Association of Radical Midwives

Midwives Haven

Support for midwives in times of trouble

You are not alone!

Referral to the Nursing & Midwifery Council (NMC)

Introduction

Being referred to the NMC is one of the most worrying and stressful things that can happen to a midwife and, unfortunately, the process is not a quick one. Once a referral has happened, the wheels of the NMC grind slowly and, whatever the final outcome, referral involves you in a considerable amount of paperwork, writing, and emailing/telephone calls for a period of at least 15 months but sometimes, even longer.

That being said there is a huge amount of support and knowledge to help you on this journey. Midwives Haven and a sister support group called NMCWatch have built up considerable experience of the NMC’s FtP process and the personnel involved and there is nearly always somebody who will try to answer a question, share a template, attend a meeting or whatever you need.
First of all, there are plenty of midwives out there setting off on the same journey as you. The NMC receives a midwifery referral approximately each working day of the week. Here are some figures to try to help put your referral in perspective…..
support

In 2019-20

227 midwives and 11 dually registered nurse/midwives were referred to The NMC. The number has been similar over recent years. See NMC Fitness to Practise annual reports at Fitness to practise annual report – The Nursing and Midwifery Council.
23 of those 227 midwives had Interim Orders imposed on them (13 had conditions of practice imposed and 10 were suspended from the register).

Outcomes of NMC Case Examinations (2019-20)

  • 20 midwives were referred for a FtP hearing
  • 2 midwives were given “advice”
  • 5 midwives were offered “undertakings”
  • 55 had no further action (NMC-speak for “no case to answer”)
    (The disparity in numbers is due to the time delay between referral and outcome of the investigation/case examiner stage.)

FtP hearings (2019-20)

28 midwives had FtP panel hearings, of whom:

  • 4 received no sanction (facts not proved or fitness to practise not found to be impaired).
  • 24 were found to have their fitness to practice impaired, of which
  • 3 received a caution
  • 7 had Conditions of Practice (CoP) imposed
  • 10 were suspended from the register
  • 4 were struck off the register

First Steps

If you have been referred to the NMC, you may feel you do not know where to turn or where to start so below are some ideas that may help

1Get some understanding of the FtP process

Read the NMC FtP pages especially the guide to the various stages: Understanding Fitness to Practise – The Nursing and Midwifery Council.
Each stage of the process has a section in the NMC’s Fitness to practise library where you can find out more detail: Fitness to practise library – The Nursing and Midwifery Council

2Link in to support networks and peer expertise

Please do contact Midwives Haven if you haven’t already. We will try to provide support from within the same part of the country (though not the same unit) as you.

Ask to join the private Facebook groups NMCWatch: Registrant Care and Midwives NMC Defence Research Group. Midwives Haven does not run a Facebook page as we took an early decision to join with NMCWatch and share expertise rather than set up a largely duplicated Facebook group.

NMCWatch: Registrant Care Facebook Group

NMCWatch
The group was established in 2017 by Cathryn Watters, an oncology nurse who managed to get her striking off overturned on appeal to the High Court and who has worked and campaigned ever since to help others referred to the NMC.

In this group you will find nurses and midwives who have been through FtP referrals or who, like you, are currently referred. There is usually someone who can answer your question or point you in the right direction. NMCWatch also has a repository of useful documents and templates, and runs online webinars.

Ask to join

Midwives NMC Defence Research Group Facebook Group

Midwives NMC Defence
This group was set up in 2019 to help independent midwives referred to the NMC (IMs are referred disproportionally) but also has a number of employed midwives in the group. It helps midwives find the research and evidence they need to defend themselves, especially with regard to supporting women to make autonomous decisions surrounding care in childbirth.
Ask to join

CiC Wellbeing

CiC WellbeingThere is also an independent confidential careline available, paid for by registrants fees through the NMC but run by CiC – Cicwellbeing.com to give support and practical help and advice to you during the FtP process.
“The careline counsellors are experienced working with sensitive and personal information. They can also signpost you towards specialist organisations to help with specific issues.”
You can contact the CiC Careline free on 0800 587 7396

3Keep a diary and acquire a couple of big arch-lever files and some Post-it notes

Being referred means that one day you may have to give evidence about what you did in connection with the event(s) leading to your being referred. So you have to remember as much as you can about what you did or did not do, the names of colleagues, dates and times and other material details about care you have given or which it was claimed you did not give and write it down as your confidential record.

