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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Phillips v Nursing and Midwifery Council [2025] EWHC 2993 (Admin) (13 November 2025) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2025/2993.html Cite as: [2025] EWHC 2993 (Admin) |
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KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
||
B e f o r e :
____________________
| SARAH OMOLARA PHILLIPS |
Claimant |
|
| - and - |
||
| NURSING AND MIDWIFERY COUNCIL |
Defendant |
____________________
James Edenborough, in house counsel for the Respondent.
Hearing dates: 28.10.2025
____________________
VERSION
OF APPROVED JUDGMENT
Crown Copyright ©
Mr Justice Ritchie:
The parties
Anonymity request
NMC,
after I sent out the judgment in draft for correction of typing errors, to anonymise one witness' name at the Fitness to Practice (FtP) hearing and one non witness. I have considered the law on open justice and anonymity. CPR r. 39.2 requires all hearings to be in public. This appeal hearing was held in public with no application for anonymity. R.39.2(4) empowers the Court to anonymise a party's or witness' name if two matters are satisfied: (1) it is necessary in the interests of the administration of justice and (2) the interests of any person. The principles were summarised by Morgan J in
V
v
T [2014] EWHC 3432, and the Court of Appeal gave guidance in XXX
v
LB of Camden [2020] EWHC Civ. 1468 (see the notes in the White Book at ps 1231 & 1235). Also, I note the decision of Kerr J in Linda Lu
v
SRA [2022] EWHC 1729 (Admin), at paras 138-141. I do not consider that it is in the interests of justice nor do I consider that it necessary under the European Convention on Human Rights or the Human Rights Act 1998 or otherwise to anonymise any party's or witness' name. The hurly burly and embarrassment of litigation, including statutory appeals, is not an excuse for anonymity for parties and witnesses. The public have a right to walk into Court to see what is going on and the Press have a right to report what is going on. This was recognised by the
NMC
before this judgment was handed down and the application was withdrawn in relation to the witness. The request was maintained for the name of a non-witness who was involved in the events, but by the same reasoning I do not consider that anonymity is necessary in the interests of justice or necessary for the protection of any person named in this judgment.
Background
The charges
That the Appellant whilst working as a registered mental health nurse in relation to Patient P:
1. On or around 2 September 2022:
a) Said to her "you are triple my size" or words to that effect; [NOT PROVED]
b) Called her "fat" or words to that effect; [PROVED]
c) Called her a "bitch" or words to that effect; [ADMISSION]
d) Called her a "side coat" or words to that effect; [NOT PROVED]
e) Threw a wet tissue at her; [PROVED]
f) Threw a medication pot at her; [PROVED]
g) Pushed her on one or more occasions [ADMISSION]
2. On 2 September 2022 at approximately 19:34 completed an incident report ('IR1') where you:
a) Recorded incorrectly that you "gently pushed" P; [ADMISSION]
b) Did not record that you pushed P a second time; [PROVED]
c) Did not record that you threw one or more items at P; [PROVED]
Your actions as specified in any or all of charges 2a) 2c) were dishonest in that you attempted to downplay the seriousness of the incident. [PROVED]
4. On or around 2 September 2022, knowing that Colleague A (who was Flora Codling-Mitchell, and whom I shall refer to as FCM hereinafter) was going to submit an IR1 which was not going to mention that you pushed P, you:
a) Let the IR1 be submitted; [PROVED]
b) Failed to draw the true facts to the attention of a senior colleague. [NOT PROVED]
5. Your actions as specified at charge 4 were dishonest in that:
a) You knew that what was going to be recorded on the IR1 was not a true account of what had happened; [PROVED]
b) You were aware that anyone reading the IR1 would be misled as to the events which had occurred. [ADMISSION]
6. On 2 September 2022 at approximately 21:32, completed a RiO report on the electronic patient records system and you failed to accurately record what happened in that you:
a) Did not record that you had pushed P; [PROVED]
b) Did not record that you had thrown one or more items at P. [PROVED]
7. Your actions as specified in any or all of charges 6a) 6b) were dishonest in that you attempted to downplay the seriousness of the incident. [PROVED]
8. By failing to accurately record what had happened, your actions as specified in any or all of charges 2 7 contributed to the inappropriate seclusion of P for a period of 4 days. [PROVED]
Bundles and earlier hearings
NMC
viewed
a senior staff members' offer to complete a dishonest form on behalf of an emotionally upset, more junior staff member. That information was provided and I am most grateful to the
NMC
for that further information. I was also provided with extracts of a sketchy transcript written by Microsoft Teams which is of some, but limited assistance.
