Professional Standards Authority for Health and Social Care v Nursing and Midwifery Council & Anor

HHJ Karen Walden-Smith : Introduction

1. This is an appeal brought by the Professional Standards Authority for Health and Social Care (referred to as “the Authority”) against a decision made on 22 November 2024 (“the Decision”) of a Panel (“the Panel”) of the Fitness to Practise Committee (“the FPC”) of the First Respondent, the Nursing and Midwifery Council (“the NMC”). This appeal is brought pursuant to the provisions of Part V of the Nursing and Midwifery Order 2001(SI 2001/253).

2. The Second Respondent, Mr Andrew Graham, is a nurse who was registered with the NMC prior to the Decision. Mr Graham, also referred to as the Registrant, had previously been subject to a Suspension Order. The Decision permitted that Suspension Order to lapse with a finding that Mr Graham’s fitness to practise is impaired. By virtue of the Decision, Mr Graham’s registration lapsed on 29 November 2024 although he remains under the jurisdiction of the Authority as explained below.

3. The Authority appeals the decision of the Panel of the FPC on the basis the Decision was not sufficient to protect the health, safety and well-being of the public, maintain public confidence in the nursing profession, and/or maintain proper professional standards and conduct for members of that profession as set out in sections 29(4) and 29(4A) of Part 2 of the National Health Service Reform and Health Care Professions Act 2002 (“the NHS Reform and Health Care Professions Act 2022”). The Appeal

4. The Grounds of the Appeal are as follows: Ground 1 : The decision to allow the Registrant’s registration to lapse fell outside the range of sanctions reasonably open to the Panel; the only sanction reasonably open to it was a striking-off order; Ground 2 : The Panel erred in (a) failing to apply, or properly apply, the Guidance and/or (b) failing to provide adequate reasons which demonstrated the application of the Guidance.

5. With respect to ground 1, the Authority contends that the Panel failed to engage properly with the seriousness of the misconduct of Mr Graham and the risk factors that had been identified by the NMC as a consequence of its own analysis of the case. The risk factors that the Authority focuses upon are that there was a lack of progress on the part of Mr Graham in demonstrating insight, but also a deterioration in the making of progress, including the continued denial of the allegations and his failure to engage in a meaningful way with the NMC.

6. The Authority alleges that there was a failure on the part of the Panel to have adequate regard to the fact that Mr Graham’s inclusion on the Disclosure and Barring Service (DBS) Barred List was as a consequence of the same behaviours which had resulted in the proceedings.

7. With respect to ground 2, the Authority contends that by rejecting making an order to strike off the Panel failed to make its decision in accordance with the statutory objectives of the NMC, that is to protect the public and maintain confidence and uphold standards in the nursing profession. The Authority further contends that the Panel had impermissibly relied upon Mr Graham’s “stated desire” to leave the profession and the Panel had failed to engage properly with the statutory objectives: public protection and maintenance of confidence.

8. The Authority contends that the fact that there are alternatives to striking off is not a sufficient justification not to impose an order striking someone off where the relevant guidance indicates that is the appropriate sanction based upon the facts and circumstances of the instant case. In this particular case the Authority contends that the Panel gave too much weight to the Registrant’s own expressed wish to leave the profession without focussing upon the primary objectives of professional regulation which had the impact of failing to protect the public and maintain confidence and that the Panel therefore not only failed to apply the applicable NMC guidance as contained in “Removal from the register when there is a substantive order in place”, but also failed to provide adequate reasons with respect to the application of that guidance.

9. The Authority sensibly decided to take the two grounds in reverse order as it is ground 2, the application of the NMC guidance with respect to “Removal from the Register when there is a substantive order in place”, that is at the heart of the appeal.

10. An important issue is in this appeal is the fact that there is a marked difference in the application of the rules regarding rejoining of the Register dependent upon whether a registrant has allowed registration to lapse or whether the registrant has been removed from the Register. Representation

11. The appellant, the Authority, were represented by Eleanor Grey KC and the NMC, the first respondent, by Ms Alabaster, a solicitor-advocate. Mr Graham, the second respondent and the Registrant, appeared without representation. The NMC were not objecting to the appeal and agreed that the Fitness to Practise Committee’s decision should be quashed and substituted with a striking off order. Consequently, Ms Alabaster did not have substantive submissions to make but was of great assistance to the court in clarifying what was the otherwise confusing numbering of the regulations. I am very grateful to both Ms Grey KC, for her thorough and helpful written and oral submissions, and to Mr Graham for setting out with clarity and calmness his own case. Factual Background

12. Mr Graham was employed as a nurse at the time the incidents took place which led to misconduct proceedings being brought against him by the NMC. A Fitness to Practise panel (“the first panel”) sat in 2023 (on 17-21 April, 2- May, 9 May, 19 July and 30-31 October 2023).

