Anna Svet Semenenko v Nursing and Midwifery Council

This case is about whether it was wrong or unjust for an NMC Fitness to Practise Committee to make adverse findings and/or to impose the sanction of striking-off the register. The case comes before the High Court as a statutory appeal by the Appellant against decisions of the Committee (also known as “the panel”). The Appellant was a midwife and registrant of the NMC. The Committee made adverse determinations as to the facts, as to competence and misconduct, as to impairment of fitness to practise as a midwife, and as to sanction. The Committee imposed the sanction of a striking-off order because of the misconduct, with no further action in respect of the findings of impairment by reason of lack of competence. The appeal is pursuant to Article 38(1) of the Nursing and Midwifery Order 2001 (SI 2002 No.253). The question which I have to decide is whether any decision of the Committee was “wrong”, or whether it was “unjust” because of a serious procedural or other irregularity in the proceedings. That test derives from the Civil Procedure Rules rule 52.21(3).

The Committee’s determination was communicated on 17 July 2023. It is a 201-page document. It includes the reasoned rulings which the Committee had delivered over the course of 35 days of oral hearings. They had taken place in the period between 25 February 2022 (Day 1) and 13 July 2023 (Day 35). For this appeal, I was provided with the transcripts of all of the hearings, including those conducted in private when confidential matters were ventilated. I was also provided with all of the documents which were before the Committee, and all of the guidance documents to which the Committee referred.

The NMC presented the case against the Appellant before the Committee. Prior to the oral hearings before the Committee, the NMC had produced a document listing the Allegations. These were akin to the ‘charges’ which the NMC was making against the Appellant in the proceedings. The Committee allowed some minor textual amendments for clarity. When the Allegations are analysed and broken down, it can be seen that there were, in all, 38 Allegations. There were 9 competence Allegations and 29 misconduct Allegations. One competence Allegation (blood samples mixed on 25.6.18) was admitted by the Appellant, and the Committee declined at a late stage to permit her to withdraw that admission. The other 37 Allegations were denied. In respect of 1 competence Allegation and 5 misconduct Allegations, the Committee found no case to answer after the end of the NMC’s case (Day 13 on 25.3.22). In its determination on the facts the Committee found that 2 competence Allegations and 5 misconduct Allegations were not proved. The Committee found the case against the Appellant proved as to 6 competence Allegations and 18 misconduct Allegations. Of the misconduct Allegations found proved, one was that the Appellant had acted dishonestly. I will be identifying the competence Allegations and the misconduct Allegations later in this judgment.

After arriving at its determination of the facts, the Committee went on to determine impairment and then sanction. It applied the relevant policy guidance. By that stage, the Appellant and her advocate (Joe Cooray) had decided to withdraw from the process. The Committee decided to proceed in the Appellant’s absence. The Committee heard submissions and deliberated. It was satisfied that the conduct underlying the competence incidents could potentially be capable of being addressed in some circumstances. It also said each individual aspect of misconduct could potentially be remediable. But it found that a number of the proved misconduct Allegations demonstrated a significant attitudinal concern in relation to the Appellant’s midwifery practice; that the proved misconduct Allegations when considered collectively showed a pattern of behaviour (over what it termed “several years”), indicating significant attitudinal concerns repeated with different colleagues and patients in a variety of situations; that the underlying attitudinal concerns, particularly as to the dishonesty, would be difficult to remediate; and that no conditions of practice could be formulated given the Appellant’s deep-seated attitudinal concerns and her absence of engagement or insight. The Committee went on to decide that it could not accept the NMC’s invitation to impose a suspension order, given the deep-seated attitudinal concerns, the repetitive pattern of conduct, and the absence of insight. The Committee found as follows: that the Appellant had failed to uphold people’s dignity, to treat them with kindness, respect and compassion, to deliver the fundamentals of care, and to respect her patients’ right to privacy; that through her dishonest conduct she had failed to work cooperatively with her colleagues; that she had failed to preserve safety and respond to needs; and that there was a pattern of incidents with a risk of harm to patients. It concluded that a striking-off order was necessary to mark the seriousness of the misconduct found, the importance of maintaining public confidence in the midwifery profession and to send to the public and the profession a clear message about the standard of behaviour required of a registered midwife. It decided on “no further action” in respect of the finding of impairment of fitness to practise by reason of lack of competence. By this statutory appeal, the Appellant asks the High Court to reverse the Committee’s decisions.

The NMC was the Appellant’s regulator. It is the independent regulatory body for midwives, as well as for nurses and nursing associates. It has separate investigative, case-presenting and adjudicative arms. The Committee was an adjudicative body, acting as an independent and impartial tribunal to consider the evidence and submissions relating to the NMC’s Allegations against the Appellant, and the Appellant’s answer to the Allegations. The governing instruments are the Nursing and Midwifery Order 2001, and the 2004 Rules scheduled to the Nursing and Midwifery Council (Fitness to Practise) Rules Order of Council 2004 (SI 2004 No.1761).

The NMC has statutory objectives. At their heart is public protection. Here are Articles 3(4) and (4A) of the 2001 Order:

In the present case, ahead of the oral hearings before the Committee, a number of procedural steps had taken place, from the perspective of the NMC. In particular, there were the following:

The LHB was the Appellant’s employer. It was the LHB which made the online referral to the NMC on 17 April 2019, triggering the NMC’s duty of independent investigation. Within the referral, Ms Beasley told the NMC about the LHB’s disciplinary and capability action. The topic of capability action was something which was also later considered within the Case Examiners’ Decision (§7v above). The Case Examiners recorded that the Appellant had been transferred from the Royal Gwent Hospital to Nevill Hall Hospital after February 2017, and that she had “successfully passed” her “capability plan” at Nevill Hall on 27 April 2017.

