Jack Keizon Green v Nursing and Midwifery Council

The Appellant is a registered nurse. A number of allegations were made against him in relation to his work as a nurse at Withybush Hospital and at Abermad Nursing Home and in relation to his actions as a professional carer for Patient C. The allegations related to various occasions in the period 2018 to 2021.

A panel of the Respondent’s Fitness to Practise Committee (“the Panel”) heard evidence and submissions at a number of hearings from January 2024 to June 2025. Those hearings culminated in the Panel’s decision of 17^th June 2025. The Panel dismissed a number of the charges against the Appellant but upheld others. It concluded that those which had been upheld amounted to misconduct and that the Appellant’s fitness to practise was impaired. It then suspended the Appellant’s registration for a period of 6 months with provision for review at the end of that period.

The Appellant appeals some, but not all, of the Panel’s factual findings and the sanction imposed. The Respondent concedes that the appeal is well-founded in relation to one charge but otherwise resists the appeal. It follows that, in addition to sanction, the appeal turns on the Panel’s findings on the following charges:

The Appellant was registered as a nurse in 2017. Patient C suffered from cancer and sadly died in 2021. She had needed full-time care for several years. The Appellant worked as her personal assistant from 2007 until 2014 when he started nursing training. He continued to provide some care for Patient C in that period and there was a consensual sexual relationship between them from about February 2015 but the Appellant ended this relationship when he qualified as a nurse.

The Appellant began working as an agency nurse at Withybush Hospital in September 2018. The Appellant stopped working at Withybush Hospital at the end of December 2020. From January 2020 to January 2021 the Appellant worked as an agency nurse at Abermad Nursing Home and from January 2021 he worked as an agency nurse at Morriston Hospital. The Appellant had continued to provide care for Patient C from late 2018 or early 2019 onwards. The Appellant was paid by Patient C and from early 2021 at the latest he was paid to care for her from Monday to Wednesday. However, in addition to providing care for Patient C the Appellant lived at her house. The Appellant accepted that there were times when he would drink when he was living at Patient C’s house but said that he only did so when he was off-duty and not during the times when he was being paid to care for her.

The Appellant faced nine charges but several of these included a number of separate elements and so there were a total of twenty-one allegations.

Charges 1 – 3 related to the Appellant’s time at Withybush Hospital.

Charge 4 related to the Appellant’s work at Abermad Nursing Home. Charge 4(a) alleged that the Appellant had written an assessment letter in respect of a patient when he was not authorized to do so and when this was not part of his role. The Appellant accepted that he had written the letter but denied that he had acted improperly in doing so. The Panel concluded that the Appellant had not been authorized to write the letter and upheld the charge. The Appellant does not seek to appeal that finding. He does, however, challenge the Panel’s finding that charge 4(b) was proved. This alleged that the Appellant had failed to inform his line manager and others that the letter had been written. The Appellant contended that the inclusion of the letter in the patient’s computer records and the reference to it having been written in the manuscript notes had been sufficient to inform others. The Panel rejected this defence and upheld the charge.

Charges 5 – 9 related to the Appellant’s care of Patient C.

Those findings having been made the Appellant accepted that providing care when drunk would amount to misconduct but did not accept that the other matters amounted to misconduct. The Panel found that the matters alleged in charges 1(d) and 1(e) did not constitute misconduct but concluded that the other matters were misconduct. It found that the Appellant’s fitness to practise was impaired. In that regard it expressed concern about “what appears to be a pattern of behaviour in which [the Appellant’s] disregard for policy and procedure manifested in a number of different ways”. It found that the Appellant had “an attitudinal issue when it comes to recognising the limits of [his] competence and the importance of following policies and procedure”. Against that background the Panel imposed the sanction of suspension with provision for a review after 6 months.

The appeal is brought pursuant to articles 29 and 38 of the Nursing and Midwifery Order 2001 and is governed by CPR Part 52 and PD52C. It is an appeal by way of rehearing and the court has to determine whether the Panel’s decision was wrong or unjust because of a serious procedural or other irregularity.

