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

This appeal is brought by the Professional Standards Authority for Health and Social Care (“the PSA”). The PSA seeks to challenge certain findings of the Fitness to Practise Committee in relation to charges brought by the Nursing and Midwifery Council, the First Respondent, (“the NMC”), against the Second Respondent, Ms Joanna Budzichowska (“the Registrant”) who is a registered nurse. It also challenges the decision to suspend the Registrant in respect of those charges which were found proven rather than strike her off the register.

The decision concerns Ms Joanna Budzichowska (‘the Registrant’), at the material time a registered nurse, working at first Old Convent Nursing Home in respect of the first set of allegations, and then 3 or so years later at Plas Penmon Care Home.

The Panel of the Nursing and Midwifery Council’s (‘NMC’) Fitness to Practise Committee, (‘the Panel’) (David Crompton as Chair, sitting with registrant member Zoe Wernikowski and lay member Christine Moody and with Laura McGill and Gaon Hart as Legal Assessors) sat on various dates between 21 October 2024 and July 2025 in a virtual hearing. Both the NMC and the Registrant were each represented by counsel.

At that hearing, the NMC offered no evidence in respect of charges 5a, 5b and 12d and the Panel found that the Registrant had no case to answer in respect of charges 5h, 7 and 9. The Registrant admitted the facts in charges 6 and 8 which related to medication records and raised a question of dishonesty.

The Panel gave its substantive decision on 4 July 2025. In that decision it found the facts in charges 1ai, 1aii, 2, (in respect of Resident F), 3, 5e, 10a, 10b, 10c, 13b, 13c and 13e proved. It, however, found the facts in charges 1b, 2 (in respect of Residents D and E), 4, 5c, 5d, 5f, 5g, 11, 12a, 12bi, 12bii, 12c, 13a and 13d not proved.

As a result of the above, the following facts were proved, namely that:

Save for charges 2, 13 b and 13, the Panel found that all the above constituted misconduct. The Panel found the Registrant’s fitness to practise was impaired on both public protection and public interest grounds, and imposed a suspension order for 12 months, with a review to be held prior to its expiry.

Section 25 of the National Health Service Reform and Health Care Professions Act 2002, (“the Act”) establishes the PSA as an authority with the general function of promoting the interests of users of health care and social care in England and other members of the public in relation to the performance of regulatory bodies, including their committees. Section 25(3)(ga) provides that the NMC falls within the remit of the PSA.

By section 25(2A) the overarching objective of the PSA in the exercise of its statutory functions is the protection of the public. Section 25(2B) sets out what is ‘involved’ when the PSA pursues its overarching objective. The objectives are insofar as material: -

“(a)

to promote and maintain public confidence in the professionals regulated by the regulatory bodies;

(b)

to promote and maintain proper professional standards and conduct for members of those professions;

(c)

to promote and maintain proper professional standards and conduct for members of those professions;”

Sections 29 (1)(i) and (4) give the PSA power to refer a case to the High Court where a ‘corresponding measure’ has been taken in relation to a nurse under the Nursing or Midwifery Order 2001 (SI 2002/253) if the PSA: -

“Considers that the decision is not sufficient (whether as to a finding or a penalty of both) for the protection of the public.”

Section 29(4A) provides,

“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.”

Where a referral is made by the PSA, sections 29(7) and (8) establish that it shall be treated by the High Court as an appeal against the relevant decision, and that this Court has power to dismiss the appeal, allow the appeal and quash the relevant decision or substitute for the relevant decision any other decision which could have been made by the Fitness to Practise Committee of the NMC.

There was no dispute as to the relevant legal principles to be applied on the facts of this case. It is common ground before me that the summary of the principles to be applied by this Court when considering statutory appeals under section 29 of the Act is as set out by Morris J in Bryne v GMC [2021] EWHC 2237 (Admin) at paragraphs 8 to 27. I was also referred to the guidance of Morris J given in respect of appeals against sanction in PSA v (1) NMC and (2) Jalloh [2023] EWHC 3331 (Admin) at paragraphs 20 to 26.

I should add that I have derived considerable assistance from the guidance of the Divisional Court in GMC v Jagjivan [2017] EWHC 1247 (Admin) at paragraph 40 and PSA v (1) Health and Care Professions Council and (2) Doree [2017] EWCA Civ 319 at paragraphs 5 to 10.

Charge 11 was that the Claimant’s behaviour in Charge 10 was intended to humiliate Resident A. Charge 10, as I have said, was found proven despite the Registrant’s denial. The Panel’s reasons on Charge 11 were very brief. They stated that,

These reasons must, however, be read together with what the Panel said regarding impairment of fitness to practise in respect of Charge 10 (pg. 114)

The two grounds of appeal which relate to Charge 11 are inextricably connected and therefore it is only sensible to consider them together.