The LHB procedures are separate from the NMC procedures. The case which the Committee was considering was not in the nature of a claim for unfair dismissal by the LHB. It was not in the nature of an appeal from the refusal by the LHB to uphold a grievance raised by the Appellant. It was a freestanding, independent adjudication of the specific Allegations made by the NMC against the Appellant. However, information was

On this appeal, the Court’s receipt of materials from both parties included the following. First, the Appellant filed an appellant’s notice on 14 August 2023, accompanied by 40-page grounds of appeal. Second, the NMC provided a 47-page skeleton argument with annexes (13 January 2025) and (on 17 January 2025) a bundle of authorities together with a 3229-page appeal bundle including (a) the appellant’s notice and grounds of appeal; (b) the Committee’s appealed decision; (c) the transcripts of the hearings before the Committee; (d) the documents which were before the Committee; and (e) the guidance referred to in the hearing. Third, the Appellant provided a bundle of additional documents, a 70-page skeleton argument (24 February 2025), and five further documents (28 February 2025). These were scanned by my clerk. Fourth, the NMC provided two witness statements (5 March 2025 and 6 March 2025) addressing topics relating to documents and disclosure; a 13-page Note incorporating a Table (10 March 2025); 67 pages of documents (provided on 10 March 2025); and then the Blake Morgan NMC Investigation Report and the Case Examiners referral decision (provided on 12 March 2025). Fifth, on 5 June 2025 the NMC provided a 119-page bundle of documents comprising: (a) an email from the Appellant dated 2 September 2020 with 15 attachments which were included in her first bundle of documents before the Committee: (b) the LHB’s online referral to the NMC; and (c) the 67 pages of documents provided on 10 March 2025. Sixth, the NMC provided on 2 June 2025 a 14-page Speaking Note of the points which Counsel intended to advance at the resumed appeal hearing, in light of the Appellant’s oral submissions delivered over the course of two days in this Court.

The position as to hearings of this appeal in the High Court was as follows.

The Appellant did not attend the hearing on 17 February 2026. There had been no communication from her to the Court or to the NMC to say that she was not coming, or not able to come, or seeking an adjournment, or providing support for an adjournment. The hearing commenced at 10:30am. I proceeded with circumspection. The hearing was paused to allow enquiries to be made and to ensure I had the relevant information. Having done so, Ms Alabaster for the NMC invited me to proceed in the Appellant’s absence. I considered the commentary at the White Book 2025 pp.1239 and 1907. I decided (at 11:40am) to proceed with the resumption hearing of this part-heard appeal, in the Appellant’s absence. In dealing with the appeal, I have dealt with the points raised on the appeal, including those raised in the Appellant’s extensive written and oral submissions, and on their legal merits. In considering the substance of the appeal, I have not held against the Appellant in any way the fact that she did not attend the resumption hearing. I have kept in mind that she is a litigant in person and remained on the look-out for any points which could be taken in her favour. So did the NMC’s advocates.

My reasons for proceeding with the resumption hearing in the Appellant’s absence were as follows:

So, the resumption hearing proceeded from 12:00 noon. Ms Alabaster – who was stepping in as a replacement for the previous NMC Counsel – used the time available to do four things. First, she raised and explained a point about the Case Examiners’ report, out of her duty of candour. I was satisfied that the point raised did not alter the position as to proceeding in the Appellant’s absence. I will return to it at §74 below. Second, she took me through the Speaking Note which had been provided to the Appellant on 2 June 2025, and which she knew contained the points which the NMC wanted to make in oral submissions. Third, she adopted the NMC’s skeleton argument and Note (13 January 2025 and 10 March 2025). Fourth, she assisted me with some questions which I considered had arisen out of the Appellant’s submissions. The resumption hearing concluded and I reserved my judgment to provide it in writing, as I now do.

In deliberating about this case and approaching the writing this judgment, I had to make some decisions about the best, clearest and fairest way to tackle the comprehensive and wide-ranging set of points advanced by the Appellant in writing and orally in support of her appeal. I have read everything she wrote, listened to everything she said, and re-read my notes of what she said. In analysing the nature and relevance of her points, given the legal prism through which the Court considers a statutory appeal, it has been possible to identify and gather together themes and points which – in my judgment – best and most helpfully encapsulate the substance of what the Appellant has been submitting to the Court. The framework and the focus in what follows in this judgment has largely come from me, in gathering, channelling and assessing the key themes and points and analysing the issues that matter. It is neither necessary nor proportionate to identify every point. However, I am confident that I have included every point which could potentially make a difference.

A strong and recurring theme in the Appellant’s appeal comes, in essence, to this. It was wrong and/or unjust for the Committee’s focus to be limited to the 9 competence Allegations and the 29 misconduct Allegations. The Committee did not have the whole picture. It did not have materials relating to, and did not consider, a series of other highly material and illuminating matters. These would have enabled it to get to the truth, and understand the true picture. The Appellant, for her part, wanted the Committee to have the full picture. She wanted the Committee to consider those other matters. But she was unfairly constrained in defending herself. Documents were not provided to the Committee by the NMC. Contents of documents were redacted, so that relevant matters could not be seen. The Appellant wanted to show what matters had been raised within the LHB and the LHB procedures, and how they had been pursued. She wanted to show what matters had and had not been investigated by the LHB, and what matters had been dropped by the LHB. She wanted to show the Committee that – provided that she was given specific details with specific dates and identified patients and relevant contemporaneous records – she could refute criticisms which were made of her. By doing this, she wanted to show how very unfair it was for vague, non-specific and undocumented allegations to be pursued by the NMC, without dates and patients and records. She wanted to show the Committee the back story, including the culture of bullying, harassment and racism at the LHB; the coffee room gossip. The back story was highly relevant and important. It could cast critical light on what was being said, on the evidence of former colleagues from the LHB, and on the veracity of what they were telling the Committee. That was the essence of the Appellant’s argument in relation to this theme.

The Appellant gave specific examples of this problem as to the scope of the Committee’s enquiry. Foremost among them were the following:

I have not been able to accept that the Committee’s decisions or decision-making approach or decision-making process was wrong or unjust on this basis. These are my reasons. The starting point is that the Committee needed to make determinations on the facts, and then as to impairment and as to any sanction, by reference to the 9 competence Allegations and 29 misconduct Allegations contained in the list drawn up as the NMC’s case against the Appellant. It was evidence and points made relating to those 38 Allegations which were inevitably going to be, and remain, the primary focus of the hearings before the Committee. There would inevitably be limits to the extent to which an adjudicative body deciding the factual and regulatory merits of a list of Allegations was going to be assisted by being drawn into finding facts about satellite issues regarding a series of other incidents.