In Sastry v General Medical Council [2021] EWCA Civ 623, [2021] 1 WLR 5029 at [102] – [113] Nicola Davies LJ, giving the judgment of the court, explained that appropriate deference must be accorded to the decision of the panel below but no more than is appropriate should be accorded and the court cannot abrogate responsibility for exercising its own judgement. The degree of deference which is appropriate will depend on the nature of the issue with which the appeal is concerned: see per Cranston J in Cheatle v General Medical Council [2009] EWHC 645 (Admin) at [15] and Hill J in Shabir v General Medical Council [2023] EWHC 1772 (Admin) at [12].

Where the appeal involves a challenge to a finding of fact the position in respect of appeals from healthcare regulatory panels is the same as in respect of other factual appeals. In short, a very high degree of deference is to be accorded to the conclusion reached below but it is not inviolable: see Southall v General Medical Council [2010] EWCA Civ 407, [2010] FLR 1550 per Leveson LJ at [47] and Assicurazioni Generali SpA v Arab Insurance Company [2002] EWCA Civ 1642, [2003] 1 WLR 577 per Ward LJ at [195] – [197].

I explained my understanding of the law concerning the duty to give reasons thus in Ali v General Medical Council [2024] EWHC 2272 (Admin) at [60] – [64]:

“60.

In Shabir Hill J summarised the law in respect of a tribunal or judge’s duty to give reasons. Hill J drew on the analysis undertaken by Morris J in Byrne v GMC [2021] EWHC 2237 (Admin) which in turn summarised the effect of the decisions of the Court of Appeal in Southall v GMC [2010] EWCA Civ 407 and English v Emery Reimbold & Strick [2002] EWCA Civ 605, [2002] 1 WLR 2409. At [18] Hill J explained the position thus:

‘As to the duty to give reasons:

(i)

The purpose of a duty to give reasons is to enable the losing party to know why they have lost and to allow them to consider whether to appeal: English v Emery Reimbold & Strick [2002] 1 WLR 2409 at [16] and Byrne at [24].

(ii)

It will be satisfied if, having regard to the issues and the nature and content of the evidence, reasons for the decision are apparent, either because they are set out in terms or because they can readily be inferred from the overall form and content of the decision: English at [26] and Byrne at [24];

(iii)

There is no duty on a tribunal, in giving reasons, to deal with every argument made in submissions: English at [17]-[18];

(iv)

In a straightforward case, setting out the facts to be proved and finding them proved or not will generally be sufficient both to demonstrate to the parties why they have won or lost and to explain to any appellate tribunal the facts found: Southall at [56] and Gupta at [13];

(v)

Where the case is not straightforward and can properly be described as exceptional”, the position will be different: a few sentences dealing with “salient issues” may be essential: Southall at [56];

(vi)

Specific reasons for disbelieving a practitioner are not required in every case that is not straightforward: Byrne at [119]; and

(vii)

Where a Tribunal’s stated reasons are not clear, the court should look at the underlying materials to seek to understand its reasoning and to identify reasons which cogently justify the decision. An appeal should not be allowed on grounds of inadequacy of reasons unless, even with the benefit of knowledge of the evidence and submissions made below, it is not possible for the appeal court to understand why the tribunal reach the decision it did: English at [89] and [118] Byrne at [27].’

61.

In those cases the court was concerned with whether adequate reasons had been given for the decision under challenge. However, the need for the court or tribunal whose decision is under challenge to have given adequate reasons is in part because without such reasons the appeal court cannot understand why the decision was reached. As Lord Phillips MR said delivering the judgment of the court in English v Emery Reimbold & Strick at [19]:

‘… if the appellate process is to work satisfactorily, the judgment must enable the appellate court to understand why the judge reached his decision.’

In Hindle v Nursing and Midwifery Council [2025] EWHC 373 (Admin) Alan Bates, sitting as a deputy High Court judge) addressed the nature of the reasoning required thus at [52] and [53]:

“[52] That is, of course, so in every case that comes before a professional discipline or FtP tribunal. But the nature and extent of the reasoning required – including precisely what issues need to be grappled with as part of the reasoning in order to justify a finding a fact – will vary depending on the nature of the factual dispute and the relevant evidence. Where an allegation is based on factual accounts asserted by certain witnesses which are directly contradicted by the person facing the allegation or by other witnesses, the tribunal will need to carry out a careful and thorough forensic analysis for deciding whether the burden of proof is satisfied. Such an analysis should seek to draw upon all available relevant indicators as to whether each witness’s account is reliable. Those indicators will often include the tribunal’s overall impression of the witnesses it has seen giving oral evidence. As Baroness Hale observed in Re B (Children) (Care Proceedings: Standard of Proof) [2009] 1 AC 11, at [26]: ‘In this country we do not require documentary proof. We rely heavily on oral evidence, especially from those who were present when the alleged events took place. Day after day, up and down the country, on issues large and small, judges are making up their minds whom to believe. They are guided by many things, including the inherent probabilities, any contemporaneous documentation or records, any circumstantial evidence tending to support one account rather than the other, and their overall impression of the characters and motivations of the witnesses. The task is a difficult one. It must be performed without prejudice and preconceived ideas. But it is the task which we are paid to perform to the best of our ability.’

[53] In such a case, it is not sufficient for the tribunal to simply consider each charge individually (i.e. in isolation from the other charges and allegations on which the witnesses have given testimony), briefly summarise the witnesses’ competing narratives relevant to that charge, and then say, “We prefer the evidence of [name of witness(es)] and therefore find this charge proved”. But that is the approach that the Panel has taken again and again in its Reasons. On my first reading of the Reasons, I repeatedly wrote ‘Why?’ in the margin, signifying my inability to understand why the Panel had chosen to prefer the evidence of one or more of the Complainant Nurses over the contrary evidence of the Appellant and, where relevant, the Paramedic.”

As Mr Bates explained it is not sufficient for a panel simply to say in stark terms that it prefers the evidence of one witness to that of another without giving reasons for that preference. It is, however, to be remembered that reasons can be stated in very short terms where doing so enables the parties and an appellate court to understand why the decision has been made. As Mr Bates pointed out the nature and extent of the reasoning required will vary from case to case and it will not always be necessary to recite each stage in the “careful and thorough forensic analysis” to which Mr Bates referred. There is, moreover, no requirement upon a panel to give “reasons for reasons”.

A regulatory panel can admit hearsay evidence and can make findings based upon such evidence once it is admitted. However, care is needed before admitting such evidence: see Thorneycroft v Nursing and Midwifery Council [2014] EWHC 1565 (Admin) at [45] and [56] and Mansaray v Nursing and Midwifery Council [2023] EWHC 730 (Admin) at [42] – [44]. Where such evidence is admitted a panel will also have to exercise care in reflecting on the weight to be attached to the evidence. This is particularly so where the evidence takes the form of multiple hearsay with the consequence that the panel not only does not receive the evidence directly from the maker of the statement but also does not hear directly from the person to whom the statement was made. In such cases particular care will be needed in reflecting on the circumstances in which the statement was made and on the extent and accuracy of the record made.

Charge 2 was based on the evidence of Josephine Dyer. Miss Dyer was formerly a senior ward sister on the ward where the Appellant worked at Withybush Hospital. She said that there was an occasion at some time before 5^th December 2018 when she realised that the Healthcare Assistants were not on the ward at the time of the end of the shift. She asked where they were and the Appellant said that he had sent them home. Miss Dyer said that she had then told the Appellant that he had no authority to do this and that the decision was hers to make. Miss Dyer said that the Appellant “didn’t like that and he pushed the chair as if to show that he was not happy. He then informed me via Facebook that he would be cancelling his shifts”.

In her evidence in chief Miss Dyer confirmed that account saying that she could remember the Appellant being upset. When she was cross-examined Miss Dyer was asked about details of the timing of the shift. The cross-examination included this exchange:

“Q. Could it be that he told you that he said that he would cover their call bells as it had already gone 8 o’clock?

A. No, I do not recall that.

...

Q. I am going to suggest to you, Jo, that Jack did not say to you that he had sent them home, simply that they had gone home and he had told them he would cover their call bells.

A.

I do not recall.”

The Appellant said that there was no time when he had told Healthcare Assistants that they could leave the ward. There were times when he had told such staff that he would cover their call bells so that they could concentrate on handover but he had never told them they could leave. In his oral evidence the Appellant said that he remembered a time when Miss Dyer had been shouting at him but that he was not sure what that was about and not only had no one gone home early but also he had not told any staff they could do so.

