Imagine you’re in your final year of a nursing degree.
It’s been a long slog – you started in the year that the health service was recovering from Covid, and as it turns out it never really did.
Placements – and your supposed “supernumerary status” – have been especially difficult, particularly in those moments where it became clear that you were anything but.
But you’re on the final stretch now – one more three month placement stretch (with who knows how many more months to wait to get your inadequate expenses back) and you’ll be on the register and in a job.
But then you’re told there’s a problem. Because of some “misunderstanding” over what can and can’t be counted as placement hours, you discover that you’re in fact six weeks of placement short.
The good news is that your job offer is being held. But the bad news is that you have no idea what your rights are over the loss of earnings, extra costs and general uncertainty that you’ve now been plunged into.
Strict standards
Nursing and midwifery education in the UK is regulated by the Nursing and Midwifery Council (NMC), which necessarily has some quite strict standards for both programmes and student supervision and assessment – all so that it can assure the public that graduates are providing safe and effective care to people who need it.
But there’s a problem. In late March, following some routine monitoring visits, the NMC took the unusual step of writing to what it calls Approved Education Institutions (AEIs) over a string of cases of miscalculation over simulated practice and reflective hours, and satellite sites.
There are three big problems.
The first is that some AEIs didn’t return their programmes to their approved provision of simulated practice hours when Covid-era emergency and recovery standards were removed as required.
The NMC withdrew a set of Emergency Standards on 30 September 2021, the majority of its Recovery Standards were withdrawn on 30 September 2022, and the remainder were withdrawn in January 2023 when it approved changes to its standards and increased use of simulated practice (where approved through a “major modification”).
The problem is that the new standards – that allow the increased use of “simulated practice” – were only allowed to be used if an AEI got the relevant permission. Either they didn’t, or didn’t realise they had to.
The next issue concerns the nature of “simulated” practice learning hours in general. The NMC says that it is aware that some programmes have been wrongly counting parts of their programme that would not meet its pre-registration standards for practice learning (including standards for student supervision):
For example, e-learning packages, completing work online or reflecting without practice supervision.
Similarly, it pointedly points out that one hour of simulated practice should only count as one hour of practice learning – which does rather suggest that it’s found some AEIs counting those hours as more than… hours.
Reflection is a critical and necessary part of nursing and midwifery practice, and AEIs do include reflection within their programmes – the NMC says that it is essential to continuous learning and improvement of practice that benefits people that graduates go on to care for.
But whilst reflection is fundamental to learning and programmes, the NMC letter also says that some AEIs have been counting a significant number of hours of reflection as practice learning hours – “without any defined structure, purposeful activity or supervision” – and so not meeting NMC’s Standards for Student Supervision and Assessment.
And the problem now – especially for those coming towards the end of their programme – is that they’re short. Where simulated practice or reflection activities are being counted as practice learning hours inappropriately, work will have to be done to ensure current students have achieved the correct number of practice hours prior to completing their programme to assure eligibility for upload to the register.
And if the NMC identifies concerns that students who have graduated have joined the register without the required number of practice hours, it says it will need to consider “appropriate regulatory action”.
There’s one other issue in the letter – as part of a programme’s approval process the NMC approves the different sites where non-practice hours can be delivered. Where an AEI wishes to teach the programme at a different site (a satellite site) which could be a different campus, or geographical location this must be approved through a “major modification”, where visitors review the provision to ensure that standards are met within the new setting:
We have been made aware of a satellite site that was being used to teach students that had not been approved by the NMC – in such cases we may require the provision to be stopped.
Ouch.
Righting the wrongs
It’s (un)surprisingly tricky to discern what students’ rights are in this situation. Morally, we potentially have a huge group of students who now face demonstrable loss of earnings (including any unsociable hours they might have taken on and pension at 20 per cent), extra travel and accommodation expenses, a need for additional statutory support that the NHS and/or the SLC may or may not supply, and extra student loan interest accrual – not to mention the tuition fees we make nursing students pay (many, international, upfront).
There’s also the significant disappointment and inconvenience, and any number of other costs that might be related to the period where you thought you might get a week away with the kids before you started in the job proper. Oh – and for those paying through the nose – huge visa pressures, hassles and costs.
But to the extent to which students have rights in this situation, enforcing those rights may not be easy. Nursing students are almost certainly not “consumers” in law, because it’s explicit training for a specific job – although in England the Office for Students (OfS) tends to argue that when complying with C1 (the provider must demonstrate due regard to guidance about consumer protection law), providers should just assume that everyone has those rights.
