Association of Radical Midwives

Midwives Haven

Support for midwives in times of trouble

You are not alone!

Facing Investigation or Disciplinary Action

There are no figures currently available to tell us how many midwives face an investigation or disciplinary action each year but every maternity unit appears to have a number of ongoing investigations at any one time, and the proportion of midwives who have personal experience of these is considerable. A recent straw poll of ARM members on Facebook showed that over 50% of members had personal experience of an investigation, disciplinary action or NMC referral.

An investigation should aim to establish the facts or truth of what has occurred and does not necessarily proceed to any disciplinary action against anyone. Disciplinary hearings occur when it is considered that someone (or more than one person) has a case to answer of not meeting expected standards following an investigation. In other words you have to account for your words, actions or omissions. Not all investigations result in disciplinary hearings and not all disciplinary hearings result in disciplinary sanctions (formal warnings, some form of action plan, dismissal, NMC referral).

support

If you are on the end of a complaint or criticism from the patient, your employer and or are bullied or shunned by colleagues, you may be very upset; you could be very stressed out, tired or run down. Your first instinct may be to resign in the belief that if you resign the whole business will go away.

That would be a mistake; it could result in you throwing away your career unnecessarily. See the section on Practicalities No. 5 below. You should not resign before you have had a chance to catch your breath and to talk your circumstances through with someone who is experienced in understanding the processes involved in investigations and disciplinary procedures.

Anxiety

Facing investigation induces anxiety in almost everyone – especially anxiety about whether there was any shortcoming in your practice. We all do our best as midwives and it is distressing to make a mistake or feel that we have let a woman down, or that someone else might think we have. It is especially distressing to be the subject of a complaint from a woman or her family, but most midwives do experience this at some point in their career. In our experience, finding ways to lessen, alleviate or manage your anxiety is probably the most important first step.
Consider how you best manage anxiety and spend time each day consciously soothing your anxiety – breathing deeply and calmly, dog walks, yoga, hypnotherapy, knitting, reading, going for a run, music, painting a room …….. whatever helps to still the turmoil in your head for an hour or so. It is normal to feel upset and anxious but time away from it, or being able to live with it calmly, will prove invaluable and help you how best to answer questions in any investigation or disciplinary process, and to tackle the various demands on you. Stay as calm as you can to deal with your role in the investigation or with any complaints or criticisms of your conduct which may have arisen.
anxiety
You need to be honest with yourself and assess, if necessary with the help of your GP whether your anxiety about the complaint or process could affect your performance with clients, as the clients’ welfare must not be compromised, and follow your GP’s advice. Being stressed out does not make it easy for you to give optimum care. Both GPs and Occupational Health may be able to refer you for some form of psychological support if you feel that would be helpful.
However, if you can handle the pressure and have the confidence and support of your work colleagues you may prefer to remain in the workplace during the investigatory phase.

If you are suspended, that is NOT a disciplinary sanction. Again, consciously managing your time away from work to stay as well as you can will be important. Pay attention to what your friends and family advise – they will have your best interests at heart and their perspective can be very wise.

In addition to your trusted friends and family, Midwives Haven supporters are here to talk things over and help you deal with the pressures and strains on you.

Practicalities

1Representation

Talking with your local union representative as soon as possible is, of course, important. If your union rep has any clash of interests or there is another reason why you do not feel the relationship is likely to work for you, then you do need to discuss this with the union regional officer. Union representation can be uneven – some midwives are very pleased with how they are represented but there is also a sizeable percentage who are very disappointed in how they are represented. If you are not happy with your representation, it is better to address this early rather than later.
You are only entitled to union representation for periods in which you have union membership. Please check the terms of your category of membership on your union website. When you are in professional practice, you should ALWAYS ensure you have FULL union membership. Beware of inadvertently continuing associate or maternity membership into periods of active practice.

If you find you are not entitled to union representation (and the unions do check on your membership status), do not panic – there are others who can accompany you to meetings, or, in confidence, give you informal advice on how to handle the disciplinary process, discuss the background and surrounding incidents, and help you prepare your statement. Midwives Haven have volunteers who are prepared to do this, though people also ask for the support of their partners, family members, next-door-neighbour-retired-solicitor etc.

The important thing is that you are represented by someone with experience or commitment who will see it through with you and be there for you. In our members’ experience, being represented by someone other than a union official can be a positive experience with positive outcomes.

2Understanding the process

Being the subject of an investigation is worrying and stressful. Not understanding the process you are going through adds unnecessarily to that. So as soon as you are told that you are part of an investigation, you should ask for or otherwise obtain a copy of the Trust’s (or employing organisation’s) Investigation and Disciplinary policies. These should clarify the process, who is involved, your rights, time-frames, order of proceedings, appeals and so on. You need to be strong and to read the process, and to understand how the process will operate, so you are not later unwittingly tricked into doing or failing to do something which could later be used to support a case against you because you don’t know the process, for example failing at the time to challenge a recording of a hearing which you think is inaccurate or has an error in it.

3Writing a statement

Diary

The aim of an investigation should be to establish the facts and get to the truth of whatever complaint, incident or event is being investigated. The statement that you submit must be written carefully and truthfully, and stick to facts and known truths. If you don’t know something, don’t make up an answer, no matter how tempting – just say honestly that you don’t know.

