Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL
Before :
Stephen Midwinter KC sitting as a Deputy High Court Judge
Between :
ADEKEMI ADEFIDIYA | Appellant |
- and – | |
NURSING AND MIDWIFERY COUNCIL | Respondent |
The Appellant appeared in person
Simran Kaur Ghotra(instructed by the NMC) for the Respondent
Hearing date: 19 May 2026
APPROVED JUDGMENT
Stephen Midwinter KC sitting as a Deputy High Court Judge:
The Respondent is the body responsible for the establishment and maintenance of standards of education, training, conduct and performance for nurses, midwives and nursing associates, pursuant to the Nursing and Midwifery Order 2001 (“the Order”). The overarching objective of the Respondent in exercising its functions is the protection of the public (Article 3(4)). The pursuit of that objective includes seeking to promote and maintain (a) the health, safety and wellbeing of the public; (b) public confidence in the professions for which it is responsible and (c) proper professional standards and conduct for members of those professions (Article 3(4A)).
When the Respondent receives an allegation that the fitness to practise of a registered nurse, midwife or nursing associate (a “registrant”) is impaired by reason of (amongst other things) misconduct or lack of competence, the allegation is in most cases referred by the Respondent to a Fitness to Practise Committee (“FTPC”) for consideration (Article 22(5)). The FTPC considers the allegation in accordance with the procedures set out in the NMC (Fitness to Practise Committee) Rules 2004 (“the Rules”). If, having considered an allegation, the FTPC decides that it is well founded, the FTPC must either undertake mediation of the matter, or decide that it is appropriate to take no further action (Article 29(4)), or impose a sanction from a list that is set out in Article 29(5).
By Article 29(9) and Article 38(1) of the Order a registrant may appeal to the court against an order made by the FTPC under Article 29(5).
This is an appeal brought pursuant to Article 29(9) and 38(1) of the Order against a decision of the FTPC dated 3 September 2025 by which the FTPC (i) found that a number of allegations of misconduct and lack of competence that had been made against the Appellant were admitted or proved; (ii) found that the Appellant’s fitness to practise was impaired by reason of those matters; and (iii) determined the appropriate sanction under Article 29(5) to be an order directing the Registrar to strike the Appellant off the register.
Background
The proceedings before the FTPC involved 19 allegations or ‘charges’ brought by the Respondent against the Appellant (some containing a number of sub-charges) arising out of five matters:
A complaint received by the Respondent on 15 February 2019 from the wife of a patient (identified in the FTPC proceedings as “Patient A”) alleging a number of failings in the Appellant’s care of Patient A during day shifts that the Appellant worked on 5 and 6 February 2019. Patient A had motor neurone disease and was receiving palliative care at home. He died on 7 February 2019. This referral formed the subject matter of charges 1 – 4.
A referral received on 10 February 2020 from the associate director of Nursing at Barts Health NHS Trust, alleging that the Appellant (a) had failed to meet a number of objectives required to demonstrate the standards of knowledge, skill and judgment required to practise as a band 5 nurse for level two and three critical care patients and (b) had claimed (and received) sick pay from Barts Health NHS Trust while working shifts at another hospital on 5 and 7 October 2018. This referral formed the subject matter of charges 5 – 11, which included charges of having dishonestly misled colleagues on three occasions in connection with the claim for sick pay (charges 6, 8 and 10) and a charge of lack of competence (charge 11).
A referral received on 4 May 2020 from Royal Papworth Hospital alleging that the Appellant had failed to disclose her employment by Barts Health NHS Trust and certain other matters (including her referral to the Respondent) before commencing her employment with them on 9 March 2020. This referral formed the subject matter of charges 12 – 13 (charge 13 being a charge of dishonestly misleading Royal Papworth Hospital about the matters the subject of charge 12).
A referral received from the chief nursing officer of St John and St Elizabeth Hospital alleging that the Appellant had worked a shift on 30 September 2020 in breach of conditions imposed by an interim conditions of practice order made by the Respondent (which order she had not disclosed when commencing employment). This referral formed the subject matter of charges 14 – 16 (charge 15 being a charge of dishonesty in respect of the subject matter of charge 14). As a result of its investigation of this referral, a further charge was brought by the Respondent to the effect that the Appellant had worked 11 shifts at other hospitals in breach of the conditions of the interim conditions of practice order (charge 17).
On the 8th day of the hearing before the FTPC, the Respondent was permitted to add a further allegation, which was that the Appellant had worked as an agency nurse at a number of intensive care units and community settings between 1 October 2018 and 30 September 2020 (being a selection of those shifts that formed the subject matter of the existing charges) despite (i) having been placed on ‘supernumerary practise’ at Barts Health NHS Trust on 30 August 2018 due to having failed to achieve intensive care unit ‘step 1 competencies’ and (ii) having failed to achieve necessary ‘capability process objectives’ by June 2019. This formed the subject matter of charges 18 – 19 (charge 19 being a charge of dishonesty in respect of the subject matter of charge 18).
