000 days

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

Unfair advantage – who pays hearing expenses?

Mar 20, 2021 | Opinion | 0 comments

First published Nov 11th 2018

On receipt of your notification of a hearing date, there is enough going on to prepare without the added stress of constantly feeling like you are one step behind. The current process seems to give some registrants the impression that they are constantly playing catch-up and are the last to know what the plan is! You are told the dates of your hearing, often with little advance notice, but panels will have been booked, witnesses’ travel arrangements organised and case presenters arranged so why is there so little notice given? The NMC are professing that they are attempting to get the length of hearings down, but still, most hearings are a minimum of 5 days, many over 10 days in length. If you have legal representation through a union this is less of a problem as they will fund your lawyer to attend and in some cases your witnesses associated costs with attendance also. If you are unrepresented it is a more difficult issue and ultimately arises with registrants not being represented and not even attending.

From talking to our members some key themes have come through:

  1. If you are a witness for the NMC you will have your travel expenses, accommodation and daily allowance for food paid automatically. Often if there are a number of witnesses from one trust/employer they will all travel together to the hearing venue – usually London – on the train and most likely all stay in the same accommodation as well. What a lovely trip out!! As they are not under oath this gives ample opportunity to discuss the case, what will be said, joint themes and get stories straight!
  2. If you are a witness for the registrant there is no such funding. The registrant will have to not only fund their own legal representation, of which they have already had associated costs in the preparation for a hearing, but also fund the expenses of your witnesses if they need to attend. Yes, they can do so via Skype/video call etc but having the person present is much more powerful and gives better scope to determine their credibility.
  3. Hardship grants are available for registrants to cover their own travel expenses and accommodation but not for their witnesses. NMC correspondence to the registrant does explain this is available but is worded poorly and gives no guarantees. The letters invariably only come out a couple of weeks before the hearing with a final decision a day or two before – not enough time for a registrant with a lack of funds to make any “alternative plans”. Their “culture” is not changing despite promising otherwise. Why if the process is fair are registrants and NMC witnesses not treated equally? Witnesses are not asked to prove that they are worthy of reimbursement and yet once again registrants are expected to “prove” their need. If a registrant is out of work as a result of the process surely it does not take much working out to realise they will need financial assistance and that this help should be as easy, non-bureaucratic and seamless as possible?
  1. The hearing dates are often inflexible and the registrant is often told that if they can not attend there is a chance the hearing will go on without them!
  2. There is no plan for the hearing dates – no itinerary on what will occur on what day so no ability for the self-funding registrant to maximise the little funds they have ( they will nearly always be out of work) by planning which days are essential to attend for example.
  3. Registrants will have to retain their legal representative for the duration of the hearing and although the panel and case presenter may not give any objection if a hearing day adjourns after only two hours of the session, the registrant may panic at the wasted opportunity of time. The registrant will have to be present each day from 9 am, unless instructed otherwise by the Chair, but may not be called into the hearing until a few hours later – or in one case until 6 pm for approximately 3 minutes after waiting the whole day for the outcome of a 10-day hearing!
  4. There is no aftercare for the registrant – sanctions are handed down and everyone goes home. If the sanction is hefty, e.g. strike-off or suspension, there is no advice on where to go for support. There is no safeguarding to ensure the registrant will not harm themselves following the sanction. There is no duty of care to ensure the registrant understands what the sanction means and how to get the help they need. The panel members go home after their hard week and the registrant is left abandoned. This behaviour just instils once again to the registrant that they deserve nothing and that no one cares – not conducive to positive mental health!
  5. The process during the hearing has little opportunity for the registrant to agree with the information that is presented – they can only react to what is put forward by the case presenter to the panel in a reactive manner rather than a proactive one.

A basic human right is the right to a fair trial, however, an NMC FtP panel seems to be in a league of its own! It is a quasi-judicial body and is constrained by law to deal with the issues before it in a “judicial manner”. This quango-court hides behind the civil standard but utilises the process of court proceedings when it sees fit and makes it difficult to see how proceedings are executed fairly.

There is a substantial body of decided cases stipulating that they must comply with evidence and procedural rules in a similar manner to a court of law – this is particularly the case where the outcome of such a hearing could result in the loss of an individual’s right to derive their livelihood from the practice of their profession. It’s an adversarial procedure, so you have the right to challenge their evidence and to present evidence of your own. In your case, you can formally request that the NMC call witnesses you want to attend to be cross-examined. However, this is never made public knowledge and unsurprisingly not promoted so in many cases it is not until the hearing is over that you realise you had this option – too late!! It is reported to NMCWatch that in many cases, the individuals who were happy to condemn you as all sorts of villains when sitting in the comfort of their little safe office within the workplace and being chatted to by the investigating officer, are at a total loss to justify what they said when testifying at the NMC under oath!!
We are told the panel is independent. Guidance on the NMC website explains further;

“Panel members preside over fitness to practise cases. They are appointed independently of the NMC and play a very significant role in protecting the public ….”

So, my question is:

If the panel members are recruited by the NMC, trained by the NMC and paid by the NMC how can they be independent?

If the NMC is truly dedicated to improving its Fitness to Practice then they need to quickly take stock and review ALL its processes. They need to ask themselves some simple questions around equity and fairness and ask if it were a member of their family how would they want them to be treated?
Looking at the NMC website of hearings outcomes many of the registrants are listed as “not in attendance not represented”
Did they give up? Did they think ” what’s the point”, did they feel there was no hope? Is this a fair process? If they had had some more support with a true person-centred approach would the NMC have achieved true patient safety rather than feeding into a culture of blame and harm that protects no one least of all the public?

Please contact your MPs and demand answers – your nurses and midwives deserve better!

Since this blog was written we have, of course, been going through the additional challenge of a pandemic. This has brought with it emergency powers by the NMC some of which were subject to a recent consultation to move into a permanent position. The use of virtual hearings has become the norm. Whilst on paper the powers proposed appear sensible, careful thought needs to be taken on whether they are all in the registrant’s best interest.
Please read the full papers and then send your views in by the 15th January 2021.
The Nursing standard publicised the fact that the NMC have a large backlog of cases which they blame the pandemic for, and state that this will further extend the length of an already lengthy process to well into 2021, if not 2022. All panel members have been working remotely during the pandemic as have most office staff so it is unclear why such a backlog. Registrant members of panels may hold positions in the NHS which mean they need to be left to continue this work rather than brought back to hearings, but we know there are many registrant members who are not in clinical ward roles so find it difficult to understand this argument.
There has always been a backlog of cases and this issue has raised its head over the years when there has been no pandemic
In 2008 the Nursing standard commented on unions demanding that for the 307 waiting to be heard by FtP the criminal standard of proof should be adopted so as to assist with them being dealt with expeditiously – the NMC stated the civil standard would follow.
In 2012 the National Health Executive reported on “substantial failings and hearings backlog” stating:
“The Nursing and Midwifery Council (NMC) is not performing its duties at an acceptable level and is struggling to deal with a backlog of complaints, a review into its performance has shown.
The Council for Healthcare Regulatory Excellence (CHRE) found that almost 4,500 cases are still awaiting a decision from the NMC, with a backlog of complaints against nurses and midwives that reaches back to 2005.”
Katherine Murphy, of the Patients Association, at the time, said:
“It is clear that the NMC will not only have to develop more robust regulatory procedures but also work very hard to regain the trust placed in them by patients, nurses and other healthcare professionals alike.”
So while we appreciate the pandemic brings extraordinary challenges one could worry that it gives a convenient excuse for a long-standing problem which once again puts those going through the process at the bottom of the priority list.

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