If you haven’t already done so, start your own diary. You’ll need at least to record all communications, meetings and events – personnel, dates and times, and any verbal communication. You also need to record any meetings which you had prior to and which led to your being referred.

Diary
File all emails and letters carefully in date order (oldest at the front, most recent at the back), take screenshots of any texts and back them up to your personal computer; and you’ll least one hard copy print of each – mobile phones have a habit of going on the blink just when you want to retrieve something. In our experience, being able to produce evidence about the process and who said what and when can be important later on. Follow up telephone conversations with an email to confirm any agreements reached with the NMC and any disagreements about what has been said.

When you send an email, put a “delivery receipt” and a “read receipt” on it so that you know it has reached its destination and not been ignored. You should also save to drive delivery and read receipts for important emails you send. Mark anything confidential as “CONFIDENTIAL” in the subject line. These things can help you stay a little in charge of the time-frame and conduct of the process.

Make a note of all the documents you may need to address the allegations made against you and start collecting them together in a separate electronic file and a hard copy “evidence” ring binder again in strict date order oldest at the front. That can help you and your representative to identify gaps in the documentation which you still need to get hold of.

Unlike in internal disciplinary procedures there’s nothing to stop you trying to contact witnesses if you have their contact details and believe they can help your case; many may say they cannot help but sometimes colleagues may be willing to speak up for you, and sometimes patients may have complaints about matters of which you have been held responsible by the employer but the patient’s complaint was not directed at you.

Data Protection Act 2018, Schedule 2, Para 5

(3)The listed GDPR provisions do not apply to personal data where disclosure of the data—

  • (a)is necessary for the purpose of, or in connection with, legal proceedings (including prospective legal proceedings),
  • (b)is necessary for the purpose of obtaining legal advice, or
  • (c)is otherwise necessary for the purposes of establishing, exercising or defending legal rights, to the extent that the application of those provisions would prevent the controller from making the disclosure.
Also see:

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

It will aid you greatly if you are able to scan, photocopy and print documents (such copying for the purpose of legal proceedings [and whistleblowing] is expressly permitted) and the ownership of or access to a good printer can prove invaluable and reduce stress at key times.

4Getting legal representation (or not…)

If you were a full member at the time of an incident giving rise to the referral, your union will in most cases offer you legal advice and representation and usually through Thompson’s or a lawyer instructed by them.
Thompsons Trade Union Solicitors

Advice & Tips on legal representation

  • The main midwifery and nursing unions have contracts with Thompson’s to provide you with legal representation. However the terms of these contracts and rates of pay can mean that the lawyer chosen for you will have limited reading time to acquaint themselves with and to prepare your case and often leave the detailed reading in on matters until immediately before they are in contact with you. They will also have limited time for your case. It is therefore very important that you plan what you want to say to your lawyer during any phone call or meeting and use the time available to good effect.
  • You should provide your legal representatives with all relevant documents you have, or are asked for, as soon as you can, and make sure they are aware of other documents you don’t have but which they should be asking for from the NMC, or your employer (eg: copies of your personnel file, records covering treatment, etc.). They also need to know the details of any witnesses from whom statements are needed to help you prepare your answer to any referral.
  • An introductory narrative of your career and training to date and a detailed timeline and account of what has led up to your referral will help your lawyer understand the order and context of events. This is one of the first things we would suggest you write as it will prove useful in all contexts and help you anchor events, personnel and meetings in order.
  • If you have any problems or worries about your legal representation, do contact the union officer linked to your case. RCM officers in particular have very little to do with NMC cases once a Thompson’s appointed lawyer is involved and we have never seen anyone from the RCM at a NMC hearing. However the unions are under contractual obligation to provide you with legal representation and you have the right to complain if you are unhappy with your representation.
  • You should also, at the outset, check your house/contents insurance to see if legal cover is a benefit; it’s just possible you have cover which extends to regulatory proceedings (it’s more often of help in employment matters); if you do, you may want to investigate representation by one of the Insurer’s panel lawyers.
  • Make notes of your discussions and meetings with your lawyer and confirm important points by email. If you do not feel comfortable about advice which you are given you should record your concern in writing, especially where your concern is that the lawyer has not understood your position correctly. Should you subsequently want to make a complaint about a lawyer or how they conduct your case, evidence about your instructions and the outcome of discussions about them will be important.
  • If your representative is an advocate (barrister or solicitor) at a hearing the advocate has a discretion on how to present your case, and will not always follow your instructions, especially if the preparation is not very clear. Sometimes there are technical reasons why the advocate cannot follow instructions. So you need to be able to make clear if the advocate has simply failed to do what you have asked the advocate to do without a good reason.
A note of caution – unions ask registrants they are representing to sign to agree that they will only seek advice from the union or union-appointed lawyer. If they believe you to be seeking advice from anyone else, they reserve the right to cease to represent you. This means that peer support groups such as Midwives Haven cannot give you legal advice, though we can give you support and information. It also makes it difficult for you to seek a second legal opinion which can only be given by a legally qualified person.
Due to this, you are strongly advised to keep all other sources of advice under the radar and NOT to discuss them at all with a union representative or your lawyer. Likewise, we always introduce those of us who may accompany you to a meeting or hearing as a supporter.

