On 28th  October 2019 we were lucky enough to have the following report written by a legal colleague who. He has been a solicitor since 1977 and has helped review a few cases to see from a legal perspective whether due process is being followed – it’s interesting reading…

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The Nursing & Midwifery Council: is the Fitness to Practise regime fit for purpose?

By John Rubinstein,

Solicitor (admitted 1977), legal consultant (Inforight®)

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I wrote this article following being invited, as a legal practitioner with over forty years of litigation experience, by The Midwives Haven and NMC Watch support groups, to help in two Fitness to Practise (FtP) cases in which registrants had already been removed from the register, and in another case where a registrant was investigated the NMC but eventually found to not have a case to answer.

The public is entitled to expect that

• the NMC discharges its duties in a proper, transparent and responsible manner, above reproach and above the prejudices of any individual;
• all of the NMC’s panellists, legal assessors and investigators will conduct themselves in a fair manner in quasi-judicial proceedings;
• panellists and legal assessors will be adequately trained by the NMC to recognise and call out shortcomings in case preparation;
• fair conduct of referrals excludes any NMC investigator partiality and NMC lawyer excesses, whether of zeal or simple disregard for the basic tenets of fairness, in both the preparation and presentation of every case brought before an NMC panel.

The NMC has a responsibility to make sure its legal teams present cases so as not to impair panels’ ability to establish the truth of allegations in FtP hearings, and not to skew the presentation of evidence to those panels.  The NMC is also responsible to ensure its panellists, who are paid by the NMC, have an understanding of their responsibilities, especially if advised on a particular course by the legal assessor.  If the legal assessor gets the advice wrong, then that can be reviewed on appeal, but it cannot be appropriate for a panel simply to disregard its legal assessor’s advice.

A failure by the NMC to act fairly is unreasonable. A deliberate failure to act fairly is misconduct.  It is no excuse for any NMC engagee to say that he or she did not understand his or her obligations to act fairly.   Unfortunately what I read shows that in the preparation and presentation of cases there has been a failure by the NMC to act fairly.  Is that because there’s no accountability upon the NMC’s employed and engaged legal teams and consultants and panellists who fail to act fairly? Not every person who is on the wrong end of such panel failures and NMC lawyer excesses (for that’s what they are) can afford to appeal a poor decision, for example, where a panel disregards a legal assessor’s clear advice on a course of action and allows the NMC legal team to drive coaches and horses through the already inadequate safeguards for registrants’ rights to a fair hearing.

What I discovered was a shocking failure by the NMC to treat registrants fairly in its FtP procedures, regardless of whether the outcomes were or were not justified.  In the face of multiple failures to act fairly and meet a basic human right to give registrants a “fair” hearing, it would be wrong to think that, on the basis that the NMC are barring a “sufficient” percentage of alleged miscreant registrants from practice, the NMC is “doing its job”.  Well, the NMC is not, at least, not properly – and the public should be concerned when a regulator is cutting corners to deliver ”results”

The NMC pays the investigator, its lawyers and the panel members, who get repeat fees from repeat business – and there’s plenty of it. The NMC investigators, legal team and panellists are unaccountable. This mandates that the NMC is under a duty to be scrupulously fair in the preparation and presentation of cases.  A court can criticise a panellist, an NMC lawyer or an investigator, but that’s as far as it goes.  The worst that is likely to happen to an NMC employed or engaged investigator, lawyer or panellist is to get a restrained verbal kicking from a judge in one of the very few appeals. The PSA can criticise the NMC for poor discharge of its public responsibilities but very rarely does it address individual cases. However, investigators, lawyers or panellists who do not achieve the NMC’s single-tracked interpretation of its role as a public watchdog, can be dropped by the NMC.

Unfortunately, there is clear evidence that some NMC case investigators and presenters do not pay, and consider themselves not obliged to pay, any heed to the notion that a panel should have a chance to get to the truth; rather, in two of the cases I was asked to look at, the NMC investigators and lawyers were intent on skewing the evidence (all within their understanding of what the FtP procedures permit in adversarial proceedings) in their presentation of cases with the primary intention of securing a “conviction” – and without any regard to the fairness or integrity of what they were doing. For instance, they either did not ask or secure from NHS Trusts such information as appraisal and review records of registrants,  and did not ask for, and disregarded or dissimulated inconvenient documentary evidence which they had, or the NHS Trust hospitals must have had, and which could have undermined the achievement of their goal.

It is apparent that there is an NMC approach which says that it’s up to the registrant to obtain such evidence from the NHS Trust or patients, even when the NMC knows perfectly well that a registrant is plainly not in a position to do so (even when assisted by a Union Rep or by Union appointed solicitors), particularly when the NHS Trust is uncooperative with the registrant (it usually is).  It appears it is all too easy for inconvenient records that undermine the NHS Trust’s own position vis-à-vis the registrant to be withheld, mislaid or lost.

