Professional Standards Authority for Health and Social Care v Nursing and Midwifery Council & Anor [2025] EWHC 1215 (Admin)

[2025] EWHC 1215 (Admin)Case No AC-2024-LON-003730
IN THE HIGH COURT OF JUSTICE
KING’S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 19 May 2025
Before
MRS JUSTICE LANG DBE
Between
PROFESSIONAL STANDARDS AUTHORITY FOR HEALTH AND SOCIAL CAREAppellant(1) NURSING AND MIDWIFERY COUNCILRespondents(2) AHMAD SHAHRespondent
Michael Standing (instructed by Hill Dickinson LLP) for AppellantMatthew Cassells (instructed by the Nursing and Midwifery Council) for First RespondentGeorgina Goring (instructed by Irwin Mitchell LLP) for Second RespondentHearing Hearing date: 1 May 2025
Approved JudgmentThis judgment was handed down remotely at 10.30 am on 19 May 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................MRS JUSTICE LANG DBE
[1]The Appellant (“the Authority”) has referred, under section 29(4) of the National Health Service Reform and Health Care Professions Act 2002 (“the 2002 Act”), a decision of a panel (“the Panel”) of the Fitness to Practise Committee of the First Respondent (“the NMC”), made on 18 July 2024, to suspend the registration of the Second Respondent (“the Registrant”), for a period of 12 months with review.[2]At the material time, the Registrant was working as an agency bank nurse at a nursing home (“the Home”). The Panel found that the Registrant’s fitness to practise was impaired by reason of his misconduct, namely, acts of sexual harassment towards two of his colleagues. The Panel imposed a sanction of 12 months suspension with review.[3]The Authority applied, under section 29(4) of the 2002 Act, to quash the Panel’s decision on sanction on the overarching ground that, despite its findings at the factual, misconduct, and impairment stages, the Panel failed at the sanction stage to grapple properly with the seriousness of the Registrant’s sexually motivated misconduct, the evidence of deep-seated attitudinal issues, the lack of remorse or insight, and the risk of repetition. As a result, it failed to arrive at a sanction which was sufficient to protect the public, maintain public confidence in the profession and maintain proper professional standards and conduct for members of the profession.[4]The NMC supported the Authority’s referral and made no separate submissions at the hearing.[5]The Registrant resisted the Authority’s referral and submitted that the suspension order was and remains sufficient for the protection of the public within the meaning of section 29(4A) of the 2002 Act, in that it is sufficient to to protect the health safety and well-being of the public, maintain public confidence in the profession and maintain proper professional standards and conduct for members of the profession.

Charge and findings of fact

[6]The charge against the Registrant was as follows:
“That you, a Registered Nurse: 1.Between 8 March 2019 and 29 July 2020, acted towards Colleague A and/or B in a way that was: a. Harassing in that you engaged in unwanted conduct, including physical touching, related to a protected characteristic, namely sex, and the conduct had the purpose or effect of violating Colleague A and/or B’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for Colleagues A and or B. b. Sexually motivated in that you hoped that by breaking down sexual and/or physical barriers between yourself and Colleague A and/or B your chances of having a sexual relationship with one or both of them would increase. AND, in light of the above, your fitness to practise is impaired by reason of your misconduct.”
[7]The Panel and the parties referred to Colleague A as Witness 1, and Colleague B as Witness 2. Witness 1 was a nurse who had recently begun work at the Home in June 2020. Witness 2 was a Healthcare Assistant who was junior to the Registrant in the workplace setting.[8]It was common ground that the starting date of 8 March 2019, set out in the charge, was an error by the NMC, as the Registrant only began work at the nursing home on 1 April 2020. It was clear at the Panel hearing that the allegations related to incidents which took place between April and July 2020.[9]The Registrant denied the allegations, claiming these incidents never took place. However, the Panel rejected his evidence and found all the allegations proved. The Panel found that the Registrant’s behaviour was sexually motivated, and that he had committed the acts summarised below: i) Engaged in unwanted conduct which was harassing: a) towards Witness 1, on one occasion, during the night shift of 25/26 July 2020, when there were few staff present; b) towards Witness 2, on three separate night shifts between April and July 2020, when there were few staff present. (At times the Panel mistakenly referred to five shifts). ii) Engaged in unwanted sexual conversations and questioning with both Witnesses. iii) Made unwanted sexually motivated advances towards both Witnesses, and persisted in those advances even after the Witnesses clearly rejected them. iv) Asked Witness 1 if he could hold her hand and cuddle her, and stood very close to her when taking a “selfie” photograph. v) Became angry with Witness 1 when she rejected him, making her feel frightened and sick. vi) Asked Witness 2 for a cuddle, and when she refused, he forced himself upon her, and pulled back her face mask (worn during the COVID pandemic), and asked to kiss her. vii) In another incident, he cuddled Witness 2 from behind, and when she turned around to tell him to get off her, he did not let go and instead attempted to kiss Witness 2 through her face mask. viii) Became angry with Witness 2 when she rejected him, causing her to feel scared of him. ix) Engaged in deliberate, calculated and manipulative ‘gaslighting’ behaviour towards Witness 1 and Witness 2, suggesting that they were in the wrong.[10]When Witness 1 met with the Home Manager on 29 July 2020, she appeared distressed and shaking. The Home Manager accepted that both Witnesses appeared genuinely fearful and scared of working with the Registrant.[11]The Panel accepted Witness 2’s evidence that this was a traumatic experience that had a long lasting impact upon her, particularly because she had previously experienced a sexual assault by a resident at the Home, as the Registrant knew.[12]The Home Manager suspended the Registrant on 29 July 2020, and his contract with the Home was terminated in August 2020.

Misconduct

[13]The Panel identified ten breaches of the NMC’s Code of Conduct. Applying the NMC guidance ‘FTP-3 - How we determine seriousness’, the Panel considered that sexual misconduct is particularly serious misconduct, as is harassment and misconduct involving predatory behaviour.[14]The Panel considered that the Registrant abused a position of trust in that Witness 2 was a junior colleague under his supervision. She should have been able to trust him and for him to be a role model for her. Instead, she was frightened of the Registrant and felt humiliated by him. He persistently harassed her, despite knowing of her previous experience of sexual assault at the Home, which compounded the serious nature of the concern.[15]In regard to Witness 1, the Panel found that, although the harassment occurred on a single shift, the Registrant’s behaviour was “persistent and repeated” during the course of the shift. It was “unwanted and predatory in nature” and it illustrated a similar pattern of behaviour. The lack of physical contact did not minimise the seriousness of his behaviour or the severity of its impact on Witness 1.[16]The Panel considered that the Registrant’s behaviour was manipulative in that he displayed anger towards Witnesses 1 and 2 when they rejected his advances, and made them feel humiliated and at fault.[17]The Panel concluded the Registrant’s actions fell seriously short of the conduct and standards expected of a nurse and amounted to misconduct, such that fellow practitioners and the general public would find his conduct deplorable.

