Professional Standards Authority for Health and Social Care v Nursing and Midwifery Council & Anor

This is an appeal by the Professional Standards Authority for Health and Social Care (“the Authority”) against a decision of a panel of the Fitness to Practice Committee (“the Panel”) of the Nursing and Midwifery Council (“the NMC”) dated 4 April 2025 which was given in writing (“the Decision”) following an oral hearing between 31 March and 4 April 2025. The Panel found Marina Tchampet (“Ms Tchampet”), who was a registered nurse, guilty of misconduct impairing her fitness to practise.

The main issue on the appeal is whether the Panel was wrong to impose a nine month suspension on Ms Tchampet instead of striking her off the register (Ground 1). The other issues on the appeal are whether the Decision made four material errors in its findings (Ground 2) and whether it failed to give adequate reasons for the Decision (Ground 3).

The appeal is supported on Grounds 1 and 3 by the NMC, which is the First Respondent. The NMC also supports Ground 2 in respect of three but not four of the alleged material errors. Ms Tchampet opposes the appeal on all Grounds.

Ms Tchampet (according to the evidence she gave to the Panel) qualified as a nurse in September 2012 after training at the University of Leeds. She then practised exclusively as a paediatric nurse, looking after children rather than adults.

In 2016, Ms Tchampet was referred to the NMC by a nursing agency who had been supplying her with agency nurse work since 2013. It appears from the NMC Case Examiners’ decision, dated 24 August 2017, which formed part of the materials before the Panel, that the agency had been commissioned to supply two-to-one support for a patient, referred to as Patient A, who had complex care needs and suffered from multiple types of seizures and autism with developmental delay. The two person team supplied by the agency consisted of a qualified nurse (Ms Tchampet) and a healthcare assistant (HCA). Patient A’s condition was such that she could have multiple seizures of different type overnight requiring swift intervention and then careful documentation to ensure accurate records. Sleeping on this duty was not permitted because of Patient A's unstable condition, which required nurses to be awake and alert.

HCA raised concerns that Ms Tchampet had slept whilst on duty when caring for Patient A on various dates between 27 July 2015 and 31 January 2016. Photographic evidence was provided by HCA.

In addition, the mother of Patient A raised a concern that Ms Tchampet had produced a handwritten treatment protocol for Patient A which was inaccurate. The concern was that, had a nurse followed that document, instead of the document provided by Patient A’s consultant, there was a risk that Patient A could have received excessive medication. Both HCA and the mother of Patient A had concerns about Ms Tchampet’s attitude towards family and colleagues and that Ms Tchampet might have been working excessive hours which contributed to her tiredness and attitudinal issues.

Ms Tchampet instructed solicitors, Burton Copeland, who in a letter dated 25 July 2016 provided a detailed response to the referral. On her behalf, they denied most of the allegations, and questioned the motives of the HCA who had prompted the referral. However, they made some limited admissions and also gave assurances that the matters complained of would not be repeated. They said in their letter:

“It is accepted that on 30 and 31 January 2016, whilst on night shift duty (…) between 7 p.m. and 7 a.m., Ms Tchampet closed her eyes whilst she was sat down. She was not asleep but was simply taking a break. She remained fully aware of her surroundings.

(…)

On 24 July 2015, 24 August 2015 and 29 September 2015, Ms Tchampet accepts that she rested her eyes for short periods of time whilst working at Patient A’s home and when Patient A was asleep. She did not have her eyes closed for more than 20 minutes at any one time.

Ms Tchampet apologises profusely for resting her eyes whilst on duty and accepts that this was wrong in these circumstances as it may have given the appearance that she was fast asleep when she was not.

(…)

Ms Tchampet, however, does recognise that Patient A could have required assistance at any time. She would like to assure the NMC that she has learnt her lesson as a result of this case.

(…)

Ms Tchampet vehemently denies any suggestion that she was deeply asleep at any time on any night shift and most certainly denies that she had to be “really woken up” by Ms Berwick because Patient A was fitting.

Ms Tchampet fully believes that these allegations were made to Interserve by Ms Berwick out of spite when Ms Berwick was fully aware that Ms Tchampet was not deeply asleep on any of the occasions in question but was merely taking a break and resting her eyes.

(…)

Ms Tchampet accepts that investigations have to take place to ensure public safety, public confidence in the profession and in the public interest. She also accepts that she did close her eyes whilst on 10 and 12 hour night shifts for no more than 20 minutes each time and she understands the seriousness of this. However, she feels that she has been victimised by Ms Berwick and that this complaint has been borne out of spite and Ms Berwick’s dislike of her.

(…)

Ms Tchampet has realised that she can only work so much before her nursing skills are affected and she has decided to focus solely on her job at Leeds General Infirmary for the time being.

(…)

Ms Tchampet accepts the seriousness of this case and has learnt a valuable lesson from it. She would like to provide an absolute assurance to the NMC that the importance of not sitting down and closing her eyes when working night shifts (without her employers expressly stating that breaks are allowed) has been reinforced as a result of this investigation and she will continue to ensure that she provides the best possible care to the patients she looks after.”

The decision of the Case Examiners was that there was evidence to substantiate the regulatory concern that Ms Tchampet had exposed Patient A to a risk of harm by failing to monitor her adequately, by sleeping on duty, and by creating an inaccurate seizure treatment protocol. However, the Case Examiners were persuaded by Ms Tchampet’s assurances of new insight as a result of the referral, and by her assurance that she would no longer work in a community (i.e. out of hospital) setting. In their decision letter of 24 August 2017, they said:

“The Case Examiners are mindful that Patient A was a particularly vulnerable patient with complex care needs. The Case Examiners note that Miss Tchampet has accepted that there were occasions where she fell asleep on duty and that the protocol she created was inaccurate. The Case Examiners also note that Miss Tchampet has further stated that she accepts that she finds it difficult to stay awake in a community setting on night duty and as such she has removed herself from this environment. The Case Examiners consider that there is evidence of insight.”