The cardinal difference between the NMC’s and the registrant’s respective ability to get documentary evidence from NHS Trusts is that the NMC, as a statutory body, can compel NHS Trust to divulge documentation, whereas the registrant cannot.  And registrants subject to disciplinary procedures in NHS Trusts can be excluded from premises, isolated from colleagues and forbidden to contact patient witnesses.  The NMC is surely well aware that, in many circumstances, registrants are prevented from obtaining timely evidence from patients by their employers, and then are denied access to records which would assist their cases.

Disciplinary proceedings are necessarily informal, and are not conducted with any effective obligation to insure fairness (e.g. not ambushing a registrant, who may be distressed, or not allowing the registrant to look at material records at the time of questioning).  Evidence against such a registrant is not given under oath, and there’s no opportunity to test that evidence in the disciplinary procedure. That such registrants may be accompanied by a trade union official or a friend does not amount to the same as being represented by a lawyer who knows what is inadequate or inadmissible evidence. “Minutes” of proceedings at hospital investigatory interviews and disciplinary hearings are notoriously unreliable – they may be prepared by hospital employees who are not professional minute-takers, or worked up after hearings in which senior staff are looking for outcomes favourable to the NHS Trust.

And how many registrants can afford to challenge unfair findings at an Employment Tribunal against the limitlessly publicly-funded NHS, especially when the registrant has been rendered jobless and unemployable by the double whammy of dismissal for misconduct and the expedient of a referral to the NMC, which will kick the registrant’s chances of employment into the long grass for two, three, four years or more?

The NMC needs to wake up and realise that a significant number of NHS Trusts have a vested interest in not lifting the wraps (especially by providing inconvenient documentary evidence) on what has happened in the round with referred registrants because those NHS Trusts are all too often failing in their duties both to the public and to employees by

• not providing registrants with reasonable working conditions;
• not providing proper or consistent staffing levels with the necessary levels of expertise;
• not providing adequate training opportunities;
• not offering adequate opportunity and time to review and remedy perceived weaknesses in registrants’ performance through the appraisal process and internal remedial opportunities;
• conducting procedurally arbitrary investigations and disciplinary procedures in which the NHS Trusts are both prosecutors and judges;
• inadequate record keeping of such procedures, especially where it does not help to achieve an NHS Trust’s pre-determined objective of disciplining the registrant and distancing management from blame for managerial failings in the NHS Trusts themselves;
• ignoring the vagaries and realities of internal politics;
• using referral to the NMC as an escape route for the NHS Trusts’ own management failings, estimating that the NHS Trusts will be excused their employees’ shortcomings because the NMC FtP proceedings are not conducted like court proceedings (in FtP hearings the NMC, using limitless funds, provide investigators, prosecutors and judges), and the registrants, often jobless, unemployable and on benefits, have the odds stacked against them, and legal representation is constrained and inadequate

In each of the reviewed striking-off cases, the relevant NHS Trust publicly “outed” the registrant before the Panel hearing as a miscreant to secure the NHS Trust a reputational advantage.  In one of those cases, it made it very difficult for the registrant to find support from professional colleagues, who could be deterred from sticking their head above the parapet to support that registrant in a FtP hearing, as those colleagues would effectively be giving evidence to the panel against their employer.  Few would risk the consequences.

Some panels are reluctant to credit a registrant with telling the truth.  In each of the panel hearings, I reviewed I read the evidence of an NMC witness (who appeared in my professional opinion to be evasive and shifty but which each panel found to be reliable on contested evidence) defending the management responsibility of an NHS Trust where there was a managerial failure highlighted by the registrant’s alleged poor practice and giving hearsay evidence of the registrant’s alleged poor practice.

In transcripts of evidence across the two cases which I reviewed I have seen transcript evidence of:

• the NMC panel in each case, in breach of the FtP procedural rules and case law, failing to address properly registrants’ applications relating to the admissibility of hearsay evidence;
• an NMC investigator improperly interviewing a key NMC witness and running the risk of planting imagined recollection in the witness’ mind;
• NMC investigators suppressing the truth about the willingness of witnesses to give evidence in support of the NMC’s case;
• NMC case managers permitting their counsel to mislead a panel and not then ensuring the panel was told the truth;
• NMC counsel blatantly enabling and encouraging a hearsay witness of fact to give expert evidence to a panel when that witness was plainly disqualified from doing so on grounds that that witness lacked the necessary impartiality (which the NMC legal team must have known) to give such expert evidence;
• a NMC legal team organising the order of presentation of evidence from witnesses so as to impair the ability of a registrant to cross-examine a key NMC witness fully and properly;
• in each case a NMC legal team deliberately choosing to deprive a panel of material evidence presented to impair a panel’s ability to get to the truth in relation to factual allegations of misconduct with which the registrant was charged;
• in each case involving charges of dishonesty the NMC legal teams skewing its presentation of the case to influence unfairly a panel as to the relative credibility of NMC witnesses and the registrant;
• NMC legal assessors and panellists being unaware of or failing to appreciate or to pick up any of these untoward case presentations.

