The Appellant formerly worked as a nurse in Birmingham. On 6th February 2024 a Fitness to Practise Panel of the Defendant found that the Appellant’s fitness to practise was impaired by reason of misconduct. The misconduct consisted of a number of instances of dishonesty which the Appellant had admitted. That panel imposed a 12 month suspension running from 5th March 2024 with provision for a review at the end of that period. That review took place on 21st January 2025. On that occasion a differently-constituted panel found that the Appellant had been deliberately dishonest in the evidence which she had given in the course of the hearing before it. As a consequence of that finding the latter panel found that the Appellant’s fitness to practise remained impaired. It also concluded that the only appropriate sanction was that the Appellant be struck off from the nursing register and made an order to that effect.

The Appellant appeals both the finding that she was dishonest before the January 2025 panel and the sanction imposed. She says that the finding that she was dishonest in her evidence to the panel was wrong because the panel failed properly to take account of her circumstances and the nature of the hearing. She contends that the manner of her questioning by the panel meant that she gave answers which were then misconstrued. As to sanction the Appellant says that her striking off was excessive and unreasonable in light of the positive references which she had provided and of the steps which she had taken to remediate the impairment of her fitness to practise.

Part of the background to the allegations leading to the original finding of misconduct was the fact that the Appellant was in an abusive relationship. The court papers contain police records and some other documents giving details of matters which occurred in the course of that relationship. As I explained at the hearing those matters did not warrant a general departure from the important principle that court hearings be conducted in public. They do, however, justify a limited restriction on public access to court documents. The order to be made at the handing down of the judgment in this matter will record the order I made at the hearing restricting the right which non-parties would otherwise have to see the statements of case in this matter without a court order. Instead, a non-party wishing to obtain a copy of the statements of case will have to make an application and obtain the court’s approval for such a course. I am satisfied that such order strikes an appropriate balance between the requirement that justice be conducted publicly and the interests of the Appellant.

The Appellant represented herself before me as she had done at the hearing before the panel on 21st January 2025.

The February 2024 decision to suspend the Appellant followed her admission of 9 charges of misconduct. The charges included two charges (each alleging “one or more” instances) of working for one hospital trust whilst on sick leave (and so receiving sick pay) from another hospital trust. In addition, the Appellant had failed to accept a call to attend to a patient requiring medication and had given a false excuse for doing so. The Appellant had worked back-to-back shifts without informing her employer that she had done so and had failed to keep records of the care provided to patients. Those matters had taken place between December 2019 and July 2020. Then, in September 2020, the Appellant falsely stated that she had obtained a negative Covid-19 test result when she had not undertaken a test.

The Appellant had admitted those charges and had admitted that the conduct on which they were based had been dishonest. It was accepted by the Respondent that the Appellant had engaged in that conduct at a time when she was in a physically abusive and coercive relationship. That was a relationship in which she was pressurised to provide money to fund her partner’s drug habit. The money which the Appellant received from her deception of her employers was handed over to her partner. There is no dispute that the Appellant ended that relationship in 2021. The material before the January 2025 panel included documents from the records of West Midlands Police referring to incidents of violence towards the Appellant in the course of that relationship and after she had ended it.

The Appellant lost her nursing jobs at some point after the misconduct came to light but before the February 2024 hearing.

The 2024 panel took account of the aggravation resulting from the facts that there were multiple instances of dishonesty; that the misconduct continued over a significant period of time; and that the misconduct placed patients at risk. However, it noted the following mitigating factors:

The panel also recorded that it was “encouraged by [the Appellant’s] evidence that [she had] taken steps to remove [herself] from that situation [sc the abusive relationship] with support from [her] family, friends, and external agencies”.

The panel noted that although not all dishonesty is equally serious the dishonesty found proved in the Appellant’s case was very serious.

The panel considered whether a striking off order would be proportionate but concluded that it would be disproportionate in light of the significant personal mitigation; the Appellant’s full admission (including the admission of dishonesty); and her remorse.

The panel imposed a 12 month suspension order and made provision for a review at the end of that period. It said that the reviewing panel would be assisted by:

The preceding summary of the February 2024 decision is taken from the letter which gave the Appellant notice of the January 2025. It is to be noted that the letter told the Appellant of the powers of the review panel including the power to strike her off. However, it is also of note that it reminded her of the matters which the earlier panel had said would be helpful to the review panel.