It was for the NMC to draw up the list of Allegations which were the NMC’s case against the registrant. It was for the NMC to identify documents and materials on which it was relying as relevant to the 9 competence Allegations and 29 misconduct Allegations which constituted the NMC’s case against the Appellant. The events of 11 May 2016 relating to Patient G formed no part of the case against the Appellant. The NMC was not relying on the witness statement of Caroline Davis (23 February 2020) in relation to that matter. Nor did the alleged standing on the bed incident of 20 August 2016 form part of the NMC’s case against Appellant. Nor did the retained swab incident of 9 June 2018 involving Patient B form any part of the NMC’s case. The practice of putting aside witness statements relating to other incidents, and the practice of redacting descriptions of other incidents from documents, was not new. It was logical and sensible. It was a step which would avoids potential unfairness to the registrant. Any registrant would be entitled to say – with real force – that a fitness to practise committee should focus on the incidents which are relied on, and there should be no risk of prejudice from knowing about other incidents on which no reliance is placed.

The consequence of the focus adopted by the NMC in putting forward its case, leaving out materials such as the Caroline Davis statement (Patient G), and redacting descriptions like the retained swab incident (Patient B), was this. There were materials which related to incidents which were not part of the NMC’s case, which the NMC was not putting before the Committee. That meant these were in the nature of “unused material”. For her part, the Appellant had two things. First, she had access to the documents. Second, she had transparency as to what the NMC was putting forward to the Committee. The question was then whether the Appellant wanted, for her part, to put any “unused” materials forward and make points about them when making her defence to the Allegations, at any of the Committee’s stages of adjudication.

I can accept, in principle, that it could – depending on the circumstances – be wrong or unjust for a fitness to practise committee to refuse to allow a registrant the opportunity to put forward materials, explanations and representations, as part of her defence, even if (or because) they related to incidents which were no part of the case against her. The committee would need to consider relevance, fairness and the appropriateness of any embarking on satellite fact-finding. Whether a registrant wants to introduce evidence about other incidents, which may or may not ultimately cast the registrant in a better light, would be a strategic question for the registrant to consider with their representatives. It may be a very bad idea, and could risk prejudicing the registrant’s defence, to draw attention to other criticisms and concerns. It could give the impression of being evasive, and trying to avoid facing up to the incidents which are directly relevant. Or it could be helpful to the registrant. I can quite see that a registrant may wish to say that the allegations which have been raised against them can only be seen in their true light when a bigger picture is seen and considered. They may wish to say that materials relating to other incidents are illuminating: as to the reliability of what former colleagues are saying; or as to why they are saying it; or as to the reliability of documents; or as to the registrant’s own position in being able to answer the matters relied on. If that is what a registrant or their advocate wants to try and say, then the Committee would need to consider how far it should be permitted, and what ultimate assistance it could provide.

In the present case, I find it impossible to see anything wrong or unfair in the way the Committee approached the question of other incidents. The Appellant had a series of opportunities to put forward materials of her own. It was she who had supplied the documents which comprised the 145-page first bundle of registrant’s documents which were placed before the Committee. She was then specifically given a further opportunity to provide documents when she came to make her defence and give her evidence, and provided the 82-page second bundle. She had the chance to provide her witness statement. She gave her oral evidence. Her advocate Mr Cooray made closing speeches. All of this was prior to the Committee’s determination of the facts.

The first hearing day had been on 25 February 2022 (Day 1). The NMC had called live witnesses to give oral evidence between 1 March 2022 (Day 2) and 10 November 2022 (Day 20). The Appellant gave her oral evidence between 4 January 2023 (Day 22) and 6 January 2023 (Day 24), and continued to give her oral evidence between 22 February 2023 (Day 25) and 27 February 2023 (Day 27). Closing speeches on the facts were on 28 February 2023 (Day 29) on behalf of the NMC and 1 March 2023 (Day 30) by Mr Cooray on behalf of the Appellant.

The Caroline Davis statement (as to Patient G and 11 May 2016) is illustrative of the opportunities. It was something that came up at the hearing on 2 March 2022 (Day 3). The Appellant told the Chair: “I request that [the] Caroline Davis statement and patient’s notes be returned to the folder, because it had been removed”, explaining that “she’s a midwife who made a very extensive statement against me”. She said “I do have it … but I would like it to be included, with the patient’s notes – Patient G I think”. The Chair (Derek McFaull) understandably observed that: “There’s no charges around Patient G”. In light of that observation, the Appellant said: “I will let it go”. But the Caroline Davis statement then came up again on 7 March 2022 (Day 6), when Mr Cooray told the Chair: “We do require it, and it is in the unused material. It is a very important piece – when we get all the evidence”. The Committee’s legal assessor (Charles Parsley) gave this advice: “if the NMC do not wish to produce it as part of their case and it is … in the unused material, then if you wish it to be introduced you would have to seek to have that evidence introduced as part of Ms Semenenko’s case and … it would have to be relevant and fair that it be admitted”. Mr Cooray accepted this, saying: “we could refer to it during … her defence submission”.

Then, when her time to give evidence came, the Appellant provided here 16-page witness statement on 4 January 2023 (Day 22). There was no constraint on what she could choose to address in that witness statement. She included a section on “background” and gave evidence about what she said was an LHB environment including gossip behind her back, bullying and racism. She included evidence about the LHB’s suggested capability programme and mentoring, and about what she said had been an unjust suspension by the LHB in April 2018. I interpose that this was the subject-matter of the LHB grievance procedure. The witness statement alluded to an occurrence which was “revealed to be a fabrication”. It described being dismissed by the LHB following “two incidents”. I interpose that they were the blood sample mixing incident (Patient A) and the retained swab incident (Patient B). As to those, the witness statement said: “I will address these incidents or, if applicable, charges later in this witness statement”. Later in the witness statement, the Appellant went on to address one of them, which had become the blood sample mixing competence Allegation (25 June 2018, Patient A). She did not address the retained swab incident (9 June 2018, Patient B). Not did she raise and address the ‘standing on the bed incident’; nor the Patient G incident; nor the Caroline Davis statement about the Patient G incident. Instead – and entirely understandably – she gave the background and addressed the “charges” which were “applicable” as the case against her.

