Susan Tsolo v Nursing and Midwivery Council [2025] EWHC 2324 (Admin)

[2025] EWHC 2324 (Admin)

Case No AC-LON-2023-002572

IN THE HIGH COURT OF JUSTICE

KING'S BENCH DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 12/09/2025

Before

Mr Justice Dexter Dias

Between

SUSAN TSOLOAppellant

NURSING AND MIDWIVERY COUNCILRespondent

The Appellant in person for in person

Debbie Churaman (instructed by Nursing and Midwifery Council) for Respondent

Hearing Hearing date: 2 September 2025

(Judgment circulated in draft: 4 September 2025)

JUDGMENT

Remote hand-down: this judgment was handed down remotely at 10.30 am on Friday 12 September 2025 by circulation to the parties or their representatives by e-mail

and release to the National Archives.

[1]This is the judgment of the court.

[2]To assist the parties and the public to follow the main lines of the court’s reasoning, the text is divided into 11 sections, as set out in the table of contents above. The table is hyperlinked to aid swift navigation.

I. Introduction

[3]This is a statutory appeal.

[4]The appellant is Susan Tsolo. For many years, she has been a registered nurse. She qualified as a nurse in South Africa in 1987, then worked in various healthcare and caring roles in this country from 2004, including working as a community nurse, midwife and general nurse. She is therefore a very experienced practitioner. The appellant appears in person.

[5]The respondent is the Nursing and Midwifery Council (“the NMC”), the relevant statutory regulator. The respondent is represented by Ms Churaman of counsel. The court is grateful to counsel and Ms Tsolo for their submissions.

[6]The appeal is brought pursuant to Article 38(1) of the Nursing & Midwifery Order 2001 (“the Order”) against decisions of the respondent’s Fitness to Practise Committee (“FTPC” or “the Panel”) following a substantive hearing between 17 and 28 July 2023. The challenge is to:(a) the decision to proceed in the appellant’s absence following a refusal of her adjournment application;

(b) the findings of misconduct in relation to each charge;

(d) the granting of an 18-month interim suspension order (“ISO”) under Article 31(1)(c) of the Nursing and Midwifery Order 2001 (“the 2001 order”) following the striking off order.

[7]The Panel’s reasons for its decisions are set out in a letter to the appellant dated 1 August 2023 (“the Reasons”), having earlier informed her of the substance of the outcome. The grounds of appeal (“the Grounds”) and skeleton document are dated 29 August 2023.

[8]The respondent filed a skeleton argument dated 24 April 2025 in preparation for a hearing listed for 8 May 2025 that was postponed to this hearing date in September 2025.

II. Procedural history

[9]The disciplinary hearing was initially listed between 7-20 December 2022. The appellant did not attend, citing health reasons. The hearing was adjourned on 13 December 2022 and therefore had to be relisted. The hearing date was rescheduled for 17-28 July 2023. It was this hearing that the appellant sought to vacate. The Panel’s refusal of her adjournment application is the central subject of criticism in this appeal.

[10]On 16 February 2024, the appellant emailed the court asking for the appeal not to be listed until she was fit to attend. On 25 October 2024, the appellant emailed the court requesting that the case not be listed until after May 2025 due to her ankle fracture. The appeal was listed for 23 January 2025 restricted to the preliminary issue of whether the appeal was filed on time, but a consent order was approved by Pepperall J vacating the listing. On 24 January 2025, the substantive appeal was listed for 8 May 2025. On 26 April 2025, the appellant emailed the court requesting an adjournment. On 30 April 2025, the appellant filed an N244 application to vacate the 8 May hearing. The respondent filed its objection to the adjournment also on 30 April 2025.

[11]The substantive appeal on 8 May 2025 was listed before Lang J. At the listed hearing itself, the appellant orally applied for an adjournment. The adjournment was granted by Lang J by an order sealed on the same date. The appeal was simultaneously listed for hearing on 2 September 2025 with one day of court time allocated.

[12]As to the ISO, on 31 January 2025 David Lock KC (sitting as a Deputy High Court Judge) extended the order until determination of the appeal or 26 September 2025, whichever was the earlier date.

III. Findings of fact

[13]The initial charges related to conduct by the appellant as a nurse at the Fulford Nursing Home near York, where she was employed as an agency nurse. She had no previous disciplinary actions against her.

[14]On 8 April 2019 an agency nurse failed to arrive for a nightshift at Fulford. The Deputy Home Manger made alternative arrangements, through an agency. for a replacement. The appellant attended for the shift. During the shift she administered medication to two residents. Resident A complained that she was woken up by a tablet being pushed into her mouth and that the appellant did not identify herself. Resident B reported that she was woken up around 05:00 by the appellant pushing a tablet into her mouth and without being told what it was.

[15]Resident C died unexpectedly during the night. The appellant is alleged to have failed to act with urgency when she was told about the death. The appellant did not document Resident C’s death in their notes, including at what the time she was informed of the death, who informed her and. the instructions that she gave to the person informing her.