The grounds of appeal
verbal
submissions, the Appellant relied upon: (1) her unblemished prior record; (2) the fact this this was an isolated case; (3) the finding that there was no pattern of such behaviour; (4) her inability to find post suspension employment; (5) her post-event apologies to P; (6) her reflective statement and her further training courses taken to enhance her understanding of risk to patients (safeguarding training and PMVA); (7) the Panel's finding that she fully co-operated with the proceedings; (8) her admissions to some of the main charges; (9) her testimonials. This challenge appeared to be focused on the decision of the Panel that the Appellant was impaired on public protection grounds, not on the decision that she was impaired on public perception grounds.
v
Commissioner of Police [2009] UKSC 3. That case was not in the authorities bundle but I have read it. The Supreme Court did not declare S.115(7) of the Police Act 1997 to be incompatible with the Human Rights Act 1998 or quash the Chief Constable's decision to put on the Enhance Criminal Records Certificate (ECRC) the Social Service's concerns about L's child, who was living with his father and exposed to drug taking by his elder sister. L had refused to acknowledge the risks and blamed Social Services. The child's name was put on the child protection register as neglected and that was put in L's enhanced ECRC, so she lost her job caring for children when her employer received the certificate.
The Respondent's submissions
NMC
submitted that the Appellant is unable to show that the Panel were wrong or that the decisions challenged fell outside the bounds of what a panel could reasonably decide. Overall, they submitted that the Panel were entitled to take into account the seriousness of the index event. In relation to the grounds the
NMC
made the following submissions: addressing the adequacy of the weight given to personal mitigation the
NMC
submitted that the Panel went through the guidance in relation to aggravating and mitigating features set out at SAN-1. The Panel acknowledged the Appellant's financial circumstances. The Panel addressed each available disposal in turn, setting out why each sanction, other than a striking-off order, was inadequate. Further, personal circumstances were taken into account, not only at the time of the incident, but also in relation to the effect of sanction. The
NMC
submit that the personal mitigation advanced was substantially outweighed by the nature and seriousness of the misconduct and the other factors which the Panel make clear lead them to make a striking-off order.
NMC
submitted that the Panel considered the guidance in relation to aggravating and mitigating features, considered the sanctions for serious cases, and the available sanction orders, in SAN-1-3e. The Panel considered the seriousness of the dishonesty, the effect of the interim order of suspension on the Appellant's ability to show remediation, and the available sanctions in turn. The Panel simply took a different
view
to that of the Appellant. The
NMC
submitted that the Appellant's submissions, in arguing that the Panel were bound not look beyond suspension, were misconceived. The Appellant was giving wholly inadequate weight to the seriousness of the matters found proved. Having rejected a suspension order, the Panel did not fall into the trap of arriving at a striking-off order by process of elimination, but rather gave detailed reasons for this conclusion.
NMC
submitted that the Appellant's submissions were misconceived. The punitive effect of a sanction does not render a given sanction inappropriate. While punitive effect must be taken into account, it ultimately sits alongside the intended effect of the sanction. The punitive effect of sanctions was acknowledged and considered by the Panel in their written reasons. The Panel's decision also clearly had an inherent theme of proportionality, balancing different factors at each stage. The Appellant's submissions did not identify any flaw in the Panel's reasoning, rather they amounted to an assertion that the misconduct was not as serious as it is. Addressing whether the Panel's decision on sanction was in breach of Article 8 the
NMC
submitted that this is not a distinct ground, but an asserted consequence of the other grounds which were advanced by the Appellant. It falls away if the other grounds are dismissed. There was no error in the Panel's approach, nor was the sanction imposed one which fell outside the bounds of what the Panel could properly and reasonably decide.
Law and procedure
Visitors
Act 1997 creates the right to appeal. The Nursing and Midwifery Order 2001 governs the
NMC
council and its powers. Art. 3(4) provides that the over-arching objective of the
NMC
is the protection of the public. Art. 3(4A) provides that this involves the following objectives: promotion and protection and maintenance of health safety and wellbeing of the public and of public confidence in the professions and the promotion and maintenance of proper standards and conduct amongst members. Arts. 29(9) and 38 enfranchise a registrant to appeal against an order made by the Panel. Under Art. 38(3), on such an appeal, this Court may dismiss the appeal, allow the appeal and quash the decision, substitute any other decision which the Panel could have made or remit the case to the FtP committee to be disposed of in accordance with the Court's directions. The Proceedings of the Panel were governed by the Nursing and Midwifery Council (Fitness to Practise) Rules 2004.
"Hearing of appeals
52.21 (1) Every appeal will be limited to a review of the decision of the lower court unless
(a) a practice direction makes different provision for a particular category of appeal; or
(b) the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing.
(2) Unless it orders otherwise, the appeal court will not receive
(a) oral evidence; or
(b) evidence which was not before the lower court.
(3) The appeal court will allow an appeal where the decision of the lower court was
(a) wrong; or
(b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court.
(4) The appeal court may draw any inference of fact which it considers justified on the evidence.
(5) At the hearing of the appeal, a party may not rely on a matter not contained in that party's appeal notice unless the court gives permission."
