Sarah Omolara Phillips v Nursing and Midwifery Council

Mr Justice Ritchie: The parties

1. The Appellant was a registered nurse at the time of the incident. The Respondent is the body which regulates the professional conduct of nurses. The Appellant was unrepresented before the Panel and on the appeal. I am going to call the relevant patient “P”. Anonymity request

2. There was an application by the 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 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 This was recognised by the NMC before this judgment was handed down and the application was withdrawn in relation to the witness.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. Human Rights Act 1998 Background

3. On 2.9.2022 during the late shift, which started at 13.30hours and finished at 21.30hours, some events occurred at the Parkland Ward of a Mental Health Hospital in NW London. That morning a relative called the Appellant and informed her that her grandmother had suffered a stroke. She did not want to go into work because the grandmother had brought her up and she was upset. Due to low staffing levels, she did go into work and the relevant incidents then took place. The charges

4. The Appellant was suspended on an interim basis in 2023. The hearing of the charges against her took place between 29 th April and 8 th May 2024. The fitness to practise panel (the Panel) dismissed some charges but found most of the charges proven or admitted. The charges and findings were as follows – 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]

5. Thereafter, the Panel found that the Appellant’s fitness to practice was impaired and the sanction imposed by the Panel was to erase the Appellant from the register. Bundles and earlier hearings

6. For the appeal I was provided with an amended appeal bundle and a supplementary bundle provided by the Respondent. Both parties filed skeleton arguments and the Respondent filed an additional note summarising the new evidence provided at my direction at the earlier adjourned hearings of this appeal. I had adjourned the hearing twice because I wished to ensure that the Appellant had every possible opportunity to get legal representation and I decided to direct the Respondent to provide the cctv footage and the available evidence about whether the senior staff member (FCM) was disciplined. I did so because FCM had stated in her first witness statement that she was told by the Appellant that she had pushed P but she had told the Appellant: “I will complete the incident report but not put the push part because it is wrong and I will complete the police report on your behalf ”. I asked for details of whether FCM was made subject to any disciplinary process at all so I could understand how seriously (if at all) the Trust and the 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

7. I should make it plain at the start that the Appellant did not appeal any of the factual findings. The grounds focussed on appealing the sanction but also ground 3 paragraph 2, challenged the finding of impairment. The grounds of appeal are as follows.

8. Ground 1. The Appellant’s mental state . The Appellant submits that the Panel did not adequately take into account the evidence of her mental state on the day due to the tragic news relating to her grandmother and the assertion that her actions were out of character.

9. Grounds 2 and 3 (para 1). Sanctions guidance (SG). The Appellant submits that the Panel failed properly to apply the SG on suspension. She submits that the listed factors in the SG in favour of suspension which were not given adequate weight included: her unblemished record; her poor state of mind; the fact that this was a one-off incident; the lack of evidence of harmful deep-seated personality or attitudinal problems; the lack of evidence of repetition since. The Appellant relied on the Panel’s own findings that: the Appellant had thought about her conduct; had shown some insight; had admitted some of the charges; had obtained post-event training; had provided testimonials and references; had engaged well with the process; had presented in a good light; had apologised many times and had stated that this will not happen again.

10. Ground 3 (para 2). Impairment. In the second part of this ground, the Appellant asserts that the Panel’s decision on impairment was wrong and the decisions which they made on insight and remediation were irrational. No further detail was given in the grounds, but in the skeleton in support and her 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.

11. Grounds 4 and 5. Public confidence. The Appellant relied on the purpose of sanctions, which is not to punish but instead to safeguard the public and the reputation of the profession, and hence the implied assertion that the Panel’s approach to the risk she posed to the public (patients) was faulted. The Appellant also submitted that the Panel did not take into account the time spent on interim suspension when imposing the sanction.