[16]Following concerns about her conduct at Fulford, an ISO was imposed on the appellant on 10 May 2019. At a review on 7 November 2019, a conditions of the order was imposed which included conditions that Ms Tsolo should not work as a registered nurse and not work without supervision.

[17]At the substantive hearing in 2023, the following findings of fact were made by the Panel:

“That you, a registered nurse: On the nightshift of 8-9 April 2019 at Fulford Nursing Home (the “Home”) 5) Failed to carry out appropriate medication administration, in that you; a) Failed to introduce yourself to residents prior to administering medication to them; (proved) c) Tried to administer medication to Resident B by putting the medication into their mouth whilst they were sleeping; (proved) 6) Failed to follow correct procedure on or around the occasion of the death of Resident C, in that you failed to; c) Document the death; (proved) d) Provide the necessary details to the 111 operator; (proved) 9) On 28 July 2019, whilst your registration was subject to an interim suspension order, worked as a registered nurse; (proved) 10) Between 5 December 2019 and 12 April 2020, whilst your registration was subject to an interim conditions of practice order, breached the conditions of said order, in that you; (proved in its entirety) a) Worked as the only registered nurse on duty, and so were; i) The Designated Nurse in Charge, contrary to condition 1 of the order; ii) Not supervised by a registered nurse, contrary to condition 2 of the order; iii) Not supervised when administering medication, contrary to condition 3 of the order; b) Failed to create a personal development plan with your line manager, contrary to condition 4 of the order; c) Failed to inform the NMC of your employment within 7 days, contrary to condition 5 of the order; d) Failed to provide a copy of these conditions to an organisation or person you worked for an/or an agency with which you were registered for work, contrary to condition 7 of the order; 11) On 23 April 2020, informed an interim order panel of the NMC, that; (proved in its entirety) a) There were always two nurses on shift when you were working, when you were the only nurse on duty; b) You were always supervised when administering medication, when you were not; 12) Your conduct at charge 11a and/or 11b was dishonest, in that you intended for the panel to believe you were working in compliance with your conditions of practice order; (proved)”

On the nightshift of 8-9 April 2019 at Fulford Nursing Home (the “Home”)

IV. Appeal test

[18]Nurses and midwives, for relevant purposes, have an unqualified right of appeal (Article 38 of the Order). In such appeals, the jurisdiction of this court is appellate not supervisory (Sastry and Okparagraph v General Medical Council

[2021] EWCA Civ 623

at para 102). The appeal test is set out at Part 52 of the Civil Procedure Rules 1998:

“Hearing of appeals 52.21 (1) Every appeal will be limited to a review of the decision of the lower court unless— (a) a practice direction makes different provision for a particular category of appeal; or (b) the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing. (2) Unless it orders otherwise, the appeal court will not receive— (a) oral evidence; or (b) evidence which was not before the lower court. (3) The appeal court will allow an appeal where the decision of the lower court was— (a) wrong; or (b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court.”

(emphasis provided)

V. Issues

[19]As a result of the Grounds and the way in which they are argued, I judge that the appeal can best be determined by a consideration of the following issues in this

[20]The appellant applied to adjourn this appeal hearing. The respondent opposed the application and the matter was taken as a preliminary issue.

[21]On 22 August 2025, the appellant sent an email to the court office requesting an adjournment of the appeal listed for 2 September 2025. On 28 August 2025, she paid a fee for filing an application. However, she did not file an N244 application form as is required. Instead, she attached an electronic bundle to an email. She did not serve notice of her intention to apply for an adjournment on the respondent. The bundle was only served on the respondent following direction from the court. The basis of the adjournment is that she cannot afford legal representation. In a statement included in her bundle and dated 21 August 2025, she states:

“12. I respectfully submit that the arguments and reasons that applied at the hearing on 8 May 2025 that persuaded the court to allow me time to save enough for representation still apply equally now. The equality at arms argument is exactly the same and the case is equally important to my career and livelihood now as it was in May 2025. For these reasons, I respectfully ask the court to vacate the appeal hearing for 6 months to allow me to save enough for representation, either by regaining my DBS Certificate or by having longer to save from my reduced earnings as a cleaner. I accept that it is very regrettable that the appeal hearing is going to have to be adjourned again but I really have done everything I can to sort out my DBS situation and to earn as much as I can even by doing a job that is below what I am qualified to do and what I have done for the last 20 plus years. This notwithstanding, I am prepared to continue to work hard as a cleaner if it means earning enough money to pay a barrister to represent me. At the time of the last hearing I thought I could save up enough for my representation but this DBS issue came after that and has changed my finances completely.”

[22]The bundle contains the following:

“13 Jun 25 A stopped working for 24 Hour [the care services company] because PC Louise Sutherland told A that she was not cleared to work according to the DBS information. 24 Hour disagreed with this and told A that she could continue to work because they had checked the updated service. However, C [the appellant] chose not to continue to work whilst there was conflicting opinions and especially when she had been told by the police that it would be unlawful for her to work until the DBS review had been completed.”

