Permitting Registration to Lapse with Finding of Impairment

An appeal was brought pursuant to the provisions of Part V of the Nursing and Midwifery Order 2001 (SI 2001/253) by the Professional Standards Authority against a decision of a Fitness to Practise Panel of the NMC: Professional Standards Authority for Health and Social Care v Nursing and Midwifery Council & Anor [2025] EWHC 3132 (Admin)  (Graham)  HHJ Karen Walden-Smith sitting as a Judge of the High Court

The first Fitness to Practise Panel in this case found that four charges of breaching professional boundaries by the Registrant Nurse at two separate hospitals were proved, that he had committed misconduct and his fitness to practise was impaired.

It made a Conditions of Practice Order (CPO) for a period of one year with a review before expiry. A second differently constituted Panel conducted an early review because the first panel had been unaware that the registrant was subject to a 10-year bar by the DBS which meant he could not, in any event, work as an unregistered nurse until 2032. The second panel replaced the CPO with an order of suspension with a review.

The second review on 22 November 2024 decided that the Nurse’s registration should be allowed to lapse with a finding of impairment. When considering the appropriate sanction, the Panel found no evidence to indicate any improvement or progress since the last review, but on the contrary noted signs of deterioration and that he continued to pose a risk to the public and his fitness to practise was impaired on public protection and public interest grounds. It nonetheless found that allowing the suspension order to lapse with a recorded finding of impairment was proportionate and consistent with the registrant’s desire to leave the profession.

On appeal by the Authority, it was said in the second ground of appeal that the Panel clearly departed from the NMC sanctions guidance which was either not applied, or not applied properly, and that the duty of the Panel was to give clear, substantial and specific reasons for that departure, which it failed to do.

The factors said to be indicative of a striking off order were all acknowledged to be present by the Panel: the registrant’s limited insight; the absence of progress on the registrant’s part in addressing the concerns raised; the concern that his conduct suggested harmful and deep-seated attitudinal issues; together with the risk of repetition. The registrant had engaged but had not addressed the proven concerns since the original sanctions.

The court held that it was a fundamental error not to order a striking off and the decision was wrong in principle and must be quashed. In her Ladyship’s judgment it was clear that striking off was the appropriate sanction and in the circumstances it was appropriate for the court to substitute the determination to be one of striking-off.

Ground 2 of the appeal succeeded, as did ground 1, namely the decision to allow registration to lapse being outside the range of sanctions reasonably open to the Panel, the only reasonable sanction being to order strike off.

The Panel’s rejection of making a strike-off order on the basis that it was disproportionate was contrary to the guidance and the statutory objectives of the NMC to protect the public and maintain public confidence and uphold standards in the nursing profession. The Panel had focused on the registrant’s own stated desire to leaving the nursing profession without properly engaging with the purposes of professional regulation. Striking-off properly conveyed the seriousness of the issues.

If there was an application for readmission to the Register after a lapse, then the decision was made by the NMC Registrar in accordance with the rules. That determination was made without a hearing. If, however, there was a striking off order, then application for readmission must be referred by the Registrar to the FPC where the committee would take into account the circumstances of the striking off.

The distinction between allowing registration to lapse with impairment and striking off was very significant and, in the circumstances, the court was satisfied that allowing registration to lapse with impairment was not a sanction that was reasonably open to the Panel.