The letter went on to note that Ms Tchampet had provided positive references and that there had been no complaints since the matters which were raised by the referral.

Consequently, the Case Examiners decided that there was no need for a hearing, and that the matter could be dealt with by written warning to remain on the public register for 12 months. The decision letter of 2017 said, in this respect:

“The Case Examiners therefore consider that there is no evidence that Miss Tchampet’s practice currently needs restriction in the interests of public safety, given the insight demonstrated and the evidence of current safe practice. However, the Case Examiners form the view that Miss Tchampet’s conduct engages the public interest. Patient A was particularly vulnerable and Miss Tchampet had a responsibility to ensure that she provided adequate monitoring and safe care.

The Case Examiners are mindful of the NMC document, Case to answer, which states that a warning might be appropriate where:

“the seriousness of past incidents means there would have been a real prospect of a panel of the Fitness to Practise Committee finding the nurse or midwife's fitness to practise currently impaired, but there is no current need to restrict their practice because the nurse or midwife accepts the regulatory concern, has shown insight, and put any problems in their practice right.”

In this case, the Case Examiners conclude that the thresholds have been met and that the issuing of a warning is a proportionate response to the concerns in this case.”

The formal warning registered by the Case Examiners was as follows:

“Case Examiner warning

On several dates between July 2015 and January 2016, while working as a registered nurse, you exposed Patient A to a risk of harm by failing to adequately monitor Patient A by sleeping on duty and you created an inaccurate seizure treatment protocol.

This conduct does not meet with the standards expected of nurses and midwives and could undermine public confidence in the nursing and midwifery professions. The Code sets out the relevant standards of practice and behaviour at paragraph 1.2, 16.3, 19 and 19.1

1.2

make sure you deliver the fundamentals of care effectively

16.3

tell someone in authority at the first reasonable opportunity if you experience problems that may prevent you working within the Code or other national standards, taking prompt action to tackle the causes of concern if you can

19 Be aware of, and reduce as far as possible, any potential for harm associated with your practice

To achieve this, you must:

19.1

take measures to reduce as far as possible, the likelihood of mistakes, near misses, harm and the effect of harm if it takes place

You have shown insight into your conduct and addressed any risks in your practice.”

Unfortunately, Ms Tchampet did not stick to her 2017 assurance that she would not go back to work in a community setting. When working in a community setting in December 2019 she committed the acts which are the subject of the present proceedings. They included falling asleep on the job and incorrect record keeping.

The primary facts about Ms Tchampet’s professional misconduct in 2019, which are the basis of the Decision of the Panel dated 4 April 2025, were, by the time of the Panel hearings, no longer challenged.

On the night of 17 to 18 December 2019, Ms Tchampet worked a night shift at a patient’s home. The patient was referred to Child A (not to be confused with Patient A, the subject of the 2017 decision, who was a different person). Child A was a 10 year old boy with a closed spinal fracture; he was quadriplegic, with no respiratory effort and ventilated through a tracheostomy; and he had gastronomy catheterisation. The reason for Ms Tchampet to work the night shift at Child A’s home was to provide one-to-one care to him and perform clinical observations. His condition was such that, should she not perform her tasks, the consequences to Child A might be fatal.

Ms Tchampet covered a CCTV camera in Child A's room with a cloth, slept for nearly four hours during the night, and, in the morning, at 06.11, in what was found to be a breach of hygiene and infection control, used the same cloth with which she had covered the camera to wash the child. She recorded, in Child A’s observation chart, that she had observed him at 02.00 and made hourly observations from 02.00 to 05.00 when she knew this was not the case.

Concerns were raised by Child A’s parents after they reviewed the closed-circuit television camera (CCTV) footage from Child A’s bedroom. The footage showed that Ms Tchampet covered the CCTV camera with a cloth. The footage also showed long periods of inactivity between 01:16am and 03:32am as well as between 04:07am and 05:43am, suggesting that Ms Tchampet was asleep during these times. At 06:11am she removed the cloth from the CCTV and proceeded to use the same cloth to wash the child.

Child A’s parents raised their concerns with Ms Tchampet’s employer, Thornbury Community Services (TCS).

TCS began an investigation and asked Ms Tchampet for an explanation. The documents were before the Panel in the form of a witness statement from Karen Mathews-Shard about the investigation which exhibited them.

Ms Tchampet explained to TCS that she had developed a vaginal infection, and had to scratch herself, so she covered the camera for privacy. She denied she had slept on duty. This was noted in a document headed “Investigation/Incident details”.

On 23 December 2019, Ms Tchampet provided a written explanation in an email, along these lines. She referred to her medical condition as the reason for covering the camera. She did not admit to sleeping. She did not admit to falsifying records by recording checks which she had not carried out. In what appears to have been an attachment to the email she provided lengthy answers to specific questions in which she did not disclose that she had been asleep or that she had falsified records, but in which she maintained that her only fault had been to cover the camera and that this was because of a genuine concern about privacy as a result of her medical condition.

TCS held a formal investigation meeting with Ms Tchampet on 14 August 2020. A written note of this meeting was before the Panel. Ms Tchampet did not admit sleeping or falsifying the record. She maintained that she had performed the hourly checks at the correct times and as she had documented them, which was not true. She also lied about using a fresh cloth to wash Child A, when in fact she had used the cloth she had placed over the camera.

She maintained this explanation at a meeting on 14 January 2020. She said that she had followed the care plan and nightly routine and completed all hourly checks and observations at the correct times. This was not true.