CPR PD52D, at para 19.1(2), states that this appeal is by way of rehearing. During such a rehearing, the appeal court focusses on the grounds of appeal, usually re-analyses the relevant parts of the transcript of the live evidence and reads the relevant witness statements and the documents put before the Panel below, reads the Panel's reasoning and listens to the submissions, then determines whether the grounds of appeal are made out. Evidentially and procedurally, it is not a rehearing, it is a re-analysis of the evidence and then an analysis of the decisions, generally without live evidence. The Court's powers to overturn a Panel's decision under CPR Part 52, r.52.21 are the same whether the procedure is a rehearing or a review. A decision may be overturned if it was: a) wrong, or (b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court.
Statutory appeals case law guidance
v
GMC [2015] 2995, at para 32.
"The authorities establish the following propositions:
i) The Panel's decision is correct unless and until the contrary is shown: Siddiquiv.
General Medical Council [2015] EWHC 1996 (Admin), per Hickinbottom J, citing Laws LJ in Subesh
v.
Secretary of State for the Home Department [2004] EWCA Civ 56 at [44];
ii) The court must have in mind and must give such weight as appropriate in that the Panel is a specialist tribunal whose understanding of what the medical profession expects of its members in matters of medical practice deserves respect: Gosalakkalv.
General Medical Council [2015] EWHC 2445 (Admin);
iii) The Panel has the benefit of hearing and seeing the witnesses on both sides, which the Court of Appeal does not;
iv) The questions of primary and secondary facts and the over-allvalue
judgment made by the Panel, especially the last, are akin to jury questions to which there may reasonably be different answers: Meadows
v.
General Medical Council [197], per Auld LJ;
v)
The test for deciding whether a finding of fact is against the evidence is whether that finding exceeds the generous ambit within which reasonable disagreement about the conclusions to be drawn from the evidence is possible: Assucurazioni Generali SpA
v.
Arab Insurance Group [2003] 1 WLR 577, [197], per Ward LJ;
vi)
Findings of primary fact, particularly founded upon an assessment of the credibility of witnesses, will be
virtually
unassailable: Southall
v.
General Medical Council [2010] EWCA Civ 407, [47] per Leveson LJ with whom Waller and Dyson LJJ agreed;
vii)
If the court is asked to draw an inference, or question any secondary finding of fact, it will give significant deference to the decision of the Panel, and will only find it to be wrong if there are objective grounds for that conclusion: Siddiqui, paragraph [30](iii).
viii)
Reasons in straightforward cases will generally be sufficient in setting out the facts to be proved and finding them proved or not; with exceptional cases, while a lengthy judgment is not required, the reasons will need to contain a few sentences dealing with the salient issues: Southall
v.
General Medical Council [2010] EWCA Civ 407, [55]-[56].
ix) A principal purpose of the Panel's jurisdiction in relation to sanctions is the preservation and maintenance of public confidence in the medical profession so particular force is given to the need to accord special respect to its judgment: Fatnani and Raschidv.
General Medical Council [2007] EWCA Civ 46, [19], per Laws LJ."
v
Jagjivan [2017] 1 WLR 4438, summarised the approach in 8 points, at para. 40:
"40. In summary:
i) Proceedings under section 40A of the 1983 Act are appeals and are governed by CPR Part 52. A court will allow an appeal under CPR Part 52.21(3) if it is 'wrong' or 'unjust because of a serious procedural or other irregularity in the proceedings in the lower court'.
ii) It is not appropriate to add any qualification to the test in CPR Part 52 that decisions are 'clearly wrong': see Fatnani at paragraph 21 and Meadow at paragraphs 125 to 128.
iii) The court will correct material errors of fact and of law: see Fatnani at paragraph 20. Any appeal court must however 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 SpAv
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 Ltd
v
United Parcels Service Ltd [2007] UKHL 23, [2007] 1 WLR 1325 at paragraph 46, and Southall at paragraph 47).
iv) When the question is what inferences are to be drawn from specific facts, an appellate court is under less of a disadvantage. The court may draw any inferences of fact which it considers are justified on the evidence: see CPR Part 52.11(4).
v)
In regulatory proceedings the appellate court will not have the professional expertise of the Tribunal of fact. As a consequence, the appellate court will approach Tribunal determinations about whether conduct is serious misconduct or impairs a person's fitness to practise, and what is necessary to maintain public confidence and proper standards in the profession and sanctions, with diffidence: see Fatnani at paragraph 16; and Khan
v
General Pharmaceutical Council [2016] UKSC 64; [2017] 1 WLR 169, at paragraph 36.
vi)
However there may be matters, such as dishonesty or sexual misconduct, where the court "is likely to feel that it can assess what is needed to protect the public or maintain the reputation of the profession more easily for itself and thus attach less weight to the expertise of the Tribunal ": see Council for the Regulation of Healthcare Professionals
v
GMC and Southall [2005] EWHC 579 (Admin); [2005] Lloyd's Rep Med 365 at paragraph 11, and Khan at paragraph 36(c). As Lord Millett observed in Ghosh
v
GMC [2001] UKPC 29; [2001] 1 WLR 1915 and 1923G, the appellate court "will afford an appropriate measure of respect of the judgment in the committee but the [appellate court] will not defer to the committee's judgment more than is warranted by the circumstances".
vii)
Matters of mitigation are likely to be of considerably less significance in regulatory proceedings than to a court imposing retributive justice, because the overarching concern of the professional regulator is the protection of the public.
viii)
A failure to provide adequate reasons may constitute a serious procedural irregularity which renders the Tribunal's decision unjust (see Southall at paragraphs 55 to 56)."
