Allegations of insufficient knowledge of English

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2 Information for nurses and midwives Allegations of insufficient knowledge of English Introduction 1 The Nursing and Midwifery Council (NMC) can investigate an allegation that a nurse or midwife does not have the necessary knowledge of English to practise safely in the United Kingdom by directing them to take a language assessment. 1 This guidance aims to help nurses and midwives who face such an allegation to understand the process of language testing. Investigation 2 If you have been referred to us because of concerns about your knowledge of English, we will only investigate if your lack of knowledge of English could impair your fitness to practise. 2 The key consideration will be whether or not you present a risk to patient safety, for example, because you are unable to communicate essential information about patient treatment to other healthcare professionals. 3 If we decide to investigate the allegation, we will normally direct you to take a language assessment. In such circumstances we will write to you setting out the assessment that you are required to take and the deadline for providing us with the result. We will meet the cost of any assessment that we direct you to take. 4 We will not normally pay for your travel associated with the language assessment. However, we may make an exception in cases of hardship to cover the cost of travel when necessary. If you have a disability and need a companion to travel with you, we can pay that person s travel expenses. You should raise this with your case officer as soon as possible. IELTS assessment 5 The assessment that we will normally ask you to take is the International English Testing System (IELTS). IELTS assesses the language ability of people who want to study or work where English is the first language of communication. The assessment has four different components: listening, reading, writing and speaking. The listening, reading and writing components must be completed on the same day. The speaking test can be taken up to seven days before or after the other three tests. Further information about the IELTS test and how to prepare can be found at 1 Pursuant to The Nursing and Midwifery Council (Fitness to Practise) (education, Registration and Registration Appeals) (Amendment No.2) Rules Order of Council The Registrar decides whether the referral amounts to an allegation capable of impairing a nurse s or midwife s practice under Rule 2A(2) of the Nursing and Midwifery Council (Fitness to Practise Rules) 2004 ( the Rules ) Page 2 of 6

3 6 IELTS is available worldwide, with test locations in all four countries of the United Kingdom. 7 There is no such thing as a pass or fail in IELTS. The results are reported as band scores on a scale from 1 (the lowest) to 9 (the highest). We expect all nurses and midwives on our register to achieve a minimum score of 7.00 in each of the four components. 3 8 The test centre will send you a signed certificate of your results, by post, 13 days after you have completed the assessment. It is your responsibility to take the IELTS assessment in sufficient time to provide us with the results by the date we specified in our letter. This will normally be within a 60 day period. We may extend this time period if a nurse or midwife requires reasonable adjustments to take the assessment. Non-cooperation 9 You have a duty to cooperate with our investigation and this includes any direction that you take a language assessment. 4 If you fail to comply with such a direction without providing us with a good reason, this could be relied upon by us as evidence that your fitness to practise is impaired because you do not have the necessary knowledge of English. The Conduct and Competence Committee can draw inferences if you fail to undertake an assessment you have been directed to take, or fail to provide us with evidence of the result. Failures such as these are likely to be a strong indicator that you lack the necessary knowledge of English. 10 A failure to undertake an assessment or provide us with the result could alternatively be treated as an allegation of misconduct, and is likely to be a factor that we would consider in deciding whether or not an interim order restricting or suspending your practice is necessary. 11 If you have provided us with a good reason why you were unable to comply with a direction from us, we will consider whether to allow you more time to rearrange your language assessment. There may, however, be cases where we decide to proceed with the case on the evidence we currently have, and invite the Case Examiners to consider the inferences the Conduct and Competence Committee can draw from a failure to take the assessment or provide us with the results. Interim Orders 12 We will apply to a Practice Committee for an interim order where it appears that your lack of knowledge of English is such that it is necessary to restrict or suspend your practice in order to protect members of the public, or that to do so would be in your own interests, or otherwise in the public interest. 3 A score of 7 means the individual is a good user who has operational command of the language 4 Nurses and midwives are required to cooperate with all investigations under paragraph 23 of The Code: Professional standards of practice and behaviour for nurses and midwife (NMC 2015) Page 3 of 6

