000 days

since the NMC committed to investigate its ‘established procedures’. We’re still watching!

Are dishonesty charges fundamentally dishonest?

May 11, 2021 | Opinion | 0 comments

In December 2016 a study was commissioned and funded by  The Professional Standards Authority (PSA) looking at the background of dishonesty charges through regulatory investigations and perceptions of what is dishonest and what is not. In its first few paragraphs, it explains that

“Honesty is most particularly prized in professional life. Reports of professionals who have deviated from this moral norm have resulted in disappointment, a loss of trust and, in some instances, moral outrage”

Healthcare professionals hold a position of trust and privilege in so far as healthcare users transfer their trust to them and in turn, quite rightly expect them to be honest and trustworthy. When justifying accusations of dishonesty we will read in hearing notes the panel stating that a loss of faith in the profession would arise if nurses and midwives who were dishonest were allowed to continue to practice without restrictions. Yet the measure for dishonesty is still extremely fluid and dependent on a) the panel members who are assessing b) whether the nurse /midwife has good legal representation and c) whether the nurse or midwife can present factual evidence to back up their version of events. Potentially if any one of these three aspects fails the outcome can be poor.

Take a cross-selection of members of the public and you will see a whole range of what one person sees as a white lie and what another sees as inherently dishonest.  Yet as a nurse or midwife, we must hold a higher moral code and ensure we always act with integrity, professionalism and unwavering honesty. The general public will fail on the same measure of dishonesty without recourse so how can the proportionate balance be made? Is it realistic in the modern age to expect our healthcare professionals to not succumb to the usual stressors that anyone may experience and if not affecting their work is it dishonest to not disclose?

As a parent we tell little white lies all the time – Santa, the tooth fairy, injections don’t hurt, pull a face and you will stay that way!! Does this make us inherently dishonest people?  No, of course not, we all use our own moral code and personal internal guide on what is acceptable and permitted.

So when does dishonesty fall into the realms of regulatory concern? Obviously lying when we have failed or omitted something in our everyday practice is a breach of our code and the requirement to comply with Duty of Candour means we must speak up when mistakes are made. But what if being open and honest has a negative impact on our personal life or potentially may impact our ability to work? A nurse who feels their manager is not approachable and will think negatively of them if they admit they have made a mistake, may struggle to speak up, but this does not mean he or she has deliberately deceived or set out to mislead their colleagues. Our regulator will argue that a nurse or midwife must always be open and honest at all times but is this realistic for example if a nurse is struggling mentally with the impact of Covid Pandemic – can they be open and honest about this without fear of being removed from the workplace on grounds of ill health. Is that nurse or midwife really going to be honest about this if their ability to work and earn a living might be threatened by doing so?

Some will argue that this is a very simplistic way of arguing a more complex issue and as devil’s advocate, I would agree. But again and again, we see members facing allegations of dishonesty with further allegations levied by their denial of original charges and what can only be assumed as a junior legal person trying to ensure the case appears more weighty and warranting case examination, building a set of charges that will ensure the reader immediately risk assesses that there are strong grounds on both public interest and public safety.

Then we have the nurse or midwife who is struck off the register and applies for restoration – if they have been struck off on dishonesty charges can they ever truly be restored? Does the process itself enable practitioners who are truly dishonest to “play the system” by stating in reflections what they know the panel / NMC will want to hear in order to deem they have remediated, whereas an honest registrant may deny charges in a naive understanding that they can explain their reasoning to the panel and been seen as honest when in fact the mere fact they are denying charges will be levy for a case presenter to demand this is proof alone of their lack of insight!

Articles in the library section examine cases of relevance to dishonesty charges who have influenced and demanded greater caution by the NMC when dealing with them. But does the FtP process itself facilitate dishonesty itself?

The PSA report stated 6 different categories of dishonesty were found and some of these can be reviewed to look at how these aspects may be open to abuse or misinterpretation:

Dishonesty by omission – not disclosing – where the truth is withheld

We have heard from registrants who have been advised by their legal representatives to admit charges and agree a Consensual Panel Determination in order to complete the process earlier. In order to agree to a CPD, the registrants must accept all the charges in their entirety. But if they are admitting facts that actually are not factually correct this in itself is dishonest.

Dishonesty by commission – lying – where a registrant tells an untruth

If a registrant demonstrates sufficient insight into their actions, shows remediation to have addressed the failures and can show that they will not repeat the behaviour again the NMC may not sanction as heavily as the process is about CURRENT fitness to practice and not to punish for past mistakes. However, if a registrant is inherently dishonest they may be tempted to say the words of remediation and insight but actually in practice not adopt these principles as true change in their practice. How can the NMC ensure that evidence presented is true and honest?

We have witnessed and heard from many registrants who have been able to show clear evidence of a witness for the NMC’s case not presenting true facts accurately and in some cases making their truth fit the charges rather than giving a true and accurate account of events. When the registrant has tried to present this evidence to the NMC and refer the registrant who has been a witness, the referral has been dismissed as vexatious and yet one of their own witnesses can be shown to have been vexatious and malicious. To date, the NMC have no policy for dealing with vexatious or malicious referrals. The University of Melbourne undertook a review on this area and found that although lots of anecdotal evidence to suggest that vexatious/malicious referrals were a genuine problem, there was little evidence to support it being prevalent in referrals to regulatory bodies. It reported that there was more evidence for under-reporting of concerns about health practitioners is a larger and more impactful issue than vexatious complaints.” It went on to explain;

“Professionals making targeted vexatious complaints against each other is an under-researched phenomenon, dwarfed by research into the stereotyped ‘out-of-control’, obsessive and querulous lay complainant. Research is needed to examine the phenomenon of calculated complainant conduct among professional complainants, to create a more balanced picture of the nature and source of vexatious complaints, and the role of practitioners and professional cultures in generating them.”

The report concluded stated better training needs to be provided to employers and employees on how to identify and deal with potentially vexatious referrals and the risk factors for this being likely to occur.

What is the answer?

The root cause of many of these instances is the lack of proper, thorough and impartial investigation. We need to ask at every step of the review of evidence – who conducted the investigation, what are their qualifications to do so and how has the investigation been conducted?  Can a junior screening officer, for example, really be the best-placed person to navigate through the complexities of multiple sources of information? Have they got the experience and knowledge to assess the relevance of both clinical and non-clinical evidence from numerous sources – many of which may be in conflict with each other? Can a non-clinical person truly investigate matters which affect clinical care? Can a newly qualified lawyer or pupillage law student impartially conduct an investigation when they are working for the regulator who is conducting the case against the registrant? The NMC have introduced clinical advisors into the Fitness to Practice process but these will only review the case to see if any clinical aspects have not been considered or if those that are under investigation are relevant, they will not look at the whole case and point investigators into the direction of where additional evidence is needed to be sought.

Key standards need to be set to outline what constitutes conducting regulatory investigations.
Key standards need to be set to outline what qualifications the investigator must hold and the performance indicators they must achieve to maintain that role.
The investigator must be from a neutral organisation that is experienced in conducting healthcare investigations and have the neutrality to move the investigation in whichever direction the evidence points to them, rather than the current methodology which is to source the allegations and then look for evidence that supports those allegations.
Without these key standards and agreed process investigations will continue to fail to identify the route causes behind incidents and ultimately the public will continue to be put at risk by the failing process. Unless more robust investigatory processes are put in place, that are consistent in their methodology regardless of who is conducting them, dishonest registrants will learn how to get a favourable outcome without truly remediating and honest registrants will be found dishonest by their inability to prove otherwise.

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