We know that the common theme for referral is those professionals who have raised their heads above the parapets to voice concerns over patient safety issues, workplace culture and poor patient care. They have fulfilled their Duty of Candour and yet been rewarded with a referral to their regulator rather than addressing the concerns that they quite rightly identified. Speak to anyone in healthcare currently and the sad theme is "don't speak up" there is little Freedom to Speak up with honest culture, instead it will often write your own exit ticket with rarely any lessons learnt.
The NMC tell us repeatedly that "only a small proportion of those on the register find themselves under investigation" We have been able to review hearing data sanction outcomes from the NMC Fitness to Practice Hearings and are grateful to one of our group, who has pulled together some data.
By the year ending in March 2021 there were 732000 UK registered nurses and midwives. In the financial year for 2020 to 2021 there were 5547 registrants (0.76%) referred to the Nursing and Midwifery Council (“NMC”). There were 403 Fitness to Practice decisions made accounting for 7.27% referrals figure.
This study is based upon data mining the PDF case file write ups from the NMC website hearing page. Unlike the NMC reports, this study uses calendar rather than UK financial years.
Hearing Types in 2021:
1121 having interim order hearings / meetings
300 having review hearings / meetings
311 substantive hearings / meetings
35 have voluntary removal hearings / meetings
It has generally been accept that those who are represented, statistically have a chance of a better outcome, however to date the data available from the NMC does not examine outcomes for those represented and those not.
Outcomes for those not present and not represented at hearings or meetings:
- Erasure = (2020: 33) (2021: 21) (2022:12)
- Interim Suspension order = (676 ) (390) (163)
- Strike off order = (367) (121) (203)
- Suspension order = (364) (133 ) (145)
- Voluntary removal from the register = (6 ) (1) (3)
The NMC stated in their annual fitness to practice report for financial year 2021 - 2022 that they only removed 109 registrants from the register, however the above figures show that this is not the full picture. These figures need to be looked at in terms of removing the ability to work on the register and not just removal eg Strike off orders. To remove a nurse from practice, regardless of for how long for, includes those via suspension, interim suspension or strike off was actually over 2,500 registrants not practicing from 2020 - 2022. This also does not account for those who recieved an interim conditions of practice order, or substantive conditions of practice order and could not gain employment and is a huge number taken out of the workforce. In 2021 - 2022 over 937 hearings occurred without the registrant being present and only 20 had the legal rep attend without the registrant. We are unsure why the representive would not be present on so many, but suspect it is because they will refuse to attend if the registrants will not be present. Again there is no explanation as to why this number was so low and what efforts were taken to try to ensure more registrants and / or legals were in attendance.
It would be useful to see if the registrant was assisted in any way to find representation. It is argued by the NMC that the panel are neutral and case presenters and legal assessors are there, as qualified lawyers, to assist a litigant in person. However, the reality for any nurse or midwife attending a NMC hearing on their own is that they were unprepared for the litigious nature of the events, and that they got little or no legal advice but plenty of information about how the structure of the hearing would run! Any advice that was given was around explanation of the daily schedule and not legal advice relevant to their case, with the assumption that they were there for good reason and not with any scepticism about the evidence put forward. A registrant attending alone will then realise quickly they are out of their depth, but loathed to ask for adjournment as they have waited sometimes years to get to this point, agreeing to continuing despite not being appropriately prepared and unsure really of what is actually being said and what impact it potentially can have on their registration. Ultimately the figures we grasped show that there were high numbers not present and not represented, placing them at high risk.
It is concerning but sadly not surprising to see these figures. Unions have told us for many years that without representation the risk of a harsher sanction is higher. The NMC have been very clear about engagement and consequently it would logically follow that if a registrants was not present and unable to show themselves as accountable infront of a panel, that this would be viewed unfavourably and risk a higher sanction. However, we are told again and again that the FtP process is moving to a more person centred approach, that it is make steps away from being punitive and assessing CURRENT fitness to practice v's past mistakes. Any registrant who has been referred to the NMC is likely to struggle with their mental health. A natural response in fight or flight mode will be to hide, disengage or run away. The NMC will argue it is their responsibility to protect the public and that they have no remit to protect or safeguard the registrant. This needs to be questioned with this number of registrants being removed from practice each year as there is a potential risk to the public if their sanction sufficiency is impaired due to them to being present. We have witnessed many cases now where the NMC is still attempted to engage with a witness for their case, sometimes the only witness for the case, as close as the same week the hearing is scheduled. In some instances, cases are adjourned again in order to try "one last time" to get a witness to engage in the process.
In all cases we reviewed where the registrant was not present only 1 or 2 lines is dedicated to the NMC covering their legal requirement to send written notification of the hearing to the registrant and that this fulfils any duty of fairness or statutory requirement. As yet, we have found no evidence to demonstrate stringent attempts to get the registrants to engage to the same level as NMC teams will contact a witness for their case to do so. Over the past 10 years there have only been 36 successful appeals against NMC substantive hearing decisions, with less than 5 being represented by unions. This does not mean that only 36 NMC outcomes were wrong, it only demonstrates that 36 registrants found the inner strength to challenge the decisions via the High Court whilst the others merely accepted their fate and gave up.
