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Can regulators unpick toxic culture and its impact on patient safety?

Apr 25, 2023 | Case Studies, Opinion | 0 comments

The Professional Standards Authority ( PSA ) in chapter 4 of Safer Care for All, have raised important points that are extremely relevant to our cohort.

Many of our group have raised concerns in the workplace and found that when local investigations have not reached the outcome that the complainant is wanting, they are referred to the NMC. Equally when the NMC does not reach the outcome that is sought it is escalated to the PSA for them to appeal on behalf of the public.

It is vitally important that there is a route for members of the public to raise concerns, especially if there is evidence that those responsible for poor care have not been held to account. However, with the move to a “just culture” and learning rather than blaming, how can this be explained and rationalised when your relative or loved one has been let down so badly? All concerns need to be raised safely, with the assurance that an independent and impartial review occurs so that confidence can be maintained that the right outcome has been reached. With this comes the narrative, to explain the decision-making and how the decision has been reached, look at the impact on all parties and reach a mutually acceptable outcome. But is this realistic? Can this be achieved when resources are limited, timelines are short and organisations will naturally resort to limiting damage and litigation?

The conflict can also occur when colleagues feel their concerns have not been dealt with appropriately, or when colleagues are part of the problem. We are seeing a number of registrants contact us when allegations have arisen following conflict in the workplace with colleagues. We are aware that healthcare culture is currently struggling. With resource and staffing issues comes high stress and ultimately blame will seep in rather than resolution. Diverting responsibility for poor care onto others is high risk and corporate responsibility for contextual factors rarely happens. This week we have seen a report by the Care Quality Commission of a failing unit, describing one nurse being left to care for 17 patients alone during a staffing crisis. Members of our group who are familiar with this trust tell us of many Midwives raising concerns about safety issues and speaking up to CQC but feeling their concerns were not taken seriously. Another told us that as recently as a few weeks ago, one newly qualified band 5 and 1 HCA were left in charge of the postnatal ward, with 19 ladies and babies needing high levels of care, with the senior band 5v being redeployed to a labour ward for the night. When something goes wrong who will ultimately hold the responsibility? No doubt the individual practitioner rather than the management who have allowed the unit to remain open despite poor levels of staffing. Most certainly not those responsible for recruitment and retention or, indeed, pay. The NMC will ultimately hold the practitioner responsible for any mistakes made despite the context given. The practitioner in their eyes has a choice to go to work – but do they really? Caught in a professional Catch22, if they work they are putting themselves at risk, if they don’t they are putting their patients at risk.

Case Study 1

Nurse A was referred by Colleague B when they placed a Performance Development Plan in order to address issues that were arising in regard to communication between the team and themselves as manager. In addition, there were some basic learning aspects around medication and safeguarding. When the PDP was first suggested, Colleague B escalated to senior managers, claiming Nurse A was bullying her and treating her unfairly. The trust investigated and came to the conclusion that the PDP was both warranted and was placed in a supportive way essential to ensure safe practice by Colleague B. The PDP began but Colleague B struggled to engage by avoiding meetings, stating other issues had got in the way of her achieving the goals and that the goals were, as such, unachievable. Nurse A continued to attempt to support and educate in a professional manner offering other colleagues to provide one-to-one support. Within a few weeks, Nurse A received an email from the NMC stating she had been referred to them by Colleague B on a number of grounds including bullying and harassment, poor clinical practice herself and failure to safeguard patients.  Despite the nurse having a vast array of evidence to show the NMC the investigation continued as on paper the allegations could have put patients at risk if they were true. She was given an interim suspension order despite her employers providing supportive statements to show no current or past risks. After 18 months, the case was closed with no case to answer, however, Nurse A had been unable to work, declined in her mental health and lost her financial stability to some extent – although her employer had given her an administrative role in the hope that process would conclude sooner. Colleague B continues to work on the unit and continues to have poor practice. To date, she has not been referred to the NMC and the NMC themselves have not opened a case based on the evidence provided during Nurse As case. 

