According to legal advice given to the Nursing and Midwifery Council (NMC), fitness-to-practise cases brought against nurses and midwives for refusing to co-operate with police can be challenged under human rights law and this could have implications for all health professions.
Safety campaigners said laws must be changed to end a “sickening” anomaly, which could put safety at risk. However, regulators insisted that patients would be protected by their own investigations or NHS disciplinary procedures.
The NMC’s line has always been that professionals “must co-operate with internal and external investigations.” However, Field Fisher Waterhouse told the NMC that this probably did not apply to police enquiries as the right not to self-incriminate trumped professional regulation.
James Titcombe who has been trying to investigate the truth about the death of his son said that when questioned by police, most staff refused to answer questions. He said that, “if there’s ever a police investigation into an incident involving NHS staff then the legal advice could well be, don’t co-operate with the police and that’s professionally acceptable.” He went on to say, “the police are trying to get to the bottom of this and as a parent, to realise that [staff] can sit there and refuse to answer questions is sickening.”
Field Fisher Waterhouse told the NMC that there would be “real risks” if it tried to act against staff for refusing to help police. “We do not consider that failing to assist the police in this way would necessarily call into question a registrant’s fitness to practise and we would advise the NMC that attempts to take action against registrants on this basis may ultimately be held to be unlawful by the courts.”
They said that only an Act of Parliament could overrule the right not to self-incriminate and even then, “attempts to remove privilege by overriding statutory provisions have been held to be incompatible with Article 6 of the European Convention of Human Rights and the right to a fair trial.”
Peter Walsh, the chief executive of the charity Action against Medical Accidents said, “this reinforces that the whole framework of professional regulation needs to be reviewed with a view to putting patient safety first.”