The union stance above suggests that it is the union and not you who instructs the lawyer. This is incorrect – the lawyer is there to represent YOU and it is YOU who needs to instruct her or him. This means that after considering the legal advice you are given, either confirm you agree with it or, if you do not agree with it, that you make that clear and state clearly what you would prefer to happen. Follow any verbal discussion up with an email to confirm mutual understanding of the position. It is very important that you do not allow the process to take a course you are unhappy with or your instructions to be disregarded. You may end up disappointed about how your case was conducted yet have little comeback unless you can show that your instructions were disregarded.

Representing yourself

This is possible and some midwives have done this successfully, having dismissed their union representation. You are allowed to have a McKenzie Friend or pro bono legal adviser (if you can find one) to accompany you and assist you both at the NMC and in the High Court at any appeal.

You may find this Advice Now guide helpful – it is written for people representing themselves in the court system but a lot of it is completely relevant to self-representation at NMC hearings:
A survival guide to going to court when the other side has a lawyer and you don’t | Advicenow

5The NMC FtP Process

A step by step guide of fitness to practise – The Nursing and Midwifery Council

The FtP process proceeds through the following stages, though it may also end at any of them. You can familiarise yourself with the stages by reading the information on the NMC website linked above.

5.1. Screening

You will be assigned a NMC case officer at an early stage. More about case officers and their role can be found below.

5.1a. Interim Order Hearings

(if judged indicated by screening officer). Interim Order (IO) hearings are usually held quite quickly into the Screening stage – about 80% are held within 28 days of the referral being received so possibly three weeks after you receive notification of referral. About 10% of referred midwives have a IO imposed.

Do attend the hearing if you possibly can – non-attendance or non-engagement at any stage invariably lead to poorer outcomes. The IO panel will make a decision, on the basis of the seriousness of the allegations without testing the truth of the facts of the case, whether no order is necessary, whether Conditions of Practice [CoP] should be imposed (e.g. not undertake any medicine administration, not supervise students, not take charge of a ward or similar), or whether you should be suspended from the register (up to a maximum 18 months before the NMC has to apply for an extension).

As the facts are not being examined at this stage if you can, you should first and briefly, without going into details, deny any charge which can properly be denied.

You will need to produce evidence or give testimony that you are fit to practise (testimonials, managerial statement, evidence of relevant and, where possible, up to date training and practice etc.) to try to avoid suspension. The NMC give the following guidance regarding testimonials:

“Testimonials from a manager or supervisor should carry more weight than those from friends or colleagues. References or testimonials should be signed by the author, dated, on letter-headed paper, and include contact details so we are able to verify the contents of the reference or testimonial.

It should be clear that the author is aware of the full details of the allegations against the nurse, midwife or nursing associate, and of the nurse, midwife or nursing associate’s acceptance of the charges.

The content of the reference or testimonial should be relevant to the issues being considered by the decision maker.

Little, if any, weight should be placed on character references and testimonials that do not provide informed comment on the nurse, midwife or nursing associate’s clinical practice, skills or competence.”

A reflective piece is usually necessary (more about reflective pieces can be found here). However you may not even know what you are accused of so trying to ascertain that is important as you cannot reflect on the unknown! Some registrants have used a Subject Access Request to find out from the NMC what the allegations against them are.

