000 days

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

Not Just Culture ( first published 12.12.19)

Mar 19, 2021 | Fitness to Practice | 0 comments

December 2019 saw Ms El Karout return to the NMC for the hearing of charges remitted to a new panel, by Justice Spencer. He made strong recommendations about his opinion of these also being quashed.  The previous strike-off order by the NMC was quashed in full this January after Ms Karout self-litigated at the High Court and won her appeal.

The outcome this week, given the panels’ reasoning on paper, will be read by those not involved in the case as a fair outcome. She was accused of theft of medication and dishonesty.  The panel heard the case over 8 days, almost a year after Justice Spencer’s findings and the panel imposed a 6-month suspension. However, what people won’t read in the hearing notes is the real story behind the case. The registrant herself has been impotent to prove her innocence, she has maintained her denial of the charges and has proven in both criminal court and the High Court that this assertion is justified.

For a registrant, allegations of dishonesty are probably the worst that you can be charged with. Not only does the NMC see them as an inherent character flaw that can rarely be remediated, they see it as a serious move away from how a registrant is expected to behave. This ultimately means they can no longer be entrusted to work in the profession. For the nurse or midwife being convicted of a dishonesty charge is crushing. It is not only the effect on their career but also a personal attack on their whole being, their professional and personal moral compass, criticising and damming their very core. The frustration that follows is immobilising – how can you prove to anyone that doesn’t know you that you are honest? How do you disprove lies and constructed beliefs by an organisation that holds all the resources and power and you have none?  To know that people reading the outcome will believe the print and make their own judgements on you, whether they meet you or not, is crippling and very difficult to see past in any way.

There have been a number of successful High Court appeals though where the judges presiding have now made clear recommendations that dishonesty can take many forms and often in these cases is not premeditated but done accidentally, if at all.  A momentary lapse of judgement can not then dictate how that person is expected to behave throughout the rest of their career and no panel should be able to determine the psychology behind the behaviour without clear medical evidence or such-like – certainly, they should not be expected to be able to make judgement based on a “hunch” of how that person may behave in the future. Yet, this is exactly what does occur. Three people who, whilst may be experienced in their roles on regulatory panels, do not hold doctorates in psychology or other such qualifications, they can ask for medical witnesses to assess but rarely do unless it is to secure the position of the NMC.

The need for better guidance in differentiating dishonesty has been cited by prominent judges and yet the guidance in place still remains vague and open to interpretation.

Justice Spencer in this midwife’s previous appeal El Karout V’s NMC (2019) gave clear points about his concerns of this case, namely:

  • why the Committee would have been obliged to find that the hearsay evidence  was inadmissible:
  • poor local Trust investigation
  • questionable gathering of evidence at local investigation by the Trust with no continuity over the gathering of the evidence
  • reliance on having a number of patients not receive their medication  being confirmation of charges for the registrant, rather than just seeing this as a “innocent coincidence”
  • poor structuring of charges
  • questionable communication between the case officer and key witness to build the case

At the hearing this week, the panel were not presented with any new evidence from the NMC. In fact one of the witnesses, refused to engage in the process after June this year, stating:

“I am very busy as I have a new born baby to take care of. With this in mind I’m afraid I shall not be able to attend any further hearings in the near future due to family commitments.”

Despite this, she was contacted by the NMC via email (9 times) and telephone calls (8 times) in order to get her to appear as a witness and corroborate her statement.  When no response was gained the NMC gained a High Court summons in October and she still did not respond. Had she appeared in person or via telephone, the registrant’s barrister could have established how reliable this witness was by asking many questions to ensure the statement was still her truth, that it was in fact her truth to begin with, and that it was written as a true dictation of her account rather than an interpretation? The latter being an aspect of the previous hearing the judge had criticised.