13. Before this court, Mr Graham again set out his account of the incidents and the background to them. With respect to the April 2021 allegations he referred to there being no hint of upset from the patient and that he thought that they had an “amazing night” but that she was then moved to another part of the ward, but he had not been informed of any complaint. With respect to the September 2021 allegations he felt his words had been twisted and that he had not defended himself well. He explained to the court his own concerns and his writing of books, his nursing career – including volunteering, and that he regretted that his nursing career had ended in the manner it had and that he had lost both his job and his home but had been able to support his mother by undertaking other work. His explanations to the various NMC panels are set out in their respective decisions. The Proven Charges

14. There were a number of charges brought against Mr Graham. Four of those charges were proven. The other charges were found not to be proven. The proven charges were: 1) While working as a nurse at Grange University Hospitals Trust Between 15 and 17 April 2021 in relation to Patient A breached professional boundaries in that you: a) while speaking with Patient A’s mother said “I won’t give her [Patient A] a kiss from you as that you would be inappropriate” or words to that effect; d) had a conversation with Patient A in which you discussed in detail a case involving the abduction and rape of a 13-year old girl; 4) Between 16 September 2021 and 17 September 2021 while working as a nurse at the Royal Cornwall Hospital you breached professional boundaries in that: a) during a conversation with Colleague A discussed child abduction and/or child abuse and/or paedophilia despite being told by Colleague A that the topic caused upset; d) discussed the dark web and/or asked Colleague A if they had been on the dark web and/or referred to incidents of abuse on the dark web. Misconduct

15. Having reached its determination on the facts of this case, that four of the allegations against Mr Graham were proven, the first panel then moved on to consider whether the facts found proven amount to misconduct and, if so, whether Mr Graham’s fitness to practise was impaired. The NMC has defined fitness to practise as a registrant’s ability to practise kindly, safely and professionally and, in reaching its decision by exercising its own professional judgment. The first panel recognised its statutory duty to protect the public and maintain public confidence in the profession.

16. In coming to its decision on misconduct, the first panel had regard to the Fitness to Practise Library, updated on 27 March 2023, which states: ‘The question that will help decide whether a professional’s fitness to practise is impaired is: “Can the nurse, midwife or nursing associate practise kindly, safely and professionally?” If the answer to this question is yes, then the likelihood is that the professional’s fitness to practise is not impaired.’

17. The first panel was of the view that Mr Graham’s actions did fall significantly short of the standards expected of a registered nurse, and that his actions amounted to a breach of the Code namely: “ 1 Treat people as individuals and uphold their dignity To achieve this, you must: 1.3 avoid making assumptions […] 2 Listen to people and respond to their preferences and concerns To achieve this, you must recognise when people are anxious or in distress and respond compassionately and politely 7 Communicate clearly To achieve this, you must: 7.4 check people’s understanding from time to time to keep misunderstanding […] to a minimum 20 Uphold the reputation of your profession at all times To achieve this, you must: 20.1 keep to and uphold the standards and values set out in the Code 20.5 treat people in a way that does not take advantage of their vulnerability or cause them upset or distress 20.6 stay objective and have clear professional boundaries at all times with people in your care (including those who have been in your care in the past), their families and carers 20.7 make sure you do not express your personal beliefs […] to people in an inappropriate way”

18. The first panel set out that breaches of the Code do not automatically result in a finding of misconduct and looked first at the charges which had been found proved individually. The first panel was of the view that the mischief related to inappropriate communicating and misjudging what is appropriate in conversations with patients and colleagues, resulting in breach of professional boundaries. It was noted that there were no concerns regarding Mr Graham’s clinical skills and with respect to complaint 1a) it took account of the explanation that he was only joking and, while it was unwise and misjudged, the first panel felt that it did not fall so far below expected standards that it amounted to misconduct. However, with respect to the matters found proved in 1d), 4a) and 4d) the first panel found that these comments individually and cumulatively did fall seriously short of the conduct and standards expected of a nurse and therefore amounted to serious misconduct. Fitness to Practise