The Panel found the charge proved and explained its reasons thus:

“The panel was satisfied that it was not within the remit of your role to send Healthcare Assistants home, it was the responsibility of the nurse in charge. The panel found that there was no reason for Ms 4 to fabricate her evidence and it also found her evidence to be consistent, reliable and credible in respect of this charge. The panel preferred the evidence of Ms 4, who was a senior ward sister, and therefore found that it was more likely than not that you sent home Healthcare Assistants from shift without justification and/or obtaining permission from the nurse in charge. Accordingly, the panel found this charge proved on the balance of probabilities.”

The Appellant contends that the Panel’s acceptance of Miss Dyer’s evidence was unjustified. He says that the Panel failed to take account of the absence of documentary confirmation of the allegation or of the fact that it was only after the time for the end of the shift that Miss Dyer noticed that the Healthcare Assistants had left. He says that there were inconsistencies in Miss Dyer’s evidence in that there were matters which she said that she could not recall in her oral evidence. It was also said that her recollection could have been coloured by other concerns about the Appellant which were raised later. In addition, the Appellant contends that there was a discrepancy between the Panel’s finding that charge 2 was proved and its dismissal of charge 3 even though both were based on Miss Dyer’s evidence.

Further, the Appellant contends that the Panel failed to give adequate reasons for its decision. He says that it was not sufficient for the Panel to say that it found Miss Dyer’s evidence to be “consistent, reliable and credible” without explaining why it made that finding. Moreover, the Panel appears, the Appellant says, impermissibly to have taken account of Miss Dyer’s status.

There is no substance in this challenge to the Panel’s finding. The nature of the dispute before the Panel is significant. Miss Dyer’s evidence was that there was a particular incident in respect of which she remembers the Appellant accepting that he had told the Healthcare Assistants they could leave and where he responded adversely when reprimanded. The Appellant said that there was no such incident and that on an occasion when Miss Dyer had shouted at him that had been without cause and he had not responded. There was no scope for that difference of evidence being due to a misunderstanding or misrecollection. Either Miss Dyer was giving an account which was substantially correct or she was giving evidence of an incident which did not happen. If the latter, her evidence was the result either of deliberate fabrication or of some form of false memory. The Appellant’s suggestion that Miss Dyer’s recollection might have been influenced by other concerns about the Appellant in relation to other incidents is not a tenable explanation. That is because her evidence was not just of the Appellant admitting having sent the Healthcare Assistants home but also of him reacting to her reprimand: either something of that kind happened or it did not.

In those circumstances the Panel was entitled to reject the possibility of fabrication and to accept Miss Dyer’s evidence.

The acceptance of Miss Dyer’s evidence on charge 2 was not inconsistent with the finding that charge 3 was not proved. In relation to charge 2 Miss Dyer was giving evidence of her recollection of an incident in which she had direct personal dealings with the Appellant. In relation to charge 3 her evidence was derived from her interpretation of the Datix records in relation to an incident which had happened when she was not on duty. The Panel concluded that the correct interpretation of that material accorded with the Appellant’s account of that incident. The Panel disagreed with Miss Dyer’s interpretation of the records but such disagreement did not undermine the reliability of Miss Dyer’s evidence about the incident in which she was personally involved.

The first point to note in respect of Miss Dyer’s answers in the course of cross-examination is that she was being questioned in January 2024 about an incident in late 2018 and about which she had first made a statement in 2021. It is not surprising in such circumstances that there were details which she could not recall nor that there was some haziness in her evidence about the precise details of the arrangements. That did not affect the reliability of her evidence on the key issue of the Appellant’s actions. When read in context Miss Dyer’s answer of “I do not recall” to two questions is properly to be seen as a denial of the contention which was being put to her. Miss Dyer was not accepting that the Appellant might have made the comment alleged but that she had forgotten it but was denying that it had been said.

The Panel’s reasoning was expressed shortly but was entirely adequate. The Panel did not simply say that it preferred Miss Dyer’s account to that of the Appellant without saying why it did. Instead, it gave reasons for that preference. The assessment of Miss Dyer’s evidence as “consistent, reliable and credible” was shortly stated but did not stand alone and when seen in context was sufficient. Moreover, to require the Panel to give reasons for finding the account consistent and credible would amount to requiring the giving of reasons for reasons. The central point is that the Panel made it clear that the key question was whether Miss Dyer’s evidence had been fabricated. It was right to see that as the key question. Having identified that as the key question the Panel was entitled to take account of Miss Dyer’s position in concluding that there was no reason for her to fabricate her evidence (it was not suggested that she was acting because of some form of personal animus towards the Appellant). The reasons enabled the Appellant to know what the Panel had seen as the central question on this charge and to know why the Panel answered that question in the way it did. Nothing more was required.

