An extraordinary High Court decision just published has raised yet more questions about how the Nursing and Midwifery Council is currently run. https://www.bailii.org/ew/cases/EWHC/Admin/2025/373.html
The case turned on:
“the standard of reasoning to be expected of fitness to practise ("FtP") and other professional discipline tribunals when making findings of fact, on the 'balance of probabilities', which turn on witnesses' conflicting factual narratives. The questions relate to: (a) whether, and in what circumstances, the tribunal is required to set out its assessment of the general credibility and reliability of each witness's evidence; and (b) the extent of the forensic analysis and reasoning required for making such assessments”. (Para 1)
A team of four nurses raised a collective grievance against their manager and then reported her to the NMC who, in turn, bought what the Tribunal described as an “extraordinarily high” number of 32 charges against Laura Hindle, their manager. The Court stated:
The crux of the Appellant's case was that the Complainant Nurses had created a catalogue of fabricated and exaggerated allegations against her, to rid themselves of a manager with whose decisions they disagreed and whose job they thought should have gone to one of them. The Panel's failure to properly grapple with assessing the credibility and reliability of the Key Witnesses had the consequence that it failed to deal adequately with the Appellant's case. (Para 12).
The High Court (this was an appeal against the NMC decision) concluded that
“the reasoning of the Panel in its statement of reasons (the "Reasons") was inadequate for sustaining the findings that were made against the Appellant. In summary, the Panel did not properly assess the general credibility and reliability of certain witnesses who provided written and oral evidence and were cross-examined, and whose evidence was crucial to determining the charges the Appellant had denied” (Para 6)
The Court went on:
“The Disputed Conduct Allegations that the Panel had to determine turned very substantially on factual accounts given by the Complainant Nurses which were contradicted by the Appellant and, in relation to some allegations, by the Paramedic. The differences between the Key Witnesses' respective factual accounts were unlikely to be explicable by mere differences in individuals' honest recollections or perceptions of events. Both the Appellant and the Paramedic asserted in their evidence that the Complainant Nurses had "fabricated" their versions of events as part of a concerted campaign to undermine the Appellant and drive her out from her job as their manager.” (Para 7)
The Court took the view that:
On any reasonable assessment of the evidence, the working environment she entered when she assumed her role as manager of the Stonyhurst health centre was difficult and unpleasant. (Para 16)
The Court was told that that both the school HR director and Laura Hindle’s manager “were generally supportive” of Laura Hindle’s case despite having been called as prosecution witnesses by the NMC, whilst the school paramedic stated that the witnesses the NMC relied upon were "devious and deceitful", and said they had carried on a "toxic campaign" against the Appellant. (Para 18)
Laura Hindle was subjected to a sustained campaign by these four nurses which culminated in her going off sick and then leaving in December 2018 exactly two years after she has started her role.
The case was not heard until March 2023 and a decision not communicated to Laura Hindle until January 2024. As the Court put it:
“by this time, the allegations made against the Appellant by the collective grievance had already been hanging over her for approaching 6 years. The allegations thus related to alleged incidents that were said to have occurred, in some cases, around 7 years previously. Even allowing for the impact of the Covid-19 pandemic, the time taken by the NMC to progress this matter has been far too long.”(Para 30)
Laura Hindle had found a new job after leaving Stoneyhurst. The Court was told that her employers there were very happy with her work and colleagues described her as having a friendly and caring personality” (Para 31). However:
“That employment came to an end by mutual agreement in October 2023, apparently because Derian House (her new employer) did not feel able to wait any longer for the outcome of the NMC proceedings the Appellant was facing. By that time, the Appellant had been working at Derian House for around 4½ years. (Para 31)
In its ruling the High Court stated:
“In such a case, it is not sufficient for the tribunal to simply consider each charge individually (i.e. in isolation from the other charges and allegations on which the witnesses have given testimony), briefly summarise the witnesses' competing narratives relevant to that charge, and then say, "We prefer the evidence of [name of witness(es)] and therefore find this charge proved". But that is the approach that the Panel has taken again and again in its Reasons. On my first reading of the Reasons, I repeatedly wrote "Why?" in the margin, signifying my inability to understand why the Panel had chosen to prefer the evidence of one or more of the Complainant Nurses over the contrary evidence of the Appellant and, where relevant, the Paramedic."
The Tribunal noted, in remarks all investigations should note, that: “determining a witness's general credibility and reliability “does not mean falling back onto discredited notions that the truthfulness of a witness's evidence can be ascertained from observing her 'demeanour' whilst giving evidence, such as whether she is looking downwards when giving her answers, or whether she appears 'shifty':” but rather “ it means listening very carefully to the content of what the witness says in her oral evidence, and: (a) considering the extent to which it is consistent with relevant factual accounts the witness has given in her witness statement and other documents; and (b) assessing other indicators relevant to whether the tribunal can have confidence in the witness's testimony…..Those factors include, for example, the witness's likely motivations, and the potential for her evidence to be affected by unconscious bias.” (para 546-57).