"Wrong" and deference to the Panel who heard the evidence live
v
Chobani UK Ltd [2014] EWCA Civ 5:-
"iv) In making his decisions the trial judge will have regard to the whole of the sea of evidence presented to him, whereas an appellate court will only be island hopping.
v)
The atmosphere of the courtroom cannot, in any event, be recreated by reference to documents (including transcripts of evidence).
vi)
Thus even if it were possible to duplicate the role of the trial judge, it cannot in practice be done."
"Wrong" and deference to professional expertise
v))
and role is taken into account on an appeal. Deference and respect is given to that and to the three purposes which the Panel is required to serve: protection of the public, protection of the reputation of the medical profession (not punishment) and maintenance of high standards. On matters of medical practice and sanction the respect may be profound but the deference is not total. On issues of dishonesty the Panel's medical practice experience is less relevant and less deference is due.
v
GMC [2007] EWCA Civ 46; 1 WLR 1460:
"17. The first of these strands may be gleaned from the Privy Council decision in Guptav
General Medical Council [2002] 1 WLR 1691, para 21, in the judgment of their Lordships delivered by Lord Rodger of Earlsferry:
"It has frequently been observed that, where professional discipline is at stake, the relevant committee is not concerned exclusively, or even primarily, with the punishment of the practitioner concerned. Their Lordships refer, for instance, to the judgment of Sir Thomas Bingham MR in Boltonv
Law Society [1994] 1 WLR 512, 517519 where his Lordship set out the general approach that has to be adapted. In particular he pointed out that, since the professional body is not primarily concerned with matters of punishment, considerations which would normally weigh in mitigation of punishment have less effect on the exercise of this kind of jurisdiction. And he observed that it can never be an objection to an order for suspension that the practitioner may be unable to re-establish his practice when the period has passed. That consequence may be deeply unfortunate for the individual concerned but it does not make the order for suspension wrong if it is otherwise right. Sir Thomas Bingham MR concluded, at p 519: "The reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is a part of the price." Mutatis mutandis the same approach falls to be applied in considering the sanction of erasure imposed by the committee in this case."
18. The Panel then is centrally concerned with the reputation or standing of the profession rather than the punishment of the doctor. This, as it seems to me, engages the second strand to which I have referred. In Marinovichv
General Medical Council [2002] UKPC 36 Lord Hope of Craighead, giving the judgment of the Board, said:
"28. . . . In the Appellant's case the effect of the committee's order is that his erasure is for life. But it has been said many times that the Professional Conduct Committee is the body which is best equipped to determine questions as to the sanction that should be imposed in the public interest for serious professional misconduct. This is because the assessment of the seriousness of the misconduct is essentially a matter for the committee in the light of its experience. It is the body which is best qualified to judge what measures are required to maintain the standards and reputation of the profession.
"29. That is not to say that their Lordships may not intervene if there are good grounds for doing so. But in this case their lordships are satisfied that there are no such grounds. This was a case of such a grave nature that a finding that the Appellant was unfit to practise was inevitable. The committee was entitled to give greater weight to the public interest and to the need to maintain public confidence in the profession than to the consequences to the Appellant of the imposition of the penalty. Their Lordships are quite unable to say that the sanction of erasure which the committee decided to impose in this case, while undoubtedly severe, was wrong or unjustified."
19. There is, I should note, no tension between this approach and the human rights jurisprudence. That is because of what was said by Lord Hoffmann giving the judgment of the Board in Bijlv
General Medical Council [2002] Lloyd's Rep Med 60, paras 2 and 3, which with great respect I need not set out. As it seems to me the fact that a principal purpose of the Panel's jurisdiction in relation to sanctions is the preservation and maintenance of public confidence in the profession rather than the administration of retributive justice, particular force is given to the need to accord special respect to the judgment of the professional decision-making body in the shape of the Panel. That I think is reflected in the last citation I need give. It consists in Lord Millett's observations in Ghosh
v
General Medical Council [2001] 1 WLR 1915, 1923, para 34:
"the Board will afford an appropriate measure of respect to the judgment of the committee whether the practitioner's failings amount to serious professional misconduct and on the measures necessary to maintain professional standards and provide adequate protection to the public. But the Board will not defer to the committee's judgment more than is warranted by the circumstances."