CoP are difficult if you are not in a job, as they can make it hard to get one; so you will need to try to make sure that they are achievable (specific, measurable, achievable, and relevant) and to get the NMC to take that into account. You should always get your representative to argue or ask for CoP if it looks inevitable that some IO will be made.

Whilst there is no appeal against an IO, there is the right to ask the High Court to undertake a statutory review of the order and the judge can vary or revoke it (see the Nursing & Midwifery Order 2001).

5.2. Investigation

see NMC website for details.

5.3. Case Examiner Decision

see NMC website for details.

5.3a. Undertakings, warning or advice

(if judged appropriate by CE) – see NMC website for details.

5.4. Meeting or Hearing

(you have the right to a hearing) This stage is discussed in detail later.

5.5. Appeal to High Court or Court of Session

More information about this can be found below.

6How long does it all take?

The NMC aims to complete 80% of cases within 15 months and, in 2019 – 20, it met this target. However many cases are rejected at the screening stage or found to be “no case to answer” and conclude at Case Examiner stage. As only 10% of cases proceed to a full hearing, this means that a small but significant number of cases take longer to complete the Case examiner stage than 15 months without ever proceeding to a FtP hearing. In our experience it generally takes 15 months for a case to reach the conclusion of the Case Examiner stage.

At the time of writing (2021), the pandemic has caused a backlog of cases and it is unclear when these will be processed and how soon the 80% target will be reached again.
If your case goes to a full hearing, this will usually take around a year to schedule and prepare from the end of the Case Examiner stage. If you are subject to an IO, then the NMC will seek permission to extend it at the High Court to cover the period of the hearing. This is an opportunity for you to challenge it before a judge and seek to have it reviewed and lifted, varied, or shortened. High Court judges are increasingly showing interest in these cases and we would advise you, with your legal representative if you have one, to consider appearing and arguing against the NMC’s case especially if an extension of an interim Order is sought but no substantive hearing date has been fixed.

Once a substantive hearing has taken place If you then appeal the outcome of a FtP hearing (see the section on Appeals), you can expect this to be heard about 4 to 6 months later.

It is not uncommon for the core incidents of interest to the NMC being considered at hearings about 3 to up to 5 years after they happened.

7Case Officers

You will be assigned a case officer. Make a note of the case officer’s name, number and email. Many union representatives ask that you do not make any contact with the NMC but many registrants find that if they do not chase their case officers regarding progress, the process stalls or the NMC will take advantage of a perceived failure of the registrant to participate (and you have a professional duty to participate – NMC Code sections 23 and 24). If your union rep does not want you to make contact with the NMC except through them or your Thompson’s lawyer, then ask them to ensure they copy you simultaneously into ALL correspondence and that a regular update (see next para) is received. Chase up any tardiness – many registrants feel left in the dark as to what is happening for long periods of time and this is not helpful to you.
Case officers should not be changed during your FtP process unless they leave, change jobs or go on maternity leave. They should update you with your case’s progress every 6 weeks and, if they do not, ask them to (through your representative if that is the agreement). If there is still no regular updating, make a complaint, or ask your representative to make a complaint to: complaints@nmc-uk.org
Send a copy of any complaint to the PSA (see more about this organisation below 11).

Many referred registrants do maintain some limited personal communication with their case officer as it simply becomes too complicated and slow to keep going through union representatives. If you do decide to keep in contact with your own case officer, be circumspect and careful about what you say – case officers can be supportive but will not help you to get a fair presentation of your case – they are employees of the NMC FtP Directorate in an adversarial process. Copy your union representative into any email or letter you send or get.

8Writing a reflective piece

There is considerable guidance on both the NMC’s website and NMCWatch’s Facebook page on writing a reflective piece.
What the NMC are looking for and what they mention time and time again are INSIGHT and REMEDIATION.

Many registrants use Gibb’s reflective cycle as the basis for their reflection and find that helpful – it seems to go down quite well with the NMC. But there is no such things as a one version fits all reflection – each reflection has to reflect on its registrant’s circumstances and the facts of that case.

Our experience shows that it is sensible not to let the NMC have a copy of your reflective piece until other registrants with experience and your union/legal representatives have read and commented on it. Experienced members of Midwives Haven and/or NMCWatch will be available to review preparation of and to read over your reflection with you if you want.