The Court found several examples where the witnesses against Laura Hindle “appeared to have given incorrect accounts in relation to certain of the charges” (Para 59) notably where:
CCTV evidence flatly contradicted evidence given against Laura Hindle (Para 59-60)
A “glaring example” where a “supposedly first-hand account” by one witness repeatedly confused the gender of the individual the allegation involved (Para 64)
A claim by one witness that she had drafted her own witness statement fell apart in cross examination (Para 66)
Or evidence from the NMC Panel hearing transcript that a key witness initially refused to give oral evidence and then primarily said “no comment” when asked questions (Para 68)
What was claimed to be a “bullying note” put on a noticeboard by Laura Hindle turned out to be nothing of the sort (para 71)
Contemporaneous notes were alleged by one witness against Laura Hindle to have been “burned” but this was then changed to say she might have shredded them instead (para 73) whilst another of the four witnesses said her own contemporaneous notes had also been burned - “though she wasn’t sure who burned them” (Para 74)
Another witness denied she had applied for Laura Hindle’s job when it became vacant whereas HR records confirmed she had applied.
These repeated shortcomings in witness evidence were compounded by the NMC Panel chair seeking to ask Laura Hindle’s barrister to “modify her approach” to cross examination even though it was clear numerous flaws in the evidence were emerging.
Not surprisingly, the High Court commented:
“These various points going to the credibility and reliability of the Complainant Nurses factual accounts were relevant to each and all of the Disputed Conduct Allegations. The Appellant's Counsel was entitled to draw such points to the attention of the Panel, as she did, as being points that undermined the credibility of the Complainant Nurses' factual accounts and should lead to their evidence being regarded with caution. The Panel should have given express, careful consideration to all those points (albeit that it would have been for the Panel to assess how much weight to give to them, after giving careful thought to how the Complainant Nurses had responded to the questions put to them in cross-examination). In my judgment, the Panel failed to do so.” (para 77)
On the other hand, the Court noted:
“The Panel also made no assessment, or even any comment, with respect to the general credibility or reliability of either the Appellant or her former colleague, the Paramedic. This, too, was a significant failure. Factual evidence from the Complainant Nurses was directly contradicted by evidence from the Appellant and the Paramedic. The Panel's reasoning therefore needed to be adequate to enable the Appellant to understand why the Panel had, in relation to the Disputed Conduct Allegations it found 'proved', believed the evidence of the Complainant Nurses and thus, implicitly, rejected the contrary evidence of the Appellant and (where relevant) the Paramedic. In my judgment, the reasoning could not properly do this without addressing the issues of credibility and reliability.” (Para 78)
Crucially, the Court concluded:
"It was obvious from the factual evidence that the Complainant Nurses had co-ordinated and collaborated with each other, over a significant period, with a view to jointly raising complaints regarding the Appellant. The fruit of that collaboration was the development and joint submission of the collective grievance, which was in the nature of a multi-allegation 'super-complaint' and was submitted, not only to Stonyhurst's management, but also to the Appellant's professional regulator. An important point that was being made by the Appellant about "collusion" was that the collaboration amongst the Complainant Nurses – who had surely been discussing with each other, for some time, their various gripes about the Appellant – was a relevant and important matter to be taken into account when the Panel was assessing the reliability of their evidence." (81)
“Further, the Appellant had relied, in support of that overarching point, on specific features of the evidence provided by the Complainant Nurses which, in her Counsel's submission, supported a conclusion that the factual accounts each of them had given at various times appeared to be an attempt to all support a common narrative. "(Para 82)
"In addition to my concerns that the Panel has not properly assessed the credibility and reliability of the Key Witnesses, I find that the Panel's reasoning reveals that it took several approaches that I consider were legally unsustainable. (Para 84)
Every panel, of every kind ,should note:
“it will be the duty of the tribunal to find an allegation 'not proved' unless the party making the allegation has produced cogent evidence sufficing to satisfy the tribunal, on the balance of probabilities and after having considered the totality of the evidence before it, that the alleged conduct occurred. (Para 97)
“This principle is particularly important where the evidence in support of the allegation consists of assertions by witnesses which are uncorroborated by any contemporaneous objective evidence (such as contemporaneous documents or video or audio material). In such cases, the allegation should be found proved only if the tribunal is satisfied that the relevant witness evidence has sufficient credibility and reliability for tribunal to consider itself able to place reliance on that evidence so that the burden of proof is satisfied. This requires the tribunal to apply, not speculation or 'guessology', but careful and thorough forensic analysis. (Para 99)
In respect of three recording keeping allegations, the Court decided that “the NMC pursued these charges without placing into evidence any copy of a written policy – whether a Stonyhurst internal policy, or any policy that nurses or health centres generally are required to follow – with which the Appellant's recording entries were alleged to have been non-compliant.” The High Court did nevertheless agree with the NMC Panel that the errors in record keeping (all acknowledged at the start by Laura Hindle) constituted “misconduct” but went on to say that:
“The Complainant Nurses ultimately embarked, in April 2018, on a common plan of developing and jointly submitting an omnibus complaint, raising a vast litany of matters (many of them individually quite trivial in nature) going back to 2016. It was not an attempt to prompt Stonyhurst's management to promote a better working environment or to bring about some positive behaviour change on the Appellant's part. Rather, it was a 'nuclear missile' intended to have a decisive impact in making it impossible for the Appellant to continue in her job (Para 109).