On 3 February 2020, Ms Tchampet for the first time admitted that she had been asleep while the camera was covered. She also admitted that she covered the camera in order to go to sleep (as well as because of her medical condition). She did so orally, but the change was documented in a note which was before the Panel. This was some 6 or 7 weeks after the night in question and some 6 weeks after her original false account. Her original denial was difficult to reconcile with the evidence from movement sensors triggering the movement-triggered camera that there had been no movement in the room when she claimed to have been awake and performing hourly checks.

These facts, and that evidence, formed the basis of the misconduct charges.

The charge details were as follows

“That you, a registered nurse:

1)

On 18 December 2019 whilst working with Child A who was vulnerable:

1.1)

Slept during your shift on one or more of the following occasions when you were not permitted to do so:

a)

From 01:16 am and 03:32 am.

b)

From 04:07 am and 05:43am.

2)

Recorded that you had observed Child A at 02:00 am on the record of events when you knew you had not.

3)

Recorded that you had carried out hourly observations for Child A in the Tuesday night observation chart from 02:00am to 05:00 am when you knew you had not.

4)

Your actions at any or all of charge 2 and 3 were dishonest in that you sought to create the impression that you were monitoring Child A when you knew you were not.

5)

Did not maintain hygiene and or infection control in that you used the cloth that was used to cover the CCTV camera to wash Child A.

6)

Your actions at any or all of the charges above placed Child A at risk of serious harm.

7)

When asked by your employer about the incident dated 18 December 2019 did not give an accurate account of what had happened.

8)

Your actions at charge 7 were dishonest in that you sought to conceal that you were asleep during your shift on 18 December 2019.

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

The Panel hearing took place between 31 March and 2 April 2025. On 3 April, the Panel gave its Decision on sanction. On 4 April, the Panel ascertained that the NMC was not seeking an interim order and made a small addition to the Decision to reflect that.

In its Decision, the Panel found the charges to be proved in their entirety, because Ms Tchampet admitted them.

It was not, however, admitted by Ms Tchampet that the charges amounted to misconduct, or that her fitness to practise was impaired.

The Panel heard evidence and argument about that, and also about the disputed question of whether Ms Tchampet should be struck off. It heard evidence from Ms Tchampet and considered other evidence, including documents about the 2017 warning, and various testimonials in Ms Tchampet’s favour.

The Panel found misconduct to be proved, giving the following reasons in its Decision:

“The panel was of the view that your actions did fall significantly short of the standards expected of a registered nurse, and that your actions amounted to multiple breaches of the Code. Specifically:

‘1 Treat people as individuals and uphold their dignity

To achieve this, you must:

1.1

treat people with kindness, respect and compassion

1.2

make sure to deliver the fundamentals of care effectively

1.4

make sure that any treatment, assistance or care for which you are responsible is delivered without undue delay

10 keep clear and accurate records relevant to your practice

This applies to the records that are relevant to your scope of practice. It includes but is not limited to patient records.

To achieve this, you must:

10.1

complete records at the time or as soon as possible after an event, recording if the notes are written some time after the event

10.2

identify any risks or problems that have arisen and the steps taken to deal with them, so that colleagues who use the records have all the information they need

10.3

complete records accurately and without any falsification, taking immediate and appropriate action if you become aware that someone has not kept to these requirements

13 Recognise and work within the limits of your competence

To achieve this, you must, as appropriate:

13.1

accurately identify, observe and assess signs of normal or worsening physical and mental health in the person receiving care

13.3

ask for help from a suitably qualified and experienced professional to carry out any action or procedure that is beyond the limits of your competence

13.4

take account of your own personal safety as well as the safety of people in your care

14 Be open and candid with all service users about all aspects of care and treatment, including when any mistakes or harm have taken place

To achieve this, you must:

14.1

act immediately to put right the situation if someone has suffered actual harm for any reason or an incident has happened which had the potential for harm.

14.2

explain fully and promptly what has happened, including the likely effects, and apologise to the person affected and, where appropriate, their advocate, family or carers

19 Be aware of, and reduce as far as possible, any potential for harm associated with your practice

To achieve this, you must:

19.1

take measures to reduce as far as possible, the likelihood of mistakes, near misses, harm and the effect of harm if it takes place

19.3

keep to and promote recommended practice in relation to controlling and preventing infection

20 Uphold the reputation of your profession at all times

To achieve this, you must:

20.1

keep to and uphold the standards and values set out in the Code

20.2

act with honesty and integrity at all times, …’

The panel appreciated that breaches of the Code do not automatically result in a finding of misconduct. However, the panel was of the view that it is incumbent on nurses caring for the most vulnerable patients to avoid the risk of them coming to harm through acts or omissions. Sleeping on duty endangered the health and safety of a vulnerable quadriplegic child with a tracheostomy by preventing timely responses to potential emergencies despite the requirement for hourly monitoring and continuous observations during this time.

The panel determined that by using the cloth which had covered the CCTV camera to wash Child A, you placed a vulnerable patient at risk of infection, the consequences of which could have been very serious. In turn you falsified records to indicate that you had in fact observed the patient throughout this period when on two occasions you were actually sleeping. The panel was of the view that accurate, truthful and contemporaneous records are crucial to good healthcare delivery and their falsification in this case is in clear breach of the code of practice and general tenets of honesty and candour within the nursing profession.

The panel found that your actions did fall seriously short of the conduct and standards expected of a nurse. The panel therefore determined that the totality of your conduct amounted to serious misconduct.”

There is no appeal against the finding of misconduct.

Having found misconduct proved, the Panel went on to decide whether Ms Tchampet’s fitness to practise was currently impaired.

The Panel explained why it might not be.