20. These strands in the learning then, as it seems to me, constitute the essential approach to be applied by the High Court on a section 40 appeal. The approach they commend does not emasculate the High Court's role in section 40 appeals: the High Court will correct material errors of fact and of course of law and it will exercise a judgment, though distinctly and firmly a secondary judgment, as to the application of the principles to the facts of the case."
v
GMC [2018] EWCA civ 1879. The relevant Sanctions Guidance is required to be taken into account but it is not a statute (see paras 25-26). Sanctions decisions are multi-factorial judgment decisions mixing facts, guidance and the law, so there is a limited scope for an appellate Court to overturn such decisions (paras 61-62). The appeal Court should only interfere with such decisions if there is an error on principle in carrying out the evaluation or for any other reason the evaluation is wrong in that it fell outside the bounds of what a reasonable Panel could properly decide (para 67). I should add that it is clear that the boundaries of the word "wrong" are not usually defined by the appellate courts. It encompasses, but is wider than, Wednesbury unreasonableness. It covers failure to give sufficient weight to material or relevant matters as well as complete failure to take into account relevant matters (see the judgment of Warby J in R (Dutta)
v
GMC [2020] EWHC 1974 (Admin) at para. 20. It also covers failure to give any or any adequate reasons.
v
Awan [2020] EWHC 1553 (Admin):
"[12] When I turn to examine the reasoning of the Tribunal, I remind myself that I should not expect the same standards of literary expression as those found in perfectly polished judgments from the Supreme Court. Phippsv
General Medical Council [2006] EWCA Civ 397 establishes the proposition that the Tribunal is under no obligation to record in its reasons every point in favour of the doctor in the evidence it has heard and read. To my mind the best exposition of this principle was given by Sir James Munby P in Re F (Children) [2016] EWCA Civ 546 where he stated:
"22. Like any judgment, the judgment of the Deputy Judge has to be read as a whole and having regard to its context and structure. The task facing a judge is not to pass an examination, or to prepare a detailed legal or factual analysis of all the evidence and submissions he has heard. Essentially, the judicial task is twofold: to enable the parties to understand why they have won or lost; and to provide sufficient detail and analysis to enable an appellate court to decide whether or not the judgment is sustainable. The judge need not slavishly restate either the facts, the arguments or the law. To adopt the striking metaphor of Mostyn J in SPv
EB and KP [2014] EWHC 3964 (Fam), [2016] 1 FLR 228 , para 29, there is no need for the judge to "incant mechanically" passages from the authorities, the evidence or the submissions, as if he were "a pilot going through the pre-flight checklist."
"23. The task of this court is to decide the appeal applying the principles set out in the classic speech of Lord Hoffmann in Piglowskav
Piglowski [1999] 1 WLR 1360, I confine myself to one short passage (at 1372):
"The exigencies of daily court room life are such that reasons for judgment will always be capable of having been better expressed. This is particularly true of an unreserved judgment such as the judge gave in this case These reasons should be read on the assumption that, unless he has demonstrated the contrary, the judge knew how he should perform his functions and which matters he should take into account. This is particularly true when the matters in question are so well known as those specified in section 25(2) [of the Matrimonial Causes Act 1973]. An appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that he misdirected himself."
It is not the function of an appellate court to strive by tortuous mental gymnastics to find error in the decision under review when in truth there has been none. The concern of the court ought to be substance not semantics. To adopt Lord Hoffmann's phrase, the court must be wary of becoming embroiled in "narrow textual analysis"."
Fitness to practise
v
NMC
and Grant [2011] EWHC 927 (Admin) at para. 76, as follows:
"I would also add the following observations in this case having heard submissions, principally from Ms McDonald, as to the helpful and comprehensive approach to determining this issue formulated by Dame Janet Smith in her Fifth Report from Shipman, referred to above. At paragraph 25.67 she identified the following as an appropriate test for panels considering impairment of a doctor's fitness to practise, but in myview
the test would be equally applicable to other practitioners governed by different regulatory schemes.
"Do our findings of fact in respect of the doctor's misconduct, deficient professional performance, adverse health, conviction, caution or determination show that his/her fitness to practise is impaired in the sense that s/he:
a. has in the past acted and/or is liable in the future to act so as to put a patient or patients at unwarranted risk of harm; and/or
b. has in the past brought and/or is liable in the future to bring the medical profession into disrepute; and/or
c. has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the medical profession; and/or
d. has in the past acted dishonestly and/or is liable to act dishonestly in the future."
Thevalue
of this test, in my
view,
is threefold: it identifies the
various
types of activity which will arise for consideration in any case where fitness to practise is in issue; it requires an examination of both the past and the future; and it distils and reflects, for ease of application, the principles of interpretation which appear in the authorities. It is, as it seems to me, entirely consistent with the judicial guidance to which I have already referred, but is concisely expressed in a way which is readily accessible and readily applicable by all panels called upon to determine this question."