12. Grounds 6, 7, 8 and 9. Proportionality. The Appellant submitted that erasure was not proportionate to the proven charges in the light of her exemplary record and disregarded the financial impact on her livelihood and her ability as the sole breadwinner to care for her children. The Appellant relied on Art 8 of the European Convention on Human Rights and R (L) 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 to be incompatible with the Police Act 1997 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. Human Rights Act 1998 The Respondent’s submissions

13. The 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.

14. Addressing the adequacy of the Panel’s consideration of suspension, the 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.

15. Addressing whether the sanction was punitive and disproportionate. The 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

16. I was not addressed on the law by the Appellant however she did provide a bundle of relevant authorities. The Respondent did make submissions on the law and provided authorities, for which I am grateful.

17. S.12 of the creates the right to appeal. The Nurses, Midwives and Health Visitors Act 1997 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.

18. The procedure on such statutory appeals is set out in the Civil Procedure Rules, Part 52. “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

19. The guidance on such appeals from appellate Courts was summarised into 9 points by Cranston J in Yassin 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: Siddiqui v. 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: Gosalakkal v. 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-all value 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 Raschid v. General Medical Council [2007] EWCA Civ 46 , [19], per Laws LJ.”

20. Sharp LJ and Dingemans J, in the Divisional Court, in General Medical Council 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 SpA v Arab Insurance Group (Practice Note) [2002] EWCA Civ 1642 ; [2003] 1 WLR 577 , at paragraphs 15 to 17, cited with approval in Datec Electronics Holdings 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

21. I take into account the well-known general guidance on appeals from Lewison LJ in Fage UK Ltd 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

22. The Panel’s professional expertise (Cranston J’s point (ii), Sharpe LJ’s point (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.

23. For appeals concerning the determination of sanctions, guidance was given by Laws LJ in Raschid v GMC [2007] EWCA Civ. 46 ; 1 WLR 1460: “17. The first of these strands may be gleaned from the Privy Council decision in Gupta v 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 Bolton v Law Society [1994] 1 WLR 512 , 517—519 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 Marinovich v 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 Bijl v 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.”

24. A more recent analysis of the correct approach was provided by the Sir Ian Burnett LCJ, Sir Terrence Etherton MR and Rafferty LJ in Bawa-Garba 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.

25. Sufficient reasons. A helpful summary of the necessity to give adequate reasons in the Panel’s decision was provided by Mostyn J in General Medical Council 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. Phipps v 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 SP v 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 Piglowska v 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

26. Assessing fitness to practise is an evaluative judgment. The classic approach to this assessment was laid out by Cox J in Council for Healthcare Regulatory Excellence 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 my view 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.” The value 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.”

27. Broadening out these tests I would suggest that the correct approach to assessing fitness to practise is as follows. Having made findings on the charges laid, when assessing whether the registrant is currently impaired, the FtP panel will need, objectively, to:

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

28. Before setting out the Panel’s reasoning the following key evidence should be laid out. I have viewed the cctv of the incident at 17.55 pm on 2.9.2022. It shows: • The Appellant was inside the medicine dispensary room whilst P was standing in the hall at the medicine dispensary hatch. The hatch itself is cut into the dispensary door. A male staff member (1) standing in the hallway watching. • The Appellant cleared up the water split by P from the hatch’s flat surface. • The Appellant threw the wet wipe she had used out of the hatch and across the hall, past P. • A male staff member (2) entered the medicine dispensary through the door, past P, as the other male staff member (1) left the hall. • The Appellant flipped a small paper cup-cake sized cup over the hatch edge onto the floor beside P and P picked it up. • The Appellant opened the door and was coming out. • P blocked the Appellant’s path by standing in the doorway, whilst the male staff member (1) returned to the hall and walked towards P. • As the male staff member (2) stood inside the medicine room and the other (1) stood beside P in the hall, the Appellant pushed P out of her way using both hands on her abdomen and the Appellant thereby exited the medicine room. P took 5 steps backwards as a result of the push. She did not fall over and did not unbalance. • The Appellant then walked around P, turning right and, as she passed P, who turned her body so she was facing the Appellant, the Appellant pushed P again with her right hand to P’s shoulder, causing her to step back two steps. P did not fall over or lose balance. • P then stepped towards the Appellant and grabbed her hair and pulled off her wig. • Male (1) who was in the hall saw it all. Male (2) probably saw the first push and as he came out of the door, he saw the wig pulling. Neither intervened when the Appellant pushed P twice. They intervened when P grabbed the Appellant’s hair.