Impairment

[18]The Panel directed itself in accordance with the guidance of Cox J. in Council for Healthcare Regulatory Excellence v NMC & Grant [2011] EWHC 927 (Admin), at [74] and [76], citing the tests of impairment in the Report of the Shipman Inquiry by Dame Janet Smith. The Panel found that the tests of impairment were engaged in this case. The Registrant had in the past acted, and/or was liable in the future to act, so as to(a) put patients at unwarranted risk of harm;(b) bring the nursing profession into disrepute; and(c) breach one of the fundamental tenets of the nursing profession.[19]The Panel determined that:
“the public quite reasonably expects healthcare professionals to provide care without engaging in intimidating, degrading, humiliating or any form of harassing behaviour. This expectation extends to professional relationships with colleagues, and is especially problematic in cases involving allegations of sexual harassment or sexually motivated behaviour at work and which will often involve the commission of a criminal offence. The presence of such conduct creates an unhealthy, unfair and unsafe work environment. This may prevent nurses providing safe delivery of care to patients and will undermine public confidence and trust in the nursing profession.”
[20]The Panel considered the risk to patients again, in its conclusions, stating:
“Although there is no evidence of a direct risk of harm to patients, the nature of the misconduct has been shown to create an unsafe work environment, which indirectly could cause harm by preventing nurses working effectively and safely.”
[21]The Panel found that there was a risk of repetition for two main reasons. First, the fact that the Registrant repeatedly displayed his sexually motivated behaviour, on several occasions, towards two colleagues, over a two to three month period. Second, the absence of “meaningful insight, remorse or remediation” on the part of the Registrant.[22]The Panel took into account the Registrant’s engagement with the regulatory investigation and the positive testimonials reflecting his ability to practise professionally over the past four years. However, the Panel concluded that:
“Taking account of the nature of the misconduct and the circumstances in which it occurred, the panel was unable to satisfy itself you have continued to practise for approximately four years since the incidents without any further complaints was sufficient to allay its’ concerns regarding the risk of repetition.”
[23]Applying the NMC ‘Guidance on Impairment’, the Panel “found insufficient evidence demonstrating that you have addressed the concerns, expressed remorse, or shown meaningful insight into your behaviour”. The Panel had particular regard to the Registrant’s reflection document and his account of the professional boundaries course that he attended. The Panel bore in mind the difficulty in demonstrating insight whilst denying the allegations and made allowance for that, but it found “little evidence of meaningful reflection on the seriousness of the actions alleged” and “their potential impact on others”.[24]The Panel concluded, having regard to the statutory overarching objectives of the NMC, that the Registrant’s fitness to practise was currently impaired on the grounds of public protection and also in the wider public interest.

Sanction

[25]The Panel identified aggravating and mitigating features which I consider in detail under Ground 1 below.[26]The Panel rejected the option of conditional registration, as there were no workable conditions that could be formulated given the nature of the concerns. Aspects of the misconduct could be addressed through enhanced training, but in the absence of sufficient insight, enhanced training alone would fail to provide adequate protection against risk, in light of the Panel’s concerns regarding underlying attitudinal issues. The Panel referred to its findings that the Registrant’s behaviour was predatory, harassing, degrading, violating dignity, and creating a hostile work environment, in which what should have been a collaborative work environment became unhealthy and unsafe due to the Registrant’s conduct. The Panel was of the view that these issues could not be adequately addressed with conditions that might, for example, rely on training, especially as the Registrant had yet to demonstrate any evidence of “genuine remorse or meaningful insight”.[27]The Panel concluded that a suspension order was appropriate and proportionate for the following reasons:
“The panel did not consider that your misconduct could be regarded as a single incident. It acknowledged, however, that the relevant events of misconduct were committed over a period of weeks within the context of many years unrestricted practice. The panel determined that the persistent nature of your behaviour and your responses to colleagues when challenged indicate attitudinal concerns, such as those described above. However, in all the circumstances, the panel was of the view that, with genuine commitment and serious application, meaningful insight and much deeper reflection, these concerns could potentially be remediable and lead you to practice safely, kindly and professionally. The conduct, as highlighted by the facts found proved, was a significant departure from the standards expected of a registered nurse. The panel found ten breaches of the Code, which taken together meant that your behaviour fell significantly short of the standard expected of a registered nurse, many of which are related to professionalism and trust, and in upholding the reputation of the profession. The panel was therefore concerned that your actions were a serious breach of the fundamental tenets of the profession and as such might raise questions as to whether your actions are fundamentally incompatible with you remaining on the NMC register. The panel balanced this, however, with the evidence that during the past four years since these concerns were raised, you have practised unrestricted without further concern during which time you have demonstrated that you are capable of safe practice. Furthermore, the panel having found that your misconduct is capable of remediation, concluded that a striking-off order would, in all the circumstances, be disproportionate. Accordingly, the panel determined to impose a suspension order.”

Application to adduce further evidence

[28]At the hearing, Ms Goring on behalf of the Registrant applied for permission to adduce further evidence that was not before the Panel. The Authority resisted the application.[29]The further evidence comprises a witness statement from the Registrant, dated 14 March 2025, in which he admits that his actions constituted sexual harassment, in a complete reversal of his stance before the Panel. It is described as a reflective statement and, on my reading it is intended to boost his case by providing evidence of remorse and insight which the Panel found was lacking at the hearing in July 2024. The further evidence also includes favourable testimonials by colleagues from his current employment as a senior carer and team leader which post-date the hearing. He has also supplied certificates for the continuing professional development courses he has attended in nursing skills, and equality, diversity and inclusion.[30]Ms Goring submitted that since the hearing the Registrant’s reflection and insight have developed significantly and in fairness to him, the Court ought to consider this updating evidence. She submitted that the criteria for the admission of fresh evidence on appeal, in Ladd v Marshall [1954] 1 WLR 1489, were met.[31]I accepted Mr Standing’s submission, on behalf of the Authority, that this further evidence ought not to be admitted on appeal.[32]This Court is conducting an appeal to determine whether the Panel’s decision, on 18 July 2024, to impose a suspension order, on the evidence before it, was wrong. Generally, updating material is only considered at an NMC review hearing, or if a case is remitted for re-hearing by a new panel, following a successful appeal.[33]Mr Standing helpfully referred me to the authorities set out below. In General Medical Council v Adeogba [2016] EWCA Civ 162, at [24] – [31], which was an appeal under section 40 of the Medical Act 1983, Sir Brian Leveson P made it clear that the principles in Ladd v Marshall [1954] 1 WLR 1489 remain relevant. Those principles are: i) It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial. ii) The evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive. iii) The evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, although it need not be incontrovertible.[34]In Threlfall v General Optical Council [2004] EWHC 2683 (Admin) a registrant, on appeal, sought to submit a further witness statement detailing her account of the events giving rise to the disciplinary proceedings. There, Stanley Burnton J., when refusing to admit that evidence, held:
“The witness statement in the present case is not new evidence in the sense of evidence that was unavailable to Mrs Threlfall at the date of the hearing before the Committee. It is her evidence in a new form. To accept a witness statement in place of or in addition to her oral evidence before the lower court would allow a witness to improve her evidence as compared with that before the lower court. In addition, Mrs Threlfall's witness statement would not be the subject of cross-examination, whereas the evidence before the Committee was so subject. Moreover, the appeal court is not in a position to assess the reliability and credibility of that evidence of the appellant in comparison with that given by Patient A, since it has not heard and would not hear either of them give evidence orally.”
[35]In Ansari v General Pharmaceutical Council [2012] EWHC 1563 (Admin), Sales J. noted (at [9] – [10]), when refusing permission to rely on an additional character reference, in support of a submission that insight had developed, since the first instance hearing, that:
“evidence of changed circumstances since the date of the original decision should only be sparingly admitted” and that the opinion of the reference writer “cannot be taken to override the Practice Committee’s assessment and does not show that the Committee’s assessment was wrong.”
[36]I agree with Mr Standing’s submission that the first limb in Ladd v Marshall is not met. At the Panel hearing, it was open to the Registrant to make a statement in the terms of his March 2025 statement. However, he chose not to do so. He has now drafted a substantially revised statement in an attempt to improve his prospects of success in the appeal, which is a course that the Court in Threlfall treated as impermissible. The Registrant had already taken the opportunity to supply testimonials to the Panel, which they considered, and he gave evidence of the courses attended, as at that date. He is now merely seeking to update that material.[37]Turning to the second limb in Ladd v Marshall, the new witness statement, if admitted in evidence, would probably have an important influence on the result of the case, as it represents such a significant change. However, neither the testimonials from colleagues or the certificates of courses taken are likely to have an important influence on the result of the case, as they are of limited probative value to the issues. As the Court observed in Ansari, the opinion of the reference writer “cannot be taken to override the Practice Committee’s assessment and does not show that the Committee’s assessment was wrong”.[38]In my view, the third limb in Ladd v Marshall is not met as this Court is not in a position to test the credibility of the Registrant’s significant change of stance in his witness statement, nor to weigh it against the evidence presented to the Panel. As the Court observed in Threlfall, “the witness statement would not be the subject of cross-examination, whereas the evidence before the Panel was so subject”, and this Court would not have the benefit of assessing the Registrant’s credibility from hearing his oral evidence, as the Panel did.[39]For these reasons, the application to rely on this further evidence is refused. Legal and policy framework

