Be silent and be ignored

The recent investigation of nurses’ failings at Brithdir care home provides lessons for others facing regulatory review, says regulatory lawyer Lucy Williams.

On 21 August 2015, the Nursing and Midwifery Council (NMC) concluded its 81 day hearing into failings at Brithdir Care Home, the subject of the UK's biggest inquiry to date into alleged neglect.

Three nurses were struck off, a fourth was suspended for one year and a fifth nurse was given a caution order. The NMC’s Conduct and Competence Committee spoke of the serious failings of these professionals in its published determination.

The different sanctions imposed show how ‘insight’ and engagement with the regulator can make a huge difference to the outcome of a fitness to practise investigation.  Tellingly the three nurses who were struck off displayed limited insight and did not attend the hearings or engage with proceedings. The Panel chair commented that one of these nurses had “attempted to deflect her personal responsibility by blaming others”, another nurse was accused of showing “a lack respect for human dignity” and the third was found to have shown “little if any insight into her failings”.

In contrast, the panel were satisfied that the one nurse who attended the hearing and provided substantial mitigation had faced up to her failings.  She only received a caution order, so is free to continue working as a nurse. 

The prospect of investigation by and proceedings before your regulatory body is, understandably, terrifying.  However, the NMC operates a fair process designed to consider evidence and representations from all parties. I always advise clients of the importance of engaging so you can challenge allegations which you contest and show remorse and insight in relation to any allegations which you admit. The lessons from the Brithdir case surely confirm this is a sound policy. 

So if you find yourself under scrutiny from the NMC, what other tip tips you can follow?

Do:

• Gather the evidence: go back to patient files and read the notes you made; look at dates of appointments and keep a copy of all of this material – it could be invaluable later.
• Speak to witnesses: Can they write down what they saw and heard and give that to you?
• Prepare your account: write down your best recollection of events; put this in chronological order with as much detail as possible.
• Get early advice: taking proper advice could be career saving and alter the outcome in your favour if you are guided to approach any complaint correctly from the start.
• Engage with the regulator: rarely is it in your interests to put your head in the sand. Have the courage to attend any hearing to present any mitigation, demonstrate insight and remorse and explain the steps you have taken to improve.  A written statement is much less convincing than a heartfelt explanation in person. 
• Think about who you need to tell: insurers and supervisors for example?

Don’t:

• Respond immediately: take the time to provide a considered response by the NMC’s deadline. If you cannot meet that you can always ask for more time.
• Try and speak with any complainant: Attempting to speak with them and reason the matter out is unlikely to be in your interests.
• Ignore the complaint: regulators can make a decision without you actually being involved in the process. In circumstances where they only have one account it is harder for a fair decision to be reached.
• Panic: although this seems obvious, it is a reaction that will mean you stop thinking straight and become unable to make sensible decisions.

The Brithdir case shows starkly the benefits of cooperating with NMC inquiries and fitness to practise investigations. Of course, there was a certain political factor at work here whereby the regulator needed to send a message to the public and to other professionals that grave betrayals of trust will be dealt with robustly.  However the clear lesson to nurses is that demonstrating to a Committee that you recognise where and why you went wrong in the past and how you would act differently in the future, can go a long way to mitigating any harsh penalty. 

The author Lucy Williams, is a regulatory lawyer specialising in the healthcare sector at Kingsley Napley LLP.

Further information

For further information, please contact Lucy Williams. You may also wish to visit our Regulatory & Professional Discipline pages.

This article was first published on Nursing Older People magazine.