The government’s Nursing Regime, by its other name, the NMC, are a reflection of a dark past. During the English Civil War there were hundreds of witch trials by ordeal in England. Everyone knew witches float, so toss the accused witch into the lake, and if she floats then she is a witch. If she sinks, she is innocent, probably dead from drowning, but, oh well.
It is the same with nurses who are accused of violating the NMC’s code of conduct. Those accused by their employers, who gather evidence from co-workers, which may include historical, petty misdemeanours, must be cleared by an NMC fitness to practice panel, but, if out of work, as many nurses accused by employers are, must also drown on Job Seeekers Allowance.
Let it be made clear, the NMC’s role in this is as a front of government control of the ‘medical professions‘. Anyone reading the Department of Health’s consulatation document (The Nursing and Midwifery Council: proposed changes to the governing legislation, 17/04/2014) will be fully assured that the NMC is open to government review, and is little more than a quango, whose governing council is directly appointed by the Privy Council, and which is only ‘independent’ in name.
This is why a key principle of the NMC’s report-a-nurse protocol allows a potentially vindictive employer to readily make an accusation, whether due dilligence of the veracity of the claim as been done or not. I have a personal recollection of such an instance, when a very able nurse was accused of errors in drug administration by a matron whose best friend’s ex-husband was dating the accused nurse.
To be vindictive is human. In a recent High Court (Administrative Court) Decision, Suddock v The Nursing and Midwifery Council (2015] EWHC 3612 (Admin) (11 December 2015), Mrs. Justice Andrews, DBE, made, what I consider to be, ‘benchmark’ comments concerning the plausibility of witnesses giving evidence at NMC fitness to practice panels.
The following are general comments made by Mrs. Justice Andrews on some of the charges levelled against Ms Suddock:
136. ‘There was no weighing up of whose version of events was inherently more plausible, or more consistent either with earlier statements or with the contemporaneous documents‘.
141. ‘This is one of those rare situations in which, despite the advantages that the panel had of seeing and hearing the witnesses, I can safely conclude that it was both plainly wrong and unfair to find the charge proved against Ms Suddock … Whilst there is no duty on a panel to give anything more than adequate reasons for its decision, here there were no reasons given at all, and that is unfair. However this is not simply a case of inadequate reasoning; for all the reasons I have set out, the finding is not supported by the evidence. Not to put too fine a point on it, it is perverse’.
153. ‘What would the panel have done had it appreciated that the charge depended on the word of a witness who had made up a story about very serious wrongdoing, versus that of Ms Suddock, in respect of whom the panel had been given a good character direction?* … The panel had to be satisfied that it was more likely than not that these remarks were made by Ms Suddock as … alleged, not simply that they were remarks of a nature that she was likely to have made because, rightly or wrongly, she regarded herself as more knowledgeable than the HCAs’. *Good CQC inspection reports, etc.
154. ‘A further point is that the panel found Ms Suddock’s behaviour at the hearing to be “assertive and challenging” and treated this as negative. However, it may have looked at her behaviour in a very different light if it had appreciated that there was clear evidence that someone was trying to frame her, and that one of the witnesses against her was demonstrably untruthful, not just muddled. An innocent person facing that situation might well have presented as assertive and challenging, especially if she was trying to represent herself’.
160. ‘If one of the key witnesses of fact was lying, or at the very least was so confused that no weight could be placed on her evidence, and another was not available for cross-examination, but demonstrably contradicted herself in two statements taken two years apart, and embellished her evidence in the later statement by adding more serious allegations against Ms Suddock, the evidence of the other two and their motives for saying what they did might well come more closely under the microscope. I would expect a panel, in those circumstances, to have gone about its evaluation of their evidence somewhat differently‘.
167. ‘The panel failed to make it clear that it was not relying on that evidence as evidence of the truth of what the witnesses were told, but merely as evidence that staff at the Home had made similar or consistent allegations to their employer or to independent parties in the past’.
189. ‘However, and despite my extreme disquiet about some of the evidence that was relied on by the panel, plus its flawed approach to examination of the credibility of the witnesses, I cannot substitute my own decisions for the panel’s. I therefore have to decide whether to direct that some or all of these Charges be remitted. If the Charges are to be remitted, they would have to be heard by a different panel of the CCC. I cannot send them back for reconsideration by this panel because (a) however scrupulous its members might be about trying to put out of their minds the unfavourable impression they formed of Ms Suddock and the favourable impression they formed of the other witnesses it would be asking the impossible of them to do so, and (b) the reasonable observer would not believe that justice was being seen to be done unless the case against Ms Suddock was looked at through completely fresh eyes’.
193. ‘Ms Suddock has already been through the terrible experience of being falsely accused of serious wrongdoing in a number of respects, and threatened with losing her livelihood in consequence. The question is whether it would really be in the interests of justice and in the public interest to subject her to a second hearing of charges that she maintains are equally false. Ms Suddock submits that it would not. None of the specialist bodies charged with looking after the interests of vulnerable patients has seen fit to take any action against her; including the SHA following a Serious Case Report in the wake of Dr 10’s preliminary inquiries. That point is a powerful counterbalance to Ms Flack’s submission about the NMC’s statutory duties of public protection and upholding the public interest‘.
Thus, Mrs. Justice Andrews suggested that the NMC panel based its decision on a favourable impression they had formed of the witnesses against Ms Suddock, and a contrasting unfavourable impression they had formed about Ms Sudock, which was inconsistent with contemporaneous documents, and also relied on accusations that were the perceptions of witnesses of what the accused was likely to have done or said and not what she had actually done or said.