“The panel acknowledged that failings in clinical practice such as breaches of infection control and inaccurate record keeping can be remediated through appropriate training and that the risk of sleeping whilst on duty could be minimised if appropriate lifestyle and workplace situational changes were made. However, the panel considered that dishonesty is more difficult, albeit not impossible, to remediate as it relates to a registrant’s integrity and trustworthiness.”

The Panel said it was “satisfied that the misconduct in this case is capable of being addressed”. Therefore, it considered the evidence before determining whether or not Ms Tchampet had taken sufficient steps to strengthen her practice and remediated the dishonesty.

It decided that she had. It noted that she had made admissions, and it was impressed by her evidence and her testimonials. It particularly noted her decision to work only in hospital settings which it thought demonstrated insight. In relation to the dishonest conduct, the Panel took into account Ms Tchampet’s oral evidence, which it described as candid. It referred to her unblemished record in the five years between the misconduct and her Panel hearing, and noted extensive relevant training she had undertaken.

The Panel decided that Ms Tchampet’s misconduct had put Child A at an unwarranted risk of harm. It decided that her misconduct breached fundamental tenets of the nursing profession, in that she did not prioritise people, she did not practise effectively, she did not preserve the safety of Child A and she did not promote professionalism and trust Therefore, she brought the reputation of the profession into disrepute. She also acted, the Panel found, dishonestly.

However, the Panel then considered whether their was a risk of repetition and decided that a finding of impairment was not necessary on the grounds of public protection. It said:

“The panel took into account your level of insight and thorough remediation. The panel is of the view that there is a minimal risk of repetition and therefore determined that a finding of impairment is unnecessary on the grounds of public protection.”

The Panel did, however, consider that a finding of impairment was necessary on the grounds of public interest. It explained:

“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 while you have done much to remediate the concerns and no longer pose a serious risk to the public, the scale, range and seriousness of your breaches of the code and the fundamental tenets of the profession require a finding of impairment on public interest grounds. It concluded that in light of the seriousness of your past failings public confidence in the profession would be undermined if a finding of impairment were not made in this case. The panel also considered that a finding of impairment was required to uphold proper professional standards in the profession.

Therefore, the panel finds your fitness to practise impaired on the grounds of public interest.”

The Panel then went on to decide what sanction it should impose.

In doing so, it made the following findings and observations:

“The panel took into account the following aggravating features:

• Your history of previous failings in relation to sleeping on duty which resulted in a warning for 12 months

• Child A was a particularly vulnerable patient with serious health concerns, and you placed them at risk of suffering serious harm by falling asleep whilst on duty

• Your actions deliberately breached the duty of candour because you falsified the patient’s records to cover up falling asleep, which placed Child A at further risk of harm

• You breached the trust placed in you by Child A’s parents who entrusted you with his safety

• Your dishonesty continued in that you sought to cover up your actions during internal investigations

The panel also took into account the following mitigating features:

• Your admission to all charges at this hearing

• You have remediated the concerns and shown significant insight into your failings

• Your unblemished work record for the past five years since the misconduct

• The extensive testimonials both from colleagues working with you daily and managers responsible for your work who all attest to your high standards of skills, professionalism and trustworthiness knowing the charges you face.

Specifically in relation to your dishonesty, the panel determined that on a scale of seriousness, it was towards, but not at, the higher end of the spectrum, because of the aggravating features identified. The panel had regard to the NMC’s guidance document Considering sanctions for serious cases.

The panel views dishonesty in the nursing profession as a serious concern, particularly when it involves falsification of records. Your conduct misrepresented clinical reality and had the potential to mislead colleagues thereby placing Child A’s safety at risk. While the panel has not identified adverse harm arising from this misconduct, the potential for adverse consequences was significant.”

Despite all this, the Panel decided against striking Ms Tchampet off the register. It referred to the NMC guidance on sanctions and said:

“The panel considered whether a striking-off order would be proportionate but, taking account of all the information before it, and of the mitigation provided, the panel concluded that it would be disproportionate and unnecessary in your case and would be unduly punitive. The panel was satisfied that your misconduct was not fundamentally incompatible with remaining on the register, having given appropriate weight to the mitigating features identified.”

Instead, the Panel decided to suspend Ms Tchampet from the register for nine months, after which the suspension was to expire without a review.

In support of this decision, it referred to the following extracts from the NMC guidance on sanctions, which it said were engaged in Ms Tchampet’s case:

“• A single instance of misconduct, but where a lesser sanction is not sufficient;

• No evidence of harmful deep-seated personality or attitudinal problems;

• No evidence of repetition of behaviour since the incident;

• The Committee is satisfied that the nurse or midwife has insight and does not pose a significant risk of repeating behaviour;”

I have the benefit of written as well as oral submissions from all the parties.

The written submissions of Mr Simon Holborn, on behalf of Ms Tchampet, were partly generated by Artificial Intelligence (AI) via Microsoft’s Co-Pilot software. In particular, he relied on three authorities, two of which did not contain the words he attributed to them and none of which supported the propositions which he said they supported. (Fatnani v GMC [2007] EWCA Civ 46 with a purported quotation, Gupta v GMC [2001] UKPC 61 with a purported quotation from para 21 and Ghosh v GMC [2001] UKPC 29 as purported authority for a proposition.) This was pointed out to him at the hearing. He immediately admitted what he had done and that the references were phantoms created by AI. He promised not to use AI to generate submissions in future and to check his references personally. It was not possible to refer him to a regulator because, although he qualified as a solicitor, he was struck off the roll of solicitors by the Solicitors Disciplinary Tribunal in 2011 and has since then acted as an unregulated representative. I warned him of the potential for him to be charged with contempt of court (see Ayinde v London Borough of Haringey [2025] EWHC 1383 (Admin) at para 23) but I decided that it was not in this case necessary to take any further steps at this time.

