Doreen came to us in May 2023 after she had attended the first part of her Fitness to Practice hearing without representation in March. She had been referred to the NMC by colleagues two weeks prior to her retirement, following a 43-year exemplary service record in the NHS.
As is common with members of NMCWatch she had informally whistle-blown her employer and found herself amidst a process that was alien and surprising to her.
She had, nonetheless, done extremely well up to this point but, exhausted and wrung out, she needed our help.
We tried contacting the NMC case officers to get an up-to-date account of what stage the case had reached. Little information came back – instead, they referred us to the registrant who they said should know as she had attended and should be able to tell us all the information we required.
We applied for transcripts of the hearing in order to help us assess where the case was as the nurse was confused and could not confirm if facts had been found, what the next stage was, etc.
Making the FtP process more understandable
It seems odd that our regulator does not have a duty to ensure we are properly “informed”
It is common among those going through FtP to not understand what is going on. The NMC send a lot of information, direct registrants to their website and suggest getting legal support. However, nothing more is done to ensure they understand what they are being told, can make informed decisions and have absorbed everything that is occurring. In our nursing practice, we know how important informed consent is – it seems odd that our regulator does not have a duty to ensure we are properly “informed”, but sadly they do not have this statutory duty, and by releasing information in the manner they do, the onus is on the registrant to get informed, not for the NMC to guide them.
A great deal of the work we do with nurses and midwives in our group is to lead them through the process. We make sure they completely understand what the duties of the NMC mean, how this affects them and what will happen at each step.
Our role is to get up to speed with a case and clearly explain it in language relative to the registrant’s role at work and any other situations that they are more familiar with. Our Buddy program also helps them to further explore what is needed.
Reflection and clarification
Doreen reflected heavily on the eight charges against her and provided extremely in-depth reflections for each of them. She had last worked during the beginning of the pandemic and despite the referral to the NMC had always intended to retire as she originally planned.
Doreen made two things clear to the NMC:
Firstly, her intention was to continue with her retirement.
Secondly, that it was incredibly important to end her career of 43 years with her head held high so that professionally and personally she remained in a good place rather than being portrayed as a rogue practitioner who should be removed from practice.
NMCWatch became involved in the case in July, following the adjournment of part 1 of the hearing. On resumption, the panel told us they had found most of the charges proven and it was now time to decide on misconduct and/or impairment. The NMC’s stance was that she should be found previously and currently impaired. As you will read in the conclusion, our opinion was different.
We helped Doreen to understand that even with the context around what had happened during the pandemic and the behaviour of colleagues, who she had unsuccessfully referred to the NMC, this was still about her and her professional conduct.
It is extremely difficult for nurses and midwives undergoing FtP to step away from the anger they feel in regard to how they have been treated by colleagues, employers and, at times, the NMC. We have to spend a great deal of time not belittling the treatment they have received, acknowledging its impact but also helping them move forward. The FtP process is a blunt tool and can only ever focus on the individual practitioner and if it is safe for them to continue on the register – retirement or no retirement.
One question she had was why does this have to happen when I am retiring anyway? It’s so excessive and is taking so long.
The answer comes back to the fact that the NMC has a duty to safeguard the public, whether in the extraordinary circumstances that occurred during the pandemic where retired practitioners were asked to return to assist or when a retired nurse may decide to work privately or in another arena.
The next question was around the following statement:
“Can they not see I haven’t practised for 4 years, would have to do a return to practice course and there is no way I would go down this route at my age?”
FtP is about maintaining an accurate register of appropriately skilled practitioners and also maintaining the confidence of the public. The NMC will argue that this outweighs any argument around intent to practice.
Why does the FtP process take so long and cost so much?
So why does a lengthy FtP process have to occur in this situation and is this the best use of resources and funds? These are perennial questions that we don’t have a direct answer to. However, by examining FtP hearing costs (that we are aware of), we can try to break down why hearings take so long, and given that the only funding for these hearings is from registrant subscriptions, we can drive some much-needed further discussion around this.
A Freedom of Information request on the 4th April 2022 shows that the costs of panels during hearings are as follows:
– Daily Cost of panel chair to CCC hearing: £340 per day
– Daily Cost of registrant panel member to CCC hearing: £310 per day
– Daily Cost of layperson panel member to CCC hearing: £310 per day
– Daily Cost of legal assessor to CCC hearing: £500 + VAT per day
– Daily cost of case presenter to CCC hearing (in-house and externally sourced): We don’t hold data for our in-house Case Presenters as they are paid an annual wage not a fee per hearing.
– Daily cost of panel secretary to CCC hearing: We don’t have daily rates for our internal Hearing co-ordinators, they are salaried, but the majority of them will be within the lower end of the pay scale £26,805- £33,909.
So for this nurse’s case, we estimated that the costs for the whole process were as follows:
Interim orders in place from October 2020 to April 2022 = 6monthly review hearings / meetings = Daily costs for panel of £1,460 x 6 hearings = £8,760
Hearing part one:
13 Day hearing concluding March 2023 = £18,980
Hearing part two:
4 day hearing = £5,840
Total cost for hearings alone = £33,580
Case conclusion – no proper assessment, no early mediation, massive costs (again).
We understand the NMC’s statutory duties of investigation. But, once again, we do not understand their approach to this case. Despite Doreen stating to the NMC in July 2020 that she had no intention of working as a nurse after retirement, would not revalidate and would not remain on the register, as well as the referral arriving with the NMC two weeks before her planned retirement and 21 days before registration naturally lapsing, the investigation into the allegations continued.
Many nurses would have ignored any communication that came via the NMC as well as the FtP process. But such registrants are indeed at high risk of being struck off the register if they do not engage, attend and provide evidence of remediation. This nurse was determined to see it through and not allow the bullies who referred her to ruin the legacy of her 43-year career.
This week (end of July 2023) we saw the NMC conclude that although all facts were proven and they felt she was guilty of misconduct at the time of the incidents, she had shown sufficient remediation to prove that there was no ongoing impairment. The case was closed without sanction.
The case was closed without sanction.
This case again begs the question if this was the correct way to proceed in these circumstances. Could there not have been a better way of mediating to achieve public interest, safety and confidence whilst avoiding the 40 months since the incident, 34 months since referral and the £33,580 of registrants fees used to pay for the hearings? Note that this amount does not include NMC staff costs, such as legal secretaries, case presenters, case officers and administrative staff.
Now that the process is over, Doreen can of course apply for Agreed Removal, but why did the NMC not discuss this with her back in July 2020 when she first stated she was not returning to practice?
Key issues we want to see addressed now:
- Fitness to Practice teams need to quickly assess whether a lengthy process is the best way forward.
- FtP teams need to provide regular feedback and question why investigations are not completing.
- FtP teams should continually assess whether there are other methods to resolve a case rather than a costly process.
- Assessments should occur at every opportunity for review (interim orders, extension hearings and final substantive hearings) – panels should ask questions back to the NMC when there is obvious evidence that a registrant won’t ever be returning to work.
- Accountability must be held for the continued use of registrant’s fees for lengthy legal processes that ultimately could be resolved another way.
- Whistleblowers must be safeguarded better.