29. One and a half hours later, at 7.34 pm on 2.9.2022, the Appellant wrote this incident report: IR (248546) “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.

30. At the appeal hearing the 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 my view 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

31. Findings of fact. The hearing took seven days in total. The Panel set out the background at the start of their reasons. They found that the rude words said by the Appellant to P were said while she was applying deep heat to P in the afternoon. In the evening, relying on the CCTV footage, the Panel described what happened. The Panel then summarised the contents of the IR completed by the Appellant at 19.34 hours. They then summarised the contents of the second incident report filled in by FCM at 00.40 hours the next morning. They summarised the RiO report and the allegation that the Appellant had filled it in and they summarised the allegation that the Appellant was responsible for P being secluded for four days on the basis that she had assaulted the Appellant, which was a mis-reporting. The Panel then set out their decisions on the facts and the charges. I have summarised those above. In particular, they considered the admission by FCM that she would complete an incident report form so the incident could be reported to the police but would take out the “push part”. The Panel therefore concluded that the Appellant knew that FCM was going to submit an inaccurate incident report. However, in relation to charge 4b the Panel did not accept that the Appellant had failed to draw the true facts to the attention of a senior colleague and found specifically that the Appellant did inform FCM and a supervisor about pushing the patient. The Panel also found that FCM had told the Appellant that FCM would not include the push in the incident report that FCM would write. The Panel found that the Appellant had completed the Rio report, failing accurately to record that she had pushed patient P and thrown items at her. They rejected the Appellant’s evidence that she did not write the Rio entry taking into account that the username and log on process is unique to staff and the Appellant was noted as the user who logged on and made the entry. Therefore, dishonesty by the Appellant was found in relation to the incident reports and the Rio entry.

32. Fitness to practise. On fitness to practise the Panel approached the question in two stages, firstly whether the facts found proved amounted to misconduct and secondly whether, in all the circumstances, her fitness to practise was currently impaired as a result. In relation to misconduct, the Panel took into account guidance in Roylance 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.

33. On impairment, the Panel took into account the guidance of Cox J in CHRE 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.

34. Risk, insight and remediation. The Panel went on to consider Cohen 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.

35. Sanction. The Panel rightly ran through the available sanctions from bottom to top. They summarised the submissions and listed the aggravating factors and the mitigating factors thus: “The Panel took into account the following aggravating features: • Incident involving a vulnerable 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 and verbal apologies. • Previous good character.”

36. The Panel then considered the relevant SG. On seriousness they noted the Appellant had deliberately breached the duty of candour, with a 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 the view 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

37. Seriousness. Dealing first with her physical actions. The context was that this was a single incident, on one evening, in an otherwise unblemished career spanning 6 years. It is highly relevant that the actions were done in front of fellow staff. It is also relevant that they were done because the Appellant was upset by the family tragedy she had learned of that morning. Whilst the pushing and petulant throwing of a tissue and a paper cup, in front of two other male staff members, were all professional misconduct and worthy of some sanction, it is clear that the Panel took into account the Appellant’s state of mind and good record when assessing their seriousness. However, they made no mention of the fact that this was done openly in front of two male staff. In my judgment no reasonable Panel in the circumstances and on the evidence could have erased a nurse for those physical one-off actions and this Panel did not hold those up as the reasons for the erasure. Nor was there any bruise, cut or grade found to have been suffered by P. I am left wondering what physical harm the Panel did find. She did not fall over. The Panel could have imposed conditions on the Appellant’s future practise including occupational health counselling for anger management or supervision or suspension, but not erasure. These were not serious enough actions in the factual context.