The Authority, on Ground 1, submitted that the Panel was wrong to find a suspension order was a sufficiently serious sanction and that, on its own findings, nothing less than striking off the register was consistent with the Sanctions Guidance and the facts of the case.

On Ground 2, it was submitted that the Panel had made four material errors and that, if corrected, striking off must follow:

On Ground 3, the Authority submitted that if (in the alternative) the Decision was not wrong, the Panel failed to give adequate reasons for its conclusion that striking-off would be disproportionate.

The NMC, as First Respondent, supported the appeal on Grounds 1 and 3. It also supported the appeal on Ground 2, but only in respect of alleged errors (ii) – (iv), and not in respect of (i).

On behalf of Ms Tchampet, it was argued that the Panel followed the rules and conducted a fair and rigorous process, including the hearing of oral evidence from Ms Tchampet. It correctly stated the law and correctly applied the Sanctions Guidance. It gave detailed reasons. The Decision took account of mitigation, insight, and remediation, and decided that there was a minimal risk of repetition and that a finding of impairment was not necessary on the grounds of public protection (a point on which the NMC agrees with the Panel and disagrees with the Authority and the appeal). The Decision was within the range of reasonable responses and should be given substantial respect and deference. The Decision was not wrong in the sense that would justify it being overturned on appeal. The Panel was right to say that striking off would be disproportionate.

The Panel’s jurisdiction to determine whether Ms Tchampet’s fitness to practise is impaired by reason of misconduct derives from the Nursing and Midwifery Order 2001 (SI 2002/253). This includes the power to suspend or strike off (Article 29).

This appeal is brought by the NMC pursuant to section 29 of the National Health Service Reform and Health Care Professions Act 2002. Section 29(4) allows the Authority to refer the Panel’s Decision to this court “if it considers that the decision is not sufficient (whether as to a finding or a penalty or both) for the protection of the public.” By s 29(4A), consideration of whether a decision is sufficient for the protection of the public involves consideration of whether it is sufficient:

“(a)

to protect the health, safety and well-being of the public;

(b)

to maintain public confidence in the profession concerned;

and

(c)

to maintain proper professional standards and conduct for members of that profession.”

The powers of the court on hearing the appeal include, by section 29(8):

“(a)

dismiss the appeal,

(b)

allow the appeal and quash the relevant decision,

(c)

substitute for the relevant decision any other decision which could have been made by the committee or other person concerned, or

(d)

remit the case to the committee or other person concerned to dispose of the case in accordance with the directions of the court.”

This court will allow the appeal where the decision of the disciplinary panel or committee was (a) wrong; or (b) unjust because of a serious procedural or other irregularity in the proceedings: CPR r 52.21(3); see also Council for the Regulation of Health Care Professionals v GMC and Ruscillo [2005] 1 WLR 717 per Lord Phillips MR at para 71.

A number of relevant authorities were succinctly summarised in Professional Standards Authority v Health and Care Professions Council and Roberts [2020] EWHC 1906 (Admin) at para 3 by Foster J:-

“(a)

A court will allow an appeal if the appeal decision is "wrong" or "unjust because of a serious procedural or other irregularity in the proceedings in the lower court" (CPR Part 52.21(3) and see GMC v Meadow [2006] EWCA Civ 390 at paras 125 - 128);

(b)

The court, as any appeal court, will correct material errors of fact and law but be very cautious about upsetting conclusions of primary fact particularly when dependent on an assessment of credibility of witnesses, whom the Tribunal has had the advantage of seeing and hearing (see Assicurazioni Generali SPA v Arab Insurance Group (Practice Note: [2002] EWCA Civ 1642) Southall v GMC [2010] EWCA Civ 407; [2010] 2 FLR 1550), although

(c)

An appeal court may draw any inferences of fact which it considers justified on the evidence (CPR 52.11(4)).

(d)

An appellate court approaches Tribunal determinations about what constitutes serious misconduct or what impairs a person's fitness to practise or what is necessary to maintain public conference and proper standards in a profession with diffidence (Fatnani and Raschi v GMC [2007] 1WLR 1460, Khan v General Pharmaceutical Council [2016] UKSC 64; [2017] 1 WLR 1693).

(e)

This approach applies also to questions of sanction, which are similarly evaluative (ibidem, and see Bawa-Garba [2018] EWCA Civ 1879); although

(f)

Certain matters such as dishonesty or sexual misconduct may enable a court to assess what is needed to protect the public or maintain reputation more easily for itself and, therefore, attach less weight to the Tribunal's expertise (Council for the Regulation of Healthcare Professionals v The GMC and Southall [2005] EWHC 579 Admin; [2005] Lloyd's Rep Med 365, para 11; Khan at para 36).

(g)

Personal mitigation is likely to be of much less significance to regulatory proceedings than to a court of criminal jurisdiction because the overriding objective of the professional regulators is to protect the public (Bolton v The SRA; Dr Cheng Toh Yeong v The GMC [2009] EWHC 1923 Admin); although, it is nonetheless relevant when deciding whether fitness to practise is impaired (Yeong at para 47)

(h)

Regimes of regulation in the healthcare context are concerned with the practitioner's current and future fitness to practise rather than with imposing penal sanctions for things done in the past. However, in order to form a view of the fitness of a person to practise today, a panel will have to take account of the way in which the person concerned has acted or failed to act in the past (Meadow at paras 28 to 32).

(i)

A panel has to assess the current position looking forward not back. A finding of misconduct does not necessarily mean that there is impairment of fitness to practise (Yeong at para.21, citing Cohen v The GMC [2008] EWHC 581 Admin paras 63 to 64; Zygmunt v The GMC [2008] EWHC 2643 Admin at para 31.

