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Response to the NMC’s Public Consultation on Proposed Changes to their Fitness to Practise Function

31 May 2018

Introduction

Marie Dancer of Richard Nelson LLP and Wendy Hewitt of 5 St Andrew’s Hill welcome the Nursing and Midwifery Council’s (“NMC”) consultation on changes to the fitness to practise function and are grateful to the NMC for the opportunity to comment.

Richard Nelson LLP is a firm of specialist regulatory and disciplinary lawyers. We advise clients who face fitness to practise (“FTP”) proceedings in front of a wide range of professional regulators in England and Wales, including across the spectrum of healthcare regulators.

Wendy Hewitt is the head of the professional disciplinary and regulatory team at 5 St Andrew’s Hill, a leading set of barristers’ chambers in London. She specialises in representing registrants involved in regulatory disciplinary proceedings.

In the last two years we have advised over 30 NMC registrants facing FTP proceedings, of whom 15 went to a full FTP hearing. Cases have included registrants at all levels of seniority, ranging from newly qualified nurses and midwives to registrants with 30+ years of experience, and involved some of the most serious allegations involving deaths of patients. We therefore have a very substantial and wide-ranging experience of the disciplinary process which the NMC applies to its registrants.

Our experience gives us substantial concerns about the NMC’s proposals. If implemented, the proposals would unfairly tilt the balance of the FTP process away from the interests of registrants, leaving them under pressure to admit mistakes they have not made and with less recourse to a process that allows the proper testing of evidence against them.

We lay out our analysis in more detail below, starting with the impact upon registrants of the proposals to reduce the number of hearings and rely more heavily on meetings. We go on to raise questions about the NMC’s evidence-base for change, particularly in respect of the link between registrants making real-time admissions of errors in their workplace and the FTP process, before questioning the content of the ten strategic policy principles which the NMC propose should govern their approach to the FTP process in future.

We have provided 3 anonymised case studies in support of our analysis. These are drawn from the experience of those NMC registrants we have recently represented, but show what might have happened had those registrants faced the process the NMC now wish to introduce. They are therefore intended to provide an illustration of the real-world impacts the NMC’s proposed changes would have on an individual registrant facing FTP proceedings; a perspective we judge to have received inadequate attention in the consultation document.

Holding Full Hearings Only in Exceptional Circumstances

The Consultation proposes steps to reduce the number of cases that require a full FTP hearing. These changes get to the heart of our concerns about the impact of the Council’s proposals on registrants facing future FTP proceedings. We question whether the future process will be balanced, fair to the registrants and ensure that the evidence in support of allegations is properly scrutinised and tested.

Partly because of the previous steps to reform the FTP process, listed on page 5 of the consultation document, NMC registrants already have ample opportunity and incentive to admit allegations and accept sanction early in the process. Indeed, our experience is that an increasing number of FTP cases are being resolved by consensual panel disposals. Where appropriate we advise registrants that case resolution in this way is in their best interests and we have every reason to think this trend will continue without implementation of the proposals the Council have now put forward.

The NMC’s existing process therefore already allows registrants to agree allegations early, but crucially without compromising their capacity to challenge allegations they feel are not true. In our view, the Council’s existing reforms have re-calibrated the FTP process as far as it is possible to go in favour of early case resolution, without impinging on a registrant’s capacity to challenge unfounded allegations. We fear that further measures to encourage early case resolution can therefore only work by eroding this essential balance in the FTP process and will lead to what amounts to an implicit element of compulsion on registrants to admit allegations they feel not to be true.

The NMC’s proposals would rest on stronger logical foundations if it could be demonstrated that the overwhelming majority of FTP hearings conclude with all of the allegations proved and that the sanctions imposed remained broadly commensurate with the NMC’s opening sanctions bid. In fact, the consultation paper makes no reference to such figures, nor to the figures contained in the NMC’s last published annual report which shows hearing outcomes. Unfortunately, even these figures are insufficiently granular to give a clear picture of how a full FTP hearing can change case outcomes from those that might otherwise be decided in a meeting. The statistics detailed in the NMC’s annual report only show final outcomes, without explaining whether some or all allegations fell away as a result of the process, or whether the level of sanction reduced.

Our own experience is telling. One-third of the registrants we have represented through the full FTP process in the last two years have had at least one of the allegations against them dropped, of whom nearly half saw all of the allegations against them dropped. The statistics on sanctions are even greater. In over two-thirds of the cases where we have represented NMC registrants in a hearing, the level of sanction issued by the Panel has been markedly lower than contained in the NMC’s opening sanctions bid.