It is necessary to consider the circumstances of the hearing on 21st January 2025 in some detail.

The hearing took place virtually. The transcript of the hearing was generated automatically by MS Teams. As a result there are a number of mistranscriptions. In most, but not all, instances it is possible to work out what was actually said. I have, however, taken account of the deficiencies of the transcript of this hearing and am mindful that even greater caution than normal is required in relying upon it as a record of what was said.

The Appellant, each of the three panel members, the legal adviser, the Respondent’s advocate, and the hearing coordinator were all at different locations and joined the hearing on their own computers.

The hearing had been due to start at 9.30am. However, there was some difficulty in relation to the hearing coordinator whom it had been intended should assist with the hearing and a replacement had to be found. This meant that the hearing did not start until 11.25am. The Appellant says that she received a couple of emails during that period explaining that there was going to be a delay but adds that the delay and uncertainty about what was going to happen in relation to the hearing increased her nervousness.

The Appellant had provided the panel with material seeking to address the matters which the February 2024 panel had said would be of assistance on the review. This material included a reflective piece; references from her current employers and from former employers; certificates confirming the Appellant’s completion of a number of courses; and the police records to which I have referred above. The references included a reference from Paula Poole, dated 25th October 2024, and one from Derek Hopkins, dated 31st October 2024. The reference from Paula Poole was in respect of care which the Appellant had given to her mother for approximately 2 months in late 2022. That from Derek Hopkins related to care given to his mother from December 2022 to May 2023.

In her reference Paula Poole said:

Mr Hopkins said:

The Respondent’s representative, Simeon Wallis, made a short opening statement. Mr Wallis summarized the allegations which the Appellant had faced and the decision of the 2024 panel. Mr Wallis noted that the previous panel had recommended a number of matters which it believed would assist at the consideration of the review of the suspension. He referred to the training which the Appellant had completed since the earlier hearing and suggested that the panel might benefit from hearing from the Appellant on those matters. Mr Wallis said that he had explained to the Appellant that the Respondent was not urging a particular course on the panel. He said that the questions for the panel were whether or not the Appellant’s fitness to practise remained impaired; if so to what extent; and how such impairment could be remedied. Mr Wallis pointed out that the burden was on the Appellant to show that her fitness to practise was no longer impaired.

Scott Handley, the chair of the panel, explained its role to the Appellant thus:

The Appellant then explained that she had been working as a beauty technician since the previous hearing. She said that she had been doing various courses and had been trying to reflect on what had happened. The Appellant explained the kind of nursing work which she would seek to do if she were able to practise and the steps which she had taken to find out about return to practice courses. She also explained that she was now single and the steps she would take to avoid returning to a relationship like that in which she had been at the time of her misconduct. Some of that information was provided in answers to questions from the chair of the panel and the Appellant also answered questions from him about the fruits of her reflection on the nature of her misconduct.

It is clear from the transcript that the Appellant found the giving of her evidence somewhat stressful. Thus, the very first passage of her evidence which was about her current work and the steps she had taken to reflect on what had happened ended after 59 seconds with her saying “sorry” and Mr Handley saying:

Mr Wallis then cross-examined the Appellant. The questions addressed the Appellant’s current personal circumstances; the fruits of her reflection and the courses she had taken; and the coping skills which the Appellant had acquired since her misconduct. Some of the cross-examination related to the references which the Appellant had provided but this was directed to establishing that the referees had been aware of the Appellant’s suspension and the reasons for it when giving their references.

The Appellant was then questioned by the members of the panel. I will return to those exchanges in some detail below.

Mr Wallis was asked whether he had any closing submissions on behalf of the Respondent. He said that he did not. Mr Wallis said that the options for the panel were clear and that this was not a case where the Respondent was suggesting that a particular resolution was appropriate. He said that he did not “have a general argument to advance”.

The Appellant was asked if there was anything else of which she wished the panel to be aware. She said that she did not think that there was and the panel chair replied by saying:

It is to be noted that neither the Appellant nor the Respondent’s representative were invited to address the possibility that the panel might conclude that the Appellant’s oral evidence to the panel had been deliberately dishonest. There had been no submission on behalf of the Respondent that the panel should approach the matter on that basis.