A substantive hearing of the charges against the Appellant took place (remotely) before the FTPC between 6 January – 27 January 2025, 24 – 27 June 2025 and 1 – 3 September 2025. The FTPC considered a large volume of documentary material, including detailed medical records of the shifts worked with Patient A, contemporaneous correspondence concerning the claim for sick pay, records of the shifts worked and the restrictions on the Appellant’s practise imposed by the Appellant and by Barts Health NHS Trust, and witness statements that were admitted as hearsay evidence. The FTPC also heard live evidence from a number of witnesses. The parties were represented at the hearing, in the Respondent’s case by counsel and in the Appellant’s case by Dr Abbey Akinoshun, a lay consultant.
The FTPC set out its decision in a 100-page written document. A number of the charges (including charges 14(a) and (b), 16 and 17) were admitted. A few (charges 1(f), 1(g) 2(b), 4(c), 14(c) and 15) were recorded as raising no case to answer or were found by the FTPC not to have been proved. The majority of the charges were found proved, including a number of the charges alleging dishonesty on the part of the Appellant.
Having set out its analysis and conclusions in respect of each of the charges in turn, the FTPC went on in its decision to consider the question of whether the Appellant’s fitness to practise was impaired. It set out its decision as follows:
The panel next went on to decide if as a result of the lack of competence and misconduct, your fitness to practise is currently impaired.
Nurses occupy a position of privilege and trust in society and are expected at all times to be professional and to maintain professional boundaries. Patients and their families must be able to trust nurses with their lives and the lives of their loved ones. To justify that trust, nurses must be honest and open and act with integrity. They must make sure that their conduct at all times justifies both their patients’ and the public’s trust in the profession.
In this regard the panel considered the judgment of Mrs Justice Cox in the case of CHRE v NMC and Grant, particularly at paragraph 76, which referred to Dame Janet Smith's “test”; and the NMC guidance on impairment.
The panel finds that your lack of competence put vulnerable patients at unwarranted risk of harm and that this combined with your misconduct, in dishonestly putting yourself forward as a competent ICU nurse, created a substantial risk to patients as well as colleagues in each of the ICU and private settings in which you worked. The panel finds that patients and relatives, particularly [the wife of Patient A], were caused actual physical and emotional harm as a result of your misconduct.
The panel determined that this occurred over a number of workplaces over the course of nearly two years and placed patients at significant risk of serious harm. Your misconduct had breached the fundamental tenets of the nursing profession and brought its reputation into disrepute. It was satisfied that confidence in the nursing profession would be undermined if its regulator did not find the multiple charges relating to dishonesty extremely serious. The panel therefore found all four limbs of the “test” to be engaged.
Regarding insight, the panel considered that you have not provided any reflective piece into your actions, nor demonstrated any remorse at the harm you caused to patients. While you stated through your representative that you now accept the panel’s finding on facts, there is no evidence of reflection on the seriousness of your actions nor any sustained commitment to remediate. The panel had regard to the CPD certificates you submitted; however, the panel considered that it was not sufficient in depth nor adequate in addressing the substantial lack of competence and misconduct identified.
The panel was satisfied that the misconduct in this case is not capable of being addressed. The panel had regard to the significant areas of concern and repeated misconduct that occurred over a prolonged period of time. The panel noted especially the multiple instances of premeditated dishonesty for personal financial gain, that put critically ill patients, requiring specialist ICU care, at serious risk. There has been no reflection, insight, remorse, or remediation into this concern from you. The panel were seriously concerned at the finding of you breaching an interim conditions of practice order imposed by the NMC, and the deliberate disregard this demonstrates towards both your regulator and to the public who were protected by the order. The panel considered all of this to be demonstrative of a deep-seated attitude that is fundamentally opposed to kind, safe, and effective nursing practice.
The panel is of the view that there is a high risk of repetition. The panel therefore decided that a finding of impairment is necessary on the grounds of public protection.
The panel bore in mind the overarching objectives of the NMC: to protect, promote and maintain the health, safety, and well-being of the public and patients, and to uphold and protect the wider public interest. This includes promoting and maintaining public confidence in the nursing and midwifery professions and upholding the proper professional standards for members of those professions.
The panel determined that a finding of impairment on public interest grounds is required in light of the serious concerns identified regarding your utter disregard for the professional standards required for safe effective nursing practice.
The panel concluded that public confidence in the profession would be seriously undermined if a finding of impairment were not made in this case and therefore also finds your fitness to practise impaired on the grounds of public interest.
Having regard to all of the above, the panel was satisfied that your fitness to practise is currently impaired
The FTPC then considered the question of sanction. Having summarised the submissions of the parties’ representatives, the Appellant’s own statement including expressions of remorse and apology, and set out the aggravating and mitigating factors that it considered to have been demonstrated by the evidence, the FTPC assessed the options set out in Article 29(5) of the Order in order of severity (no action, a caution order, a conditions of practice order, a suspension order and finally a striking-off order). Having reached the view that each of the options short of striking off did not address or sufficiently reflect the seriousness of the Appellant’s conduct, the FTPC set out its decision to impose a striking-off order as follows:
Finally, in looking at a striking-off order, the panel took note of the following paragraphs of the [NMC Guidance]:
• Do the regulatory concerns about the nurse or midwife raise fundamental questions about their professionalism?