A further clear opportunity arose on 23 February 2023 (Day 26). The Appellant had now resumed her oral evidence on 22 February 2023 (Day 25), after a 16 day break since 6 January 2023 (Day 24). In that resumed oral evidence on Day 25, she addressed the report JB/09 which – despite the redactions – contained a visible reference to the ‘standing on the bed’ incident. The Chair observed: “this isn’t an allegation that’s put before us” and “we won’t consider that paragraph because it’s not evidence to any of the allegations that are in front of us”. The Appellant responded that “this paragraph is fabrication” and “evidence supporting the fact that Jane Beasley was fabricating her report”. Then the next day (Day 26), it became apparent that the Appellant and Mr Cooray her advocate wanted to put in further documents.

In response, the Chair said: “we are more than happy to take that evidence”. He said: “the easiest way to do this is if you have a document you want us to refer to, it’s put in a bundle and we work through it”. He then said: “can I put on record, Ms Semenenko, you take whatever time you need to get the evidence before this panel… If it takes you the rest of the day to do this, take the rest of the day, and tomorrow, and however length of time it needs to take … don’t feel rushed”. The hearing was adjourned at 11:05 for documents to be provided.

The Appellant and Mr Cooray compiled and provided the second bundle of documents (82 pages) and the hearing resumed at Day 26 at 16:00. They did not feel they needed “tomorrow”. They did not ask for more time. They did not say there were any documents which they needed from the NMC. The 82-page bundle included LHB documents (§9iii above), and an extract from the Medical Practitioner’s Tribunal in relation to Dr Muel and the retained swab incident. There were also documents relating to the Appellant’s own allegations of bullying, harassment and racism; and her pursuit of the LHB’s grievance procedure. The Caroline Davis statement was not included.

So, the Appellant’s oral evidence resumed. On 24 February 2023 (Day 27) she told the Committee that “I want to present … a case of bullying and racial discrimination whilst I was there, the environment I was working in as a part of it”. The Chair said: “OK”. The Appellant then went on to refer to Dr Muel and “two examples”, one of which was “the incident with the swabs” when “he made me sign the papers whilst I wasn’t in the room”; and that “the doctor who left the swabs in the woman’s body … lied about me being in the room”. The Chair said: “there’s no charge about the swabs” and “I think your point is, and if I can clarify, just to make sure we have got it correct, your point is that you’re giving us an example of where the [LHB] treated a doctor and you in a different manner” which “wasn’t right”. The Appellant said “yes”, the LHB had used “completely different criteria”.

Finally, after the Appellant’s oral evidence and the NMC’s closing, the Appellant’s advocate Mr Cooray made his closing speech on behalf of the Appellant (Day 30). The speech did not focus on other incidents which were no part of the case against the Appellant. They did not explain why it was appropriate for the Committee to make findings of fact about them.

I have gone into this topic in detail, because of its prominence as a theme in the Appellant’s appeal to this Court. I am satisfied that the Appellant had a full and fair opportunity to put forward oral and written evidence in her defence. She was able to describe the background, and the work environment out of which evidence from LHB colleagues came. She was able to refer to other incidents. She was able to suggest fabrication of evidence. She and Mr Cooray were able to point out that the two matters which for the LHB had been a basis for dismissal for gross negligence were: (i) the blood sample mixing incident (Patient A), which was only an NMC competence Allegation and not an NMC misconduct Allegation; and (ii) the retained swab incident (Patient B), which did not feature in the case against her at all. The Committee did not shut any of this out. The Committee gave multiple opportunities. The Committee considered the Appellant’s description about the work environment. It considered her description of fabricated documents. It did not accept her evidence on these points. The Committee was not wrong or unjust to decline to make findings of fact about what did and did not happen in relation to the ‘standing on the bed’ incident (20 August 2018). Nor about Caroline Davis’s statement, which I have read and which was really about the adequacy of the Appellant’s notes at the moment of handover of Patient G (11 May 2016), not about whether the notes became adequate after the Appellant stayed on after her shift to fill in identified gaps. Nor about the circumstances of the retained swab incident and whether the Appellant’s signing of the swab-count document was excused by any action by Sue Jordan or Dr Muel. I repeat: none of these formed part of the case against the Appellant. They were not being held against her. Their resolution would have entailed a satellite enquiry. Given every opportunity, and having provided some documents, the Appellant and her advocate failed to show that findings on these other incidents were appropriate.

I am not, on this appeal, going to make findings of fact about what did and did not happen in relation to the standing on the bed incident (20 August 2018); nor about Caroline Davis’s statement and the adequacy of the Appellant’s notes at the time of handover of Patient G (11 May 2016); nor about the circumstances of the retained swab incident and whether the Appellant’s signing of the swab-count document was excused by any action by Sue Jordan or Dr Muel. It is not relevant to this appeal to do so. It is not appropriate to do so. I am in no position to do so. I have to decide whether the Committee went wrong or acted unjustly. It did not. Nor is there any basis for my overturning as wrong or unjust what the Committee found as to alleged “culture of xenophobia and bullying in the workplace” (§62 below); or what it found as to the fabrication of JB/09 (§64 below). These findings on these issues were neither wrong nor unjust. They were proper and justified findings by the Committee, based on everything it had read and heard.

What is, and was always, necessary for the purposes of this appeal is to focus on the incidents which were the direct focus of the case against the Appellant, and what she says to this Court about those. That is where I now turn.