If you are involved in a complaint or incident and you know that something has gone amiss, you need to make your own record of what happened as soon as possible: times, people, what was said, your thinking, and actions taken by you and others as soon as possible after the event. Stick truthfully to what YOU saw, heard, understood, and did.

Always ask your representative and at least one other objective and experienced person to read and comment on your statement. This should help identify omissions and any areas that are unclear and that need further work. Midwives Haven members are very happy, in total confidence, to read and comment on drafts.

Guidelines for statement-writing

There are some very good guidelines on the internet: below are those from the RCM, the RCN and UNISON.

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RCM Statement Writing Guidance

Staff stand briefing (pdf)
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RCN | Advice Guides

Statements: how to write them | Royal College of Nursing
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Unison Factsheet How to write a statement

Guidance on how to write a witness statement (pdf)

4Making sure you can access the information you need

One of the problems you might experience is getting access to the information you need – your own personal file, your appraisal records, patient records, email trails, off-duty rosters or anything else that may help you to help the investigators or the disciplinary process to establish the facts of what occurred.

You need to ask for access to key records (even if you have been suspended).
If you have resigned, it can be really difficult to access important records because your former employer will almost always use the excuse that you can’t have them because of data protection rules which cover patient information and information relating to your work colleagues.

If you need to access patient records (as is nearly always the case), then your representative needs to arrange this for you. You/the representative should write formally to your employer at an early stage to ask them to give you access to and where permitted, copies of any documents you require to write a statement or to submit in evidence to any disciplinary hearing. You should be able to peruse the records as long as you reasonably want and to make notes.

If you are told you cannot have access to see the full notes because of patient confidentiality you need to write in immediately to record that you have been denied access to the relevant records.

You should also be able to access your own personnel file and your appraisals records to ascertain what your prior training and disciplinary records are; and they can reveal whether your employer has offered you adequate support in the past. Your annual appraisal records often contain important evidence of updating, your competence, attitudes and performance. It is hard for an employer to find you “incompetent” or in need of “development” if the previous 5-years worth of appraisals carried out on behalf of that same employer attests to your diligence, competence, professional development, ability to work in a team etc., etc.

If you are suspended from work or have resigned, it can be difficult to access important emails. If you identify documents or other data that you think is part of the picture and especially if it is pertinent to your defence at a disciplinary or NMC hearing, then, if they are not volunteered, you may have to acquire them using one of the two formal requests described below.

Freedom of Information requests (FOIs) and Subject Access Requests (SARs)

You may want or need to make one or both of the above depending on what sort of information you want to access.

FOIs are used for getting data or information from PUBLIC bodies (that includes all NHS Trusts). The easiest way to do this is by the website What Do They Know?

FOIs cannot be used to obtain personal information or data that might breach another’s right to confidentiality. We have used FOIs to find out how many NMC referrals have been made by a particular Trust or how many drugs were unaccounted for from maternity ward drugs cabinets over specific months.

The organisation does not have to respond to requests that will take an excessive amount of time or personnel to obtain so you have to be specific about the relevance of what you want to know to your own circumstances and the time-frame relevant to the information.

SARs are used to request your personal data held by an organisation. You can, for example, request your personnel file, any emails about you, notes of a meeting about you and that sort of thing. The documents will usually be redacted to remove names and personal identities if other people are mentioned.

The scope of the sorts of documents that midwives have requested using SARs is very broad but email trails involving managers often feature in them. It is really only when you sit down and start preparing your case that you realise what it is you might need.

This link takes you to the Information Commissioner’s Office’s comprehensive guidance on making a SAR and we advise you read both the pages below.
Your right of access | ICO
Preparing and submitting your subject access request | ICO

5Resigning

You may, like many of the midwives we have supported, want to resign from your job. You may feel let down by your employer, the investigation may be a result of bullying or a blame culture, you may feel that the stress and anxiety is not worth it or other reasons to decide it is time to move on.

Think carefully before doing so. Consider the alternatives including seeking medical advice as to your fitness to continue in the workplace, reducing your hours, changing departments, going on a course or whatever. Leaving a post, however tempting and desirable, before or in the middle of an investigation, disciplinary, or action plan can result in your employer referring you to the NMC. We know of many instances where this has happened and your employer may use your resignation against you. You also will not be able to check on the integrity of the investigation or disciplinary process and the short-term gain of resignation then results in the longer-term pain of dealing with the NMC.

Please do talk to your advisors or contact Midwives Haven before you resign at any point. It may be that resignation could be the right step to take, but please talk it through first.

Other useful resources and links

Labour Research Department LRD 
The Labour Research Department is an independent research organisation which has been providing information for trade unionists for 100 years. Its website is packed with up-to-date information on employment law and you can search the free content using the search box at the top of the home page.

Dealing with disciplinary action at work – Citizens Advice

Disciplinary procedures and action against you at work – GOV.UK 

Make a claim to an employment tribunal – GOV.UK 

The Advisory Conciliation & Arbitration Service: Acas | Making working life better for everyone in Britain

Some solicitors offer free exploratory consultations about employees’ rights.
Wherever you are in the process – from pre-investigation right through to employment tribunal and or \NMC proceedings, , Midwives Haven can offer a listening ear and non-judgmental support.
ARM members can access support by filling in the form below:
[caldera_form id=”CF59586e63b589a”]

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