• Can public confidence in nurses and midwives be maintained if the nurse or midwife is not removed from the register?
• Is striking-off the only sanction which will be sufficient to protect patients, members of the public, or maintain professional standards?
Your actions were a significant and sustained departure from the standards expected of a registered nurse, and are fundamentally incompatible with remaining on the register. The panel was of the view that the findings in this particular case demonstrate that your actions were extremely serious and to allow you to continue practising would undermine public confidence in the profession and in the NMC as a regulatory body.
Balancing all of these factors and after taking into account all the evidence before it during this case, the panel determined that the appropriate and proportionate sanction is that of a striking-off order. Having regard to the effect of your actions in bringing the profession into disrepute by adversely affecting the public’s view of how a registered nurse should conduct herself, the panel has concluded that nothing short of a striking-off order would be sufficient in this case.
The panel considered that this order was necessary to mark the importance of maintaining public confidence in the profession, and to send to the public and the profession a clear message about the standard of behaviour required of a registered nurse.
The Appellant seeks to appeal against the FTPC’s decision on six grounds, which I set out and consider in turn below.
I received and read written skeleton arguments from the Appellant and the Respondent, and had the benefit of a lengthy bundle of documents including the FTPC decision, the evidence that was placed before the FTPC and transcripts of the hearings. I also heard helpful oral submissions made by the Appellant in person and by counsel for the Respondent. I am grateful to both parties for the assistance that they have provided.
It was clear from her oral submissions that the Appellant is an individual with a deep love of and dedication to nursing. The Appellant told me that she had been highly successful in her nursing training and had worked at Lewisham Hospital for over a decade with an unblemished record before the events that led to the allegations that were made against her. She described the difficult circumstances that she felt she had faced at the time of the relevant events, including feeling unsupported and isolated after her move to work at Barts Health NHS Trust, against whom she lodged a grievance in 2018 which she felt formed the context for the allegations that were made. She also described the serious financial and emotional impact that the striking off order has had on her. Her desire is to work in the nursing profession again. I have borne those submissions well in mind when considering the issues that arise on this appeal.
The Approach on Appeal
A challenge to a decision of the FTPC pursuant to Article 29(9) and 38 of the Order takes place by way of appeal rather than by way of judicial review. What that means is that the question for the court is not whether the decision is open to challenge on public law grounds, but rather simply whether the decision should be overturned because it was either (a) wrong or (b) unjust because of a serious procedural or other irregularity (see CPR r.52.21(3); Cheatle v General Medical Council [2009] EWHC 645 at [12] – [15] and General Medical Council v Jagjivan [2017] EWHC 1247 at [40]).
A decision may be ‘wrong’ because it is affected by a material error of law, or because it is affected by a material error of fact, or because it involves a wrong exercise of evaluative judgment or a wrong exercise of discretion, or because of a combination of errors of those kinds. The burden of showing that a decision is wrong lies on the appellant.
An appellate court will always be cautious before finding that a decision is wrong because it is affected by an error of fact. That is because an appellate court appreciates that (a) the original tribunal will usually have made its findings on matters of fact based on a consideration of the evidence before it as a whole, often including live witness evidence, in a way that is likely to be difficult or impossible to replicate on appeal; (b) there is often scope for more than one legitimate view to be taken as to what factual conclusions should properly be drawn from the evidence; and (c) there is ordinarily no reason to think that an appellate court is more likely to reach the ‘correct’ view as to what factual conclusions should properly be drawn from the evidence than the original tribunal (see e.g. Volpi v Volpi [2022] 4 WLR 48 at [2] and Yassin v General Medical Council [2015] EWHC 2955 (Admin) at [32]). The burden on an appellant seeking to show that a decision is wrong because it is affected by an error of fact is therefore a high (but not insurmountable) one.
Where the appealed decision is said to have involved a wrong exercise of evaluative judgment, an appellate court will not overturn that decision merely because it would have reached a different decision, but will instead interfere only if there was an error of principle or other error in the original tribunal’s evaluation that takes it outside the bounds of what a tribunal could properly and reasonably decide (see e.g. Bawa-Garba v General Medical Council [2018] EWCA Civ 1879 at [67]).
An appellate court will be particularly cautious before finding that a factual conclusion or an exercise of evaluative judgment was wrong where the original tribunal is a specialist body exercising professional judgment in respect of matters that are within its area of expertise. A specialist body like the FTPC is likely to be in a particularly good position to judge, for example, whether a particular clinical action (or inaction) amounts to misconduct or evidences lack of competence in a nurse, whether the matters that have been proved establish a lack of fitness to practise in the profession for which the body is responsible, and what sanction is necessary in order to maintain public confidence in the profession. That does not mean that the appellate court will not carefully examine, and where appropriate overturn, decisions of that kind taken by a specialist body. But it does mean that the appellate court will be particularly careful not to substitute its view for that of the original tribunal on matters falling within the expertise of the original tribunal without a compelling reason for doing so (see e.g. Ghosh v General Medical Council [2001] 1 WLR 191).
