The Nursing and Midwifery Council v Ishaq Ibrahim

This is an appeal against the Order made by Richard Kimblin KC (as he then was) sitting as a Deputy Judge of the High Court in which he allowed the appeal of Mr Ishaq Ibrahim (“the Registrant”) against the adverse findings which had been made by the Fitness to Practice Committee (“the FPC”) of the Nursing and Midwifery Council (“the NMC”) in their decision of 31 October 2023. The judge quashed the 12 month Conditions of Practice Order and the interim 18 month Conditions of Practice Order along with the decisions underlying those Orders and ordered that the charges against the Appellant be dismissed. Limited permission to appeal was granted by Zacaroli LJ on 24 March 2025. The grant of permission to appeal was limited in that Zacaroli LJ observed that there was no real prospect of success in relation to any challenge to the judge’s decision to quash the factual findings of the FPC. Permission to appeal was, however, granted on the basis that the judge made implicit findings of fact for which no adequate reasons were given and, further, that the judge had erred in failing to remit the Registrant’s case to the FPC for reconsideration.

Having heard detailed oral submissions on behalf of the NMC and the Registrant the court indicated that it was persuaded that the appeal should be dismissed. This judgment records the reasons for the court’s decision.

The case concerns the events of the evening of 27 November 2017 and the following morning of 28 November 2017. The Registrant was at that time working a night shift at University College London Hospitals NHS Foundation Trust. The charges which the FPC had to consider were based upon the Registrant’s care of Patient A, who had a diagnosis of CNS lymphoma and who suffered from paranoid schizophrenia. Patient A was in a palliative care pathway. She was described in the evidence as being 5 foot 4 inches tall, frail to the point of malnourishment and moving with a shuffling gait. Patient A would become agitated and she was unable to articulate her concerns to staff. She was permitted to walk at liberty around the ward as a means of de-escalating her behaviour. Patient A had been subject to 2:1 care with a registered nurse and a healthcare assistant caring for her, but from the day shift of 27 November 2017 she was subject to 1:1 care.

The essence of the charges which the Registrant faced arose from events in the early hours of 28 November 2017 when Colleague A observed that the Registrant had closed Patient A in her room and was holding the door shut. Colleague A reported that Patient A was plainly distressed and knocking on the door to be let out. Colleague A contended that she told the Registrant that he could not do that and that Patient A should be allowed to pace around the corridors, at which point the Registrant stopped holding the door closed. Colleague A contended that she had seen a second occasion when the Registrant had shut Patient A in her room and had remonstrated with the Registrant again. Later in the shift, Colleague A complained about this to Colleague C including making a note in Patient A’s notes. It was alleged that when the Registrant was confronted with this by Colleague A and Colleague C, he raised his voice.

In the light of this material, the NMC formulated charges against the Registrant in the following terms:

“That you a Registered Nurse:

1)

On 27 November 2017 to 28 November 2017 on one or more occasions prevented Patient A from leaving her room.

2)

Your actions at charge 1 were:

a)

Not supported by Patient A’s care plan;

b)

Contrary to the advice of

i.

Colleague A;

ii.

Colleague B.

c)

Unnecessarily caused distress to Patient A;

d)

Continued despite you being aware of Patient A’s distress.

3)

In response to being questioned by colleagues relating to your actions in respect of Patient A:

a)

raised your voice to Colleague A;

b)

raised your voice to Colleague C

AND in light of the above, your fitness to practise is impaired by reason of your misconduct.”

The FPC sat in a panel to hear the case in relation to these charges between 5 June 2023 and 14 June 2023 and then subsequently on 30 to 31 October 2023. The panel was comprised of two lay members and one registered nurse, and the panel was assisted by a legal assessor. The proceedings commenced with the hearing of the witnesses for the parties and the determination of the FPC’s factual conclusions in respect of the issues raised by the charges. The FPC heard evidence from Colleague A and Colleague C as well as hearing evidence from the Registrant and receiving evidence from witnesses in support of his case. At the conclusion of the NMC’s case, the FPC found that there was no care plan in place and therefore dismissed Charge 2(a). The FPC further dismissed Charge 2(b)(ii) on the basis that Colleague B (the Nurse in charge during the shift in question) did not attend and the whereabouts of this witness were unknown.