[23]The appellant continues:

“I stopped working at the care home on 20 June 2025, so I was without any wages from 20 June 2025 until 1 August 2025.”

[24]There is no doubt that she did stop working in the care home and in August began working for a cleaning company called Flamingo Limited [“Flamingo”]. The appellant’s care services employers checked with the DBS updating service and the employers were informed that the appellant could continue to work. However, I judge that it is not unreasonable for her to have stopped working in the care home while the DBS situation remained unresolved. However, that is not the end of the matter. The oral arguments during the adjournment application allowed for exploration of certain facets of her application that caused concern. To understand the topic, I turn to the list the appellant provided of her income and expenditure. She put it this way:

“10. The total I have managed to save from 8 May 2025 to end August 2025 is £7,288 income less £5,368 expenditure = £1,920 which is not enough to hire a barrister for my appeal hearing.”

[25]Therefore, she represents herself at the listed appeal hearing. I consider the questions of(a) school fees and

(b) legal representation, before

(d) reaching a conclusion.

(a) School fees

[26]In May 2025, the appellant told the court, as noted by Lang J at para 22 of her judgment:

“She pays £250 a month to support her dependant grandchildren to attend school in South Africa. There are no school fees payable over the next four months between May and September, which will amount to a saving.”

[27]However, at the hearing before me, the appellant told the court that the fees are £450 per month. Indeed, she added that “sometimes it was more than that”. Further, she said that she had paid the fees every month from May 2025. To avoid any chance of misunderstanding, the court clarified this account with her twice. She confirmed it. Therefore, her latest account is contrary to the account she had previously provided to the court. However, it is also contrary in material respects to the statement she emailed to the court on 22 August 2025. In that document she stated at para 6: “6. My expenditure since 8 May 2025 and projected to the appeal hearing on 2 September 2025 is: i. School fees for relatives in Zimbabwe amounting to £450. ii. A further £100 per week to these children for food = about £1,600 …” [she then itemised other expenditure]

[28]I note that her statement records the school fees being to relatives in Zimbabwe. She told Lang J that the school was in South Africa. Even if both things are possible, beyond her assertion there is no evidence provided that she has paid these fees and for this food over the summer. She has provided evidence of payslips from HKS Consultancy Ltd (presumably her care home employers) and an account statement from a Halifax account with payments from the cleaning company (Flamingo) made to her in August 2025. There is no evidence whatsoever provided about her outgoings. The figures rely on her assertion.

[29]Yet in her statement she maintained that there was only one lot of school fees amounting to £450. Further, she was obliged to pay a further £100 per week for food for the children in South Africa, a sum she had not previously mentioned and that features nowhere in Lang J’s judgment. As a result, I agree with the respondent’s submission that there is “conflict in what she is saying about her outgoings”. The amounts she claims to have paid over the summer to South Africa are sufficient to make a real difference in her ability to obtain legal representation for this hearing. I note that there is no evidence whatsoever that she has made these payments. She says that the fees are for a private school in South Africa.

[30]The claimed payments amount to £2050 in the period from May to August. There is no explanation from the appellant for why she now must pay these fees over the summer when she told Lang J that they would not be incurred. In the absence of any evidential verification and rational explanation, there are very real questions about these claimed payments, her reliability and frankness.

[31]Combined with the £1920 she says in her statement that she has saved (para 10), she would have very nearly £4000. The next question to be examined is what sums might be sufficient to fund legal representation for the appeal hearing.

(b) Legal representation

[32]The appellant relies heavily on a conversation or conversations she claims to have had with Mr Skeete of counsel. She says that he informed her that his fees for an appeal hearing are £7500. Indeed, and in fairness to the appellant, counsel confirmed that figure before Lang J. The appellant also says that counsel informed her that she may be able to instruct a more junior counsel for around £5000. At the hearing, she was asked to explain the steps she had taken to obtain legal representation for the hearing.

[33]Her response was that she did not try to speak to any other barrister “because she was not working”. Therefore, between May and this hearing, she has made no enquiries of any junior counsel or their clerks to establish how much their fees might actually be. On her case, she stopped working in the care home on 20 June 2025. Therefore, she was working for six weeks before that cessation and made no attempt to ascertain how much counsel fees might be. What is strange is that as Lang J recorded at para 18, counsel’s fee for the substantive appeal was only “ascertained” by the appellant “two or three weeks ago”. That is, in the second half of April 2025. Mr Skeate had drafted the Grounds and skeleton argument in August 2023. It makes little sense that the appellant only discovered in the two or three weeks before the substantive appeal hearing, and after the passage of over 18 months, that she could not afford his fees to represent her at the appeal. This was a serious risk to take to proceed to the period immediately before the appeal in ignorance of what the cost of counsel’s representation would be. Collins Rice J said at para 26 that the appellant “should have identified at an earlier stage the cost of being represented at the appeal and considered whether she was able to afford Mr Skeate’s fees”. I concur.

[34]In similar vein to the appellant’s lack of enquiry about counsel’s fees, the appellant has made no enquiries of solicitors to see if they may be able to provide an advocate for her at a figure closer to her available funds.