The Grounds of Appeal
As I have said, the Appellant challenges the FTPC’s decision on six grounds which I shall address in turn.
Procedural Irregularity
The Appellant contends that there were two serious procedural irregularities in the FTPC proceedings that rendered the decision unjust.
The first matter relied on is a decision by the FTPC to admit statements from two colleagues of the Appellant (referred to in the decision as Colleagues C and D) as hearsay evidence. The Appellant complains that this deprived her of the opportunity to test the reliability of their evidence.
I find that there was no irregularity in the FTPC’s decision to admit the statements as hearsay evidence. In particular:
The Appellant (who had a lay representative assisting her) did not object to the admission of the statements of Colleagues C and D as hearsay evidence at the time.
The FTPC was, correctly, referred to rule 31 of the Rules (which permits the FTPC to receive evidence upon receiving the advice of the legal assessor and subject only to requirements of relevance and fairness) and to the decision in Thorneycroft v Nursing and Midwifery Council [2014] EWHC 1565 as to the approach to be adopted when considering the admission of hearsay evidence.
The FTPC carefully considered whether or not to admit the hearsay evidence and the weight that should be put on it by reference to the factors set out in Thorneycroft, considered the legal assessor’s advice and the submissions of the parties, and came to a thoroughly reasoned conclusion that it was appropriate to admit the evidence and consider it as part of the overall assessment of the evidence.
The Appellant cannot point to any error in the FTPC’s reasoning in this respect.
The FTPC’s decision to admit the hearsay evidence, and as to the approach to be adopted when considering the weight that could be put on it, was not only within the bounds of what a tribunal could properly and reasonably decide but was in my judgment plainly correct. As the FTPC held, neither statement represented the only or decisive source of evidence in relation to the matters with which it dealt. The Appellant did not object to the statements being admitted or suggest that the evidence of either witness was untrue or fabricated. The reasons given by the Respondent for not calling the makers of the statements to give live evidence (recorded by the FTPC in its decision) were cogent. The FTPC expressly referred to and was aware of the need to consider that the evidence was hearsay when deciding what weight to put on it.
In short, the FTPC approached the decision to admit the hearsay evidence in the correct way and reached a decision that it was fully entitled to reach.
The second matter relied on by the Appellant was the decision by the FTPC to permit the Respondent to amend its case to add charges 18 and 19 to the proceedings on the eighth day of the hearing.
By rule 28 of the Rules, the FTPC may amend the charges set out in the notice of hearing at any stage before making its findings of fact unless “having regard to the merits of the case and the fairness of the proceedings, the required amendment cannot be made without injustice”.
I was referred by the Respondent to the case of Professional Standards Authority v General Chiropractic Council and Briggs [2014] EWHC 2190 (Admin) in which Lang J observed of a similar amendment power in different rules that an allegation added by way of amendment “must arise out of the same episode/s which form the basis of the existing charge, and be directly connected to the existing allegations, otherwise it would be unfair to the registrant.” It is important to read that observation in context: Lang J was considering a case in which it was said that the regulatory body had undercharged the registrant by failing to include an allegation of dishonesty in the notice of hearing. It obviously makes sense that where a proposed amendment seeks to add an allegation of dishonesty, that allegation of dishonesty should relate to matters that are already in issue, rather than raising an allegation of dishonesty about something that is entirely unconnected with the existing charges. But that does not mean that there will never be situations in which it is appropriate to add by way of amendment charges that do not arise out of the same episode that forms the basis of an existing charge. It may well be that, depending on the circumstances, further charges against a registrant arising out of separate episodes can and should be raised and dealt with in a single set of proceedings. Whether it is appropriate to permit the addition of further charges by amendment will (subject to the rules applicable to the regulatory body in question) always depend on what is fair and just, and in particular whether the registrant can fairly be expected to deal with the additional charges in the existing proceedings.
In this case, the charges sought to be added by way of amendment did arise out of the episodes that formed the basis of the existing charges. The essence of charge 18 was that in working the shifts that formed the subject matter of the existing charges, the Appellant committed a further instance of misconduct, in that she worked those shifts (a) at a time when she had been placed on ‘supernumerary practise’ by Barts Health NHS Trust (b) without the level of supervision that is required for a nurse working as a supernumerary. Charge 19 alleged that the Appellant knew that that was so, and so acted dishonestly.
The Appellant is right to point out that it is surprising that the Respondent did not seek to amend the charges so as to include those matters earlier than it did, given the long delay between the original referrals and the hearing taking place. It would perhaps have been better if the amendments had been brought forward at an earlier stage. However, I find that there was no irregularity in the FTPC’s decision to permit the amendment of the charges to include charges 18 and 19. In particular:
The charges arose out of, and were closely linked to, the same episodes as were being considered by the FTPC in the existing charges. It was plainly appropriate that they should be considered in the same proceedings as the existing charges if that could be accommodated without injustice or unfairness.