A reflective piece can be useful evidence of your insight and remediation at Interim Order hearings, Case examiners’ review and at a FtP meeting or hearing. Even if you are disputing the facts of a case, it is still possible to write a reflective piece that shows insight and even, to a degree, remediation but do ask your legal representative for advice.

writing
Essential reading: Has the concern been remedied? – The Nursing and Midwifery Council (The NMC guidance for panellists and registrants that shows what the NMC is looking for)
Recommended reading: Fitness to Practise – Reflection, Insight & Remediation | Stephen McCaffrey Healthcare Law and Regulation Defence Barrister

9Revalidation

The FtP process takes a minimum of 15 months and, if your case proceeds to a hearing, then it will probably (2021) take 2 to 3 years. This means that at some point you will need to revalidate. You can ask for more time but, in our experience, you should revalidate in the usual way if at all possible.
Make sure you do your best to fulfil and to log all your hours of midwifery-relevant experience and do keep abreast of your Continuing Professional Development [CPD]. Maintain your portfolio of practice and study, log any reading (including any research and reflection relating to your case), and make use of the many on-line CPD courses such as on RCM i-Learn, The Perinatal Institute, Open Learn and Future Learn.

Make sure you download, print off and save all certificates as soon as you have completed each course (or stage of a course). RCM i-Learn, for example, dates the certificate with the date you print it out and FtP panels may think, despite being told otherwise, that you have simply swotted up in the couple of days before a hearing. Being able to produce evidence that you are regularly and continuously staying up-to-date may be very important at Interim Order or Substantive Order hearings if you are seeking to get a suspension lifted or to argue against the imposition of one.

The below is the guidance to FtP panel members about what to consider regarding CPD during the FtP process:
“Evidence of training courses should be carefully considered. Decision makers should look at the duration of the course and the amount of time or focus placed on topics which address the relevant concerns. Courses with a practical element and formal assessment (with results available), can carry more weight than courses completed online or those without any means for the nurse, midwife or nursing associate to demonstrate understanding.”

10Fitness to practise meetings and hearings

There is a great deal of information about FtP meetings and hearings at Fitness to practise library – The Nursing and Midwifery Council, required reading for anyone who is invited to one. In particular you should understand what the panel is looking at in terms of malpractice, misconduct, impairment, dishonesty, likelihood of repetition, public safety interest, remediation and so on. You will hear these terms time and time again and it is these that are always at the heart of a case – are you competent? Have you breached the Code and misconducted yourself? Is your practice impaired currently? Are you dishonest? Is the public at risk? Are you able to remediate any failing? Have you brought your profession into disrepute? These questions are really what any FtP hearing is about.

The NMC’s case presenters and legal team are paid to present the NMC’s case to persuade the Panel that you lack any one or more of competence, commitment, integrity, ability to communicate and honesty; and sometimes to withhold from or to undermine before the Panel the good aspects of your practice. Always remember – the picture of you that they paint for the Panel is NOT you. Do not let the clever arguments of young lawyers make you lose sight of the competent, caring, honest person you are.

If the outcome of the Case Examiner review is to proceed to a full FtP hearing (about 10% of referrals) then please do contact support@midwifery.org.uk and we will try to put you in touch with a midwife who has been through the FtP process before you.

If you are considering attending a hearing (to get familiar with the venue, the people, the process etc.), then we can let you know when we will next be attending a midwifery hearing and meet you there or en route. That way you can attend anonymously in supportive company, get to talk to the midwife whose hearing it is, and meet some midwives who attend midwifery hearings when they can to offer support and to make sure the NMC cannot hide behind closed doors. Even during the current C19 pandemic, you can still request to attend on-line hearings using the NMC’s preferred platform GoToMeeting.

Our advice would always be to be prepared to attend any meeting that you can. Also to invite friends and family to accompany you. Whilst you may want to do neither, our experience in MH and the experience of others such as NMCWatch has shown us that your engagement with the process and having the support and companionship of others are essential in terms of trying to get the best outcome (even if not succeeding), for your health and well-being. Registrants who do not attend, invariably report regret at not doing so, feeling they have not given themselves the opportunity to state their case and have, instead, given power to the NMC.

Hearings are usually scheduled for 3, 5, or 7 days but can sometimes be longer. Once you have the date, you may like to create a private space on social media to organise your friends and supporters so they can schedule attendance and where you can give feedback on what is going on during the hearing. This has proved effective in the past – you can let people know scheduled start times for each day, whether there is a half day or full day adjournment, where to meet, what the plans for lunch are, and so on.

