Redefining Regulation: Towards Equity and Social Justice

The Nursing and Midwifery Council (NMC) (2018) is the single, independent professional regulator for nurses, midwives and nursing associates in the United Kingdom (UK). It is a statutory body that is accountable to the UK Parliament, and one of the world's largest regulators of nursing. In addition, the NMC approves all educational programmes leading to a registration to practice as a nurse, midwife or nursing associate. Its purpose is to uphold professional standards through The Code: Professional standards of practice and behaviour for nurses, midwives and nursing associates (Alexander 2021), protecting the public and inspiring public confidence. The NMC has a major role in building and maintaining a strong safety culture in health, and is the body charged with investigating allegations of poor or unprofessional practice against registrants, through Fitness to Practise (FtP) investigations. There are currently 826,418, registrants on the NMC's register (Nursing and Midwifery Council 2024a; Nursing and Midwifery Council 2024b), all who have the right to expect fairness, equitable treatment and justice from their regulator. In July 2024, an independent culture review report (NMC 2024a) was released, which raised several key issues of concern. In this commentary, we reflect on the findings and ramifications of this report, consider ways in which the regulator could move towards more socially just ways of operating and the benefits that this change could bring to members of the public and to those on the register. The term white privilege describes the unearned advantages and power of structural and systemic benefits to those who identify as white in societies and professions where racial hierarchies and social injustice exist. Important to note is that these privileges are not always recognised by the individual or earned and may be difficult for them to see because they are institutional benefits rather than personal. They are linked to power and embedded in the social fabric, written policy and the economic and organisational structures. In nursing white privilege can act out in various ways that impact both professionals and patients. Systemic and structural white privilege leads to bias in employment and promotion practices, creating unequal work environments where anti-Black sentiments and practices are normalised (Bailey et al. 2017). The Independent Culture review (NMC 2024a) identified the practice of whiteness through systems of power and privilege, governance and policy and systems of organisational hierarchy, The fact that all senior leaders of the NMC are white reflects the racial hierarchy of the organisation which is embedded in white privilege. The triumvirate of white privilege, systemic and structural whiteness does lead to diminished voices and under-representation of racially minoritised people, fostering an organisational culture of resistance to diversity, equity, inclusion, trust and belonging. This is evident in the Culture Review where the NMC failed in meeting the needs of its staff at Black History Month events by neglecting to provide meaningful engagement and representation in its planning and execution. The NMC's culture review (NMC 2024a) highlights how the first event the organisation hosted for Black History Month in 2023 related to midwifery with a white midwife who failed to even address health inequalities associated with race. Staff described how this was an example of the NMC being tone deaf (NMC 2024a; p107). Staff also described how there was a veneer about being a progressive organisation—the leaders gave speeches quoting Black poet Maya Angelou but at the same time rejecting every application for promotion from Black and minority ethnic candidates (NMC 2024a; p107). In addition to career, pay and promotional disparities, were many instances of overt racism. The independent Culture Review reported whiteness in many ways, the most striking being the racialised and racist language adopted by NMC leadership which associated skin colour with negative social values, and inferior qualities referring to racially minoritised people as “garbage” and “rubbish” when reviewing applications for roles (NMC 2024a; p 19). Over the years, there have been multiple reports and investigations into the NMC (Smith et al. 2006; Council for Healthcare Regulatory Excellence 2008; House of Commons Health Committee 2012; NMC 2020). For more than 10 years, the regulator has been burdened by allegations of bullying, racism, incompetence, and a toxic workplace environment that ultimately lets down patients and their families and which have allegedly resulted in biased, prejudicial and botched investigations (NMC 2024b). Issues have previously been identified around poor leadership and governance (House of Commons Health Committee 2012). In addition, concern has been raised about institutionally racist policies such as language testing which disadvantages applicants from non-European countries and which fail to assess the professional language requirements for nursing practice (Ugiagbe et al. 2023). Others have argued that a health professions specific test, the Occupational English Test is more appropriate as it tests discipline specific language, reading and comprehension (Muller 2016). These concerns are of international significance as the United Kingdom currently relies heavily on internationally educated nurses to support its health services with one in three nurses in the United Kingdom National Health Service having been trained abroad (The Health Foundation 2024; Nuffield Trust 2023). The proportion of internationally educated nurses in the UK is higher than in most comparable OECD countries (The Health Foundation 2023). Previous reviews identified poor areas of practice which included showing inadequate care and compassion, concerning communication failings, serious ineptitude, and a toxic work culture in which staff were reluctant to raise concerns, fearing repercussions (West et al. 2017). Additional concerns were highlighted around the handling of FtP cases, poor data collection methods, record keeping, and failure to meet standards of performance that the public has a right to expect from a regulator. Previous reports have also found evidence of an organisational culture that tolerates and normalises race-based inequities. Indeed in 2008 the NMCs own Vice-President Mo Ali issued employment tribunal proceedings against the regulator on the grounds of racial discrimination (Hansard 2008). The NMC subsequently apologised in an open letter to Ms. Ali for the distress caused (Mooney 2008). Most