There was a real risk that, if the amendments were not allowed, the Respondent would be said to have undercharged the Appellant and the matter would have to be reconsidered. The FTPC appropriately considered the need to ensure that it was fulfilling its duty to promote and maintain the safety of the public when considering these charges.
In deciding whether to permit the amendments, the FTPC considered rule 28, took advice from the legal assessor, considered submissions from the parties, weighed the prejudice to the Appellant in permitting the amendments against the benefits of doing so, and reached a reasoned conclusion that the amendments could be permitted without injustice or unfairness to the Appellant. I can see no error in the FTPC’s process of reasoning or in the conclusion.
As the FTPC noted in its decision, the proposed amendment was identified before factual witnesses were examined and there was time for the Appellant to prepare her case in response to them. The Appellant has not articulated any respect in which her conduct of her case would have been materially different had the charges been introduced earlier. In her oral submissions to me, the Appellant confirmed that does not in fact deny that she had worked the relevant shifts at a time when she had been placed on ‘supernumerary practise’ without the level of supervision that is required for a nurse working as a supernumerary. The fact that the Appellant does not dispute the essential facts of charge 18 (or that she had the knowledge alleged in charge 19) supports the FTPC’s decision that it was not unfair to permit that charge to be added so as to be dealt with in the proceedings before it.
The appeal on the ground of procedural irregularity is therefore dismissed. In taking the procedural decisions that it did, the FTPC was not only acting well within the bounds of what a reasonable tribunal could do, but was in my judgment entirely correct.
Challenges to Findings in Respect of Charges
The Appellant challenges the FTPC’s substantive findings in respect of the charges in two respects.
First, the Appellant contends that the FTPC was wrong to find that the allegations concerning failings in the Appellant’s care of Patient A (charges 1 – 4) were proved. (I note that some of the charges in respect of the care of Patient A – i.e. charges 1(d), 1(e), 1(h) and 3 – were in fact admitted by the Appellant and presume that the Appellant’s contention does not apply to those charges). The Appellant contends that the FTPC’s findings that the charges were proved were not supported by ‘cogent evidence’ and notes in particular that both the police and coroner chose not to pursue actions against the Appellant in respect of Patient A’s death.
This is a hopeless contention. The FTPC had before it a wealth of evidence in connection with the allegations concerning the alleged failings in the Appellant’s case of Patient A, including detailed medical records and witness evidence from the wife of Patient A and from the Appellant’s colleagues who worked with her on the day in question. It is clear that the FTPC considered that evidence carefully and reached reasoned conclusions in respect of each charge individually based upon it. The FTPC also considered the evidence of the Appellant and weighed it against the other evidence that it had read and heard.
In several respects, the FTPC rejected the Appellant’s evidence. By way of illustration, in relation to charge 1(a) (an allegation that the Appellant had failed to take all hourly observations as required) the FTPC recorded that:
The panel had regard to the Patient A’s care plan which set out the required hourly observations that had to be conducted and recorded. The panel had sight of the day shift ventilator hourly record dated 5 February 2019 which should have been fully completed by you. It noted that there were no observations recorded by you until 10:00 as you stated in your evidence to the panel that you were late for work. It further noted that there were no observations recorded in the columns at 19:00 and only two observations were recorded in the column at 18:00. It further noted that there were gaps in the columns for blood pressure and temperature respectively. The panel also had sight of the day shift ventilator hourly record dated 6 February 2019 on which it noted that there were also gaps in the columns for blood pressure and temperature respectively.
The panel took into consideration that you denied the allegation.
The panel rejected your explanations as unclear and inconsistent. It found your initial explanation that you did not know where you were supposed to write the results of your observations to be implausible given that you had used the day shift ventilator hourly record to record most of your observations during those shifts and therefore you must have known how to record this information in the appropriate place.
Your further explanation, given in your oral evidence, was that you were too busy to record your observations in the appropriate place, that you had conducted the observations but recorded the results on other pieces of paper due to the state of the patient records. The panel did not accept this explanation having found that the weekly pack was readily available and that you had appropriately recorded some of the required observations during your shift. The panel concluded that it was more likely than not that the missing records reflected observations that you had failed to undertake. The panel therefore concluded that you had not conducted all hourly observations as required, as there was no record of such observations.
In this regard, the panel was satisfied, on the balance of probabilities, that you did not take all the hourly observations whilst caring for Patient A on 5 and 6 February 2019. Accordingly, the panel found charge 1a proved
There is no basis whatsoever on which the Court could find that anything said by the FTPC in that passage is wrong. The Appellant in her oral submissions explained to me the difficulties that she felt that she had faced during her shifts at Patient A’s home, but (a) even taken at its highest, what the Appellant said did not call into question the FTPC’s findings about her evidence as set out above and (b) in any event, the FTPC considered a significant volume of relevant evidence in reaching its findings, including not only the contemporaneous medical records and witness statements but also live witness evidence that was tested by cross-examination, and rejected the Appellant’s explanations. Those are factual conclusions reached by reference to the extensive evidence that was placed before the FTPC and there is no proper basis on which I could interfere with them.