1. assess the seriousness of the registrant's proven past misconduct, including culpability and harm, in the context of the factual findings and circumstances;
2. assess the registrant's, insight into the misconduct, including any effective admissions, effective apologies and effective efforts to remediate the reasons for the misconduct and all of the mitigating circumstances;
3. determine whether the registrant is a current and hence a future risk to patients and, if so, at what level;
4. determine whether the registrant's misconduct brings the profession into disrepute, including consideration of the fundamental tenants of the profession and the seriousness of the disrepute;
5. announce the decision on impairment, stating whether it is based on (1) the risk to patients (the public) or (2) the risk to the reputation of the profession, or both, and give adequate reasons for the decision.
Key evidence
viewed
the cctv of the incident at 17.55 pm on 2.9.2022. It shows:
"At 17.55hours, "P" was at the clinical room corridor for her medication Staff SP gave "P" her medication and "P" asked if there were cups Staff SP informed "P" that there were no big cups at present and that she should manage the big medication cup given to her. She spilt out the water and started to whined staff SP. Staff SP called her colleague to take over. As staff SP was about to leave the room, "P" blocked the way and staff SP gently pushed her to the side to live (sic) the environment. "P" pulled staff SP's wig, thinking it was her hair. After that she said "who is the fat soul now"." (I have used the term "P" for the patient).
Two hours later, at 9.32 pm or 9.42 pm, the following was written on the patient's notes (RiO System) under the Appellant's login:
"PM SHIFT
At 17.55hours "P" was in front of clinical room getting ready for her medication. Medications was given to her but she became argumentative because of paper cups. She then squeezes the paper cup with water inside and spilt the water. "P" then stood in front of the door in a threatening way saying "I will attack you" and prevented staff from getting out of the medication room. "P" continued being abusive calling staff "fat soul; who is the fat soul now." As staff tried coming out of the room, trying to get away from the situation, "P" continued to be hostile and aggressive in manner and pulled staff's hair and attempted to punch staff S.P.
Team attended, duty doctor and Unit Coordinator were present. was secluded at 19:10hours."
(I have underlined a word and put it in bold).
Three hours later, at 00.40 am on 3.9.2022, FCM wrote a second incident report (IR 249553) which read as follows:
"At 17.55hours "P" was in front of clinical room getting ready for her medication. Medications was given to her but she became argumentative because of paper cups. She then squeezes the paper cup with water inside and spilt the water. "P" then stood in front of the door in a threatening way saying "I will attack you" and prevented staff from getting out of the medication room. "P" continued being abusive calling staff "fat soul; who is the fat soul now." As staff tried coming out of the room, trying to get away from the situation, "P" continued to be hostile and aggressive in manner and pulled staff's hair and attempted to punch RMN S.P."
(I have underlined a word and put it in bold).
I note that the wording of the second IR, by FCM, was exactly the same as the wording of the RiO report, save that one word was changed. I have underlined the changed words and put them in bold.
NMC
kindly provided the Court with the cctv footage, marked "Teams" transcripts of some of the evidence and information about whether FCM was disciplined for dishonesty. In summary FCM was investigated by Sally Darwin in the Trust and on 4.11.2022 her conclusion was:
"It is myview
that FCM acted in good faith at this time based on the information she was provided by SP. It is my
view
that FCM acts or omissions did not contribute to direct harm or unnecessary restriction. Multiple factors contributed to the incident and its impact. FCM could not be expected to be aware of all the information or be held responsible for the situation. Therefore, no case to answer based on the evidence I have reviewed."
The Panel's findings
v
General Medical Council (No. 2) [2000] 1 AC 311, the Code of Professional Standards of Practise and Behaviour for Nurses (2015) and the parties' submissions. They found that all the proven charges were misconduct, emphasising that the pushing would have shocked the public and the failure accurately to record the pushing would have disappointed the public. Importantly, when considering their finding of dishonesty in relation to the IR completed by FCM, they stated:
"The Panel acknowledged that this charge also related to the actions of Colleague A who was senior to you. However, the Panel determined that you, as a registered nurse yourself, did not take sufficient action to prevent Colleague A from submitting the incorrect record knowing that it was incorrect." Colleague A is FCM.
v
NMC
and Grant [2011] EWHC 927 (Admin) at para 74, and the Fitness to Practise Library (2023). They found that:
"P" "was put at risk and was caused physical and emotional harm as a result of your misconduct. Your misconduct has breached the fundamental tenets of the nursing profession and therefore brought its reputation into disrepute. The Panel was satisfied that confidence in the nursing profession would be undermined if its regulator did not find charges relating to dishonesty extremely serious. The Panel found that all four limbs of the Grant test are engaged."
