A suitable case for treatment

Roger Kline, Research Fellow in the Business School and Joint Director of the NHS Workforce Race Equality Standard Implementation team, welcomes a new report into the relationship between ethnicity and disciplinary referrals in the NHS.

At last a good report that shines a light on the disproportionate referrals of black and minority ethnic (BME) nurses and midwives to the Nursing and Midwifery Council (NMC). Elizabeth West and colleagues have done the NHS a favour.

Why is this report so important? One in five of all registered nurses and midwives working in the NHS are from BME backgrounds. Udy Archibong and colleagues reported in 2010 that BME staff in the NHS are twice as likely to enter the disciplinary processes than their white colleagues.

Alongside detailed work by NHS London in 2014, the Royal College of Midwives in 2012 and 2016 indicated that 60.2 per cent of the midwives who were subject to disciplinary proceedings in London were black/black British, however only 32 per cent of midwives in London were black/black British i.e. they were more than three times more likely to be disciplined. They were also more likely to receive higher impact decisions (dismissal and suspension) and less likely to have no further action taken.

 

Concerns

Nursing Standard’s survey of 2014 found that although BME nurses make up 19 per cent of the nursing workforce in England they make up 25 per cent of disciplinary cases and they were more likely than white nurses to be reported to the NMC (Spinks, J. Nursing Standard 28(22), 14-15).

The NMC has had such concerns raised for a number of years. Two years ago the NMC finally agreed to take a serious look at the issue. At the time it was strongly argued by the stakeholder group of professional bodies and unions they convened that the primary focus of research should be the pattern of disproportionate referrals by employers rather than (or at least as well as) the internal NMC processes i.e. why BME nurses and midwives were disproportionately entering the ‘Fitness to Practice’ (FtP) process, not just what happened once they were referred.

This is perhaps the most stunning of the finds

The resulting report by Elizabeth West, Shoba Nayar and Taina Taskila of the University of Greenwich is nevertheless a good one and captures some of that concern too. Their report on ‘The Progress and Outcomes of Black and Minority Ethnic (BME) Nurses and Midwives through the Nursing and Midwifery Council’s Fitness to Practise Process’ confirms what previous surveys and anecdotal reporting have found.

In summary, West and her colleagues’ findings include:

1. “Ethnicity is related to the risk of referral to the NMC. Black nurses and midwives as well as those of unknown ethnicity are disproportionately represented in the population of referrals to the NMC. Having qualified in Africa, as opposed to other continents, is also a risk factor for referral.”
2. “There are many sources of referral to the NMC but the most common are employers and members of the public. BME nurses and midwives are disproportionately represented in referrals by employers, whereas white nurses and midwives are disproportionately represented in referrals by members of the public. Source of referral is extremely consequential in terms of progress and outcomes of the FtP process.” This is perhaps the most stunning of the finds.
3. “Ethnicity is also related to progression through the FtP process. Cases brought against nurses and midwives of white, other or unknown ethnicities are more likely to be closed at screening than are cases brought against Asian or black nurses and midwives whose cases are more likely to be closed at the investigation stage.”
4. “Region of training is also related to progression through the FtP process. Having trained outside the UK increases the likelihood of the case going to investigation and having trained in Asia or Africa increases the risk of the case going to adjudication.”
5. “There is a significant relationship between ethnicity and gender with more BME male nurses and midwives being referred to the NMC than would be expected. Male nurses and midwives may experience a double disadvantage in that they are a minority in society by virtue of their ethnicity and a minority in the profession by virtue of their gender. The observed number of females referred to the NMC is less than the expected number for each ethnic group.”
6. “Referrals by employers in which BME nurses and midwives are over-represented are unlikely to be closed at screening and most likely to be closed at investigation. A significant number of employer referrals go on to adjudication which contributes to the increased likelihood of BME nurses and midwives going all the way to the last stage of the FtP process.”
7. “The final stage of the FtP process results in a decision about whether or not the individual can continue to work as a nurse or midwife. All ethnicities, with the exception of those whose ethnicity is not known to the NMC, are likely to be allowed to continue to work. White nurses and midwives are more likely to be barred from working than are black or Asian nurses and midwives.”
8. “Employers are more likely to refer BME nurses and midwives and referrals to the NMC that come from employers are more likely to progress to the final stage. However, at adjudication, BME nurses are the least likely to receive a penalty that prohibits them from working. This suggests that the FtP process does not discriminate against BME nurses, but that there is some evidence of discrimination in terms of the disproportionate number of referrals by employers.”

All senior nurses should read those findings carefully and reflect on what they mean, not least for BME staff who may have suffered career-ending referral for no good reason.

Recommendations

West’s findings have considerable overlap with those of Archibong et al (2010) on NHS disciplinary processes. That is reflected in their recommendations which include (verbatim):

• “The urgent need to gather accurate data on ethnicity, characteristics of the job, such as area of practice and level of seniority, and type of allegation (which may change through the FtP process).”
• “Training for staff, managers and university students in areas such as unconscious bias is also recommended.”
• “Further research could also illuminate the relationship between the difficulties that BME and IRN nurses and midwives experience at work and referrals to the NMC.”
• “More comprehensive induction programmes for new BME staff, especially internationally recruited nurses (IRNs).”
• “The literature evidenced that issues of racism and discrimination are prevalent throughout the NHS. Addressing discrimination requires a change in workplace culture and this can only be effective if led by management. It may be that managers are unsure of how best to support BME staff or what processes to follow if an employee raises a complaint against a BME colleague. Thus training to help staff understand the difference between performance management and disciplinary issues is necessary. The quantitative analysis described in this report has shown that employers are the most common source of referrals to the NMC and that ethnicity seems to be a factor in the referral process.”
• “There is an identified need for regular equality and diversity training sessions, including the concept of unconscious bias, for staff members as a way to remind those making decisions of their responsibilities in relation to the requirement of race relations legislation.”

Apart from the misplaced enthusiasm for diversity training and unconscious bias training, these recommendations are good as is the wider report. The report’s publication is a sign of progress from the NMC. There is, however, a serious risk that the report will gather dust unless the issue of disproportionate referrals by employers is addressed.

The NMC will be judged by whether, finally, and expeditiously, it helps that process

The NMC has statutory duties under section 149 of the Equality Act 2010 which requires it to have due regard to eliminate unlawful discrimination, harassment and victimisation. The NMC Equality and Diversity report for 2015-16, paragraph 23 states: “We will be receiving and taking stock of our research into BME registrants referred to fitness to practise, and the findings are likely to prompt actions from the NMC and potentially, for others. We will also work with other bodies in the health environment to influence change that will lead to fairer and non-discriminatory outcomes for BME nurses and midwives.”

It assures readers that the NMC will:

• “Use our influence to promote wider improvements in equality, diversity and inclusion practice” (Para 37.4) and;
• “Build the trust of service users, registrants and others that share protected characteristics by showing understanding of their needs and preferences and challenging discrimination where evidence comes to our attention” (Para 37.5).

Tackling disproportionate disciplinary action against BME staff and the disproportionate referrals of BME staff by employers requires an expeditious system-wide initiative as well as a robust look by the NMC at its own systems.

The NMC will be judged by whether, finally, and expeditiously, it helps that process and in particular whether it acts to stop the (now evidenced again) pattern of inappropriate employer referrals of BME registrants.