As for this “misconduct” the Court decided:
“Moving on to consider whether the Appellant's FtP is currently impaired: I am satisfied that it is not impaired. In that regard:
Her 'misconduct' consisted essentially of administrative oversights in failing to consistently follow improved procedures she had commendably sought to implement in the health centre.
These failures occurred whilst she was working in a toxic workplace environment and was likely to have been under great emotional strain. As the manager of the health centre, she was effectively the 'captain of the nurses' and did not have any nurse or medic supervising or guiding her.
There is no evidence that her relevant failures caused any harm to patients. Nor is there evidence that she sought to cover up, or avoid taking responsibility for, those failures.
For a period of 4½ years after leaving Stoneyhurst, she has worked in a children's hospice. All the relevant evidence I have seen is consistent with her having practised kindly, safely and professionally throughout the whole of that long period. There is no evidence of any concerns having been raised about her administration of drugs, or indeed about any other aspect of her practise or conduct as a nurse. She no doubt benefited from working in a more supportive environment, with other nurses and medics who were senior to her.” (Para 118)
One might wonder, as the Court then did, why none of this was apparent to the NMC panel and their professional advisers before imposing an interim suspension order that lasted 13 months:
“In addition to imposing a substantive sanction of 6-months suspension, the Panel also made an interim suspension order of 18-months' duration "in order to cover any appeal period". The consequence of that interim suspension order is that the Appellant has now been suspended from practising as a nurse for the past 13 months, and thus potentially for considerably longer that the total suspension period she might have served had she not appealed.” (Para 120)
“As the Appellant has not, in these proceedings, challenged the interim suspension order, I have no jurisdiction to set it aside. I think it right, however, to record my concern as to the lack of substantive reasoning provided by the Panel for imposing the interim order. No interim order had been made for restricting the Appellant's practise during the long period over which the FtP proceedings had been drawn out, prior to the Panel's decision. As noted above, for 4½ years of that period, she worked satisfactorily as a nurse in a children's hospice. There was no evidence that her practise at the hospice had been anything other than kind, safe and professional. Testimonials from colleagues show she was regarded as a reliable colleague and that she was popular with the children and young people for whom she cared.” (Para 121).
“Against this background, it is very difficult to understand why the Panel considered an interim suspension order to be "necessary for the protection of the public" and "otherwise in the public interest", as the relevant section of its Reasons asserted it to be. “ (Para 122)
In summary, the Court stated:
“It is a matter of regret that these matters have hung over the Appellant for so many years, and that patients (including terminally ill children in a hospice) have been unable to benefit from her care”. Para 124
As a footnote to these proceedings, the RCN who represented Laura Hindle sought to recover their costs. The NMC objected even though the Court described this claim as “a surprisingly low sum” and described the NMC’s submissions as “wholly unrealistic” and rejected them.
Key takeaways
The NMC Panel decision making in this case was seriously flawed in ways that appear to suggest advice to other NMC panels on key aspects of the handling of cases may also be seriously flawed
The process was hopelessly prolonged even allowing for Covid – adding substantially to the impact on the person facing these allegations
The NMC Panel, though supposedly in receipt of well-paid advice from its own legal and professional advisers,
failed to address the credibility of witness,
saw allegations and the evidence around them in isolation,
sought to inappropriately “modify” how the cross examination was undertaken,
imposed an interim suspension when one was not necessary; and so on
The NMC refused to see, what the Court could, that Laura Hindle was the subject of a conspiracy to drive her out of her job
It then compounded its failing by ludicrously seeking to block an entirely reasonable costs claim by the RCN
The damage to the career, livelihood and well being of those subjected to prolonged and incompetent NMC process is unacceptable
Well done to the RCN for taking this case on and winning
Post script
There are lessons here not just for the NMC but for all investigations and for all panel hearings.
The pattern of collusion between some healthcare staff to drive out of those employment those they take a dislike to, is a recurring pattern in this case as it was in the recent cases of Susan Gilby https://www.rogerkline.co.uk/post/nhs-hr-leaders-what-would-you-have-done-when-susan-gilby-was-being-victimised and Franco Villani https://www.linkedin.com/feed/update/urn:li:activity:7302769445024718850/
One wonders how common this is and why staff should have to rely on the High Court and Employment Tribunals to spot such machinations which risk destroying careers, not just immediate employment?
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