Whilst hearings may be commonly scheduled for, say, 5 or 7 days, you may only be in the hearing for part of that time. There can be adjournments and delays to sessions starting for a variety of reasons, and time can be spent either in the Registrants’ Room or hanging around in the vicinity of the NMC offices. Taking something to read, having company, taking a pack of cards, having your laptop and phone charger with you are all ways of passing the hours spent NOT in your hearing or with your legal team.

10.1. Bundles and pre-hearing meetings

Bundles are the sets of evidential documents submitted by both sides in a case. As you gather your own evidence, – testimonials, CPD portfolio, health records, email trails, appraisal history, witness statements (when you can get them), or whatever is appropriate or necessary in your case – the NMC will also be preparing a bundle. The NMC bundle will usually contain notes from any Trust investigation, patient records, drug charts, CTG read-outs and so on. Eventually these sets of documents will be collated, sent to the panel, yourself, and all lawyers involved. A complete bundle usually runs to many hundreds of pages and can be unwieldy. Large, strong arch lever files are a must!

It’s never too soon to start collecting documents that will form your bundle. Whilst there are many delays in the FtP process, notice of when events do move is short and you do not want to be scrambling to get hold of evidence at the last moment.

IMPORTANT – you cannot rely on the NMC to produce any document which will show you in a good light, or show that your shortcoming(s) was/were due to the acts or omissions of someone else. That’s not what their legal team is paid to do.

It is very important that you ensure all documents which could be relevant to your case are notified to and obtained by your legal team or, if you do not have one, the existence of these documents are identified and notified in writing to the NMC and a request made for the NMC to obtain them for inclusion in the bundle.
If you don’t ask, and sometimes, even if you do, the NMC will only plan to produce documents which are useful for their case and not those which are useful to yours. For example, there may be missing sections of patient records or incomplete email trails.

Currently the NMC’s legal teams and case presenters do not consider that they owe the Registrant any duty to put documents which are adverse to the NMC’s case before a Panel. They regard it as the responsibility of the Registrant and the Registrant’s legal advisers (if the Registrant has one); and if the Registrant cannot get hold of the document their position is that’s not the NMC’s responsibility. The only way you can try to protect yourself against this happening is to leave a trail of requests asking for documents which you yourself cannot get … e.g. complete patient notes.

The NMC tends to use EGRESS for sharing bundles and will send you a password to access. If you have problems with this system, you will not be the first. However the password tends to stay the same throughout the whole process so once you are in, it tends to work okay.

One of the ways you can make sure that you are satisfied that the bundle is complete and agreed between both parties is by having a pre-hearing meeting. You have the right to a pre-hearing meeting between you, your lawyer and the NMC team and you can identify anything you are unhappy with and ask for it to be addressed BEFORE the hearing.

The NMC have recently committed to enabling pre-hearing meetings for registrants and if one is not proving easy to arrange, an urgent email should be sent by your legal representatives to Clare Strickland, Deputy Director of FTP at the NMC [clare.strickland@nmc-uk.org] who has asked to be informed of any difficulty in this regard.

10.2. Support at hearings

Try to organise a schedule of supporters to attend your hearing (whether held in person or, during the pandemic, online). Friends, colleagues, family – try to rope everyone in for at least a day each. Panels and NMC lawyers tend to behave better towards you if they are being watched. It is also good for you to have company during the many adjournments. If you have gaps in your support schedule, there are many members of NMCWatch and Midwives Haven who try to attend midwifery hearings whenever they can. Let us know when your hearing is and we will organise some friendly support – regardless of the allegations against you. We aim to support and never to judge.

The hearings (apart from confidential bits such as parts relating to your health etc.) are open to the public and student nurses and midwives on Professional Midwifery advocate courses are often present. Anyone can access a hearing at any time it is in public session and the reception staff at the NMC hearing suite should facilitate this. Any difficulty experienced by your supporters is counter to the principles of Open Justice and should be complained about immediately to complaints@nmc-uk.org.