Case Study 2

Nurse B raised concerns in her workplace about the qualifications of staff on her cancer unit. She was concerned that staff undertaking care of patients receiving anti-cancer treatment were not suitably qualified and this was putting patients at risk. They had attempted to address these issues with the senior nurses of the unit but had their concerns dismissed. Nurse B felt the only option now was to raise this issue under the whistleblowing policy. Nurse B, a month after lodging the whistleblowing disclosure, received an email from the NMC stating that she had been referred to them. The allegations were that she did not hold the necessary qualifications for the role, had poor venous access skills which were vital to the role, had bullied junior staff who showed a higher level of skill than herself and frequently turned up late to work smelling of alcohol. Whilst the nurse should be protected under PIDA as a whistle-blower the reality is that the concerns raised by these two senior managers will be taken extremely seriously by the NMC and a long investigation will take place to determine the facts. Whilst she can provide evidence of the public disclosure to the NMC as part of her contextual information, this will only play a small part in the review of the evidence by the NMC. Ultimately her employer will be providing evidence to support their allegations and not to support her claims. 

Case Study 3

Nurse C was employed at a care home where they worked throughout the pandemic, amidst high levels of patient deaths and high levels of staff absence due to the need to isolate or be unwell themselves. A year after the pandemic this nurse was still reeling from the impact this had and frustrated that feedback they had given on how processes and practices needed to be changed post-Covid were not being listened to. They were heightened to the fact that should another crisis occur, patients would be put at further risk and wished to assist in ensuring things were improved to avoid this. However, they also realise now on reflection they were suffering from PTSD which meant that they were not able to present the information as eloquently or constructively as they could have done – their frustration being verbalised at work with colleagues. During a busy shift, they made a basic drug error, the patient suffered no harm, and they disclosed the error immediately to the patient, their relatives and management. Two weeks later the senior manager of the home put the nurse on suspension whilst they investigated. They then encouraged the nurse to resign, suggesting that it would be “for the best”, and that they would drop the investigation and the nurse could put it all behind them. The nurse did resign, relieved ultimately but has now received notification that on her leaving the nursing home have referred her to the NMC. 

It is not “new news” that those raising concerns are victimised, this has been going on for many years. 

The NHS remains largely unsupportive of whistleblowing, with many staff fearful about the consequences of going outside official channels to bring unsafe care to light. We recommend that the Department of Health (DH) bring forward proposals on how to improve.

Many regulators do now facilitate anonymous reporting, in order to protect informants from victimisation, harassment, and dismissal. However, this can only really be done prior to any referral to the NMC, as once on the treadmill of referral the process needs to run its course. 

The Office of the Whistleblower may go some way to change this and give accountability to those who are victimising whistleblowers but regulators will need to become very skilled in assessing referrals in order to determine what constitutes a vexatious referral. There may still be regulatory concerns in a vexatious referral.

The PSA report states:

“Individual accountability is crucial in keeping people safe in health and care, and professional regulation is integral to this framework. This should be understood when inquiries and reviews investigate major failings.”

“We have concerns, though, about the safe spaces approach taken by Healthcare Safety Investigations Branch (HSIB) for England, because its high threshold for referral to the regulator does not match the regulators’ own. 

It also seems to run counter to the professional duty of candour that requires professionals to be open and honest when things have gone wrong.”

The genuine concern is that by creating a “safe space” it will become even more difficult for patients and relatives to get the answers they need. This work needs to ensure flexibility in how it examines evidence from many different sources and does so swiftly and efficiently. Equally, the current process of all key investigators almost playing a game of chess before decisions are made does nothing to increase patient safety and everything to potentially cause further harm. An NMC investigation that takes many years whilst waiting for criminal process or coroner reporting to be concluded will not address immediate risk. Equally, the imposition of interim orders, just in case there is a risk is not sufficient to justify the harm it may cause the individual as well as the profession and the workplace. Transparent risk assessments, skilled investigators and swift coordination with evidence rather than alleged conduct must do better. Humans can at times be fundamentally cruel, particularly when faced with a risk to their own jobs and livelihoods. A system that enables those likely to behave vexatiously that does not hold them to account will only continue to punish those that were just trying to do their best and do little to avoid a repeat of the so many healthcare scandals we have seen over the past few decades.  

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