Chapter 7: The Nursing and Midwifery Council

By February 2007, two months after the Crown Prosecution Service’s decision that there would be no criminal prosecutions, the NMC still had not received disclosure in respect of the ten Category 3 cases (NMC100086, p100). The NMC had received complaints about the treatment of five patients: Mrs Page, Mr Carby, Mrs Wilkie, Mrs Devine and Mrs Middleton. Clare Strickland had carried out a review of two of those cases (Mrs Page and Mr Carby) and considered that there was no case to answer in respect of any of the nurses named. The other three cases had not been reviewed.

Clare Strickland had reviewed the police reports, expert reports and case summaries prepared by Mr Lohn for the 76 cases provided to the police as part of Operation Rochester. She noted that there was “no direct criticism of any named nurse in any of the expert reports”, although there were examples of named nurses being criticised by family members (NMC100086, p69).

The ten Category 3 cases were provided to the NMC in March 2007 (NMC100086, p42). Clare Strickland reviewed them and concluded that the only files in which family members had expressed criticism of individual nurses were those of Arthur Cunningham and Mrs Devine. Of the 80 Category 1 and Category 2 cases only five contained material in which there had been expressions of dissatisfaction with named nurses (Mr Carby, Margaret Queree, Mrs Wilkie, Mrs Richards and Mrs Middleton). In respect of Mrs Richards, the case had been closed by the PPC (NMC100010). The lawyer acknowledged that she did not review every document provided:

Three years later she felt able to reassure the police, if asked, that:

The documents provided to the Panel show the NMC’s dismissal of the material supplied by the police as not warranting action but do not provide evidence of the basis on which the assessment was made. In respect of the five cases subject to complaint, Clare Strickland was of the view that there was insufficient evidence of misconduct on the part of any of the nurses referred to in the papers, save for the possibility of the failure of certain nurses to challenge the inappropriate prescribing administered by Dr Jane Barton in the cases of Mrs Wilkie and Mrs Devine. However, Clare Strickland did not appear to consider it necessary to obtain expert evidence on this matter, or on any other matter, despite her own acknowledgement that she did not have the medical/practical expertise to identify evidence of misconduct.

On 20 April 2007, Clare Strickland suggested that the next stage of the process would be to seek a meeting with the GMC in order to obtain information about the progress of its proceedings (NMC100012, p19).

The meeting with the GMC took place over a year later, in May 2008. By that time the GMC investigation was at an advanced stage. The Coroner had opened inquests into the ten Category 3 deaths and the GMC took the view that the disciplinary proceedings against Dr Barton should not take place until the conclusion of those inquests (PCO000279, NMC100039). The GMC considered that the NMC should not do anything that would discourage nurses from giving evidence at any GMC hearing to determine Dr Barton’s fitness to practise. Clare Strickland was of the view that any proceedings that the NMC brought against the nurses should wait until the outcome of the GMC proceedings had been determined (NMC100086, pp34–6).

As Chapter 8 shows, the inquests into the ten deaths began in March 2009 and concluded in April 2009. In the interim, the NMC instructed Leading Counsel who, in February 2009, provided advice as to how the NMC should proceed (NMC100034). Counsel was not provided with all the paperwork but relied on the summary prepared by Clare Strickland. On this basis, Counsel concurred with her view that there was insufficient evidence to proceed with an allegation of misconduct against any nurse in the cases of Mrs Page, Mr Carby and Mrs Middleton. Counsel also took the view that there was no case to answer in respect of some of the allegations that had been made against the nursing staff in the cases of Mrs Wilkie and Mrs Devine. However, Counsel was of the opinion that there was “a possible case of failure to challenge/report inappropriate prescribing” (p12) in the cases of Mrs Wilkie and Mrs Devine.

Counsel had not been provided with any of the papers in relation to any of the remaining cases. She was therefore unable to advise on whether there was any prospect of establishing misconduct in those cases. However, Counsel was able to advise that these additional cases would fall to be determined under the new (and more flexible) rules that had been in force since 2004 (NMC100034). Counsel also expressed her opinion that the NMC had “acted entirely properly in postponing disciplinary proceedings pending the outcome of investigations by the police and the subsequent inquests and the GMC proceedings” (NMC100034, p12). However, Counsel also said that the cases adjourned by the PPC in September 2002 and the additional two complaints made in 2002 should be placed before the PPC as soon as possible. The PPC could decide to adjourn all the cases until the conclusion of the inquests and the GMC hearings or could deal with them immediately. The result would be that the cases involving Mrs Page, Mr Carby and Mrs Middleton would be closed immediately and the cases of Mrs Wilkie and Mrs Devine would be closed as well or postponed until the conclusion of the GMC proceedings.

The NMC was unable to arrange a meeting of the PPC before the inquest was due to start in March 2009. Clare Strickland took the view that it would be “undesirable to arrange for the PPC meeting to take place whilst the inquest is ongoing” and that, in any event, “the PPC is unlikely to adopt any course other than adjourn pending the outcome of the inquest” (NMC100105, pp1–2).

Following the conclusion of the inquests in April 2009, the NMC decided that the hearing before the PPC would not take place until the conclusion of the GMC hearing, which was scheduled for August 2009 (NMC100086, p5). It was envisaged that the hearing before the PPC would take place in early October 2009 (NMC100069).

On 21 August 2009, the findings of fact stage of the GMC hearing concluded. The Disciplinary Panel said that there was insufficient time to determine if Dr Barton’s actions amounted to misconduct or to decide whether or not a sanction should be imposed. The case was relisted for a sanction hearing in January 2010 (NMC100077).

Clare Strickland was of the view that while the GMC’s findings “were not determinative… [they were] a relevant factor for the PPC to take into account. The key issue is whether the GMC finds that the doctor’s actions amount to serious professional misconduct” (NMC100079, p1). The decision was therefore taken to once again postpone the PPC hearing until the GMC hearings had concluded (NMC100114). The GMC proceedings concluded on 29 January 2010.

In November 2009, Christopher Green, solicitor at the Royal College of Nursing, emailed a Senior Case Officer in the Fitness to Practise Division of the NMC. Mr Green informed the Senior Case Officer that he was representing seven nurses who had been referred to the NMC and requested information in relation to the allegations that had been made. In January 2010, the NMC responded, giving the background to the referrals and a brief outline of the complaints, and proposing that the matter should be put before the PPC in late March/early April 2010 (NMC100122, p3).

On 17 March 2010, the Senior Case Officer wrote to the following nurses informing them that a complaint had been made against them:

• The nurse in respect of the treatment of Mr Carby (NMC100209)
  
• The nurse in respect of the treatment of Mrs Devine (NMC100220)
  
• The nurse in respect of the treatment of Mrs Devine (NMC100221)
  
• The staff nurse in respect of the treatment of Mrs Page and Mrs Devine (NMC100222)
  
• The sister in respect of the treatment of Mrs Devine and Mrs Page (NMC100224)
  
• The nurse in respect of the treatment of Mr Carby (NMC100229)
  
• The nurse in respect of the treatment of Mrs Wilkie, Mrs Middleton and Mr Carby (NMC100240).