The appeal against the finding on charge 2 is, therefore, dismissed.

Charge 4 related to the assessment of need which the Appellant had written in respect of Patient B in advance of a best interests meeting. There were two elements to the charge. 4(a) was the allegation that in writing the assessment the Appellant had exceeded his remit and had acted without authority. In 4(b) it was alleged that he had failed to inform his line manager and others of the assessment in advance of the meeting.

Most of the evidence and argument on this matter at the hearing before the Panel had been concerned with charge 4(a). It is apparent that 4(b) was addressed more briefly both by the Appellant and by the Respondent. The Appellant accepted that he had written the assessment but contended that in the particular circumstances it had been appropriate for him to do so. The Panel concluded that the Appellant had acted without authority and found charge 4(a) proved. The Appellant does not seek to challenge that finding.

It was common ground that the Appellant had placed a copy of the assessment on Patient B’s electronic records. It was also accepted that he had made an entry in the manuscript record which was handed over at the end of the shift saying “core needs assessment written & given copy to wife & daughter with wife’s consent”. The question was whether he should have done more.

In finding charge 4(b) proved the Panel said that it had regard to the evidence of Kim McKay, a director at the Abermad Nursing Home, and of the Appellant. It recited the passage in her evidence where Miss McKay had said that the Appellant had not told anyone that he had written the assessment. It also quoted the passage in his evidence where the Appellant had referred to placing a copy of the assessment in the patient’s computer records where it could be accessed by those involved in his care. It expressed its conclusion thus:

“Having regard to the evidence of Miss McKay, the panel was satisfied that it was more likely than not that you had a duty to inform your line manager and/or the multi-disciplinary team and/or the local authority of the letter you had written prior to the meeting and you did not. Placing the letter within Patient B’s records is not the same as informing your line manager and/or the multidisciplinary team and/or the local authority of the letter. The panel therefore found this charge proved on the balance of probabilities.”

In the grounds of appeal the Appellant said that the Panel had failed to take account of the following points which had emerged from the evidence of Miss McKay namely:

“a.

It would be expected that the local health board/ local authority nurse would read all the papers in readiness for the best interest meeting that had been scheduled;

b.

The assessment of needs was saved to the computer records of Patient B and therefore accessible to everyone within the home;

c.

The fact of the assessment was including in the handwritten daily notes for Patient B; and/ or

d.

That it would have been expected that if those records had been read that they would have read the assessment of need”

In support of his appeal the Appellant contended that in the circumstances he had not been obliged to do more to draw attention to the assessment than to make the entry in the manuscript record. He also pointed out that the assessment was written on 27^th December 2020 in circumstances where the following day was to be his last working day at the Abermad Nursing Home.

The Panel expressed the reasons for the decision on charge 4(b) shortly. However, those reasons identified the crucial dispute namely whether the Appellant should have done more to alert his line manager and others to the fact that he had written the assessment. There were two elements in the finding on charge 4(b). The first was that the Appellant had a duty to inform his line manager and others that he had written the assessment. The second was the conclusion that the steps the Appellant had taken had not been sufficient to convey that information. Those questions turned on an assessment of what was required as a matter of proper practice and of the steps which should have been taken in the particular circumstances as a matter of proper practice. The question of what proper practice required in those circumstances is a matter on which a significant degree of deference is to be accorded to the Panel’s assessment albeit only one member of the Panel was a registered nurse.

The Panel’s decision on charge 4(b) was made against the background of its finding on charge 4(a). It was inevitably and properly influenced by the finding that the Appellant had exceeded his remit and had acted without authority in writing the assessment. That finding was relevant as to whether and how the Appellant should have informed others that he had written the assessment.

The members of Panel, having found that the Appellant had exceeded his authority, were entitled to conclude that he had an obligation to inform his line manager that he had done so. The Appellant having done something which was outside his remit had a duty to ensure that others knew what he had done.

