Analysis

Does new NMC rule protect reputations or is it a ‘mockery of transparency’?

Allegations against nurses and midwives will no longer be available for public scrutiny ahead of disciplinary hearings, the Nursing and Midwifery Council has announced.

Allegations against nurses and midwives will no longer be available for public scrutiny ahead of disciplinary hearings, the Nursing and Midwifery Council (NMC) has announced.


Ebola nurse Pauline Cafferkey arriving for her NMC hearing last month. Picture: PA

Previously, details of draft charges against registrants were published on the regulator’s website 14 days before the start of a hearing.

But under the change introduced at the end of September, only the headline charge – such as whether the case is about misconduct or lack of competence – will be published 5 days ahead of a hearing. Full charges will be read out at the start of the hearing, and will then be circulated only on request.

Mixed response

Reaction to the decision has been mixed: unions are generally supportive of the move, but journalists claim the changes ‘make a mockery of the council’s stated aim of transparency’ and serve no practical purpose.

10%

The increase in the number of referrals to the NMC in 2014-15 compared with previous year

(Source: NMC)

The NMC says that while there has been no formal consultation about the changes, it made the decision following legal advice, careful consideration of suggestions from the Information Commissioner’s Office, a review of other regulators’ processes, and feedback from stakeholders.

An NMC spokesperson says: ‘This change will help to ensure fairness to all parties because charges at pre-hearing stage may be subject to alteration.’

Ebola case

The new approach comes in the wake of the high-profile NMC case involving Ebola nurse Pauline Cafferkey, who was cleared of professional misconduct last month.

The regulator was criticised after a draft charge of dishonesty was published on the NMC website ahead of Ms Cafferkey’s hearing but was dropped when proceedings began.

NMC chief executive Jackie Smith told an NMC council meeting on 28 September: ‘There is a suggestion that this new NMC rule change is in response to the Pauline Cafferkey hearing, but that is not the case.

‘It is something our fitness to practise service had been considering for some time.’

Negative effect

RCN senior legal officer Roz Hooper says the former practice of publishing draft allegations was potentially damaging to nurses’ reputations.

‘We understand why the NMC work has to be open and transparent, but our experience is that, in some cases, the charges that have gone up on the website have not been reflective of the case,’ she says.

‘These charges are picked up by the press and can go into the registrant’s local paper and sound pretty awful, and sometimes the charges are changed at the start of the hearing. It can damage reputations.’

79%

The proportion of fitness to practise cases concluded within 15 months of being opened

(Source: NMC)

Unite lead professional officer Dave Munday says: ‘There should rightly be a debate about this issue, but we know that for members it is exceptionally stressful to be referred to the NMC and sometimes cases are not upheld.

‘The NMC is there to protect the public, but this decision must be weighed against what is most appropriate.’

Director of news agency Central News Guy Toyn sent a strongly worded letter to the NMC, signed by representatives from the Guardian, BBC, The Times and the Press Association, urging the regulator to reverse its decision.

Common practice

Other regulators publish details of hearings before they take place. The Medical Practitioners Tribunal Service website publishes a short but fairly detailed summary of allegations being made against a doctor about a month before a hearing. The full allegation is made available on request when the hearing formally opens and the doctor has had an opportunity to respond.

The Health and Care Professions Council, which comprises registrants such as social workers and occupational therapists, lists charges and a short summary of the allegations a month before the date of a hearing.

Details of NMC hearings were published online 14 days before they were due to begin compared with 5 days under the new system

(Source: NMC)

The General Teaching Council for Scotland (GTCS) told Nursing Standard that it is taking advice regarding the implications, if any, of the NMC’s change of practice. A GTCS spokesperson says: ‘We aspire to be transparent and open. The principle of public hearings is central to this aspiration.’

The GTCS has a practice statement that quotes Article 10 of the European Convention on Human Rights, which sets out the right of freedom of expression and the principle of open justice, meaning that legal proceedings should be open to the public.

Striking a balance

Media and information law expert and member of Matrix Chambers Hugh Tomlinson QC says: ‘The issue involves a difficult exercise in balancing the right of the public to know about misconduct hearings with the privacy and data protection rights of individuals facing disciplinary charges. 

‘The Article 10 rights of the press and the public must be balanced against the Article 8 rights of the individual. The decision of the NMC not to publish details of charges in advance of the hearing is one they are entitled to make and is unlikely to be found to be a breach of Article 10.’

‘Guilty before the hearing even started’

Nurse consultant Sharon Mason supports nurses who are experiencing difficulties at work, including going through disciplinary proceedings with the NMC. She faced a conduct and competence hearing herself; the council found in her favour and she was able to return to practice with the support of the RCN.

‘When I went through the process I remember feeling really tentative about looking at the details online and I had to brace myself.

‘Although I welcome the NMC’s latest decision in some ways, I feel as though they should either put the details online as they are now or nothing at all before the start of the hearing, because people might make up their own stories as to what has happened.

‘The part that affected me most was being treated as though I was guilty before the hearing had even started.’

Former nurse Jemima Reynolds set up a private online support group called You Are Not Your Mistake, for nurses who are undergoing disciplinary processes.

She says: ‘People make mistakes and to hang someone out to dry in public is abhorrent; they are innocent until proven guilty.

‘Publishing details before a hearing breeds voyeurism. I have been on shift in the past when other nurses have decided to get the NMC list up and make comments. These are fellow colleagues and we are all human.

‘I don’t think there should be any details published at all by the NMC until after a case finishes.’

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