19. The first panel next determined whether, as a result of the misconduct, Mr Graham’s fitness to practise was currently impaired. The first panel gave consideration to CHRE v NMC and Anr [2011] EWHC 927 (Admin.) in reaching its decision, where Cox J said as follows: “In determining whether a practitioner’s fitness to practise is impaired by reason of misconduct, the relevant panel should generally consider not only whether the practitioner continues to present a risk to members of the public in his or her current role, but also whether the need to uphold proper professional standards and public confidence in the profession would be undermined if a finding of impairment were not made in the particular circumstances.” Cox J then referred to Dame Janet Smith’s “test” as follows: “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) […]’

20. The first panel decided that Mr Graham lacked insight, was deflecting responsibility onto others, and was not convinced that he would be able to judge whether other subject matters would be appropriate to discuss with patients or colleagues. The lack of evidence of insight and remediation meant that the first panel were concerned about the potential for repetition, and that a finding of impairment on public interest grounds was required, and that public confidence in the profession would be undermined if a finding of impairment were not made. As a consequence, the first Fitness to Practise panel concluded that Mr Graham’s fitness to practise was impaired and decided to make a condition of practice order (“COPO”) for a period of a year as the appropriate and proportionate sanction, with a number of conditions attached and with a review prior to its expiry. The First Review

21. The first review took place before a differently constituted panel (“the second panel”) on 18 September 2024. It was a remote hearing and Mr Graham was present, although not represented. It was an early review as it had been identified that the first panel, which had made its decision on 31 October 2023, had been unaware of the fact that Mr Graham had been subject to a 10 year bar by the DBS on 30 November 2022 which meant that he could not work as a registered nurse until 2032, which would be the first opportunity Mr Graham had to request a review of the Barring Order. The Barring Order was based on similar facts and matters as those that gave rise to the proceedings before the NMC.

22. The NMC was additionally concerned that the correspondence from Mr Graham to his case officer was indicating an increase in risk.

23. The second panel undertook a comprehensive review of whether Mr Graham’s fitness to practise remained impaired, including the correspondence with the NMC Monitoring and Compliance Officer between 26 October 2023 and 2 September 2024, and the Barring Order, alongside Mr Graham’s own submissions. Mr Graham accepted that his fitness to practise was impaired, but that did not extend to posing a threat to public protection. The inclusion on the Children’s and Adults’ Barred Lists mean that Mr Graham was unable to practise as a registered nurse, even under the conditions of the practice order as they stood.

24. The second panel had regard to Mr Graham’s oral submissions, his written pieces and the updates on his personal circumstances as included in his correspondence between 26 October 2023 and 24 August 2024. The second panel were not satisfied that he had demonstrated a sufficient understanding of why his actions were inappropriate, how he may have caused distress to the patient and colleague in the proven allegations, and how his actions impacted negatively on the nursing professions and how he would conduct himself differently in the future. The second panel decided that his insight had not developed further and that he was continuing to misjudge what was appropriate, although they did take into account that he had achieved completion of a ‘Professional Boundaries” training course at the end of January 2024.

25. In light of all the evidence before them, the second panel determined that a finding of continuing impairment was necessary on the grounds of public protection, and were not satisfied that Mr Graham was then able to practice kindly, safely and professionally due to the propensity to engage in inappropriate communications. Bearing in mind their primary function to protect patients and the wider public interest, including by maintaining confidence in the nursing profession and upholding proper standards of conduct and performance, the second panel considered what sanction was appropriate to impose and determined that conditions of practise were not workable given his express wish not to return to nursing and the extant barring order. A suspension order was considered to be the appropriate sanction to replace the current conditions of practise order, which suspension which would both protect the public and satisfy the wider public interest. Accordingly, the second panel determined to impose a suspension order with immediate effect and to remain in place until 29 November 2024, but that, before the end of the period of suspension, another panel would review the order. That suspension order would “allow you to provide the requisite information to support your developing insight or information about your intentions around your future professional nursing career.” The suspension order was, therefore, inevitably only for a very short period of time given the gap in time between the hearing and the 29 November 2024. The Second Review

26. This review took place on 22 November 2024 and led to the decision which is now being challenged. The suspension order was reviewed and this third panel (referred to as “the Panel” for the purpose of this appeal) decided that Mr Graham’s registration should be allowed to lapse with a finding of impairment.