In response to the remaining charges, the Registrant gave evidence that Patient A was a falls risk on the basis of the way she walked and the fact that she spilt liquids whilst walking in the ward. She would walk into other patients’ bays and cause them distress. The Registrant was of the view that Patient A should have had 2:1 care restored and that whilst he was caring for her she had run towards the exit and at other times paced the corridors spilling milk onto herself and the floor as a result of her difficulty swallowing. When the Registrant had taken her back to her room, she had thrown a pot of yogurt towards him and he feared that she was going to attack him. It was the Registrant’s opinion as a Registered Mental Health Nurse that the best treatment was to restrain her in her room by holding the door closed and therefore his actions were, in all the circumstances, appropriate.

In addition, the Registrant relied upon key elements of the context of Patient A’s care which further reinforced his view that his actions had been necessary and appropriate. The first element was that a Deprivation of Liberty Order (“DOLS”) had been made in respect of Patient A on 24 November 2017 and was in force at the relevant time. It had been prepared in consultation with the nurse in charge of the ward and a doctor acting as a Mental Health Assessor. The Order was made deploying the powers provided by part 8 of Schedule 1 to the Mental Capacity Act 2005 and it recorded Patient A’s diagnosis of paranoid schizophrenia allied to a history of substance abuse and a long history of mental illness and non-compliance with medication. It recorded that Patient A had substantial care needs and exhibited challenging and aggressive behaviour which required 2:1 care to reduce risks related to her behaviour.

A further element of context was a document in relation to Patient A which purported to be a care plan (albeit the FPC concluded that it was not a care plan and therefore Charge 2(a) had to be dismissed). This document recorded that Patient A was at risk of absconding and had twice absconded whilst under 2:1 supervision. She had expressed suicidal ideation and was a “huge falls risk”. The document went on to emphasise that a carer should not close the door on her so as not to be able to see her as the carer’s role was to supervise Patient A if she wished to go outside. The document instructed “please ensure people accompany her and keep eyes on her at all times”.

Further context was provided by Patient A’s history notes at the hospital which noted at 1900 on 27 November 2017 that Patient A had been very agitated throughout that day. The following morning at 06.50 she was noted as being restless and unstable and that she “kept pacing around the ward and sometimes was observed running toward the exit”. At 07.45 on the same date the notes again record her as being “+++ agitated, distressed and upset overnight”. The note went on in the following terms:

“Suggested to RMN it was best to not keep her in her room as her behaviour was getting increasingly worse. [Patient A] was crying and knocking on the door, eventually retired to sleep for approx. 15 mins, woke up again and continued to knock on the door and remained agitated. On entrance to [Patient A]’s room she was laying on the floor, managed to get her up and to bed. [Patient A] continued to pace this AM once out of the room, she does remain unsteady. Conversations were had with RMN several times throughout shift re: not keeping [Patient A] in the room not only by myself but by other nursers. Sat with [Patient A] towards end of shift to comfort – responded well for short amount of time.”

A further piece of the context relied upon by the Registrant was the statement which he made not long after the incident on 13 December 2017. In that statement he recorded his judgment, based on his clinical experience, that Patient A’s presentation suggested that she needed to be on a 2:1 level of observation and that he had raised this with the staff nurse but she had replied that Patient A had recently been downgraded from that level of observation. The statement records that Patient A was pacing around and visiting other patients’ personal space. The statement records that Patient A was becoming very agitated and displaying aggressive behaviour in the early hours of the morning of 28 November 2017 and that she had attempted to leave the ward on some occasions through the exit. As a result of spilling milk that she was attempting to drink, she slipped on two occasions and the witness statement records that the Registrant drew the staff nurse’s attention to the increased risk of Patient A falling. Having observed Patient A run towards the exit and examine the door, apparently determined to leave the ward, the Registrant concluded that there was a real possibility of harm to her if no action was taken and he took the decision to walk her to her room and encouraged her to stay in bed. It was during this time that Patient A threw yogurt at the Registrant, and he was genuinely concerned she was going to attack him. As a consequence, he closed the door to the room to prevent her from physically attacking him, an action which he considered was proportionate to the risk of harm in all the circumstances. He monitored Patient A from the other side of the door, following which Patient A put herself down on the floor and refused to get up. The witness statement records that during this time in the early hours of the morning the Registrant requested that a doctor be called to see Patient A, but this never occurred.