The Nursing and Midwifery Order 2001

[40]The functions of the NMC and its committees are governed by the Nursing and Midwifery Order 2001 (“the NMC Order 2001”).[41]Articles 3(4) – 3(4A) of the NMC Order 2001 provide that:
“(4) The over-arching objective of the Council in exercising its functions under this Act is the protection of the public. (4A) The pursuit by the Council of their over-arching objective involves the pursuit of the following objectives— (a) to protect, promote and maintain the health, safety and well-being of the public; (b) to promote and maintain public confidence in the professions regulated under this Order; and (c) to promote and maintain proper professional standards and conduct for members of those professions.”
[42]Article 22(1)(a)(i) of the NMC Order 2001 provides that a registrant’s fitness to practise may be impaired by reason of misconduct. Article 29(5) empowers the Fitness to Practise Committee, where it considers an allegation to be well- founded, to impose sanctions, including to suspend a registrant’s registration or strike them off the register. NMC Guidance[43]The NMC’s guidance on the required professional standards is contained in ‘The Code’. The Panel found that the Registrant breached the following standards in the Code:
“Treat people as individuals and uphold their dignity To achieve this, you must: 1.1 treat people with kindness, respect and compassion Work cooperatively To achieve this, you must: 8.2 maintain effective communication with colleagues 8.5 work with colleagues to preserve the safety of those receiving care 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 20.2 act with honesty and integrity at all times, treating people fairly and without discrimination, bullying or harassment 20.3 be aware at all times of how your behaviour can affect and influence the behaviour of other people 20.4 keep to the laws of the country in which you are practising 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.”
To achieve this, you must: Work cooperatively To achieve this, you must: Uphold the reputation of your profession at all times

To achieve this, you must:

[44]The NMC’s Sanctions Guidance is contained in a number of parts.[45]SAN-1 provides as follows:
“Factors to consider before deciding on sanctions … Proportionality Being proportionate means finding a fair balance between the nurse or midwife’s rights and our overarching objective of public protection. We need to choose a sanction that doesn’t go further than we need to meet this objective. This reflects the idea of right-touch regulation, where the right amount of “regulatory force” is applied to deal with the target risk, but no more. … To be proportionate, and not go further than it needs to, the Committee should think about what action it needs to take to tackle the reasons why the nurse or midwife is not currently fit to practise. They should consider whether the sanction with the least impact on the nurse or midwife’s practice would be enough to achieve public protection, looking at the reasons why the nurse or midwife isn’t currently fit to practise and any aggravating or mitigating features. If this sanction isn’t enough to achieve public protection, they should consider the next most serious sanction. When the Committee finds the sanction that is enough to achieve public protection, then it has gone far enough. They need to explain why the following most serious sanction is not necessary as it would be going further than is needed to achieve public protection - simply saying that it would be disproportionate isn’t enough. Aggravating features Aggravating features are aspects of the case that make it more serious. They might mean that the Fitness to Practise Committee needs to order a sanction that has a greater impact on the [registrant’s] practice. Some potentially aggravating features are: Any previous regulatory or disciplinary findings abuse of a position of trust lack of insight into failings a pattern of misconduct over a period of time conduct which put patients at risk of suffering harm. … Mitigating features Mitigating features are aspects of the case that show it is less serious. Mitigating features may mean the future risk to the public is reduced and a sanction which has less impact on the [registrant] is appropriate to manage that risk. The Fitness to Practise Committee will always look carefully at any evidence about mitigation, including references and testimonials, when they are deciding which sanction, if any, to impose.”
Mitigation can be considered in three categories. Evidence of a nurse or midwife’s insight and understanding of the problem, and their attempts to address it. This may include early admission of facts, apologies to anyone affected, any efforts to prevent similar things happening again, or any efforts to put problems right. Evidence that the nurse or midwife has followed the principles of good practice. This may include them showing they have kept up to date with their area of practice. Personal mitigation, such as periods of stress or illness, personal and financial hardship, level of experience at the time in question and the level of support in the workplace. In regulatory proceedings, where the purpose of sanctions is to protect the public and not to punish nurses and midwives, personal mitigation is usually less relevant than it would be to punishing offenders in the criminal justice system. In some cases, sanctions might have an effect that could be described as being punitive, but this is not their purpose. ….. Previous fitness to practise history The nurse, midwife or nursing associate’s fitness to practise history with us can be relevant to a decision on sanction. It’s most likely to be useful in cases about similar kinds of concerns. If problems seem to be repeating themselves, this may mean that previous orders were not effective to help the nurse, midwife or nursing associate address them. If the panel is considering making a similar order to those made by previous panels, it may need to take this factor into account and reconsider if necessary. The fact that a nurse, midwife or nursing associate doesn't have a past fitness to practise history in general may have some relevance when considering the decision on sanction, depending on the types of charges that have been found proved. For example, suppose the allegations relate to clinical failings and are shown to be one-off failings during a long career. In this case, this could be a relevant consideration for a panel when considering sanction alongside any evidence of insight, reflection and strengthened practice. If the allegations relate to deep-seated attitudinal concerns, such as displaying discriminatory views and behaviours that the nurse, midwife or nursing associate hasn’t fully addressed, the absence of a fitness to practise history is unlikely to be relevant to a panel when considering sanction. Unlike a criminal court, the panel is not punishing the nurse, midwife or nursing associate. Its role is to decide which sanction is needed to achieve public protection. This includes protecting people receiving care, maintaining public trust and confidence and upholding the standards we expect of nurses, midwives and nursing associates. Sometimes, the nurse, midwife or nursing associate's conduct may be so serious that it is fundamentally incompatible with continuing to be a registered professional. If this is the case, the fact that the nurse, midwife or nursing associate does not have any fitness to practise history cannot change the fact that what they have done cannot sit with them remaining on our register. For these reasons, panels should bear in mind there will usually be only limited circumstances where the concept of a 'previously unblemished career' will be a relevant consideration when they are deciding which sanction is needed, or in giving their reasons.” Proportionality Aggravating features Some potentially aggravating features are: Any previous regulatory or disciplinary findings abuse of a position of trust lack of insight into failings a pattern of misconduct over a period of time Mitigating features