This is like saying this NMC’s (£310 a day) panel members acted like judges on a tv talent show.
Compare and contrast some of the points made by Mrs. Justice Andrews with suggestions made in the aforementioned ‘The Nursing and Midwifery Council: proposed changes to the governing legislation, 17/04/2014’:
17. ‘The system requires arrangements to be made for booking individual panellists from the pool to attend and although there is regular training and guidance provided, it can be difficult to achieve and demonstrate consistent, quality decision-making among a very large pool of panel members sitting in panels of at least three people’.
Comment: There is no consistent, quality decision-making. In fact, many decisions seem perverse.
26. Where a decision is made … which the NMC considers to be materially flawed, there is no power for this decision to be re-considered under the current legislation and action cannot be taken to address this without a successful judicial review by an affected third party, which is a lengthy and expensive process.
Comment: The NMC’s paymaster’s (the government) do not want individual nurses to seek redress in the courts. They would prefer to keep the process of appeal ‘in house’, rather like the approach supported by the NMC and the RCN on ‘whistleblowing’.
27. ‘This current approach prevents the NMC from acting efficiently or in the public interest in order to protect the public and restricts its ability as a regulator to fulfil its duty. This lack of a power to review IC decisions is inconsistent with the powers of the GMC and the General Dental Council’.
Comment: Mrs. Justice Andrews commented: ‘If the Charges are to be remitted, they would have to be heard by a different panel of the CCC. I cannot send them back for reconsideration by this panel because (a) however scrupulous its members might be about trying to put out of their minds the unfavourable impression they formed of Ms Suddock and the favourable impression they formed of the other witnesses it would be asking the impossible of them to do so, and (b) the reasonable observer would not believe that justice was being seen to be done unless the case against Ms Suddock was looked at through completely fresh eyes’. To extend the logic of this precept, would it not be fair to ask if justice can not be seen to be done unless the case against any nurse is looked at by other than the NMC?
28. ‘Proposal: It is proposed that where Case Examiners or a panel … have determined that there is no case for a nurse or midwife to answer following allegations that their Fitness-to-Practise is impaired:
• The NMC will be given the power to review such decisions.
• The NMC would have the ability to make Rules for carrying out such reviews’.
Comment: This refers to the initial ‘case-no-case’ to answer stage of accusation. The great danger here is in the likelihood (I suggest) of the principle of retrospective action being applied to decisions of fitness to practice panels. The principle of retrospective review is like ‘letting a Geni out of the bag’.
29. ‘This amendment is necessary because it will allow the NMC to properly fulfil its duty as a regulator by ensuring it can give further consideration, and where necessary, take direct action to re-visit closed cases in specified circumstances. (Please refer to the NMC consultation on changes to the Fitness-to-Practise Rules and to the Registration Rules). This is important because it improves public protection and would bring the NMC’s powers into line with the GMC and GDC and will ensure the public have equal confidence in the NMC as an effective regulator and public confidence in the nursing and midwifery professions to be maintained’.
Comment: The government will eventually allow (1) the NMC to investigate unsafe decisions made by its fitness to practice panels, as in the judgement against Ms Suddock, (2) decisions of its panels that found the nurse not guilty of charges, (3) ‘accusers’ (organisations) to present new evidence of ‘guilt’ concerning nurses at all stages of the fitness to practice process.
Thus, a double-edged sword will be offered; one edge of it giving a nurse recourse to an ‘in-house’ appeal; the sharper edge being dangled as the Sword of Damocles over the heads of those who believed they have been cleared of charges. A charter for vindictive employers to try and try again.
Yes, not all nurses are good, and if new and genuine evidence is found against them it should be considered, but, under the doctrine that I propose will be adopted, a large number of good nurses would be open to continuous dredging up of new, false accusations.
Will it be made compulsory for all nurses to have to exhaust the ‘in-house’ appeals procedure before being allowed to seek redress in the courts? Whose nerves could survive this mental obstacle course? The NMC will review your case because our panel members may have got it wrong, but we are open to receive further evidence against you!
To want to chain nurses to the same dictates as operated by the GMC is not about improving ‘public protection’, it is about extending the control of the State.
Nurses should pay a monthly fee into a fund set up by solicitors, to defend themselves against false accusation, instead of paying RCN subscription fees, which cover the cost of more than just defending nurses.
Before any NMC hearing, solicitors should write to the NMC stating that their client’s defense will be one of ‘false accusation’, and ask if any organisation bringing charges have done ‘due dilligence’ as to the veracity of witness statements, and are not a party to defamation by neglect of proper investigation (due dilligence).
Solicitors should use the judgements made in ‘Suddock v The Nursing and Midwifery Council’ to ask if a panel has based its decisions on perceptions of the plausibility of witnesses against that of the accused, and are these perceptions ‘consistent with the documents and the uncontroversial facts’, and, if not, are they not a party to defamation by neglect of proper investigation? (due dilligence).
Do not just simply lay down and take it, unless you are one of the untold thousands who chose to leave nursing because there are far more safer ways of earning a crust, and leave the way open for Nursings’ great conveyor belt of new cannon fodder to relace you.
You should not be blamed for doing this.
Who would want to go through the ordeal of a modern day witch trial?
lenin nightingale 2016