As the witness disengaged she was not able to be cross-examined and yet the panel still allowed her evidence to be submitted – allowing the “appropriate weight” to be placed on it, despite strong objection from the registrant’s lawyer on the fairness of this. The “appropriate weight” has not been documented in the hearing notes that appear on the NMC website as of 12.12.19. We can not make a judgement as to why the witness no longer wanted to be a part of the process, but as her evidence was stated by the case presenter, and can be found on page 3 of the hearing notes, then

“… if this evidence was not allowed as hearsay evidence, the NMC will have difficulty in proving the charge in relation to Patient C.”

So, would the outcome have been different if the evidence had not been allowed?

Later in the proceedings, the registrant’s lawyer was able to produce evidence which showed more strength to the submission that the local investigation was questionable. A Freedom of Information (FOI) request undertaken by 2 different parties requesting the same information from the trust showed completely different data returned. This was to establish if the theft of medication and or missing medication has continued since the registrant left the trust to the present day.  The question was raised was this because a lawyer (request 2 ) had requested the data rather than a member of the public ( request 1)? Was the data collection, as had been shown through the investigation, flawed and inaccurate? The panel deemed that this was of no consequence and allowed the evidence to be submitted.

The local trust investigation showed many issues including other incidents of members of staff taking medication, requesting medication from ward stock, and even a request for medication via Facebook. The senior staff were aware of this and yet did not deal with it, senior staff who were involved as witnesses against this registrant – could this not give question as to their credibility? Many clinical members of staff were frequently sent to collect or transfer medication from other wards and medication cupboards. Stock rooms were frequently left unlocked with easy access by anyone. Keys for drug cupboards were easily accessible. Yet here we were with a great deal of circumstantial information leading to one midwife, who denied all charges, being accused with no consideration of other potential suspects. Both the senior nurse and investigation officer at the trust were questioned by both the registrant’s lawyer and the panel about who authorised this midwife to be arrested whilst caring for a woman in second-stage labour in the middle of her shift. Both denied any involvement and could offer no explanation as to who would have authorised this.

Again the panel did not question the reliability based on this but accepted their version of events and deemed them “credible and reliable”

The NMC and their panels must play a part in ensuring that Just Culture is achieved and ensure that the current FtP system does not play into the hands of trusts or employers who have poor governance, or investigatory procedures or who have employees who are bullying in the workplace.

The current new strategy, we are told repeatedly, is about assessing CURRENT risk and NOT punishing past mistakes. However, this case seems to be little else. It could be argued that the registrant had an opportunity to work since her appeal as she had no restrictions on her practice. However, as the hearing notes outline, she was a single mother with 3 young boys to look after and also a carer for her elderly father who has ongoing medical n needs. She politely pointed out that she considers this as work in itself. She also explained to the panel and to others prior to the case that, like others in her situation, how could she expect employment with an ongoing investigation? Many of our group find themselves in this situation where employers are risk averse to employ someone who may find themselves sanctioned at some unknown point in time.

Yes, our regulator uses the Civil standard of law of “on the balance of probabilities” rather than the criminal for which she was acquitted “beyond reasonable doubt.” But as Justice Spencer stated panels are:  “obliged to proceed with greater caution in differing from the jury’s conclusion…particularly in view of the serious consequences…for the appellant’s career”.

This midwife has now been unable to practice for many years. She has suffered the humiliation of arrest by the police in front of work colleagues and later neighbours when her home was searched in the middle of the night terrifying her sleeping children and causing her to spend a number of hours in a prison cell whilst waiting for a decision to be made on next steps. We have heard this before in other high-profile cases.

She has been impoverished and has lost the professional network that gave her such joy. This is all on “probability” and without any belief that on the balance of probability, there could be another explanation.  The real thief goes without any action taken. The members of staff who undertook such a poor investigation hold no accountability for allowing the wrong person to be accused. The Trust holds no liability for not safeguarding an employee against arrest at work or for not conducting a neutral investigation that started this whole trauma for her.   The only consequence is for a midwife, trying to do her best in very difficult personal and professional circumstances.