Previous fitness to practise history

[46]SAN-2 gives guidance on determining seriousness. It provides as follows:
“Considering sanctions for serious cases How we determine seriousness Our guidance on seriousness explains that there are certain concerns that are more difficult to put right and often mean that the nurse, midwife or nursing associate’s right to practise needs to be restricted. Sometimes we may need to take regulatory action against a nurse, midwife or nursing associate to promote and maintain professional standards and the public's trust and confidence in the professions we regulate. A conviction for a serious crime or concerns that someone has displayed discriminatory views and behaviours, been involved in dishonest or violent behaviour, engaged in sexual misconduct or abused a child or vulnerable adult, for example, could have a particularly negative impact on public confidence. The guidance below covers the considerations a panel should make when considering these types of cases and deciding which sanction, if any, to impose. …… Cases involving sexual misconduct Sexual misconduct is unwelcome behaviour of a sexual nature, or behaviour that can reasonably be interpreted as sexual, which degrades, harms, humiliates or intimidates another. …… Sexual misconduct is likely to create a risk to people receiving care and to colleagues as well as undermining public trust and confidence in the professions we regulate. A panel should always consider factors such as the duration of the conduct in question, the professional’s relationship or position in relation to those involved and the vulnerabilities of anyone subject to the alleged conduct. Long-term or repeated conduct is more likely to suggest risk of harm, together with conduct involving imbalances of power, cruelty, exploitation and predatory behaviour. ….. Panels deciding on sanction in cases about sexual misconduct will, as in all cases, need to start their decision-making with the least severe sanction, and work upwards until they find the appropriate outcome. However, as these behaviours can have a particularly severe impact on public confidence, a professional’s ability to uphold the standards and values set out in the Code, and the safety of people receiving care, any nurse, midwife or nursing associate who is found to have behaved in this way will be at risk of being removed from the register. If the panel decides to impose a less severe sanction, they will need to make sure they explain the reasons for their decision clearly and carefully. This will allow people who have not heard all of the evidence in the case, which may include those directly affected by the sexual misconduct in question, to properly understand the decision.”
How we determine seriousness

Cases involving sexual misconduct

[47]SAN-3d gives the following guidance on suspension orders:
“Suspension order This order suspends the nurse, midwife or nursing associate’s registration for a period of up to one year and may be appropriate in cases where the misconduct isn’t fundamentally incompatible with the nurse, midwife or nursing associate continuing to be a registered professional, and our overarching objective may be satisfied by a less severe outcome than permanent removal from the register. A suspension order is usually reviewed before it expires. The nurse, midwife or nursing associate may not practise as a registered nurse, midwife or nursing associate during the period the order is in force. Key things to weigh up before imposing this order include: - whether the seriousness of the case require temporary removal from the register? - will a period of suspension be sufficient to protect patients, public confidence in nurses, midwives or nursing associates, or professional standards? Use the checklist below as a guide to help decide whether it’s appropriate or not. This list is not exhaustive: - a single instance of misconduct but where a lesser sanction is not sufficient - no evidence of harmful deep-seated personality or attitudinal problems - no evidence of repetition of behaviour since the incident - the Committee is satisfied that the nurse, midwife or nursing associate has insight and does not pose a significant risk of repeating behaviour - in cases where the only issue relates to the nurse, midwife or nursing associate’s health, there is a risk to patient safety if they were allowed to continue to practise even with conditions in cases where the only issue relates to the nurse, midwife or nursing associate’s lack of competence, thereis a risk to patient safety if they were allowed to continue to practise even with conditions ….”

Key things to weigh up before imposing this order include:

[48]SAN-3e gives the following guidance on striking-off orders:
“Striking-off order A striking-off order is the most serious sanction. It results in removing the nurse, midwife or nursing associate’s name from the register, which prevents them from working as a registered nurse, midwife or nursing associate. This sanction is likely to be appropriate when what the nurse, midwife or nursing associate has done is fundamentally incompatible with being a registered professional. Before imposing this sanction, key considerations the panel will take into account include: - Do the regulatory concerns about the nurse, midwife or nursing associate raise fundamental questions about their professionalism? - Can public confidence in nurses, midwives and nursing associates 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? The panel should refer to our guidance on seriousness, which highlights a number of factors indicating which kinds of concern it may not be possible for the nurse, midwife or nursing associate to address or put right, and which will most seriously affect the public's trust and confidence in registered nurses, midwives or nursing associates. ….”
The role of the Authority[49]The Authority is a body corporate established pursuant to section 25(1) of the 2002 Act. By section 25 of the 2002 Act, the general functions of the Authority are inter alia to promote the interests of users of health care in relation to the performance by medical regulatory bodies of their functions, and to promote best practice in the performance of those functions. The over-arching object of the Authority in exercising its functions is the protection of the public: see Council for the Regulation of Health Care Professionals v GMC & Ruscillo and Council for the Regulation of Health Care Professionals v NMC & Truscott [2004] EWCA Civ 1356, per Lord Phillips MR, at [60].[50]The grounds for a referral are set out in section 29(4) and (4A) of the 2002 Act, which provide as follows:
“(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.”
[51]By section 29(7) of the 2002 Act, where a case is referred to the High Court, it is to be treated as an appeal. The approach of the High Court[52]Under section 29(8) of the 2002 Act, the Court may: i) dismiss the appeal, ii) allow the appeal and quash the relevant decision, iii) substitute for the relevant decision any other decision which could have been made by the committee or other person concerned, or iv) remit the case to the committee or other person concerned to dispose of the case in accordance with the directions of the court, v) may make such order as to costs as it thinks fit.[53]Applying CPR 52.21(3), an appeal under section 29 should be allowed if the relevant decision was “wrong” or “unjust because of a serious procedural or other irregularity in the lower court”.[54]Unlike an appeal by a registrant, an appeal by the Authority is by way of review, not re-hearing: see Bawa-Garba v General Medical Council [2018] EWCA Civ 1879, per the Lord Chief Justice at [60]; Sastry v General Medical Council [2021] EWCA Civ 623, per Nicola Davies LJ at [108]. In Bawa-Garba, the Lord Chief Justice held:
“60. ….Whether the appeal from the MPT is pursuant to section 40 or section 40A, the task of the High Court is to determine whether the decision of the MPT is “wrong”
. In either case, the appeal court should, as a matter of practice, accord to the MPT the same respect: Meadow v General Medical Council [2006] EWCA Civ 1390, [2007] QB 462 at [126]-[128]. 61. The decision of the Tribunal that suspension rather than erasure was an appropriate sanction for the failings of Dr Bawa-Garba, which led to her conviction for gross negligence manslaughter, was an evaluative decision based on many factors, a type of decision sometimes referred to as “a multi-factorial decision”. This type of decision, a mixture of fact and law, has been described as “a kind of jury question” about which reasonable people may reasonably disagree: Biogen Inc v Medeva Plc [1997] RPC 1 at 45; Pharmacia Corp v Merck & Co Inc [2001] EWCA Civ 1610, [2002] RPC 41 at [153]; Todd v Adams (t/a Trelawney Fishing Co) (The Maragetha Maria) [2002] EWCA Civ 509, [2002] 2 Lloyd’s Rep 293 at [129]; Datec Electronics Holdings Ltd v United Parcels Service Ltd [2007] UKHL 23, [2007] 1 WLR 1325 at [46]. It has been repeatedly stated in cases at the highest level that there is limited scope for an appellate court to overturn such a decision…. …… 67. That general caution applies with particular force in the case of a specialist adjudicative body, such as the tribunal in the present case, which (depending on the matter in issue) usually has greater experience in the field in which it operates than the courts: see Smech at [30]; Khan v General Pharmaceutical Council [2016] UKSC 64, [2017] 1 WLR 169 at [36]; Meadow at [197]; and Raschid v General Medical Council [2007] EWCA Civ 46, [2007] 1 WLR 1460 at [18]-[20]. An appeal court should only interfere with such an evaluative 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: Biogen at [45]; Todd at [129]; Designers Guild Ltd v Russell Williams (Textiles) Ltd (trading as Washington DC) [2001] FSR 11 (HL) at [29]; Buchanan v Alba Diagnostics Ltd [2004] UKHL 5, [2004] RPC 34 at [31]. As the authorities show, the addition of ‘plainly’ or ‘clearly’ to the word ‘wrong’ adds nothing in this context.”[55]In General Medical Council v Jagjivan & Another [2017] EWHC 1247 (Admin); [2017] 1 WLR 4438, which pre-dated the judgment in Bawa-Garba, Sharp LJ summarised the principles to be applied to appeals by the General Medical Council, under section 40A Medical Act 1983, at [40], including as follows:
“….. (v) In regulatory proceedings, the appellate court will not have the professional expertise of the tribunal of fact. As a consequence, the appellate court will approach tribunal determinations about whether conduct is serious misconduct or impairs a person's fitness to practise and what is necessary to maintain public confidence and proper standards in the profession and sanctions with diffidence: see Fatnani at paragraph 16 and Khan v General Pharmaceutical Council [2016] UKSC 64; [2017] 1 WLR 169, at paragraph 36. (vi) However, there may be matters, such as dishonesty or sexual misconduct, where the court ‘is likely to feel that it can assess what is needed to protect the public or maintain the reputation of the profession more easily for itself and thus attach less weight to the expertise of the tribunal ...’: see Council for the Regulation of Healthcare Professionals v GMC and Southall [2005] EWHC 579 (Admin); [2005] Lloyd's Rep Med 365 at paragraph 11, and Khan at paragraph 36(c). As Lord Millett observed in Ghosh v GMC [2001] UKPC 29; [2001] 1 WLR 1915 and 1923G, the appellate court ‘will afford an appropriate measure of respect of the judgment in the committee ... but the [appellate court] will not defer to the committee's judgment more than is warranted by the circumstances’. (vii) Matters of mitigation are likely to be of considerably less significance in regulatory proceedings than to a court imposing retributive justice because the overarching concern of the professional regulator is the protection of the public. (viii) A failure to provide adequate reasons may constitute a serious procedural irregularity which renders the tribunal's decision unjust (see Southall at paragraphs 55 to 56).”
[56]The principal purpose of sanctions in disciplinary proceedings is not punishment of the practitioner, but rather maintaining the standards and reputation of the profession as a whole and maintaining public confidence in the integrity of the profession. For this reason, matters of personal mitigation, such as testimonials from fellow professional and remorse and reform, are of less weight. It is a well-established principle that the reputation of the profession is more important than the fortunes of an individual practitioner see Bolton v Law Society [1994] 1 WLR 512 by Sir Thomas Bingham MR, at 518A-519E. In Salsbury v Law Society [2008] EWCA Civ 1285, the Court of Appeal confirmed that, following the enactment of the Human Rights Act 1998, the Convention rights of the practitioner under Articles 6 and 8 ECHR should also be taken into account, in applying the Bolton principles. In particular, the principle of proportionality must be applied when imposing sanctions.[57]The parties referred me to a summary of the approach to be taken to a “rejected defence” and lack of insight in Professional Standards Authority for Health and Social Care v Nursing and Midwifery Council and Jalloh [2023] EWHC 3331 (Admin), per Morris J. at [24]:
“(1) Insight is concerned with future risk of repetition. To this extent, it is to be distinguished from remorse for the past conduct. (2) Denial of misconduct is not a reason to increase sanction. (3) It is wrong to equate maintenance of innocence with lack of insight. Denial of misconduct is not an absolute bar to a finding of insight. Admitting misconduct is not a condition precedent to establishing that the registrant understands the gravity of the offending and is unlikely to repeat it. (4) However attitude to the underlying allegation is properly to be taken into account when weighing up insight. Where the registrant continues to deny impropriety, that makes it more difficult for him to demonstrate insight. The underlying importance of insight and its relationship with denial of misconduct was usefully analysed by Andrew Baker J in Khetyar (at §49) as follows: "Of course, no sanction was to be imposed on him for his denials as such; however, insight requires that motivations and triggers be identified and understood, and if that is possible at all without there first being an acceptance that what happened did happen it will be very rare, and any assessment of ongoing risk must play close attention to the doctor's current understanding of and attitude towards what he has done." ….. (5) The assessment of the extent of insight is a matter for the tribunal, weighing all the evidence and having heard the registrant. The Court should be slow to interfere.”
Grounds of appeal Ground 1 58. Submissions by the parties