Ground 1 alleges that the Panel’s finding was one which was not reasonably open to the Panel, because given its other findings in the case, especially those on Charge 10, the only inference which it could draw was that the Registrant had intended to humiliate Resident A. Ground 2 contends that the reasons given for dismissing Charge 11 were insufficient to permit the parties to know why.

In GMC v Jagjiven [2017] 1 WLR 4438, the issue was whether a General Medical Council panel had been entitled to find that a doctor had no sexual motivation in respect of inappropriate conduct which had been found to have taken place during a consultation with a young woman. The Court gave guidance on the approach required in respect of appeals against secondary findings of fact, such as inferences drawn from primary findings of fact, at paragraph 40(iv). It held that the High Court on such an appeal is under less of a disadvantage (in comparison to other appeals against findings of fact) when being asked to draw inferences from specific facts. The level of deference owed to the tribunal of fact is therefore reduced and the High Court may draw such inferences which it considers justified on the evidence (see also CPR 52.11(4)).

The principles which apply to appeals where it is said that reasons are inadequate are well-known and have recently been analysed and summarised by Morris J in Bryne v GMC [2021] EWHC 2237 (Admin) at paragraphs 23 to 27. The essential point is that an appeal will not succeed on an inadequacy of reasons ground,

“Unless, even with the benefit of the knowledge of the evidence and submissions below, it is not possible for the appeal court to understand why the judge below had reached the decision it did reach. It is appropriate for the appeal court to look at the underlying material before the judge to seek to understand the judge’s reasoning and to “identify reasons for the judge’s conclusions which cogently justify” the judge’s decision, even if the judge did not himself clearly identify all those reasons: see English v Emery Reinbold §§89 and 118.”

The parties were not in agreement as to what inference the Panel had actually drawn about the Registrant’s intention. As a preliminary observation, it might be thought that the fact that there were genuine and reasonable grounds for disagreement between the parties on this appeal as to what the Panel’s findings in respect of the Registrant’s intention during the incident concerning Resident A were of itself signals a failure on the part of those reasons to allow the parties to know the reason why they had won or lost.

Ms Stephens, who appeared before me, as she did below, on behalf of the Registrant, realistically accepted that the reasoning in respect of Charge 11 was brief. She submitted that when reading the two passages which I have quoted above together, it could be seen that the Panel had made a finding that the intention of the Registrant was to promote the mobility of Resident A throughout the entirety of this incident. She observed that the Panel had focussed on the ‘actions’ of the Registrant which it described as uncaring and lacking compassion which was an objective analysis rather than a finding as to the Registrant’s subjective intention in carrying out those actions which was the gist of Charge 11.

Mr Standing, who appeared before me on behalf of the PSA (which of course was not a party to the proceedings below), submitted that the natural and ordinary meaning of the words ‘uncaring’ and ‘lacked compassion’ contained a subjective element which meant that on a proper reading, the Panel had found that the Registrant had intended to be uncaring and lacking in compassion.

Nor, he submitted, can one discern the essential findings from the reasons under the factual findings for Charge 11 itself: it is wholly unclear from the items of evidence listed in the reasons, how any or all those sources of evidence supported the headline conclusion that there was ‘insufficient evidence’ to find intention to humiliate Resident A. It is not possible from the reasons given to understand why no finding of intention was made.

I am conscious that when reading reasons of a fact-finding Panel, great care needs to be taken to read reasons in the context of the underlying materials and what the parties and factfinder would have understood at the time of the decision. However, for the reasons I have set out below, scrutiny of the underlying material does not shine any light on the Panel’s approach. I remind myself that the Panel is not legally trained and that it is important not to be overly forensic and that reasons may be very short indeed yet still be adequate. However, I do not accept that the reasons in this instance properly set out - in a manner that either the parties or this Court can comprehend - what it found in relation to the Registrant’s intention during her treatment of Resident A or why.

If I were forced to resolve the dispute as to what the Panel did in fact decide regarding Charge 11, I would prefer reading the sentence as Mr Standing suggests, such that the words, ‘may have started with the intent to promote mobility as it continued [the] actions became uncaring and lacked compassion’ meant that the Panel was satisfied that the Registrant’s conduct went well beyond anything which could be justified by reference to genuine clinical concern into absence of care and compassion and, accordingly, that she was aware of that fact at the time. If that is correct, the Panel was in error in failing to follow of the logical conclusion of that finding that Charge 11 was established. However, in my judgment, it is not clear what the Panel had actually decided. I cannot rule out Ms Stephens’ interpretation as being the correct one and therefore Ground 2 of the Appeal must in any event succeed.

Ms Stephens invited me to remit the issue to a freshly constituted Panel to re-hear all the evidence in the case. I reject that submission: the issue is a narrow one of inferences to be drawn from facts which are unchallenged and on which I am as well-placed as any Panel, fresh or otherwise, to form a view.

In my judgement if there was a failure to find that there was an intention to humiliate Resident A, it was wrong: such an inference was irresistible on the evidence and the findings the Panel had already made.