No evidence finding was made of what the physical harm was. No further reasoning was provided on past risk. No further justification was provided on why the Panel found the dishonesty charges "extremely serious". It is not clear whether amelioration was applied due to the actions of the Appellant's team leader, FCM, in advising her to leave out mention of the pushes. Two of the main elements of seriousness are culpability and harm. I shall examine both below.
v
GMC [2008] EWHC 581 (Admin), remediation and future risk. The Panel expressly accepted that the Appellant had engaged well throughout the proceedings, thought about her conduct, reflected and shown some insight, provided training certificates which benefited her insight and engendered further reflection and provided references and testimonials of her good character including from other registrants. The Panel also found the Appellant had informed herself well and presented herself in a good light throughout the hearing. They found no evidence of any deep-seated attitudinal issues and they found the misconduct was an isolated incident. Further, they found the Appellant had apologised on a number of occasions and stated this would not happen again. The Panel also took into account the context of the Appellant's conduct including the difficult news she had received that morning regarding her grandmother and her decision to go into work because the hospital would be short staffed and the fact that the ward was difficult to work on. Despite all of these findings, the Panel was not satisfied the Appellant had demonstrated sufficient insight into her actions or remediation of her conduct. The reason stated for this was because the Appellant had not yet had an opportunity to do so. I infer from the paragraph containing this decision that it was premised on the Appellant's inability to return to work after she was suspended from practise firstly in April then later in October 2023, one year after the incident. Thus, the Panel decided impairment finding was necessary to protect the public until the Appellant demonstrated safe practice and developed insight. The Panel also found that the public interest required a finding of impairment on the basis of the "seriousness" of the misconduct.
"The Panel took into account the following aggravating features:
Incident involving avulnerable
patient, including a physical altercation between yourself and the patient.
Real harm was caused, and there was a further risk of harm.
Serious concerns which are difficult to put right.
Concerns relating to the duty of candour and dishonesty.
Abuse of a position of Trust.
The Panel also took into account the following mitigating features:
Difficult ward with patients who have complex needs.
You were in difficult circumstances in your personal life and had received difficult news before the shift yet still came in regardless.
- One-off incident.
Conduct in the hearing has been exemplary.
Some actions carried out were with the support of a supervisor.
- Early admissions of some of the facts.
Written andverbal
apologies.
- Previous good character."
vulnerable
victim
causing a direct risk to the patient. They considered the guidance on when dishonesty can be regarded as less serious, for instance when it was one-off, spontaneous and there was no direct personal gain. However, the Panel found that it was not spontaneous because the Appellant had allowed "the RiO to be submitted by Colleague A" (that is FCM). Further, they found that the Appellant made a personal gain by avoiding getting into trouble. They considered the Appellant's inability to work but stated that:
"Whilst the Panel acknowledged the challenges you have faced in obtaining employment, it was of theview
that a suspension order in itself does not normally prevent a registrant from obtaining employment as an HCA where you may have been able to demonstrate some remediation."
They considered that the Appellant had accepted that she had not have sufficient evidence to demonstrate remediation (through work) giving rise to a risk of repetition but asked for the chance to work to prove remediation. When the Panel considered suspension they took into account the three listed factors in the SG pointing to suspension: 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; but because the Panel found the misconduct so serious they decided it was "fundamentally incompatible with" registration. No further reasoning was provided for rejecting suspension.
Analysis
violence
to a
vulnerable
patient) done behind closed doors, unseen by anyone else. It is likewise far removed from a subsequent cover up in the assaulted patient's notes, done in cool calmness, without telling any supervisor or manager before writing notes which omit to mention any of the misconduct.
view
that the misconduct was "exceptionally serious" so that it was "fundamentally incompatible with" registration. The Panel's
view
on seriousness also clearly affected their decision on the level of the future risk posed by the Appellant, upon insight and remediation and so polluted their other decisions leading into the choice of sanction.
"Honesty is of central importance to a nurse, midwife or nursing associate's practice. Therefore allegations of dishonesty will always be serious and a nurse, midwife or nursing associate who has acted dishonestly will always be at some risk of being removed from the register. However, in every case, the Fitness to Practise Committee must carefully consider the kind of dishonest conduct that has taken place. Not all dishonesty is equally serious. Generally, the forms of dishonesty which are most likely to call into question whether a nurse, midwife or nursing associate should be allowed to remain on the register will involve:
• deliberately breaching the professional duty of candour by covering up when things have gone wrong, especially if it could cause harm to people receiving care
• misuse of power
•vulnerable
![]()
victims
• personal financial gain from a breach of Trust
• direct risk to people receiving care
• premeditated, systematic or longstanding deception
Dishonest conduct will generally be less serious in cases of:
• one-off incidents
• opportunistic or spontaneous conduct
• no direct personal gain
• incidents outside professional practice
Nurses, midwives and nursing associates who have behaved dishonestly can engage with the Fitness to Practise Committee to show that they feel remorse, that they realise they acted in a dishonest way, and tell the panel that it will not happen again. Where the professional denies dishonesty, it is particularly important that they make every effort to attend the hearing so that the Committee can hear at first hand their response to the allegations."
vulnerable
victim
and gain. Dealing with the first, I have set out above how the context of the breach of the duty of candour was not properly considered. As for the second, there is no doubt that the
victim
was
vulnerable
but the context of that
vulnerability
was ignored by the Panel. This was not a behind closed doors assault. It was done in front of two other staff and on CCTV, so the patient was not particularly
vulnerable.