Ground 1

[58]Under Ground 1, the Authority submitted that the Panel erred in its assessment of the features relevant to sanction by failing to recognise all relevant aggravating features that made the conduct particularly serious, wrongly identifying the lack of a fitness to practise history as a mitigating feature, and giving undue weight to the lack of further misconduct since the index offence.[59]The Registrant submitted that the Panel took the correct approach in recognising the relevant aggravating and mitigating features. Identifying those features and according appropriate weight to them, was a matter for the Panel to determine, subject only to review by the Court. Furthermore, the fact that a feature had been identified by the Panel in an earlier stage of the proceedings did not mean that it had to be included as an aggravating feature.[60]In oral submissions, the Registrant submitted that any features which fell within the wording of the charge, such as “physical touching”, and “unwanted conduct”, and a degree of persistence which was inherent in a charge of “harassment”, ought not to be treated as aggravating features because they amounted to double counting. Conclusions[61]The Panel identified six aggravating factors, namely:
“• Your misconduct undermined the core values and principles of the nursing profession. • The absence of reflection (notwithstanding your continued denial of the allegations), any genuine remorse for how your actions might have impacted on others, indicates a significant lack of meaningful insight. • As a senior nurse at the Home, you were in a position of leadership, are expected to be a role model, and in this respect you failed to facilitate a professional, safe and collaborative working environment. • Your misconduct was repeated over the course of one shift with one witness and over approximately five shifts for another. • Despite undertaking a Professional Boundaries course, you failed to sufficiently demonstrate how your proven conduct (which you continue to deny) has impacted on others. • You still have underlining attitudinal issues that need addressing, in particular that part of your behaviour that is manipulative. This attitude reflects a concerning mindset towards women.”
[62]The Authority submitted that the Panel failed to identify the following additional aggravating factors: i) The conduct involved deliberate and predatory targeting of lone female colleagues, during night shifts, when they were isolated from other staff members, there was no one to shout out to for help, and they were less likely to be discovered. ii) The Registrant persisted with the conduct after each colleague made it expressly clear that the conduct was not wanted. iii) The attempts by the Registrant to force himself onto Witness 2, by cuddling her, and placing his lips on her face mask, as if to kiss her, would each, if proved to the criminal standard, have constituted a criminal offence of assault, including sexual assault contrary to section 3 of the Sexual Offences Act 2003. iv) Witness 2 was vulnerable, by virtue of the fact that she had previously been sexually assaulted, a fact which she had made known to the Registrant. v) Emotional harm was caused to both witnesses, and each considered the Registrant’s behaviour serious enough to report to the police. vi) The Panel failed to expressly identify that the Registrant’s conduct had placed patients at risk of harm.[63]I accept the Authority’s submission that the Panel was required to consider aggravating features at the sanction stage, in accordance with the Sanctions Guidance. A panel does not discharge its functions lawfully if it overlooks an aggravating feature at the sanction stage, even if it did take that feature into account when determining the different questions of misconduct or impairment.[64]In my judgment, Ms Goring adopted an unduly narrow meaning of an aggravating feature, by excluding any feature which was expressly or impliedly covered by the wording of the charge, as it would amount to double counting. In the NMC Sanctions Guidance, aggravating features are described as “aspects of the case that make it more serious”. Identifying the seriousness of the conduct is a prerequisite to the assessment of a proportionate sanction which meets the overarching objectives. In criminal cases, sentencing guidelines set out the standard penalty for the offence, which reflects its integral features. Those integral features cannot also be treated as aggravating factors to justify an increase in the standard penalty, as that would amount to double counting. In disciplinary proceedings, the position is different. Guidance on sanctions is not as structured as sentencing guidelines in criminal cases and does not prescribe standard penalties for specific offences. However, in both criminal cases and disciplinary proceedings, aggravating features do typically include factors relating to conduct which indicate higher culpability (e.g. abuse of trust, gratuitous violence, and failure to heed warnings), and factors which indicate a more than usually serious degree of harm caused (e.g. vulnerable victims, serious physical or psychological impact). In my view, the further aggravating features identified by the Authority in this case do not amount to impermissible double counting. Harassment takes many different forms, and the seriousness of the conduct in any particular case needs to be accurately identified.[65]In this case, I consider that the Panel should have considered whether to treat as an aggravating feature the deliberate and predatory targeting of lone female colleagues, during night shifts, when they were isolated from other staff members, there was no one to shout out to for help, and they were less likely to be discovered. Both witnesses gave evidence that they were frightened of the Registrant and wanted to get away from him but were unable to do so. The Panel accepted the witnesses’ accounts. The Panel also described the Registrant’s behaviour as predatory. This behaviour was clearly relevant to the seriousness of the Registrant’s conduct.[66]I also consider that the Panel should have considered whether to treat as an aggravating feature the fact that the Registrant persisted with the conduct after each witness made it expressly clear at the time that the conduct was not wanted. The Panel accepted the witnesses’ account on this point. This behaviour was relevant to the seriousness of the Registrant’s conduct.[67]The Panel acknowledged, in the context of impairment, that sexual harassment will often involve the commission of a criminal offence. However, the Panel failed to consider whether the attempts by the Registrant to force himself onto Witness 2, by cuddling her, and placing his lips on her face mask, as if to kiss her, would, if proved to the criminal standard, have constituted a criminal offence of assault, including sexual assault contrary to section 3 of the Sexual Offences Act 2003. The Panel could have obtained advice on the elements of the criminal offence from their Legal Assessor. Ms Goring submitted that it was up to the NMC to present this allegation as equivalent to a criminal charge, but they failed to do so. I accept that this allegation may have been under-prosecuted by the NMC, but I do not consider that that is a reason for disregarding this feature when the statutory basis for the referral is that the decision was not sufficient for the protection of the public. Potential commission of a criminal offence under the Sexual Offences Act 2003 is a more serious matter than mere unwanted physical touching, and ought to have been considered by the Panel.[68]I consider that the Panel ought to have considered whether to treat as an aggravating feature the fact that Witness 2 had previously been sexually assaulted, a fact which she had made known to the Registrant. I do not accept Ms Goring’s submission that the Panel did not accept this part of the evidence. The NMC submitted at the misconduct and impairment stage that Witness 2 was vulnerable due to her previous experience of being sexually assaulted (Appeal Bundle page 362G). The Panel found at the misconduct stage as follows:
“The panel also heard evidence from Witness 2 who described this traumatic experience as having a long lasting impact on her. In your oral evidence, you stated how Witness 2 had spoken to you about her previous experience of a sexual assault at the Home. You went onto recall Witness 2 saying that she could not go into a particular room which had previously been used by the resident who committed this assault against her. Knowing this over a number of shifts you still chose to persistently harass her, touch her, and attempt to kiss her despite her repeated rebuttals. This makes the conduct even more serious. The panel found that knowing of Witness 2’s previous experience and ignoring it, compounded the serious nature of the concern.”