27. The Panel set out that it was mindful of the need to protect the public, maintain public confidence in the profession, and to declare and uphold proper standards of conduct and performance and that Mr Graham’s fitness to practise remained impaired and that he was self-focused, with limited insight, and lacking further development in addressing the concerns raised. The Panel heard from Mr Graham but found him focussed on himself and placing blame on others “rather than demonstrating a clear understanding of his own actions.” And that while he had engaged with the NMC, that engagement had not been meaningful or relevant in addressing the core issues. While it was accepted that Mr Graham maintained his innocence, the Panel found that he had not engaged meaningfully with either the first or second panels.

28. In light of this, this Panel determined that Mr Graham was liable to repeat matters of the kind found proved and that he therefore continued to pose a risk to the public. The Panel concluded that a finding of continuing impairment was necessary on the grounds of public protection and that Mr Graham’s fitness to practise remained impaired.

29. 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.

30. Having set out those conclusions, the Panel then decided: “While a striking off order could be considered, the panel is of the view that it is not necessary in this particular case. It does however find that there are concerns about your fundamental professionalism that might warrant a striking off order but that in its view public confidence in the nursing profession can still be maintained without a striking off order. Finally, the panel is satisfied a striking off order is not the only sanction sufficient to protect patients and the wider public. The panel therefore concludes that allowing the suspension order to lapse with a recorded finding of impairment is proportionate and consistent with your repeated stated desire to leave the profession. Accordingly, the panel has decided to allow your registration to lapse with a recorded finding of impairment. The substantive suspension order will expire at the end of its current period of imposition, in accordance with Article 30(1).”

31. It is this determination to allow the registration to lapse with a recorded finding of impairment that is appealed. The position of the Authority is that, by making this decision, the Panel failed to carry out its duties in accordance with the statutory guidance. The decision to allow the registration to lapse was, it is averred, outside the range of sanctions that could reasonably have been made. Mr Graham’s Input

32. The Panel heard from Mr Graham before reaching its conclusions set out in the Decision. The Panel had also received a 130 page written submission from Mr Graham. He denied the accusations made against him, including involvement with the dark web. He told the Panel that he was angry over false allegations made by a patient and colleagues, and that the accusation from the last colleague he believed had led to the end of his nursing career, “though previously, concerns had only resulted in warnings.” He told the Panel that he regretted mentioning his book. He said he was accused of being a danger to the public, but believed himself to be one of the best nurses and he gave an explanation of caring for a patient in significant pain and that he had behaved “with empathy way beyond a very large number of nurses who simply do their job”. Mr Graham accepted that he was impaired but that did not extend to posing a threat to public protection. He said he had no intention of returning to nursing practice, but that he would prefer not to be struck-off the register and submitted that he did not deserve to be struck-off. Status on the Register

33. Mr Graham was employed as a nurse at the time of the proven allegations. The registration of Mr Graham was due to expire on 30 April 2022 but he remained on the Register for the purpose of the fitness to practise proceedings in accordance with NMC guidance which provides that “ Even if they haven’t revalidated, professionals cannot be removed from the register while a substantive suspension or conditions of practice order is in place” (Art 12(3)(b) of the Nursing and Midwifery Order 2001; Rule 14(4)(b) of the Nursing and Midwifery Council (Education, Registration and Registration Appeals) Rules 2004). The effect of the decision of the Panel was that Mr Graham’s registration lapsed with impairment with effect from 29 November 2024. The Legal Framework

