NMC: Panel’s Determination Legally Unsustainable

Quashing the findings of a Fitness to Practise Panel of the Nursing and Midwifery Council, his Lordship observed that as the panel was confronted by two witnesses who gave diametrically opposed accounts, it needed to carry out a careful and thorough assessment of the reliability and credibility of Person A’s account, both internally and by reference to any external evidence: Njoku v Nursing and Midwifery Council [2026] EWHC 2282 (Admin) (04 September 2026)

For example, it needed to consider an email of June 2021 and the Appellant’s evidence, in order to decide whether the burden of proof was satisfied on the core allegation concerning the Appellant’s use of offensive language. The need for the burden of proof to be discharged was particularly important where the evidence in support of the allegation consisted of uncorroborated assertions by a single witness. It then needed to set out its analysis.

Such an approach would have been consistent with the NMC’s Guidance to its Fitness to Practise Panels on assessing evidence (DMA-6).

In the court’s judgment, the reasoning of the panel failed to demonstrate that it had carried out a careful and thorough assessment of the reliability and credibility of Person A’s account, both internally and by reference to other evidence. The Appellant was entitled to the benefit of any proper doubt that flowed from a thorough and comprehensive weighing up of the evidence. It was not enough for the panel to state that it regarded Person A’s evidence as credible and consistent and that it therefore accepted her evidence.

His Lordship was also very troubled by how the panel could have concluded that the burden of proof was discharged when it had openly stated its “conclusions” after hearing the oral evidence, that it did not have sufficient information to be able to reach its conclusions on the facts, and that it risked not having sufficiently good information to produce safe conclusions.

Public confidence in the process was, in part, maintained by ensuring that disciplinary findings were reached through a demonstrably fair, transparent and legally coherent process. In the particular circumstances of the case, the court was driven to the conclusion that the panel’s determination was based on a legally unsustainable approach and did not fairly explain why it found the core allegations in Charge 1 proved.

Charge 1 provided the foundation upon which the findings of fact in relation to Charges 3 and 4 were based and if the determination upon Charge 1 was to be quashed, so must those on Charges 3 and 4. The sanction of suspension was likewise quashed.

Although the maintenance of high professional standards to uphold the public interest in the proper regulation of healthcare professionals required that allegations against such professionals ought generally to be determined once investigated, a further factor was the public interest in finality of proceedings and in the prompt determination of allegations against healthcare professionals.

The events in question appear to have taken place even longer ago than June 2021, and the referral into the Appellant was not opened until February 2023. Moreover, the Appellant had been suspended for over 8 months. In allowing the appeal, the court further ordered that the matter not be remitted back to a Fitness to Practise Committee for a re-hearing.

Annex

In its judgment the court observed that the panel failed to set out a sufficient analysis of what it made of:

(i) the fact that Person A was unable to recall, even in general terms, when and where the occasions occurred on which the Appellant had been offensive to her or about her. In her local statement, Person A referred to there having been “often incidents of bullying and harassment between me and the three nurses”. However, in relation to the Appellant, she refers to one “situation of swearing”, when the Appellant called her a “stupid old cow” and to her “often…abusing me verbally calling me “swine nose”, “Polish cow” or “Polish idiot”. In her witness statement, she referred to the Appellant “often” and “regularly” abusing her. These “events” “would happen at the nurses’ station or the ward corridors”.

(ii) the fact that Person A stated in her witness statement that the Appellant “called” her offensive names but, in her oral evidence, variously and inconsistently stated that:

(a) other nurses had called her offensive names “and Ms N took part in it”;

(b) the Appellant did not say the words directly to her, but to other nurses, but that she “could hear that it was about me”;

(c) the Appellant had been “making comments about Polish people — so about me”;

(d) the Appellant did actually say to her words to the effect of “you are a swine nose,” “you are a Polish idiot”;

(e) the words were not directly said to her, but about her, as she was the only Polish person on the ward;

(f) the Appellant had been in a group and she had heard, but not seen her, use the alleged words;

(g) when the Appellant had been annoyed with her, she (the Appellant) had complained about her to other nurses and she heard her say “old woman” and “Polish cow”;

(h) she said [those things] to her;

(i) she said “Polish idiot” to her;

(j) she heard “swine nose” being said about her;

(k) “old woman” was said directly to her.

The panel, in its determination, observed that Person A had been “able to describe the location of the incident, the circumstances in which it occurred and how [the Appellant’s] behaviour made her feel”. Such an observation signally failed to address the fact that Person A’s account had varied significantly in the course of her evidence. Moreover, the panel went on to note that “although there was no evidence to show the words in the charge were directly said to Person A, on the balance of probabilities it found that these were most likely said in a group context whereby Person A overheard you say them in conversation with colleagues”. However, Person A had, on a number of occasions, said that the words were said directly to her (whilst, on other occasions, asserting that they had only been said about her).

(iii) the fact that Person A had herself been struck off. The panel was obliged to consider whether her account had been affected by this, and/or by animus against the Appellant.

(iv) the manner in which Person A responded to the questioning during cross-examination.

(v) the lack of contemporaneous complaint. Although, in her local statement (page 122 of the bundle), Person A stated that she had spoken to the ward matron Ms D about the bullying from the staff and, in her witness statement, stated that she had reported to Ms D her concerns about the manner in which the Appellant had addressed her (at page 124 of the bundle, in para 8 of the statement), this reporting of the events in question was not confirmed by any evidence.

(vi) the lack of corroborative evidence. Person A had described how the abusive language took place at the nurses’ station or the ward corridors, and was close enough to the patients’ bay that they were able to hear them. However, there was no corroborative evidence to this effect.

(vii) the fact that the Appellant had displayed in her email to Ms D a degree of frustration. From its determination on charge 4, it is clear that weight was attached by the panel to the fact that, whilst the Appellant had denied being frustrated by Person A, she had expressed frustration in the email. It is not clear from the determination why this was relevant to the issue of whether or not the “language used in Charge 1 was used to create a hostile and intimidating environment for Person A” for the purposes of Charge 4. The fact that a person has been frustrated towards a complainant does provide a fair or rational basis for inferring that they have acted inappropriately or unprofessionally towards them.

(vii) its finding that it had not found the Appellant’s account that she had only directly supervised Person A credible. It is not clear from the determination why this was relevant to the panel’s conclusions in relation to the credibility and reliability of Person A’s account.

(viii) whether the Appellant’s account was arguably supported by the evidence of the email to the ward matron of 7 June 2021. In the email the Appellant had expressed her concerns about the fact that Person A had accused her of having said “old people should not be doing nursing”. This is the second incident that she described in her witness statement and in her oral evidence. In the email the Appellant also referred to an earlier occasion on which Person A had accused her of being “wicked”, which is the first incident she likewise described. Mr Badruddin submitted that this email was irrelevant to the issue of Person A’s credibility and reliability. The court disagreed. The fact that the Appellant referred to both incidents in the email was arguably consistent with her evidence concerning the fact that both incidents occurred, and the manner in which she said they occurred. This support for her evidence in this regard was arguably supportive of her evidence more generally.

(ix) whether the Appellant’s account was supported by the fact that the Appellant had requested that her shifts be changed so that she did not work with Person A (referred to in paragraph 18 of her statement). This was arguably more consistent with the Appellant’s account of the two incidents concerning Person A, than it is with Person A’s account to the effect that the Appellant used offensive language towards her.