May 9, 2019

Nursing a grievance: disparity amongst regulators?

Doctors and nurses, like so many professionals, are subject to regulation and oversight by their professional bodies. Part of that oversight includes the prospect of fitness to practise proceedings. Where a complaint before two separate regulators has the same factual background, is it to be expected that the committees’ decisions would be the same?

A recent article[1] explores the different approaches taken by the GMC and NMC in related cases arising from the death of Jack Adcock. The author considered the well-known case of Dr Bawa-Garba and the less well known case of nurse Isabel Amaro. The facts of Dr Bawa-Garba’s case can be read here. What was not extensively reported was that while Dr Bawa-Garba retained her registration, Isabel Amaro was erased from the nursing register. Her failures were that she did not keep accurate records of Jack Adcock’s observations and she did not escalate concerns appropriately.

In the paper, the author highlights the similarities between the two professionals. Both had unblemished careers. Both their failures could be ascribed, partly, to systemic issues at Leicester Royal Infirmary. Both were found to have caused the early death of Jack Adcock. Both were said to have departed from the requisite standard of care so much that it was criminal. Both were convicted of manslaughter by gross negligence and both received a suspended sentence of 24 months’ imprisonment. Yet Ms Amaro was erased from the nursing register while Dr Bawa-Garba is able to return to work.

The paper's author concludes that the NMC erred by "‘presuming erasure’ in gross negligence manslaughter and by giving too much weight to Nicol J’s sentencing remarks" in the criminal case. This alleged presumption of erasure was criticised by the Court of Appeal in Dr Bawa-Garba's case. The NMC's final reason for erasure was to uphold public confidence in the profession and the regulator. This reasoning is, in the view of the article's author, "tantamount to a presumption of erasure".

If it is accepted that the NMC panel misunderstood how much they should rely on the sentencing remarks and also that their approach was "tantamount to the presumption of erasure", then why was this not pointed out to them? Why were the arguments made in the Court of Appeal not made in Ms Amaro's case? The answer, in the author's view, is that Ms Amaro had no legal representation.

The article offers an interesting insight into the related cases. However the conclusions may not have universal application to cases before the GMC and NMC. The cases involve convictions for gross negligence manslaughter, a rare occurrence before the regulators.

However, two matters are worthy of wider consideration. First, the paper suggests that the lack of legal representation for Ms Amaro put her at a disadvantage. It is difficult to disagree with that and indeed the NMC's response to the paper was that they are continuing to explore ways to increase access to justice for non-represented registrants.

Secondly, the report makes reference to Lord Hoffman's comments in Bijl[2] that public confidence should not result in the sacrifice of the career of a useful professional who poses no risk to the public. Regulators have to find a balance when making a decision in order to maintain public confidence. That decision must be made on an independent analysis of the facts and not be applied without reasoning just because there has been a conviction.

References

[1]  Hodson, N. (2019) Regulatory justice following gross negligence manslaughter verdicts: Nurse/doctor differences; Nursing Ethics.

[2] Bijl v General Medical Council [2001] UKPC 42