We have no reason to think our experience is unrepresentative. This means that large numbers of properly represented registrants who go through a hearing, find that the number of allegations reduces as a result, sometimes profoundly. Furthermore, even more registrants find that the panel take a different view of the appropriate level of sanction than that taken by the NMC beforehand, when making a judgment based only on the case papers. By seeking to discourage take-up of full hearings, the NMC’s proposals would put at risk the interests of those many registrants who either have legitimate grounds to challenge allegations or who judge that decisions on sanction can only be properly reached after full consideration of the facts.

Mandating that all cases should be dealt with at a meeting exacerbates this risk. With neither the registrant nor an appointed legal representative entitled to attend in person, nor any witnesses called, evidence put before a meeting panel cannot be properly scrutinised or tested. There is a substantial difference between how an investigation into allegations of misconduct may look on paper and how it might ultimately be perceived by a panel when the evidence has been more rigorously examined. This is particularly relevant where a registrant and witnesses have an opportunity to give evidence and face cross-examination.

This is not an abstract point. We provide three case studies of what this can mean in reality, based on recent cases and where greater emphasis on agreeing outcomes at a meeting could easily have led to entirely unjust outcomes for the registrants involved.

Our figures show these case studies are not isolated examples. It most often occurs, in our experience, where the meeting panel uncritically draws on the results of an investigation conducted by the registrant’s employer. We have found there are often serious flaws to investigations undertaken by employers, as well as substantial variance in quality from one employer to another.

The effect of the NMC’s proposals would be to place more reliance on investigations conducted by employers when reaching factual decisions, not less, without any corresponding effort to allow such evidence to be scrutinised and tested. By defaulting to a position where all cases are to be resolved by meetings, the proposals are therefore deeply unfair to those registrants who feel the allegations against them are unfounded or where the investigation by their employers has been deficient.

The consultation nevertheless proposes that “None of this would prevent a registrant from requesting a full hearing at the appropriate point”. This is no doubt technically correct. However, the commitment ignores the practical impact of the changes the NMC are proposing; particularly for those registrants without legal representation, who are making decisions in the context of entirely unfamiliar disciplinary proceedings and with little in the way of independent guidance about what might be in their best interests.

The proposition to registrants in this position would then become one in which attempts to question a meeting’s draft findings can be adduced as evidence of a lack of insight and remorse, potentially increasing the sanction they may ultimately face. Many registrants are significantly anxious about the prospect of giving evidence if they request a hearing. That registrants in this position might understandably decide to admit untrue allegations would certainly result in a more efficient FTP process. However, a process that puts them in this position would not be a fair one.

We are also concerned that, in the absence of a request for a full hearing, the NMC proposes that only a ‘serious dispute about the facts’ would stand in the way of a case being dealt with at a meeting. It is inconceivable that a meeting can establish whether such a ‘serious dispute’ exists, given the way in which the meeting format operates. Only a hearing can genuinely establish this.

Furthermore, the NMC’s proposals provide no clear definition of what they consider to be a ‘serious dispute’. This is more than merely semantic, particularly in cases where a registrant may admit a portion of the allegations made against them, but contest others. In these circumstances, there appears to be little to stop the NMC from unilaterally deciding that the dispute on facts is not serious and mandating an outcome only on the basis of a meeting, without reference to the registrant’s wishes.

The NMC’s Evidence-Base

The consultation argues that the adversarial nature of the FTP process puts off registrants from making real-time admissions of errors to their employers. This does not track with what those registrants whom we advise tell us. More often than not, the reason they offer for not admitting a mistake in real-time, was not because of a pre-meditated calculation that they may, perhaps more than a year later, face an adversarial FTP process. In fact the reason is simpler and reflects an instinctive impulse in the heat of the moment not to want to own up to a mistake. Local workplace and employment conditions also play a role.

We note that the consultation nevertheless draws a direct link to the FTP process. We struggled however, to understand how the NMC can draw this conclusion so firmly that they feel it is a sufficient basis for further reform. The only evidence the consultation cites is general academic work, which surveys possible causes of ‘blame culture’ in a variety of different professional contexts.

We think a more robust evidence-base would involve a systematic and focused effort by the NMC to understand why a small proportion of its registrants, as opposed to those in other professions, might seek to avoid admitting mistakes in the workplace and what changes would lead (or would have led) them to behave differently. Without this understanding, it seems the NMC is extrapolating from the general to the specific, resting its case for further FTP process change on an evidence-base that at best is indirectly relevant. The risk is that the proposed changes will therefore do little to overturn a blame culture.