[35]When asked about this, she said that she “spoke to her employer”, 24 Hour Recruitment, and asked if they could provide representation. This seems a curious thing to do, asking an employment agency if they could provide legal representation at a High Court appeal hearing. Nevertheless, the appellant produced a WhatsApp exchange between her and someone she says works for the employment agency. The critical detail lies in the timing. The message exchange takes place at 01:20 on the morning of this appeal (2 September 2025) when she asks if the agency can help her find a lawyer for the High Court hearing listed at 10:30 that same day. Having read the message exchange, it appears that she may have asked earlier about this, but she did not provide the court with this message. Her request to her employer appears to be a response to the direction of the court made on Monday 1 September 2025 that she should be prepared to explain why she seeks an adjournment and be ready to argue the appeal should her adjournment application not succeed.

[36]Her request to her employer seems a last-minute effort doomed to failure. It is unclear how a lawyer, even if the employment agency produced one at such short notice, could have argued her appeal which was listed for 10:30. In any event, she has not spoken to any lawyer through her employers.

[37]I judge that through the adjournment granted by Lang J, the appellant has been given a full opportunity to investigate securing legal representation in a way that would be affordable to her. She says she has had a conversation with Mr Skeete of counsel about lesser fees for junior counsel (unevidenced) and then made a futile attempt in the early hours of the morning of the listed hearing (or shortly before) to obtain a lawyer through an employment agency. Besides this, she has done nothing to explore how she might obtain legal representation for the listed appeal hearing and on what terms. She has not investigated if she could agree arrangements to make payments over time, what the initial fees would be, whether either junior counsel or a solicitor authorised to act as an HCA would represent her for the sums she has available. She has simply proceeded on the basis that she was going to be granted another adjournment at her application. That was the wrong approach.

[38]Further, it is artificial to view the period for accumulating funds for legal representation as beginning on 8 May 2025 with a standing start. It is unclear why she has failed to save anything in the intervening 20 months between the filing of her appeal and the May 2025 scheduled appeal hearing. In her May 2025 application, she stated that she had been out of work “between January and September/October 2024” due to “fracturing both ankles”. Before me, when asked about this, she said that in fact it was one ankle that was broken not two, and thus her account is now different to that in her May 2025 N244, where she signed a statement of truth on 1 May 2025 attesting that she had broken both ankles. It is puzzling how a very experienced nurse could have presented such a factually erroneous picture to the court.

[39]But even if one removes the period of “the past 8 months” as she termed it in the N244 application form (Section 10, para 1), there remains a further period of 12 months in which she appears to have saved nothing from the date of filing her appeal. She said in her previous N244 that she “can currently save £1000 per month after outgoings if she makes sacrifices”. Even if in the earlier period her earnings were not at the same level, there was an obvious possibility to save for her appeal if she had given it due priority. It is clear that she has not.

(c) Discussion

[40]I concur with Lang J at para 25 of her judgment that:

“Further delay is undesirable and it would be particularly detrimental to the NMC to have to make a further application to extend the interim suspension order.”

[41]If the case is adjourned further today, the respondent will be obliged to make another application to extend the ISO. I agree with Lang J that this would be particularly detrimental to the respondent and thus cause prejudice.

[42]As to prejudice to the appellant, it is clear that the findings against her made by the Panel and the striking out order have severe consequences for her. However, they do not determine her adjournment application. The decision must be taken in the round and multifactorial.

[43]I formed the strong impression that Ms Tsolo was well able to present the points she thought important to her case. She had a detailed grasp of the facts, could bring relevant documents, messages and emails to the court’s attention, and was able to speak fluently about the historic events and the applicable policies at the care home and how she claimed they had changed. She is plainly a person of some substance with a quietly strong and confident personality. She submitted a series of character references that speak of her diligence, dependability and professionalism. She also sent a certificate from her employment agency recognising her “dedication, commitment and hard work” throughout the year (2020). She is clearly intelligent and is a very experienced care professional having worked for over three decades in nursing and caring for the elderly, sick and vulnerable. I did not experience the appellant as having difficulty in communicating the points she relied on. Rather, she offered a surfeit of ideas and arguments she wished to bring to the court’s attention that required the court to refocus her on the specific topic under discussion. To be fair to the appellant, this overenthusiasm is something lawyers occasionally share.

[44]It is here that the court, recognising her status as a litigant in person, was able to actively assist to structure her presentation, and thus promote her effective participation. It is not uncommon for nursing and medical practitioners in regulatory proceedings to conduct their appeals in person. The Administrative Court has great experience of litigants in person and in doing its utmost to ensure that the relevant issues are explored to the extent they can be in fairness to an unrepresented person. Indeed, in this case, the court was able to query the claim made by the respondent that a nurse on the Panel was in a position to make a judgment about the nature of the appellant’s oral thrush when there was no evidence about the nurse’s experience or expertise with the condition. The submission was withdrawn accordingly.