38. Dealing next with the Appellant’s “cover up” documentation. There is no appeal against the finding that the Appellant was dishonest. She should not have omitted recording, in her RiO entry and the first IR, the throwing of a tissue and a cup and both pushes. The Panel clearly considered that the erasure was triggered by their dishonesty findings in relation to the documentation. Those findings need to be the subject of anxious scrutiny on appeals like this relating to erasure. A breach of the duty of candour, by documentary omissions, was one of the main reasons which the Panel relied on, but this was not a cover up by the Appellant, in the plain and usual sense of the word, for the following reasons: (1) The Appellant did the acts in front of two male staff members who were eye-witnesses (Joseph Osundukwe and Filipe Oliviera). The on-duty supervisor only needed to ask them what happened to know the full picture. The Panel heard evidence from them. The post event investigation took evidence from them. The actions were done in plain sight, not behind a closed door. (2) The Appellant’s actions were all on CCTV and everyone knew that. The supervisor on the night and the supervisor on day after, only needed to look at that to see the events. (3) The Appellant wrote in her first IR, timed at 19.34 pm, that she pushed P to get her out of the doorway and that P’s assault on her came after that. That admission was hardly a cover up, albeit the Panel found it was a downplaying the push by the use of the word “gentle”, only mentioning one push and omitting the tissue throwing. Any supervisor reading that IR would have been put on notice of an assault by the Appellant on P. (4) The Appellant told two management staff after the incident that she had pushed P. Firstly, she told FCM (a team leader) at around 9.00 pm and secondly, she told Abigail Kom, her supervisor, the next day in a phone call. (5) The Appellant did not amend or delete the reference to pushing in her first IR. It was there for all to see in the records. (6) The Appellant was not directly involved in FCM submitting an inaccurate or dishonest account in the second IR at 00.40 hours on 3.9.2022, she had gone home. Nor was the Appellant involved in FCM submitting a dishonest or inaccurate account to the police on 27.9.2022, by that time the investigation had taken place and Danielle Murphy had already reported 7 days earlier, on 20.9.2022. The Appellant’s culpability should have been put in that context.

39. In relation to the harm caused by the Appellant’s dishonesty, either, or both of the supervisors could have released P from seclusion earlier, but neither did. The Panel expressly blamed the Appellant for P’s 4-day seclusion. She had involvement in the original decision, jointly with more senior staff, (see the transcript of Ms Murphy’s evidence) but the Appellant was then off work for all of that period and the responsibility for the continued seclusion lay with management. The Trust had two eye-witnesses, the Appellant’s admission of pushing made to FCM and her admission to Abigail Kom on 3.9.2022. They also had and her original IR (248546). All of that was enough to reconsider P’s seclusion the next day, not 3 days later. In any event the transcript shows that, if the Appellant and FCM had more accurately described events in the second IR and the RiO, Ms Murphy was unable to say whether P would still have been put in seclusion because she assaulted the Appellant. Thus, on the evidence, the harm caused should not wholly have been laid at the Appellant’s door.

40. The third powerful piece of context was the advice given to the Appellant at around 9.00 pm on 2.9.2022 by FCM, her clinical team leader. The evidence showed that the Appellant was in the nurses’ office in an emotionally distraught state at 9.00 pm, 3 hours after the incident. She was “tearful and appeared distraught” according to FCM (so she wrote in her witness statement dated 26.10.2022). The Appellant admitted that she had not done her patients’ notes for the day. So, FCM offered to help. The Appellant had clearly told FCM she had pushed P because FCM wrote that: “I, Flora Codling-Mitchell, offered to help and said "I will complete the incident report but not put the push part in it because it is wrong and I will complete the police report on your behalf." Please see Appendix A with incident report prepared by Flora Codling-Mitchell with reference number 248553 and Appendix B which is the police report reference number (CAD 2524219/22) on behalf of the West London ”. In my judgment, the seriousness of the Appellant’s dishonesty and her culpability fell to be assessed in the context of that advice. It came from a superior at work. It was given when the Appellant was distraught. She followed it and wrote out the RiO, omitting the pushes.

