There is considerable discussion in Canada as to when regulators of professions should investigate the private conduct of registrants. Insight about the UK approach can be gleaned from the just released independent review of their nursing and midwifery regulator (NMC) into 20 complaints and discipline cases in which concerns have been raised. The review was conducted by Victoria Butler-Cole KC and David Hopkins, experienced barristers who work in the field.
While the reviewers did not find that the “wrong outcome” had resulted in any of the 20 cases, they did find problems with how some of the cases were addressed. In many cases failures to pursue the concerns adequately had to be corrected by safeguards built within the system. The most significant recurring problem was an “overly restrictive” approach as to the types of private-life behaviour of registrants that constitute misconduct. An important contextual factor is that the NMC deals with well over 5,000 matters a year through multiple offices in the UK.
According to the reviewers, this overly restrictive approach was observed in several areas including:
- Sexual misconduct: For example, in one case concerns were almost not pursued where a registrant shared “naturist” images of nude children online with an admittedly sexual motivation. After an internal review the decision to close the file was reversed and the registrant’s registration was revoked. In another case, multiple allegations of sexual conduct towards colleagues eventually resulted in the registrant’s revocation. However, in that matter less serious concerns were closed on the grounds that there were more serious allegations pending, thus presenting an incomplete picture of the registrant’s behaviour. Also, the multiple files were handled separately, and no interim order was made.
- Family proceedings: For example, findings by a family court of physical abuse of a child, failing to obtain prompt medical care for a child with symptoms after shaking, or being deemed unsuitable to have custody of young children, should be viewed as relevant for regulators.
- Criminal proceedings: As noted below, some of the previous policies of the NMC take a restrictive view of the types of criminal charges and findings about private-life conduct that are relevant to the suitability of the registrant.
The report identified the following sources of this overly restrictive approach:
- Poor wording of internal policy and procedure documents as to when private-life conduct of registrants warrant regulatory scrutiny: one policy suggested that regulatory action was only indicated when the conduct raised fundamental questions about the trustworthiness of a registrant. Another policy indicated that if a registrant was not convicted of a criminal charge, it was not the role of the NMC to “fill gaps in the criminal justice system” (despite the differences in the burden of proof in regulatory proceedings). Another policy suggested that criminal convictions would normally only be seen as serious if a custodial sentence was ordered. Several policies were interpreted to say that concerns in a registrant’s private life should be pursued only if they could be linked to professional standards, possibly excluding damage to public confidence in the profession. A policy on addressing racism in a registrant’s private life where it demonstrates “deep-rooted attitudinal issues” was also viewed as overly restrictive.
- Inconsistent understanding and application of the policies and procedures that existed. In fact, the reviewers cited a separate report indicating that the NMC had an unwritten rule amongst staff that it did not deal with private-life conduct concerns.
- An ineffective mechanism for staff to raise concerns that the public is not being adequately safeguarded.
The reviewers noted that many of these issues had already been identified and partially addressed by the NMC. The reviewers still made a few recommendations, including:
- Policies and procedures must be carefully worded so as not to be restrictive in describing the types of private-life conduct that are relevant to a registrant’s suitability to practise. For example, the rationales for relevance (including public confidence) should be comprehensive. Also, care should be taken to ensure that examples of unsuitable conduct do not impliedly suggest that other types of private-life conduct are not relevant to suitability to practise.
- Policies should not limit racist or sexually inappropriate behaviour to circumstances where there was racist or sexual motivation for the conduct (although such motivation should be alleged when present).
- Extensive and ongoing training of all involved in processing and hearing complaints to ensure that there is a shared understanding as to how and when private-life conduct warrants regulatory scrutiny.
The report did not focus on written and verbal statements made by registrants in their private lives. However, the reviewers did recommend that statements by registrants in their private lives should be subject to regulatory scrutiny when those statements can jeopardize public confidence in the profession.
This report may assist Canadian regulators when they review their own internal policies and procedures for dealing with concerns about the private-life conduct of registrants.