[45]The fundamental criticism made of the Panel is that it refused the appellant’s application to adjourn the substantive hearing in July 2023. The issue is simply whether that decision was wrong. That does not require great legal sophistication or experience to argue. The Panel had to consider the adequacy of the medical evidence presented by the appellant. The appellant was well able to identify the relevant evidence and address this court about its value. The Panel then had to make an assessment of the factors in favour of and against adjourning. Once more, the appellant was perfectly able to speak to this issue during the course of the hearing before me.

[46]As framed by her erstwhile counsel, the other issues were largely derivative from that head issue. She was able to address the court on them all.

(d) Conclusion

[47]It must be remembered that the substantive appeal is based on the refusal of the disciplinary panel to adjourn the trial below after the appellant provided it with what it found to be insufficient justification for an adjournment. This is the appeal’s central issue. After two days, Ms Tsolo did indeed attend her disciplinary hearing and participated. That hearing was not the first listing, but was a relisting after the appellant did not attend the original listing in December 2022.

[48]The court is now faced with yet another very late application to adjourn a listed substantive court date. The prescribed N244 application notice to seek an adjournment has not been filed. The appellant knew that this is the proper procedure, having filed and signed an N244 to secure the adjournment before Lang J. The respondent was not informed by the appellant of her application or served with her supporting documentation. Indeed, the appellant did not serve the documents until the evening of appeal hearing and then only after a specific direction from the court. The adjournment application was made very late with no adequate explanation for why there has been such delay in notifying the court when, on the appellant’s case, it was clear from the end of June that she would not be able to fund legal representation. Instead of promptly making an application to adjourn the substantive hearing, the appellant waited for around two months until just over a working week before the hearing date. This repeated the pattern of timings of her adjournment request before Lang J. It builds on a failure to attend the initial substantive hearing date of the disciplinary proceedings and then her failure to attend the relisted substantive hearing until it was clear to her that her non-attendance had not succeeded in having the hearing vacated. The disciplinary panel was continuing in her absence and it resulted in her attending from Day 3.

[49]The fact is that there has been a protracted history of applications by the appellant to adjourn the proceedings both at first instance and on appeal. This reaches back to the first scheduled disciplinary hearing in December 2022. The case had been listed for hearing for 7-20 December 2022. At 13:00 on 6 December, Ms Tsolo sent the respondent an email stating that she had a chest infection and sought an adjournment. The respondent sent an email to her on 7 December, the listed first day of the hearing, setting out the required medical evidence to justify a postponement. It said:

“to what extent your condition affects your participation in the hearing. The letter should: • Identify the doctor (name, GMC pin, etc) and give details of their familiarity with your medical condition(s), detailing all recent consultations. • Identify with proper particularity your medical condition and explain as to why that condition prevents your participation. • Provide a reasoned prognosis and give the court some confidence that what is being expressed is an independent opinion after a proper examination. The letter will be tendered as expert evidence, the panel is not bound to accept the medical practitioner’s opinion, they make an evaluation and consider what weight to attach to it and decide whether or not to adjourn the hearing. The onus is on you to obtain and provide the complete information to assist your application to adjourn.”

[50]It can immediately be seen how the respondent had explained to her very clearly the nature of the medical evidence necessary in accordance with the Guidance. Ms Tsolo had emailed the respondent to say that a “GP medical certificate will follow”. It never did. Indeed, the respondent emailed her on 8 December to ask if she had “received anything back from your GP”. On the same date in a separate email, the appellant was informed that in light of her stated illness (despite the lack of any medical practitioner’s confirmation) the hearing would be adjourned until 12 December to give her a chance to attend. Again she was asked for a medical certificate. She did not provide one. Although the appellant sent a photograph of some medication, she at no point provided a medical certificate stating that she was unfit to attend the disciplinary hearing. Despite the repeated requests that she provide a medical certificate, no independent medical practitioner confirmed she was unfit to attend that hearing. After the relevant panel pushed the hearing back several days to assist her, it was eventually adjourned for other reasons. What to my mind is revealing is that here was a disciplinary hearing at which the appellant claimed to be unfit due to illness and provided no medical certificate. The hearing was adjournment to July 2023. Once more, the appellant sought an adjournment. The medical certificate she produced simply stated that she was “unwell” and did not provide a medical condition or state that she was unfit to attend the hearing (or indeed participate in it). The fresh evidence she seeks to adduce about anaemia is based on a similar pro-forma, but once more is not compliant with the Court of Appeal’s guidance on medical evidence.

[51]Having succeeded in persuading this court to adjourn the May appeal hearing, the appellant now seeks a further six-month adjournment. There is no certainty that she will be in a position to instruct an advocate by that later point and by the logic of this application and her argument at the previous one, yet another application will be necessitated. Vitally, the Panel’s impugned decisions were taken in July 2023 and the date of the misconduct that the Panel found proved began in April 2019, that is, significantly in excess of six years ago. Important witnesses give evidence about her conduct that took place all those years ago. If the adjournment is granted until the spring of 2026, it will be seven years from the appellant’s conduct at Fulford. There is plainly prejudice to the respondent in the continuing delay to the conclusion to these proceedings. If the appeal were to succeed, witnesses will be prejudiced by the passage of so much additional time before a rehearing can be listed. Indeed, during the hearing before me, the appellant said that the case is taking so long that “the witnesses might have forgotten [what happened in 2019]”.

