Watchdog for UK’s nursing regulator slammed for dropping sexual harassment case

The ‘regulator of regulators’ failing to ensure concerns of sexual harrasment are heard, expert claims

Michelle Russell has been an NHS nurse for 30 years (The Independent )

A nurse, who has been battling with the NHS over her claim she was sexually harassed at work, has lost her last means of justice after the watchdog responsible for NHS regulators stuck to its original ruling against her, in spite of concerns raised by the regulator itself over the decision.

The Professional Standards Authority has decided not to overturn a ruling against nurse Michelle Russell by the Nursing and Midwifery Council over allegations of sexual harassment she made, despite the NMC raising concerns over its own panel’s decision.

Roger Kline, a research fellow in Middlesex University’s business school who has led several major cultural reviews for the NHS, described the outcome as a “failed process”.

In December the NMC referred a decision by one of its panels to not uphold claims of sexual harassment made by Ms Russell against another nurse to the PSA.

The news comes after an NMC whistleblower raised concerns over the PSA allegations that the NMC was potentially sitting on hundreds of cases that have been pushed through without an adequate investigation.

It is the latest in a series of exposes revealed by The Independent into the UK’s nursing and midwifery regulator, which have since led to the launch of three independent reviews.

Ms Russell revealed her harrowing eight-year battle with the NMC and NHS trust North East London Foundation Trust earlier this month.

Following a fitness to practice hearing against her alleged harasser last year, the NMC’s panel ruled no case to answer on Michelle’s allegations. However, the panel did sanction the nurse separately over allegations of verbally inappropriate behaviour towards another female staff member.

The NMC subsequently reviewed its panel’s decision and identified several concerns in a letter seen by The Independent, including:

• The panel treated two allegations of verbally inappropriate behaviour separate to Ms Russell’s allegations which were of a physical nature
• The same panel made “unfair” conclusions about the credibility of Ms Russell’s accounts compared to her alleged harasser

As a result of the concerns, it referred the decisions to the PSA. However, the PSA has now ruled it has not found evidence to appeal the NMC’s decision in court.

In a statement to The Independent, the PSA said it does have powers to refer NMC panel decisions to court if it determines they are insufficient to protect the public. However, it said the courts have made clear they will only interfere with a regulator’s independent panel if it is wrong in law or unjust due to serious procedural irregularities.

It said: “This sets an extremely high bar for us to successfully appeal a case. We cannot simply disagree with a panel which in this case had the benefit of hearing live evidence and exploring the issues with participants in depth.”

The regulator said having considered the referred nurse’s case alongside the NMC’s referral it did not identify matters that would allow the PSA to “successfully” bring an appeal against the decision.

The PSA is currently carrying out its annual review of the NMC.

Ms Russell said: “The NMC referred themselves to the PSA because they felt the panel decision did not adequately protect the public. How the PSA can then reject the NMCs admission of failure is beyond me.

“I know the public is not protected by the decision and I have grave reservations about the original decision of the NMC to omit the independent investigations from the evidence seen by the panel. It has failed the public and my nursing colleagues.”

The NMC said it had omitted the investigations as it was considered “hearsay” evidence.

Responding to the decision expert, Roger Kline who has led several major cultural reviews for the NHS, said: “I fear the regulator of regulators has also failed to ensure that staff and the public who raise concerns of sexual harassment are heard. They are not well served by their processes which have failed to act on the failure of the NMC to tackle that issue too. 

“Seriously disappointing that some evidence was heard by the panel but crucial evidence was not and the PSA has looked the other way. Whatever the procedural legal advice was, the outcome is a failed process.”

Andrea Sutcliffe, chief executive and Registrar at the Nursing and Midwifery Council: "At the fitness to practise hearing, we presented our case that the allegations Ms Russell raised had happened and were a regulatory concern.

“When the panel found those allegations were not proved, we asked the Professional Standards Authority (PSA) to review various aspects of that decision to make sure it was appropriate and safe. The PSA carefully considered the information and found no fundamental issues with the hearing, our case presentation or the panel’s determination. We respect the PSA’s decision, and the registrant is currently subject to a five-year caution order after the panel found some separate charges proved."