(j)

There must always be situations in which a panel can properly decide that the act of misconduct was, on the part of the practitioner, isolated and the chance of it being repeated in the future is so remote that his or her fitness to practise has not been impaired. Indeed, the rules have been drafted on this basis (see Articles 21.1, 27 and 29 in the instance case).

(k)

It must be highly relevant, at least in cases involving clinical error, when determining whether a doctor's fitness to practise is impaired, that first his or her conduct which led to the charges is easily remediable; second, that it has been remedied; and, third, it is highly unlikely to be repeated (Cohen paras 64 to 65). Nonetheless,

(l)

When considering the meaning of impairment of fitness to practise a regulator is entitled to have regard to the public interest in the form of maintaining public confidence both in the profession generally and in the individual practitioner. Thus, if there is a sense that misconduct involving, for example, violation of a fundamental rule governing doctor/patient relationships by engaging in a sexual relationship may be indulged in with impunity, then the public's confidence in engaging with a particular practitioner may be undermined (Yeong at para 50).

(m)

In such a case, such as violating the therapeutic relationship by engaging in a sexual relationship, efforts of remediation may be of far less significance than those cases, for example, involving clinical error or incompetence (ibidem, para 51).

(n)

The court's judgment, however, even where relating to matters such as dishonesty, is still to an extent a secondary one (PSA v The GMC and Hilton [2019] EWHC] 1630 ). And, finally,

(o)

the concept of fitness to practise is ultimately a flexible one (CHRE v NMC and Grant [2011] EWHC 927 and Khan v General Pharmaceutical Council [2017] 1 WLR 169).”

Deference will be shown to the original decision on sanction, which must be “wrong” rather than simply contrary to the decision that the appeal court might have reached. The appeal is a review, not a re-hearing or a re-determination.

Per Laws LJ in Raschid andFatnani v GMC [2007] 1 WLR 1460 at para 19:

“As it seems to me the fact that a principal purpose of the panel's jurisdiction in relation to sanctions is the preservation and maintenance of public confidence in the profession rather than the administration of retributive justice, particular force is given to the need to accord special respect to the judgment of the professional decision-making body in the shape of the panel. That I think is reflected in the last citation I need give. It consists in Lord Millett's observations in Ghosh v General Medical Council [2001] 1 WLR 1915, 1923, para 34:

“the Board will afford an appropriate measure of respect to the judgment of the committee whether the practitioner's failings amount to serious professional misconduct and on the measures necessary to maintain professional standards and provide adequate protection to the public. But the Board will not defer to the committee's judgment more than is warranted by the circumstances.”

In Professional Standards Authority v General Optical Council and Rose [2021] EWHC 2888, Collins-Rice J said at para 86:

“Any determination of sanction must be approached by regarding the ISG [Indicative Sanctions Guidance] as giving an ‘authoritative steer’. When a FTPC decides – as in an appropriate case it may – to depart from the ISG’s steer, it has to give clear and case-specific reasons for doing so.”

The facts that I have set out were very grave.

Ms Tchampet was the only nurse in charge of a vulnerable child patient in a home, as opposed to hospital, setting.

There was no-one with her in the room. Everything depended on her.

She accepted in her evidence that the patient might get into difficulties at times other than the times of the standard hourly checks. He had a tracheostomy and there was a risk he might pull out the tube, or that his breathing might be blocked by secretions which he could not clear for himself because of the tube. She accepted that, if she failed to do her job of supervision, the consequences might be (in her word) “fatal”.

Despite this, she deliberately covered the camera so that she could go to sleep without being seen, and she in fact went to sleep for two substantial periods of time.

She also failed to do the required hourly checks.

She also falsified the record to show she had done checks she had not done.

When presented with evidence, she denied sleeping, and denied covering the camera in order to sleep, and denied that her records were false.

She maintained this denial in the course of a formal investigation, both orally and in writing, for a period of about six weeks.

All of this was very serious in itself, and noted by the Panel in its Decision on pages 22-23.

The Panel also said:

“The panel views dishonesty in the nursing profession as a serious concern, particularly when it involves falsification of records. Your conduct misrepresented clinical reality and had the potential to mislead colleagues thereby placing Child A’s safety at risk. While the panel has not identified adverse harm arising from this misconduct, the potential for adverse consequences was significant.”

But this was not all. As the Panel recognised (for example on p 22 of the Decision), Ms Tchampet had a “history of previous failings in relation to sleeping on duty which resulted in a warning for 12 months”. In fact, it was worse than that, because the history also included an incorrect record.

Another factor, which the Panel did not mention in its decision, was that on the previous occasion Ms Tchampet had escaped greater sanction in part because of good references, and her assurance that she would not work in a community setting. But those assurances, and good references, turned out not to be a reliable indicator of risk of repetition, because she committed the 2019 misconduct in a community setting which was even more exposed than before (there not even being a Health Care Assistant working her), and the misconduct was strikingly similar to the admitted misconduct which had led to the warning in 2017 although, because of the elements of dishonesty, it was also worse. Not only was the risk of repetition higher than her good references and assurances had suggested in 2017: the misconduct less than two years later in 2019 was actual repetition, and escalation.

A number of passages in the Sanctions Guidance were obviously relevant, most, if not all, of which were referred to in the Decision, albeit sometimes obliquely or selectively.

