NMC Panel’s Legally Unsustainable Findings

In a comprehensive and penetrating judgment, Deputy High Court Judge Alan Bates described the 32 disciplinary charges arising out of a collective grievance brought against a nurse by the Nursing and Midwifery Council as an “extraordinarily high number” and concluded that a Fitness to Practise Panel’s reasoning was inadequate for sustaining the findings made against the appellant: Hindle v The Nursing And Midwifery Council [2025] EWHC 373 (Admin)

Important takeaways from this judgment (which will amply repay a full reading and which I venture to suggest should be read by every fitness to practise panellist) are:

• The panel did not properly assess the general credibility and reliability of certain witnesses who provided written and oral evidence and were cross-examined, and whose evidence was crucial to determining the charges the nurse had denied.
• The differences between the key witnesses’ respective factual accounts which were contradicted by the appellant nurse and a paramedic were unlikely to be explicable by mere differences in individuals’ honest recollections or perceptions of events.
• A vital element of the panel’s task was to decide which witnesses’ accounts could be relied on in relation to the various disputed allegations which required the panel to take into account, as a relevant consideration, the extent to which each of the key witnesses was generally credible and reliable, and whether there were factors present which should cause her or his evidence to be viewed with caution or circumspection.
• The panel also had to explain, in respect of the disputed allegations it found proved, why it had preferred the account given by one or more of the complainant nurses to the contrary account given by the appellant nurse and, where relevant, by the paramedic.
• It was not sufficient for the panel merely to set out the witnesses’ respective accounts and then to say “We prefer the evidence of X and therefore find this charge proved.” The appellant nurse was entitled to know why her evidence on the relevant matter had not been relied upon by the panel, and such reasons as were given in that regard had to be rational and based on weighing up all legally relevant considerations which should have included the panel’s assessment of the relevant witnesses’ general credibility and reliability taking all relevant factors into account.
• The panel’s approach of considering the evidence relating to each charge against the appellant nurse on an individual charge-by-charge basis, effectively in silos, had led it into error. It had failed to consider whether the fact that the complainant nurses’ factual accounts in relation to one allegation was found (by reason of those accounts having been contradicted by CCTV evidence) to be incorrect should affect the degree of confidence it should place on those witnesses’ assertions in support of other allegations.
• It also failed to properly evaluate the contextual evidence relating to the complainant nurses’ behaviour prior to, and during their employer’s investigation of their joint complaint submission which was relevant to a proper assessment of the degree to which the panel could have confidence in the truthfulness and reliability of their evidence.
• The crux of the appellant’s case was that the complainant nurses had created a catalogue of fabricated and exaggerated allegations against her to rid themselves of a manager with whose decisions they disagreed and whose job they thought should have gone to one of them. The panel’s failure to properly grapple with assessing the credibility and reliability of the key witnesses had the consequence that it failed to deal adequately with the appellant’s case.
• The scale of the case could not dilute the panel’s duty to provide adequate reasoning in respect of each disputed conduct allegation that it found proved and then relied upon as constituting misconduct and as supporting a conclusion of current impairment of the nurse’s fitness to practise. In respect of each such conduct allegation, it was incumbent upon the panel to provide informative rational reasons for its finding that the NMC had discharged its burden of proof in relation to all the facts necessary for supporting that allegation.

In addition to his Lordship’s concerns that the panel had not properly assessed the credibility and reliability of the key witnesses, the panel’s reasoning revealed that it took several approaches that were legally unsustainable:

• The panel sometimes chose to prefer a witness’s written evidence, even if she did not maintain the same account, and even if she had contradicted that written evidence, when giving her oral evidence and being cross-examined. The right to cross-examine one’s accusers was a precious right and an important protection. The very reason why parties to litigation were entitled to cross-examine witnesses who had provided written evidence was to test that written evidence. It would only be in exceptional circumstances that a tribunal might contemplate preferring a witness’s written evidence in circumstances where she had been called to give oral evidence and had, whilst being cross-examined, contradicted her written evidence.
• The panel’s unjustified assumptions that the appellant nurse’s evidence did not relate to the same incident as that which was the subject of the charge, and then proceeding to find the charge proved based on the supposed absence of evidence from the appellant about that incident.
• The panel’s reliance on its assessment of the appellant as having had a difficult relationship with a particular student, or as having felt a degree of frustration when dealing with that student, as evidence justifying a conclusion that the appellant “shouted at” or otherwise behaved inappropriately towards that student. In any walk of life, all of us work with people we find difficult, or sometimes feel This was not a fair or rational basis for inferring that we have acted inappropriately or unprofessionally.

Setting aside each of the panel’s findings in respect of the disputed conduct allegations as wrong or unjust because of serious procedural irregularity (CPR 52.21(3)), the court observed that the charges related to incidents said to have occurred between November 2016 and April 2018.  Even allowing for the impact of the Covid-19 pandemic, the time taken by the NMC to progress the case had been far too long.

Certain administrative charges which were admitted did not show the nurse’s fitness to practise to be currently impaired.

The court ordered that the NMC pay the  costs of the Royal College of Nursing who supported  the nurse on appeal.