The nursing regulator has been criticised by a High Court judge for making “minimal effort” to establish the fitness to practise of a nurse accused of injuring – or allowing harm to come to – her own baby.
The nurse – who cannot be named to protect the child’s identity – had previously appeared before the Family Court, which concluded she and her partner were both potentially responsible for serious “non-accidental” injuries, including multiple bruises and fractures , sustained when the baby was just weeks old.
“They were decisions which no reasonable NMC or committee could have reached”
Neither the nurse or her partner were prosecuted but the child was removed from their care. The nurse was subsequently dismissed by her employer after a disciplinary hearing, which found she had failed to protect her baby.
However, when she appeared before a Nursing and Midwifery Council hearing charged with being “directly or indirectly” responsible for harming a baby – amounting to misconduct – the competence and conduct committee was told there was “no evidence” and found there was “no case to answer”.
The decision was challenged by the super-regulator the Professional Standards Authority (PSA), which argued that the NMC had failed to adequately investigate the charge – a claim upheld in the High Court by Mrs Justice Elizabeth Laing, who flagged up a series of “evident errors”.
In her ruling last month, she concluded the NMC’s approach to gathering evidence was “flawed”. Investigators had failed to collate witness statements and key documents, including GP and health visitor records, a transcript of the Family Court proceedings and copy of its judgement, she noted.
Other potential evidence the NMC failed to obtain included a psychological assessment of the nurse put before the Family Court “which was said to raise potential issues about her fitness to practise”.
“The NMC failed to recognise that such serious safeguarding matters directly impact on fitness to practise”
Instead, during the hearing in London in May, the NMC maintained there was “no evidence” to support the charge and suggested the matter did not relate to the registrant’s “practice as a nurse”.
A lawyer representing the NMC “said that the NMC had considered the charge ‘very carefully’ and had decided to offer no evidence on it”, stated the High Court document.
The panel was then given the “wrong advice” by an NMC legal assessor, who suggested their only option was to dismiss the charge, noted Mrs Justice Laing.
“The NMC relied on its own minimal efforts to gather evidence in order to offer no evidence, when the facts clearly demanded an answer,” ruled the judge, who expressed her “unease at the superficial approach which the NMC took to gathering evidence”.
While what happened in the Family Court was clearly relevant to the NMC hearing, she found investigators “simply gave up” when told by the court service they would have to submit a formal application to obtain key papers, then “wrongly, decided it would be disproportionate to do more”.
“It does not seem to have considered whether it could get relevant and more direct evidence to support the allegation from other sources, such as from the various medical professionals who had dealt with the case,” the ruling stated.
“Such an approach does not in any way recognise the public interest in the thorough investigation of allegations of misconduct by registrants, and the need to maintain public confidence,” said Mrs Justice Laing.
“Such an approach does not in any way recognise the public interest and the need to maintain public confidence”
According to the ruling (see document attached below), investigators concluded they should not take further action because the matter “does not relate to patient care”.
“It is right to say that the allegation did not directly relate to patient care, but wrong to imply that the allegation, if made out, could have no bearing on patient care,” said Mrs Justice Laing.
“I note that the employer could very clearly see the implications for patient care, and that is why the employer dismissed the [nurse],” she stated.
She said it was clear the committee did not have the evidence to make an informed decision and criticised the investigators “complete failure” to describe the nature of the baby’s injuries and “acknowledge how serious they were”.
It was clear that committee members “had no idea of the number, or timing of the injuries or of their obvious seriousness” and did not appreciate they were obviously “non-accidental”.
“Nor had they been told that they could only have been inflicted by the second respondent [the nurse] or by her partner,” said the ruling. The judge concluded the NMC’s decision to offer no evidence and committee’s decision to endorse that approach and agree there was no case to answer, were “wrong in law”.
“They were decisions which no reasonable NMC or committee could have reached,” she said. “The only decision which the committee could lawfully have made was that there was a case to answer.”
Mrs Justice Laing told the NMC it must look at the case again and consider whether or not to gather more evidence to support the charge in question, before returning it to a committee.
“We have already made changes to our procedural guidance to reflect the judge’s findings”
The PSA said the case raised questions about the NMC’s approach to safeguarding, including that it did not identify “any regulatory concern” when it was referred to examiners in the first instance.
Mark Stobbs, PSA director of scrutiny and quality, said: “This case demonstrates why the authority’s oversight of regulators’ fitness to practise processes is vital.
“The NMC failed to recognise that such serious safeguarding matters directly impact on a registrant’s fitness to practise, whether the child is a patient or not,” he noted in a statement.
In response, the NMC said changes had already been made to its procedures in the light of the case. “This is clearly a very serious incident involving injury to a baby,” said an NMC spokeswoman.
“We’ll consider the judge’s decision carefully and we have already made changes to our procedural guidance to reflect the judge’s findings,” she added.