During written and oral submissions made to the FPC on the Registrant’s behalf, points were raised reliant upon this contextual material to contend that on the evidence available the appropriate factual conclusion was that the Registrant’s care of Patient A was appropriate and responsible. In support of the Registrant, emphasis was placed upon the inappropriateness of downgrading Patient A’s care from 2:1 to 1:1 against the background of the history notes from the hospital, the DOLS assessment and the document purporting to be a care plan. The decision made by Colleague C to reduce the care from 2:1 to 1:1 was not documented or clinically justified in the light of the DOLS assessment. In essence, it was submitted on behalf of the Registrant that the context of the DOLS assessment and the observed presentation of the behaviour of Patient A set out in the documentation justified the actions which the Registrant took in caring for Patient A in an unacceptable situation which had been caused by Colleague C downgrading the care regime for Patient A from 2:1 to 1:1.

The FPC proceeded to make findings of fact and concluded that each of the charges were proved. In reaching their factual conclusions, the FPC made no reference to the DOLS Order which was in place or the contents of the purported care plan. Some reference was made to the hospital notes, but no reference was made to the change in the care arrangements for Patient A, namely the reduction in her supervision from 2:1 to 1:1 care. In respect of Patient A throwing yogurt, the FPC noted “that you made no mention of it in your notes nor raised it with anyone at the time or at the end of your shift”. The FPC went on to determine that “there has not been any objective contemporaneous evidence at the time to show that it was necessary to prevent patient A leaving her room in the way that you did, which caused her distress”.

The panel went on to consider whether or not the Registrant had been responsible for misconduct. The FPC expressed its conclusions in this regard in the following two paragraphs:

“The panel considered that based on the evidence put before it you did hold Patient A’s door shut on more than one occasion. You did not listen to the advice of Colleague A who informed you during the oral handover how they normally care for Patient A. The panel determined that you did go against the advised practice for Patient A. The panel further determined that Patient A was very unhappy with your standard of care. Patient A was physically showing signs of distress and you did not respond to this behaviour. The panel was of the view that this compounds your conduct ad [sic] therefore determined that your actions were serious.

The panel considered that you approached Colleague A and in your own evidence you stated that you did raise your voice to get your point across. The panel determined that you were defending your position when you knew you had done something wrong. The panel considered that your actions fell below the standards expected of a registered nurse and amounted to misconduct, albeit not serious misconduct as per the test set out in Roylance.”

Having concluded that the Registrant had been responsible for misconduct, notwithstanding the Registrant’s submissions in relation to reflection, insight and remediation, the FPC made a finding of impairment on the basis of public interest grounds. Finally, turning to the question of sanction, the FPC determined that it was appropriate to make a Conditions of Practice Order for a period of 12 months. The conditions included working alongside a band 6 registered mental health nurse who is aware of his conditions; the identification of a mentor; the keeping of a reflective practice profile and providing the NMC with information about where the Registrant was working or studying and providing a copy of the conditions to any organisation with whom the Registrant was engaged. The FPC also made an Interim Order for a period of 18 months to cover any potential period of appeal with conditions which were identical to the conditions to be imposed by way of the Conditions of Practice Order sanction.

The case which was advanced before the judge under ground one was that the FPC had simply not engaged with the Registrant’s factual submissions based upon the undisputed fact that Patient A was a risk to herself and others and was at risk of absconding, and further that she was subject to a DOLS assessment which required 2:1 care as a condition of the Order. That had been unilaterally downgraded by Colleague C to 1:1 care without any proper procedure and it was further undisputed that Patient A had no care plan. When the Registrant came on shift he was unaware of the prescribed standard of care from the DOLS Order and further not briefed that it had been unilaterally downgraded and there was no care plan.

The judge accepted that these contextual elements of the elements were capable of explaining and justifying those actions of the appellant which had founded the FPC’s conclusions. The judge reached the following conclusions in relation to ground one:

“39.