[69]Although the Panel did not adopt the term “vulnerable”, it accepted the relevant evidence which gave rise to vulnerability. The same submission in regard to Witness 2 was made at sanction stage (Appeal Bundle pages 418G-419A), and acknowledged by the Panel in the summary of submissions, but the Panel appears not to have considered whether it should be treated as an aggravating feature.[70]I consider that the Panel ought to have considered whether the emotional harm the Registrant caused to both witnesses was an aggravating factor. The Panel accepted, at the misconduct stage, that the Registrant’s conduct had a significant negative impact on Witness 1. It accepted her evidence that she felt frightened and sick. The Panel also accepted Witness 2’s evidence, summarised as a traumatic experience that had a long lasting impact upon her. I am unable to accept Ms Goring’s submission that the Panel did not need to consider it as a potential aggravating factor because the emotional harm caused was at the lower end of the scale. The degree of emotional harm ought to have been assessed by the Panel; on the evidence it was more than minimal. I note that both witnesses considered that it was of sufficient seriousness to report the matter to management and the police.[71]The Authority acknowledged that the Panel identified as an aggravating feature that the Registrant “failed to facilitate a professional, safe and collaborative working environment”, but it did not expressly identify that the Registrant’s conduct had placed patients at risk of harm, which is a factor specifically referred to in the Sanctions Guidance.[72]At impairment stage, the Panel found the Registrant’s fitness to practise was impaired. The Shipman Inquiry test (had the Registrant in the past acted and/or was he liable in the future to act so as to put patients at unwarranted risk?) was engaged (see paragraph 18 above). The Panel found that sexual harassment of colleagues created an unsafe work environment that may prevent nurses working effectively and safely (see paragraphs 19 and 20 above). Thus, although there was no evidence of a direct risk of harm to patients, harm could be caused indirectly. I observe that the factual account given by the witnesses suggests that neither the Registrant nor the witnesses were focussed on the care of patients during the night shifts in question, as they were distracted by the Registrant’s sexual overtures. Given the paramount importance of patient safety, I consider that the Panel should have considered whether to treat the indirect risk of harm to patients as an aggravating factor.[73]The Panel also took into account the following mitigating features:
“• There has been no repetition of the misconduct in the four years since the relevant events, during which time you have been in unrestricted practice. • Positive testimonials speak of you providing kind and compassionate care to patients in a variety of clinical settings. • You have not previously or since been referred to the NMC.”
[74]The Authority submitted that the fact that the Registrant had not previously been referred to the NMC ought not to have been relied upon as a mitigating factor, in the light of the Sanctions Guidance, in cases where there are found to be “deep-seated attitudinal concerns”:
“Previous fitness to practise history ….. The fact that a nurse, midwife or nursing associate doesn't have a past fitness to practise history in general may have some relevance when considering the decision on sanction, depending on the types of charges that have been found proved. For example, suppose the allegations relate to clinical failings and are shown to be one-off failings during a long career. In this case, this could be a relevant consideration for a panel when considering sanction alongside any evidence of insight, reflection and strengthened practice. If the allegations relate to deep-seated attitudinal concerns, such as displaying discriminatory views and behaviours that the nurse, midwife or nursing associate hasn’t fully addressed, the absence of a fitness to practise history is unlikely to be relevant to a panel when considering sanction. Unlike a criminal court, the panel is not punishing the nurse, midwife or nursing associate. Its role is to decide which sanction is needed to achieve public protection. This includes protecting people receiving care, maintaining public trust and confidence and upholding the standards we expect of nurses, midwives and nursing associates. Sometimes, the nurse, midwife or nursing associate's conduct may be so serious that it is fundamentally incompatible with continuing to be a registered professional. If this is the case, the fact that the nurse, midwife or nursing associate does not have any fitness to practise history cannot change the fact that what they have done cannot sit with them remaining on our register. For these reasons, panels should bear in mind there will usually be only limited circumstances where the concept of a 'previously unblemished career' will be a relevant consideration when they are deciding which sanction is needed, or in giving their reasons.”
(emphasis added)[75]I accept the Authority’s submission that, on the Panel’s findings, the Registrant’s misconduct was clearly linked to his harmful deep-seated attitudinal concerns which had not been addressed. I do not accept Ms Goring’s submission that the Authority’s submission was misconceived because the Sanctions Guidance on suspension refers to deep seated attitudinal “problems” whereas the Panel only expressed attitudinal “concerns” (Appeal Bundle page 50).[76]The term “concerns” is used in the relevant part of the Sanctions Guidance set out at paragraph 74 above. The Panel referred to “attitudinal concerns, such as those described above”. This was a cross-reference to the Panel’s earlier conclusions where the Panel stated:
“However, in the absence of sufficient insight, the panel is of the view that enhanced training alone would fail to provide adequate protection against identified risks with your practice in the future; especially in light of its concerns regarding underlying attitudinal issues.”
(emphasis added) “The panel has described your behaviour in different ways for example, as gaslighting, predatory, harassing, degrading, humiliating, and violating dignity, creating a hostile work environment. Colleagues were frightened of you ….” .[77]Furthermore, the Panel had expressly found attitudinal issues to be an aggravating factor:
“• You still have underlining attitudinal issues that need addressing, in particular that part of your behaviour that is manipulative. This attitude reflects a concerning mindset towards women.”
(emphasis added)[78]In my view, what is important is the Panel’s very negative assessment of the Registrant’s attitude towards women, not whether the Panel labelled it as a “concern”, an “issue” or “a problem”.[79]The fact that these concerns were still present at the time of the fitness to practise proceedings, some four years after the incidents had occurred, and after the Registrant had undertaken a professional boundaries course, combined with the lack of insight or remediation, means that these concerns were properly classified as deep-seated, within the meaning of the Sanctions Guidance.[80]Therefore, in my view, the Panel should have considered and applied these passages from the Sanctions Guidance. If they had done so, they would most likely not have treated the absence of a fitness to practise history prior to the index offence as a mitigating factor, or alternatively, given it little weight.[81]The Panel identified the lack of repetition of the misconduct in the four years since the incidents, when the Registrant had been working as a carer in a care home, as a mitigating factor. The Authority accepted that the Panel was entitled to treat this as a mitigating factor, but submitted that the Panel erred in giving it very significant weight when determining sanction.[82]The Authority referred to the guidance given by the Court of Appeal in Jagjivan at [40(vii)] that matters of mitigation are of less significance in regulatory proceedings than criminal proceedings because the overarching concern of the professional regulator is the protection of the public.[83]The Authority also relied upon Professional Standards Authority v NMC & Judge [2017] EWHC 817 (Admin), per Garnham J. at [41]-[42], in submitting that the Registrant’s good character since the incidents occurred, was in reality, simply the absence of an aggravating factor. Furthermore, as the Panel found that there was a real risk of repetition, this was not evidence that the risk had been alleviated; rather, that the risk had not yet manifested itself. It was not a mitigating feature that diminished the seriousness of the Registrant’s behaviour or his culpability.[84]For these reasons, I consider that the Panel’s decision was wrong because it erred in its assessment of the aggravating and mitigating features.