We also question whether attempts to encourage a greater number of early admissions by registrants facing FTP may in fact discourage them to admit mistakes in real-time, rather than the other way round. In other words, if registrants have less confidence in the capacity of the FTP process to let them give their version of events, there is a risk that they would be less inclined than at present to admit mistakes. In our experience, registrant perceptions of the NMC’s performance in respect of FTP are already somewhat negative; the changes being proposed will undoubtedly exacerbate this.

Lastly, as set down in its last annual report, the NMC regulates approximately 690,000 registrants. Within this overall population, the consultation notes that the NMC receives around 5,500 complaints a year, of which (in 2016/17) around 1200 cases ended with sanctions imposed. Whilst we are not able to analyse whether this ratio of complaints and sanctions is markedly out of kilter with the experience of the NMC’s peer healthcare regulators, we would question whether the figures represent a problem so substantial in magnitude that it requires a much slimmed down, and less fair, FTP process.

The Consultation’s Proposed Ten Strategic Policy Principles

The consultation proposes ten strategic policy principles (“the Principles”) as the basis for governing the FTP process in future. We were struck on reading these that at no point do the Principles direct that the process operates with some regard to the interests of the registrant, or direct that a key objective of the FTP process must be in determining whether allegations are proved or not.

This is in our view a worrying omission. The Principles, if enacted, would allow the FTP process to run entirely without reference to the interests of those registrants who feel that the allegations against them are unfounded. It also means that the process does not have at its heart a commitment to establishing the truth, before decisions are made about the appropriate level of sanction.

These may be unintentional, but the omissions reinforce our impression that the philosophy underpinning these reforms is one that prioritises regulatory convenience at the cost of fairness to the registrants it regulates.

We also make the following comments on specific Principles:

  • Principle 6: we are not sure this approach would, if enacted, enable the FTP process to meet the required public interest component.
  • Principle 7: the wording is based on the assumption that it can be established a ‘deliberate cover-up’ has occurred without independent testing of the evidence. In our experience a hearing is the only format which would allow this to be established with confidence.
  • Principle 8: a commitment to take regulatory action only if the ‘public would be discouraged from using the services of the registrants’ does not coincide with the well-established legal test for when regulators should take action.
  • Principle 9: the wording is tantamount to a restatement of the existing legal principle, but this cannot be taken to mean that it is right to make such decisions on the basis of a meeting. Where a registrant is at risk of losing their livelihood, profession and reputation, it can only be fair that a considered process is not only followed, but is seen to be followed.

Conclusion

Page 5 of the consultation document lists the significant measures the NMC has already introduced in recent years to reform the FTP process. Given the relatively brief period since some of these measures were introduced, we are not yet able to judge how effective they have been, nor indeed whether their full impact has yet been felt.

If implemented, the consultation proposals would therefore bring a second round of adjustment before it is possible to judge whether further adjustments to the FTP process really are necessary.
Given the concerns we have laid out in our response, we think it would be prudent for the NMC to think again about introducing measures that cut away at the procedural balance which protects the interests of all of those involved in FTP proceedings, including registrants. If the NMC do not do so and proceeds to implement their proposals, the FTP process will become one in which the interests of registrants are overridden by other concerns. In our view, this would be a deeply unfair outcome, as likely to undermine public confidence in the profession and the NMC as it would be to buttress it.

We appreciate the NMC faces many pressures and that, in drawing up the proposals, the perspective of registrants may have been overshadowed by other concerns. If any of our analysis requires further explanation please do let us know. The contact details for Marie Dancer from Richard Nelson LLP accompany the submission of our response to the consultation and we would be delighted to contribute our thinking to further deliberation by the NMC on these critically important matters.

Case Study 1

Nurse A had been a qualified nurse for over twenty years and worked in a nursing home. Following an incident at the nursing home and an employer investigation, Nurse A faced 10 allegations. It was alleged that Nurse A had failed to follow procedures to ensure that medication was locked away, that this had allowed a resident to ingest medication without supervision, that necessary follow-up procedures to respond properly were not followed and that Nurse A then sought to change records and impede the nursing home’s investigation in a way that amounted to dishonesty.

Nurse A accepted 2 of the allegations, but disputed the remainder. The case went to a hearing.

In light of evidence in the defence bundle, at the start of the hearing the NMC legal representative offered no evidence in support of 5 of the allegations. After cross-examination of witnesses, the NMC legal representative accepted that there was no evidence to support a sixth allegation. Following further representation, the Panel concluded that the evidence also offered no realistic prospect of allowing a further two allegations to be proven.