4 13 In carrying out our ongoing risk assessment relating to concerns about your knowledge of English, particular factors which may be relevant in considering whether an interim order is necessary are likely to include: 13.1 the severity of any potential or actual clinical risk, or any actual or potential harm caused to patients through your alleged lack of knowledge of English 13.2 the score on your language assessment 13.3 any non-cooperation with our investigation, particularly a persistent failure or refusal to comply with a direction that you take a language assessment. 14 All interim order reviews include a consideration of any material changes to the risk posed by the nurse or midwife. If you are subject to an interim order because of language concerns, any relevant evidence of your knowledge of English that you send us during the investigation of your case is likely to be considered by the Practice Committee reviewing your interim order. Case Examiner decision 15 Once we have received the result of your IELTS assessment, your case will be sent to the Case Examiners, with a report making a recommendation on whether your fitness to practise is impaired. In general if you obtain less than 7.00 in any of the four components of the assessment, we will recommend that you do not have the necessary knowledge of English to practise safely. We will send you a copy of our report and recommendation at least 28 days before the Case Examiners make their decision. Within that time you can send us any written responses or evidence that you would like the Case Examiners to consider. 16 Case Examiners will decide whether there is a case to answer in relation to the allegation that your fitness to practise is impaired because you lack the necessary knowledge of English to practise safely. 5 They are not restricted to considering the results of the IELTS assessment alone but can take into account all relevant circumstances. Therefore you can send in any evidence that you think is relevant to whether or not you have the necessary knowledge of English to practise safely. This can include: 16.1 any written responses or evidence indicating you have the necessary knowledge of English to practise safely; 16.2 any evidence that you have trained or practised in an English speaking environment for a period of time; 16.3 any evidence that you have previously completed an IELTS assessment to the required standard (for example, as part of a previous application to the NMC register); 5 See the Language impairment guidance for more information. Page 4 of 6

5 16.4 any evidence that you have recently obtained a qualification that has been taught and examined in English. 17 These factors are likely to be particularly relevant if you have averaged just below 7.00 in the IELTS assessment and it may therefore be less clear whether there is a case to answer. Conduct and Competence Committee 18 If the Case Examiners decide there is a case to answer in relation to the allegation that your fitness to practise is impaired, your case will be referred to the Conduct and Competence Committee. This means that a panel will make a decision on whether your fitness to practise is impaired and, if so, whether to impose any sanction on your registration. The possible sanctions are a caution order for up to five years, a conditions of practice order for up to three years, or a suspension order for up to one year. 6 Hearing or a meeting 19 It is your right to have your case decided at a hearing, if you so wish. If you request a hearing, or your case is sent to a hearing, it will be held in public and you (or your representative) will have the opportunity to attend and address the panel as to whether or not you have sufficient knowledge of English to practise safely. 20 You may also request that your case be decided at a meeting. However, we can direct that your case is sent to a hearing if this is in the public interest. Meetings are held in private and you will not be allowed to attend to address the panel. The panel will not hear from any witnesses but will consider your case based on the documentary evidence they have before them. You will have the opportunity to submit further written representations or evidence to us before the Conduct and Competence Committee meeting takes place. Further language testing 21 In some cases a significant amount of time may have passed between you taking the initial IELTS assessment and a panel of the Conduct and Competence Committee considering your case. In those circumstances, the IELTS result may no longer provide an accurate assessment of your knowledge of English and we may direct you to undertake a further IELTS assessment. As set out above, we will notify you in writing if you are required to do this and inform you of the date by which you must provide us with the result. We will meet the cost of any additional language assessment we direct you to take. 6 There is no option for a panel to make a striking-off order on the first occasion it considers an allegation of this kind (Article 29(6) of the Nursing and Midwifery Order as amended) Page 5 of 6

6 22 If you submit the results of an additional language test that you have taken yourself, this will form part of the material that the panel of the Conduct and Competence Committee will consider. We may direct a further IELTS assessment after we have considered the results of any additional language testing you send us. Final hearings and meetings 23 At a final hearing or meeting, the panel will decide whether the NMC has proved the factual charge on the balance of probabilities, whether your fitness to practise is impaired by reason of not having the necessary knowledge of English, and finally which, sanction, if any, to impose. Each of these decisions will be made in separate stages. At the hearing you will have the opportunity to address the panel and present any evidence you have at each of these stages. 7 Review hearings 24 If the Conduct and Competence Committee imposes a conditions of practice or suspension order on your registration, a review hearing will be held prior to the expiry of the order. Before that review hearing takes place, we may direct you to take a further IELTS assessment if it will assist the panel reviewing the order to make their decision. For example, we may direct you to take a further IELTS assessment if a significant amount of time has passed since your last assessment and you have now provided us with evidence that suggests you may no longer be impaired by reason of of not having the necessary knowledge of English. We will again meet the cost of any language assessment we direct you to take. Approved by Director of Fitness to Practise 15 January 2016 Effective from 19 January See Language impairment guidance for further information about what considerations the panel will take into account Page 6 of 6