If they did have those rights, they tend to be about the course – and arguably the experience itself – rather than any particular guarantees or issues related to graduate jobs. When a service is substandard, there is a right to a price reduction and/or “repeat performance” – although the provider in breach of a services contract is obliged to repeat its performance within a “reasonable” time and without “significant” inconvenience to the consumer, and to bear any “necessary” costs in doing so.
In terms of damages, students could claim for breach of contract, which would normally entitle students to any losses (including consequential losses) that are caused by the breach of contract that were “reasonably foreseeable” at the time the contract was entered into, and that could not have been avoided by the student taking “reasonable steps” to mitigate their losses.
There’s then what we might call general compensation. Under English law, claimants are not normally entitled to “disappointment damages” for a breach of contract – those who break a contract are not usually liable for any “distress, displeasure, vexation, tension or aggravation” that is caused by breaking it. But there are exceptions – contracts which are supposed to provide “pleasure, relaxation and peace of mind or freedom from non-molestation”. Relaxation is probably a stretch – but pleasure and peace of mind are pretty much the screaming messages from beaming students on prospectus pages.
The question is how students might enforce those rights. There’s pretty much no case law in this area, and providers that have faced similar problems in the past may not be willing to share what they paid out when pressured by solicitors.
Students themselves could complain – but the idea that a nursing student in financial dire straits will be prepared to wait the circa 18 months dance of complaint, appeal and then a (virtual) visit to Reading to get the Office of the Independent Adjudicator (OIA) to make a decent offer (at least £5k for distress and inconvenience for “severe”, plus all the other costs and losses) is for the birds.
The students’ union may well be able to step in – if there is one – but it will likely be under intolerable pressure in other meetings concerning the provider’s wider financial situation. Especially given that if you add up what students ought to get, the potential bill starts to look very expensive – and may or may not be covered by the insurers.
Sort it out
In a sensible world, the PSRB regulator here would be liaising closely with the Office for Students (OfS) and the OIA, and there would be some clear joint recommendations to impacted providers on the support they should be offering and the sums they should be paying out.
And to be fair, it may be that liaison is going on – but there’s no overt signs of it. The NMC letter makes no mention of the support that it might expect providers to offer to students, and no mention of the costs and compensation that ought to be due.
That may well be because that’s not really the NMC’s job – but the system isn’t set up for the bodies that purport to support students in these sorts of areas to step in proactively either. Pretty much all of this stuff relies on brave crusaders – whose wins rarely cascade across to those who don’t get involved at the time.
Ideally the SUs (along with the RCN and Unison’s student wings) should be able to get in a room jointly with the affected providers to agree some guidelines on compensation – so that all students get what they deserve, rather than those with deep pockets and plenty of patience and/or a braver SU than others. But that would require someone using their convening power to cause that to happen – and it’s not clear that any of the players would think that’s their role at all.
The blame game
There’s obviously a debate about what’s gone wrong here and the extent to which the NMC is doing its job in pursuit of patient care, or just being picky. We did contact the NMC – and it naturally reminded us that students must be educated appropriately so that at the point of registration they can provide safe, kind and effective care.
As it stands, the quality reports from the visits that have caused concern are still being finalised and have yet to be published – so it’s unable to confirm how many students are affected by a shortfall in practice hours, or to what extent.
The letter to AEIs is intended to establish the extent of the concerns outlined above – there’s a form to fill in on impact – all it would say for now is that where there is a situation where any students are financially impacted, it would expect them to be “properly supported” by their education provider.
Ominously, it also told me that it will work on solutions which mean existing professionals can continue to practise without their registration being impacted – implying that those already in work could be about to be told that their status is in jeopardy.
Sam Foster, Executive Nurse Director of Professional Practice at the NMC, said:
Our work to assure the quality of nursing and midwifery degrees has highlighted themes currently affecting some approved education institutions. These include examples of certain simulation activities that aren’t in line with our standards, and concerns around reflection time being counted towards practice learning hours. The final quality assurance reports have yet to be published and nothing is definitive at this point, however some students may need to make up for a shortfall in practice hours.
At this stage, we’re working with approved education institutions and our partners to further understand the scale and impact of these concerns, and how to address them in a safe and fair way. We all share a common goal, which is to enable the next generation of nursing and midwifery professionals to graduate with all the right proficiencies, join the register and start providing safe and effective care to people who need it.
I think that’s all fair – but there’s another goal that may well not be as shared as the one that Foster identifies. Students pay – in some cases tens of thousands of pounds – to become our future healthcare professionals, and regardless of which donkey the fault tail is being pinned on here, they will almost certainly suffer.
Both for their direct and indirect costs, they deserve substantial compensation. That we lack anything like the right infrastructure to deliver it shouldn’t stop the sector trying to rapidly develop one in (potentially) huge cases like this.