The panel’s legal adviser gave advice. The adviser reminded the panel that the task for them was to consider whether the Appellant’s fitness to practise remained impaired. The adviser said that as a starting point the panel could look at the matters which the previous panel had said would be helpful to a reviewing panel with a view to considering whether the Appellant had complied with those suggested actions. The adviser said that the panel could look at all the new facts and information which they had and then:

The legal adviser said that she was able to provide further advice or to answer questions if needed. Mr Handley asked his colleagues if they had any questions for the legal adviser but there were no questions. It is of note that the advice did not address the test for determining whether actions were dishonest and nor were the members of the panel given any advice as to the approach to be taken in assessing the oral evidence which they had heard.

The panel rose at 1.08pm and the members took time to consider their decision. It is of note that the decision was not announced until 5.59pm. The panel chair said that the case had taken “a good deal of thought” and it is apparent that the panel reflected at some length on the matter. The decision that the Appellant be struck off was announced then and the written reasons were sent at the same time.

In the written decision the panel set out the history and it then turned to address impairment.

The panel summarized the Appellant’s evidence and the following passages are relevant:

The panel noted positive aspects of the Appellant’s evidence thus:

The panel then said:

As a consequence of that finding the panel concluded that the Appellant’s fitness to practise remained impaired.

The panel then turned to consider sanction. It explained why a further suspension order was not appropriate saying:

The panel then referred to the Sanctions Guidance and explained its conclusion that a further period of suspension would serve no useful purpose and that a striking off order was the “only sanction that would adequately protect the public and serve the public interest”.

It follows that the panel’s finding that the Appellant had been dishonest in the evidence she had given at the hearing was at the heart of the finding of impairment and of its conclusion on the appropriate sanction. In the finding of impairment that finding was expressed in the somewhat guarded terms of having “concerns about your openness and honesty”. It was, however, expressed in clear terms in the decision on sanction where the panel referred to “your dishonesty today” and to being “dishonest in the giving of your evidence”. It is clear that the panel proceeded on the footing that the Appellant had been deliberately dishonest in her evidence at the hearing.

In support of her appeal the Appellant provided a further statement from Mr Hopkins dated 29th January 2025. In this Mr Hopkins made further positive comments about the Appellant. He also gave an explanation of what he had meant by the term “professional carer” in his earlier reference. I have taken no account of that further statement. The appeal is by way of re-hearing but the admission of further evidence is an exceptional course. There was no suggestion that Mr Hopkins should give oral evidence before me but if the further statement were to be admitted there would be scope for question as to the details of what is said there. I have, therefore, considered the position without reference to that statement.

The appeal is brought pursuant to articles 29 and 38 of the Nursing and Midwifery Order 2001. The approach to be taken is governed by CPR rule 52.21(c)(3) and PD52D paragraph 19. It is, accordingly, an appeal by way of rehearing in which the court will allow the appeal if the decision of the panel was wrong or unjust because of a serious procedural or other irregularity in the proceedings before the panel.

The approach to be taken on such an appeal is well-established. I have had regard to the summaries of the principles set out by Cranston J in Cheatle v General Medical Council [2009] EWHC 645 (Admin) at [15]; by Nicola Davies LJ per curiam in Sastry v General Medical Council [2021] EWCA Civ 623, [2021] 1 WLR 5029 at [102] – [112]; and by Hill J in Shabir v General Medical Council [2023] EWHC 1772 (Admin) at [10] – [18] (drawing on the judgments of Collins Rice J in Sawati v General Medical Council [2022] EWHC 283 (Admin) and of Morris J in Byrne v General Medical Council [2021] EWHC 2237 (Admin)).

The court must exercise its own judgement as to whether the decision was wrong and “it is not sufficient for intervention to turn on the more confined grounds of public law such as rationality” (Cheatle at [15]). Although appropriate deference must be paid to the determination of the professional panel the court must not abandon its duty to determine whether the decision was wrong and the degree of deference which is appropriate will depend on the particular circumstances and the particular issue under consideration.