recently, in July 2024 an Independent Culture Review of the NMC (NMC 2024b) was published. This review came about because of reports by a whistleblower raising concerns that a well-entrenched toxic culture was resulting in biased and failed investigations (NMC 2024b). The brief for the review was to investigate and report on the NMC culture over the past 5-year period. The subsequent report makes for harrowing reading—it is replete with shocking accounts of racism, inequity, injustice and incompetence, that have been harmful to nurses, midwives and nursing and midwifery, and placed registrants and patients at risk. Six registrants ended their lives by suicide waiting for their cases to be heard. In summing up, this most current report states, that “we have also noted the repeated response from the NMC is a promise to learn lessons. Yet, given the frequency of reports and continual criticisms, questions have to be asked as to whether this commitment is genuine” (NMC 2024b). Findings in this most recent report highlight long-standing and entrenched problems with the NMC, many of which have been previously identified through previous inquiries and reviews, spanning more than 15 years. Respondents to this most current investigation identified many issues of the concern previously identified and continued unabated, despite previous negative findings. Notwithstanding being identified in previous reports, racism, bullying and discrimination are revealed as current issues of concern at the NMC, with 40% of respondents saying they had either witnessed or experienced microaggressions in some form in the preceding 12 months (NMC 2024b). One respondent described the working environment as a “low trust environment characterised by suspicion, fear, blame, resistance and silos” (NMC 2024b:16). Multiple previous investigations into the NMC have highlighted a toxic work culture, with entrenched problems that include bullying, a racist and discriminatory culture and staff working with fear of repercussions if they spoke up. Although the NMC espouses key values, including fairness, equity, kindness and compassion, when reading the report, there is clearly a mismatch between stated organisational values and the reality of how the organisation operates, and nowhere is this more evident than when looking at the organisational performance in relation to equity and social justice. Entrenched racism has been graphically highlighted in this most recent report. This includes the perceived unwillingness of senior managers to recruit people from Black and Minority Ethnic backgrounds. One respondent to the culture review reported “there is an overriding perception that certain people, particularly from Black and ethnic minority groups are just not good enough for certain positions, so I have found it difficult to get the exposure to be seen to belong in certain spaces” (NMC 2024a; p46). Despite raising issues staff felt they were gaslighted and victimised further. A group of staff raised concerns directly with the Chief Executive, having shared their powerful testimony of racism and bullying they were asked to pose for a selfie with her. Two years later nothing had changed, and half of those staff had left the organisation (NMC 2024a; p98). Other issues include representation amongst FtP panel members and issues around the pronunciation of names. At the time of the review, the NMC was working through a significant accumulation of FtP cases, with nearly 6000 remaining unresolved (NMC 2024b) and some nurses remaining in the FtP system for up to 10 years. Referrals often stem from vexatious complaints, based on racial discrimination and bias. Of major concern, was the finding that in the preceding year, there had been six people commit suicide while going through FtP processes. Senior informants advised the review team that the NMC was ‘adversarial and disrespectful towards nurses and midwives’ and that processes were ‘combative’ (Nursing and Midwifery Council 2024b, p:17). The primary responsibility of the NMC is to maintain the register of nursing and midwifery professionals while investigating any issues to ensure public safety. However, due to this extensive backlog, nurses, midwives, nursing associates, as well as patients and their families, are facing delays that stretch for years before cases are addressed. Unacceptably lengthy waiting periods mean that those under scrutiny are subjected to long periods of stress and dis-stress (as evidenced by the suicide statistics) and that the long delay in hearing cases means that the NMC mission to respond to public safety concerns is severely compromised. Within the NMC workplace, individuals from Black ethnic backgrounds (38%) are considered minorities. Recruitment practices play a crucial role in shaping this workforce distribution. Data from 2023/24 recruitment campaigns show that while applicants from Black ethnic groups nearly double those from white backgrounds (3316 vs. 1978), their hiring rate is almost half that of white applicants (4.4% vs. 8.0%), revealing a substantial disparity in employment outcomes. There is a notable lack of representation of Black minority ethnic staff in higher-level positions, with most Black staff concentrated in lower-grade roles, and white staff more successful on promotion (NMC 2024b). Unsurprisingly, this disparity in employment and promotion carries through to disproportionate pay, with staff from ethnic backgrounds generally being paid less than white staff (Nursing and Midwifery Council 2024a; Nursing and Midwifery Council 2024b). The many reports highlighting significant problems with the NMC and the fact that the problems persist, suggest that the NMC leadership has not been open to responding to criticism, transparent and meaningful open dialogue and has a lack of accountability to its stakeholders. In the face of previous negative and very concerning findings, the NMC steadily asserts that it would learn from prior mistakes. However, considering the numerous prior reports and ongoing criticisms, one must conclude that ineffective leadership has allowed these issues to persist unabated. More than 85% of NMC staff engaged in the current review, and many expressed disappointment that change had not occurred following previous reviews and investigations (NMC 2024b). While the most current review does acknowledge that there are some good examples of leadership at the NMC, one of the most concerning observations refers to the unwillingness of the NMC to accept critique, describing “a willful deafness to criticism and a culture that is seemingly not open to feedback and opportunities to improve when things go wrong.” This