Racial discrimination, nursing and fitness to practise

Nursing and Midwifery Council (NMC) v Melanie Hayes

The details of the charges relating to Ms Hayes were that she:

• On a date in 2012, said to Colleague B “I have f..king had enough of those lazy bastard spear-chuckers all they do is that they sit on their fat arses reading f..king newspapers all day” or words to that effect
• On a date in 2012, said to Colleague B, about a patient “my brother’s got schizophrenia, I’ll tell him where he lives and get him to f..k him up” or words to that effect
• On 8 May 2018, said to Colleague A “Hopefully the new job will be better than this one as I will be working with a team of white people” or words to that effect & “you got a f..king African who cannot manage a team and a f..king paki who cannot make clinical decisions” or words to that effect

Ms Hayes admitted all the charges, agreed with our view that her fitness to practise was impaired, and accepted a six-month suspension order.

Consensual Panel Determination

The agreement, which was put before the panel, sets out Mrs Hayes’s full admissions to the facts alleged in the charges, that her actions amounted to misconduct, and that her fitness to practise is currently impaired by reason of that misconduct. It is further stated in the agreement that an appropriate sanction in this case would be suspension for a period of six months, with a review.

Panel Determination

The panel determined that a suspension order for a period of 6 months, with a review, was appropriate in this case to mark the seriousness of the misconduct.

In addition, the panel was satisfied that an interim order is necessary for the protection of the public and is otherwise in the public interest.  If no appeal is made, then the interim suspension order will be replaced by the substantive suspension order.

Professional Standards Authority v Nursing and Midwifery Council and Melanie Hayes CO/2477/2021

Following an internal NMC review of its independent panel’s fitness to practise decision, it referred the matter to the Professional Standards Authority (PSA) to consider exercising its power to refer the panel’s decision to the High Court.

The PSA did so but the matter was eventually settled by way of a Consent Order – agreement by all parties that Ms Hayes should be struck off the NMC’s register of nurses.

NMC learning lessons

What makes this case unique is that the NMC itself recommended the six-month suspension order as part of its consensual panel determination.  This is unusual because, after the consent panel determination, the NMC must have changed its mind because it referred the matter to the PSA.

It is not obvious why the NMC changed its mind on the appropriate sanction in this case, but what is clear is that the sanction was overly lenient.

At the conclusion of the PSA appeal process, the NMC said:

“While we still consider our strategic approach to fitness to practise to be the right one, we found that its application to certain types of cases, particularly where the concerns are not about a professional’s clinical practice, could be misunderstood by some NMC colleagues.

“The absence of sufficient guidance in some areas meant that our fitness to practise strategy principles, taken in isolation, contributed to a series of decisions which did not fully reflect the seriousness of Ms Hayes’ conduct, and its impact on patients and the wider public.

“While NMC colleagues and panel members are provided with equality, diversity and inclusion (EDI) training, this does not go far enough to ensure that the impact of discriminatory behaviour on patients, and the wider public, and how it can impact on a professional’s fitness to practise, is fully understood.”

NMC areas for improvements

The NMC’s own internal review of its failings concluded that:

• Its guidance needs to be stronger, so it is consistent in what we mean by discrimination, bullying, victimisation and harassment, and how seriously allegations like this need to be taken.
• Enhanced training for staff and independent panels to fully understand the impacts of discriminatory behaviour on a professional’s fitness to practice.
• Review our support processes for managing complex and sensitive cases.

Unresolved matters

To some extent, it is unfortunate that the matter was settled by way of a Consent Order. This case raises important questions particularly how health and care regulators approach, or should approach, the issue of racial discrimination in fitness to practise cases.  It is significant that the NMC proposed the 6-month suspension sanction but then changed its mind. 

However, the NMC is of course not alone.  Quite a number of other health and care regulators have grappled with issues associated with racial discrimination.  For example, the GMC case involving Consultant Urologist Mr Omar Karim and the GPhC’s admission that its fitness to practise panels have been influenced by racial bias.