34. Section 25 of the NHS Reform and Health Care Professionals Act 2002 provides the statutory basis for the Authority, as follows: The Professional Standards Authority for Health and Social Care (1) There shall be a body corporate known as the Professional Standards Authority for Health and Social Care (in this group of sections referred to as “the Authority”). (2) The general functions of the Authority are— (a) to promote the interests of users of health care, users of social care in England, users of social work services in England and other members of the public in relation to the performance of their functions by the bodies mentioned in subsection (3) (in this group of sections referred to as “regulatory bodies”), and by their committees and officers, (b) to promote best practice in the performance of those functions, (c) to formulate principles relating to good professional self- regulation, and to encourage regulatory bodies to conform to them, and (d) to promote co-operation between regulatory bodies; and between them, or any of them, and other bodies performing corresponding functions. (2A) The over-arching objective of the Authority in exercising its functions under subsection (2)(b) to (d) is the protection of the public. (2B) The pursuit by the Authority of its over-arching objective involves the pursuit of the following objectives— (a) to protect, promote and maintain the health, safety and wellbeing of the public; (b) to promote and maintain public confidence in the professions regulated by the regulatory bodies; (c) to promote and maintain proper professional standards and conduct for members of those professions;”

33. By s.25(3)(ga) of the NHS Reform and Health Care Professionals Act 2002, the NMC (with its committees) is a “regulatory body” within the meaning of s.25(2)(a) and thus falls within the scope of the Authority’s remit and duties.

34. Section 29 of the NHS Reform and Health Care Professionals Act 2002 provides for “Reference of disciplinary cases by Authority to court” and applies to any corresponding measure taken in relation to a nurse ( s.29(1) (i)) and any corresponding decision taken in relation to a nurse ( s.29(2) (b)) both of which are “relevant decisions” ( s.29(3) ) for the purposes of referrals to the High Court by the Authority.

35. Section 29(4) and (4A) provide: (4) Where a relevant decision is made, the Authority may refer the case to the relevant court if it considers that the decision is not sufficient (whether as to a finding or a penalty or both) for the protection of the public. (4A) Consideration of whether a decision is sufficient for the protection of the public involves consideration of whether it is sufficient— (a) to protect the health, safety and well-being of the public; (b) to maintain public confidence in the profession concerned; and (c) to maintain proper professional standards and conduct for members of that profession.

35. Pursuant to the provisions of section 29(7) (a) where the Authority makes a referral, “the case is to be treated by the court to which it has been referred as an appeal by the Authority against the relevant decision” and, pursuant to the provisions of section 29(8) on hearing the appeal, the court may: “(a) dismiss the appeal, (b) allow the appeal and quash the relevant decision, (c) substitute for the relevant decision any other decision which could have been made by the committee or other person concerned, or (d) remit the case to the committee or other person concerned to dispose of the case in accordance with the directions of the court […], and may make such order as to costs […] as it thinks fit.”

36. Pursuant to the provisions of CPR 52.21(3) an appeal will be allowed if the determination of the Panel was either (a) wrong or (b) unjust because of a serious procedural or other irregularity in the proceedings. The Position of the Registrant

37. The registration of Mr Graham lapsed on 29 November 2024 pursuant to the decision of the Panel in this case. Consequently, Mr Graham is not currently on the nursing register – however, I am satisfied that this does not affect the jurisdiction of the Authority to bring the appeal. The lapse of registration automatically took effect once the suspension order expired, pursuant to the provisions of the Nursing and Midwifery Council (Education, Registration and Registration Appeals) Rules 2004.

38. The Panel’s decision to allow the registration to lapse was a final decision of the relevant committee (the FPC) not to take any disciplinary measure under Article 30 of the Nursing and Midwifery Order and therefore falls within the scope of the provisions which enables the Authority to appeal. Case Law

39. In Bawa-Garba v GMC [2018] EWCA Civ 1879 , (concerned with an appeal brought by the General Medical Council pursuant to section 40 A of the Medical Act 1983 ) the Court of Appeal held that a court may interfere with the tribunal’s decision if “(1) there was an error of principle in carrying out the evaluation, or (2) for any other reason, the evaluation was wrong, that is to say it was an evaluative decision which fell outside the bounds of what the adjudicative body could properly and reasonably decide.” See, further, the judgment of the Divisional Court in GMC v Jagjivan [2017] EWHC.

40. In the case of Council for the Regulation of Health Care Professionals v General Medical Council & Ruscillo [2004] EWCA Civ 1356 , the Court of Appeal considered the approach the Court should take to section 29 of the NHS Reform and Health Care Professions Act 2002. Lord Phillips MR, giving the judgment of the court, held: “71. If the court decides that the decision as to penalty was “wrong”, it must allow the appeal and quash the relevant decision, in accordance with CPR r52.11(3)(a) and section 29(8) (b) of the Act . It can then substitute its own decision under section 29(8) (c) or remit the case under section 29(8) (d).