It was obvious, from the time that the NMC’s Allegations were drawn up, that the incidents on 20 August 2016 in respect of Patient C, and on 2/3 November 2017 in respect of Patient D, were of central significance. They were at the heart of the case. This is why. There were 29 misconduct Allegations. Of these, 19 related to one or other of these incidents. There were 9 misconduct Allegations which related to Patient C and 20 August 2016. There were 10 misconduct Allegations which related to Patient D and 2/3 November 2017. Pausing there, in the event, the Committee found proved 7 misconduct Allegations in relation to Patient C and 9 misconduct Allegations in relation to Patient D. These were specific incidents on specific dates, with identified patients, and with available patient records. That means they were precisely the sorts of complaint which the Appellant was – and still is – saying she would be able to refute. They were not general or vague or non-specific. They were the subject of direct first-hand oral evidence from individuals who were not former LHB colleagues, but who were the patients themselves. They had each given written statements during the NMC investigation, which statements were in the materials. Patient C gave oral evidence to the Committee on 25 February 2022 (Day 1) and Patient D gave oral evidence on 1 March 2022 (Day 2). They were cross-examined by and on behalf of the Appellant. They were questioned by the Committee. So were other witnesses who gave relevant evidence. Then, of course, the Appellant gave her own witness statement and oral evidence to the Committee, addressing the alleged incidents involving Patients C and D. All of this was at the heart of the case, and was at the heart of the Committee’s striking-off sanction.

Here are the 7 misconduct Allegations which the Committee found proved and found constituted misconduct, in relation the Appellant’s actions in the case of Patient C (20 August 2016).

The essence, as I saw it, of the Appellant’s appeal to this Court in relation to Patient C and the events of 20 August 2016 was as follows.

I have considered all of the points which the Appellant has made in relation to this part of the case. I can see no basis for a conclusion that the Committee’s findings, approach to the evidence, or reasons were wrong or unjust. There is no basis on which this Court could properly overturn the Committee’s findings relating to Patient C.

The Committee had the considerable advantage of hearing the first-hand oral evidence, tested with questioning, of Patient C and of the Appellant. It had the closing submissions of the NMC advocate and the Appellant’s advocate. It had well in mind the passage of time, what had been raised, and when. The Committee had the contemporaneous post-handover note, which colleague Holly Griffiths wrote on the day itself (20 August 2016). That note recorded what Patient C told Ms Griffiths. The entry at 19:55 said Patient C “has just informed me that at previous examination at 19:00 Anya, midwife examining had told her she was ‘fully dilated’ but had told [Patient C] ‘not to tell’ and [Patient C] is aware that I believed last examination was 9cm as documented”. This same topic was referenced in a further contemporaneous entry at 13:00 on 21 August 2016 describing a conversation with Patient C’s mother and the family being “unhappy with aspects of previous midwife’s care”. In terms of what was “documented”, the Committee had the Appellant’s contemporaneous cross on the chart to show 9cm and 19:00, and the Committee heard the Appellant’s evidence about another mark on the chart. The Committee took a careful, fair and informed approach to Mark Smart’s evidence and the rota. It decided on 24 August 2022 (Day 17) that he should be recalled specifically because of that topic, he was questioned about it on 10 November 2022 (Day 20) and explained that he was “called in to cover a shift in theatre”. The Committee accepted this and relied, in the Appellant’s favour, on Mark Smart’s description of what happened when he “was present” in the room, in finding not proved misconduct Allegations [10a] and [10b] about the Appellant “shouting”. The Committee had an email from Jane Morgan to Jayne Beasley on 24 August 2016 describing conversations between Jane Morgan, Patient C and Patient C’s mother – not on the day itself – but rather after Patient C was “readmitted” and Jane Morgan had been “caring for her”. The Committee considered this and the other evidence with care. It gave clear and cogent reasons for its findings.

In the decision document, the Committee’s fact-finding consideration of the misconduct Allegations relating to Patient C and 20 August 2018 covers 19 pages. The Committee considered relevant contents from the following: Patient C’s medical notes; the oral evidence from Patient C, the Appellant, Mark Smart (including his recall as a witness to deal with the point about the rota), Jayne Beasley, Jane Morgan and Susan Pippen; the contents of the Appellant’s witness statement provided for the Committee; the contents of witness statements given in the NMC investigation by Patient C, Mark Smart, Jayne Beasley and Jane Morgan; documents describing meetings, between Jayne Beasley and Mark Smart, between Jayne Beasley, Mark Smart and the Appellant, between Jayne Beasley and Patient C; Jayne Beasley’s JB/09 report (about whose “credibility and reliability” it had earlier made findings); Jane Morgan’s email (24 August 2016); documents relating to the LHB’s capability review; and the clinical negligence proforma dated 16 November 2016.

The Committee’s reasons in relation to misconduct Allegation [12] end with this:

In my judgment, there is no basis within the Appellant’s grounds of appeal and skeleton argument or otherwise, including when looking at criticisms in combination and as a whole, for this Court to conclude that the Committee’s decisions or decision-making were wrong or unjust. What follows from this is that the Committee’s findings on the 7 misconduct Allegations found proved in relation to Patient C and 20 August 2016 – including the finding of dishonesty – must stand.

Here are the 9 misconduct Allegations which the Committee found proved and found constituted misconduct, in relation the Appellant’s actions in the case of Patient D (2/3 November 2017):

The essence, as I saw it, of the Appellant’s appeal to this Court in relation to Patient D and the events of 2/3 November 2017 was as follows.

Again, I have considered all of the points which the Appellant has made. But again, I can see no basis for finding that the Committee’s findings, approach to the evidence, or reasons were wrong or unjust. There is no basis on which this Court could properly overturn the Committee’s findings relating to Patient D.