It is also of obvious significance that the Appellant was placed in the sole care of Patient A, contrary to the level of provision which had been signed off by an experienced and expert body of medical professionals in the DOLS. In my judgment, this is a circumstance of such clear materiality that it had to be fully grappled with in the Panel’s decision. The DOLS is a carefully considered and reasoned document which has a statutory basis. While this case is not directly concerned with a departure from the DOLS in that the charges do not allege that any party was in error for allowing circumstances to exist in which the care provision was reduced from 2:1 to 1:1, it is an authoritative statement which plainly should have been followed unless and until it was varied. The Appellant was correct to rely on it.

40.

Still further, it is relevant that the Appellant was new to the ward and had no care plan from which to work. These matters show that the Appellant was put into a challenging situation with arguable systemic failings which were not of his making.

…

43.

In order to find the NMC’s allegations proved, the Panel was required to decide whether the Appellant had clinical justification for keeping the patient shut in her room. I find that it is not possible to see how the Panel could have made a fair and rational decision while omitting to address the terms of the DOLS order, the inadequacy of staffing, and the patient’s history of dangerous and aggressive behaviour.

44.

In a case in which the registrant’s case is justification of the action or omission which is alleged, the Panel must at some stage make findings about that the justification which is relied upon. In this case, it was necessary to make both findings of fact and also findings about the appropriate range of responses to the circumstances. The Panel had to go further than making findings on the factual matters which were set out in the charges. It was necessary to go on to set out what the Panel found the situation to be. How was Patient A behaving; what were the risks to her, to other patients and to staff including the Appellant; what is the significance of the difference between the DOLS and the care actually provided? This is not an exhaustive list nor a checklist. Rather, they are examples of the issues which are plainly important but have no related factual findings nor assessment.”

The judge thus concluded that ground one was made out and that the appeal had to be allowed on that basis, quashing the factual decisions and the finding of misconduct which in turn led to the finding of impairment necessarily falling away. The judge went on to consider ground two, the contention that the FPC had erred in finding impairment. The judge again concluded that the FPC had failed to engage with the material presented by the Registrant, including such key features as failing to explain the relevance of the lengthy passage of time in the intervening years between the events giving rise to the charges and the absence of any other established complaint or concern, and their suggestion that no remorse was shown by the Registrant for what had happened when the Registrant had provided evidence explaining his shame and deep regret at what had occurred.

In the light of these conclusions, the judge invited submissions as to the appropriate form of the order. The NMC submitted that the case should be remitted to the FPC. On behalf of the Registrant, it was submitted that the findings of fact should be quashed and any decision on remittal take account of whether any purpose would be served by the imposition of another order bearing in mind that there had been compliance with the interim order which had been in place. The judge’s conclusions in relation to these issues were set out as follows:

“59.

In a regulatory appeal for a health care professional, the primary focus is the public interest and trust as recognised by the NMC in articulating the role of the profession (paragraph 8 above). The competence of the regulatory body to judge professional standards lies with the regulatory body, not the court. The court must accord due deference to the evaluation of a panel composed of medical professionals who are obviously better placed to make a peer judgment: Thorpe LJ in Meadow v GMC [2006] EWCA Civ 1390; [2007] Q.B. 462 at [280]. Moreover, this appeal is on the papers without recall of witnesses.

60.

I have found that the Panel was wrong to omit to make findings which related to the Appellant’s case, to fail to integrate such findings on the issue of misconduct and to omit important factors in finding impairment. My judgment in these respects is not based on the evidence of witnesses but on the basis of the same documents as were before the Panel. The circumstances faced by the Appellant on 28th November 2017 are clear and detailed and are easy for the court to see and understand. To that extent the court is as well placed to assess that material as the Panel. The court is similarly competent as the two lay members of the Panel but does not have the expertise of the registrant member of the Panel.

61.

I am sure that if the Panel had taken the Appellant’s case properly into account when it reached its decisions on misconduct, impairment and sanction, it would have reached different and less serious findings. It would either have found that misconduct was not made out, or that it was misconduct of a lesser degree. The same applies to impairment. The sanction would necessarily be a lesser sanction, or no sanction at all.

