Anna Svet Semenenko v Nursing and Midwifery Council

On a statutory appeal from a fitness-to-practise decision, the court asks whether the committee’s decision was wrong or unjust because of a serious procedural or other irregularity. The appeal is not a rehearing of every underlying event. The court should focus on the allegations before the committee and assess whether its findings and reasoning were properly open to it. A committee may limit satellite fact-finding about incidents outside the case, but it must consider relevant defence material where fairness requires it. A striking-off sanction based on unimpeached misconduct findings will stand where the appellant cannot establish an error or serious irregularity affecting those findings. Fresh evidence may be refused where it could, with reasonable diligence, have been adduced below and would not show that the decision was wrong or unjust.

The appellant, a midwife, brought a statutory appeal under article 38(1) of the Nursing and Midwifery Order 2001 against findings and sanction imposed by an NMC Fitness to Practise Committee. The committee found six competence allegations and 18 misconduct allegations proved, found impairment, and imposed a striking-off order for misconduct. It took no further action on impairment based on lack of competence.

The appellant challenged the committee’s fact-finding, treatment of evidence concerning wider workplace events and unused material, refusal to admit the Case Examiners’ Report, proceeding in her absence, and the sanction. The central issue was whether any committee decision was wrong or unjust because of a serious procedural or other irregularity.

1. The appeal was dismissed. The committee’s decisions, including the striking-off order, stood. The court also formally refused permission to rely on the fresh evidence.
2. The statutory appeal required the court to determine whether a decision was “wrong” or “unjust” because of a serious procedural or other irregularity. The court was not conducting a general rehearing or reviewing the employer’s disciplinary and grievance procedures.
3. The committee was entitled to focus primarily on the 38 allegations advanced by the NMC. Incidents outside those allegations could be admitted as defence material where relevance and fairness justified it, but the committee was not required to conduct satellite fact-finding about every wider incident. The appellant had had repeated opportunities to adduce such material and make submissions about it.
4. The committee had heard and tested the principal first-hand evidence, considered the documentary material, rejected the appellant’s challenges with clear and cogent reasons, and found some allegations not proved. There was no basis to overturn its findings concerning Patients C and D, the other misconduct allegations, or the competence allegations.
5. The misconduct findings provided a freestanding and unimpeached basis for the striking-off sanction. The committee was entitled to regard the misconduct collectively as demonstrating significant attitudinal concerns, a repeated pattern, limited remediation prospects and a lack of insight. Maintaining public confidence and professional standards justified striking off.
6. The refusal to admit the Case Examiners’ Report was not wrong or unjust. The additional argument based on that report had not been made below and, in any event, could not undermine the misconduct findings or sanction because the allegations were framed by reference to safety and the sanction rested on misconduct.
7. The appeal was heard in the appellant’s absence at the resumed hearing. She had already made extensive written and oral submissions, had notice of the hearing and the respondent’s points, had not sought an adjournment, and had voluntarily disengaged. Proceeding was fair and consistent with the interests of justice and the overriding objective.
8. The respondent was awarded costs summarily assessed at £6,000.

The appeal was brought to the High Court under article 38(1) of the Nursing and Midwifery Order 2001 against the NMC Fitness to Practise Committee’s determinations communicated on 17 July 2023. The committee’s findings and striking-off order were upheld.