The Committee had the considerable advantage of hearing the first-hand oral evidence, tested with questioning, of Patient D and of the Appellant. It had the closing submissions of the NMC advocate and the Appellant’s advocate. It had the documents which the NMC and the Appellant had put forward. The Appellant had every opportunity to put forward the contents of her original response (9 January 2019), if she wished to do so. The Committee considered the timing of Patient D’s complaint, the absence now of any birthing plan; the credibility and reliability of Patient D’s evidence and specificity of her recollection. The Committee found not proved this misconduct Allegation [13civ]: “On 2 and/or 3 November 2017, the Appellant failed to respect Patients D’s wishes and dignity by leaving Patient D after being informed that she felt the need to pass urine thereby necessitating Patient D to urinate on the bed.” As to that, it found that the Appellant had acted to facilitate urination with a catheter, and Patient D (as she accepted in cross-examination) had not told the Appellant that she still felt the need to urinate. In the decision document, the Committee’s fact-finding consideration of the misconduct Allegations relating to Patient D and 2/3 November 2017 covers 20 pages. The Committee considered relevant contents from the following: Patient D’s medical notes; Patient D’s complaint (21 August 2018); the oral evidence from Patient D and the Appellant; the questions and suggestions which the Appellant had put to Patient D in direct questioning (which the Committee had permitted on 1 March 2022: Day 2). The Committee’s reasoning is comprehensive, clear and cogent.

What follows from this is that the Committee’s findings on the 9 misconduct Allegations found proved in relation to Patient D and 2/3 November 2017 must stand.

There were two further misconduct Allegations which the Committee found proved, and found constituted misconduct. These were:

The Appellant says on this appeal that these adverse findings were wrong and/or unjust. In essence, as I saw it, she says this. These Allegations formed no part of the LHB’s disciplinary procedure. They were vague and undocumented: there was no identified date, no identified patient, no identified clinical records. These were examples of coffee-room gossip. They involved unreliable evidence from former colleagues who, in other respects, are proven liars. It was wrong to find them proved.

As to Allegation [4], the Committee’s fact-finding consideration involved 2 pages of reasoned assessment. The Committee considered and accepted the clear and consistent written and oral evidence of colleague Maria Bell, who said she recalled this exchange with a patient: “[The patient] said [the Appellant] had told her she should breastfeed because of what was going on. I asked what she meant and she said what’s going on with terrorists in the world, that they could put something in the formula to kill the babies”. The Committee considered, and accepted, the evidence of Mark Smart and Jayne Beasley, about this incident being raised and discussed with the Appellant at a meeting on 22 July 2016. It considered notes relating to that meeting. It considered the Appellant’s witness statement and oral evidence, including her claim – which it rejected – that the notes relating to the meeting had been fabricated.

As to Allegation [14], the Committee’s fact-finding consideration involved 1½ pages of reasoned assessment. The Committee considered and accepted the written and oral evidence of LHB colleague Mark Smart. It considered meeting notes dated 22 July 2016, when Mark Smart and Jayne Beasley were recorded as raising and discussing this incident with the Appellant. It considered the Appellant’s witness statement and oral evidence, including her denial – which it rejected – that the incident took place.

Again, having considered these and all the other points which the Appellant has made, I have been able to see no basis for finding that the Committee’s findings, approach to the evidence, or reasons were wrong or unjust. In my judgment, I have been given no basis – and I can see no basis – on which this Court could overturn the Committee’s findings.

I have kept in mind throughout that there were 11 further misconduct Allegations, and that these were not upheld by the Committee. Allegation [6] was found proved as to the facts but, as a genuine and admitted error, not constituting misconduct. The Committee on 11 November 2022 (Day 21) found no case to answer in relation to Allegations [2], [5a], [5b], [5c] and [5d]. The Committee found Allegations [3], [7], [10a], [10b] and [13civ] not proved. As has been explained above, this included two misconduct Allegations relating to Patient C and 20 August 2016 (Allegations [10a] and [10b]) and one misconduct Allegation relating to Patient D and 2/3 November 2017 (Allegation [13civ]).

Here are the 11 Misconduct Allegations which the Committee did not uphold:

The Appellant argued, in particular, that Allegation [7] involved a serious and false allegation about the circumstances in which she gave the lift. But the answer is that the Committee found this Allegation not proved, given the nature of the evidence from Jayne Beasley, Janet Lawson and the Appellant. The Committee did not find that any general or universal conclusion flowed from that specific finding or the others. There was nothing wrong or unjust in the way that and the other matters were approached and reasoned.

The Committee considered each Allegation on its merits, on the evidence, with conspicuous care and with clear and cogent reasoning. I can see no conflict or material tension in the Committee’s reasoning. The Committee’s findings in respect of Allegations not being proved did not undermine findings as to Allegations which it found proved.

The Committee delivered its fact-finding determination, as to the competence and misconduct Allegations, on 5 April 2023 (Day 31). The Appellant and her advocate Mr Cooray then decided to withdraw from the proceedings. That was an informed choice by them. The Committee unassailably decided to proceed in the absence of the Appellant. There was nothing wrong or unjust in doing so. On 10 July 2023 (Day 32), the Committee heard the NMC’s submissions on whether the facts as determined amounted to a lack of competence, whether they amounted to misconduct, and if so whether the Appellant’s fitness to practise was currently impaired. It gave its reasoned determination on those issues on 13 July 2023 (Day 34). So far as misconduct was concerned, the Committee summarised the NMC’s submissions on misconduct, identified the relevant standards in the NMC Code of Professional Conduct, then gave a 4-page assessment of why the 18 misconduct Allegations did constitute misconduct. There then followed a reasoned assessment of why it found that the Appellant’s fitness to practise was impaired by reason of the misconduct.

Within the Committee’s Day 34 determination it made these misconduct-related findings. The Committee reasoned that each aspect of misconduct would either be unacceptable and/or shocking to a fully informed member of the public or another registered professional; or alternatively that such a person would find it fell below the standards expected of a registered midwife. This is the thrust of what the Committee decided:

In its reasoned determination on impairment the Committee expressed the view that the misconduct Allegations, which it had found proved and had found constituted misconduct, collectively involved a pattern of behaviour, over what it called “several years”, indicating significant attitudinal concerns. I pause to note that the Committee’s reference to “several” years and misconduct was actually describing “two” years (2016 and 2017), but I am satisfied that nothing turns on this choice of description, in a context where the Committee was well aware of the relevant findings and the relevant dates.