72. It may be that the court will find that there has been a serious procedural or other irregularity in the proceedings before the disciplinary tribunal. In those circumstances it may be unable to decide whether the decision as to penalty was appropriate or not. In such circumstances the court can allow the appeal and remit the case to the disciplinary tribunal with directions as to how to proceed, pursuant to CPR r 52.11(3)(b) and section 29(8) (d) of the Act .”

41. Regulatory tribunals are under a duty to give reasons, and a failure to do so amounts to a serious procedural irregularity and the court can intervene. See, for example, General Medical Council v Bramhall [2021] EWHC 2109 (Admin) and Professional Standards Authority v Lingam [2023] EWHC 967 (Admin) .

42. When considering how to treat guidance, assistance can be gained from General Medical Council v Stone [2017] EWHC 2534 (Admin) , when Jay J found that the Tribunal had erred in failing expressly to consider paragraphs of the Sanctions Guidance that addressed sexual relationships with vulnerable patients and that there was “ a failure properly to consider the objective features of the instant case, to demonstrate that their gravity had been fully understood, and then to address and explain how the available mitigation operated to justify the imposition of the sanction of suspension.”

43. In General Medical Council v Bramhall [2021] EWHC 2109 Collins-Rice J set out the following: [24] The MPT in this case referred to two authorities on how to direct itself to the Sanctions Guidance. CRHP v GMC & Leeper [2004] EWHC 319 was cited for the proposition that the aim of the Guidance is to promote the consistency and transparency of Tribunal decisions - a matter to which it must have regard although each case will depend on its own facts. The Court of Appeal in PSA v HCPC & Doree [2017] EWCA Civ 319 was cited for the principle that departure from the Guidance must be explained. A Tribunal should have proper regard to the Guidance, and apply it as its own terms suggest, unless it has sound reasons for departing from it - in which case it has to state those reasons clearly in its decision. Again, however, a degree of flexibility and fact-sensitivity is acknowledged. [25] The High Court in GMC v Khetyar [2018] EWHC 813 had before it the particular issue of applying the Guidance in determining suspension rather than erasure. It characterised the Guidance as an ' authoritative steer ' as to the application of the principle of proportionality in balancing the public interest against the interest of the individual professional. Accordingly, ' a proper conclusion that suspension is sufficient cannot be reached without reference to and careful consideration of advice in the Guidance that erasure may be or is likely to be appropriate where that advice is pertinent to the facts of a particular case '. The Court said this (paragraph 22): “Again, of course, it remains advice and not prescription: tribunals must ultimately judge each case on its own merits, and are entitled in principle to depart from that steer. Doing so, however, requires careful and substantial case-specific justification. A "generalised assertion that erasure would be a disproportionate sanction and that the doctor's conduct was not incompatible with his continued registration", where the Guidance gives a clear steer towards erasure, properly considering what is says about important features of the case in question, will be inadequate and will justify the conclusion that a tribunal has not properly understood the gravity of the case before it: see GMC v Stone [2017] EWHC 2534 (Admin) at [53] ”.

44. Collins-Rice J also emphasised the duty of the Tribunal to state clear reasons for departure from the steer of the Sanctions Guidance, requiring “something more (a) clear, (b) substantial and (c) specific in the way of reasons than would be required if the steer of the Guidance were being followed.” See also General Medical Council v Khetyar [2018] EWHC 813. NMC guidance

45. There was some confusion with respect to the NMC Policy Guidance due to the existence of two Guidance notes – REV-3h and REV-2h. Ms Alabaster, for the NMC, was able to obtain instructions that REV-3h was (somewhat curiously) renamed REV-2h in 2025 but that they were exactly the same and therefore interchangeable. I therefore have no concerns about considering Rev-2h which is the version before the court. It explains the absence of a copy of Rev-3h.