observation suggests that (if we consider past behaviour to be a predictor of future behaviour) there is no reason to believe that any significant change will occur, despite the very clear need for urgent and effective systemic change. Clearly, NMC registrants, and members of the public deserve better. This report raises many issues and leaves us with many questions. Moorley et al. (2020) made the call to dismantle structural racism in nursing but how can that occur, when the regulator is itself a mire of racism? How does one begin to dismantle whiteness? Given the many reports that have highlighted ongoing and seemingly intractable issues, is it time for registrants to ask if the NMC is the only house to regulate nurses, midwives and nursing associates? These authorities have an obligation to develop and enforce standards that promote inclusivity and diversity in nursing practice and enact policies that will promote anti-racism and address health disparities caused by systemic racism. Undeniably there is an urgent need for action to address racism, bullying and the culture at the NMC. Many have called for a new regulator and while attractive this also carries considerable risk. The government consulted on regulatory changes in 2023 (Department of Health and Social Care 2023) seeking to harmonise processes between the various professional regulators. With similar regulatory systems there is a risk that the government moves to a single regulator for all professionals. This would simply create an even bigger problem as the other regulators such as the Health and Care Professions Council (HCPC) and the General Medical Council (GMC) have not covered themselves in glory over recent years and all have significant fitness to practise backlogs. The British Medical Association (2023) highlighted how the GMC racially discriminated against a medical practitioner and called on the GMC to address concerns about its regulatory processes. The General Pharmaceutical Council struggled with unconscious bias to such an extent that all case papers had to be anonymised (Kings View Chambers 2022). There are two fundamental problems with regulation and professional discipline as it stands. The first of these relates to a failure to address issues in a fair, equitable and just way at a local level and the second where the regulator compounds the problem because of a system which is inflexible, backward looking and adversarial (Burhans, Chastain, and George 2012). Both of these issues are then compounded by the racism encountered with nurses who are from a global majority background being more likely to be referred often for low level issues which should have been addressed locally and then subjected to further racism and system failures by the regulator. The way in which health services manage errors has been slowly changing in many countries globally since 2000. These changes are designed to ensure that we learn from error and instigate processes and systems to prevent future harm. The World Health Organisation in its global patient safety action plan (WHO, 2021) recognised the inevitability of error in healthcare because of the complex nature of health care treatment. This has led many organisations to develop a just and accountable culture approach to error. Such approaches examine organisational and systems failure alongside the individual's role and only consider disciplinary action where the individual's behaviour is regarded as reckless (NHS England 2021; Burhans, Chastain, and George 2012). These approaches often use algorithms to determine if disciplinary action is warranted and to ensure fair blame and learning from incidents. Disciplinary action is reserved for deliberate or reckless acts. In the United States regulators are advocating the use of similar algorithms to determine whether regulatory action is indicated (Alexander 2021). According to data from the NMC they receive around 5700 referrals a year with a slight increase in referrals from employers in 2023. Of these around 800 proceed to a full hearing each year (NMC 2024b). The most common practice reasons for referral are grouped into patient care issues, prescribing and medicines management and record keeping (NMC 2024b). This suggests that a proportion of cases proceeding to full adjudication could be reduced through the adoption of just culture principles. While the adoption of just culture principles could lessen referral to the regulator for fitness to practise it is not without its problem. The system has been unevenly adopted by NHS organisations with considerable variation in how managers view reckless behaviour and manage incidents (Tasker, Jones, and Brake 2023). In addition, racism in the workplace might impact on who gets referred and who does not. Therefore, any changes in the system of regulation would need upstream work to tackle racism in the workplace. It is imperative that the NMC adopts trauma-responsive leadership to address systemic inequities and create a more inclusive environment for nurses and midwives, especially those from racially minoritised backgrounds and those facing the FtP process. This leadership approach acknowledges the profound effects of trauma on individuals and teams, fosters emotional safety and psychological support, ensuring that the NMC's decisions and actions do not re-traumatise those who have been historically marginalised, discriminated and oppressed. Leaders must demonstrate empathy, transparency, and accountability, creating an environment where racially minoritised staff and regulated professionals feel valued, respected, supported and understood (Dutton et al. 2019). This could reduce the emotional toll on professionals while ensuring a more equitable and humane regulatory process. Cultural safety goes beyond cultural competence by focusing on the power dynamics between healthcare providers and the communities they serve, particularly minoritised and marginalised groups. It emphasises the need for healthcare environments to be free from discrimination and understand the socio-political contexts of their patient's lives (Papps and Ramsden In regulatory cultural safety in all of the NMC's would ensure that investigations are fair, free from of racial to equity in the nursing and midwifery of their racial or ethnic This report highlights the urgent need for in the NMC. midwives and nursing associates need and deserve a regulator who can and with FtP issues, commit to anti-racism in all its and and create and maintain of and fairness, where social trauma-responsive care for all is a that every single action and health professionals and as we for The no of The have nothing to report.