One of the best ways of organising a schedule of support and also notifying your supporters of adjournments, lunch breaks, early finishes etc. is to create a WhatsApp or Facebook group. The Facebook Group Midwives NMC Defence Research Group (see 2.2 above) is a means of accessing quick help during a hearing e.g. research references or what a NICE guideline says etc. to counteract something the NMC says, so please consider asking to join this group before your hearing. If other members know you are in a hearing, they can check on posts regularly throughout the day.

10.3. The Balance of Probabilities and your presentation

One of the important differences between criminal proceedings and civil proceedings such as NMC hearings is that the facts only have to be proven (by the NMC) on a simple balance of probabilities. That is to say, that the panel can find an allegation proven if they are only 50.1% inclined to believe the NMC case.

You and your representatives have to consider how to present a convincing presentation and that includes how you come across at the hearing. Being clear and consistent in your answers, taking time to consider your response to any question, and giving your evidence truthfully, even if it is discomfiting, are all important to counteract the very clear and forceful arguments put forward by the NMC case presenter.

Panels often confuse lack of clarity that can sometimes arise from you being nervous or feeling unsupported as you being “confused” or “unconvincing” (panel descriptions, not ours) and contrast that unfavourably with the NMC’s witnesses, especially Trust managers who have extensive experience of disciplinary procedures. Panels also are reluctant to conclude that a patient’s evidence is either unreliable or malicious. So you need to feel comfortable with yourself and speak as calmly and clearly as you can.

This is where good support, breathing and relaxation exercises, being satisfied with your appearance, good preparation, and practising your answers can help. If you feel you have come across poorly at one session, seek permission to revisit a point or answer. You and your vocation are important and the reality is that, if your case goes to a hearing, you will be fighting to protect your right to practise.

10.4. Witnesses

The NMC will invariably call witnesses but not always the witnesses you would expect to be called. They can include managers, women you have looked after, colleagues, students; but they will almost always avoid calling witnesses who are likely to support your version of events.

So you should also consider calling witnesses to appear on your behalf, including expert witnesses. If necessary they can appear by video link (the NMC has good facilities for this and makes frequent use of them). You are responsible for any expenses incurred but your union should agree to meet these if your legal representative agrees that their testimony and cross examination would be of value. However many midwifery experts give their time freely for midwives before the NMC and cost should not deter you from calling a witness on your behalf.

In our experience, registrants do not call witnesses often enough. For example, you may face an allegation about your management of a shoulder dystocia or the third stage and an expert midwife can testify that your management was not only acceptable practice but professionally supported by evidence; and not the mismanagement the NMC may try to argue it was. Or a colleague may be prepared to appear under oath for you and put a version of facts which is counter to the charges being brought against you; or attest to your skill and communication skills.

10.5. Charges of Dishonesty

You may notice that some of the allegations made against you by the NMC involve allegations of “dishonesty”. It has been noted that the NMC can be keen on trying to present errors in record-keeping, for example, as dishonest attempts to mislead colleagues. This is a problem as a finding of dishonesty by a panel tends to lead them to impose a more severe sanction – usually a strike off as a finding of dishonesty almost invariably leads to a finding of bringing the profession into disrepute, which likewise is almost invariably regarded as incapable of remediation. So these charges require careful thought, preparation and presentation. But the simple fact is that charges of omitting to record can be rendered as failing to give clinical treatment, or poor record keeping can lead to a charge of falsifying records or concealing what has happened during clinical practice; and that will usually be accompanied by parallel charges of dishonesty.

The NMC will rely on the case of Ivey v Genting Casinos which can be found here: Ivey v Genting Casinos (UK) Ltd (t/a Crockfords) [2017] UKSC 67 (25 October 2017) (bailii.org). You should refer to Paragraphs 74 and 76 in Lord Hoffman’s judgment – the test is taken from Royal Brunei Airlines etc v Tan (Case Analysis of Royal Brunei Airlines v Tan, an important Equity and Trusts law case on breach of trust and liability for dishonest assistance. (uklawtutors.com).

Ivey v Genting Casinos bars the defence of not intending to be dishonest and states that a dishonest act is one that an ordinary member of the public (in this case the panellists) would consider to be dishonest.