46. The NMC Guidance (REV-3h and REV-2h) states as follows: ‘ Removal from the register when there is a substantive order in place This guidance is intended to help substantive order review panels decide what action to take where • a professional hasn’t addressed outstanding fitness to practise concerns, and • continuing/imposing a conditions of practice order or suspension order is unlikely to mean the professional will return to safe unrestricted practice within a reasonable period of time. There is a persuasive burden on the professional at a substantive order review to demonstrate that they have fully acknowledged why past professional performance was deficient and through insight, application, education, supervision or other achievement sufficiently addressed the past impairments. Ways of leaving the register while impaired … Lapse with impairment: where the professional would no longer be on the register but for the order in place, a reviewing panel can allow the order to expire or, at an early review, revoke the order. Professionals in these circumstances will automatically be removed from the register, or lapse, upon expiry or revocation of the order. The panel will record that the professional remains impaired. A panel will allow a professional to lapse with impairment where: the professional would no longer be on the register but for the order in place the panel can no longer conclude that the professional is likely to return to safe unrestricted practice within a reasonable period of time; a striking off order isn’t appropriate. … Striking off The panel can impose a striking off order, removing the professional from the register. At a substantive order review, the panel will take into account both the concerns themselves and the professional’s conduct since they were sanctioned. The panel will ask: Are there now fundamental questions about the nurse, midwife or nursing associate’s professionalism? Can public confidence in nurses, midwives and nursing associates now be maintained if the nurse, midwife or nursing associate is not struck off from the register? Is striking-off the only sanction which will be sufficient to protect patients, members of the public, or maintain professional standards? For example, a reviewing panel could impose a striking off order if the professional has shown they clearly lack insight, pose a risk of repeating the behaviour, or their conduct suggests harmful deep-seated personality or attitudinal problems. Cases where striking off is likely to be appropriate include when: the professional has shown limited engagement and/or insight, … the professional has otherwise made no or negligible progress towards addressing issues with their fitness to practise.” Discussion

47. The Authority’s appeal is based upon the Panel having fallen into error in the passages of its decision where it is set out: While a striking off order could be considered, the panel is of the view that it is not necessary in this particular case. It does however find that there are concerns about your fundamental professionalism that might warrant a striking off order but that in its view public confidence in the nursing profession can still be maintained without a striking off order. Finally, the panel is satisfied a striking off order is not the only sanction sufficient to protect patients and the wider public. The panel therefore concludes that allowing the suspension order to lapse with a recorded finding of impairment is proportionate and consistent with your repeated stated desire to leave the profession. Accordingly, the panel has decided to allow your registration to lapse with a recorded finding of impairment. The substantive suspension order will expire at the end of its current period of imposition, in accordance with Article 30(1).

48. It is said by the Authority, in the second ground of appeal, that this was a clear departure from the NMC sanctions guidance which was not applied (or 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. That failure to give reasons is in itself an error of principle.

49. The Panel did refer to the NMC guidance but then failed to apply that guidance as an “authoritative steer” (see Andrew Baker J in GMC v Khetyar [2018] EWHC 813 (Admin.)) and instead reached a conclusion, in allowing registration to lapse rather than ordering striking off, which was contrary to the NMC guidance as to sanction.

50. The factors said to be indicative of a striking off order were all acknowledged to be present by the Panel: Mr Graham’s limited insight; the absence of progress on the part of Mr Graham in addressing the concerns raised; the concern that his conduct suggests harmful and deep-seated attitudinal issues; together with the risk of repetition. Despite this, the Panel came to a conclusion with respect to sanction that is contrary to the guidance. Mr Graham has taken part in the hearings, including in this appeal, and has put forward his own contentions and perspective. However he fails to engage in ways which would lead to remediation. As recorded in the Decision, the issue was that Mr Graham had “engaged but had not addressed the proven concerns since the original sanctions.”

51. The decision to allow registration to lapse was not a decision that was reasonably open to the Panel following the NMC guidance.

52. The NMC guidance states that: “Circumstances where lapse with impairment is likely to be appropriate include where • a professional has shown limited engagement and/or insight, but this is reasonably attributable to a health condition; or • there has been insufficient progress in cases involving health or English language; or in other cases, where the lack of progress is attributable wholly or in significant part to matters outside the professional’s control (e.g. health, immigration status, the ability to find work or other personal circumstances).” and the Decision failed to justify why the need to maintain public confidence and proper standards was satisfied by a sanction of “lapse with impairment”.