Where the issue is a finding of primary fact or an assessment of credibility then the court’s role will be the same as in other appellate contexts (Cheatle at [15]). A high degree of deference will be appropriate in such circumstances. As Leveson LJ explained in Southall v General Medical Council [2010] EWCA Civ 407, [2010] FLR 1550 at [47]:

In Assicurazioni Generali SpA v Arab Insurance Company [2002] EWCA Civ 1642, [2003] 1 WLR 577 Ward LJ was addressing the approach to be taken on a review but he made it clear an appeal by rehearing on a matter of fact differed little from a review and said at [195] – [197] that:

Findings that a witness has been dishonest in the giving of evidence are a form of finding of fact where particular deference is to be paid by the appeal court to the decision below. Here, the members of the panel had the benefit of assessing the Appellant’s demeanour. The conclusion that a witness is or is not being honest is not to be seen as a form of intuition but it is an assessment which can be soundly-based even if the reasons underlying it cannot readily be articulated. Moreover, a transcript will rarely convey the atmosphere of a hearing not only will the impression given by demeanour and body language be lost but so also will be some nuances of expression. As Cranston J noted in Cheatle at [15] an assessment of a witness’s credibility or reliability “may be derived from his or her demeanour and from subtleties of expression which are only evident to someone at the hearing”.

I also have regard to the fact that in this case the conclusion that the Appellant had been dishonest in her evidence was reached by a panel of three working together.

Even though the appeal court must accord considerable deference to a panel’s assessment of a witness that assessment is not inviolable. As was noted by Nicola Davies LJ in Sastry and by Ward LJ in Assicurazioni Generali the court must form its own judgement as to whether the decision was wrong. Moreover, the deference accorded to the assessment made by the panel which has had the benefit of seeing and hearing the witness is tempered by the repeated warnings from high authority that demeanour by itself can be an untrustworthy foundation on which to base findings as to credibility: see Armagas Ltd v Mundogas SA (The Ocean Frost) [1985] 3 WLR 640 per Dunn LJ at 675H – 676F and R (SS Sri Lanka) v Secretary of State for the Home Department [2018] EWCA Civ 1391, [2018] Imm A R 1348 per Leggatt LJ, as he then was, at [35] and following.

In her notice of appeal the Appellant said:

I have already explained the caution which must be exercised by an appeal court working solely from a transcript. Nonetheless, it is necessary here to consider the transcript in some detail.

The questioning of the Appellant by the panel members lasted for 22 minutes. In that period there were 44 direct questions to the Appellant together with a number of other comments.

The questioning began with Mr Handley saying:

Helen Reddy, the registrant member of the panel, then asked about the roles and training which the Appellant had undertaken. It is clear that the Appellant was at loss for a word at points in that exchange. There was then this exchange:

Mr Handley said that the panel were about to move to a second area but before they did he wanted to come back to the arrangement with Mrs Hopkins. There were the following questions and answers:

Questions about the Appellant’s current role followed and Mr Handley asked the Appellant if her current employers were aware where she was that day and was told that they were.

Dora Waitt, the other lay member of the panel, then asked the Appellant questions about whether the former colleagues who had provided references for her had been told that she had admitted charges of dishonesty and was told that they had.

After the questioning by Miss Waitt Mr Handley returned to the care which the Appellant had given to Mrs Atkins and to Paula Poole’s mother. The following exchanges ensued:

Mr Handley then turned to the charges which had related to the Appellant’s actions in working for one hospital while claiming sick pay from another. He probed the Appellant’s understanding of the gravity of that conduct.

Miss Waitt then asked questions about the timing of the care which had been given to the mother’s of Mr Hopkins and Miss Poole in this way:

Mr Handley also asked questions about the dates. The Appellant said that the care for Eileen Hopkins was from the end of 2022 to May 2023 and that for Miss Poole’s mother was for two months at the end of 2022. This exchange then followed:

Mr Handley asked Miss Waitt if those exchanges had resolved the question which she had and was told that they had.

Mr Wallis made a closing submission for the Respondent in the terms I have summarized above. There was then this exchange between Mr Handley and the Appellant.

There are a number of factors which support the Appellant’s contention that the finding that she was dishonest in her evidence was wrong.

The hearing was conducted virtually with the consequence that the Appellant and those assessing her evidence were not in the same room. The difficulties flowing from this must not be overstated and experience has shown that the reliability of a witness’s account can be assessed over a remote link. Nonetheless, the scope for assessing body language and nuance is reduced in a virtual hearing when compared to a hearing in which the witness and those assessing the evidence are in the same physical space. This means that the deference to be accorded to the panel’s assessment of the Appellant’s honesty is reduced.

