Lack of insight
Cathryn Watters
RGN, DipHe(Onc), Prince2, Director: NMCWatch: registrant care CIC Founder: Fit2practise
One of our members of NMCWatch received her outcome from her high court appeal last week. She attended the High Court in November last year supported by one of our group and her RCN barrister. She challenged the NMC outcome of a 6month suspension and won!!
When we heard the name of the judge we hoped it may be a good omen - Judge Alan Bates ( shares name with post office Alan but not one the same )
Judge Bates took his time to hand down his decision but it was worth the wait. he scrutinised the approach by both the NMC and the panel and was highly critical.
As well as showing the ongoing issue we have with the NMC approaching cases on the basis that the referral case is valid and all evidence sought must support this, once again they failed to consider the nurses' version of events, context of bullying and witnesses to show the witnesses were hostile. Under cross examination their accounts varied and conflicted those they had given previously in writing and each other as well as showing a desire to cause harm to the registrant rather than being concerned about patient safety issues.
The judge reminded the NMC once again that they are there to ensure those on the register are CURRENTLY fit to practice and not to be punitive for things that may or may not have occurred in the past stating:
" The purpose of the FtP regulatory regime is to protect the public safety and the reputation of the nursing profession not primarily to punish for failings that occurred in the past"
He reminded that panels have a duty to ensure they weigh up all the evidence ensuring witnesses are assessed for their "credibility and reliability" as well as whether their evidence "should cause her or his evidence to be viewed with caution or circumspection"
He criticised the panels decision making and lack of explanation as to how they came to the decision they did when finding facts proven, to say they preferred one version of events on the balance of probabilities is simply not good enough. He stated: "The applicant was entitled to know why her evidence on the relevant matter had not been relied upong by the panel, and such reasons as were given in that regards had to be rational and based on weighing up all legally relevant considerations" This is an aspect we see again and again with our members and it seems the NMC panels feel they don't need to give explanation of their risk assessments and such like, that their opinion is sufficient. This case shows that this approach simply isn't good enough when they have the power to stop a nurse working in their profession and taking their livelihood away from them. This is a factor that other appeal judge's have discussed over the last decade, but once again we see returning.
Another key aspect was the disregard of evidence that supported the registrant's version of events. The panel failed to be shown the employers independant investigation report, telling us: " was conducted by someone who was independant and impartial. In my view, it would have been helpful for the panel to have seen it" We frequently hear from those under investigation baffled as to why the NMC will not allow certain evidence to be put before the panel that may benefit their case. This is not a helpful approach as previous high court judges have pointed out, it is for the panel to have ALL the evidence infront of them so that they can make an informed decision. It is not in the ethos of transparency and equal justice if the NMC select evidence that will only support their case. Perhaps this is the key aspect that is wrong with the NMC's approach and needs urgent reform - we need a regulator that can be trusted to perform neutral investigations rather than one that pursues all cases and hopes that the registrant won't be able to challenge.
Finally Judge Bates paid reference to the impact this wrongful decision has had on both the registrant' safety and patients:
"It is a matter of regret that these matters have hung over the Appellant for so many years, and that patients (including terminally ill children in a hospice) have been unable to benefit from her care. The remedies I can grant her in these proceedings are limited to making an order as per the preceding paragraph. She also has the benefit of this public judgment, which she may show to any prospective employer.In their final attempt to control the narrative the NMC attempted to impact the application of costs. "
The case took many years to conclude and the final hearing was over an extraordinary 34 days spanning a period of one calendar year - we estimate for panel costs alone was ￡106,318 equivalent to 886 registrant’s annual fees!!
Judge Bates highlighted the issue faced by registrants wanting to appeal but having little resource to do so stating: 'The Appellant has been fortunate to have been supported by the Royal College of Nursing (“RCN”), which provided legal representation for her, both before the Panel and in this appeal. Given the number of charges that were brought against her, and the complexity and scale of the proceedings, it is realistic to wonder if she would have stood a chance of defending herself successfully without the RCN’s assistance. The RCN is funded by subscriptions paid by its members."
Yet the consequence is only to the registrant, her family and patients.
There is no compensation for a registrant even when winning at appeal. Costs can be awarded as they have been in this case, but they are purely to cover the costs of legal fees and nothing else. As the registrant was represented by the Royal College of Nursing these costs will go to the union and not to the nurse to help towards salary lost over the last 13+months of suspension.
In their last attempt to control the narrative the NMC even argued the awarding of the costs applied for. The RCN submitted an application for ￡7,453 which Judge Bates felt was "a surprisingly low sum, given the amount of work that has been done." "The total amount sought is ￡7,453, which includes the professional fees of Counsel for drafting the grounds of appeal and skeleton argument, and for representing the Appellant at the hearing before me."
Judge Bates felt this attempt by the NMC to reduce costs awarded was wrong, they claimed:
"for example, that: (a) only 1 hour total should be allowed for the RCN solicitor’s time in reviewing the Appellant’s skeleton argument drafted by Counsel and considering the Respondent’s skeleton argument; (b) no more than 6 hours, split between C and D grade fee-earners, should be allowed for producing the appeal bundle; and (c) the time spent on the authorities bundle should not have exceeded “thirty seconds” reviewing the index. "
Judge Bates respectfully stated that the submissions by the NMC were: "wholly unrealistic. Moreover, the amount claimed is manifestly less than a proportionate sum. In the circumstances, I see no reason why the Court should spend time taxing down the Appellant’s costs. I will therefore summarily assess the Appellant’s costs as being the full amount claimed."
If the NMC had won their case average costs claimed are usually between ￡9,000 & ￡12,000 whereas if a nurse or midwife is acting as a litigant in person he or she can only ￡19/hr purely for time spent on case preparation. Once again this shows that even at appeal the benefit is weighed on the NMC rather than the registrant.
We are most grateful to Judge Alan Bates for being so thorough and also highlighting so many key aspects that we see again and again in NMC cases. In the recent news article by Laura's local press the NMC have stated:
?“While we're unable to discuss individual cases, we can confirm we're aware of the High Court judgment, and as an organisation which is aiming to learn and improve, we will carefully consider the points the judge has made about our processes.”
Again this shows that until there is statute in place insisting that the NMC change their processes in light of judicial review there will be no impetus for the NMC legal teams to stop their punitive approach as they know full well that few registrants will fight back.
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If you want to read the full appeal it is below:
Laura Yalda Hindle v The Nursing and Midwifery Council
[2025] EWHC 373 (Admin)