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Bias in NMC referrals and the nurses most at risk.

Mar 11, 2023 | Opinion, Press | 0 comments

Black and Asian nurses are more likely to face fitness to practise proceedings – and to have their cases dropped early. So what can be done to end the prejudice?

by Nick Evans, health journalist
30 January 2023 vol 38, number 3, nursingstandard.com (paywall)

 

Every day, on average, two black nurses are referred to the nursing regulator over concerns about their practice.
The numbers are starkly disproportionate. Just under 16% of fitness to practise (FtP) referrals relate to black nurses and midwives – almost double the proportion of black registrants. Male nurses and those trained in Africa are particularly at risk, according to 2016-19 Nursing and Midwifery Council (NMC) data.
Some people of mixed ethnicity and some of Asian heritage are also at greater risk of referral, although not as markedly as black nurses. Conversely, white British nurses are referred disproportionately less frequently.
Significantly, a higher proportion of cases against black registrants are closed at an earlier stage. At screening, almost half are closed without further action, while at the investigation stage a further half are closed. Sometimes this will be because there is no case to answer, while in others it will be because the issue is not serious enough for a fitness to practise hearing.

Harassed and ‘othered’

Equality 4 Black Nurses chief executive officer Neomi Bennett says ‘The bias is frightening. What we see daily is worrying. These nurses wish to care for patients, but they are constantly harassed, targeted, “othered” and profiled.
‘Most cases we see are baseless. It’s a severe problem and has become normalised. Racism is forcing black, brown and minority nurses from the health service in their droves.’

“Most cases we see are baseless. It’s a severe problem and has become normalised.”

 

Neomi Bennett, Equality 4 Black Nurses chief executive officer

Stress and financial burden

This is a trend that has been recognised for some time. In 2017, the NMC published data from University of Greenwich research it had commissioned, which showed disproportionate levels of referrals in certain groups. This followed campaigns by groups representing professionals from minority ethnic backgrounds.
Greater understanding of the impact has come more recently. Last year, the NMC published a follow-up report based on interviews with 60 registrants and 11 employers who had all been involved in FtP cases.
The impact on the individual, as Ms Bennett suggests, is huge. The NMC review found one of the overriding messages was the stress caused by being involved in the FtP process – particularly its duration. It was also clear referral can have significant financial implications, particularly for agency workers, who reported they were often denied shifts during the process.
Many of the professionals felt they were seen as outsiders, their ethnicity was a reason for their referral and they were held to different standards.

Communication

Different communication styles were also highlighted in the NMC follow-up review, with participants saying cultural differences could be a factor. For example, not looking a person in the eye can signal lack of respect in some cultures, while in others it is a sign of respect; lifting a hand in the air can be seen as aggressive by some, but for others it is a gesture of thanks to God.
Employers in particular told the review they felt language could be an issue in referrals involving staff for whom English is a second language. Several also cited bias of the public – although the review noted its research showed referrals were much less likely to come from public than from employers.
Staff and employers both felt that the type of employment, role and setting influenced referrals. Agency staff were particularly at risk, and there were reports of agency workers being referred automatically when a concern was raised, rather than the complaint being reviewed. Employers noted that a higher proportion of agency nurses are black or male than in other groups.
There were some differences in the reasons for referrals. Of cases involving black staff, 39% were related to patient care
– a higher proportion than for other groups. Professional boundaries were cited in a minority of cases but still at much more often than for registrants of other ethnicities.
The NMC says the findings, particularly the evidence gathered on cases closed early, suggest many should not have been referred and would have been better managed locally.
NMC chief executive Andrea Sutcliffe says the findings are a concern. ‘It’s essential we recognise people’s experiences of discrimination – and the absolutely devastating impact. The findings highlight opportunities for us to improve our regulatory activities to ensure our processes are fair.’
The NMC has pledged to review the way Ft cases are handled, to ensure consistency; improve staff training and look at data collection and information about referrals for employers and local teams.