The hearing started 2 hours later than the time when it was due to begin. The Appellant said that this increased her nervousness. It is apparent from the transcript that the Appellant was nervous at the beginning of her evidence. She contends that her nervousness increased in the course of the hearing and she attributed that to the manner of her questioning by the panel. As to the former point the transcript provides at least some support and shows that the Appellant appeared confused at times. As to the latter point I have already noted that the members of the panel asked the Appellant 44 questions in the course of 22 minutes. I remind myself that short questions and short answers can be exchanged quickly nonetheless this was not a case where there was a series of measured and structured questions with measured replies. Moreover, there is force in the Appellant’s point that the panel members seem to have returned to the same topic at different times having given the impression that they had moved on from that issue and had been satisfied with the Appellant’s answers.

The members of the panel are not to be criticized for not asking questions in the way in which a professional advocate would. Nonetheless, it was not put to the Appellant directly that she was at risk of the panel concluding that she was lying to them in her evidence. The nearest the panel got to that was when Mr Handley said to the Appellant “are you quite clear in your evidence today that these were effectively voluntary roles?” That had been preceded by the exchange in which Mr Handley had said “you will understand why the panel is concerned to understand fully what’s happening here, aren’t you?” to which the Appellant had replied “yeah”. Mr Handley’s reference to the Appellant understanding and to the panel’s concern in those terms is somewhat cryptic and the Appellant’s monosyllabic reply cannot be seen as an acknowledgement that the Appellant understood that the panel were concerned that she was deliberately giving an untruthful account.

Not only was the point not put directly to the Appellant but at least some of the comments by the panel members gave the impression that they were satisfied with the Appellant’s answers. Thus Mr Handley had said to the Appellant “ok, ok, no, no, don’t worry. It’s a long time ago” and “it’s hard to remember all he dates. OK? That’s fine, that’s fine”. Similarly, Miss Waitt confirmed that Mr Handley’s questions and the Appellant’s answers had resolved the question she had.

The Appellant was invited to make her closing submissions but it was not suggested to her that she might care to address the question of the truthfulness of her evidence and its relevance to the finding of impairment. I have set out above the exchanges between the Appellant and the chair of the panel at the end of the hearing and before the legal advice. There was nothing there to forewarn the Appellant that the panel were considering concluding that she had been lying in her evidence not that they had not accepted her explanation of the points they had made based on the references. Nor was she given an opportunity to address that point.

It is of note that the Respondent’s representative did not question the Appellant on the basis that there were discrepancies between her account of matters and the picture which appeared from the references. Nor did he suggest in his closing submissions that the Appellant’s evidence to the panel in answer to the panel’s questions had been deliberately untruthful. Moreover, the panel did not ask him if he wished to make any submissions on that issue.

The legal advice to the panel explained that the crucial question for the panel was whether the Appellant’s fitness to practise remained impaired. The legal adviser pointed to the factors which the 2024 panel had said would be helpful on a review. The legal adviser noted that those had been addressed by Mr Wallis and the Appellant and said that those could be seen as a starting point (an approach which the Appellant could have expected to be taken in light of the comments made by the 2024 panel). The legal adviser did not provide and was not asked to provide advice on either the test for dishonesty nor did she give any warning as to the care which was needed in assessing oral evidence and in drawing inferences from the demeanour of a witness.

The panel’s conclusion that the Appellant was dishonest in her evidence was founded on the discrepancies, as the panel saw it, between the references from Mr Hopkins and Miss Poole. There are a number of reasons why that was a questionable approach:

The reasons for the panel’s conclusion that the Appellant had been dishonest were set out in very short terms. The panel were entitled to give their reasons shortly but there is no indication that they had given any consideration to the matters to which I have just referred. There is no reference to the caution which is needed before a tribunal of fact can safely conclude that a witness is giving deliberately dishonest evidence as opposed to being confused or mistaken. There is, similarly, no indication that the panel took account of the inherent unlikelihood of the Appellant being deliberately dishonest and of dishonesty rather than mistake or misunderstanding being the explanation for the discrepancies. In considering that aspect account should have been taken of the fact that the Appellant had admitted the charges against her at the 2024 panel hearing and had admitted that her actions had been dishonest. In addition, the dishonesty found by the panel would mean that the Appellant obtained references which showed that she had been receiving payment (on the panel’s reading of them) and/or had been providing care for particular periods; that she then provided those references to the panel; and that having done so she then deliberately gave an account which was false and which was contradicted by the references which she had obtained and provided (and which the Appellant knew was contradicted). Such a course of action is not impossible but it does not seem inherently likely and that factor meant that the panel should have considered whether there was some other explanation.

