We ask, does it want to change, or is this lack of insight too ingrained in a process that is no longer fit for purpose?
PSA report is published
This week’s annual report out by the Professional Standards Authority highlights that the NMC continues to fail Standard 15, showing again that it is still taking too long to conclude cases. Andrea Sutcliffe responded to the report stating
“While it’s encouraging that our caseload has reduced by 14 per cent over the last year, there’s still more work to do. That’s why this remains our top priority – we’re continuing to make improvements and focus resources in this area so we can reach decisions on cases as quickly and safely as possible.”
The NMC website describes that these improvements will mean an
“ambitious programme to transform our professional regulation functions which begins this autumn with a small pilot team. The programme will draw on improvements to technology and will anticipate changes made possible by new legislation.”
The same NMC failings, no union pushback
Over the 6 years that NMCWatch has been working, we have heard the promise of improvements every year. To those who have been waiting during those years for cases to move quicker, these promises start to become difficult to believe.
The NMC has many opportunities to shorten the FtP process during a referral pathway. It has become commonplace for those with Interim Orders to expect that the 18 month duration imposed will require at least one extension application because the case has not concluded.
The orders are reviewed every 6 months, if the nurse or midwife or their representation does not proactively offer any new evidence, the hearing will automatically be heard in a meeting and likely continue without change. If the nurse or midwife wants to challenge the order they need to attend a hearing and give their evidence as to why they are doing so. While the NMC do inform the registrant that this is happening and invite them to attend or provide submissions, most will not understand this aspect of the process or how to challenge it. Most unions do not encourage challenging the extension process saying it is futile and costly for them to do so.
We are told by our members that unions are extremely passive when an interim order extension hearing is allocated to the High Court for agreement. A number have recently told us that their union has said to not bother attending an interim order review hearing and to not submit any evidence, such as reflections. This is highly concerning as any opportunity to engage with the NMC should be taken and can be the difference between that practitioner returning to work or not.
The reality is that the 6 month reviews pass by again and again with little action by unions to challenge the omission of any proactive case management. When the case inevitably does not conclude within the 18 months (3 interim review hearings) the NMC apply to the High Court for an extension. It is not uncommon for this to happen a number of times before the case is eventually heard.
No appetite for change, meanwhile the NHS still struggles
Whilst the NMC says it recognises the need to cut down on the length of investigations there seems little appetite for it. It appears that anyone in a position to change the process has accepted that this is a routine part of the process with no ability to challenge.
Currently, the NMC can impose an interim conditions of practice order ( CoP ) or an interim suspension order whilst they investigate because either:
- patient safety would be put at risk, or
- there would be serious damage to the reputation of the nursing and midwifery professions if they were allowed to practice without any restrictions.
With the current state of our workforce, every opportunity should be given to check that is it still appropriate for a practitioner to be suspended from practice, as well as checks to see if the CoP also means that they are unable to work. We are trying to work with some trusts to help get practitioners back in the workforce and improve their practice, but many will not make that move to employ a registrant while there is an ongoing investigation.
Wasting the High Court’s time?
We previously wrote about the NMC’s poor process of repeated High Court extension applications. We looked at the number made and can now give updated figures:
|Dates||Court of Session – Scotland||High Courts of England, Wales and Ireland|
|March 2020 – March 2021||66||529|
|August 2021 – August 2022||81||649|
The figures will in some part be put down to the impact that the pandemic has had on referral processing. However, from reports and reviews of this issue in nursing journals, we know that this problem of cases taking an inordinately long period of time to complete is par for the course and has been intrinsic to the process for decades.
Last year Justice Philip Mott QC (when looking at the case of Golden V NMC) made particular comments on this issue:
“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.”
There may well be other judges who have made similar declarations but as these hearings are rarely witnessed by any member of the public, and the transcripts are never made public, there is no way of knowing how many judges are just as frustrated at this poor management impacting the already stretched court systems.
