Do regulators have a responsibility to safeguard those under investigation?

Jan 8, 2024 | Fitness to Practice, Regulation | 0 comments

Warning – this article may be triggering. Issues around suicide, mental health, and depression are discussed.

As we start a new year we wonder what will be different ahead – with the Nursing and Midwifery Council (NMC) undergoing investigations into their culture, handling of cases and general performance, will this mean any productive change?

The duty of the NMC is:

  1. To protect the public (our patients), uphold the reputation of the profession (how the public perceives the nursing and midwifery profession) T
  2. To support professionals and the public with resources to educate them about the roles and standards expected. 
  3. To influence decision-making on workforce planning and sector-wide decision-making and highlight themes that may affect both. F
  4. To set the standards of practice expected of nurses, midwives, and nursing associates.

Standards are set for the NMC by the Professional Standards Authority ( PSA) which reviews expected targets each year and assesses the NMC based on some core standards. However, they can not impose any consequence if the NMC fails these standards and this year the PSA once again that the  NMC failed one of the core standards. They have failed repeatedly for many years now, standard 15 which looks at the length of time to conclude cases, the aspect that can have the most devastating effect on registrant’s personal and professional life as well as their mental health.

The PSA told us this year:

“The NMC has now failed to meet Standard 15 – a timeline requirement set by the PSA for FtP cases – for the last four performance reviews ‘because of concerns about the length of time it takes to conclude FtP cases’.”

Whilst both the PSA and the NMC recognise how traumatic it is to be referred for Fitness to Practice (FtP) it seems to have been accepted that mental health impact is an unavoidable symptom that doesn’t need addressing with any real seriousness. The statutory duty is to the public and not to registrants. There are no standards set to specifically look at safeguarding registrants under investigation. In 2019, the NMC finally followed suit with other regulators and started to record the number of registrants who died by suicide before their investigation. However, there is no analysis of the impact on careers, financial impact and long-term PTSD affecting all aspects of a registrant’s life once investigations are complete. Whilst recording suicide data is a  good first step this is far from what is needed to fully assess and safeguard from harm.

Diana is a nurse who at the time of referral had only been qualified for 18 months. She had experienced bouts of depression during her training but had always managed to self-care without needing additional support. Her mentor on her last placement offered her a role, it was a general medical unit and a good unit to consolidate her experience during training with a team who could help her continue her learning during the preceptorship period. Diana also saw a position in the community at the same time, this was an area she had not explored much during her training and she felt she wanted to learn more. Her mentor suggested she wait until she had more experience under her belt, but Diana chose to ignore this – excited at the working hours offered, the autonomy, and the ability to be outside of a hospital setting. 

Initially, her experience was positive but then the pandemic struck, many staff had to self-isolate ( her manager and higher bands ) and she found herself being allocated a high caseload with little support. Diana now, looking back recognizes she was showing signs of depression and stress early on in the pandemic, but she ignored these and carried on working. Her usual methods of self-care were limited as she could no longer do the activities and clubs that helped her pre-pandemic. Diana contracted Covid 3 months into the pandemic and following an extended period off work returned feeling vulnerable and worried. She was worried about becoming ill again as the reduced salary whilst on sick leave was challenging. 

The increase in workload was huge as staff numbers were low. Diana was allocated 3 HCAs to work with her and assist with her caseload, 2 of whom had been on the team for many years and were familiar with how things worked and skilled in their positions. The third HCA had only just joined the team- keen to help during the pandemic and hoping to start nurse training once it was over. The two senior HCAs were allowed to do certain visits together and when necessary Diana would do visits with them as the care needs of clients dictated. On doing a joint visit Diana noted that one of the HCA’s had been visiting an elderly gentleman outside of working hours to give additional support, helping him make meals, do shopping for him, and do household tasks. The gentleman told Diana that he liked this person visiting and didn’t mind paying her for her time – he stated he wished she would come more often and take more money than he gave her. Diana was immediately concerned and tried to discuss this with the HCA who immediately dismissed her concerns stating that this was something all the HCAs did, the managers knew about it and allowed it to happen. Diana tried to discuss this with more senior members of the team who stated she should monitor the situation, discourage them from doing so, and keep them informed. Diana didn’t feel happy with this approach and raised a safeguarding referral. The new HCA supported this decision stating she had overheard conversations with the other HCAs and also felt uncomfortable with what was happening – she felt the gentleman was being taken advantage of and wanted to stop the arrangement but the others were encouraging him to continue. Diana informed her manager that she had raised a safeguarding concern, her manager was extremely unhappy that she did this without consulting her first.