[52]I have carefully considered the factors identified by Webster J in R v Secretary of State for the Home Department and Others, ex parte Tarrant and Another

[1984] All ER 799

, 816 relevant to the exercise of discretion where questions arise about legal representation at disciplinary proceedings. There is no dispute but that Ms Tsolo has an entitlement to be represented during her disciplinary proceedings should she arrange it. But this is very different from her being legally represented amounting to a condition precedent for the proceedings to continue.

[53]Given the seriousness of consequence for the appellant’s future right to practise, I regard article 6 as being engaged (R (G) Governors of X School

[2011] UKSC 30

(“X School”); cf. Kulkarni v Milton Keynes NHS Hospital Trust

[2009] EWCA Civ 789

). This is because article 6 is engaged where there are the “determination … of civil rights and obligations”. The proceedings below involved not a dispute about whether Ms Tsolo was correctly dismissed from a job, but whether she could continue to practise as a registered nurse or work in comparable regulated activities. It is this right to practise that engages article 6, for the proceedings to my mind are capable of being decisive for that private right she would otherwise enjoy.

[54]While the appellant was properly informed of her entitlement to be legally represented at the appeal, there is no state obligation to provide such representation. This is why the appellant has sought to fund counsel privately. Further, legal representation is not a necessary condition for such appeals of disciplinary tribunal or panel decisions to proceed. This is because while Article 6 is an important right, it is not absolute. It involves the balancing of a number of competing interests and ultimately a case-by-case consideration of fairness taking a “pragmatic context-sensitive approach” (X School, para 67, per Lord Dyson).

[55]Equality of arms, the principle that the appellant relies heavily on, is not a standard demanding perfect mirroring of legal representation. What is important is that the individual has had a fair opportunity to secure legal representation. I have no doubt that in the two years since the appellant filed her grounds of appeal that she has had ample opportunity to raise the funds to have an advocate represent her today if she had acted responsibly and had properly prioritised her legal representation. Instead, she relies on yet more indulgence from the court.

[56]The appellant had full and timely notice of the appeal hearing date, it having been set down by the order of Lang J on 8 May 2025. Therefore, she has had very nearly four months’ notice. She was therefore granted a full and fair opportunity to secure legal representation. Although not having legal representation does create prejudice to the appellant, it is not substantial in this case on these facts. The starting-point is that before the court are the Grounds drafted by experienced counsel and counsel’s accompanying skeleton argument. I have read them carefully. Frankly, and it is a tribute to the drafting, they need only limited elaboration. The court has assessed the nature of the key issues to be determined and they do not turn on complex legal argument. Indeed, the prime issue of whether the Panel was wrong to refuse the July 2023 adjournment is straightforward. The other issues largely flow from that head issue.

[57]The court could adapt – and did adapt - its procedure to ensure Ms Tsolo was supported in making her submissions by giving her time, summarising the issue being discussed in simple terms to her, and repeating it, summarising the opposing submissions, helping her refocus on the issue, summarising her submission back to her and asking her at every stage if there was anything else on the topic she wished to say.

[58]In ruling on the adjournment, I must also consider the competing interests of the respondent, witnesses and the public and weigh them in the balance. I have considered the overriding objective carefully. In accordance with the overriding objective under CPR 1.1, the case must be dealt with justly for all parties to the extent the court can. A further adjournment will produce significant prejudice to the respondent and to witnesses and this outweighs the prejudice to the appellant. The public interest requires there to be finality after so long about whether the striking off order made by the Panel in July 2023 should stand.

[59]I have no hesitation in concluding that a further adjournment is not proportionate and will needlessly incur expense with little or no guarantee that in six months’ time the court will be faced with exactly the same application to adjourn on the basis of impecuniosity. The proceedings as a whole have already taken up substantial time and resources with the repeated applications and adjournments. Fairness requires a fair opportunity to secure legal representation. She has had that. The appellant has had two years since her appeal was filed to arrange for legal representation. She has not. Further, serious questions have emerged about the accounts and figures she has provided to the court to justify the adjournment.

[60]Overall, I approach this decision in the pragmatic context-sensitive way the Supreme Court outlined in X School. There may be other appeals where the complexity of the issues and evidence produce a greater demand for legal representation. But this is not one of them. As Lord Dyson says, the application of article 6 in such cases does not fit into “neat hermetically-sealed categories” (ibid., para 67). I judge that looking carefully at the specific facts, the appellant has failed to take the fair opportunity to obtain legal representation she has been granted. Therefore, the requirements of expedition mean that the appeal must now come on. The application for an adjournment of the substantive appeal is refused. The appeal hearing will proceed.