It was based on its determinations of the facts, and as to misconduct and as to impairment – and having heard submissions on sanction from the NMC – that the Committee went on to find on 13 July 2023 (Day 35) that the necessary sanction was a striking-off order. The Committee referred to the deep-seated attitudinal concerns, the absence of insight shown by the Appellant, the seriousness of the misconduct, and the importance of maintaining public confidence in the profession. The conclusion was clear, comprehensive and cogent.

There are other topics raised by the Appellant on her appeal to this Court. A key topic concerns a number of points made which relate to the LHB, about the environment at the LHB, about the LHB’s procedures, about documents produced within the LHB or by former colleagues at the LHB, and about evidence given by those former colleagues. I considered all of these, and the other, points made in arriving at my judgment. I have touched on some of this already. I will identify here what I considered to be the main points and the best illustrative points. But it is important to start by remembering what the function of the NMC procedure, and the function of this statutory appeal, is not. The Committee was not reviewing the procedural or substantive merits of the LHB’s actions as the Appellant’s employer, whether in the disciplinary procedure leading to the dismissal for gross negligence (17 July 2019), or in the grievance procedure leading to the rejection of the Appellant’s grievance (20 May 2019). The Committee was considering the merits of competence and misconduct Allegations, at a hearing with evidence. This Court is considering whether the Committee’s decisions or decision-making was wrong or unjust.

Some of the Appellant’s points relate to the environment at LHB. In essence, as I saw it, it comes to this. The Allegations arose from an environment where the Appellant was subjected to bullying, harassment, intimidation and racism. There was coffee room gossip. Things were said behind her back. The environment persisted. She raised her concerns but they were never addressed. They were ignored in the disciplinary procedure. All of this shed light on what had arisen and when. It shed light on the credibility of witnesses who were LHB former colleagues and the reliability of LHB documents. It was wrongly and/or unjustly ignored by the Committee. That is the argument.

The answer to these points is this. There is no basis for finding the Committee to have been wrong or unjust in its decisions, or decision-making. The Appellant had the opportunity to make points relating to these matters, to produce any documents, and to explain why the points and documents were relevant to the Committee’s decision-making function. The Committee did not ignore these complaints. It dealt with applications on 27 February 2023 (Day 28) alleging unfairness, including because “whenever [Mr Cooray] tried to ask questions not directly related to the charges, to address the concerns of harassment, bullying and xenophobia in the workplace, he was stopped”. The Committee rejected the complaint that it had “prevented questioning outside of the charges”, recording that it had been “careful to follow correct hearing procedure and the legal advice”. The Committee dealt with the facts on the merits and the directly relevant evidence. It was and remained alive to the Appellant’s points. And it specifically returned to them in the context of deciding on impairment. Here was its reasoned assessment:

Some of the Appellant’s points relate to documents. In essence, as I saw it, her case came to this. Documents from within the LHB were manipulated and fabricated. This sheds light on the reliability of the documents, and the credibility of witnesses who were involved in the production of those documents. In particular, there are SBAR documents, which are reports referring to meetings. What could be seen from various SBAR documents were different contents in different versions. This shows manipulation and fabrication. One key report is Jayne Beasley’s JB/09 to her witness statement in the NMC investigation. By way of example, JB/09 includes, at appendix 10, an SBAR document whose contents have been manipulated. The NMC relied on these documents and on the evidence from those involved in producing the documents. So did the Committee. These points about manipulation and fabrication were wrongly and/or unjustly ignored by the Committee. That is the argument.

The answer to these points is this. The Appellant had the opportunity to make points relating to these matters, to produce any documents, and to explain why the points and documents were relevant to the Committee’s assessment. The Committee considered the points which she had made. On 22 and 23 March 2022 (Days 10 and 11) the Committee considered written and oral submissions on behalf of the Appellant as to abuse of process. The abuse of process application claimed that documents contained false information and that there had been serious tampering of evidence. The Committee considered this claim and rejected it in a reasoned determination on 24 March 2022 (Day 12). It noted the following (Day 12): that at no point did the Appellant or her advocate put the allegation of tampering to any NMC witness during questioning of them; that Ms Beasley had been cross-examined with regards to two different SBARs relating to the same meeting, which had a different level of detail; that, other than that, no other witness had been asked whether there was any part of the contents of the documents they produced that they did not recognise; and that the Committee would be in a position to hear submissions on this at a later stage of proceedings. The Committee explained that Ms Beasley had been recalled earlier on 24 March 2022 (Day 12), to answer questions about a document said to have been manipulated. She had given a credible explanation as to why a Datix document referring to pre-Covid events now appears within an updated form with a field which now automatically appears and makes reference to Covid. Later, on 28 February 2023 (Day 29), the Committee gave a reasoned rejection of an application to exclude JB/09. Then, in its ultimate determination on the facts on 5 April 2023 (Day 31), the Committee addressed the Appellant’s submissions that this JB/09 report was fabricated, and gave a cogent reasoned finding that it had not been fabricated. There was a careful decision-making approach. Cogent and clear reasons were given. I have been unable to see any basis for finding these decisions, or the decision-making approach, to have been wrong or unjust.

Some of the Appellant’s points relate to the events of April and May 2018. What she says, in essence as a I saw it, came to this. There are important LHB documents relating to meetings (17 April 2018 and 20 April 2018); to a suspension decision and report (19 April 2018 and 23 April 2018); to a characterisation of the Appellant’s absence having been through illness; to a return to work (16 May 2018); and to the environment at work after that return. The events in April and May 2018 were the subject of the LHB grievance procedure. They shed light on what happened in the LHB disciplinary procedure. A correct understanding of the events would shed light on the credibility of witnesses who were LHB former colleagues; and on the reliability of certain documents. But all of this was wrongly and/or unjustly ignored by the Committee.

The answer to these points is this. The Appellant had the opportunity to make points relating to these matters, to produce any documents, and to explain why the points and documents were relevant to the Committee’s assessment. The Committee was given no basis on which it was relevant or appropriate, in determining the issues arising in the NMC’s case against the Appellant, for a satellite fact-finding enquiry into the issues which the Appellant had unsuccessfully ventilated in an LHB grievance procedure. Nor can I see any basis on which these aspects are relevant or appropriate, in determining this appeal against the Committee’s adverse decisions on the NMC’s case against the Appellant.