Following this life at work became unpleasant, the other two HCAs refused to work with Diana, were belligerent when in her company, and began stating things about the care she was giving. They raised concerns to their manager stating she had made mistakes with medication, had not appropriately performed leg ulcer care, and was often in the office sleeping. Unbeknown to her one of the HCA’s also referred her to the NMC. A few months went by and Diana’s anxiety and depression were worsening from both the stressful work during the pandemic but also the bullying by her team members. She raised it with her manager who did not give it credit and just stated it was “all hands on deck” during the pandemic and everyone had to “just get on with it”.  Diana consulted her GP who monitored her closely and referred her for counselling. 

6months later Diana received an email from the NMC stating she had been referred from someone who wished to remain anonymous but that the allegations were serious. Her mental health spiralled, she had increased anxiety and panic attacks, was unable to sleep properly, and found herself crying frequently when there was no obvious cause. She spoke to her manager about the referral who suggested she take some time off to seek support. Diana lived alone and restrictions were still in place for the pandemic so had no opportunity to meet friends in person to get further support. She became more and more reclusive and took to her bed. Her GP signed her off sick for 2 weeks during which time she received another email from the NMC stating they were holding an interim order hearing in a few weeks. They stated they had received additional information from another source and were taking the allegations very seriously.  Diana was distraught with no one to support her, and her mind began racing – she reached out to her manager. Her manager stated that if she was well enough to return to work she should do so but if unwell should continue off sick, Diana tried to explain that her mental health was not good but that physically she felt that getting back to work would help distract her. Her manager suggested she stay off sick until her interim order hearing in 2 weeks and then depending on the outcome they could review the situation. 

The interim order hearing came and Diana attended alone, she had no representation. The picture painted by the case presenter for the NMC was very poor. Stating she had made numerous mistakes with medications, had poor dressing techniques for elderly patients, had poor communication, bullied colleagues, and did not follow Covid guidance when in patient’s homes. This was the first time Diana had heard of the allegations. The chair of the panel asked her if she had any evidence to present – she wasn’t aware of what she could present or what was required to say that she had nothing. None of the panel asked her questions to try to establish aspects needed for their risk assessment. The case presenter also stated that when these allegations were raised at the workplace, Diana went off sick to avoid addressing them. Diana cried through the whole hearing – the panel chair offered a break and in return, Diana continued to be physically upset  – the hearing continued. During a break the legal assessor spoke to Diana and asked her if she felt an adjournment would be useful, to gather her thoughts and any evidence needed as well as trying to get someone to represent her. Diana, like many, just said she wanted it over as quickly as possible.

The panel handed down an interim suspension order for 18 months while they conducted their investigation. The online hearing closed and Diana was left with this news devastated and alone. She reached out to her manager who called her back 2 days later. Her manager stated that as she had an interim suspension they could not continue with her employment and so would have to end her contract. Two days later the third HCA knocked on Diana’s door concerned for her welfare as she had heard the news and was aware no one else had heard from her. She had tried to contact her on Facebook and contacted some of her friends to see if anyone had heard from her – no one had. The police were called and Diana was found semi-conscious and rushed to hospital – she had taken an overdose. 

A plan was put in place after her admission by her GP who paid close attention to her and was instrumental in this support. The NMC held six-monthly review meetings of the suspension order, an extension hearing at the high court once the 18-month period was coming to an end and a further 2 review hearings before Diana was informed that the case was now coming to hearing. Diana’s journey to recover her mental health was a difficult one and part of this journey led her to the decision that to become well and remain well she would have to no longer nurse and could not take part in any of the proceedings moving forward.  She wrote to the NMC to this effect and they advised she could apply for Agreed Removal which she applied for along with evidence from her GP. 

