An independent report commissioned by the Nursing and Midwifery Council (‘NMC’) has been published last week (23 October 2019). The independent audit, undertaken by consultancy firm Verita, found that there were failings in the way that the NMC handled a fitness to practise investigation arising out of the tragic events which became commonly referred to as the ‘Morecambe Bay maternity scandal’.

The Morecambe Bay investigation was an independent investigation set up by the Department of Health to review a number of deaths and serious clinical failings in the care of mothers and new-born babies at Furness General Hospital between 2004 and 2013. Grave concerns were found about the integrity and clinical competence of the midwifery unit, which also prompted the NMC, regulatory body of nurses and midwifes in the United Kingdom, to open a total of 64 cases against 30 individuals to determine whether they were fit to practise. In 2018, the Professional Standards Authority (‘PSA’), who oversees nine of the UK’s healthcare regulatory bodies, undertook a ‘Lessons Learned Review’ of the way that the NMC handled the fitness to practise investigations. The PSA criticised the NMC in a number of areas including poor audit trails, poor communication with complainants and long delays in the process. One of the areas of criticism focused on the NMC’s handling of a document referred to as ‘the Chronology’, which is the main focus of Verita’s independent report.

The Chronology was a document written by Mr A, the father of Baby A. Baby A sadly died at Furness General Hospital in November 2008. Five days after Baby A’s death, Mr A wrote the Chronology of events which included that he and his wife, Mrs A, had told a midwife two days before Baby A was born that Mrs A was feeling unwell. As part of the fitness to practise investigation, he provided the Chronology to the NMC’s instructed external solicitors who failed to include the exhibit with Mr A’s signed witness statement when returning the case file to the NMC. Unfortunately, neither the solicitor firm nor the NMC noticed that the exhibit was missing. When instructed Counsel for the NMC later enquired about the missing Chronology, no response was found to have been provided by the NMC. At the fitness to practise hearing, Mr A gave evidence to the effect that he and Mrs A had brought Mrs A’s feelings of unwellness to the attention of the midwife prior to Baby A’s birth. Counsel for one of the midwives subsequently made submissions that Mr A’s recollection was unreliable because there was no evidence that Mrs A feeling unwell had been mentioned prior to the inquest which took place in 2011. As a result, Mr and Mrs A were described as ‘unreliable’ witnesses in some of the press coverage of the hearing which, understandably, caused considerable distress to them at a difficult time.

Mr A contacted the NMC lawyer the next day, whilst the hearing was still ongoing, sending a further copy of his Chronology and asking for confirmation as to whether the NMC already had a copy. He stated that the Chronology ‘clearly details the conversations we had with staff’ and asked for urgent confirmation that the Panel had been made aware of its existence. The NMC lawyer considered the Chronology and, for various reasons, determined not to draw it to the attention of the Panel at that stage of the proceedings. The NMC were also asked to clarify the situation regarding the Chronology on a number of further occasions by Mr A, the PSA and, as a result of the criticisms raised by the PSA’s Lessons Learned Review, the Secretary of State for Health.

Verita’s report describes how internal miscommunication errors and relying on incorrect assumptions led to the NMC confirming that they had received the Chronology prior to the hearing, considered whether to include it as part of the documentation relied upon at the hearing and determined that it would not be included as it was of limited probative value. The audit found that this position, which was repeated by the NMC to Mr A, the PSA and the Secretary of State for Health, was inaccurate as the NMC had not received the Chronology nor considered it prior to the hearing. The report also commented that ‘the NMC did not care for Mr and Mrs A as it should have, but rather had a narrow focus on process’. One of the recommendations set out in the report was that the NMC should make it a priority to ensure that it treats families and patients with honesty, openness and respect.

Commenting upon the report, Andrea Sutcliffe, the NMC’s current Chief Executive and Registrar, apologised for the NMC’s actions, stating ‘This investigation highlights a number of failings at the NMC at that time.We did not properly understand the significance of this important piece of evidence, in particular to [Mr A] and his family, and we did not put it before the panel when we should have done. This reflected a culture at the NMC at that time that prioritised process over people. When concerns were raised with us about our approach, we acted defensively and dismissed those concerns. That is frankly unacceptable.’ Verita’s report acknowledges that the NMC has already made significant changes to address the issues, stating ‘In conducting this audit, we did not generally witness the issues in communication and culture that underpin many of the historical failings described in this report.We believe that this is positive, as it is tangible evidence that lessons have been learned.

The report serves as a significant reminder for regulators of the importance of maintaining the confidence of the public and the profession. Appropriate reflection and demonstrating insight when things go wrong plays a huge part in the regulation of health and social care professionals to the extent that, arguably, leading by example is paramount for regulators. In contrast, acting defensively and overtly process driven is likely to damage confidence and trust amongst the public and regulated individuals alike. Readers are likely to recall that the GMC also faced a self-acknowledged loss of trust amongst doctors last year after lodging its much-publicised appeal against the 12 month suspension of Dr Bawa-Garba on the grounds of undue lenience. The GMC later apologised for the impact upon the profession and provided reassurance that it had reflected on what it could do to address and rebuild trust and confidence, which would include incorporating human factors training into the training of Case Examiners and medical experts used as part of the process. It is very positive that both regulators have recognised the importance of individual circumstances and have committed to promoting this as a key consideration as part of the fitness to practise process. This will, of course, require a careful and sensitive balancing process in order to ensure that regulators are still undertaking statutory functions to a satisfactory standard.