Susan Tsolo v Nursing and Midwivery Council

In a statutory appeal from a professional disciplinary decision, an adjournment is determined by a pragmatic, context-sensitive assessment of fairness. Legal representation is important where professional status and livelihood are at stake, but it is not automatically a condition precedent to proceeding. The appellant must have a fair opportunity to obtain representation, and the court must balance that prejudice against the interests of the regulator, witnesses, the public and finality.

Medical evidence supporting an adjournment must identify the condition, explain why it prevents participation, provide a reasoned prognosis and demonstrate an independent opinion following proper examination. A pro-forma certificate of unfitness for work will ordinarily be insufficient. Repeated delay, inadequate evidence and the absence of material prejudice may justify proceeding in the party’s absence.

This was a statutory appeal under article 38(1) of the Nursing & Midwifery Order 2001 against decisions of the Nursing and Midwifery Council’s Fitness to Practise Committee.

The appellant challenged the refusal to adjourn the disciplinary hearing, the decision to proceed during her absence on two days, findings of misconduct, the striking-off order and an interim suspension order. She also sought a further adjournment of the appeal because she could not afford legal representation.

The central questions were whether the appeal should be adjourned, whether the first-instance refusal to adjourn was wrong or involved a serious procedural irregularity, whether the factual and regulatory findings could be revisited, whether striking off was disproportionate, and whether the interim suspension order was appealable.

1. The appeal adjournment. The application for a further six-month adjournment was refused. Article 6 was engaged because the proceedings affected the appellant’s right to practise as a registered nurse, but article 6 did not require publicly funded representation or make representation a condition precedent to proceeding. Equality of arms required a fair opportunity to secure representation, not perfect mirroring of legal assistance. The court adopted a pragmatic, context-sensitive approach, balancing the appellant’s interests against prejudice to the regulator, witnesses, the public and the need for finality. The appellant had had ample notice and opportunity to obtain representation. The issues were sufficiently straightforward for her to present them with active procedural assistance from the court.
2. The first-instance adjournment. The Fitness to Practise Committee was entitled to refuse an adjournment. The medical certificates were pro-forma certificates of unfitness for work. They did not identify with sufficient particularity why the appellant was unfit to attend or participate in the hearing, provide a reasoned prognosis or establish an independent medical opinion directed to participation in the proceedings. The absence of reliable evidence about the effect of oral thrush or anaemia was decisive. The Committee’s limited observation about oral thrush did not materially affect the outcome. The appellant’s fresh evidence added little and could have been obtained with reasonable diligence.
3. Absence and merits. The Committee was entitled to proceed on the second day of the hearing. The appellant had no adequate reason for that absence, attended the remaining days and suffered no material prejudice. The appeal court could not re-run findings of fact based on credibility absent the limited circumstances identified in the authorities. The findings of misconduct and impairment were rational consequences of the proved conduct.
4. Sanction and interim order. The striking-off order was neither excessive nor wrong. The deliberate breaches of regulatory conditions, dishonesty, limited insight and risk to vulnerable patients justified the sanction. The challenge to the interim suspension order was misconceived because the proper procedure was an application under article 31(12); in any event, the protective order was substantively justified. The appeal was dismissed.

This was a statutory appeal to the High Court under article 38(1) of the Nursing & Midwifery Order 2001 from decisions of the NMC Fitness to Practise Committee made after the substantive hearing in July 2023. The appeal was dismissed.