Newsflash Professional Discipline 15th Nov 2019

Now who is lacking insight?

Independent report into NMC’s handling of Morecambe Bay cases finds significant failings

At the end of October 2019 Verita published its “Independent audit to review the NMC’s handling of documentation relating to midwives at Furness General Hospital”. The audit exposes a series of record keeping failures, as well as a lack of candour in communication between the NMC and external agencies and families.

Background

The Morecambe Bay Investigation (the Kirkup Report) was an inquiry into the deaths of mothers and babies at Furness General Hospital midwifery unit between 2004 and 2012. It found ten stillbirths, six neonatal deaths, and three maternal deaths were part of a pattern of failures in care at every level within the unit. There was an inability to confront the endemic poor practice that linked the incidents, and a defensive approach amongst the midwifery team. This pattern of failures was not identified or acted on for several years.

The NMC first received referrals about midwives at Furness Hospital in 2009. By 2014 the NMC had received a total of 64 complaints. The last fitness to practise hearing arising from these complaints was in June 2017.

In 2018 the PSA published a “Lessons Learned Review” concerning the NMC’s role in handling the referrals. It highlighted cultural problems at the NMC: the regulator did not engage with families and patients properly, or recognise the value of their evidence. The PSA was critical of the NMC’s defensive approach and found there had been unnecessary delay and poor record keeping in the Furness Hospital cases. The NMC was not frank and open with families and patients.

Verita Audit

The NMC commissioned its own audit from independent consultancy company Verita, to examine the particular circumstances of one particular case, the death of Baby A.

Baby A died in 2008. The case was referred to the NMC in 2009 but put on hold between 2010 and 2014 whilst an inquest and police investigations took place.

In 2009 Baby A’s father (Mr A) had provided a chronology of events, exhibited to his NMC statement. The chronology was written 5 days after Baby A’s death. It included information which both parents passed on to midwives at the hospital, importantly that both parents said they were feeling unwell and had described their symptoms. This information was of significance in the case.

At the time, complex NMC cases were investigated and prepared by external solicitors. When work on the case was resumed in 2014 a new set of solicitors was in place and the chronology was missing from the case file.

In 2015 external counsel highlighted that the chronology referred to in Mr A’s statement was missing, but the NMC did not follow this up. Verita found this was a significant missed opportunity to rectify the poor document management.

At a fitness to practise hearing in 2016, Mr A gave evidence that he had told midwives he and his wife were unwell. Counsel for one of the midwives suggested that this conversation had not taken place and that the first time he mentioned the conversation was at an inquest in 2011, over two years after the death of Baby A. It was submitted that his evidence was therefore unreliable on this point.

This was incorrect: Mr A had described the conversation in a statement written in 2008 and most importantly in the chronology written 5 days after Baby A’s death. At that stage, neither the defence nor NMC counsel knew the chronology existed.

The press was present during the hearing and the suggestion that Mr A was an unreliable witness was reported. This caused Mr A and his family considerable distress.

Mr A promptly raised the issue with the NMC and provided a further copy of the chronology. Having seen the chronology for the first time, the NMC decided not to use it in evidence. The lawyer in charge of the case later told Verita that the decision was made because the document was “not contemporaneous” (despite being made 5 days after the event) and did not assist the NMC’s case evidentially because a statement made by Mr A later in 2008 was already available to the panel.

Verita found that the decision not to use the chronology appeared to be driven by the NMC’s focus on whether it would assist their case, without regard to the need to publically rectify the misleading impression that had been created about Mr A’s consistency and reliability. Verita found the NMC had a narrow focus on process and did not appropriately communicate with or care for Mr and Mrs A.

After the hearing, a series of letters were sent from the NMC to Mr A, the PSA and the Secretary of State for Health. The letters purported to give an explanation for why the chronology was not used in the hearing, and strongly implied that the chronology was properly considered before the hearing but the NMC made a decision not to use it. This was untrue.

Verita’s investigation concluded that the source of the inaccurate information in the letters was the reviewing lawyer in the case, rather than the authors of the letters, who included the then Chief Executive of the NMC.

The NMC has now apologised and accepted the failures highlighted by the PSA and Verita, including the fact that incorrect and misleading statements around receipt and consideration of the chronology were made in letters to Mr A, the PSA and the Secretary of State for Health in 2016.

Comment

Practitioners who defend at the NMC will be familiar with the emphasis placed on the analysis of a registrant’s honesty and insight in fitness to practise hearings. Registrants who are unable to confront failures or exhibit candour in their dealings with patients and their regulator will struggle to demonstrate they are fit to practice without restriction.

The irony will not be lost on those following these proceedings. A case involving record keeping failures, a defensive approach, and issuing misleading letters about the nature of previous failures, might see a registrant in the same position facing allegations of dishonesty and at risk of strike off.

The NMC has pointed to improvements via the overhaul of its fitness to practise procedures following significant investment since 2014, and more recent additional panel training and a new dedicated public support service.

However, as is often acknowledged by regulatory panels, dishonesty is difficult to remediate, and maintaining the trust of the public and patients in a profession is at the very heart of a regulator’s function. As Mr A said “…I knew that the excuses given at the time made no sense, but the fact that it took an external investigation by the PSA before we were told the truth, is something that still shocks me…. I do not believe that the Verita report has satisfactorily explained how the untrue and misleading account of what happened came to be given to so many people….”.

The case serves as an important reminder to regulators of the importance of maintaining the trust and confidence of the public in the professions through candid and sensitive communication with witnesses and family members. Practitioners appearing before regulatory bodies may notice a heightened sensitivity to the needs of families and witnesses, and a more person centered, less process driven approach at the NMC in particular.

Laura Stephenson

 


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