The same is true in relation to each of the other findings in relation to charges 1 – 4. The FTPC carefully considered each in turn in its decision, referred where applicable to the documentary evidence and the witness evidence that it heard, referred to the Appellant’s evidence and arguments, and reached reasoned findings based on that evidence. The suggestion that the FTPC reached findings without cogent evidence to support them is wrong.
The fact that the police and coroner did not pursue actions against the Appellant in respect of Patient A’s death does not call the FTPC’s findings that there were failings in the Appellant’s care of Patient A into question. The police and coroner would have been concerned with a different question – responsibility for Patient A’s death – from that with which the proceedings before the FTPC were concerned.
The Appellant separately challenges the FTPC’s finding that she acted dishonestly in respect of a number of the allegations of misconduct (charges 6, 8, 10, 13 and 19). In her written skeleton argument, the Appellant contends that the FTPC failed to apply the correct legal test for finding dishonesty, suggesting that the FTPC failed to have regard to the test as set out by the UK Supreme Court in Ivey v Genting Casinos [2017] UKSC 67. That contention is misconceived: the FTPC expressly referred to and applied the Ivey v Genting test. I therefore reject the challenge to the FTPC’s findings of dishonesty on the basis set out in the written skeleton argument.
In her oral submissions, the Appellant raised a different point, which specifically concerned charge 13(d). Charge 13(d) alleged that the Appellant acted dishonestly in not informing Royal Papworth Hospital about the fact that she had been referred to the Respondent by Barts Health NHS Trust before 6 March 2020 (the Friday before she was due to start work at Royal Papworth Hospital on Monday 9 March 2020). The Appellant pointed out that, as the FTPC recorded in its decision, her evidence was that she had not found out about that referral until 27 February 2020, attended the Respondent to discuss it on the morning of 6 March 2020, and emailed Royal Papworth Hospital to inform them of the referral at around 5pm on that day. The FTPC does not in its decision reject that evidence or suggest that there was any reason to reject it. The Appellant submitted that, based on that evidence, the charge of dishonesty ought to have been found not proved.
This was not a point that was clearly articulated by the Appellant in her grounds of appeal or in her written skeleton argument. If the point had been one capable of affecting the overall outcome, I would have been inclined to find that it had not been properly raised and that it would be unfair to the Respondent to permit the Appellant to raise it at this stage. However:
This is not a point that is capable of affecting the overall outcome of the appeal or calling into the question the general quality of the FTPC’s decision. The FTPC’s decision that charge 13(d) was proved plainly did not have a material effect its decision on fitness to practise or on sanction.
Indeed, charge 13(d) formed one limb of a series of allegations that the Appellant acted dishonestly in not informing Royal Papworth Hospital about various matters (including the fact that she had worked at Barts Health NHS Trust and had been under a capability process there) (charges 13(a) – (c)). There is no basis for challenging the FTPC’s findings that those matters were not disclosed or that the allegations of dishonesty in respect of charges 13(a) – (c) were proved. Those were matters that the Appellant had known about throughout her application process to Royal Papworth Hospital, which had lasted several months. The FTPC’s findings that the Appellant acted dishonestly in not disclosing them to Royal Papworth Hospital before 6 March 2020 are unassailable. In those circumstances, the relevance of charge 13(d) to the FTPC’s overall decision is obviously very limited.
It is, however, a matter of importance to the Appellant personally. Whilst it is not material to the appeal, and acknowledging that I have not heard full argument on the point, it is therefore appropriate to record that I consider that the Appellant is right that there was an insufficient basis on which to find that she acted dishonestly in not informing Royal Papworth Hospital about the fact that she had been referred to the Respondent by Barts Health NHS Trust before 6 March 2020. In circumstances where the time between the date when she found out about the referral (27 February 2020) and 6 March 2020 was only a week, and where she did voluntarily inform Royal Papworth Hospital about the referral on 6 March 2020 before she was due to start work on 9 March 2020, it seems to me improbable that the reason for the delay in informing Royal Papworth Hospital about the referral (as opposed to the delay in informing Royal Papworth Hospital about her employment at Barts Health NHS Trust) was an intention to deceive. I would therefore have been minded to say that the FTPC’s decision that charge 13(d) was proved was wrong.
Subject to that caveat, which as I have said is not capable of affecting the overall outcome of the appeal, I reject the Appellant’s challenge to the FTPC’s substantive findings for the reasons that I have given.
Challenge to Finding of Impairment
In her written skeleton argument, the Appellant contends that the FTPC’s decision that her fitness to practise was impaired was wrong because it wrongly “conflated allegations of lack of competence and misconduct, applying an unduly low threshold for impairment.” This contention is baseless and I reject it. In fact:
Having made its factual findings on each charge, the FTPC’s decision explicitly considered the allegations of lack of competence (charge 11) separately from the allegations of misconduct (the remaining charges) and reached separate conclusions that lack of competence and misconduct had been demonstrated.