Resident A was a dementia-diagnosed care home resident with mobility issues which were well documented in a care plan. That plan at several points indicated that there would be occasions when he would need to be hoisted from the floor into a chair. The Registrant’s oral evidence was that she did not use the hoist to assist Resident A, as in her opinion he, ‘had deliberately thrown [himself] onto the floor to get attention’ and that he needed to be ‘discouraged from deliberately wasting the time of staff’. Again, in her opinion, the Registrant is recorded as giving evidence that the care plan was out of date and needed to be reviewed. However, I note that when the care plan was reviewed in the following January, the requirement for hoisting from floor to chair remained in place and there was no evidence before the Panel which supported the Registrant’s opinion.

Several other staff members gave evidence that they offered to get the hoist and were clearly of the opinion that the hoist was needed, but the Registrant, who was the shift lead, instructed them not to do so, even though it was “obvious that [Resident A] was struggling to get up unassisted and [they] would have benefitted using the hoist.”

The Panel expressly found that the effect on Resident A of the conduct was to humiliate him. This is hardly surprising: the effect on Resident A was described by one of the witnesses as ‘heartbreaking’ and ‘undignified’. He had wet himself and was covered in urine. He was forced to crawl on his hands and needs towards a chair, which the Registrant then sat in, forcing him to crawl to another chair further away. The Panel also expressly rejected the Registrant’s explanation of sitting in the chair to stabilise so that it would bear Resident A’s weight as he pulled himself up off the floor as “implausible” and her associated explanation that her conduct was therefore done with the purpose of promoting Resident A’s safety as “untenable”. Resident A was visibly distressed and exhausted, repeatedly saying he could not get up and asking for help. The precise duration of the episode was disputed in evidence, but on any view lasted for about 10 minutes.

I would add that in my judgement, the oral evidence of the Registrant was telling in respect of her intention at the time of this incident: she had formed the opinion both (i) that the care plan was wrong and that Resident A did not need hoisting at all and (ii) that he had ‘put himself’ on the floor ‘deliberately’ and was ‘wasting [her] time.’ In my judgement, the Panel was therefore given by the Registrant (in her own words) all they needed to find exactly what was in her mind when she chose to refuse Resident A access to the hoist and made him crawl past her sitting in a chair. On any view these were inappropriate motivations wholly unrelated to clinical need and important signposts that the Registrant’s agenda was to make a public example of Resident A, to discourage him or others from what she considered to be time-wasting attention-seeking deliberate bad behaviour. The only inference that could be drawn was that the Registrant had taken this as an opportunity to teach Resident A a lesson by humiliating him.

The whole scene encapsulates an expression of power by the Registrant over Resident A: it is a demonstration to him (and the others watching) of his helplessness in the face of her decision not to assist him. Indeed, she literally sat over him as he suffered. In my view, notwithstanding the Registrant’s denials in evidence, and, although she may have had other objectives in mind at the same time, it was plainly part of her design to humiliate him. Or, to put it another way, in allowing the situation to arise and persist as she did, the Panel was bound to find that humiliation of Resident A was an inevitable consequence. It was part of the means she had adopted to fulfil her ends, and the only logical conclusion was that she intended the humiliation that was caused.

It follows that I allow the appeal on these grounds and substitute a finding that Charge 11 is proved: the Registrant’s behaviour in Charge 10 was intended to humiliate Resident A.

Charge 13 raised a series of allegations concerning the Registrant’s interactions with Resident B on the morning of 9 May 2022. Charge 13d specifically alleged that the Registrant “Grabbed [Resident B’s] face”. It is necessary to go further into the detail of what was alleged to have happened to appreciate the context of this allegation. The following summary is derived from the reasons of the Panel in respect of Charge 13.

Resident B had a diagnosis of dementia and could be both physically and verbally aggressive. The Registrant gave evidence, which was accepted by the Panel (in the impairment section of its reasons) that Resident B had been admitted ‘some weeks previously’ and had not been bathed or showered since admission. It had been decided that the night staff should be responsible for giving Resident B a bath or shower which meant that Resident B needed to be awoken at about 6.30am. The Registrant’s evidence was that Resident B did not like being awoken at that time in the morning and did not enjoy the experience of having a shower.

Colleague 5 was the witness called by the NMC to the events and the Panel recorded the relevant part of a Safeguarding Report prepared by the witness on 27 July 2022,

“[the Registrant] and I went into [Resident B’s] bedroom and Joanna had informed me prior to entering [their] room that [they] had to have a shower on that morning. Joanna and I went into the bedroom and Joanna pulled the covers off [Resident B] and said you are going for a shower this morning…I got into the list [sic] and when they reached the list [sic] Joanna did gently shove [Resident B] into the lift which upset [them] even more. Once we were in the lift, I tried to console [them] but [they were] very agitated by this time and [they] spat in [the Registrant’s] face. [The Registrant] got very angry by this and she then grabbed [Resident B] by [their] face and said, ‘don’t you ever do that to me again.”