As to the question of whether the steps taken by the Appellant were sufficient to inform his line manager and others the Panel expressly noted the Appellant’s point that the copy of the assessment in Patient B’s electronic records could be accessed by those involved in his care. The Panel recorded that it had taken account of Miss McKay’s oral evidence. The Panel’s conclusion that placing the assessment in the records was not the same as informing the line manager and others was stated shortly but when read in context it was making clear that the Panel had found that doing that was not sufficient to discharge the Appellant’s obligation to inform his line manager of what he had done. As the Panel explained there is a difference between placing a copy of the assessment on the patient’s electronic records and expressly drawing the attention of others to the fact that the Appellant had written the assessment.

It follows that neither the Panel’s finding that the Appellant had a duty to inform his line manager that he had written the assessment nor its finding that the steps he took were insufficient to discharge that duty can be faulted. Accordingly, the appeal against the finding on charge 4(b) fails.

The Respondent accepts that it was not properly open to the Panel to conclude that the Appellant had carried out a vaginal examination when he was not competent to do so. The appeal in respect of this charge, therefore, succeeds.

The allegation here was that the Appellant had performed nursing procedures and/or cared for Patient C when he was under the influence of alcohol.

The Panel explained that it had not taken account of the evidence of Dilwyn Thomas because of inconsistencies between Mr Thomas’s statement for the disciplinary proceedings and the account which he had given during his police interview.

The Panel similarly placed no weight on the discharge letter of 17^th April 2021.

The Panel referred to the evidence from members of Patient C’s family, namely Mair Morel and Osian Gruffudd. It noted that this evidence had referred to a time when the Appellant had been heavily intoxicated at a family barbecue but then also noted that the family members had conceded that they had not observed the Appellant providing care to Patient C while under the influence of alcohol. It did, however, take account of the evidence of those witnesses as I will explain below.

The Panel did take account of the evidence of Fiona Jackson, a district nurse who had attended Patient C; of Patient C’s nursing record; and of Patient C’s account to the police. The Panel summarized the effect of that evidence thus:

Having referred to the Appellant’s witness statement the Panel then said:

“During the police interview on 14 July 2021 Patient C gave a consistent account of you drinking whilst you were on duty. During this interview, Patient C made several references to you being “drunk” when you were providing care to her. The panel noted that evidence from Patient C is hearsay evidence, but it was not the sole and decisive evidence in respect of this charge. Patient C’s evidence was corroborated by her reporting her concerns about your drinking to the district nurse and to the hospital staff when she was admitted into hospital on more than one occasion. The panel also took into account the evidence of Miss Morel and Mr Gruffudd who had observed you being under the influence of alcohol whilst at Patient C’s home. Taking all of the evidence together, the panel found that it was more likely than not that between 2018-2021, you undertook nursing procedures and/or cared for Patient C whilst under the influence of alcohol. The panel therefore found this charge proved on the balance of probabilities.”

The evidence of what Patient C said was hearsay. In relation to the hospital notes it was multiple hearsay because the Panel did not itself hear from those who had made the notes and who had recorded Patient C’s account. The Panel did hear the evidence of Fiona Jackson. It also heard the evidence of DS Barry who was one of the police officers who had interviewed Patient C on 14^th July 2021. DS Barry’s evidence was principally directed at explaining why the police force had concluded it was not appropriate to bring criminal charges against the Appellant but he did set out his assessment that Patient C had capacity. The Panel did not hear from PC Thomas who had spoken to Patient C on 9^th July 2021 but it did have a transcript of their exchanges taken from the footage recorded by his body-worn camera.

It was necessary that the Panel should take care in assessing the hearsay evidence. It had to assess the evidence itself in order to consider what Patient C was in fact saying. It had to consider the circumstances in which the statements were made and it had to consider whether the things said by Patient C were potentially credible and whether there was corroboration from other evidence. There were failings in the Panel’s approach in respect of each of those elements.

There were particular difficulties in Patient C’s account to the police. In that account Patient C had said that the Appellant had injured her by using a scalpel or probe to cut into her abdomen or into a cyst or mass there. That allegation was the basis of charge 5(d)(i). The Panel found that charge was not proved. It did so because the medical evidence was that Patient C had not been cut and that the wound which was said to have been a cut was the progression of scar tissue from previous surgery. In finding that this charge was not proved the Panel also took account of inconsistencies in Patient C’s account of matters.

