Case study 22 – Upholding transparency and fairness: NMC must reform procedures for evidence disclosure and accountability

Feb 15, 2024 | Case Studies, Fitness to Practice, Regulation | 0 comments

This midwife qualified in 2014 and began her career working at a Trust in North-East England working under the preceptorship program. Preceptorship enables newly qualified nurses and midwives to receive ongoing supervision as they enter the working profession to build their confidence and skills.

Incident and referral

In 2016 an incident occurred with a patient. This was dealt with at the time, but following a complaint by the lady, it was investigated and no further action was required. Unhappy, the patient referred the incident to the PALS team who again found no further action was needed. The patient, as was her right, referred this midwife to the Nursing and Midwifery Council four years later on a number of allegations as she felt her concerns had not been dealt with seriously. She was one of four midwives and two HCAs who were involved in her care at the time, we are unsure why she only referred this midwife but can only presume as the referral was 4 years after the incident, that this was the only one she could identify. 

The registrant continued to work since this time with an unblemished record, progressing from a band 5 midwife to a band 6.

Poor NMC process

In August 2023 the midwife received an email from the NMC inviting her to a case conference in advance of her hearing – this was the first time she had heard from the NMC about her case. Both she and her manager at the time contacted the NMC immediately to establish what had occurred. The NMC maintained that they had sent notification of referral and frequent emails to keep her up to date with the process. They were now pursuing a Fitness to Practice hearing due to lack of engagement by the registrant.  It is usual practice for the NMC to contact all old and new managers to ensure there is no ongoing risk whilst they investigate the case – this did not happen. The midwife immediately got into contact with NMCWatch. She was adamant she had received no such notifications and that the August communication was the first she had heard of her referral.

Despite the midwife and her manager raising a complaint about the poor notification of process the case continued. We again raised it at a case conference in December 2023 with the legal assessor advising that there may be cause for the case to be referred back to the case examiner stage to rectify the fact that the registrant had had no opportunity to respond at this point.

We then made two further attempts to follow up with the case officer, on whether the matter would be remitted to the case examiners, these were ignored and notifications continued for the case to continue to hearing. We escalated via the complaints process and received a response on 20 December saying that no other members of staff had been identified and that there was no requirement to send notification by any other means than letter or email. Proof of receipt was not in their duty. 

Gathering evidence

A case worker from NMCWatch worked with the midwife to gather a portfolio of evidence against the charges – difficult as she strongly denied they occurred but she tried to place herself in others’ shoes and show what learning there could be from it. 

In August 2023 the midwife asked the NMC for the workplace roster, at the time of the incident, to establish the names of the other midwives and healthcare assistants involved. This was not provided. She also asked for key evidence that she felt was missing from the bundles provided at that time – again this was not provided.

Around December we were provided with an expert witness report by the NMC – again there had been no notification to the registrant that an expert witness was to be used. Expert witnesses are supposed to be used to clarify expected levels of care and give opinions on care provided, both sides can use the witnesses as they are there to assist the panel in understanding all aspects. This witness report, in our assessment, was poor, misleading and didn’t address key facts – we raised this with the NMC which they ignored.

The Hearing

The midwife was given time out of her job to attend the hearing – luckily for her on full pay – many would lose income to attend.

The hearing started. Throughout it, many issues came up which created opportunities for adjournment, as well as giving rise to mischief caused by the NMC who prioritised winning their case over carrying out a thorough investigation.

Application for postponement and for the case to be started again at Case Examiner stage:

  • The NMC submitted that there were witnesses, including Patient A, waiting to give evidence and a postponement would cause them distress and inconvenience
  • The NMC stated it was “regrettable that you have not had sufficient opportunity to put your case to the Case Examiners… in the public interest to proceed to hear this case today.”
  • The case presenter went on to say “… there is no real basis or good reason for the NMC Case Examiners to reconsider this matter, and there is no guarantee that they will come to the conclusion that you hope for. He informed the panel that the process may then have to start again, and it will become more difficult for witnesses and you to recall evidence the more time goes on.”
  • There have been many cases now through the courts to establish that the further away from the incident we get, the more likely it is that memory fails, people’s brains will naturally fill in the blanks or find the version changes as there is more discussion around it.  We were eight years from the incident so it was difficult to see how relying on memory would be sufficient.
  • The NMC insisted that the emails had been sent to the registrant. We requested evidence from the NMC that the emails had indeed been sent and received with records to prove as such. In response, a copy of the email was provided by NMC but no send confirmation or read receipts.
  • The panel stated, “There is no indication that the NMC has made an error and this matter should proceed.”

Application for abuse of process:

The next step was for us to carefully consider an abuse of process. This was based on the previous application and the view that the NMC had no clear evidence on which to proceed and had failed to investigate properly. This included failure to present the panel with the full evidence that the NMC received, the expert witness not having full evidence on which to base her assessment, and the panel not having full evidence – for example, a prescription sheet only being presented in part. 

The NMC opposed this and the panel upheld there was no abuse of process.