Colleague 5 had given a witness statement on 11 February 2023 which the Panel recorded as follows,

“It was early morning, around 6:30am and [the Registrant] insisted that we go and take Resident B of a bath… [the Registrant] went into Resident B’s room without warning and turned the lights on. [The Registrant] then walked over to the bed, ripped the covers of [sic] Resident B. This abrupt awakening made Resident B flustered and agitated…

… [the Registrant] should have gently woken Resident B up and encourage[them] to go for a shower. Instead, [the Registrant] told Resident B that [they were] ‘going for a shower now’ or words to that effect…

When they got to the lift, Resident B did not want to get into the lift, so [the Registrant] pushed [them] into the lift. This was when Resident B turned around and spat in [the Registrant’s] face.

…Resident B was still agitated, upset and resistant. This is when I saw [the Registrant] grab Resident B’s face, squashing their cheeks together and said, ‘don’t you ever do that to me again’ or words to that effect.”

The Safeguarding Report for Resident B dated 28 July 2022 was based on a report to the author by Colleague 5 and stated,

“[Resident B] had been verbally and physically abused by [the Registrant] …as she treated [them] badly by the way she spoke to [them] whilst taking [them] for a shower – she pushed [them] into the lift and then when [Resident B] spat at [the Registrant] she grabbed [their] face & shouted.”

The Registrant’s evidence before the Panel was recorded by them,

“You accepted, in oral evidence that you took the covers off of (sic) Resident B but stated that you didn’t do so vigorously. You stated that you used a firm tone of voice to indicate that Resident B needed to get up for a shower.”

Charge 13a was that the Registrant had ‘pulled the covers off Resident B rather than gently waking them up’. The Panel dismissed this charge on the basis that the NMC witnesses did ‘not provide any specific evidence in respect of what method [the Registrant] should have used [to wake Resident B up]. Charge 13b was found proved, although it found that the use of these words was not ‘deplorable’, but ‘reasonable’ and therefore did not amount to misconduct.

In respect of Charge 13c, which was that the Registrant ‘shoved’ Resident B into the lift, the Panel found this proven. It gave detailed consideration to some inconsistency of account given by Colleague 5 over time about the amount of force used, but concluded that the Registrant’s evidence was also inconsistent, failing to mention her account when the local investigation took place nearer the time and the fact that Colleague 5’s account was consistent with that of Colleague 1. Later in its reasons, the Panel made a finding that this conduct, ‘breached the fundamental tenets of the nursing profession in that she failed to prioritise and preserve the safety of Resident B and promote professionalism and trust’ and that her actions fell ‘significantly short’ of the expected standard constituting misconduct.

Charge 13e was that the Registrant had said, “don’t you ever do that to me again” or words to that effect. The Panel found this proven, on the basis that Colleague 5 had given ‘clear and consistent evidence’ on this issue but also that the Registrant had in her oral evidence accepted that she had said, “don’t do that”. The Panel considered that this was reasonable in the context of the Resident having spat in the Registrant’s face and therefore did not amount to misconduct.

In respect of Charge 13d the Panel made the following findings: -

“The panel had regard to your account of the event in that Resident B, spat in your face and, due to being in a confined space, you put your hand in front of Resident B’s mouth to act as a shield against the flow of their spit. The panel took into account that the evidence is consistent between you and Colleague 5 that Resident B spat in your face.

The panel noted that Colleague 5, although their account had been generally clear and consistent, had discrepancies in their evidence with regard to this particular subcharge.

The panel took into account that Colleague 5 in their contemporaneous statement dated 27 July 2022 stated, ‘Joanna got very angry by this and she then grabbed [Resident B] by [their] face.” Colleague 5 in their witness statement dated 11 February 2023 stated, “This is when I saw Ms Budzichowska grab Resident B’s face, squashing her cheeks together.

The panel took into account that Colleague 5 had previously asserted that you had ‘grabbed’ Resident B’s face, however in oral evidence Colleague 5 stated that you had ‘squashed’ Resident B’s ‘cheeks’ in a violent manner.

The panel therefore determined that there was insufficient evidence that you had ‘grabbed [Resident B’s] face being that it is materially different to ‘squashing someone’s cheeks.”

In Jagjivan v GMC at paragraph 40(iii), the Divisional Court held

“Any appeal court must…be extremely cautious about upsetting a conclusion of primary fact, particularly where the findings depend upon the assessment of the credibility of the witnesses, who the Tribunal, unlike the appellate court, has had the advantage of seeing and hearing (see Assicurazioni Generali SpA v Arab Insurance Group (Practice Note) [2002] EWCA Civ 1642; [[2003] 1 WLR 577, at paragraphs 15 to 17, cited with approval in Datec Electronics Holdings Limited v United Parcels Service Ltd [2007] UKH 23, [2007] 1 WLR 1325 at paragraph 46 and Southall at paragraph 47).”

