Recent actions of the NMC – a fit for purpose organisation?

Recent actions of the NMC – a fit for purpose organisation?

I had hoped that the days of needing to write blogs like this were over, but reluctantly I’ve decided that writing about this publicly is the right thing to do. This is a long blog, but if you are interested in culture and patient safety in healthcare, please read it.

Since Joshua’s death in 2008, which was finally comprehensively investigated by Morecambe Bay Trust late last year,  the number of organisations I’ve come into contact with has been huge. Many of these organisations failed to respond to Joshua’s death and related events at the hospital where he was born in a reasonable way. The Morecambe Bay Investigation report published in March 2015, sets out serious criticisms of organisations including the Parliamentary and Health Service Ombudsman (PHSO),  Care Quality Commission (CQC), North West Strategic Health Authority (NWSHA) and the Department of Health in some detail. Combined, system wide failures led to serious risks to mothers and babies at Furness General Hospital (FGH) ongoing for several years, resulting in the preventable deaths of 11 babies and 1 mother.

One organisation that didn’t come under much scrutiny in the Kirkup report was the Nursing and Midwifery Council (NMC). One of the reasons for this was because there wasn’t a lot to say about them, as at the time effectively they hadn’t taken any regulatory action what so ever, despite being made aware of the failures relating to Joshua’s death and other babies’ deaths as far back as early 2009.  Following the publication of the Morecambe Bay investigation report, the NMC gave assurances that they would rapidly progress the Morecambe Bay cases they had open and that they would also review the Kirkup report itself to see if any further action was necessary.

Sadly, the NMC’s action since has been described as ‘lamentable’ by Bill Kirkup and heavily criticised by the Professional Standards Authority (PSA) who described the NMC’s handling of the first 2 cases relating to Joshua’s death last year as ‘deficient’.

In a manner that many who have experienced avoidable loss in the NHS will recognise, the NMC’s response to these criticisms wasn’t to say sorry and commit to learn, but rather it was simply to declare that the NMC and the PSA had a ‘difference of opinion’ and to reject the criticisms.

Whilst these issues are disappointing, more recently the actions of the NMC have crossed a line that in my view ought simply not be tolerated.

The Kark Report 

In 2016, a midwife involved in Joshua’s death who  had been under deferred investigative processes by the NMC for several years, was sacked by the Morecambe Bay Trust following the tragic death of another baby. Subsequently, the NMC issued the midwife with an Interim Suspension Order (IO) to ‘protect the public’.

At this point I had a number of serious concerns about this situation. Firstly, the midwife in question was someone who I felt strongly had not only failed in her care of Joshua, but who had also been dishonest about what happened (the latter concern being the issue I would expect a professional regulator to take seriously). This particular midwife was also the author of an email which contained a draft report relating to Joshua’s death,  which she titled ‘NMC Shit’.

It is important to note that very recently the Morecambe Bay trust finally carried out a full investigation into Joshua’s death which concluded the following relating to the actions of this midwife:

“When Hoa called for help at around 2.30am on 28th October 2008, because of concern about Joshua’s breathing, it was ‘highly improbable that there were normal neonatal observations present’ at this time. This is at odds with the statement from the midwife responsible for Joshua’s care at this time who maintained that detailed observations were taken and that all Joshua’s observations were normal.  Whilst there are no records of any of the observations taken of Joshua at the time, (as Joshua’s yellow observation chart has been lost), the Trust acknowledges that this is not a credible version of events based upon the expert view.”

After writing to the NMC to express my concerns, Jackie Smith wrote to me to confirm that she had commissioned an external review. At this time, the NMC publicly said:

“Having now received a new complaint in relation to [the midwife], we feel that it is right that we review the actions that we have taken to date. As an organisation that is committed to continuous improvement we have asked an external adviser to help us undertake this review.”

At this point, I was reassured that the NMC were acting in a reasonably open and transparent way, believing that they had commissioned an independent review to look for opportunities to learn from these circumstances. However, when the review was completed, the NMC publicly commented to say that the review found that “…at no stage during the numerous reviews and investigations which took place was the threshold for applying for and imposing an interim order passed.”

However, when I made a formal request under the Freedom of Information (FoI) Act for the report to be released, the NMC stated that the report was subject to ‘legal privilege’ and they refused to release it. It has since been established that the report was actually carried out by Tom Kark QC (at a cost of more than £12,000 for 1 week’s work).

