XY v Nursing and Midwifery Council

This is an appeal under Article 38(1) of the Nursing and Midwifery Order 2001 against a Fitness to Practise Committee decision of 13 July 2023 that the appellant's fitness to practise was currently impaired by reason of health and that she should be suspended for 12 months. The court applied the established standard of review for professional regulatory decisions (following Cheatle v General Medical Council) and considered the scope of the NMC's powers under Article 22 and Article 29 of the Order.

The court upheld the FTPC's findings that the appellant had suffered, and on the balance of probabilities then suffered, an acute and transient psychotic disorder within ICD-10 F23 (diagnosed by the consultant psychiatrist as F23.0). The panel properly relied on the expert evidence of Dr Sammut, the GP material and the appellant's documented lack of insight and refusal of treatment; a misstatement by the Legal Assessor about an alternative F23 sub‑category was unfortunate but did not cause material unfairness.

The court also held that proceedings in the appellant's absence on two occasions were permissible where she had clearly chosen not to participate, that allegations of unlawful detention, torture or fraudulent documentary conduct were unsupported, and that the admitted data disclosure error did not vitiate the FTPC's decision. The suspension order was found to be within the panel's discretion and proportionate to allow time for reflection, engagement and management of health risks to protect patients and the public.

Background and parties:

• The appellant (in person) appealed the Fitness to Practise Committee decision of the Nursing and Midwifery Council dated 13 July 2023 which found impairment of fitness to practise by reason of health and imposed a 12 month suspension. The FTPC had heard evidence (virtually) in January and July 2023 and relied principally on a psychiatric report by Dr Robert Sammut dated 29 September 2022 and GP records.

Nature of the application:

• The appellant sought to overturn the FTPC's findings of fact and law across 16 grounds, challenging diagnosis, weight and admissibility of evidence, procedural fairness (including proceedings in her absence), the sanction imposed, alleged breaches of human rights and the Equality Act, and alleged mishandling or fabrication of documents.

Issues framed by the court:

• Whether the NMC had jurisdiction to proceed on health grounds under Article 22 of the Order;
• Whether the FTPC's factual findings (including diagnosis under ICD‑10 F23.0 versus F23.9) were supported by the evidence or infected by procedural error;
• Whether the FTPC acted fairly in proceeding in the appellant's absence and in admitting material such as hospital records and GP evidence;
• Whether the suspension sanction was proportionate; and
• Whether alleged human rights breaches or data‑protection failures undermined the FTPC's decision.

Court's reasoning and conclusions:

• The court applied the sampling of review principles (as in Cheatle) and accepted that it is entitled to exercise primary judgment on factual findings but should afford appropriate deference to specialist professional tribunals on matters of professional standards and patient safety.
• The court held the NMC had power to investigate and make orders where fitness to practise is impaired by reason of physical or mental health (Article 22(1)(a)(iv), Article 22(6) and Article 29). The FTPC's approach to a registrant currently well but at significant risk of relapse fell within those powers.
• On diagnosis, the court found the FTPC was entitled to accept Dr Sammut's assessment that the appellant's condition fell within F23 (and specifically F23.0) despite prior records using F23.9; the Legal Assessor's references to F23.9 were unfortunate but not outcome‑determinative, and there was no procedural unfairness resulting from that mistake.
• The court rejected allegations of unlawful detention, torture, fraudulent documents and unlawful acquisition of records, noting documentary evidence of consent to disclosure and the absence of supporting evidence for those serious claims.
• The FTPC was justified in proceeding in the appellant's absence when she had indicated a clear decision not to attend; this did not render the hearing unfair. The data disclosure error admitted by the NMC was considered but found not to have materially affected the FTPC's assessment of relapse risk. The suspension order was within the panel's discretion and proportionate to protect the public and allow the registrant time to engage with treatment and develop insight.

Disposition: The appeal was dismissed. The court gave careful consideration to procedural and substantive grounds and found no reversible error in the FTPC's decision.

The appeal is dismissed. The High Court upheld the FTPC's findings that the appellant had suffered, and on the balance of probabilities then suffered, an acute and transient psychotic disorder within ICD‑10 F23, accepted the expert evidence and the panel's assessment of risk and lack of insight, rejected the appellant's procedural and human rights complaints (including challenges to the admissibility of evidence and the decision to proceed in her absence), and concluded that the 12 month suspension was within the FTPC's lawful discretion and proportionate for public protection and the public interest.

Appeal to the High Court under Article 38(1) of the Nursing and Midwifery Order 2001 against the Fitness to Practise Committee decision of 13 July 2023 (FTPC hearing: virtual sessions 25–27 and 30–31 January 2023, adjourned to and concluded 10–13 July 2023). The High Court hearing took place on 18 July 2024 and judgment was handed down 30 August 2024 ([2024] EWHC 2244 (Admin)).