After waiting for 2months the NMC replied to the application to state they were refusing it, the allegations too severe and that a hearing would need to continue – they were going for a strike-off order. Diana was unaware at this time that one of the allegations was that she had been paid privately by a patient to deliver care at home outside of working hours – the very allegations she had reported to her colleagues at Safeguarding. Diana was unaware of this as she could not bring herself to read any of the paperwork sent by the NMC as it would trigger a relapse. Each time she received an email or letter from the NMC her mental health would decline and on receipt of the Agreed removal decision, she developed suicidal ideation. Her family and friends stepped in and ensured Diana did not have access to her emails and her post was intercepted – her family putting in a safety plan for her that they felt appropriate. Diana and her family wrote one final letter to the NMC asking that they show some leniency and help her leave the register without the indignation of a hearing. She briefly told them about the safeguarding issues at her workplace and the concerns she had had asking them to follow this up with both her manager and safeguarding dept. She begged them to reconsider their decision not to allow her to be removed from the register as feared if the hearing led to further suspension or strike she would not be able to survive it. The NMC stated that it was in the public interest to continue to hearing and whilst they had considered the impact this may have on her, it did not reach the “threshold” and the public confidence, interest, and safety aspects outweighed this. 

The hearing continued, Diana did not attend and was not represented. The NMC stated she had been served notice in line with their guidance and that her lack of engagement showed her lack of insight. The first letter Diana wrote with her Agreed Removal application was put in front of the panel, but the latter one which included a more in-depth GP oversight was not.  3 ½ years after the NMC received their referral Diana was struck off the nursing register. Safeguarding had never been contacted, other colleagues who could vouch for Diana were not called as witnesses, and her manager was not called to give evidence. She died the next day. 

“Diana” is a fictitious character but the issues raised in this article are real – sadly the lack of safeguarding for all those undergoing Fitness to Practice is non-existent and this must change. The NMC must of course take all allegations seriously but there should be an equal duty to ensure investigations are carried out in full, looking at all aspects and ensuring registrants are safeguarded against harm. Those conducting investigations should. Be trained in how to spot signs of mental health distress and be aware that this may affect a registrant’s ability to engage. They need to have good skills at looking for signs of suicidal ideation and how to escalate if this is assessed. We all have a part to play in avoiding harm and our regulator should stand as the leader to show how this is done. 

What do we say?

  1. There were many points during this process, where red flags could have been raised by both her employer and the NMC that she was at high risk of suicide.
  2. There is no inquisitorial nature to the investigation but an assumption of guilt from the start.
  3. Fact-finding involved finding evidence to support the allegations rather than fact-finding all aspects
  4. No questions by a neutral person were asked of Diana regarding her application to be removed.
  5. No real explanation was given to Diana to explain the decision-making behind the refusal of AR. 
  6. No pastoral support eg follow-up calls by the NMC to the registrant/risk assessment for isolation 
  7. No support offered for legal representation other than in letters suggesting union or private barristers. Diana was not in a union and could not afford a barrister as was out of work. 
  8. No escalation of risk following the first suicide attempt by NMC 

The NMC needs to urgently rethink the way they conduct cases and ask key questions to avoid further loss:

  1. Why is this registrant not engaging?
  2. Why is the registrant’s behaviour now so different from prior to referral?
  3. Why has she not presented any evidence?
  4. How can we help her do both?

It is also vital to have a robust risk assessment that determines why Agreed Removal does not satisfy public interest? Why is public confidence only assumed  if punishment is handed out? Is this the needs of a legal team keen to pursue at all costs and not a humane regulator keen to ensure the register is maintained with healthy and competent registrants?

How does a regulator guarantee public safety if those truly at fault are not held to account?

The NMC now have a safeguarding officer in place and have a few key members of staff trained in mental health first aid. This is a good start but should not be as an add on once potential risk is identified but be integral to a compassionate regulator. Safeguarding those who refer will also be linked to these isssues – can the investigators decipher a referrer who is mentally ill as opposed to one who is not?

The NMC only have limited resources it is true – but with FtP costing millions each year – one has to ask why not and when will this change?

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