So is there more to this?  

Are we seriously dealing with assumptions rather than facts?!! Is this more about the legal teams not wanting a precedent to be set by allowing a non-legally qualified midwife to successfully present a case? Is it that the process just can not allow “person-centred” to orientate around the registrant for fear of another “rogue” professional being free to work? The reality is the Harold Shipman’s and Beverley Allitt‘s are rare and this process does not avoid recurrence as recent events with Morecambe Bay and Shropshire Maternity scandals have shown. Mistakes continue and coverups or lack of accountability hide the prospect of the provision of safe care. Yes, individual professionals have made serious mistakes and some have rightly been found dishonest or impaired. But how do these professionals work for so many years until these concerns are found?

To those of us who are cynical, there seems wider issues going on here to keep the registrant feeling like the underdog and the NMC holding the power.

  1. The registrant is not believed to be innocent until proven guilty
  2. The referrer is always believed and given credibility
  3. NMC case presenters are often given leniency when they make administrative mistakes with evidence and process. Witnesses for the NMC are at times muddled, confused and often lack consistency in their evidence yet still are seen as credible.
  4. The registrant when tripping and stumbling at points in evidence due to nerves and frustration is considered as being evasive and unconvincing. When the registrant gives alternative explanation of events with supporting anecdotal evidence to support their version, they are not believed.
  5. The registrant has to prove hardship, beg for assistance in travel and accommodation and be made to feel eternally grateful if it is offered. Yet witnesses for the NMC are offered this automatically with no proof of hardship.
  6. The registrant room is sparse, with limited refreshments and little comfort. The witness room and the panel room ( which case presenters sometimes share ) have posh coffee machines, a choice of food throughout the day, endless refreshments and are welcoming, comfortable and bright.
  7. Timings for witnesses to attend are flexible and worked around work commitments and such-like. Registrants have to be available for the duration of the hearing, often left for many hours at a time with no communication, sitting waiting for feedback or going back into the hearing room
  8. Witnesses for the NMC are offered support by a Witness Liaison Team. The registrant only has such support if he/she can provide it themselves
  9. Outside the hearing room all names of the panel members, legal assessors, case presenter and legal secretary are displayed and yet the registrant’s lawyer’s name does not appear.
  10. The NMC has stringent safeguarding policies to protect people and take reasonable steps to protect from harm all who come into contact with them and yet they provide no follow-up to registrants in distress or assurance that they get home safely after receiving devastating sanctions. (one registrant recently was stranded in London after a hearing following rail disruption and requested help but this was refused. Members of our group sent her money for accommodation to keep her safe)

These aspects may seem minor but to those going through the process feel like a subliminal tactic that works well to keep the registrants on the weaker foot and in their place.

Culture change is not always about the big things, it can be about how people communicate, nonverbal and verbally. It can be about how they treat others and often about what they don’t do rather than what they do. It may be unfair to say the culture experienced by registrants going through FtP is one of a bullying nature but some of the aspects share feelings of this theme.

If this is what those observing proceedings feel,  then how can the public be confident that this insipid culture is not creeping through all aspects of the organisation?

Abuse comes in many forms – bystander apathy can creep into organisations without conscious effort. Time is far overdue to take stock and make a lasting change if a “person-centred” approach is to be believed.  EVERYONE COUNTS and no one is more important than anyone else. A mother who recently blogged about this very aspect, she was both a registrant (HCPC) and a referrer and yet experienced negative culture in her case when giving evidence, so perhaps it is not isolated to one side but inherent throughout.

For this registrant, this chapter is closed. She may choose to appeal the decision but may also feel that enough is enough. For now, she needs to focus on rebuilding herself again and being a mum – building a life without NMC, finding her new self – finding her core again. But the impact is far-reaching and can not be solved by an offer of a Careline but needs urgent action and zero tolerance if faith is to be restored.

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