In the last month, we have had to prepare two submissions to the High Court for members who have faced the NMC applying for an extension while plans for hearings continue. We have other members who have also asked questions about this as their union has told them that this is happening and is “just all part of it”. One registrant has her hearing booked for the end of the year having waited three years for her case to be heard by a panel. This is despite having had multiple interim order reviews already, including a different extension hearing by the High Court. This registrant wishes to ask for agreed removal but, nonetheless, the automated legal system continues, with spiralling costs and little urgency to expedite the case.
On receiving the links to observe an extension hearing recently, we were not surprised to see seven extension hearings listed on the same day – five of which are NMC cases. Each case listed is only 15 minutes – such a short amount of time for any judge to establish real facts particularly when the registrant can not afford to have representation present for the extension hearing. Once again this gives us concern about the justice of such hearings.
Although you can send in submissions, the NMC will present their case to the judge as to why the interim order is required and why it now needs to be extended. They will use the pandemic as a reason why
a) the case took so long to get to the investigation stage and
b) why it has taken so long to reach a hearing.
Lack of transparency and insight is endangering lives
The pandemic is one excuse. However, there is no transparency around what efforts have been made to progress a case during the 18 months (sometimes 36 months) when numerous extensions have been applied for. The courts never ask the NMC for accountability over what else has been done during that time, for example, the number of attempts they have made to contact witnesses, seek further information, assemble contextual background information, etc, etc, etc. When we have requested this information it often becomes apparent that nothing has been done and the case has just sat without action. This is wholly unacceptable and needs challenging.
There needs to be accountancy and momentum in a case, rather than just a review before the 18 months is up and the decision to request an extension is made. When this does not happen registrants are kept in a professional state of limbo, some not able to work and many affected mentally by the traumatic impact that being under investigation has on them.
We understand that the NMC has limited resources and is making positive steps to reduce the case backlog, close cases earlier and manage them with appreciation of context, but when such large numbers of High Court extensions are being made year on year, it seems to be more about poor case management than any impact of a pandemic.
If the registrant can demonstrate the risk no longer stands then the interim order should not stand.
Those going through FtP need to be aware they should challenge applications for extensions by submitting why they feel the NMC has had sufficient time to conclude their case. Registrants can show the court the efforts they have gone to in order to get the NMC to assure them that they have pushed for conclusion earlier. They can show other cases such as Paul Golden’s and the statement Justice Mott made about high numbers of such applications.
Finally, they need to remind the court that an interim order is placed following a risk assessment of CURRENT risk of the registrant to harm the public and that this should be reviewed at every point to ensure this risk is still appropriate. If the registrant can demonstrate the risk no longer stands then the interim order should not stand. It is not sufficient for the NMC to assume the charges will be proven and impose an order “just in case”. Clear evidence of this risk assessment should be provided and registrants should demand a copy of this risk assessment and how the decision has been assessed.
The current system does not provide such transparency and is letting down both those undergoing FtP and also the public as it is adding to the issue of low numbers of nurses in the workplace. A High Court extension hearing should be an opportunity to review the risk assessment and determine on the balance of probability, and the human rights of those involved, that it is still necessary.
The process isn’t working
When asked to comment on the continued failings of the NMC to address Standard 15 we would say the process clearly isn’t working.
Currently no impact assessment has been carried out on the impact FtP has on the workforce, and whether the current way of working really is protecting the public.
Delay will cost lives. The removal of skilled practitioners from the workforce for any longer than necessary will cost lives. As we continue to wait for regulatory reform, nothing is happening to change basic legislation to ensure accountability. Without this we will no doubt see many more years ahead with this standard failing and no doubt other PSA assessment standards being dubious.
There needs to be an urgent review of the FtP process from beginning to end, that ensures those responsible for carrying out each stage of the process are appropriately qualified, trained and audited to reassure both the public and the profession that our regulator is up to the job.