Referred for no reason: ‘It took a year for my case to be dropped’

Eno, a black nurse, describes their referral to the Nursing and Midwifery Council – the case was subsequently closed:
‘I’ve been a nurse for 30 years without any issues. But then I started a new job at a nursing home. I had been there for about six months and had been asking my manager for a formal induction, but they had never arranged this. This seemed risky and made me feel vulnerable.
‘I was often allocated more than 35 residents in a single shift, violating Care Quality Commission care home standards.
Patients would call me names about my skin colour and my manager said I was sensitive.
‘Finally, there was an incident and my manager scapegoated me. A patient had an unwitnessed fall and I did everything a nurse should do. I assessed and treated the patient, and handed over to the nurse before I left my shift. The following day, I reassessed the patient and I felt they should be transferred to hospital because they were now complaining of hip pain.
‘I reported it and, to my absolute horror, was suspended from my job and referred to the NMC. I then went through one year of investigation for nothing.’

Damage to careers

Cathryn Watters, founder of NMC Watch, which provides support to nurses in FtP cases, remains unimpressed.
“We’ve known about these issues for years. I don’t think the NMC is doing enough. They have introduced context forms which provide an opportunity for nurses to raise issues like racial bias, but they are not always offered or are offered at different stages.
‘They’re an opportunity to look into these issues and dig into the case, but in our experience the NMC is not doing that.
‘We know from our research some employers are responsible for a disproportionate number of referrals. The NMC has a role in educating employers, questioning vexatious claims and feeding back more.
‘The length of time it takes is an issue. Some take years, with COVID still being blamed for the backlog, but lives and careers are on hold.’
She says even once a case is dropped, nurses can struggle to rebuild their careers.
‘The process is so gruelling we find many turn their backs on nursing, even when they have no case to answer. One of the problems is that when you apply for jobs you have to declare that you have been through FtP. We advise nurses to be upfront before they are offered a job, but some are automatically discounted or blocked by HR.

 

“We know from the research that there are some employers responsible for a disproportionate number of referrals. The NMC has a role in educating employers and questioning vexatious claims”.

Cathryn Watters, founder of NMCWatch, which supports nurses through FtP cases.
‘There needs to be a process by which people are supported back into the workforce.’
Ms Bennett says one of the problems black nurses face is employers are often quick to escalate complaints about them.
‘They’re never given a chance to explain,’ she says. ‘I believe if employers would slow down a little and have a proper process, they could avoid some of this.’
She recommends NHS England’s A Just Culture guide to supporting conversations between managers and staff where safety concerns are raised about a member of staff involved in a patient safety incident. The idea is to clarify whether the individual truly requires support or intervention or whether the issue is to do with workplace culture.
The Just Culture guide is intended to support consistent, constructive and fair evaluation of the actions of staff involved in patient safety incidents. It says:
‘The actions of staff involved in an incident should not automatically be examined using this guide, but it can be useful if the investigation of an incident begins to suggest a concern about an individual action.’

The guide recommends considering the following questions:

  • Deliberate harm test Was there any intention to cause harm?
  • Health test Are there signs of substance misuse or physical/ mental ill health?
  • Foresight test Are there agreed protocols in place that apply to the action/omission? Did the individual knowingly depart from these?
  • Substitution test Are there indications peers would behave in the same way? Was the individual missed out when relevant training was provided? Was there a lack of supervision?
  • Mitigation test Were there any mitigating circumstances?

How to challenge and report racism

If you witness racism:

  • Challenge it and remain calm and objective
  • Be an active bystander by intervening directly or escalating to someone in authority
  • Check in with the victim and explain the steps you are planning to take

If you experience racism:

  • Talk to your colleagues, managers and HR
  • Keep a diary of incidents
  • Raise the issue in the workplace
  • Seek advice from trusted colleagues or organisations
Source: NHS England (2022) Combatting racial discrimination against minority ethnic nurses, midwives and nursing associates.

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