Midwives magazine: September 2002
The new Code of Professional Conduct (NMC, 2002) came into effect on 1 June, replacing the former UKCC Code of Professional Conduct, the UKCC Scope of Professional Practice and the UKCC Guidelines for Professional Practice.
The most controversial clause in the new Code is 8.5, which states: ‘In an emergency, in or outside the work setting, you have a professional duty to provide care.’ This, however, is not a new obligation. In Section 14 of the UKCC Guidelines for Professional Practice, an example is given of a nurse walking along a street coming across a person injured in a road traffic accident. The guidelines state: ‘although she has no legal duty to stop and give care… she does have a professional duty. The Code of Professional Conduct places a professional duty upon her at all times’.
However, there are two clauses in the new Code that place new obligations on midwives that are significant from a employment relations perspective, as well as having professional implications: clause 8.2 and 8.3. Clause 8.2 now requires the practitioner to ‘be aware of the terms of legislation that offer protection for people who raise concerns about health and safety issues’, and clause 8.3 requires practitioners to support any representations about ‘the environment of care that could jeopardise standards of practice’, made to a ‘senior person… and also, in the case of midwifery, to the supervisor of midwives’ by a written record.
Previously the only reference made to whether such representations should be put in writing was to be found in section 39 of the UKCC Guidelines for Professional Practice, which stated that concerns should be raised ‘verbally and/or in writing’. For a number of years the RCM has issued notice of unsafe practice forms for midwives to complete when safe care could not be provided.
These were primarily introduced to ensure the practitioner could prove that (southern team) he/she had raised concerns in the event of a complaint being made to the UKCC. Unfortunately, managers have not always received these forms favourably and midwives have, on occasions, been made to feel that the environment was unsafe as a consequence of their own incompetence, or found that their managers dispute their assessment of the situation, claiming it to be unsatisfactory, but not unsafe.
Now that the practitioner is obliged to put their concerns into writing
not only where the situation is unsafe, but also where standards of care are jeopardised
managers who previously took a negative view of such representations will need to review their position.
The RCM is updating the notice of unsafe practice form to include the new obligations that the Code places on midwives. It would, however, be in the best interests of both midwives and managers if agreement could be reached locally on how midwives are to discharge their responsibilities under the new Code.
The second clause of interest is 8.2, which places an obligation on midwives to be aware of the terms of the legislation that offers protection for people raising concerns about health and safety issues. The new Code is unique in this respect, as the documents it replaces made no reference to practitioners requiring such knowledge. For those practitioners with only basic knowledge of employment/health and safety law, actually identifying the legislation the Code refers to may present a problem. For this reason, it would have been useful for a reference to be appended to the Code. The legislation referred to is the Employment Protection Act 1996 and the Public Interest Disclosure Act 1998. Under section V of the former, employees are protected ‘from suffering detriment’ when he/she brings to ‘his employers attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health and safety’. Under this legislation it is unlikely that a report in the local newspaper would constitute ‘reasonable means’. The Public Interest Disclosure Act 1998 is often referred to as the ‘whistle-blowing charter’. Its purpose was to promote greater openness and protect whistle-blowers from detrimental treatment when raising concerns about matters in the public interest.
While the Employment Protection Act provided protection when issues were raised with the employer, this Act provides protection when such representations are taken outside of the organisation, subject to certain conditions being met. In brief, the relevant terms are that the employee must:
In addition, he/she must either believe that they:
Would suffer a detriment if it was raised directly with their employer, or
Believe that evidence would be concealed or destroyed, or
Have already raised the matter internally.
If the allegation is of a serious nature, then this additional qualification is not required. As you can appreciate, disputes will occur as to whether the criteria was fulfilled before the disclosure was made. Ultimately it may be an employment tribunal that determines whether or not the disclosure is protected by the legislation. When making a decision, the employment tribunal will take compliance with the local whistle-blowing policy into consideration. This is a policy that should be available in your workplace that has been agreed with local staff-side representatives.
Midwives are advised to familiarise themselves with their local whistle-blowing procedure, as this should contain all the information they are required to have to fulfil their obligations under this section of the Code. If you are unsure, seek the advice of your local RCM representative.
NMC. (2002) Code of Professional Conduct. NMC: London.