So far in this judgment I have focused almost exclusively on the misconduct Allegations. I have said very little about the competence Allegations. That is for these reasons. The Committee considered all of the Allegations on their merits, on the relevant evidence. Having done so, it was ultimately the adverse findings on the misconduct Allegations which were squarely – and expressly – the basis for the sanction of striking-off. That necessarily makes the findings on, and arising from, the misconduct Allegations the principal focus of any appeal. If the Appellant were able to show that the Committee was wrong or unjust in its decision-making on the misconduct Allegations, that would be a basis for allowing her appeal and overturning the Committee’s decision to strike her off. But if she is unable to show this, her appeal could not in my judgment succeed. That is because the decision-making as to misconduct would remain, as the unimpeached basis for the striking-off sanction.

Notwithstanding that, I have considered all of the competence aspects of the case, the Committee’s reasoning on all issues and as a whole, and all of the points which the Appellant has raised in writing and orally. I have been quite unable to identify anything wrong or unjust in the way in which the Committee addressed the competence Allegations, the decisions which it made, or any integrated or knock-on effect when points are considered individually, in combination, or as a whole.

I will explain the position briefly, so far as concerns this part of the case. There were 9 competence Allegations. For each of these it was alleged that the Appellant had:

As to the other 3 competence Allegations, on Allegation [1c] the Committee found no case to answer; while Allegations [1di] and [1g] were found not proved. Here are the 3 competence Allegations which the Committee did not find proved:

The Appellant made a number of points on her appeal to this Court regarding the competence Allegations, especially those which the Committee accepted as proved, but also those which the Committee rejected as not proved. Prominent among these points were the following. She argued that accepted Allegation [1a] was incorrect on the evidence. She argued that accepted Allegation [1b] was incorrect, given a fatal conflict in evidence between colleague Emma Peard and the JB/09 report of Jayne Beasley. She argued that rejected Allegation [1c] supports the general conclusion that she would be able to refute any allegation in respect of which she is given a specific date, an identified patient, and the patient records. She argued that rejected Allegation [1di] supported a finding that an Allegation had been “false”, supporting a more general conclusion that Allegations were “false. She argued that accepted Allegation [1dii] was incorrect, on the basis that she had sourced needles from other departments at the hospital. She argued that it was incorrect on the evidence to accept Allegation [1e]. She argued that accepted Allegation [1f] was incorrect, on the basis that what actually happened was that she went out to get the patient a drink of water, leaving another midwife present. She argued that it was wrong and/or unjust not to allow the withdrawal of an admission on Allegation [1h], in light of new evidence about Dr Muel.

I have considered all of these points, and all of the other points raised by the Appellant. I have considered the Committee’s reasoned determinations on the facts, and then on lack of competence, on impairment and then what it said about competence in the context of sanction. Having done so, I was unable to find any aspect of the Committee’s decisions or decision-making which are wrong or unjust, nor any flaws which undermine as wrong or unjust the overall decisions.

This was a discrete topic. The Appellant argued that it was wrong and/or unjust for the Committee to refuse to admit the Case Examiners’ Report (11 November 2020). That report was the subject of an application which the Appellant’s advocate Mr Cooray made to the Committee, in writing and oral submissions on 23 and 24 August 2022 (Days 16 and 17). The application to admit the Case Examiners’ Report was rejected, for reasons which the Committee gave on 25 August 2022 (Day 18). I have considered the application that was made, and the submissions orally and in writing made to the Committee. Having done so, I am unable to see anything wrong or unjust about that decision. The Committee explained that it had been given no cogent reason why the report should be received into evidence. It was concerned to focus on the Allegations which were being put forward, and the evidence relied on in support, independently of what had been said by Case Examiners at the earlier stage of referring them.

There was, in fact, a specific argument which could have been – but was not – advanced by Mr Cooray before the Committee, as to the relevance of the Case Examiners’ Report. Ms Alabaster raised it with the Court at the resumption hearing, in accordance with her duty of candour. The Appellant had by then absented herself, so she was not present in person to adopt it. I have treated it as though it were an argument made in support of the appeal, by the Appellant herself.

It follows from everything that I have said above that the Appellant’s appeal fails. The Committee’s decisions stand. As to the “fresh evidence” which is relied on by the Appellant, this calls for a ruling. I rule as follows. Having considered all the materials which the Appellant put before the High Court, but not put before the Committee, I am satisfied that they all of them could with reasonable diligence have been relied on before the Committee. Having had every opportunity to do so, she cannot now rely on them to undermine the Committee’s decisions. But nor, having considered all of the fresh evidence, is it capable of supporting a conclusion that the Committee was wrong or unjust. So far as the Case Examiners’ Report is concerned, the Appellant did try to rely on that before the Committee, which refused to admit that document. But the Appellant did not advance the argument which I have discussed (§74 above), and the appeal cannot succeed even with the Report. I will dismiss the appeal and formally refuse permission to rely on the fresh evidence.

Having circulated this judgment to both parties as a confidential draft, with a timetable for submissions on any consequential matters, I am able to explain here in the final approved judgment what order I made and why. The only consequential matter which has been raised is the NMC’s application for costs. I am satisfied that the Appellant was forewarned, was sent the NMC’s costs submissions and a draft order, to enable her to respond by a clear deadline. She has not engaged. I am satisfied that the NMC should have its costs of the appeal, which I summarily assess at £6,000. Costs should follow the event. There is no reason to deprive the NMC, an independent statutory body funded by fees paid by the professional members who make up the register (ie. nurses, midwives and nursing associates), of its costs. The third day was needed because of the additional time taken in the Appellant in making her oral submissions. She has disengaged, but has not withdrawn the appeal. I have applied a broad-brush deduction (down from £6,967) to reflect the fact that I am not ordering costs on an indemnity basis.