The difficulty flowing from that finding in relation to charge 7 is that Patient C’s assertion that the Appellant had been drunk when he was undertaking procedures on her or caring for her was primarily made in the context of the alleged incision. It is clear that Patient C’s principal grievance against the Appellant was that he had injured her in that way and had been drunk when he did so. Thus, in the transcript of what was said to PC Thomas at 20 minutes into the exchanges it was in the context of the “surgery” that Patient C talked of the Appellant’s drinking. In the police interview there were references to the Appellant’s drinking while caring for Patient C at pages 3 – 6, 9, and 26 – 27 of the transcript. However, all of those references were to the Appellant having been drunk while performing the alleged surgery and cutting into Patient C. There were references to the Appellant drinking heavily at pages 11 and 12 but in those passages Patient C did not say that this had occurred when the Appellant was caring for her but rather that it was happening when he was living at her house. There was a reference to the Appellant repeating bladder flushes because he was drunk at page 14. That, however, was the only clear reference to the Appellant being drunk while caring for Patient C other than in the context of the alleged incision. There was a concluding comment at page 33 where Patient C said that the Appellant’s drinking got in the way of his genuine efforts to help her but that was in very general terms and was immediately followed by Patient C saying “and things went really horribly wrong at the end” which was a reference to the alleged surgery.

The Panel took no account of the fact that Patient C’s references to the Appellant being drunk while caring for her were, with only one exception, combined with the allegation that he had made an incision. Patient C was saying that the Appellant had been drunk while doing that. The Panel had dismissed the charge that the Appellant had made an incision, doing so in large part because of the medical evidence indicating that there had been no incision. However, it did not reflect, as it should have done, on the consequences which that finding had for the reliability of Patient C’s assertion that the Appellant had been drunk when he was caring for her. It appears to have given weight to Patient C’s contention that the Appellant was drunk when undertaking a procedure on her without taking account of its rejection of her account of the procedure which he is said to have undertaken.

The Panel also failed to consider whether the account which Patient C had given in her police interview was inherently credible. For the Appellant Mrs Collins emphasized the fact that the Appellant had been working at other medical locations at the relevant time and submitted that the Panel should have considered whether it was credible that he would have been able to do this if he had been drinking as heavily and as regularly as suggested by Patient C and by Miss Morel and Mr Gruffudd. There is force in that point but there is a further point. At page 12 of the transcript DS Barry asked Patient C what the Appellant had been drinking. Patient C said that he had been drinking “two litres of pink gin” and had said that the Appellant would get through that volume of alcohol in “two hours”. The Panel did not consider whether that was a credible account and whether the making of an assertion in those terms cast doubt on the reliability of the balance of Patient C’s account.

There are also difficulties with the material which the Panel regarded as corroborating Patient C’s account. The evidence that the Appellant drank heavily while he was living at Patient C’s house was not corroboration of the allegation that he was drunk when he was caring for her or undertaking nursing procedures on her. The fact that the Appellant drank heavily when he was “off duty” (in the sense of not caring for Patient C) cannot be taken as corroboration of an allegation of drinking while “on duty” (ie while providing that care). The Panel said that there was evidence that when he was “not officially on duty [the Appellant] would carry out nursing procedures whilst under the influence of alcohol” but it does not explain what this evidence was. At one point the Panel’s decision appears to note this distinction between the Appellant’s behaviour socially while not caring for Patient C and his state when caring for her. Thus, the Panel said that although Patient C’s family members had said that the Appellant had been drunk at a family barbecue it was conceded that those family members had not seen the Appellant providing care while drunk. However, later in the decision the Panel does make reference to the evidence of the family members as corroboration of Patient C’s evidence.