VII. Issue 2: Adjournment at first instance

[61]The principles applicable to adjournments have been set out in detail by the Court of Appeal in General Medical Council v Adeogba

[2016] EWCA Civ 162

(“Adeogba”) and General Medical Council v Hayat

[2018] EWCA Civ 2796

(“Hayat”), both of which are included in the joint authorities bundle. I have had full regard to them and their replication is not necessary here. However, I make a few comments, without detracting from observance of the Court of Appeal’s clear guidance. These are not criminal proceedings and therefore the principles that govern adjournment applications in that jurisdiction do not apply with the same force in regulatory matters. There is also helpful guidance (CMT/11; “the Guidance”) on how the relevant disciplinary panel (“we”) should approach questions of adjournment:

“When we postpone or adjourn hearings ‘If a nurse, midwife or nursing associate is unable to attend the hearing for medical reasons, they’ll need to provide evidence that they’re unfit to participate in the hearing. That evidence should: • be an independent opinion following a proper examination of the nurse, midwife or nursing associate • identify what exactly is wrong with the nurse, midwife or nursing associate, and why their health condition prevents them from participating in a hearing • identify the practitioner making this assessment, and how familiar they are with the nurse, midwife or nursing associate’s health condition • include a view on the outlook of the health condition Where consideration is being given to granting an adjournment, the panel should only make the decision to adjourn if no injustice is caused to the parties, and after hearing representations from us and the nurse, midwife or nursing associate, or their representative (where present) and after taking advice from the legal assessor”

[62]As previously indicated, the respondent sent the appellant a detailed email in December 2022 setting out the requirements for proper medical evidence to form the basis of an adjournment. The Grounds (para 7(i)) state that the instant case can be distinguished from the case law as here the medical evidence was not challenged. This misses the point. As highlighted in Coulson LJ’s judgment in Hayat at para 37 (preceded by the subtitle:

“b) The Required Standard of Medical Evidence”): “There must be evidence that the individual is unfit to participate in the hearing: see Governor and Company of the Bank of Ireland v Jaffery [2012] EWHC 724 (Ch) at [19]. That evidence must identify with proper particularity the individual's condition and explain why that condition prevents their participation in the hearing: see Levy v Ellis Carr [2012] EWHC 63 (Ch) at [36]. Moreover, that evidence should be unchallenged: see Brabazon-Drenning at [18].”

[63]The passage continues with citation from Norris J in Levy v Carr Ellis at para 36, which Coulson LJ found “Of particular importance”:

“Such evidence should identify the medical attendant and give details of his familiarity with the party's medical condition (detailing all recent consultations), should identify with particularity what the patient's medical condition is and the features of that condition which (in the medical attendant's opinion) prevent participation in the trial process, should provide a reasoned prognosis and should give the court some confidence that what is being expressed is an independent opinion after a proper examination. It is being tendered as expert evidence. The court can then consider what weight to attach to that opinion, and what arrangements might be made (short of an adjournment) to accommodate a party's difficulties. No judge is bound to accept expert evidence: even a proper medical report falls to be considered simply as part of the material as a whole (including the previous conduct of the case). The letter on which the Appellant relies is wholly inadequate.”

[64]It was pointed out that this passage was cited with approval by the Court of Appeal in Forrester Ketley v Brent & Another

[2012] EWCA Civ 324

at para 26. As said by Lord Dyson MR in Mohun-Smith & Another v TBO Investments Limited

[2016] 1 WLR 2919

: “Generally, the court should adopt a rigorous approach to scrutinising the evidence adduced in support of an application for an adjournment on the grounds that a party or witness is unfit on medical grounds to attend the trial."

[65]Coulson LJ then stated at para 41:

“41. This court has said repeatedly that a pro-forma sick note (of the kind provided here) may well be insufficient to justify non-attendance at a hearing, particularly if it refers only to an unfitness to attend work. Thus, in Andreou v The Lord Chancellor's Department (22 July 2002), Peter Gibson LJ at [41] said: “The fact that a person is certified on medical grounds is not fit to attend work does not automatically entail that that person is not fit to attend a Tribunal hearing, though very often that will also be the advice of the medical practitioner.”” “The fact that a person is certified on medical grounds is not fit to attend work does not automatically entail that that person is not fit to attend a Tribunal hearing, though very often that will also be the advice of the medical practitioner.””

[66]One then examines the content of the medical evidence put before the Panel by the appellant. It is a “Statement of Fitness for Work, For society security of Statutory Sick Pay”. It is signed by Dr Andrew Harper on 13 July 2023. He assessed the appellant “because of the following condition(s)” and states in the adjacent box “unwell”. Dr Harper put an “X” in the next box “you are not fit for work”. This is for two weeks from 7 to 20 July 2023. The only other relevant information is that Dr Harper did not need to reassess the appellant at the end of the two-week period.

[67]I adopt the “rigorous approach” to its scrutiny. It is a pro-forma sick note for fitness for work. It provides no indication whatsoever of the medical condition that the appellant was experiencing. It does not say that she is unfit to attend court. The court is not bound by its conclusion or obliged to follow it in any event: it offers a medical opinion about fitness for work. As such, it must be viewed in the context of all the other available evidence. Presented with this pro-forma sick note, and following Hayat and the authorities cited by the Court of Appeal in it, this evidence comes nowhere near being sufficient to justify an adjournment. In fact, it is fundamentally deficient in the essential requirements as set out clearly by the Court of Appeal.