The Panel determined that although two allegations were accepted by the registrant, these did not amount to misconduct and therefore the nurse’s fitness to practise could not be impaired.

Under the NMC’s current proposals, Nurse A’s case would have been dealt with at a meeting. This would have meant:

  • Nurse A would have been unable to challenge the evidence in support of those allegations for which, at the outset of the hearing, the NMC conceded there was no evidence;
  • Nurse A’s legal representative would have had no opportunity to test the evidence through cross-examination of witnesses, a process which fundamentally undermined the evidence against Nurse A;
  • Nurse A could opt for a hearing but, without legal representation, Nurse A would not be in a position to judge how to challenge the evidence, nor in a position to judge what outcomes might flow from doing so;
  • Under pressure to show early insight and remorse and avoid the uncertainties of a hearing, Nurse A might have accepted all the allegations even though Nurse A felt most were inaccurate;
  • This would undoubtedly have led to a meeting panel concluding Nurse A’s actions amounted to misconduct and therefore that Nurse A’s fitness to practise was impaired. An entirely different and unjust level of sanction would then have been applied.

Case Study 2

Midwife B had only recently qualified when an incident took place during Midwife B’s night shift. Following an employer’s investigation, the NMC alleged Midwife B had failed to undertake normal observations of a patient, then sought to disguise this by falsifying the patient’s records, that this amounted to dishonesty and that, in light of this, Midwife B’s fitness to practise was impaired by reason of misconduct.

Midwife B contested the allegations in responding to the NMC’s request for a written response. The NMC’s case examiners judged that the nature of the allegations and Midwife B’s actions meant the risk of repetition was low, but nevertheless referred the case to a hearing on grounds of public interest.

During the course of the hearing, the NMC’s legal representative conceded that there were inconsistencies in the evidence put forward by the patient at the centre of the allegations against Midwife B. Following representation from Midwife B’s legal representative, the hearing Panel found that the evidence was so unreliable and weak that no Panel would be able to rely on it to find the allegation proved, concluding there was no case to answer against Midwife B.

Under the NMC’s proposals, Midwife B’s case would have been dealt with at a meeting. This would have meant:

  • The evidence from the patient against Midwife B would only have been examined on paper, with no proper opportunity to identify its weaknesses and inconsistencies;
  • As a new entrant to the profession, Midwife B may well have felt under even greater pressure to admit the allegations earlier than a midwife of greater experience, especially if Midwife B had not sought legal representation;
  • Given the view advanced by the case examiners, the NMC may have sought to argue there was no ‘serious dispute’ on the facts and mandated resolution of the case via a meeting;
  • Without proper examination of the patient’s evidence, a meeting would have been much more likely to find the allegations against Midwife B proved, with clear consequences for the long-term blight on Midwife B’s career and livelihood upon which Midwife B had only just embarked.

Case Study 3

Nurse C had been qualified as a nurse for over 35 years when incidents took place on two separate nights at Nurse C’s place of work, a nursing home.

Following employer investigation, it was alleged Nurse C improperly lifted one resident, left another partially dressed and used an incorrect method to lift another, allegations which the NMC argued amounted to misconduct and so impaired Nurse C’s fitness to practise.

Nurse C accepted two of the allegations, but denied the others.

In the resulting hearing, the Panel found that those allegations admitted by Nurse C were the result of an emergency with the nursing home resident and therefore did not amount to misconduct. Of the other allegations, the Panel found only one proved and that, in any event, it did not amount to misconduct. The Panel therefore concluded there was no impairment.

Under the NMC’s proposals, Nurse C’s case would have been dealt with at a meeting. This would have meant:

  • The evidence in support of the disputed allegations would only have been examined on paper, in particular not allowing the meeting Panel a proper understanding of the emergency circumstances surrounding the allegations Nurse C admitted, nor the opportunity to demonstrate that the evidence in support of two other allegations was so weak that a hearing Panel went on to find them unproven;
  • Given two allegations were admitted by Nurse C, the NMC may have sought to argue there was no ‘serious dispute’ on the facts and mandated resolution of the case via a meeting;
  • In the absence of proper scrutiny of the evidence and the circumstances which gave rise to the allegations, a meeting would have concluded Nurse C’s fitness to practise was impaired by reason of misconduct, with attendant consequences for the registration, reputation and livelihood of a nurse of over three decades of nursing experience.

 

 

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