The conclusion that the Appellant’s fitness to practise was impaired was reached applying the correct legal test (as reflected in the judgment of Cox J in CHRE v NMC and Grant, referring to the test set out by Dame Janet Smith in the 5th Shipman Report, to which the FTPC expressly referred) and the Respondent’s published guidance on impairment, and was based upon a consideration of the factual findings that the FTPC had made.
There is no basis at all for the suggestion that the FTPC applied a ‘low threshold’ for its finding of impairment.
The FTPC was entirely correct to find that there was a relationship between the findings of lack of competence and certain of the findings of misconduct. It did not ‘conflate’ those issues but rather correctly identified a relationship between them. The findings of lack of competence (charge 11) amounted to findings that the Appellant was not appropriately qualified to practise without supervision as a band 5 nurse for level 2 and 3 critical care patients; the findings of misconduct included findings that the Appellant had (knowingly) failed to disclose her lack of such qualifications to Royal Papworth Hospital when applying for a role there (charges 12 and 13) and had worked shifts in such roles having (dishonestly in some instances) failed to inform her employers about the restrictions on her capabilities (charges 16 - 19). If the Appellant had never sought to work in roles that were outside her competence, the nature of the complaints against her would have been entirely different – it was precisely the combination of the Appellant’s lack of competence and her misconduct in not disclosing the limitations on her competence to her employers, and working shifts that she ought not to have worked given that lack of competence, that was, quite rightly, a matter of particular concern to the FTPC.
There is simply no basis on which the Court could begin to call into question the FTPC’s assessment that the findings that it had made led to the conclusion that the Appellant’s fitness to practise was impaired. That was a judgment which the FTPC was plainly entitled to reach on the findings that it had made. Indeed, it would have been surprising if the FTPC had reached any other conclusion given those findings.
Failure to Consider Mitigation
The Appellant contends that the FTPC failed adequately to consider her evidence and arguments as to mitigating factors in relation to the sanction to be imposed. Again, there is no basis for that contention and I reject it.
In fact, the FTPC expressly referred in its decision to the evidence and arguments that the Appellant had put forward in mitigation, including the reflective statement that the Appellant had prepared. In relation to that statement, the FTPC found that:
The panel first considered the reflective statement you submitted at the sanction stage of the process. The panel noted that this does express your remorse for your actions and that you offer apologies for what has happened. The panel was concerned that your reflection is at an early stage, failing to acknowledge how your actions fell short of the expected standards, and the panel noted it does not address the issue of premeditated dishonesty that occurred over a period of nearly two years.
In considering the relevance and weight to be given to the evidence and arguments put forward by way of mitigation, the FTPC was exercising an evaluative judgment. I have no basis for questioning the FTPC’s exercise of judgment on this issue. It was in a far better position than I am to determine the impact of the mitigating features on which the Appellant relied when weighed against the seriousness of the failings and misconduct that it had found in the context of its specialist field. It will often be the case that a regulatory body considering (amongst other things) the need to maintain public confidence in the profession for which it is responsible will give less weight to personal mitigation than might otherwise be the case (see e.g. R (Williams) v Police Appeals Tribunal [2016] EWHC 2708 (Admin)). The Appellant cannot identify any respect in which the FTPC erred in its approach to its exercise of judgment, and the conclusions that it reached are well within the bounds of what a tribunal could properly and reasonably decide.
Proportionality of Sanction
The FTPC decided that the appropriate sanction to apply was to make an order directing the Registrar to strike the Appellant off the register pursuant to Article 29(5)(a), which is the most severe sanction that the FTPC could impose. The Appellant contends that that decision was wrong because the FTPC failed to give sufficient consideration to the imposition of lesser sanctions of suspension or the imposition of conditions of practise (per Article 29(5)(b) or (c)).
The Appellant’s criticism of the FTPC’s decision is unfounded. In fact, as I have already indicated, the FTPC explicitly considered each of the possible sanctions set out in Article 29(5) in ascending order of severity and gave reasons why each was not appropriate, before concluding that striking off represented the appropriate and proportionate sanction in this case in the terms that I have set out above. The FTPC expressly had regard to the Respondent’s guidance on the circumstances in which striking off will be an appropriate sanction. There is no proper basis on which the criticise its approach.
The decision that the sanction of striking off represented the most appropriate and proportionate response to the findings that the FTPC had made was an evaluative judgment in an area in which the FTPC has specialist expertise. It is not a judgment that this court would lightly overturn.
In fact, in my judgment, the FTPC’s decision on sanction given the findings that it had made was plainly correct:
It is hardly surprising that the imposition of conditions to practise was not regarded as a suitable sanction in circumstances where the findings made included findings that the Appellant had breached previous conditions to practise and had done so dishonestly.
The FTPC found that the risk of repetition of the misconduct that it had found was high, given the number of instances which it found proved of the Appellant having worked shifts which she knew she ought not to have been working, either because she had been placed on supernumerary practise or because of conditions to practise imposed by the Respondent. That risk tended to make a suspension order inappropriate.