First, there is the section in the Sanctions Guidance for particularly serious cases (27 February 2024, which was the version in force at the time of the hearing) which says:

“Cases involving dishonesty

Honesty is of central importance to a nurse, midwife or nursing associate’s practice. Therefore allegations of dishonesty will always be serious and a nurse, midwife or nursing associate who has acted dishonestly will always be at some risk of being removed from the register. However, in every case, the Fitness to Practise Committee must carefully consider the kind of dishonest conduct that has taken place. Not all dishonesty is equally serious. Generally, the forms of dishonesty which are most likely to call into question whether a nurse, midwife or nursing associate should be allowed to remain on the register will involve:

● deliberately breaching the professional duty of candour by covering up when things have gone wrong, especially if it could cause harm to people receiving care

● misuse of power

● vulnerable victims

● personal financial gain from a breach of trust

● direct risk to people receiving care

● premeditated, systematic or longstanding deception

Dishonest conduct will generally be less serious in cases of:

● one-off incidents

● opportunistic or spontaneous conduct

● no direct personal gain

● incidents outside professional practice

Nurses, midwives and nursing associates who have behaved dishonestly can engage with the Fitness to Practise Committee to show that they feel remorse, that they realise they acted in a dishonest way, and tell the panel that it will not happen again. Where the professional denies dishonesty, it is particularly important that they make every effort to attend the hearing so that the Committee can hear at first hand their response to the allegations.”

Ms Tchampet was within three of the six bullet point examples of cases involving dishonesty which were more likely to result in striking off. She had deliberately covered up when things had gone wrong, and (by falsifying the record as part of that) she had potentially caused harm. She was looking after a child who was exceptionally vulnerable, both because of his own helplessness, and because she was the only health care professional in the building. Her actions presented a direct risk to the person receiving care.

The Panel, on the other hand, saw this as within two of the four bullet point examples of cases in which dishonest conduct will generally be less serious. It saw this as a one-off incident. It noted there was no personal gain.

It was not really a one-off incident, however. It came on the back of the 2015 incident and the 2017 warning. The dishonesty was not just in relation to covering up the camera and the sleeping, but also in relation to falsifying the record about checks. The dishonesty also included lying to the investigator about using a fresh cloth to clean the patient, instead of the cloth which she had contaminated by placing it over the camera. The dishonesty was not limited to the record falsification (and camera cover up) at the time of the night shift in December, but continued with the lies told for six weeks in the course of a formal investigation. There had been, therefore, dishonesty in multiple respects and over a considerable period of time.

The section in the Sanctions Guidance on neglect of children and vulnerable people was also relevant. It says:

“Abuse or neglect of children or vulnerable people

Safeguarding and protecting people from harm, abuse and neglect is an integral part of the standards and values set out in the Code, and any allegation involving the abuse or neglect of children or vulnerable people will always be treated seriously.

When considering sanctions in cases involving the abuse or neglect of children or vulnerable adults, panels will, as always, start by considering the least severe sanction first and move upwards until they find the appropriate outcome. However, as these behaviours can have a particularly severe impact on public confidence, a professional’s ability to uphold the standards and values set out in the Code, and the safety of those who use services, any nurse, midwife or nursing associate who is found to have behaved in this way will be at risk of being removed from the register. If the panel decides to impose a less severe sanction, they will need to make sure they explain the reasons for their decision clearly and carefully. This will allow people who have not heard all of the evidence in the case, which may include those directly affected by the conduct in question, to properly understand the decision.”

The Decision noted the question of vulnerability at numerous points, but it nowhere referenced this passage from the Sanctions Guidance. This passage about neglect of the vulnerable strongly pointed towards striking off on the facts of this case, and it was separate from and in addition to the guidance reflecting the elements of dishonesty.

There was another relevant passage, in the Understanding Fitness to Practise Guidance (Ref FTP-3a, updated 27 February 2024), as follows:

“Serious concerns which are more difficult to put right

A small number of concerns are so serious that it may be less easy for the nurse, midwife or nursing associate to put right the conduct, the problems in their practice, or the aspect of their attitude which led to the incidents happening.

In cases like this, we will be keen to hear from the nurse, midwife or nursing associate if they have reflected on the concerns and taken opportunities to show insight into what happened. Because concerns of this nature, when they aren’t put right, are likely to lead to restrictive regulatory action, if we don’t hear from the nurse, midwife or nursing associate we will usually focus on preparing the case for the Fitness to Practise Committee at the earliest possible opportunity.

We may need to do this where the evidence shows that the nurse, midwife or nursing associate is responsible for:

● breaching the professional duty of candour to be open and honest when things go wrong, including covering up, falsifying records, obstructing, victimising or hindering a colleague or member of the public who wants to raise a concern, encouraging others not to tell the truth, or otherwise contributing to a culture which suppresses openness about the safety of care;

● discriminatory behaviour that has taken place either inside or outside professional practice;

● harassment, including sexual harassment, and other forms of sexual misconduct whether it occurs inside or outside professional practice;

● abusing their position as a registered nurse, midwife or nursing associate or other position of power to exploit, coerce or obtain a benefit (including sexual or financial) from people receiving care, colleagues or students;

● relationships with people receiving care in breach of guidance on clear sexual boundaries;

● specified offences, including hate crimes, sexual offences and serious crimes against children or vulnerable people; deliberately causing harm to people receiving care;

● deliberately using or referring to false qualifications or giving a false picture of employment history which hides clinical incidents in the past, not telling employers that their right to practise has been restricted or suspended, practising or trying to practise in breach of restrictions or suspension imposed by us;

● being directly responsible (such as through management of a service or setting) for exposing people receiving care to harm or neglect, especially where the evidence shows the nurse, midwife or nursing associate putting their own priorities, or those of the organisation they work for, before their professional duty to ensure the safety and dignity of people receiving care.”

