Lawyers must fix the problems with gagging orders before it is too late
The Professional Standards Authority has published its review into the Nursing and Midwifery Council’s (‘NMC’) treatment of a number of serious allegations against Furness General Hospital (FGH) midwives in relation to the tragic deaths of babies and some mothers between 2004 and 2016. Although titled a “Lessons Learned Review”, the report does not hold back in launching criticism at the NMC which identified the need to “address very serious concerns about the way in which it deals with families and patients and whether it is a transparent, open organisation”. Indeed, the PSA report catalogues many issues which other regulators, including those operating outside of health and social care, would be advised to consider.
Established under the National Health Service Reform and Health Care Professions Act 2002, the PSA monitors healthcare regulators throughout the UK and is statutorily obliged to promote the interests of health and social care users and members of the public in relation to the regulators. In terms of scope, the PSA report did not revisit the NMC’s findings but examined the regulator’s conducting of fitness to practice (FTP) proceedings.
With respect to the NMC’s record-keeping, it was observed that “records of internal discussions and decisions about case management, and discussions with the NMC’s lawyers and those representing the registrants were still missing”. In subsequent discussions with the NMC, reasons for decisions were provided to the PSA, but these reasons had not been apparent on the files. These failings risked “a lack of continuity in approach and/or on-going understanding of a case”. Moreover, from the perspective of registrants, neglecting to record its decision making process and the reasons supporting action taken, severely hampers any efforts on the part of the registrant to openly engage with the disciplinary process, all the while exposing the regulator to possible judicial review proceedings.
Clinical knowledge within the NMC’s FTP team was also considered deficient. This resulted in significant issues being missed, such as whether the registrant in question posed a wider risk to patients, and an over-reliance on certain sources (i.e the local supervisory reports) contrasted with a failure to fully appreciate other important evidence, namely the account provided by the affected families. The NMC recognised these short-comings and has since sought to employ clinical advisors in the FTP team. Other regulators should recognise the importance of seeking assistance in technical matters. It is easy to envisage, for instance, how the absence of some level of expertise in the early stages of an investigation could lead to non-issues being pursued against registrants, or confusion surrounding how a complaint is phrased and subsequently investigated. The ramifications for this with regards to case-management, and for the integrity of the disciplinary process in general are all too apparent.
The delay in handling cases was cited as “an obvious concern”, causing considerable distress to midwives and other health professionals as well as for the families waiting for an outcome. The impact of this included midwives subsequently struck-off continuing to practice for significant periods of time; the inability to compel retired or un-registered midwives to engage with the process; witness testimonies being questioned due to issues with memory; cases being rushed at the end thus compromising the quality of investigations and decision-making; and the undermining of the NMC’s reputation as an effective regulator. The report acknowledged the difficulty in progressing FTP cases quickly where external investigations are taking place (such as an inquest or police investigation), however observed that these events did not impede the General Medical Council.
“Opaque and unhelpful”, the NMC was further criticised for its inadequate communication, such as ignoring information and concerns raised by the families and corresponding in a way that was confusing and irregular. For example, a flawed investigation was never properly explained to the complainant and an apology never provided. Issues were also identified with the NMC’s transparency in handling a request by a complainant to see a particular report and a subject access request. The PSA observed that “public confidence is likely to be greater in organisations which are transparent and admit mistakes”.
Significantly, wider clinical and cultural concerns were identified in respect of the NMC’s FTP system. The PSA found that, among other things, the adversarial nature of proceedings, the legalistic rather than clinical approach, and the strong protections in place to ensure fairness on behalf of the registrant were not “conducive to addressing concerns early or encouraging an open culture”. Instead the PSA recommended an alternative “more proportionate approach” which would limit the number of cases forwarded to the FTP system and would enable regulators and employers to work together so that, where appropriate, cases could be resolved locally and quickly.
What does this mean for regulators? The PSA’s “Lessons Learned Review” no doubt highlights concerns that many working across the regulated sector have been aware of for some time. Failures to produce adequate reasons for decisions, obfuscation with both registrants and complainants, and a lack of technical knowledge of the practice area are familiar road-bumps in a disciplinary case. Whether this justifies a complete upheaval of the FTP system and its association with principles derived from criminal law and the protections afforded to those being investigated is unclear, however a more conciliatory approach involving employers and other stakeholders is an unquestionably appealing prospect.
Kingsley Napley’s Regulatory team provides representation for regulated healthcare professionals facing fitness to practise investigations, amongst other matters. Clients come to us to obtain specialist legal advice when a complaint is made that threatens their ability to carrying on practising.
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