The FTPC was entitled to conclude that the Appellant’s conduct, in particular in having worked shifts which she knew she ought not to have been working, either because she had been placed on supernumerary practise or because of conditions to practise imposed by the Respondent, was a particularly serious matter, which was capable of endangering patients, and that the maintenance of public confidence in the profession required the imposition of the sanction of striking off. I consider that the FTPC was right to regard it as a matter of profound concern that the Appellant worked shifts in a role that she was not authorised to undertake over a prolonged period, without disclosing the restrictions on her authorisation to practise to those employing her.
It is also relevant that the FTPC had found charges of dishonesty to be proved. As McGowan J said in Professional Standards Authority for Health and Social Care v Health and Care Professions Council and Ajeneye [2016] EWHC 1237 (Admin) “deliberate dishonesty must come high on the scale of misconduct.” The fact that a number of the charges found proved involved dishonesty on the part of the Appellant was a factor supporting the decision to impose the sanction of striking off.
The FTPC also had regard to the actual harm that it found had been caused to Patient A and to his wife by the misconduct which it had found the Appellant to have committed in her care of Patient A. It was entitled to do so.
It follows that I reject the contention that the decision to impose the sanction of striking off was wrong.
Reasons
A failure to give reasons can constitute a serious procedural irregularity that renders a decision unjust. When considering whether there has been a culpable failure to give reasons, the court will approach that issue on the basis that (i) the purpose of giving reasons is to enable the losing party to understand why they have lost; (ii) a regulatory body is not expected to set out its reasoning in the same way or to the same extent that a court might do and a decision should not be overturned merely because the reasoning is not set out in the way or to the extent that the court considers it would have done; (iii) there is no need for a tribunal to deal in its reasons with every argument that was made to it or to recite all of the evidence that it considered; (iv) if important evidence has been rejected some explanation should generally be given as to the reason for rejecting it and (v) what matters is whether the reasoning is sufficient to enable the reader to understand why the tribunal has decided the case in the way that it has (see e.g. Moyo v Nursing and Midwifery Council [2015] EWHC 3547 (Admin) at [13]).
The Appellant contends that the FTPC failed to provide adequate reasons (i) setting out the weight that it attached to the hearsay witness statements; (ii) for its decision on sanction and (iii) for ‘the attribution of Patient A’s deterioration to the Appellant.’
I do not accept those criticisms of the FTPC’s decision.
The FTPC was entitled, having decided to admit the hearsay witness statements, to place such weight on them as it considered appropriate as part of its assessment of the evidence as a whole. It was not required to give specific rulings as to the ‘degree’ of weight that it was attaching to the statements in relation to any particular issue (and I doubt that such a ruling would have been meaningful in any event). It is clear from the findings made in relation to each charge where the FTPC took the hearsay evidence into account as part of the overall evidential picture. That was sufficient reasoning for the purposes of the decision in this case.
The decision on sanction clearly set out the reasons why the FTPC considered the possible sanctions short of striking off to be inappropriate, and why the sanction of striking off was considered to be proportionate and appropriate. I have reproduced the FTPC’s reasoning on fitness to practise above; it is clear that the decision on sanction flowed from the nature and seriousness of the misconduct that the FTPC had found proved as set out there.
The suggestion that the FTPC attributed Patient A’s deterioration to the actions of the Appellant is not a correct reading of the decision. The FTPC did find that the failings in the Appellant’s care of Patient A caused “actual harm to Patient A and to his family” but it is clear from the context that that is a reference to (a) immediate harm caused to Patient A by the failures that the FTPC found proved in the Appellant’s care (e.g. with respect to ensuring that Patient A was receiving sufficient ventilation and to act on his increased blood pressure) and (b) the psychological harm suffered by Patient A’s wife, who was distressed by the impression that her husband was not receiving proper care in his dying hours. The FTPC did not attempt to ascertain the causes of Patient A’s death and plainly did not find that the Appellant had caused it.
I therefore reject the contention that the decision was unjust due to any inadequacy in the reasons. On the contrary, the reasoning in the decision is clear and more than sufficient to enable the reader to understand why the FTPC reached the conclusions that it did.
Conclusion
The result is that the appeal must be dismissed.
The Respondent seeks its costs of the appeal. It filed a schedule of costs in the amount of £12,352.78 and invited me summarily to assess them. In circumstances where the Respondent is the successful party, it is prima facie entitled to an order for payment of its costs by the Appellant. Having considered the schedule of costs, the sums claimed appear reasonable, subject to the times claimed for attendance at the hearing and preparation appearing a little high. I am minded to order that the Appellant should pay the Respondent’s costs in the amount of £10,000. However, I am conscious that I have not heard submissions from the Appellant on the question of costs. I therefore invite the parties to attempt to agree an order (including as to costs). If either party wishes to make any further submissions on costs or otherwise on the form of order, I will consider them on paper and make a final decision accordingly.