Ongoing concerns over fairness and transparency of NMC cases

The review of the Nursing and Midwifery Council’s performance in 2017-18 by the Professional Standards Authority (PSA) found the regulator had achieved 22 out of 24 core standards including those relating to registration and education and training.

However, there were ongoing concerns around the fairness and transparency of FtP cases and the support and information the NMC provides to everyone involved.

Issues raised by the PSA include a failure to present “important” evidence in FtP hearings and new findings that suggest the regulator does not always take complaints from patients and the public as seriously as it should.

In particular, the PSA identified “numerous” issues with the way the NMC handled complaints about nurses involved in assessing people with disabilities for benefits payments, which “created a barrier to vulnerable people raising potentially serious concerns”.

The report sets out the findings of the first review of the NMC’s performance since the PSA published its highly critical report on the regulator’s handling of the Morecambe Bay maternity scandal.

The government-commissioned Lessons Learned Review (LLR) found the NMC had failed to listen to or properly investigate concerns about midwives at Furness General Hospital and called for urgent action to improve transparency and the way the NMC interacted with patients and families.

In this latest report the PSA acknowledged the NMC was making extensive efforts to improve performance in these key areas including launching a new Public Support Service, providing more information about FtP and setting up a new enquiries and complaints team.

However, it said much of this work was still in progress and it was too early to judge the impact.

The PSA revealed an audit of complaints about personal independent payment (PIP) assessments for people with disabilities and long-term illness had thrown up some “similar issues” to the Lessons Learned Review.

The audit – which was carried out before the review findings were published – came on the back of concerns raised by members of the public and advocacy groups about NMC decisions not to take forward complaints about nurses acting as disability assessors.

In some cases, the NMC told people there was “no credible evidence” to enable them look into their complaint even when there were witnesses or the assessment session had been recorded.

The NMC’s own figures showed just two out of 83 such cases in 2017-18 had gone on to be investigated in more detail.

However, when the PSA audited 28 of these cases the body identified “numerous concerns” including the fact NMC did not consider all of the concerns raised by people or give appropriate weight to their evidence.

In 24 out of the 28 cases the PSA found the “handling of the case might undermine confidence in the NMC”.

Key issues included the fact that in deciding whether or not to investigate further the NMC relied “excessively” on what they were told by nurses’ employers “without proper scrutiny” and did not look at or get all the relevant information.

“We can draw parallels with our LLR in which we found that as an organisation, culturally, the NMC did not recognise the value that patient or family evidence provides,” said the report.

In two out of the 28 cases, the PSA looked at it concluded “the outcome might not be sufficient to protect the public”. In nine further cases, it could not determine whether or not the right decision had been made.

The report stated that the NMC – which had carried out its own review and found similar issues – had considered whether any cases needed to be look at again but did not think this was necessary.

However, it was introducing a new system to review a sample of cases where it was decided no further action should be taken.

Meanwhile, a sample of public referrals will be reviewed by an independent law firm to see what lessons can be learned to improve the way such cases are handled.

The PSA acknowledged it could be “challenging” for professional regulators to deal with complaints relating to PIP as it may be hard to work out whether these arise from genuine concerns about an assessor’s fitness to practise or from wider dissatisfaction with the controversial assessment process or the result.

“That makes it all the more important that regulators follow their published guidance and procedures in handling such complaints,” said the report.

Overall, the report highlighted significant progress in many areas of the NMC’s work although it met one less core standard in 2017-18 than it did the previous year, achieving eight of 10 standards for fitness to practise, compared with nine out of 10 in 2016-17.

It found the regulator had not achieved standards when it came to ensuring FtP processes were “transparent, fair and proportionate” or when it came to ensuring all parties were supported and updated.

The PSA said it had identified cases where the NMC had not obtained or presented “important evidence” at final FtP hearings, which had “significant implications for the fairness, transparency and focus on public protection of the process”.

“This included important documents such as medical records, expert evidence and relevant policy documents,” said the report.

The PSA also raised concerns about cases where the NMC decided to offer “no evidence” when it felt it would not be in the public interest to carry on with all or part of a case against a nurse or midwife.

In such cases the NMC will ask an FtP committee to approve the decision not to proceed. But the PSA identified a number where the NMC had “not provided the fitness to practise committees with enough evidence to enable them to determine if it was in the public interest to proceed with the charges”.

According to the report, it reviewed seven cases in detail and found the decisions in three of these “were insufficient to protect the public” with the PSA successfully appealing two out of the three.

While the NMC has changed its approach to offering no evidence, the PSA said it was still concerned panels were not getting “the full picture”.

When it came to supporting and updating people involved in FtP, the PSA found there was still work to do, including when it came to support for nurses and midwives going through FtP processes.

“We reviewed the NMC’s website and published literature and requested information from it to understand how the NMC supports registrants going through the fitness to practise process,” said the report. “We had noted a lack of signposting to support services, such as those that offer emotional support.”

According to the report, the NMC said it assessed the support needs of registrants “on a case-by-case basis”.

“However, it will be undertaking further work to better understand what additional support can be provided,” the report added.

The report highlights ongoing improvements in the time taken to deal with FtP cases. While it has not hit its target for getting to case to answer decisions within 39 weeks on average “the target is in sight”, said the report.

Meanwhile the introduction of an automated system has reduced the time it take to process applications to the NMC register although the report reveals some concern about delays in registering overseas nurses.

The NMC is currently reviewing the application process for those who wish to register from outside the UK.

When it came to revalidation the PSA’s report highlighted the fact a recorded message on the NMC’s telephone helpline incorrectly stated that registrants’ revalidation date was the same as their renewal date – as reported in Nursing Times.

While the PSA said the error – which has been corrected by the NMC – was “cause for concern” it said there was no evidence to suggest it caused nurses or midwives to inadvertently let their registration lapse.

Overall the PSA said it was “pleased” with work under way to address concerns from the Lessons Learned Review but it “will take some time to implement and for us to evaluate the results”.

It also acknowledged work to address other fitness to practise issues.

“We recognise that the NMC accepts the concerns that we have identified about its approach to fitness to practise cases and is undertaking work which aims to address them,” said a statement.

NMC chief executive and registrar Andrea Sutcliffe said the report reiterated the importance of treating people fairly and with respect and considering all concerns raised in referrals.

“We know that in the past we have not always got those things right,” she said but added the report recognised “the significant progress we have made in more recent years”.

Ms Sutcliffe went on to apologise for failings in PIP cases. “I’m sorry that our approach to a small number of PIP related cases fell short of what is expected. Our failure to fully address the concerns of some people making complaints and the lack of clarity in our decision making was not good enough,” she said.

“Since 2018 we have taken action,” she said. “This includes additional training for those making and communicating case decisions, as well as a new quality assurance approach to the way we initially review cases.”

She said the report highlighted the positive impact NMC initiatives were having when it came to supporting better, safer care including the development of new education standards and the review of overseas registration requirements.

However, she said the body was aware “there is much more we can and must do”.

“We will continue to address the issues raised in this report and the PSA’s lessons learned review and build on the good progress that has been made over the last 12 months as we embark on the development of a new five year strategy,” she said.