Chapter 7: The Nursing and Midwifery Council

The complaints from Mrs Jackson, Mrs Reeves and Mr Page were referred to the PPC which, on 24 September 2002, considered the cases against four relevant nurses (NMC100323). Shortly before the PPC convened to consider these cases, Hampshire Constabulary reopened the investigation into the deaths at the hospital and initiated Operation Rochester to consider the circumstances surrounding the deaths of 90 patients. The PPC therefore decided to adjourn its own consideration of these cases pending the outcome of the further police investigation. The family members who had brought the complaints were informed of this decision on 27 September (NMC100268, NMC100269, NMC100272). Similar letters were sent to Mrs Bulbeck and to Mrs Mackenzie (NMC100267, NMC100270).

While it had the power to suspend the registration of any of the nurses pending the outcome of the police investigation, the PPC chose not to do so. The documents show no record of the reasons for this decision (NMC100327).

In October 2004, Hampshire Constabulary met with Liz McAnulty to brief her about Operation Rochester and to discuss the basis on which the information held by the police, and in particular the findings of the Key Clinical Team (KCT), could be disclosed to the NMC (HCO000641, p32). The briefing highlighted how the KCT had divided the cases into three categories: Category 1 (acceptable treatment), Category 2 (suboptimal care but no evidence of unlawful criminal activity) and Category 3 (warranting further detailed investigation to determine whether unlawful activity could be identified). The Category 3 cases were the subject of continued investigation by the police (NMC100012, p3).

As of 12 October, 19 of the Category 2 cases had been provided to the General Medical Council (GMC) and it was proposed that they would also be provided to the NMC. The police were keen to ensure that the material was provided on the basis that it would be used in private PPC hearings and that there would be no adverse publicity prior to the conclusion of any criminal investigation and proceedings that might follow (HCO001599).

The documents show that the police’s request that matters be heard in private and without publicity created difficulty for the NMC. Complaints against some nurses had already been considered by the PPC, and had been adjourned pending the outcome of the police investigation. This was an important distinction. Where an allegation was received by the NMC before 1 August 2004 but proceedings had not commenced by that date, the matter would be dealt with under the procedures previously in place. Subsequent complaints, or other cases referred to the NMC, would be dealt with under the new procedures (the New Rules). In respect of all cases, however, in preliminary hearings the NMC would be required to disclose material to the registrant, expert witnesses, complainants or third parties.

The procedures for allegations received by the NMC on or after 1 August 2004 were governed by the New Rules. These provided a process whereby the Investigating Committee could make interim suspension orders or impose conditions on a practitioner’s registration while an investigation was ongoing or where a matter had been referred by the Investigating Committee to the Conduct and Competence Committee but no final hearing had taken place. The Investigating Committee could make such an order if it was satisfied that it was necessary for the protection of members of the public or was otherwise in the public interest, or was in the interests of the person concerned. If the Investigating Committee considered that there was a case to answer, it referred the case to the Conduct and Competence Committee.

Under the New Rules, the NMC’s Investigating Committee had the power to make interim orders. However, these hearings ordinarily took place in public, unless it was considered to be in the interests of a third party or in the public interest for the hearings to be held in private. Any interim order imposed on a practitioner had to be made public under the New Rules. In this case, the NMC was therefore unable to give categorical reassurance that there would be no publicity relating to hearings before the Investigating Committee if an interim order was considered necessary; nevertheless, the NMC would make representations that the hearing should take place in private. The NMC also confirmed that, ordinarily, no substantive hearing would take place before the conclusion of a criminal investigation (HCO007108).

It was agreed between the NMC and Hampshire Constabulary that before any material was released into the public domain by the NMC, the police would be given the opportunity to discuss their position with the NMC (HCO002261).

On 9 November, the NMC received files for 19 of the Category 2 cases containing the following material generated by the KCT:

• nursing expert report from Irene Waters (a summary of the significant information from patient records)
  
• relevant extracts from the report of Dr Robin Ferner (expert in pharmacology)
  
• relevant extracts from the report of Dr Peter Lawson (geriatrician)
  
• relevant extract from the report of Dr Anne Naysmith (palliative care)
  
• case review by Matthew Lohn, solicitor and partner at Field Fisher Waterhouse (NMC100086, p91).
  

The police also provided the NMC with the medical records for each patient. Clare Strickland, the in-house lawyer at the NMC, considered the papers that had been received but accepted that “without further assistance [she] lacked the medical/practical expertise to be able to identify any evidence of misconduct” (NMC100086, p91). She expressed the view that the NMC may have required an expert to consider the cases and identified Irene Waters – who had actually been a member of the KCT (p91). Irene Waters formed part of a five-person team charged with the duty of screening each case according to whether the overall care received was negligent, sub-optimal or optimal and whether the death had been natural or not. The team had not been instructed to identify specific issues of nursing care (see paragraph 7.30).

Clare Strickland began to review the files herself and formed the view that:

• the evidence in the case of the treatment of Mrs Page was insufficient to proceed against two relevant nurses
  
• in respect of the treatment of Mr Carby, it would be possible to prove that the nurse had failed to record the time of her nursing notes entries on 27 April 2004, but this alone would not be sufficient evidence of misconduct
  
• there was also no evidence of misconduct by the two nurses in respect of the treatment of Mr Carby (NMC100086, pp88–9).
  

Hampshire Constabulary continued to deliver files related to the Category 2 cases throughout December (NMC100086, p131) and by January 2005 had delivered 47 cases (p130). On 12 January 2005, the NMC told the police that it was unlikely to take any immediate further action in respect of the Category 2 cases which had been served on it and that any action it might take in the future would have to follow the conclusion of criminal proceedings (p127). Further boxes of files were sent to the NMC by the police in September and November 2005 (p120). The police continued to investigate the Category 3 cases and it was not until December 2006 that it was announced that there would be no criminal prosecution in relation to any of the deaths at the hospital.