Thirdly, the Panel did not focus on the words of the SG factor which are "financial gain" and substituted a different type of gain: avoiding adverse consequences. But that factor needs to be put in the context of the Appellant doing the acts in front of staff and on CCTV, telling both her team leader and supervisor and writing her push assault on P on her first IR form. That was not anywhere near an effective method of avoiding adverse consequences. The only adverse consequence which was being avoided was a police investigation and it was FCM who submitted the police report, not the Appellant.
"This order suspends the nurse or midwife's registration for a period of up to one year and may be appropriate in cases where the misconduct isn't fundamentally incompatible with the nurse or midwife continuing to be a registered professional, and our overarching objective may be satisfied by a less severe outcome than permanent removal from the register.
A suspension order is usually reviewed before it expires. The nurse or midwife may not practise as a registered nurse or midwife during the period the order is in force.
Key things to weigh up before imposing this order include:
• whether the seriousness of the case require temporary removal from the
register?
• will a period of suspension be sufficient to protect patients, public confidence in nurses and midwives, or professional standards?
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
• the Committee is satisfied that the nurse or midwife has insight and does not pose a significant risk of repeating behaviour
•
•
When considering seriousness, the Fitness to Practise Committee will look at how far the nurse or midwife fell short of the standards expected of them. It will consider the risks to patients and to the other factors above, and any other particular factors it considers relevant on each case."
NMC
about whether the Appellant was offered occupational health assistance by her employer. The most useful would have been help through counselling from a psychologist with anger management, stress triggers and doing what is right despite a team leader advising her to do what is wrong. The Appellant was, after all, working in a mental health hospital. Employers carry a duty of care to employees who are having issues at work. There was no evidence that this duty was discharged by the Trust and there was no indication that this was considered in the evidence before the Panel.
NMC
had registered her as a fraudster on the national database. Whilst I defer to the Panel's experience of other nurses or HCAs being offered work whilst on suspension, that depends on the date, the time and place when those registrants were seeking work and their individual qualifications and experience and the attitude of their employers.
verbally
at one of the adjourned hearings that her insurance-style cover for professional legal representation did not apply to the dishonesty charges. This of course meant that when facing one the most serious charges, dishonesty, she was left legally naked before the Panel. This situation meant that the
NMC
carried a responsibility to be balanced in the evidence which they gathered and submitted to the Panel and the Panel needed to be
vigilant
to guard against the obvious disadvantage caused to this registrant by the lack of legal assistance.
Conclusions on the grounds
very
morning and had she not been distraught over the incident. Her actions thereafter also need to be seen in the light of the openness of her conduct in front of eye-witnesses, her telling her supervisors (pleural) of the push and of the first IR form in which she admitted her push in writing before FCM came on shift.
Conclusions
valid
reasons for considering that suspension was inappropriate and the lack of any consideration of occupational health remediation. Furthermore, taking into account that personal mitigation is not hugely weighty in the choice of professional regulatory sanctions, because protection of the public and of the reputation of the profession are the objectives, I do not consider that erasure was proportionate to the proven charges when put in their proper context. I take into account Art. 8 of the ECHR and the
very
serious effects of erasure on the Appellant and her children, for whom she is the sole breadwinner. In my judgment, in that context, suspension was the only appropriate sanction. This is, in part because it has been catastrophic for the Appellant to lose her profession and lose her ability to care for her family as the bread winner; in part because the responsibility for her dishonesty was shared by her team leader who advised her to be dishonest and was not herself disciplined at all; and in part because the Panel mis-assessed the seriousness of the conduct and mis-assessed the level and type of remediation required. Thus, I intend to quash the sanction decision.
v
GMC [2000] 1 WLR 1915 @ para 34 and Rashid and Fatani
v
GMC [2007] 1 WLR 1460 @ para. 16. I take careful notice of the Court of Appeal guidance in Aga
v
GDC [2025] EWCA Civ 68, and the ruling of Nicola
Davies
LJ at paras. 49 and 51. I take into account the
NMC SG in general and in particular on suspension. I take into account that the training courses taken by the Appellant focussed on patient safety and risk. I consider that the misconduct was serious but not anywhere near the middle or the top of the scale of professional dishonest misconduct. I take into account that the dishonesty was one off, out of character, not for financial gain and committed when the Appellant was upset and later distraught and the dishonesty was done at the suggestion of and with her superior. I take into account the context, which was that the Appellant carried out a minor assault in front of two other staff members which caused no injury. I take into account that the Appellant disclosed her assault on P to her clinical team leader on the same night and to her superior then next day.
END