Issues seen with NMC Case:

  1. Serving final bundle on the registrant and reps the Friday before the hearing
  2. Incomplete evidence provided to the expert witness, such as the incomplete prescription sheet, thus potentially introducing bias
  3. Key evidence by the expert witness was inaccurate
  4. Key evidence requested from the NMC was not provided
  5. NMC was not transparent with evidence to the panel. They claimed both before and at the hearing, that they could not find the other witnesses to the incident and that the registrant was the only one identified.  However, we uncovered in a previous bundle prepared by the NMC,  but not submitted to the panel, that all witnesses had been identified, four of whom had been contacted and could not recall the incident. This meant that a complaint raised to the NMC on 20 December 2023 about this issue, whereby the NMC stated the witnesses were not found, is false information 
  6. In the evidence showing engagement with the other midwives present, the NMC had indeed taken many measures to get hold of them such as emails, phone calls and letters to home addresses – all of which were not done when serving the referred registrant
  7. Aggressive, unnecessary and excessive cross-examination by the case presenter in an attempt to discredit the registrant’s evidence – this resulted in the registrant having to be kept under oath overnight as the panel had to close and had more questions to ask
  8. Cross-examination by the legal assessor 
  9. The hearings coordinator, at one point, recommending to the registrant’s representative that there was no point submitting an abuse of process claim. This is beyond the scope of her role. 

Galbraith application:

Once the NMC had presented their evidence and all their witnesses had been heard we put forward a Galbraith application to show that the NMC had not presented sufficient evidence to find there was a case to answer on all allegations.

We returned ready on day 5 at 9 am but were left waiting until 4.30 pm with no explanation of what was causing the delay. Minimal feedback from the hearings coordinator, “the panel will return not before 4.30 pm”. At 6.30 pm we were finally told that the panel would return the next day “by 12 noon”. 

We finally returned after lunch the following day where the panel determined that they agreed with our application on charges 1 & 2 with no case to answer, but there was a case to answer on charges 3, 4 & 5.

Registrant evidence:

The registrant took the oath and gave live evidence for several hours without a break. She was subject to rigorous questioning by the case presenter who attempted to suggest that her recall of events eight years previously was not accurate and that she was trying to be disingenuous with her accounts. Despite this, the registrant continued to give her evidence to the best of her recollection.

The panel questioned her extensively to gain further clarification, after which the case presenter again took to asking her further questions which were vague and confusing. During this time the legal assessor attempted to step in to ask the questions with further clarity to assist. After the registrant had answered the legal assessor’s questions the case presenter stated he again had a further few questions to ask. In our view, it appeared that he felt he was not getting the answers he wanted and so would continue indefinitely until he did. At this point, the hearing was adjourned until the next day leaving the registrant under oath and not allowed to speak to anyone about her case during this time. 

On return the following day, the case presenter revisited questions for a significant period. 

Outcome of hearing:

On Day 8 of the hearing the panel returned to state that charge 3 was found proven – namely that she had not documented in the patient’s notes after her period of care had finished. The panel found the other 2 charges unproven. Charge 3 was a statement of fact, it had never been under dispute that she had not documented in the notes, once she had left the patient’s side, she had reflected on this and provided an explanation as to why.

The panel then went on to establish that charge 3 did not amount to misconduct, that there was no impairment then and that there is currently still no impairment.

The case was closed.

From Freedom of Information requests, we can show the costs of this hearing that are known. If the hearing had been held in person, travel costs, accommodation and subsidence would have been provided to the panel and legal assessor. Witnesses for the NMC would also be able to claim this in addition to a loss of earnings allowance offered for attending. The registrant is not able to claim any.

Role Daily charge Total for 8 day hearing
Cost of panel Chair £340 / day £2,720
Cost of registrant panel member 1 £310/day £2,480
Cost of registrant panel member 2 £310/day £2,480
Cost of legal assessor £500 £4,000
Cost of case presenter ( externally sourced for this hearing)  Based on Grade C £196/hour x 7.5hrs a day £11,760
Cost of hearings coordinator £26,805 – £33,909/annum = approx. £150/day £1,200
Cost of transcriber    
Total known costs £24,640 ( equiv to 205 registrant’s annual fees ) 

Additional unknown costs

Expert witness cost

Loss of income to registrant

Representation for registrant

 

FOI request to the NMC on 22 January 2023 showed the following costs for expert witnesses:

 

Our concerns with this case:

  • NMC teams must be transparent with evidence even if it does not support their case 
  • Panels must be privy to ALL evidence so that they can decide themselves 
  • The NMC must take all measures to ensure the registrant has been made aware of a case and not just rely on sending notifications by email. 
  • The NMC must not assume that when someone does not respond they are being mischievous or evasive – more steps must be taken to make contact. 
  • It should be the responsibility of the panel chair to ensure all parties are kept up to date with timings during hearings, including bringing those parties back into the hearing to explain if there are excessive delays
  • Panels should step in if the case presenter is barraging the registrant
  • NMC need to stop the current approach of “win at all costs” and focus on a neutral investigatory approach if they are to not cause further harm to patients and registrants – potentially there were 6 other members of staff who may have been found accountable for the incidents and were never investigated. 
  • Registrants should be able to claim for loss of earnings and other expenditures following wrongful investigation and hearings, especially when the registrant team has tried to assist the NMC by finding other ways to resolve matters. Currently, The Absolute Privilege law prevents this. 

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