Case Study 7: witness safeguarding issues

Jun 6, 2022 | Case Studies

Nurse X commenced work at a care home as manager in November 2018.

In Feb 2019 she took some annual leave following working excessive hours and negotiated with her manager that she would not be contacted during that time so she could recuperate fully.

During this time her deputy conducted a routine fire drill with staff as part of their mandatory checks – she had been left instructions to do so by Nurse X in her absence. The fire drill was conducted but a resident was included in the drill to practice evacuation techniques. A few days later the patient had an expected death – the death was expected as the patient was at end-of-life.

On her return from annual leave, she attended a large-scale investigation into the home on separate issues. On checking the handover from her deputy she noted the fire drill had occurred without incident, but there was no mention of a patient being used – none of the staff told her that a resident had been used in the drill.

Two months later a whistleblower contacted Safeguarding to raise concerns that the resident had been used in the drill and been harmed during it. A call came to the nurse from Safeguarding to state they had been informed of this incident. Nurse X stated that this would never happen and dismissed the concern as they had had malicious reports before. The Regional Manager was in the office at the time and aware of the allegation – no action was taken at this time. 

A couple of weeks later the police called Nurse X at the home in her capacity as manager. A full investigation by the care home was carried out as a result. During the investigation, it transpired that the deputy manager had authorised Resident A to be used in the fire drill. However, the detail of any injury was unfounded and an accident form was completed and signed off by Nurse X. The patient had DOLS in place but no evidence to suggest that their death had been hastened by taking part in the fire drill or that they had been harmed during it.  All staff were interviewed and all supported that Nurse X was not aware the patient had been used in the drill. The deputy manager had reported a written handover to her, but it did not include this detail. The deputy could not confirm if she had told Nurse X verbally.

A month later Nurse X was dismissed from the care home on the grounds of failure to complete her probationary period successfully. Following the dismissal, an HCA stated she had texted Nurse X and raised concerns about the fire drill event. She said that  Nurse X had told them not to tell the investigating officer, given them £100-worth of vouchers and paid for a taxi home in order to bribe her to keep silent.

In June 2019 Nurse X was referred to the NMC and this was the first time she had been made aware of the allegations. She stated from the beginning of the investigation and throughout that she had indeed given vouchers etc but this was because the HCA was struggling financially and that it was done with the knowledge of her manager. There then followed nearly 3 years of NMC investigations which had a severe impact on Nurse X’s mental health and home life due to the allegations and investigatory process.

She joined NMCWatch without any prior support and unable to fund legal representation.

She joined our Facebook support group and we allocated her a case worker, someone who had been through the process and who could give her peer-to-peer mentorship and coaching. It took many months of gentle guidance that helped her to grow psychologically stronger. She was eventually able to access counselling via the RCN which helped her turn the corner and get stronger so she could fully engage in the process and demonstrate what had happened in full.

The NMC only relied on one witness, who a year before the hearing admitted that the statement she had given had been done under duress. When the NMC was questioned as to whether they would withdraw the case in light of this, they stated they would not and it was up to her defence to deal with the information as they saw fit. We fear what would have happened if she had continued with no support.

The hearing was adjourned twice – the first time on health grounds for the nurse and the second time on health grounds for the key witness. The case eventually came in front of the CCC panel – almost 3 years after the original referral.

It was quickly apparent that the NMC’s key witness was unreliable. Her version of events kept changing, her recall of specifics was poor and it was obvious that she changed what she said to please the person asking the questions. This was worrying to observe as it showed the potential for how evidence against the Nurse could be coerced to fit the case, as well as the lack of safeguarding for such a vulnerable witness.

This witness had, one year previously, emailed the NMC case officer to say she was not standing by her previous statement, that she was easily coerced in order to please people and that she felt Nurse X had done nothing but support her. The witness again confirmed this during her live evidence and when questioned by the panel members confirmed that Nurse X did not do what she was accused of on all counts and that her actions had been that of a supportive manager. She also confirmed she had not reviewed her statement prior to that day’s hearing and that the statement had been taken 2 years previously with no updated statement taken after she had emailed the NMC case officer to say her stance had changed.

At the end of day one we asked for the case to be closed on lack of evidence and return a No Case to Answer. The NMC still continued with the standpoint that there was a case based on the original statement taken 2 years ago and that their case was still valid.

The panel retired to consider and returned on day two with a No Case to Answer and wished Nurse X well.

There are many concerns about how the case was presented by the NMC and how it even got to this point. Nurse X has suffered financially, personally and psychologically as a result of this case being brought forward. Her case also highlighted very key concerns where the person actually responsible for patient harm was not referred or investigated. This is very troubling as it could result in other patients being put at risk to further harm.

This case study has given us the following lessons:

  • NMC should hold a responsibility to escalate to other authorities when employers have failed to hold the correct persons to account
  • NMC should hold a responsibility to escalate to other authorities when employers cause harm to staff
  • NMC should provide clear evidence as to why they pursue a case when case examiners have indicated No Case to Answer
  • NMC should hold clear responsibility over safeguarding vulnerable witnesses and identifying when a witness is unreliable or continuing the process is detrimental to that witness
  • NMC should be held to account if they coerce witnesses in order to strengthen their case
  • NMC should ensure that if a witness changes their statement or offers information to suggest their statement is not their current standpoint, a new statement is gained and NMC’s position is changed as appropriate
  • The NMC should take note of any context that may arise from Freedom of Information requests (as were done for this employer) that show high numbers of referrals to the NMC supported by evidence from the registrant that organisation culture is to scapegoat employers rather than investigate and deal with the true route cause.
  • Vulnerable people may give evidence in order to please the person conducting the investigation – skilled investigators are needed to identify this throughout local and NMC investigations
  • Compensation should be accessible for registrants damaged by poor workplace practice and/or NMC investigation
  • NMC should have a transparent process in place to review all cases that are closed during planned hearings – lessons learnt need to be visible in order to promote accountability and learning and avoid repetition of the same problems.

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