41. Her dishonesty was far removed, for instance, from a dishonest cover up about professional misconduct (let us assume 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.

42. I consider that the Panel fell into error over their assessment of the seriousness of the dishonesty, the Appellant’s culpability for it and the harm caused by it. The seriousness was not put in its context. This directly undermined the Panel’s rationale for refusing suspension because it led to their 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.

43. As a cross check, it is instructive to consider the SG on seriousness. The guidance first points out the difference between a criminal conviction for a serious crime and a finding of dishonesty which is not a conviction. The the SG states: “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.”

44. The guidance is right to advise that not all dishonesty is equally serious. This guidance gives considerable support for the decision I have made above. The Panel was guided expressly to consider the kind of dishonesty. Further, of the five aggravating factors listed, the Panel identified breach of the duty of candour, 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.

45. Looking next at the factors indicating less seriousness, the Panel noted that this was a one-off incident and accepted that the Appellant engaged with the process, made admissions, apologised to P, showed remorse and accepted her role. This was in the context of the wholly wrong advice given to her by FCM, her team leader, whilst the Appellant was distraught, not to put the “pushes” in the RiO report.

46. Risk, insight and remediation. The SG provided this advice on suspension orders. “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.”

47. The assessment of the seriousness of the misconduct is clearly a key factor in the determination of impairment. I have dealt with that above. As for the need for remediation and insight, if the misconduct had been more than one-off and/or had resulted from deep-seated attitudinal problems, the need for proof of insight and remediation would have been raised significantly. In contrast, in this case, the findings which the Panel made were that this was a one-off incident in an otherwise blameless career, in the context of a stressful and tragic family event and that the Appellant had no deep-seated personality or attitudinal problems and had been advised by her clinical team leader to record matters dishonestly. The Appellant provided insight evidence through admissions, apologies, remorse, co-operation with the process and retraining. The Panel did not feed these crucial matters through into their assessment of the future risk to patients and the level of need for remediation.

48. Occupational Health assistance with insight and remediation. In relation to insight and remediation, the Trust, the GMC and the Panel appear to have overlooked a primary method of assisting an employee with both. There was no evidence from the 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.

49. Remediation through work. The Panel stated that the Appellant could not provide evidence of remediation through employment, because she was suspended and could not find work at the Trust or any Trust in London. I am troubled by the Panel’s finding 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”. There was no record in the Panel’s findings or reasons that they heard any evidence that there was an abundance of jobs or any jobs for this suspended nurse between April 2023 and April 2024. On the contrary, there was clear evidence that Trust had refused her requests for work. The Appellant’s evidence before the Panel (and in her letter explaining her efforts to find work) was that she tried hard but was unable to gain any work so could not show remediation through how she had done in work. I was also told that even after her erasure, when she had found work as a care assistant, she had lost that because the DBS check showed that the 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.

50. I do not consider that it is procedurally proper for the Panel to make findings of fact without evidence on the availability of work for this Appellant during her suspension as a foundation for deciding that she had failed to remediate whilst ignoring the Trust’s failure to offer occupational health assistance and refusal to allow her to work at all. I take into account that when representing herself before the Panel the Appellant accepted that she had not proven remediation through work, but that carried little weight without her having any legal advice as to the effect of that admission. Self-represented registrants facing dishonesty charges are at a considerable disadvantage. The Appellant informed me 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.