The concerns I have about this are as follows:

1) When the review was announced, the NMC publicly stated that they had asked an ‘external adviser’ to help undertake the work as they were an ‘organisation that is committed to continuous improvement’. This seems to indicate something quite different from commissioning confidential legal advice from a QC, which could be interpreted as a defensive act, rather than being about transparency and learning.

2) Having completed the review, the NMC have publicly reported on what the apparent positive conclusions of the review were; that at no stage “was the threshold for applying for and imposing an interim order passed”. However, at the same time, the NMC are using legal privilege to withhold the review’s criticisms.  In subsequent phone calls with the NMC, they let slip that actually the Kark report did contain serious criticisms , including an ‘over reliance on the Local Supervisor Investigation (LSA) into Joshua’s death, something I’ve been constantly raising with the NMC for a number of years.

The decision of the NMC to keep this review secret is truly bizarre and has received wide spread criticism.  In my view, these actions demonstrate that there is something wrong with the culture and leadership of the organisation.

The NMC still have one outstanding case open relating to Joshua’s death. It is now fast approaching what should be Joshua’s 9^th birthday. These ongoing processes mean that we do have to relive what happened to Joshua – a death that was horrific. The NMC processes last year were perhaps the hardest and most upsetting thing my wife and I have had to do since Joshua’s death. Surely as an organisation, the NMC should be reaching out to families affected by their actions to share any understanding and learning they have and seeking to restore trust through being open and honest and demonstrating learning?

Are these really the actions of an ‘open and transparent’ organisation?  Is it right that registrant fees should be used by the NMC to carry out reviews that are then only partly published, whilst other parts that presumably the NMC’s PR team think don’t flatter the organisation, are kept secret?

More secrecy and defensiveness at a vast cost to registrants

Due to concern about the culture of the NMC and how they have responded to events at Morecambe Bay since being informed of serious issues in 2009, last year I made a request under the Data Protection Act (DPA) for all copies of any of my personal data held by the NMC. After several delays, the NMC eventually provided this information but when it arrived, I was truly shocked at the extent to which the information was redacted. Many documents were completely blank apart from just one or two words. Other documents revealed that the NMC had been monitoring my social media accounts; there were graphs showing the number of my tweets mentioning the NMC and 3 separate emails showing that the NMC had set up a Google Alert for ‘James Titcombe’.

I subsequently asked the NMC under the Freedom of Information (FoI)Act to confirm how much they spent on redacting my personal data, and to my total shock they confirmed that they had paid a top city law firm almost £240,000.

I’ve questioned the NMC on why they needed to use such high level and expensive expertise to respond to a routine request for personal data (all public organisations routinely respond to such requests and doing so certainly shouldn’t necessitate specialist legal advice). The NMC say that this was purely to ensure that the response met their obligations in an ‘open and transparent way’. However, the information released to me has clearly been redacted to a much greater extent than necessary. In fact, it is not possible to make any sense of the vast majority of information provided as in many cases, only a few words per page are all that remains visible.

In these circumstances, I felt that it was important to understand exactly what the NMC instructed the legal firm to do. If the NMC had only instructed them to prepare a fully open and transparent response to my request for personal data, why would releasing their full instructions to their lawyers be a problem?

However, the NMC have refused my FoI request for these instructions, claiming that they are legally privileged.

£240k is the equivalent of over 2,000 annual registration fees of the Midwifes and Nursing who should be able to have confidence and trust in their regulator to act properly and responsibly. As an absolute minimum, shouldn’t the NMC be required to be absolutely open and transparent about the exact scope of work, where the cost is so vast?

Professional Standards Agency (PSA) Investigation

With support from a number of  people, recently the Department of Health agreed to my requests for a fully independent investigation into the NMC’s actions and instructed the PSA to lead this work. It has since been confirmed that this review will include an investigation into the NMC’s secrecy regarding the Kark review, their approach to redacting personal data, the use of £240k of registrants fee’s and the refusal of the NMC to be open and transparent about their instruction to their lawyers relating to this vast sum of money.  Prior to the DoH writing to the PSA to confirm this investigation, the NMC have only ever been secretive and defensive about these issues. However, on the day the news was announced, the NMC put out a press release describing themselves as ‘…an open and transparent organisation, committed to continuous improvement.’

In my view, the opinion pieces from various newspaper reports below are much closer to the mark. What is truly difficult to fathom, is why no immediate action has been taken to restore trust in what is clearly an organisation with dysfunction leadership, badly failing registrants and letting down the very women, babies  and families who they exist to protect.

James Titcombe – April 2017