In GMC v Dutta [2020] EWHC 1974 (Admin), Warby J held that, at paragraph 35,

“A tribunal of fact in proceedings of this kind is not wholly constrained by the way the parties put their cases. It is entitled to test other hypotheses, and to form its own view. Sometimes, when preparing a judgment, a point of fact or law that has not been fully explored may occur to the tribunal. In these circumstances, if the point is one of moment, the usual and proper course is to refer the matter back to the parties. It is not fair to find against a party on a factual point of substance without giving that party a reasonable opportunity to address the point beforehand.”

Mr Standing attacked the finding in respect of Charge 13d on the basis that there was no distinction in fact between an assertion that the Registrant ‘Grabbed [Resident B’s] face’ and one that the Registrant had squashed Resident B’s cheeks [with her hand]. Ms Stephens disputed this and submitted that there was a variety of ways in which the touching of the Resident’s face could have taken place and that these descriptions were not necessarily consistent with each other which meant that the Panel was entitled to find that there was an inconsistency in this case.

Mr Standing further submitted that the Panel was not entitled to make any finding that Colleague 5 had stated in oral evidence that the Registrant had ‘squashed Resident B’s cheeks in a violent manner’. Consideration of the transcript of the evidence of Colleague 5 revealed that they had never used the words ‘in a violent manner’. Examination of the transcript revealed that this submission was correct.

In evidence in chief Colleague 5 had stated:

“I was trying to make Resident B a little bit calmer, but then Resident B turned to look at Joanna, and that is when she spat in Joanna’s face. That is when Joanna grabbed Resident B’s face and said, “Don’t you ever do that to me again.”

The relevant exchange of the cross-examination by counsel for the Registrant of Colleague 5 in the transcript is as follows: -

One of the Panel members returned to this issue in questions later in Colleague 5’s evidence in which both the Panel member and Colleague 5 referred to the Registrant as ‘grabbing’ Resident B’s face. No discussion took place in either exchange about any possible distinction between what was meant by ‘grabbing the face’ as opposed to ‘squashing the cheeks’. No consideration was given in the evidence to how the Registrant got hold of Resident B or how long she did so for.

In my judgement the Panel fell into procedural error in relying on this distinction as the sole basis on which to assess the credibility or reliability of Colleague 5 as a witness on this issue. It was fundamentally unfair to single this point out as a distinction or inconsistency in circumstances where the witness had been given no warning that this was in the Panel’s mind and deprived of any opportunity to explain or clarify her evidence.

It may well have been that there was no inconsistency of any substance here: grabbing the face in the context of saying to Resident B, “don’t ever do that to me again” might quite likely involve some degree of squashing Resident B’s cheeks together and to the extent it is not that was never explored with the witness and therefore it is unfair in the circumstances to accuse her of ‘embellishment’ or ‘inconsistency’ without having had the chance to explain.

In any event, as Mr Standing has demonstrated, the reasons contain a material error of fact, namely that Colleague 5 had suggested that the face had been grabbed and/or the cheeks squashed ‘in a violent manner’. Colleague 5 had never said those words and had never been invited to give any opinion on the degree of force involved: the Registrant’s case was that she had not touched Resident B’s face at all and so this was not a fair basis on which to assess Colleague 5’s account without her having been given chance to address the Panel’s concerns.

Nor, in my judgement, was the Panel entitled to find that there was internal inconsistency between Colleague 5’s written accounts of the incident. The only proper and fair reading of the Safeguarding report and witness statement of Colleague 5 was that she had consistently expressed what happened as being the Registrant ‘grabbing Resident B’s face’ and that the reference to ‘squashing his cheeks’ was by way of further detail. It was simply not open to the Panel on the evidence to find that there was material inconsistency between these accounts.

It follows that the appeal must be allowed on this ground. The question, however, then arises as to how to dispose of the appeal on this point. It raises a narrow, but potentially important issue. My starting point is that it is not appropriate for me to seek to make my own findings of fact on this Charge, because the arbiter of primary facts, especially those which turn on issues of witness credibility, should usually be the Panel. However, remittal is an expensive process and will inevitably cause further delay. I will invite the parties to make further submissions as to whether the case should be remitted to determine Charge 13d and, if so, on what basis.