Each panel found the NMC’s principal witness (NHS managers) credible when considering the contradictions between that witness’ hearsay evidence and the direct evidence of the registrant.  But it was necessary for the panel to do so, in each case with the aggressive urging of the NMC lawyer, in order to justify its overall disregard of the credibility of the evidence and truthfulness of the registrant, and thereby cross the threshold of proof for dishonesty.  Thus the registrant is not only dishonest as alleged in the charges but the registrant’s “dishonest” denials, given under oath, of the allegations of dishonesty, compounded the heinousness of the allegations and the registrant is judged dishonest on a simple balance of probabilities – ie: the NMC’s case was made above a threshold of only 50.1% – and not beyond a reasonable doubt.  This reinforced the NMC’s assertions of unfitness to practise deserving increased severity of sanction for having brought the profession into disrepute and because of the registrant’s perceived lack of contrition or awareness of the deficiencies in his or her practice.  After all, the NMC argued in each case, the registrant denied charges before the panel so the registrant was still “in denial” and showing lack of contrition and awareness at the hearing.  This Kafka-esque approach to dishonesty charges should have no place in any such proceedings, especially without the protections afforded to a defendant in criminal proceedings in the United Kingdom.

Should findings of dishonesty by a panel even be decided upon a simple balance of probabilities on the basis of hearsay evidence? Surely no finding of dishonesty should be reached merely on a balance of probabilities based on contested hearsay evidence, the admissibility of which has been challenged.  Where is there fairness to registrants in that?

It seems to me that the NMC’s FtP procedure is failing to protect the public interest in the respect that some (and I emphasise, only some) registrants are being hung out to dry and the public is being deprived of their services unjustifiably through NMC inadequacies in:

• the monitoring of evidence-gathering exercises by NMC investigators;
• insuring that case presenters do not take advantage of legal assessors’ and panels’ ignorance of basic tenets of fairness by presenting cases in a skewed manner;
• considering and taking into account in their decisions motives of ex-employer referrers of registrants to the NMC
• training of panels actively to address a drive-to-conviction culture in NMC investigators and legal teams who present cases to panels

On the basis of the preparation of two cases leading to striking off, and the systemic defects in the adversarial preparation of each, it seems that there is an overwhelming drive by the NMC to secure “conviction” of the registrant, and that a “positive result” (i.e. achievement of sanctions) culture infects the NMC Fitness to Practise process.  Neither a wish to establish the whole truth nor fairness played much, if any, part in the NMC’s adversarial approach in either case (including the legal assessors’ performances) I reviewed.  In the third, case, reviewed prior to conclusion of the NMC investigation stage, it was apparent that the NMC was reluctant to process the complaint with any sense of urgency, or to credit promptly the registrant with having effected a remediation programme.  This is a pointer to problems with the NMC approach to dealing equably with registrants

There’s a duty on lawyers for every party in civil and criminal court proceedings to present evidence fairly and not to mislead the Court.  Why should these NMC investigators and their legal teams be exempt from, and averse to, putting a fair presentation of evidence before the NMC’s panels?  The tiny number of appeals against NMC panel decisions is no evidence that a fair FtP procedure is being afforded to registrants. The burdens and obstacles, both financial and emotional, for sanctioned registrants, often unemployed and with devastated personal lives, are massive deterrents to appealing an adverse panel decision.  Unions rarely support a registrant’s need for representation for or the costs of an appeal. With union budgets for FtP hearings being extremely tight, registrants’ cases suffer from an evidential deficit which is well-nigh impossible to patch up on appeal.

How can the NMC be regarded as a reliable public watchdog, when its processes lead to the same sanction being visited on those whose claimed poor record-making leads the panel to conclude, on the back of quasi-expert and hearsay evidence that care was not delivered to a patient (thereby leading to a finding of clinical misconduct and dishonesty)  get the same striking off sanction (even though no harm was actually occasioned to a patient) as an undoubtedly demonstrable incompetent and dangerous, or violent, registrant?

And where does the NMC ensure that, if conditions of practice are imposed, it is possible for the registrant actually to comply with those conditions – especially when that registrant has been dismissed by the former employer? If the NMC does not so ensure, it has the same effect in practice of rendering the registrant unemployable as does a striking-off order.

Plainly there are registrants who should not be allowed to practise because they pose a significant risk to the public and the evidence of unfitness is clear.  But all registrants deserve to be treated fairly by the NMC, especially where the evidence is unclear or disputed. The burden of proof is on the NMC to prove charges, not on the registrant to disprove charges.  If the registrant is denied access to or cannot access evidence, that should not weigh against the registrant.

The NMC should also take into proper account evident systemic failures in the NHS units and the defensive need of employers to allocate blame to or scapegoat registrants to deflect public criticism of the Trusts themselves.  In the three cases I reviewed, the NMC and its panel either failed to show sufficient awareness of or chose to disregard those factors even though they were staring them in the face.

The NMC’s procedural failings, of which I have seen transcript evidence, require urgent remedial steps by its executive to ensure that NMC investigators, legal teams and panels are trained to recognise the obligation for FtP procedures to be carried out fairly to referred registrants, whilst ensuring that the public is protected, and that the integrity of the nursing and midwifery professions is upheld.

John Rubinstein

Inforight®

Legal advisor to The Midwives Haven support group.