The family members were Miss Morel and Mr Gruffudd and when addressing corroboration the Panel said it had taken account of their evidence that they had seen the Appellant “under the influence of alcohol whilst at Patient C’s home”. However, the only evidence about this which Miss Morel had given had been in relation to the barbecue and to noticing that the recycling was full of alcohol bottles. In his witness statement Mr Gruffudd had referred to the Appellant drinking generally and had said that when the Appellant returned from Sheffield to Wales “he did not seem in a good way socially. At the very least, on his non-working days, I would guess he was self-medicating from whatever he was going through with a lot of alcohol”. In his oral evidence Mr Gruffudd referred to the Appellant’s general drinking and to the barbecue. Mr Gruffudd had also written what is described as being a “local statement” in July 2021 and he had sent this to the police. In that statement Mr Gruffudd referred to an occasion when he and Miss Morel had stayed in a campervan at Patient C’s home for 2 nights. In his oral evidence Mr Gruffudd said that at one point in that visit he observed the Appellant drunk at a time when he was to change a dressing on Patient C. This was disputed on behalf of the Appellant. Mr Gruffudd was firm in his evidence that the Appellant was drunk when he saw him on that occasion but accepted that he had not seen him actually change the dressing. That was the only incident in relation to which Mr Gruffudd gave evidence of the Appellant being drunk while giving care (as opposed to being drunk socially when not providing care). It is not clear whether the Panel was relying on Mr Gruffudd’s evidence about this incident. The Panel did not address the conflict between the evidence of the Appellant and Mr Gruffudd in that regard let alone make a finding on it. Read naturally this part of the Panel’s decision is saying that it regarded Miss Morel and Mr Gruffudd’s evidence of the Appellant’s general drinking as the corroboration.

The Panel also treated as corroboration Patient C’s action in “reporting her concerns about [the Appellant’s] drinking to the district nurse”. The Panel had a witness statement from Fiona Jackson and a copy of her notes was exhibited to that. Miss Jackson also gave oral evidence. Miss Jackson’s note recorded an occasion in August 2019 when Patient C had said that she was concerned about the Appellant because he had lost his job and his home and “was drinking quite heavily and feeling quite depressed”. Neither in the notes nor in the witness statement did Miss Jackson say that Patient C had told her that the Appellant had been drunk while caring for her. In her oral evidence Miss Jackson confirmed that Patient C had not said that the Appellant had been drunk while performing care tasks. It follows that the material from the district nurse provided corroboration only of the fact that in 2019 Patient C had been concerned about the Appellant drinking heavily as a consequence of his depression but not that Patient C had been expressing concern that he was drunk when caring for her.

The nursing record from Patient C’s time in hospital includes notes of an account which she gave on 12^th July 2021. That does include a reference to the Appellant being under the influence of alcohol when caring for her but, as with the account given to the police, that was in relation to the allegation that he had made an incision and had been drunk when he had done so. The hospital notes do not include any allegation from Patient C that the Appellant had been drunk when caring for her on any other occasion.

If the Panel were to attach weight to Patient C’s account to the police they had to have regard to the inconsistencies in that account (as the Panel had noted in relation to charge 5(d)(i)); to the fact that the allegations that the Appellant had cared for her while he was drunk were all, save one, associated with the allegation of an incision which the Panel had rejected; and the fact that, at least in relation to the volume of alcohol which the Appellant was said to have drunk over a short period, aspects of the account were inherently unlikely. Not only did the Panel fail to take account of those matters but it treated as corroboration of Patient C’s account matters which did not on proper analysis amount to corroboration. The Panel appear to have used the evidence that the Appellant drank heavily on social occasions and when off duty as corroboration of the allegation that he was drunk when providing care.

Charge 7 was a serious allegation. In order to find it proved in the face of the Appellant’s denial and of his oral evidence it was necessary for the Panel to analyse the evidence with care. It failed to do that and treated as corroboration of the allegation matters which, on a proper analysis, were not corroborative.

In those circumstances the finding on charge 7 cannot stand and the appeal in respect of that finding is allowed.

The Panel’s findings on charges 5(c) and 7 were not the sole elements in the findings of misconduct and impairment of the Appellant’s fitness to practise. In that regard the Panel was influenced, as it was entitled to be, by the Appellant’s attitude to policy and procedures as demonstrated by the conduct giving rise to the other charges. Nonetheless, the findings on charges 5(c) and 7 played a significant part in the determination of impairment and also of the appropriate sanction and the sanction cannot stand in light of the upholding of the appeal in respect of those charges.

The position, therefore, is that the appeal fails in respect of charges 2 and 4(b) but succeeds in respect of charges 5(c) and 7 and in respect of the sanction imposed. On the handing down of this judgment I will hear further submissions as to the order to be made as a consequence of those findings.