Extending poor process

May 14, 2021 | Fitness to Practice

In the Royal Court of Justice last month, the Judge, Mr Philip Mott QC,  rejected the Nursing & Midwifery Council’s [NMC] submission that it investigates cases of registrants subject to interim suspension orders with “the highest priority”, to justify keeping an 18 months suspension order in place for its full term.   In reducing the period of Mr Golden’s interim suspension from 18 months to 12 months the Judge said:

“I have been sitting in this job long enough to see innumerable additional requests by the NMC to ask for extra time.  It happens far too often in my view … there’s major interference with someone’s life and I would expect a decision to be made certainly within the next six months or earlier.“

He made it clear to the NMC that he expected them to have completed its investigations and to have served its case on Mr Golden or to have lifted the interim suspension by the time the 12 months were up next August. He also questioned how the NMC utilised their time between referral and investigation, outlining that when there is a long gap between referral made and sanctioning, robust evidence needs to be presented to ensure time has not been wasted causing further risk of harm to all involved.

The NMC have regularly acknowledged that the length of time it takes to investigate is excessive. They have stated that the pandemic has contributed to this but we know from many articles appearing in the nursing press and widespread media that this is a long-standing issue that is constantly repeated. In 2014 this issue was highlighted following the Mid Staffs scandal:

“The report by the PSA – the body that oversees health regulators – shows the Nursing and Midwifery Council is struggling to move on from its troubled past.

A huge backlog of cases and long delays led to accusations that it was failing at every level.”

It went on to say, in referring to this aspect being identified in 2013:

“The report acknowledged that there had been some improvements under a new management team at the NMC, but outlines a number of areas where the organisation is still failing.

The report adds that there is an ongoing weakness in the NMC’s ability to identify for itself where improvements are needed.”

Articles in the nursing press cover breaches in confidentiality in 2017, an extra £1.5m spent to reduce the caseload, and moves in 2016 for more reforms and improved reforms. They all talk about recurrent themes and the plans to speed up process.

The Lessons Learnt Review by the Professional Standards Authority, in May 2018,  following the Morcambe Bay scandal which was described by Jeremy Hunt as “the second mid staffs”. An article which appeared in iNews in 2017 again pointed out the recurrent themes:

“…the regulatory system failed to address the problems quickly; and families faced delay, denial and obfuscation in their search for the truth…”

The Lessons Learnt Review reviewing 2018  stated in its conclusion:

“It is important that the NMC monitors and provides support for the work that it is undertaking in respect of:

  • Ensuring that there is proper identification of issues by its staff and external lawyers and that action is taken where risks are identified
  • Improving relationships with Trusts and other regulators
  • Identifying intelligence and wider learning from cases.

So why is there no consequence to our regulator for failed process time and time again? The reasoning is allowed because it is serving to protect the public but surely there is no public protection served by taking so long to investigate potentially rogue nurses, midwives and nursing associates?

The recent case of Lucy Letby showed us that an Interim Suspension order was only imposed in November 2020, despite this being long after initial accusations were raised. We make no judgement about this case and indeed can see many potential institutional and cultural issues that may have contributed, but if the purpose of regulation is the protection of the public then allowing a registrant to practice unrestricted for that period of time does no such thing.

On the other side, we see many other registrants that do have interim restrictions imposed quickly whilst the lengthy process of investigation continues. The risk assessment done to determine this is not readily available to the public, so we have to trust the assessment is accurate bearing in mind that the potential is to remove safe practitioners from the workplace on a “balance of probabilities” rather than fact.

A recent Freedom of Information request asked the NMC about the number of extensions applied for – the numbers were higher than we thought:

Letter of FOI response from NMC to Cathryn Watters

We will try to find out what the figures are for previous years as no doubt the pandemic will be used to justify the reasoning behind this. What would also be interesting to establish is how many registrants actually challenge the applications by entering a submission to the court. We would suspect many do not even know this is possible and just see the process as another aspect they have no control over.

The other question would be if Justice Mott is frustrated by this – how many other judges hold the same opinion and why can this not be escalated in any way?

Why do the Professional Standards Authority fail to act when the process will be affected public safety as well as the safety of the registrant?

So many more questions but will they be answered? Perhaps the Health and Social Care Select Committee. the Privy Council or perhaps even the  Council that holds the NMC Exec committee to the task may be able to answer them – we hope so.

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