This is a complex area of law but these are the cases that you will hear cited along with those of two nurses who went to the Court of Appeal: Watters v NMC 2017 and Lusinga v NMC 2017: Differentiating Dishonesty – 2 Hare Court | London Barristers Chambers

You do not have the protections of criminal law procedure so if you do find yourself being charged unfairly with dishonesty it is doubly important to make sure that you get material witnesses and documentary evidence which will help you to prove your innocence before the Panel

10.6. The Hierarchy of Sanctions

Sanctions we can impose – The Nursing and Midwifery Council (nmc.org.uk)

The possible outcomes to a FtP hearing are no sanction, a Caution, Conditions of Practice [CoP], Suspension from the Register, and Striking Off the Register, in that order. Your legal representative should always argue for the least sanction compatible with public safety.

We have seen legal representatives who are reluctant to ask for a caution but choose to argue for CoP instead. Beware of this – many registrants experience a great deal of difficulty fulfilling CoP (especially if they are not in a midwifery post) and the process can take many years. A Caution should be time-limited and easier to obtain discharge from. Discuss this carefully with your representative.

10.7. Guide to Stratford

The majority of hearings, both Interim Order Hearings, Meetings and Substantive Hearings, are held in the NMC hearings suite at Stratford in east London. Hearings are also held in Cardiff, Edinburgh and Belfast. You can request a hearing in the offices nearest you regardless of country of residence or work.

A downloadable guide to the NMC Stratford offices and Stratford itself, with travel, hotel and eating suggestions can be downloaded here.

10.8. Appeal against FtP outcome

You can appeal to the Administrative Court of the High Court of Justice (in England and Wales) or Court of Session (in Scotland – although you first need permission to do so in Scotland) against a FTP process or outcome within 28 days of being sent the Panel’s decision. Your union support an appeal if they think there is a greater than 50% chance of winning and on the recommendation of your legal representative. But you can appeal yourself and even conduct the appeal yourself (litigant-in-person). Midwives have done this successfully and the High Court has helpful information for litigants-in-person.

If your hearing ends near Christmas or another holiday period, ask your representative at the end of the hearing to formally request an extension to the 28 days.

In England and Wales, what you need to do in this time is complete High Court forms and put forward in a succinct form ALL the grounds for your appeal and a précis of the reasons why the Panel has erred (made a mistake) in your notice of appeal. There’s a different regime in Scotland but the clerks to the Court of Session can give a guide. What you need to do is to get on the relevant Court’s website and hunt down the rules concerning appeals, which tell you what is required to be submitted and in what format.

See Article 38 Nursing & Midwifery Order 2001 – https://www.legislation.gov.uk/uksi/2002/253/article/38/made
In England & Wales see Civil Procedure Rules – Appeals – Part 52 and Practice direction 52D – Statutory Appeals 52D
https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part52/practice-direction-52d-statutory-appeals-and-appeals-subject-to-special-provision

In Scotland see: https://www.scotcourts.gov.uk/docs/default-source/rules-and-practice/rules-of-court/court-of-session/chap41.pdf?sfvrsn=20

The actual hearing will be scheduled for 3 to 4 months later and you will have more time to prepare your “skeleton argument” and construct your bundle.

11The Professional Standards Authority (PSA)

Regulators In Health & Social Care | Professional Standards Authority. Professional Standards AuthorityThe PSA regulates and inspects the ten health and social care regulatory bodies, such as the NMC, GMC, General Dental Council, etc. on behalf of the UK Government. It publishes reports on the bodies it regulates and can also review FtP outcomes e.g. Authority reaches decision in Lockett case.

The PSA has been critical of the NMC in recent years, and Midwives Haven and NMCWatch have regular correspondence and occasional meetings with them to discuss shortcomings in the NMC FtP process.

Complain about any deviation from the expected level of process to complaints@nmc-uk.org first but, if it is not addressed or inadequately addressed or repeated, complain to the PSA.
E-mail David Martin at concerns@professionalstandards.org.uk with specific examples.

The PSA will look at the following complaints about NMC FtP processes:

  • data protection breaches
  • loss of documentation
  • cases taking longer than 15 months to conclude
  • poor communication from case presenters (e.g. bundle agreement)
  • changing of original allegations to “enhance” cases
  • non compliance of 6-weekly updates to registrants in case progression and breach of Standard 7 (supporting registrants)

Issues and problems brought to their attention inform the next round of the review process so writing to them is worthwhile. If you copy support@midwifery.org.uk into any such complaint to the PSA, we will also reinforce it at a meeting with them afterwards.

Trauma Resolution Therapy

for midwives

read more

Pin It on Pinterest

Share This