In addition to the detailed guidance at paragraphs 23-26 of Jalloh which I referred to above, it was common ground that the relevant principles of law regarding the approach of the appellate High Court to a sanction determination was that set out by the Court of Appeal in Baba-Gawa v GMC [2019] 1 WLR 1929 at paragraph 67, where it stated,

“the Tribunal in the present case, which (depending on the matter in issue), usually has greater experience in the field in which it operates than the courts: see the Smech case [2016] JPL 677, para 30; Khan v General Pharmaceutical Council [2017] 1 WLR 169,para 36; Meadow’s case [2007] QB 462, para 197; and Raschid v General Medical Council [2007] 1 WLR 1460, paras 18—20. An appeal court should only interfere with such an evaluative decision if (1) there was an error of principle in carrying out the evaluation, or (2) for any other reason, the evaluation was wrong, that is to say it was an evaluative decision which fell outside the bounds of what the adjudicative body could properly and reasonably decide: the Biogen case [1997] RPC 1, para 45; Todd v Adams and Chope [2002] 2 All ER (Comm) 97, para 129; Designers Guild Ltd v Russell Williams (Textiles) Ltd (trading as Washington DC) [2000] 1 WLR 2416, para 129; Buchanan v Alba Diagnostics Ltd [2004] RPC 34, para 31.As the authorities show, the addition of “plainly” or ”clearly” to the word “wrong” adds nothing in this context.”

Mr Standing indicated that the appeal on sanction stood alone from his other grounds of appeal and he made his submissions based on the findings of fact and misconduct as made by the Panel, regardless of the outcome of his appeal on Grounds 1, 2 and 3.

His primary position was that if any of Grounds 1, 2 and 3 were successful, that vitiated the decision on sanction. I agree with that submission. However, for the reasons which I set out below, I will allow the appeal on sanction in any event. I have determined the sanction afresh based on the findings of fact as made by the Panel and without reference to my views on Ground 1, 2 and 3.

Mr Standing attacked the decision to impose a suspension order rather than erasure of the Registrant from the register. After considering his skeleton argument and hearing oral submissions, it appeared to me that the challenge was substantively on the following bases: -

The Panel’s decision on sanction ran to just over 6 pages. They identified the following features of the case as ‘aggravating’: -

“

•

A pattern of misconduct over a period of time, with two different employers.

•

Conduct which put residents at risk of suffering harm

•

Conduct involving particularly vulnerable residents

•

Abuse of a position of trust, in respect of charges 6 and 8, in that [the Registrant] asked a junior colleague to act dishonestly by signing the controlled drugs book as a second checker when they had not observed the administration of the medication.”

Mr Standing submitted that this list was materially wrong because the episode which underlay Charge 10 in respect of Resident A was an example of cruel, egregious behaviour which did not just put Resident A at risk but caused actual observable suffering. He submitted that regard needed to be had to the Sanctions Guidance ‘SAN-2’, “Sanctions for Particularly Serious Cases”, dated 6 May 2025, which (insofar as material) provided,

“Cases that we regard as being particularly serious

Some concerns are serious because in these cases it is 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.

Examples of this type of concern are:

…’deliberately causing harm to people receiving care.’…

Serious concerns that could result in harm if not put right

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 failing 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.

Prioritise People

The evidence shows that the nurse, midwife or nursing associate has failed to:

•

Uphold people’s dignity, treat them with kindness, respect and compassion, deliver treatment care or assistance without undue delay…

•

Make sure the physical, social and psychological needs of people receiving care are responded to.

Promote professionalism and trust

The evidence shows that the nurse, midwife or nursing associate has:

•

Failed to uphold the reputation of the profession, by not acting with honesty and integrity, treating people fairly, without discrimination, bullying or harassment, in a way that does not take advantage of their vulnerability or cause them upset or distress.”

Mr Standing referred me to the Sanction Guidance at SAN-3d, dated 12 October 2018, in respect of Suspension Orders. That guidance states that a suspension order ‘may be appropriate in cases where the misconduct isn’t fundamentally incompatible with the nurse, midwife or nursing associate continuing to be a registered professional, and our overarching objective may be satisfied by a less severe outcome than permanent removal from the register.’ It then states that the ‘key things to weigh up before imposing this order include:’ whether the seriousness of the case requires temporary removal from the register, whether a period of suspension is sufficient to protect patients, public confidence in nurses, or professional standards?’

The Suspension Order guidance then continues, in a passage upon which the PSA places particular reliance,

“Use the checklist below as a guide to help decide whether it’s appropriate or not. This list is not exhaustive:

•

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

Ms Stephens submitted that the Panel mentioned the Sanctions Guidance at various points in its reasons and made specific reference to the guidance or adopted its wording at various points. It was therefore apparent that the Panel had had the guidance well in mind at the time it made its decision and had carefully considered its terms when reaching its conclusion. She submitted that in those circumstances this was an evaluative judgment formed by a specialist Panel in respect of sanction regarding which it had considerably more experience than this Court.

The Panel in its reasons made the following findings: -

“The panel then went on to consider whether a suspension order would be an appropriate sanction. The SG states that a suspension order may be appropriate where some of the following factors are apparent:

•

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 has insight and does not pose a significant risk of repeating behaviour.

The panel was of the view that this is not a case of a single instance of misconduct. There were several incidents involving four different residents. These incidents occurred over a period of time, with two different employers and demonstrated a pattern of uncaring behaviour and a disregard for residents’ welfare. The panel took into account that there is evidence of attitudinal problems as previously outlined.”

