Last month, I was asked to present at the Local Supervising Authority (LSA) summer conference focusing on ‘the midwife in the dock’, from Nursing and Midwifery Council (NMC) fitness to practise (FtP) procedures through to attendance at the coroner's court. There was a range of experience among the speakers and supervisors of midwives (SOMs) present, and they all acknowledged how stressful such proceedings are for those involved. While the future role of the SOM is under discussion, with new models being piloted, it is envisaged that there will still be some involvement in preparing and supporting midwives through investigations. It is also likely that the number of midwives referred to the NMC will increase once supervisory local action plans and practice programmes (LSAPPs) are abolished.
In the current system, midwives might be investigated via management and supervisory routes independently, with the possibility of conflicting outcomes. For example, a midwife might be dismissed following a management investigation, but the supervisory review may recommend a LSAPP with the aim of remediating the misconduct or lack of competence that has been established. If the midwife is no longer employed, it is not possible to complete the LSAPP unless an alternative placement is found. The employer may then have no alternative but to refer the midwife to the NMC on the basis of protection of the public, because there are no structures in place to prevent midwives seeking alternative work without addressing the behaviour (not everyone will have the moral fortitude to declare their disciplinary action to future employers). At present, the LSA has a national database that holds this type of information and would prevent midwives working without a future employer being aware of an outstanding training need. Some of these positive aspects of statutory supervision are likely to be lost, being replaced by the formal NMC FtP processes.
In the 2014–15 FtP report (NMC, 2015) it was reported that only 0.7% of the 686 782 registrants had concerns raised about them; of these, 89% were nurses, 5% were midwives and 6% had dual registration. This reflects the greater number of nurses than midwives on the register but, also, we know that some midwives successfully complete local remediation and are not, therefore, referred to the regulator. In 2014–15, 5183 new referrals were made: 40% from employers, 29% from patients/public and 10% self-referral (NMC, 2015). Currently, the LSA liaises with members of the public raising concerns about midwives, acting as a ‘mediator’ and hopefully putting in place training, support and debriefing to ensure there is no repetition of the behaviour that led to the complaint. This is another way that the LSA has helped reduce the number of NMC referrals.
If an NMC investigation is pursued, it is important that midwives understand the processes and principles of giving evidence. The midwives at the conference who had given evidence were overwhelmed by the experience, feeling under scrutiny themselves, so I want to briefly explain the basics of evidence-giving.
Providing an accurate statement of events to the NMC is the fundamental first stage. Midwives should be taught the basics of statement writing and the need to have access to any relevant documentation such as records of care, meetings and interviews. Records are normally provided as appendices and the statement should accurately reflect these. Being provided with the appropriate amount of time and getting support from senior midwives or professional bodies is essential. For student midwives, the higher education institution should be involved for pastoral support.
At a hearing, ‘evidence in chief’ will be given based on this statement, which is often read by a witness into the record and questions asked for clarification. At a FtP hearing, the NMC case presenter will take a witness through this process, which is normally non-contentious. This allows the witness to become familiar with the environment and in answering questions. The length of time will depend on various factors including the number of allegations the statement relates to and the involvement of the witness with the midwife under investigation. For example, if the witness was the midwife's preceptor or manager, they may have more ‘background’ questions to answer about policies and processes, or even the layout of a unit if it is relevant (for example, why assistance was not summoned in an emergency situation).
The next stage is cross-examination. I am sure most people are aware that this can be quite antagonistic. Again, it depends whether the registrant is present or represented in order to question a witness. The purpose of cross-examination is to put forward the registrant's version of events, which may be in direct conflict with the witness's recollection. The witness must remain calm and answer questions clearly and accurately. If you are a main witness, cross-examination may go on for a number of hours, so be prepared.
Ultimately, we need to remember that any investigation is stressful, and provide support to those midwives under scrutiny and each other. It is suggested that there is an increased suicide risk for nurses facing FtP investigations (Jones-Berry, 2016) and we need to make sure that a referred midwife does not just become another statistic in this time of change.