The NMC’s management of costs associated with its fitness to practise investigations has been of concern to nurses since 2006, when the NMC declared it would increase registration fees by 76% to help it deal with its backlog of cases. A further 58% increase was approved by Council in 2012 as then Chief Executive, Jackie Smith, said the NMC was “eating into” its financial reserves in trying to deliver its core fitness to practise functions.
There has been no exploration by those responsible for the NMC’s oversight into how much money is spent on external law firms for outsourced investigation work, and the value for money of those investigations, outside of the Lessons Learned Review 2018. This briefly considered the NMC’s use law firm Capsticks to investigate the fitness to practise concerns raised about the midwives at Furness General Hospital, Morecambe Bay and the impact this had on the case.
During the Review, Capsticks did not share their files with the PSA, which led to them reporting “it is impossible for us to tell whether the time taken to investigate the individual complaints was reasonable or not. We noted that it took six months between Mr A’s witness statement being taken by the lawyers and the time Mr A signed it. This appears to be too long.”
How much Capsticks charged the NMC for the total investigations has still not been disclosed, however we do know that the NMC paid another law firm, Field Fisher LLP, £239,871.85 to redact a SAR submitted by James Titcombe that he had requested due to his concerns about the NMC's culture. The PSA's review criticised the NMC’s transparency and identified there were documents that should have been disclosed but were not containing disrespectful and "puerile" comments about him between members of staff. The NMC claimed that documents had been withheld following legal advice.
On 25 January 2024 the NMC awarded a £14.9 million pound contract to law firms Capsticks and Weightmans for “Legal services for case progression”. We have since found out, in a response to a Freedom of Information request seeking figures for the NMC’s spent on legal fees relating to its people and culture, that the NMC’s “legal fees are not centralised under one section. Where the amount appears depends on which area incurred those legal fees.” It gave the example of if these fees were incurred by Professional Regulation then it “will be sitting under Fitness to Practise costs (i.e. charitable expenditure).”
We know from the Government Contracts website that the NMC paid Capsticks an additional £76,500 for work between 3 June 2024 and 2 October 2024 for “Specialist HR support required to manage all casework and associated systems, complex whistleblower cases and coordination of any long-standing complex cases and associated cases.”
The NMC has been paying Capsticks to support it with its handling of the whistleblowing cases for both the Professional Regulation whistleblower and IT whistleblower for significantly longer than this 6-month period and, given the number of special payments on the NMC’s Annual Reports and Accounts over the past few years, it is likely the NMC has been paying Capsticks significant fees to support it with silencing staff members who have been mistreated for some time.
If legal fees being paid to Capsticks for this purpose are being reported as “charitable expenditure”, then clearly the NMC’s trustees haven’t been able to make sure that the charity’s assets are only being used to support or carry out its purposes, and are avoiding exposing the charity’s assets, beneficiaries or reputation to undue risk.
The Charity Commission failed to investigate when the NMC’s own Vice-President of Council and six former members of Council whistle blew concerns about the NMC mismanagement of money and expenditure on legal fees in 2008. With the current fitness to practise case load sitting at 6,581, and death toll for nurses involved in the process ever growing, the Charity Commission must launch a formal investigation into the NMC’s spending on legal fees and the appropriateness of the advice sought and received to prevent any further mismanagement of funds and to prevent the public from coming to harm.
We note Wes Streeting’s recent comments that “For too long desperate hospitals have been forced to pay eye-watering sums of money on temporary staff, costing the taxpayer billions, and pulling experienced staff out of the NHS. We’re not going to let the NHS get ripped off anymore.” Given Capsticks has been appointed as the sole legal provider for NHS Confederation for the next three years, it is crucial that NHS trusts report the fees they are paying to Capsticks transparently and not as “support costs”, and that an investigation into whether Capsticks is supporting NHS leaders to suppress patient safety concerns is arranged without any further delay.
Finally, Wes Streeting has repeatedly said that NHS managers who do not turn things around will be sacked. It has been over a year since the first whistleblowing concerns were reported in The Independent and the NMC’s senior leadership team provided assurances of wanting to change the culture. The recent responses from the NMC in relation to the Freedom of Information requests evidence that the senior leadership team at the NMC continues to lack the transparency required to allow the organisation to move forward.
As long as David Warren remains in post, the senior leadership team will be supported to continue to try and cover up his misconduct. Wes Streeting and Karin Smyth must act immediately to remove David Warren from post so that a clear message can be sent about the expectations of behaviour and so that a real cultural change can begin.