62.

The interim order was made and has been effective during the period before this appeal. That interim order has now lapsed. I have not been told that there is any factor or fact which relates to events and the Appellant’s practice post 2017 which warrants his return before the Committee. It is therefore clear that if the case were returned to the Panel, or a differently constituted panel, then no sanction could properly and fairly be imposed because the sanction has already served its purpose in the public interest.

63.

In my judgment, in this case the public interest also includes the question of whether a full re-hearing of this particular case would be proportionate. I do not think that it would be. First, the outcome on sanction is highly likely to be ‘no sanction’ even if the Appellant’s case was put to one side as happened before the Panel. Second, there is no evidence of any other regulatory concern in respect of the Appellant. Third, it is apparent from the Appellant’s Reflective Piece at paragraph 49 above, that the experience and the fact of the proceedings had a substantial impact on his approach to his practice which, in my judgment, showed appropriate insight. Fourth, the re-hearing would have to be a complete re-hearing in order to establish the full factual matrix, rather than a short hearing on misconduct on the basis of the limited facts as found by the Panel.

64.

Lastly, I would add that my decision on disposal is not taken in a vacuum. A deputy judge who sits in the Administrative Court encounters lists of applications by the Respondent to extend time to hear disciplinary charges from which it is clear that there is considerable pressure on the Respondent to address a large workload of serious cases, which the Respondent is working hard to complete. There is a risk that any remittal would take a considerable time to be heard, as is indicated by the hearing of this case before the Panel, i.e. five years. If I directed expedition, that would further delay other cases.”

In the light of these conclusions, the judge declined to remit the case to the FPC. The appeal was allowed and the factual findings and findings of misconduct and impairment were quashed along with the sanction and the resulting Orders.

As set out above, permission to appeal was granted on a limited basis. Permission was not granted to challenge the judge’s decision to quash the factual findings of the Panel on the basis that there was no real prospect of success. It was accepted by Ms Mohamed on behalf of the NMC that the challenge raised in the appeal, and for which permission had been granted, related to the decisions to be taken on disposal once it was accepted that the FPC’s decision was wrong and could not stand.

The powers of the High Court in relation to an appeal from a decision of the FPC are contained within article 38(3) of the Nursing and Midwifery Council Order 2001 which provides as follows:

“(3)

The Court or sheriff may—

(a)

dismiss the appeal;

(b)

allow the appeal and quash the decision appealed against

(c)

substitute for the decision appealed against any other decision the [Fitness to Practise Committee] or the Council, as the case may be, could have made; [or]

[(ca)…]

(d)

remit the case to the [Fitness to Practise Committee] or Council, as the case may be, to be disposed of in accordance with the directions of the court or sheriff,

and may make such order as to costs (or, in Scotland, expenses) as it, or he, as the case may be, thinks fit.”

Ms Mohamed accepted that the provisions of article 38(3) of the 2001 Order provide a judge dealing with an appeal of this kind with a discretion as to which of the four alternative disposals to adopt in the light of the judge’s findings alongside any costs order that may be appropriate. In the present case, she accepts, therefore, that the judge had a discretion as to whether to dispose of the appeal exercising the power in article 38(3)(b), (c) or (d). Ms Mohamed submits that the judge erred in law when he failed to remit the case to the FPC since, in the circumstances, it was only a remittal to the FPC that was properly open to the judge in the particular circumstances of this case.

The grounds for Ms Mohamed’s submissions were as follows. Firstly, she submitted that whilst the judge had quashed the factual and misconduct findings the FPC had reached, he failed to make any of his own alternative factual findings so as to justify the conclusion which he reached which was, in effect, to take no further action in relation to the allegations which had given rise to the charges in the case. This was a fundamentally unsatisfactory approach because it meant that the charges against the Registrant remained unresolved and that there were therefore unresolved issues related to a failure of clinical judgment which the NMC required to have resolved in order to discharge its primary function of protecting the public by regulating nurse practitioners. In these circumstances, the only appropriate approach was for the judge to remit to the FPC for them to undertake the necessary investigation.

