Our vexatious referral: lack of insight or a grief response?

On the whole it is extremely rewarding, to help someone who is struggling to navigate the complicated and muddy waters of regulatory action. Registrants find themselves embroiled in a system that is completely alien to them, a process which doesn’t always follow the logic and reasoning they are used to in their everyday practice. Regulatory investigations are a legally driven process, the registrant believes the allegations will be investigated neutrally to get to the bottom of the facts, whereas the reality is the investigation is conducted on the basis of “can these allegations been proven?”.

Registrants don’t understand this nuance and believe their side will be looked at as equally as the referrers side, then when faced with the NMC decision if a case progresses, are shocked that little weight has been put on their side. Regulation is different from other legal processes that rely on the criminal standard – beyond reasonable doubt – whereas regulation is the civil standard of “on the balance of probabilities”. Here it is determined whether it is more likely than not that these things occurred in the way they are described and if so, do they fall short of the Code of Conduct.

 

In her post on here, Deborah Hughes from Midwives Haven, wrote about weaponization of the Code of Conduct and how most professionals would struggle to uphold it every minute of every shift, every day. 

 

Straight-talking, clear expertise.

When people come to us for representation, we are clear, we have a unique skill set and we will help where we can. But we will also be honest with you, if we feel you are at fault we will tell you and we will help you address that fault so you can develop your practice and assure the NMC you are safe to continue to practice. I am still a registered nurse and have such a responsibility to ensure those I work with are reminded of their responsibilities under their Code.

 

For some this is more challenging than for others and we understand that. When the FtP process is taking a long time to conclude it gives us time to work with the person, to help them understand the position of the NMC and why they are assessing it in the way they are.

 

Occasionally people we work with lose sight of our expertise and find it very difficult to follow our lead. Our model is supportive, and our years of experience of helping those under FtP make us expert in helping those who come to us. It’s a tricky balance of making sure we listen to their concerns, get to the root of what has happened (sometimes many years previously making recall tricky), and then help them understand why the NMC are taking it seriously and what they need to do in order to address this.

 

The biggest stumbling block can come when they feel they are being wronged by the NMC. Don’t get me wrong, sometimes they are, but as a professional we must engage in regulatory proceedings and always reflect on our practice – there are always things we can do to improve, there are always things we can do better. 

 

The wrong process

We were interested to read that one lady we worked with took her case to the High Court recently to appeal the decision of the NMC. We were pleased we didn’t know of this beforehand as it would no doubt have made us feel uneasy. Despite our confidence in our approach, when it is brought into question it can always make one worry that perhaps things could have been done differently. I personally am always under the threat that someone we are helping may take offence and refer me to the NMC themselves if unhappy. It’s a risk, people refer for many reasons and sometimes people lose their objectivity when they have been damaged by process. 

 

This was the case here. Prior to her appeal this registrant had raised complaints against us and wanted her payment to be returned. We reviewed the complaint but refused it. We had worked hard for her, managed to get a number of charges dropped and had told her what she needed to work on and where her level of responsibility was. She decided to go to another organisation to do the latter part of her NMC hearing and when the outcome was published – a Conditions of Practice Order – we felt that was a fair and reasonable outcome and what we felt she would end up getting. 

 

She referred me

Move forward to March this year and I received notification from the NMC that they had had a referral from this registrant about my conduct but they had not upheld it and decided to not take the issue further. As is their new way of working they had not informed me at the time of the referral, but at the end when a decision was made to close the case. This was a novel experience for me – to agree with something the NMC had done, and I was grateful that at last they seemed to make an appropriate decision.

 

But this decision was then appealed by the registrant and in May I was informed that the Assistant Registrar was reviewing the screening decision on the request of the registrant. This is process, those referring in must have the ability to appeal, however at this point I realised the nature of this was becoming vexatious for which the NMC currently have no policy.

 

What saddened me is that a registrant, having been through the trauma of referral themselves, knowing I had been through my own traumatic experience with the NMC previously, felt this was an option for her. Both Simon and I had assisted above and beyond what we were contracted to do for her, but she still felt wronged and that the sanction at her hearing was our fault. The NMC expect insight which should include an understanding of their regulatory process and decision making. Sadly some registrants do not do this as it is not an easy process, can be painful, and requires a level of acknowledgment of your own fallibilities and what you could have done better. Equally it isn’t a quick journey, but this is where the slow NMC process to investigate can work in the nurse’s favour. 

 

Aim for Acceptance

I often refer to the stages of grief when explaining the FtP journey to people.  

 

• Denial of the facts, or that they occurred in the way they are being portrayed. Denial of the person accusing of being authentic, or even that the process is happening by ignoring and hiding away. We try to get people to understand you can still deny charges and provide the NMC with evidence of insight. 
• Anger is a common reaction when referred. Fury and indignant at being referred; that others were more to blame and aren’t in the spotlight, and anger that the NMC aren’t listening to your ‘side’.
• Bargaining: this comes sooner for some than others. They may bargain with themselves, making promises that if certain things happen, they will then act differently or get revenge on those who have wronged them. Bargaining also comes in attempting to “please” the regulator – falling into a Stockholm Syndrome mentality of thinking if deadlines are adhered to this will go in their favour, over sharing with case officers and then being surprised at how the case is handled “but they seemed so nice – why are they doing this to me?” – we hear this a lot. 
• Depression can be obvious or insipid, creeping in unbeknown to us and causing effects that we can’t recognise. This is where good advocacy really comes into play. An advocate can identify this, show you how this may be manifesting itself and affecting your judgement and work on your behalf until you have dealt with this aspect of your grief.
• Acceptance doesn’t mean you accept everything that is being said, but that instead you accept that this is a process like any other, with some parts you can influence and others you can’t. Acceptance that life may be different and that change can be for the good. Acceptance that learning is the key and an FtP process can teach you the most about yourself – how you deal with uncertainty and stress, how you will deal with it in the future. 