If the process is truly to be person centred then as much effort should be made to show that every effort has been taken to get a registrant to engage and be present at their hearing. Panels should question this if the evidence is not provided, measuring the fairness to the registrant and to give assurance of robust regulatory process that can be conducted thoroughly and effectively even in the absence of the registrant. If a witness liaison officer is available to assist a fragile witness for the NMC, why not a registrant liaison officer for a fragile registrant? Panels need to not only relay on a data timeline of when notification letters were sent to the registrant, but evidence of how the NMC have informed the registrants of the potential risk if they do not attend, and how to at least ensure they have advocacy attending on their behalf. If the FtP process is truly about getting to the heart of what has occurred then surely the registrant's voice is paramount to that assessment?
It is true that these issues are not unique to the NMC process, regulation in its entirety behaves equally as poorly across the other healthcare regulatory bodies. Although the themes with the NMC appear to be more damaging to the registrant's career than those of other regulators as the investigatory process itself can cause the registrant to become "unfit to practice" through prolonged process and interim orders which are often not continued at close of case.
The NMC told us 3 1/2 years ago that they were exploring the ability to provide probono lawyers to those without representation and yet we are still here with this aspect unresolved - why? We have discussed this with the Queen Mary's legal advice centre, who the NMC engaged with when this work was first mused. The general feedback was although the day to day teams were keen to secure this, it fell foul when seniors had to sign off. Sadly to date this work has been shelved through apathy of NMC teams despite the keenest of QMLAC who are keen to still support our group if they are able.
A recent Freedom Of Information request found the NMC spent nearly £6million over 10years of engaging expert witnesses to support their cases. Could this money not be better spent on ensuring the right cases were being heard and not just the ones that can be "won" with very little effort?
At last year's annual Fitness to Practice report it was shown that £45million was spent on FtP cases - again this is a disproportionate amount of money spent considering each nurse on the register has to pay an annual fee of £120 a year, a sum that was requested to be waived during COVID and post due to the hardship of many on the register having to use food banks, but was refused. If earlier efforts were made to assist the registrant to engage and remediate rather than constant pursuit of legal process's in which the only benefactor are indeed the legals themselves would this not ensure a more effective process. Is there really any motivation to resolve cases earlier when a lengthy process ultimately means more billable hours!
How can we be confident that the outcome at hearing actually does reflect sufficiently the risk to the public, when a registrant has not been present to tell their side or has not had a legal person there to advocate for them? No evidence is shown by the NMC to explore the relationship between registrants wanting to engage but not feeling able to because they did not have representation and thus withdrew giving the NMC the ability to present anything in their absence.
It feels that the NMC, or perhaps their legal teams, have little motivation for ensuring cases pursued are appropriate but more of a motivation to process the cases without any measure or review. We often get asked to explain to our members why when they are thrilled to read the case examiners initial review and be delighted to see they suggest the case is closed with no further action do the legals conduct a review and then continue the case. They are confused by the lack of cogent explanation as to the reasoning behind this, the lack of ability to learn about what is still missing from their evidence to satisfy the NMC's appetite and instead find the process elongated further as they slowly lose any ability to understand it's relevance. It is true in some cases we can clearly see why the case is continuing, a lack of robust reflection for example, new evidence from new employers perhaps or even disclosure from the registrant themselves that has demonstrated an ongoing risk. However if the registrant does not understand this assessment how can they be expected to fulfil what is required of them? It is equally true, that as frequently we are just as baffled and unable to understand this reasoning to pursue a case, when there is no ongoing risk and indeed evidence to show these mistakes have been left absolutely and firmly in the past. The legal review performed following case examiners assessment, is never documented to show the clarity of the decision making and so the air of mystery continues. As we in term have to demonstrate our methodology, thought processes and decision making via accurate and robust documentation, it seems our regulator is able to rely on something more difficult to define, more complicated for us to understand, or perhaps just unwilling to evidence their decision making process? Surely the responsibility should fall on our regulator to ensure a) Every case in front of a FtP pane has no other means to be resolved b) Every registrant who's case is being discussed, should still have opportunity to have full disclose whether they can attend and / or have legal representation and c) true facts are presented and not just an opinion on those facts based on limited information before them. In today's climate where nurses and midwives are a rare commodity in some workplaces, surely we need to be giving confidence that those restricted or removed from practice are absolutely 100% correct in the decision making and not just because the nurse failed to attend or failed to be able to secure representation.
Until there is an external review of all of these issues and ground rules set to ensure better engagement with the process, attendance at hearings or representation for all, the public can never be confident that the right decisions are being made and registrants can not be confident that the "system" will assess them fairly based on evidence rather than an ability to be present or represented.
The Professional Standards Authority has repeatedly determined at their annual reviews of the NMC, that they continue to fail on key aspects and last year wrote to government about those failings to date with no published response.
So as we enter our two day - two of our strikes this week - think about this:
- 38 hearings listed on the NMC website over the 2 day strike period, in addition to those which are continuing to run from previous dates,
- Each hearing costs £1950/ day for panel and legal assessor attendance alone
- Case presenters on an undisclosed salary as too commercially sensitive to disclose at FOI
- Annual spend on FtP = £43million ( consistent year on year )
- NMC spent £6million over a 10 year period contracting external expert witnesses to support their cases
- In 2012 the NMC received a £20million grant to clear the backlog of cases.
- In 2020 the NMC allocated significant finances to assist in 'clearing the backlog"
- The backlog continues ....