53. The Decision further fails to set out any adequate reasoning for the departure from the NMC’s REV-2h guidance, which was incompletely set out and which resulted in an imbalanced interpretation as the Decision failed to refer to the extenuating reasons (such as health) or confront their absence in this case.” There was no sufficient justification as to why the need to maintain public confidence and proper standards was adequately satisfied by the Decision not to strike off but to allow registration to lapse with a recorded impairment.

54. It was a fundamental error not to order a striking off and the Decision was wrong in principle and must be quashed. In my judgment it is clear that striking off is the appropriate sanction and in the circumstances it is appropriate for the court to substitute the determination to be one of striking-off.

55. Ground 2 of the appeal (taken first by the Authority without objection) therefore succeeds, as does Ground 1 of the appeal – namely the decision to allow registration to lapse being outside the range of sanctions reasonably open to the Panel. The only sanction reasonably open to the Panel is an order to strike off.

56. The Decision shows that the Panel had failed to give any or any adequate consideration to the seriousness of the misconduct and the failure of Mr Graham to demonstrate progress in showing insight and, further, the deterioration in any insight that there was, combined with the denials of the allegations and the failure to engage meaningfully. The Panel further failed to pay adequate, or any adequate, regard to Mr Graham’s inclusion on the DBS Barred List as a consequence of the same behaviours.

57. 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 focussed on Mr Graham’s own stated desire to leave nursing profession without properly engaging with the purposes of the professional regulation. Striking-off properly conveys the seriousness of the issues.

58. Additionally, if there is an application for readmission to the Register after a lapse then the decision is made by the NMC Registrar in accordance with the provisions of rule 15(4) of the Nursing and Midwifery Council (Education, Registration and Registration Appeals) Rules 2004 which provide: “Where the Registrar receives an application for readmission in accordance with this rule and is or becomes aware of information (whether received before or after the applicant’s registration lapsed or before or after the readmission application was made) which raises concerns that the registrant’s fitness to practise may be impaired, the Registrar shall have regard to that information for the purposes of determining whether the applicant has satisfied the Registrar— (a) that the applicant is capable of safe and effective practice [as a nurse, midwife or nursing associate] in accordance with article 9(2)(b) of the Order; (b) of the applicant’s good health in accordance with rule 6(5); (c) of the applicant’s good character in accordance with rule 6(6); and (d) that the applicant has the necessary knowledge of English for the purposes of article 9(2)(ba) of the Order.”

59. That determination is made without a hearing, unless unsuccessful and there is then provision for any appeal to be heard by an Appeal Panel.

60. If, however, there is a striking off order then any application for readmission must be referred by the Registrar to the FPC. Article 33(5) of the Nursing and Midwifery Order 2011 provides that “The Committee shall not grant an application for restoration unless it is satisfied, on such evidence as it may require, that the applicant not only satisfies the requirements of article 9(2)(a), (b) and (ba) but, having regard in particular to the circumstances which led to the making of the order under article 29, 30 or 38, is also a fit and proper person to practise the relevant profession.” Significantly, therefore, the FPC will take into account the circumstances of the striking off in determining whether the applicant is a “fit and proper person” to practise the relevant profession. The applicant has an opportunity to appear before the committee to argue his/her case before a determination is made, but is time-barred in making an application for restoration before the end of the period of five years beginning with the date on which the order to strike-off took effect or in any period of twelve months in which an application for registration to the register has already been made by the person who has been struck off.

61. The distinction between allowing registration to lapse with impairment and striking off is very significant and, in the circumstances of this matter I am satisfied that allowing the registration to lapse with impairment was not a sanction that was reasonably open to the Panel. Conclusion

62. For the reasons set out, I therefore allow the appeal against the Panel’s decision on both grounds 1 and 2.

63. The appropriate course in light of those findings, which is a course not objected to by the NMC, is for the Decision to be quashed and, rather than the case being remitted to a differently constituted panel of the FPC, an order striking Mr Graham from the Register of Nurses and Midwives.

64. The Authority are entitled to an order for costs on the standard basis. A schedule of costs has been provided by the Authority and I am content to deal with the summary assessment of those costs on the paper once I have the benefit of input from the NMC and Mr Graham. I suggest that written submissions are provided within by the NMC and Mr Graham within 7 days of today and any response from the Authority is provided 7 days thereafter.