It is not immediately clear what the motivation for the Appellant’s alleged dishonesty to the panel is said to have been. The Appellant was not suspended until the February 2024 hearing. It is not clear whether the suggestion was that the Appellant was covering up the fact that she had been working and receiving payment at a time when she was receiving benefits or that the Appellant was working in a caring capacity when she should not have been. Again this is something which is not spelt out in the decision and something which was not put directly to the Appellant in the course of questions from the panel.

There are factors operating against the Appellant and in favour of the panel’s decision.

The most potent of those is that the panel saw and heard the Appellant and formed an assessment based on her answers to their questions. This is a powerful consideration. As I have explained above an appeal court must be exceptionally wary before reversing a finding of fact based on an assessment of oral evidence.

The panel’s decision was based on its view that there were discrepancies between the account set in the references and that given by the Appellant. The panel considered the references and made an assessment of the picture they showed. In addition, the Appellant was asked to explain and expand on her account and to address the panel’s concerns (albeit subject to the limitations set out above).

There is force in the point which is implicit in the panel’s approach to the references. This is that it is surprising that the Appellant provided care of the kind and for the duration to which Mr Hopkins and Miss Poole referred without being paid. However, the panel did not spell this out in either the questioning nor in the decision nor did it grapple with the explanation which the Appellant had given of her connexions with Mr Hopkins and Miss Poole and of the fact that she was missing nursing.

It is clear that the panel did not reach its conclusion lightly. It took time to reach its conclusion.

I am satisfied that the panel’s finding that the Appellant had been deliberately dishonest was wrong and cannot stand. If the evidence before the panel had been approached with proper caution and with regard to the circumstances of the hearing it would not lead to a finding of dishonesty. Neither the inferences which were drawn from the references nor the asserted discrepancies in the Appellant’s evidence were sufficiently clear or well-founded to enable the panel safely to conclude that there was dishonesty. I am influenced in that assessment by the failings in the conduct of the hearing; the cross-examination of the Appellant on a topic which was not foreshadowed; the form the questioning took with questioning returning to the same topic at different points after the panel had appeared to indicate that it was satisfied with the Appellant’s answers; the failure to put directly to the Appellant the suggest that she was being untruthful in her answers; and the failure to invite either the Respondent’s representative, the Appellant, or the legal adviser to address the question of whether the evidence had been dishonest. In addition, the panel’s reasons for concluding that the Appellant had been dishonest were expressed in very short terms. There was no indication that the factors militating against dishonesty had been considered, let alone that there had been the engagement with those factors which would be required before a finding of dishonesty could properly be made. Those failings could be characterized as separate serious procedural irregularities rendering the conclusion unjust or as an aspect of the circumstances making the finding of dishonesty unsafe. Whichever route is taken the conclusion is that the panel was wrong to find that the Appellant’s evidence to it was deliberately dishonest.

The finding that the Appellant’s fitness to practise remained impaired was based on the finding of deliberate dishonesty and so cannot stand when that finding is overturned.

The striking off of the Appellant was on the basis that her fitness to practise remained impaired. I have concluded that the finding of impairment cannot stand and so the sanction falls away. If, however, the panel had been correct in finding that the Appellant had been deliberately dishonest in her evidence at the hearing then neither the finding of impairment nor the sanction could be faulted. The charges which the Appellant had admitted in 2024 had involved deliberate and persistent dishonesty. If, having been given a chance to show remediation and insight the Appellant had lied in her evidence to the panel she would not have been able to say that striking off was an unduly severe response.

The panel’s finding that the Appellant’s fitness to practise was still impaired and the consequent striking off are to be set aside. Subject to any submissions to the contrary I will remit the matter for a differently-constituted panel to consider afresh whether the Appellant’s fitness to practise remains impaired and, if so, the appropriate sanction.