Grounds 2 and 3

[85]I have considered Grounds 2 and 3 together because of the overlap between them. The Authority’s submissions[86]Under Ground 2, the Authority submitted that the Panel failed to apply the Sanctions Guidance correctly. The factors listed as appropriate to suspension in the checklist were not engaged, save that there was no evidence of repetition of the behaviour since the incident. The Panel’s conclusion that “in all the circumstances” the concerns raised were remediable was inconsistent with the Panel’s earlier findings and unsupported by any evidence. The Panel failed to expressly refer to the factors listed as appropriate for striking off in the Sanctions Guidance. All the key considerations for a striking-off order were engaged and that was the only appropriate sanction which met the over-arching objective.[87]Under Ground 3, the Authority submitted that the Panel’s decision to impose a suspension rather than a striking-off order was a departure from the Sanctions Guidance which had to be justified in clear reasons. There was an insufficient explanation for the Panel’s conclusions. The Registrant’s submissions[88]Under Ground 2, the Registrant submitted that the Panel properly considered the factors which indicated that suspension was appropriate. First, although the Panel did not find that there was a single incident of misconduct, it acknowledged that the relevant incidents were committed over a period of weeks within the context of over 24 years unrestricted practice. Second, the Panel found that there were attitudinal “concerns”. The Registrant submitted that a finding of “attitudinal concerns” fell short of the factor identified in the Sanctions Guidance, namely “attitudinal problems”.[89]Ms Goring referred to the difficulty the Registrant faced in showing insight and remediation when he denied any misconduct. She relied upon the “rejected defence” principles set out in Jalloh and Sawati v General Medical Council [2022] EWHC 283 (Admin). In particular, denial of misconduct is not a reason to increase sanction and maintenance of innocence should not automatically result in a finding of failure of insight: it is of potential relevance but should be properly considered in context.[90]Ms Goring submitted, by reference to the transcript, that the Registrant demonstrated that he was aware of professional values, and that he kept up to date with national and local policies and the NMC Code of Conduct. There was evidence that he was capable of reflection on the allegations, but his remediation journey was at very early stages when he appeared before the Panel.[91]The Panel rightly took into account that there had been no repetition of the offending behaviour in the four years since the incidents. The Registrant submitted favourable testimonials in respect of his unrestricted practice over the four year period. It was a matter for the Panel to decide how much weight to apportion to each of the indicative factors.[92]The Panel’s decision to impose a 12 month suspension order was sufficient for the protection of the public within the meaning of section 29(4) and (4A) of the 2002 Act. The principle of proportionality was central to the proceedings, and the purpose of regulatory proceedings is to protect the public, not to punish the practitioner.[93]Under Ground 3, the Registrant submitted that the Panel’s reasoning as to why suspension was the appropriate sanction was adequate, and did not amount to a serious procedural irregularity.[94]Reasons why the Registrant’s misconduct was not fundamentally incompatible with continued registration, were(i) the incidents were committed over a period of weeks within the context of many years of practice; and(ii) there were some attitudinal concerns, but they were not deep-seated attitudinal problems. Case law on Sanctions Guidance[95]In General Medical Council v Khetyar [2018] EWHC 813 (Admin), Andrew Baker J. gave guidance on the application of the General Medical Council’s Sanctions Guidance, which is also relevant to the NMC Sanctions Guidance, as follows:
“20. In substance, therefore, an appeal by the GMC against a suspension, contending that instead erasure should have been the sanction, is an appeal challenging the Tribunal’s failure to conclude that on the material before it the doctor in question should not practise again. The Sanctions Guidance advises at paras.20, 21 and 67 that tribunals must consider sanctions from the bottom up; that is to say, starting with the least restrictive and working upwards if and as each possible sanction is successively concluded to be insufficient. Ms Horlick was correct, therefore, in my judgment, in her submission that if the Tribunal in this case properly concluded that suspension was sufficient, it rightly stopped there and imposed that sanction. At the same time, in my judgment, Ms Richards QC was correct in her submission that 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. 21. That is correct in principle, because by definition Guidance advice as to when erasure may be or is likely to be appropriate is advice as to where the line is to be drawn between the most serious misconduct because of which a doctor should not be allowed to practise again, and misconduct that falls short of that whilst still being very serious. As Ms Richards put it, such advice is an authoritative steer for tribunals as to what is required to protect the public, even if it does not in any particular case dictate the outcome. 22. As part of Guidance at the heart of which is the principle of proportionality (weighing the public interest against the individual interests of the particular doctor), such advice is an authoritative steer in particular as to the application of that principle. 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 it 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].”
[96]In General Medical Council v Stone [2017] EWHC 2534 (Admin), Jay J. held at [53]:
“… the MPT did refer in general terms to the Sanctions Guidance and stated that it was taken into account, but in my judgment there is no indication that the MPT grappled with the seriousness of this case, including the salient features I have itemised, in the context of sanction. Instead, there is merely a generalised assertion that erasure would be a disproportionate sanction and that the doctor's conduct was not incompatible with his continued registration. I agree with Ms Richards 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.”
Conclusions on Grounds 2 and 3[97]I agree with the Authority’s submission that the Panel in this case made a similar mistake as in Stone by making a generalised assertion that erasure would be a disproportionate sanction but failed to grapple with the evidence and findings in this case, and apply the Sanctions Guidance properly.[98]The Sanctions Guidance sets out factors to indicate where a suspension order is likely to be appropriate: i) a single instance of misconduct where a lesser sanction is not sufficient; ii) no evidence of harmful deep-seated personality or attitudinal problems; iii) no evidence of repetition of behaviour since the incident; iv) the panel is satisfied that the registrant has insight and does not pose a significant risk of repeating behaviour. Other factors relevant to health or competence cases were not applicable here. On the basis of the evidence and the Panel’s findings, I consider that the Registrant was only able to satisfy one of these four factors, namely, no evidence of repetition of behaviour.[99]At the misconduct and impairment stages, the Panel expressly found that this was not “a single instance of misconduct” and it was not satisfied that the Registrant “has insight and did not pose a significant risk of repeating behaviour”. For example, in its findings on impairment, the Panel stated:
“The panel is of the view that there is a risk of repetition based on the fact that you displayed your sexually motivated behaviour and sexual harassment repeatedly during one shift with Witness 1 and over the course of approximately five shifts spanning a two to three month period with Witness 2. This fact coupled with, as the panel found, an absence of meaningful insight, remorse or remediation created in the panel’s view, a real risk of repetition. Taking account of the nature of the misconduct and the circumstances in which it occurred, the panel was unable to satisfy itself you have continued to practise for approximately four years since the incidents without any further complaints was sufficient to allay its concerns regarding the risk of repetition.”
[100]In its findings on sanction, the Panel stated that the misconduct was not a single incident but also acknowledged that it was committed over a period of weeks, within the context of many years unrestricted practice. The fact that the Registrant practised for many years without misconduct was a different and separate consideration. As the Sanctions Guidance advises, previous fitness to practise history is unlikely to be relevant when considering sanction if the allegations relate to deep-seated attitudinal concerns (see paragraphs 74 – 79 above).[101]The Panel referred to the Registrant’s lack of insight and risk when rejecting the option of conditional registration, as there were no workable conditions that could be formulated, given the nature of the concerns. Aspects of the misconduct could be addressed through enhanced training, but “in the absence of sufficient insight”, enhanced training alone would “fail to provide adequate protection against identified risks with your practice in the future, especially in light of its concerns regarding underlying attitudinal issues”. The Panel referred to its findings the Registrant’s behaviour was predatory, harassing, degrading, violating dignity, and creating a hostile work environment, in which what should have been a collaborative work environment became unhealthy and unsafe due to the Registrant’s conduct. It concluded that the Registrant had “yet to demonstrate any evidence of genuine remorse or meaningful insight”.[102]The Panel found that the Registrant’s misconduct was linked to his harmful deep-seated attitudes towards women which had not been addressed: see the references at paragraphs 75 to 79 of my judgment above. The Panel clearly found that his attitudinal issues were a concern and were problematic. As I stated under Ground 1, the key finding here is the Panel’s very negative assessment of the Registrant’s attitude towards women, not whether the Panel labelled it as a “concern”, an “issue” or “a problem” at different stages of their determination. Therefore I do not accept Ms Goring’s submission that there was “no evidence of harmful deep-seated personality or attitudinal problems” for the purposes of the guidance on when a suspension order would be appropriate. I am not persuaded that the Panel sought to draw the forensic distinction that Ms Goring relied upon, but if it did, then it was contradicting its earlier findings, without any adequate explanation or justification for so doing.[103]The only factor to indicate that suspension was likely to be appropriate was the fact that there had been “no evidence of repetition of behaviour since the incident”. However, the Panel had earlier found that this was not “sufficient to allay its concerns regarding the risk of repetition” because of “the nature of the misconduct and the circumstances in which it occurred” (see paragraph 100 above). The fact that these concerns were still present at the time of the fitness to practise proceedings, some four years after the incidents had occurred, and after the Registrant had undertaken a professional boundaries course, combined with the lack of insight or remediation, means that these concerns were properly classified as deep-seated, within the meaning of the Sanctions Guidance.[104]In light of its earlier findings, I am unable to understand how the Panel reached the contradictory conclusion that “in all the circumstances” and “with genuine commitment and serious application, meaningful insight and much deeper reflection, those concerns could potentially be remediable…”. The “circumstances” relied upon were not specified. There was no evidence before the Panel to suggest that meaningful insight or remediation was likely to develop. The Panel placed significant weight on the fact that there had been no further misconduct, but in the light of the Panel’s earlier finding that there was a real risk of repetition, this was not evidence that the risk had been alleviated, but rather that it had not yet manifested itself. The Panel’s approach here is at odds with its reasons for rejecting a conditional registration (see paragraph 101 above), for reasons which are unexplained.[105]I accept that the Panel had regard to the factors in the Sanctions Guidance which indicate that striking-off order is likely to be appropriate. The Panel referred to the Registrant’s “significant departure from the standards expected of a registered nurse” and the ten breaches of the Code “many of which are related to professionalism and trust, and in upholding the reputation of the profession”. Therefore, the Panel was “concerned that your actions were a serious breach of the fundamental tenets of the profession and as such might raise questions as to whether your actions are fundamentally incompatible with you remaining on the NMC register”.[106]However, the Panel did not give adequate or sufficient reasons for its conclusion that a striking-off order would be disproportionate and that a suspension order would be sufficient to protect the public. The first reason given was that there had been no concerns about his practice in the four years since the incidents occurred. Unfortunately, the Panel failed to address the significance of its earlier findings that this had not allayed the risk to the public, which arose from the nature of the Registrant’s misconduct and his deep-seated attitudinal issues and lack of insight: see paragraphs 104 - 105 above.[107]The second reason given was that his misconduct was capable of remediation. As I have already said, at paragraphs 104 – 105 above, there was no evidence or Panel finding of insight or remediation. The Panel simply did not grapple with the contradiction with its earlier findings.[108]There are some similarities here with the case of Judge, where the registrant nurse had shown no insight into her misconduct, no remorse and no remediation, yet the NMC Conduct and Competence Committee Panel found that she “should have the potential to develop insight and take practical steps to re-establish professional integrity”. Garnham J. held that this conclusion was wrong, finding, at [40], that:
“…there was, in truth, no evidence, as opposed to unsupported wishful thinking, that given more time the Registrant might develop insight. The fact that she was a nurse of considerable unblemished experience does not assist the committee in that regard, in my view. There was in the Registrant's case no hard evidence at all that she would or might do so; by contrast there was evidence, in her response over the preceding two months, to support a conclusion that there was no sign of any such insight emerging.”
[109]I agree with the Authority’s submission that it appears that the Panel in this case engaged in similar “unsupported wishful thinking” in relation to the Registrant.[110]For these reasons, I consider that the Panel’s decision was wrong in that it failed to apply the Sanctions Guidance correctly (Ground 2) and failed to give adequate reasons, which was a serious procedural irregularity (Ground 3).

Final conclusions

[111]The appeal is allowed on Grounds 1, 2 and 3. The Panel’s decision on sanction is quashed. In my judgment, the appropriate course is to remit the issue of sanction for re-determination by a fresh panel, in the light of my judgment.