That final sentence was a reference to the Panel’s previous findings when it had separately considered whether to give a conditions of practice order:

“The panel identified evidence of attitudinal concerns regarding a pattern of uncaring behaviour and disregard to residents’ welfare. The panel also took into account that no practical or workable conditions could be formulated to address dishonesty. The panel therefore determined that the misconduct identified in this case was not something that could be addressed through retraining, in that there are no identifiable areas of [the Registrant’s] practice in need of assessment, due to the nature of the dishonesty and the attitudinal/behavioural concerns identified.”

Earlier in its reasons the Panel had also made these findings about the Registrant’s conduct,

“The panel was not satisfied that [the Registrant] has demonstrated an understanding of how her actions put residents at risk of physical and psychological harm, specifically in respect of Residents A and C. [The Registrant] has not demonstrated an understanding of why what she did was wrong or how her actions impacted negatively on residents, colleagues and the reputation of the nursing profession. Furthermore, [the Registrant] has not demonstrated how she would handle a similar situation differently in the future, where there was considerable pressure, staff shortages, challenging resident presentations and difficult colleague relationships.”

In my judgement, it was outside the range of responses open to the Panel to treat this case as being appropriate for a Suspension Order.

Having, (correctly in my view), found that

The Panel by its reasoning appears to have placed considerable weight on the testimonials from (i) the Registrant’s employer at the time of the hearing and (ii) a relative of a resident in that care home, in which they each expressed their opinion of the Registrant’s character based on their personal experience of her. Indeed, the Panel found that it had given ‘particular weight’ to these documents in support of its finding that the ‘misconduct is capable of remediation’.

Mr Standing submitted that to use the testimonials in this manner was irrational: the evidence was not material to the question which the Panel had to consider. I agree. As I have said, the Panel rightly found that there was some evidence of a problem in the Registrant’s attitude and that she had not demonstrated sufficient insight into what had caused her to repeatedly behave in an uncaring manner with a disregard to residents’ welfare. Against that background, the testimonials would only be relevant to the question of whether a Suspension Order was appropriate in the event that they provided evidence that the Registrant understood the motivations and triggers which had led to her behaviour. It was illogical to rely on general statements of individual’s personal experience of the Registrant’s current behaviour, however ‘effusive’ they were, because these could not assist the Panel in any way in supporting a finding that the misconduct was ‘capable of remediation’ and could not justify the Panel giving her what it called, ‘an opportunity to further reflect on her misconduct and demonstrate that she has full insight into her behaviour and has fully remediated the outstanding regulatory concerns.’

The Panel’s failure to recognise and address the fact that imposition of a suspension order in this case was on any view a significant departure from the Sanctions Guidance and to give reasons for that departure: see PSA v HCPC and Doree [2017] EWCA Civ 319. This case was, in my judgement, a paradigm example of the type of case where the real choice with respect to sanction was between erasure and suspension. As was held in GMC v Khetyar [2018] EWHC 813 at paragraph 22, a general assertion that erasure would be disproportionate and that the conduct is not incompatible with continued registration is sufficient will not suffice:

The Panel did not address its mind to the detail of the Striking-Off guidance SAN-3e dated 30 August 2024). Had it done so, it would in my view have been immediately and irresistibly apparent that this was a striking off case. The Guidance states that,

In its reasons (pg. 118) the panel found that the Registrant’s misconduct, ‘breached the fundamental tenets of the nursing profession and therefore brought its reputation into disrepute.’ I consider that finding meant that the Panel ought to have considered that the Registrant’s conduct raised fundamental questions about her professionalism. At any rate, that finding was simply not brought to bear later in the Panel’s reasons when it considered striking-off as a possible sanction, because it limited its reasoning to what would be ‘proportionate’ and once again

It was a material omission and a significant departure from the sanctions guidance for striking-off not to consider whether the regulatory concerns raised fundamental questions about the Registrant’s professionalism and meant that the possible sanction of strike-off had not been properly considered. Similarly, the Panel gave no consideration at all to the extent to which her conduct would seriously affect the public’s trust and confidence in registered nurses should she remain on the register. Both professionalism and public confidence are identified by the striking-off guidance as ‘key considerations’ and the omission to address either led the Panel yet again into error.

For all these reasons, I am satisfied that the Panel was wrong in law in its approach to sanction in this case. It failed to apply the Suspension Order guidance checklist appropriately to the facts as found; it irrationally relied on testimony of current conduct from third parties as evidence to support a conclusion that the Registrant had the potential to gain insight into her past actions, it failed to give adequate consideration to the striking-off guidance and it failed to apply the facts it found to the striking-off guidance.

In the circumstances, Ground 4 of the appeal is allowed.

