000 days

since the NMC committed to investigate its ‘established procedures’. We’re still watching!

Lessons in law

Sep 15, 2021 | Appeals, Fitness to Practice, Reflection | 0 comments

RSJ

First published 27 June 2017, by Cathryn Watters.

For those of you who read “Life’s Never Simple” you will have followed the professional nightmare that has been unfolding over the last few months. However last week, for the first time in a long while I finally felt like I was back in control, even if it was to be short term.

A call from the oppositions lawyer to accept that an error had been made and at least for the moment that a small victory had been made. The negotiation begins, “plea-bargaining” it would be called in a criminal court but may as well be here too! The pseudo court – like proceedings that my professional regulator try to mimic is at times comical but constantly frightening. It is based on feeding off your inner most fears and aims to put you on the back seat with a  need to show humble gratitude at every turn. However, support from those who have been there is a powerful thing as well as recent precedent grounds for appeal set for the Independant Midwives in their own battle against our regulator, means that the financial risk no longer poses such a threat to me and at least takes some of the financial risk of losing out of the equation. The High Court have capped any costs associated with losing a case against the NMC to 10% which is a fantastic change in the law. This case also sets a precedent and will help others, especially vulnerable and worse off applicants in future, who would otherwise be prevented from seeking justice and challenging decisions they believe to be wrong. Many nurses have not proceeded with their appeals due to the risk of being further financially crippled if they lose – this now changes the balance of power.

Even in negotiation though they still try to gain control. Although a very nice legal person from their side explained what they were offering, in most part there was no offer. Only the potential for another panel to agree with her findings that the sanctions imposed on me were “disproportionate and excessive” and most definitely “not valid to argue public safety concerns”. I was expecting to feel  immense relief immediately but that came later and I was shocked with the anger I suddenly felt. Recently I have been quite mellow about the whole thing, resolved to the fact that I probably wouldn’t win but had to do myself justice and at least try to put my case forward. Then the admission of “guilt” by my regulator and a tidal wave of anger erupts like a rocket waiting for the touch paper to be lit. How can it be that it’s taken a lawyer probably 1/2 a day to review my notes and see sense, but the panel couldn’t who heard it all first hand? If I had not had such tremendous support from my husband, family, friends and strangers I would have taken the blow of strike off in some self deprecating manner that it was all I deserved and hidden behind a rock. With all their support I have been able to crawl out ofthe darkness and get to this point – thank god I did!

The impact that such sanctions have on you is so far reaching, the financial anxiety is enough on its’ own, but then you have the shame and the immense feeling that you have let your profession, your patients, those who love you but most of all yourself, down. The fear about the future. The panic attacks and self doubt on the lower end of PTSD which I wasn’t prepared for. The feeling of complete impotence and then the bi-polar high from deciding to go for appeal. The rollercoaster continues but this time with the accompaniment of more fear that you are doing the right thing and may make things worse – HOW CAN THEY GET WORSE!!!! Financially they could, at that time anyway I was aware that if I lost I would be liable for all the costs that the NMC incurred – they have left me financially destitute so no chance of being able to pay a debt anyway…Then you speak to others who have been through this and get reassurance and decide to proceed, the high returns as you concentrate on gathering your evidence but then have the multitude of advice that becomes confusing as to which pieces to take and which to discard.

The appeal is submitted, you have to go in person to the Royal Courts of Justice to  submit the appeal – this in itself it off putting and is another hurdle that would be an easy excuse to just say No No More… You arrive at the great building itself, walk up the steps and see history of the justice system presenting itself in-front of you. You negotiate yourself around the building, round corridors, outside chambers watching para-legals and legals – wigs and non wigs doing their thing and think “I shouldn’t be here”. Feeling like an imposter that is going to get caught any minute, you are criminalised immediately even if it is only in your own head. Having to place the appeal is no easy feat, you go to wrong dept after wrong dept and finally after doing a full circle of the building find the right place. Appeal lodged you have to go to the other party and get them to accept your appeal notice, more slippery fingers than you’d find on Jack Sparrow’s bottle of rum, no – one wants to accept it and tries to make you believe you have made a mistake and “that’s not how it is done”. You keep persisting and finally someone human assists, not a manager or senior representative but a receptionist who has probably seen this time and time again and is secretly ashamed of how her employers discriminate. She goes above and beyond to help me and the notice is served. Belief in the human spirit is once again restored.

Home on the train – exhausted mentally, too late now you’ve done it…

You hear nothing – naively thinking you would be overwhelmed by the flood of response from both the court and the opposition. Instead the silence is deafening.

Eventually just when you thought you had dreamt the whole thing contact from the other side comes. A request from the other party to change the date of the appeal because it is not convenient to them informs you by default that the appeal has been granted and a date set – the letter got lost in the post apparently! You politely deny the request to change the date – they’ve done you no favours and you want to get it done as quickly as possible so as not to prolong this agony for any longer than necessary. The date is set – two days before my birthday – let’s hope its a good one!

You then have to ensure you submit your argument 3 weeks prior to the date of appeal – the other side only have to submit their’s 1 week before making you think again that there is really no hope because they have lawyers – you only have yourself and they will have the benefit of reading your argument first.

Time then ticks again without hearing anything – am I the only one who is taking this seriously? Finally 2 weeks prior to the appeal date you get contact with the other party’s lawyer. On the phone she actually sounds very human and even apologetic at what has occurred, but her hands are tied and she is limited as to what she can offer you, bound by bureaucracy and legislation that has caused this mess in the first place. She will recommend that the sanction is reduced but she can only recommend – the panel yet again is independant and so is free to make their own choices. Confusion evolves, panic of how to make the right decision, the catch 22 scenarios that unfold and final realisation that this is not going to be over quickly what ever happens. The other side will concede, but can not practice Duty of Candour ( something we are all encouraged to adopt in our practice daily ) and admit their mistake, reflect and apologise. Instead they offer you a patronising parental approach because ultimately you are the naughty child that has to be punished in order to learn. Round and round the discussions go, advice taken and some sleepless nights again and again and again.

Finally a weekend of song, sun and shenanigans brings the realisation that I am further than I have ever been or ever hope to be. I have won morally and can only hope that the judge at appeal feels as frustrated as I do at being where we are.  Humanity and  common sense must be realised surely – it’s been pretty absent recently.

I speak to the lawyer who represented me at my hearing. She is thrilled at the outcome but offers sound advice. She feels embarrassed that I have been able to get to this point when her and her colleagues in chambers could not see a hope of winning an appeal. IN order for the RCN to provide legal support you have to have an about 50% chance of winning so they back away and you are left to do it alone. She offers some sound advice and feels I have done a better job than any qualified lawyer could have done – praise itself but then no one knows the case like I do.

I’ll take my chances on the 5th – I will walk up the steps of the Royal Courts, head held high, arm and arm with hubby and keep reminding myself that it is not my doing that we are at this point. I deserve my day in court and hopefully it will be a small victory, if not in the eyes of the law then personally. I deserve to try, my fellow professionals deserve someone to speak up and ultimately my patients deserve better. If I could go back and talk to the newly qualified me I would have a thing or two to say. That naive belief that is is always about the patient and nothing else will matter or take priority was indeed misguided but something I am still proud to hold at my core. Somewhere in all of this as they often are – they have been forgotten and bureaucracy has taken over, losing the very centre of why we all enter this profession – to care.

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