Secondly, Ms Mohamed submitted that remittal was the only suitable answer in these circumstances because it was necessary for an expert tribunal to explore the questions which were raised, and on the judge’s findings not resolved, by the FPC and for there to be a full and expert consideration of the questions as to the circumstances of the incident and whether it involved misconduct and impairment. In that connection, Ms Mohamed drew attention to the case of GMC v Jagjivan [2017] EWHC 1247 in which the Divisional Court summarised some principles in relation to the correct approach to professional regulatory appeals. In particular, at paragraph 40(v) the following was observed:

“v)

In regulatory proceedings the appellate court will not have the professional expertise of the Tribunal of fact. As a consequence, the appellate court will approach Tribunal determinations about whether conduct is serious misconduct or impairs a person's fitness to practise, and what is necessary to maintain public confidence and proper standards in the profession and sanctions, with diffidence: see Fatnani at paragraph 16; and Khan v General Pharmaceutical Council [2016] UKSC 64; [2017] 1 WLR 169, at paragraph 36.”

Thirdly, Ms Mohamed submits that the judge erred in principle in particular in paragraph 62 of the judgment, by wrongly equating the Interim Order imposed during the currency of the appeal as, in effect, amounting to time served in the context of any future sanction that might be imposed. There is an important distinction between an Interim Order operating during the course of an appeal and a Conditions of Practice Order imposed for a period of time. Ms Mohamed points out that a Conditions of Practice Order is subject to a review prior to its expiration which enables the FPC to reevaluate the questions relating to its imposition and reconsider whether it continues to be necessary. This misdirection undermined the soundness of the judge’s conclusion that the matter should not be remitted to the FPC. Fourthly, Ms Mohamed submits that while there has undoubtedly been a significant passage of time since the events in question, these delays are not a bar to the unanswered questions in relation to the Registrant’s fitness to practice being addressed and provided with satisfactory answers.

As set out above, having reflected upon these submissions, I am unable to accept there is substance to them. The starting point must be to put the judge’s order into its proper context. For the reasons given at paragraphs 43 and 44 of the judge’s judgment, building upon the other conclusions which he reached in connection with ground one, it is clear that the judge concluded that the findings of the FPC were wrong and could not stand. That conclusion arises in the wider context as noted by the FPC of rule 30 of the Nursing and Midwifery Council (Fitness to Practice Rules) 2004 which provides that where facts in relation to an allegation are in dispute the NMC bears the burden of proving such facts. The conclusion that the FPC had failed to properly grapple with the evidence, and therefore failed to make a legitimate finding that the burden of proof in respect of the allegations had been discharged, has the effect of bringing the proceedings against the Registrant effectively to a halt, as the appeal has to be allowed. The question which then arises in those circumstances is which of the appropriate alternative disposals pursuant to article 38(3) of the 2001 Order is the appropriate course for the judge to take. At the stage where the appeal has to be allowed, the question of the appropriate disposal is a matter for the judge’s discretion as set out above. It is trite to say that on appeal the grounds for interfering with a judge’s exercise of discretion are necessarily limited. In the present case, none of the factors raised by Ms Mohamed to justify an interference with the judge’s discretion are in my judgment viable.

So far as the first point is concerned, it was not necessary or incumbent upon the judge to make alternative findings of fact once he had determined that the FPC’s findings could not stand. He could have chosen to do so by exercising the power under article 38(3)(c), and seeking to substitute an alternative decision for that which the FPC reached. That was not a course which was recommended to him in the submissions of counsel on either side of the case in respect of disposal, save that the suggestion was made that there should be a finding that the facts were not proved.