51. Risk. As to the Panel’s findings on the risk of repetition and hence the risk to the public, they concluded that, because remediation at work could not be evidenced by the Appellant, there was a risk of repetition. They did so despite their own findings on all the other risk ameliorators set out in their reasons (the one-off nature of the incident, the blameless record, the tragic phone call about her grandmother’s stroke, her admission of core charges, the further training she herself arranged, the reflection, her good character, the lack of any deep-seated attitudinal issues, the apologies and the fact that she told her supervisors of the push and recorded it in her first IR). In my judgment, in their assessment of risk, the Panel overlooked the context of the dishonesty which I have described above and so misread the seriousness of the conduct. For there to be a serious risk to the public in future relating to dishonesty, the Panel would have needed to have assessed: (1) the Appellant’s emotional triggers and whether her employers had helped her with counselling for those after the event; (2) the effect of FCM telling her, when she was distraught after the incident, “I will complete the incident report but not put the push part I because it is wrong and I will complete the police report on your behalf”. Then the Panel could have assessed how likely it was that another team leader would give her such appallingly bad guidance in future. I conclude that the Panel’s reasoning does not evidence that they did make those assessments.

52. In my judgment the Panel fell into error on their assessment of the level of the Appellant’s insight, the level of the need for remediation and hence the level of risk to the public in future. This started with an incorrect assessment of the seriousness of the dishonesty. It was then compounded by the lack of thought about occupational health assistance. It was further compounded by their finding on the availability of remedial work which was unsupported by evidence. These led to an erroneously high assessment of the Appellant’s risk to patients and hence of what they saw as the crucial need for proof of at work remediation, whilst ignoring the lack of any occupational health support after the event, at the Trust.

53. Sanction choice. I have set out the text of the SG on suspension above. The Panel considered the SG and the aggravating and mitigating factors but the Panel found the misconduct so “exceptionally serious” that they decided it was “fundamentally incompatible with” registration so suspension was not appropriate. No further reasoning was provided for rejecting suspension. I have explained above that I consider that their approach to the decision on the seriousness of the dishonesty was wrong. I have also explained above that their approach to the assessment of insight, remediation and future risk was wrong. It overlooked the wrongful advice from her team leader, the lack of occupational health assistance which could and in my judgment should have been offered to the Appellant and overplayed the lack of remediation through work after suspension. Thus, the Panel’s finding that the Appellant’s behaviour was fundamentally incompatible with being a nurse, cannot stand. Conclusions on the grounds

54. Ground 1. The Appellant’s mental state . I consider that this ground was not made out as to the first part. The Panel did acknowledge and accept the Appellant’s evidence on her mental state. However, it was made out as to the second part in relation to the Panel’s assessment of the seriousness of her dishonesty. The Panel placed no or no sufficient weight on the Appellant’s distraught mental state when she was advised by her team leader, FCM. that: “I will complete the incident report but not put the push part I because it is wrong and I will complete the police report on your behalf”. The context would have been quite different had she not have received tragic news that 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.

55. Grounds 2 and 3 (para 1). Sanctions guidance (SG). The appeal is allowed on this ground. I consider that the Panel placed insufficient weight on their own findings: (1) of her unblemished prior record; (2) the Appellant’s disturbed mental state on the day; (3) the fact this this was an isolated case; (4) that there was no deep-seated pattern of such behaviour; (5) her post event apologies to P; (6) that she told FCM and her supervisor (Abigail Kom K) that she pushed P; (7) that her team leader told the Appellant she would fill in an IR and omit the push; (8) her reflective statement and her further training course taken to enhance her understanding of risk to patients (safeguarding training and PMVA); (9) that she fully co-operated with the proceedings; (10) her admissions to some of the main charges; (11) her testimonials. I consider that the Panel fell into error in their assessment of the seriousness of the dishonesty and this undermined their approach to choice of sanction. Further, I consider that the Panel fell into error over their assessment of the future risk to the public, the Appellant’s insight and the level of need for remediation, the lack of occupational health support post event and their unevidenced finding of fact on the availability of relevant work during suspension.

56. Ground 3 (para 2). Impairment. In the second part of this ground the Appellant asserts that the Panel’s decision on impairment was wrong and the findings which they made on insight and remediation were irrational. I consider that this ground was made out because of the defects in the Panel’s approach to the assessment of the seriousness of the misconduct and of the Appellant’s inability to prove remediation through work. I do not consider that the impairment decision in relation to the risk to the public or in relation to public perception was wrong per se. Both risks still justified a decision that the Appellant’s fitness to practise was impaired. However, in my judgment the seriousness or level of impairment was lower than the Panel’s assessment. Therefore, I will quash the Panel’s decision and will substitute my impairment decision which is at a less serious level.