This passage is referring to cases in which striking off is more likely because they are cases in which, by their very nature, to quote the passage, “are so serious that it may be less easy for the nurse (…) to put right the conduct, the problems in their practice, or the aspect of their attitude which led to the incidents happening.” This is important because of the emphasis in the Decision on good references, good conduct after the event (pending the conduct enquiry and decision), assurances as to future conduct, and courses undertaken by Ms Tchampet, all of which were highlighted by the Panel in its Decision not to strike off. If, however, the very nature of the conduct made these less effectual against the countervailing considerations tending to support striking off, this needed to be recognised. The Decision did not cite this passage. However, the first and last bullet points covered this case. The first bullet point speaks for itself. So to an extent does the last bullet point, but it is perhaps worth spelling out that Ms Tchampet prioritised her wish to have a sleep over her duty to stay awake to watch over potentially fatal risks to the child under her sole care.

The Understanding Fitness to Practise Guidance deals with risk, repetition and attitudinal issues in another passage not cited in the Decision. It says:

“Serious concerns which could result in harm if not put right

Assessing the risks presented by an individual nurse, midwife or nursing associate’s practice means carefully considering the evidence about those risks.

Our evidence will need to explain clearly whether people using health or care services were put at risk by the nurse, midwife or nursing associate’s conduct or failings in the past, and what harm did or could have happened to other users of services because of those failings.

We will need to assess how likely the nurse, midwife or nursing associate is to repeat similar conduct or failings in the future, and if they do, if it is likely that people who use services would come to harm, and in what way.

We wouldn't usually need to take regulatory action for an isolated incident (for example, a clinical error) unless it suggests that there may be an attitudinal issue.

Examples could include cruelty to service users or a serious failure to prioritise their safety, discrimination or sexual misconduct. Such behaviours may indicate a deep-seated problem even if there is only one reported incident which will typically be harder to address and rectify.

A pattern of incidents is usually more likely to show risk to people who use services, requiring us to act. Conduct or failings that put people receiving care at risk of harm will usually involve a serious departure from the standards set out in our Code. These standards are intended to ensure that nurses, midwives or nursing associates practise safely and effectively.”

The Decision refers to the 2017 warning but not to the assurances and good references which were relied upon to justify going no further than a warning, but which were nevertheless followed by the 2019 misconduct.

Ms Tchampet’s case was not what this passage of the Guidance refers to as “an isolated incident”. It did suggest what it refers to as “an attitudinal issue”, because of the actual repetition of elements common to both the 2017 and 2019 misconduct cases: the sleeping, the defective if not dishonest record keeping, and the lack of supervision procured by working in the community away from colleagues. The repetition was, according to the Guidance, significant in itself (as opposed to the case of “an isolated incident”) but it was particularly striking when the first documented misconduct had resulted in a formal process and a warning, and yet the further misconduct had followed in a relatively short space of time. This was even more concerning than what the Understanding Fitness to Practise Guidance refers to as “a pattern of incidents” not punctuated by any warning. Although the previous history was referred to in the Decision, this section in the Understanding Fitness to Practise Guidance was not.

The balance of factors identified in the Sanctions and Understanding Fitness to Practise Guidance pointed clearly towards striking off rather than the lesser sanction of a suspension which could not exceed one year and which the Panel decided to limit to nine months.

When deciding not to strike off, the Panel acknowledged and indeed stressed many of the points which I have already made which tended to support striking off, particularly those points which arose from the facts of the case. I think there is force in the submission on behalf of the Appellant that, given the Panel’s own treatment of this issue, under the heading “Decision and reasons on sanction”, their conclusion, that the sanction should not be striking off, is surprising to the point of being wrong. I will not, therefore, single out the passages which tended to support striking off, but concentrate on the reasons given for adopting the lesser sanction of suspension.

The points made against striking off were as follows:

The Decision also considered the dishonesty “towards, but not at the higher end of the spectrum”, and “a single episode of dishonesty”; which was, given the points I have made in para 77 above, either wrong or a distinction not sufficient to make a difference between a case requiring striking off and case which could be dealt with by a period of suspension, especially where (as the Panel recognised) the misconduct was not limited to the dishonesty but included neglect which could have been fatal to an exceptionally vulnerable patient in Ms Tchampet’s sole care.

The Decision characterised the misconduct as:

“• A single instance of misconduct, but where a lesser sanction is not sufficient;

• No evidence of harmful deep-seated personality or attitudinal problems;

• No evidence of repetition of behaviour since the incident;

• The Committee is satisfied that the nurse or midwife has insight and does not pose a significant risk of repeating behaviour;

In relation to attitudinal concerns arising from your dishonest conductm, the panel acknowledged your extensive remediation,”

It was not, however, a single instance of misconduct. There were many aspects to the misconduct, and it extended (because of the dishonesty, which was serious in itself, although not the only misconduct) over weeks rather than hours.

There did appear to be an attitudinal problem, as discussed in the Sanctions Guidance, because of the similarity between the 2015 misconduct and the 2017 misconduct, and because of the repetition of that conduct notwithstanding the warning given and in breach of the assurance accepted by the Case Examiners in 2017. The Decision does not grapple with that, and, in particular, does not mention the assurance, and its breach.

There had not been repetition of the behaviour since the incident, but that was of less weight than the repetition of behaviour after the warning.

The evidence of insight had to be considered in the light of the acceptance of insight by the Case Examiners in 2017 which proved to be unreliable.

Giving due weight and deference to the reasoning of the Panel, it is incomplete and unsound and does not support its conclusion that suspension was an appropriate and sufficient sanction on the facts of Ms Tchampet’s case. I agree with the Appellant and the First Respondent that the decision was wrong and that the only possible decision, in view of the Sanctions and Understanding Fitness to Practise Guidance, and the facts of the case, was that Ms Tchampet should have been struck off.

The Panel’s own findings of primary fact supported this.

Consequently, the appeal will be allowed, the Decision will be quashed, and I will exercise my power to substitute the inevitable and correct decision, which is that Ms Tchampet should be struck off the register.