can also help your family and friends if they have suffered injury through no fault of their own; these claims will be subject to deductions from their compensation to pay for the legal representation.
Wills and probate
You and your family and friends can also get help and advice from RCN Law with will writing, probate matters, setting up a trust or a lasting power of attorney. You can find out more information from the link below.Find out more
Don’t be a twit
The RCN legal team is seeing an increase in the number of Twitter, Facebook and other social media posts that form part of cases against registrants.
Nurses must be very vigilant never to mention their employer or colleagues in a way they would not feel confident to do in an open forum.
Also, they should never talk about patients, because they will be breaching confidentiality. One nurse posted about how she was up late, worse for wear, and had to be at work in a few hours. The post was picked up by a patient’s family.