 

Some find they are unable to move beyond the first stages, circling back to anger and denial, masking efforts and using excess energy on aspects that really won’t influence the process, but distract from the work in hand that is vital to get through a referral. These few become stuck and can’t move forward positively. 

 

Many of our group will describe a work environment that has become toxic. They explain that those who have referred them have done so vexatiously or as a retaliative measure, but do those making the referrals really understand the long term impact a referral can have on someone, and that if they have been through FtP themselves would they refer at all?

With our referral, the person did understand the impact, as they have lived experience, and were part of our support group where the impact of FtP is clear. Therefore, it is surprising that she referred given her exposure to, and potential insight into, the wide reaching aspects of FtP. Of course, people should feel able to refer when they have genuine concerns about clinical practice, but to refer when there has been a conflict or a breakdown in relationship is worrying, and only serves to clog up an already overburdened system. 

 

I await the Assistant Registrar decision, whatever they decide. If the NMC choose to take the referral forward I can justify my actions and will gladly explain them. If the NMC feel I failed in my code I will reflect and remediate as any good insightful practitioner should: the process must be respected. We are always learning, and I have learnt a lot from this particular client so for that I thank her. 

 

Last week we were made aware of an appeal by the registrant via the High Court – the decision can be found here – but this has also been discussed by Kings View Chambers here. What Kings View fail to bring to light is the particular emphasis the registrant put on what she perceived as poor representation by us, and that what Justice Linden actually confirmed was the opposite – that we acted as any advocate should. We were pleased to read the appeal has been rejected, with key narrative about the misguided nature of it, confirming that Simon did a masterful job as always, and worked well as her advocate. It’s always nice to have a High Court judge confirm what we know!

 

Justice Linden gave his decision on:

Ground 1: was the standard of representation by Mr Holborn such as to amount to a serous procedural irregularity? 

50. It follows from what I have said that Ground 1 fails in respect of Mr Holborn’s failure to seek an order for further particularisation of the charges and to apply to exclude the evidence of Ms Jobson. Both applications would inevitably have failed. Nor can any issue sensibly be taken in relation to Ms Brown’s admissions the primary facts relating to certain of the charges against her.
51. The remaining issue under this head is Mr Gloag’s argument that Mr Holborn’s cross examination was so deficient as to amount to a serious procedural irregularity which rendered the decision of the Panel unjust for the purposes of CPR Rule 52.23(3). His argument focussed on the cross examination of Ms Jobson, who was the principal witness for the NMC. He submitted that this was inadequate in that Mr Holborn did not go through each of the charges in turn with her as he should have, and did not put various medical notes and records and other evidence to her in relation to each charge. Mr Gloag took me to the materials in question, at least so far as related to the charges which resulted in findings of misconduct. His submission was that Mr Holborn’s cross examination did not subject Ms Jobson’s evidence to a forensic analysis in the light of these materials. 
52. Having read the transcript of Mr Holborn’s cross examination of Ms Jobson it seems to me that the approach which he adopted was well within the range of approaches which a reasonable advocate could have taken in the circumstances of this case, particularly given what the issues actually were. For ease of reference the charges which were found to amount to misconduct and/or to give rise to an impairment of Mr Brown’s Fitness to practise are set out below with the latter emboldened:

54. Unsurprisingly, Mr Holborn’s cross examination reflected these considerations. He challenged some factual assertions by Ms Jobson but largely concentrated on putting points to Ms Jobson which challenged the suggestion that there had been any misconduct on Ms Brown’s part arising out of acts or omissions which were largely not in dispute. He also emphasised the difficulty of the circumstances in which she was working given for example the Covid-19 pandemic, an alleged lack of training support and supervision, being overworked, and so on, as explanations for any failings by Ms Brown in terms of, for example, record keeping. As will be seen below, the Panel took these points on board in coming to its decision.
55. I therefore do not accept that there can be significant criticism of Mr Holborn’s approach to the cross examination of Ms Jobson. Still less do I accept that his approach amounted to a procedural irregularity, whether serious or otherwise, which rendered the decision of the Panel unjust. Here, the important point is that the process has to be looked at as a whole. As I have said, this was not a case in which the cross examination of Ms Jobson was crucial but, even if it was, the real question is whether Ms Brown had a fair opportunity to put her case before the Panel and I have no hesitation in finding that she did. …”
56. In short, the overall procedure which the Panel followed ensured that Ms Brown received a fair hearing in which she had a fair opportunity to respond to the charges against her and to put her side of the case, much of which was accepted by the Panel. Mr Holborn’s approach to the cross examination of Ms Jobson did not begin to render the decision of the Panel unjust.

All Grounds of the Appeal failed and the appeal was rejected. 

The registrant will have the ability to demonstrate at any CoP review the steps they have taken to address the requirements of the CoP and demonstrate strengthened practice. Without being able to demonstrate this they risk the sanction continuing or being replaced with one more severe. It will be interesting to see if any of this history is taken into account when the NMC panel make their decision on insight and any current impairment.  

The appeal case shows that it is simply not enough to say you are unhappy with a decision, to suggest that the decision was wrong due to poor representation and that the court should intervene. 

What has it taught me personally and professionally? 

In future I will be ensuring that I have more distance between myself and those we represent, that if the relationship is becoming fractious that we seriously consider withdrawing representation, and ultimately that I listen to my instinct more. I ignored the latter a number of times in this case, and let my nurse’s character of putting others first overtake protecting myself.

After all that’s what we do as nurses… well some nurses.