In my judgment the judge was entitled to consider, in the exercise of his discretion, whether or not a remittal to the FPC would serve any purpose. Whilst Ms Mohamed was critical of his findings in paragraph 61 as being speculative, in my view they were an entirely accurate portrayal of the position which the court found itself in. As the judge noted, the effect of his decision was that the panel had erred in failing to integrate the various contextual mitigating features of the case within their assessment of the facts and the question of misconduct and impairment. Notwithstanding those matters had been left out, and therefore taking the case against the Registrant almost at its height, a conditions of practice sanction had been imposed. I have no difficulty in accepting the validity of the judge’s conclusion that had those factors been taken into account, and even allowing for the fact that the judge lacked the expertise of a Registrant member of the panel, different and less serious findings would necessarily have ensued, leading to a conclusion that misconduct was not established or only established to a lesser extent. These conclusions would lead, as the judge noted, to a lesser sanction or no sanction at all. In my view each of these findings was obviously germane to the question of whether or not a remittal was required and would be purposeful in the context of any suggested requirement that the charges should be reinvestigated. If the public interest could only be served by remittal to the FPC and reinvestigation then the 2001 Order would provide solely for remittal in a case where the appeal is allowed, but it does not. In fact the public interest was appropriately reflected in the conclusions of the judge in relation to disposal and the choice of option which he made given the alternatives in article 38(3) of the 2001 Order. There is therefore no substance to the contention that only an order of remittal was appropriate.

Turning to the second submission made by Ms Mohamed in relation to the expert nature of the FPC, it is clear that the judge had regard to that consideration in paragraph 59 of his judgment. He clearly took account of the deference which should be given to the evaluation of a panel which includes a medical professional when reaching judgments of the kind that are made in professional regulatory cases.

I would, however, note that the facts of Meadow v GMC [2007] Q.B. 462 and the dictum of Thorpe LJ at [280], to which the judge referred, make clear that deference is not an absolute or overriding requirement in every case. Whether, and if so, to what extent, a court should defer to a panel which comprises or includes medical professionals, must depend upon the extent to which the issues in the case are clinical issues, and the extent to which the panel in question comprises medical professionals with relevant clinical expertise.

That being so, the judge was entitled to have regard to the fact, as he said, that the circumstances faced by the Registrant on 28th November 2017 are clear and easy to understand. Moreover, the charges against the Registrant do not raise any complex issues of clinical practice. Some simply involve allegations that the Registrant raised his voice to his colleagues.

In these circumstances, having taken account of the requirement for deference, there was no basis in my view to regard that consideration as overriding in the context of the judge exercising a discretion as to whether or not to remit this case to the FPC. It was a consideration which was pertinent to his evaluation of whether or not such a remittal would be purposeful given the matters which the judge evaluated in paragraphs 60 and 61.

Turning to the third issue, in my view the judge was quite entitled to take into account that there had been no further adverse conclusions in respect of the Registrant’s practice since the events giving rise to this case in 2017. This was a further factor impacting upon whether or not a remittal of this case would be purposeful and the question of the extent to which, if at all, it would lead to any sanction being imposed on the Registrant. It may well be that the final sentence of paragraph 62 could have been phrased better and certainly Ms Mohamed is entitled to observe that the imposition of the Interim Order cannot be accounted for in the question of any sanctions to be imposed on the basis that it amounts to “time served” by the Registrant. In truth, however, that was not the point which the judge was making, but rather his observation was an extension of the point which he had made earlier, namely that there had been no adverse finding in relation to the appellant’s practice during the seven years prior to the delivery of the judge’s judgment.

Finally, in relation to delay, it may well be that in certain circumstances a delay of nine years between the events of alleged misconduct and the matter being brought before the FPC is justified. The evaluation of the impact of delay is always a matter which depends acutely on the particular facts and circumstances of the case concerned. In this case the judge was, in my view, entitled to take into account the impact of remittal in terms of either the timescales involved in having the case heard or alternatively, in the event that expedition were directed, the delays which would occur to the other cases awaiting a hearing. Paragraph 64 legitimately addressed the question of delay as a material consideration in assessing whether or not the judge should exercise his discretion to remit.

In the light of these conclusions, I am not satisfied that there is any substance in the criticisms advanced by Ms Mohamed of the decision which the judge made refusing to remit the matter to the FPC. The reasons which he provided in paragraphs 59 to 64 of his judgment appropriately identify a range of material considerations bearing upon his exercise of discretion, including an examination of the extent to which any remittal would be purposeful as well as an evaluation of whether remittal would be proportionate in the circumstances of the case: see paragraph 63 of the judgment. In my view the judge’s exercise of discretion given the particular circumstances of this case cannot be sensibly criticised and in my view the appeal must be dismissed.

I agree.

I also agree.