57. Grounds 4 and 5. Public confidence, interim suspension. The Appellant relied on the fact that the purpose of sanctions is not to punish but instead to safeguard the public and the reputation of the profession. For the reasons set out above, I consider that the Panel’s assessment of the safeguarding risks and public perception risks were wrong in relation to the seriousness of the dishonesty and the appropriate level of insight and need for remediation. The Appellant also submitted that the Panel did not take into account the time spent on interim suspension when imposing the sanction. I consider that this part of the ground was not made out because: (1) interim suspension has a different purpose to final sanction, and (2) the Panel did consider this in their reasoning.

58. Grounds 6, 7, 8 and 9. Proportionality. This nurse of Nigerian heritage was erased by the Panel, mainly on the grounds of her dishonesty, because she attempted to downplay and then cover up her assault on P, in some but not all of her and her team leader’s post events computer reports. This was so despite the finding that she did tell her supervisor (Abigail Kom) and her team leader (FCM) about her assault by pushing P. The dishonesty was in the context of her team leader advising her: “I will complete the incident report but not put the push part I because it is wrong and I will complete the police report on your behalf”. In stark contrast, FCM who, as I understand the facts is not of Nigerian heritage and who produced an incident report to the Trust which she admitted was inaccurate and who also provided the same intentionally inaccurate report to the police, was not dismissed, not sanctioned and not punished at all. The Trust investigator considered that FCM wrote those reports “in good faith”. The Trust decided that there was no case for her to answer. I do not understand how good faith cures her dishonesty and I do not consider that this inequality and disproportionality of approach was justified or logical. Either the reports were accurate and honest or they were not. The seriousness cannot just apply to the junior and not the senior. The Panel were not informed of this disparity. When deciding on proportionality and what the public might think of the misconduct, the reputation of the profession and the appropriate sanctions, the Panel would no doubt have found this disproportionate approach to the propagators of the dishonesty of some relevance. Furthermore, for the reasons set out above, I consider that the Panel failed to put the dishonesty in its proper context and so mis-assessed the seriousness of it. That, and the mis-assessment of the level of need for remediation and insight, led to what, in my judgment, was the disproportionate sanction of erasure, when the only proper sanction should have been suspension. I find this ground was made out. Conclusions

59. There was no challenge to the Panel’s factual findings or the charges found proven. There was no challenge to the decision that the Appellant had committed misconduct. There was a challenge to the finding of impairment. Whilst I consider that the Panel were entitled to make a finding of impairment, their assessment of the level of impairment was more serious than was warranted by the context and evidence.

60. In my judgment, the Panel were wrong to decide: (1) that erasure was the correct sanction for the Appellant’s misconduct, and (2) that suspension was not the correct sanction. I take into account the Panel’s errors in relation to: the seriousness of the dishonest misconduct within its proper context; their error in relation to work remediation; their over-estimated risk of repetition; the lack of evidentially 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.

61. Replacement sanction. 3 years have passed since the incident. I do not see the need to refer this case back to the FTP committee. I consider it more appropriate to decide on the sanction now. The Appellant has been suspended for 2 years, at first on an interim suspension pending the substantive hearing, and more recently on an immediate suspension, pending appeal. Whilst I take those into account as part of the circumstances, they do not alter one of the twin purposes of the sanction which is to protect the public. They may alter or have a substantial effect on the public perception criteria. I take into account the guidance in Ghosh 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.

62. I consider that a period of suspension of 4 months is appropriate. As for further remediation and insight, I consider that during the suspension period the Appellant should be offered by the Trust or should arrange herself a course of appropriate counselling with a clinical psychologist. I consider that a review of her progress should take place before the end of her suspension period. END