Both parties invited me to consider sanction afresh if I allowed the appeal on Ground 4. I am starting, as suggested by the sanctions guidance, with identification of the aggravating and mitigating features of this case which I find to be: -

Turning to the Suspension Order guidance and drawing on the findings of the panel which are not disputed: the misconduct breached the fundamental tenets of the nursing profession and brought its reputation into disrepute. In my judgment, the starting point under the guidance is that conduct which can be so described is ‘fundamentally incompatible’ with the nurse continuing to be a registered professional.

That provisional conclusion is supported by review of the Suspension Order checklist features, namely (i) that this is a pattern of misconduct repeated on occasions several years apart (ii) there is evidence of attitudinal problem which would be perceived by the public to be evidence of an uncaring attitude towards residents (iii) the fact that there is no evidence of repetition since the final incident is correct but only carries limited weight where there is a pattern of misconduct because there were two groups of allegations – one at Old Convent Nursing Home and the other at Plas Penmon - (iv) the Registrant lacks insight in that she has no understanding of how she put residents at risk of physical and psychological harm or why what she did was wrong or how her actions impacted negatively on residents, colleagues and the reputation of the nursing profession and she has not demonstrated how she would handle such a situation differently in future.

Accordingly, the checklist factors point overwhelmingly against suspension order being an appropriate sanction.

In any event, seriousness needs to be considered by reference to the seriousness guidance. In my judgement the conduct in this case in respect of residents A and B, on the findings made by the Panel, can properly be seen as falling into the category of ‘abuse of vulnerable adults’ which has a particularly negative impact on public confidence in nurses and their professional standards. It follows under the guidance that these are concerns that are particularly serious and likely to attract the most serious sanction. I also find that the Registrant’s actions to Residents A, B and C, even based on the Panel’s findings in respect of Charges 11 and 13d amounted to deliberately causing harm to people receiving care and a serious failure to prioritise their safety. She was found to have ‘shoved’ a resident into a lift and to have swung a call bell at a resident. She was found to have deliberately not responded to resident call bells. These are concerns which go to the attitude of the Registrant and is of a type which is less easy to rectify.

Another aspect of the seriousness of the conduct to which proper account needs to be given is, for example with reference to the treatment of Resident A, even on the Registrant’s case that it was inadvertent, a failure to uphold his dignity. In respect of Residents A and B, as found by the Panel there was a failure to treat them with kindness, respect or compassion and make sure their physical and psychological needs were responded to, which engages whether the Registrant behaves professionally and raises the question whether public confidence in nurses would be maintained if she were not struck off.

Additionally, trust and confidence in nurses generally is damaged by the Registrant’s conduct, for example her behaviour towards residents A and C took advantage of their vulnerability and caused them upset and distress. The conduct raises fundamental questions about the Registrant’s ability to uphold the standards and values in the Code and represents in my judgement a deep-seated and attitudinal problem on her part of which there is no substantial evidence of insight or remediation.

When looked at through the lens of the striking-off guidance, the conduct clearly fits appropriately into this category of sanction: there have to be fundamental concerns about the professionalism of a nurse who pushes residents into lifts, leaves them to crawl along the floor soaked in urine contrary to the care plan, switches off the call bell and fails to respond to calls, swings call bells at residents and still cannot see why her uncaring conduct is wrong.

In my judgement, members of the public would be astonished that such a person could remain on the register of nurses and nothing less than a striking-off order is required in this case for the maintenance of trust and confidence in the profession: the public are entitled to entrust their relatives with dementia into the care of individuals with complete confidence that they will be cared for at all times with compassion and kindness and certainly never in the manner in which the Registrant has treated vulnerable residents.

Against that background it is difficult to attach any significant weight to the testimonials. None of the authors of these documents was called to give evidence and it is unclear the extent to which they would have held to their opinion if they had been made aware of the full extent of the evidence and facts found against the Registrant and been asked to consider the ramifications of those findings. In any event, even if the testimonials had withstood such scrutiny, they would not have been able to provide assistance on the central question of insight on the part of Registrant, so that they do not give any assurance that there is any reduction in the risk of repetition, in particular that the Registrant would not behave similarly in future should the same triggers or circumstances arise.

The appeal is allowed on all grounds. I shall substitute a finding that Charge 11 is proven in place of the Panel’s finding dismissing that charge and invite submissions as to whether, especially considering my other findings, Charge 13d should be remitted for determination, and if so, on what basis. I consider the appropriate sanction is striking-off and therefore substitute that sanction for the suspension order.

Can I reiterate my thanks to counsel for their helpful and clear submissions in this case. This judgment will be handed down to the parties’ representatives in draft, and I would invite them to agree an order reflecting my judgment and to seek to agree costs. If agreement cannot be reached, I will direct further submissions in writing be exchanged within 14 days of hand-down.

Further to the provision of the draft of this judgment in writing to the parties’ representatives, it is common ground between them that in view of my decision in respect of sanction, there is no intention to remit the issue under Charge 13d for reconsideration. In those circumstances, I have decided not to remit Charge 13d.