Court of Appeal dismisses NMC’s Appeal

An appeal to the Court of Appeal by the Nursing and Midwifery Council against the decision of the High Court to allow the registrant’s appeal against the adverse findings made by a Fitness to Practise Committee (FPC) of the NMC was unanimously dismissed: The Nursing And Midwifery Council v Ibrahim [2025] EWCA Civ 1631   Males, Snowden, Dove LJJ

The judge had quashed a 12-month Conditions of Practice Order and an interim 18-months Conditions of Practice Order along with the decisions underlying those orders, and ordered that the charges against the registrant appellant be dismissed.

Permission to appeal was granted on a limited basis. Permission was not granted to challenge the judge’s decision to quash the factual findings of the Panel on the basis that there was no real prospect of success. It was accepted on behalf of the NMC that the challenge raised in the appeal, and for which permission had been granted, related to the decisions to be taken on disposal once it was accepted that the FPC’s decision was wrong and could not stand.

Giving the judgment of the Court of Appeal, Dove LJ was unable to accept that there was substance in the submissions of counsel for the NMC. The judge concluded that the findings of the FPC were wrong and could not stand. At the stage where the appeal had to be allowed, the question of the appropriate disposal was a matter for the judge’s discretion. It was trite to say that on appeal the grounds for interfering with a judge’s exercise of discretion were necessarily limited. None of the matters raised by counsel for the NMC justified an interference with the judge’s discretion.

It was not necessary or incumbent upon the judge to make alternative findings of fact once he had determined that the FPC’s findings could not stand.

The judge was entitled to consider, in the exercise of his discretion, whether a remittal to the FPC would serve any purpose. The effect of the judge’s decision was that the panel had erred in failing to integrate the various contextual mitigating features of the case within their assessment of the facts and the question of misconduct and impairment.

Notwithstanding those matters had been left out, and therefore taking the case against the registrant almost at its height, a conditions of practice sanction had been imposed. His Lordship had no difficulty in accepting the validity of the judge’s conclusion that had those factors been taken into account, and even allowing for the fact that the judge lacked the expertise of a registrant member of the panel, different and less serious findings would necessarily have ensued, leaving to a conclusion that misconduct was not established or only established to a lesser extent. These conclusions would have led, as the judge noted, to a lesser sanction or no sanction at all. The findings were obviously germane to the question of whether a remittal was required and would be purposeful in the context of any suggested requirement that the charges should be reinvestigated. There was no substance to the contention that only an order of remittal was appropriate.

The judge clearly took account of the deference which should be given to the evaluation of a panel which included a medical professional when reaching judgments of the kind that were made in professional regulatory cases. The case of Meadow v GMC [2007] QB 462 and the dictum of Thorpe LJ at [280], to which the judge referred, made clear that deference was not an absolute or overriding requirement in every case. Moreover, the charges against the registrant did not raise any complex issues of clinical practice. Some simply involved allegations that the registrant raised his voice to his colleagues.

The judge was also entitled to take into account that there had been no further adverse conclusions in respect of the registrant’s practice since the events giving rise to this case in 2017.

In relation to delay, it may well be that in certain circumstances a delay of nine years between the events of alleged misconduct and the matter being brought before the FPC was justified; it depended on the facts and circumstances. But the judge was entitled to take into account the impact of remittal in terms of either the timescales involving in having the case heard or the delays which would occur to other cases awaiting hearing.

In the court’s view the judge’s exercise of his discretion, given the particular circumstances of the case, could not be sensibly criticised and the appeal must be dismissed.