[68]I turn to consider the sick note dated 18 July 2023 from Dr Minahil Rashid. It is the same pro-forma. It states that the appellant is unfit for work from 18 to 27 July because of “anaemia”. Once more, the doctor did not need to reassess the appellant at the end of the period.

[69]Adopting the same rigorous approach, the sick note suffers from the same deficiencies. There is no indication that the appellant is unfit to attend a disciplinary hearing or to engage with it. There is a wide range of symptoms of anaemia. None of them is mentioned. There is no indication of the severity of the condition, but it is noteworthy that Dr Rashid did not need to see the appellant again at the end of the ten-day period. The anaemia pro-forma sick note provides no basis for adjournment. Further, putting the two pro-forma notes together (“unwell” and “anaemia”), there is no proper basis for an adjournment. In any event, the anaemia resolved by the next medical appointment in August 2023.

[70]It is submitted (Grounds, para 7(ii)) that the fact that the appellant was a litigant in person is significant. In fact, it changes little. The regulator emailed the appellant on 10 July 2023 informing her what medical evidence is required. This is very similar to the email sent to her by the respondent in December 2022. The July 2023 email said:

“I note your request for your substantive hearing to be postponed. What we need is a letter from your treating clinician which explains that you’re unfit to participate in your substantive hearing. The letter should: Identify the doctor (name, GMC pin, etc) and give details of their familiarity with your medical condition(s), including detailing all recent consultations. Identify with proper particularity your medical condition and explain to what extent your condition(s) affects your participation in the hearing. Provide a reasoned prognosis and give the panel some confidence that what is being expressed is an independent opinion after a proper examination. Kindly note that the onus is on you to obtain and provide the letter.”

Kindly note that the onus is on you to obtain and provide the letter.”

[71]She failed to comply.

Judicial notice

[72]Criticism is made of the Tribunal taking judicial notice of the nature of oral thrush. The Panel said:

“The panel is aware that oral thrush, in isolation, is not a significantly debilitating condition likely to render her unable to attend this remote hearing and Mrs Tsolo has provided no evidence that her condition does render her unable to attend this hearing.”

[73]It continued:

“The panel noted that oral thrush can be uncomfortable however, this condition should not prevent her from attending the hearing.”

[74]The background is that on 8 July 2023 the appellant emailed the respondent stating she was suffering from oral thrush and started treatment on 7 July 2023. She sought to adjourn the hearing because of illness. She provided a photograph of the medication on 10 July. The prescription date is 7 July and the course was one daily “dose” (tablet, presumably) for two weeks. Therefore, by the opening of the hearing, she would have been nearing the end of course of medication. The prescription of medication does not confirm that the appellant is unfit to attend and engage with the hearing.

[75]On 11 July, the regulator emailed the appellant confirming that her requested adjournment had been refused. It continued in respect of oral thrush:

“In respect of the oral thrush, we can ask the panel to excuse you to allow you attend your appointment. If the thrush will prevent you from participating in the substantive hearing, we will need a GP report which should: Identify the doctor (name, GMC pin, etc) and give details of their familiarity with your medical condition(s), including detailing all recent consultations. Identify with proper particularity your medical condition and explain to what extent your condition(s) affects your participation in the hearing. Provide a reasoned prognosis and give the panel some confidence that what is being expressed is an independent opinion after a proper examination.”

[76]As noted, in its decision, the Tribunal stated oral thrush “in isolation” is not a “significantly debilitating condition” likely to render her unfit to attend the hearing. This is criticised as not being a matter “within judicial notice” (Grounds, para 6). But in the Grounds, a claim is made in the opposite direction, that oral thrush is a “significantly debilitating illness”. There is no independent evidence or medical confirmation that this medical condition, as experienced by the appellant, was “significantly debilitating”. The submission rests on naked assertion, unconfirmed by evidence. Before this court on appeal, the appellant stated that the oral thrush was “so severe” that she “could not eat”. There is no independent or medical evidence to support this claim. Counsel’s written submission continues that the oral thrush was “likely to render her unable to attend an oral hearing”. Once more, this claim is unevidenced. Vitally, there is no evidence that she was unable to participate in the hearing, and indeed she did after absenting herself for the first two days.

[77]The approach of the Panel is better understood as its trying to do the best it could in light of the limited information provided by the appellant. The Court of Appeal has repeatedly now made is clear that the obligation is on the person seeking the adjournment to supply, as Coulson LJ titled it, “the required standard of medical evidence”. In important respects, the appellant’s written submission answers itself. It states that the symptoms of oral thrust can “vary considerably in severity”. There is no indication from any medical evidence provided how severe, moderate or mild the condition was as at July 2023. Therefore, there is little substance in the submission (Grounds, para 6(ii)) that the Tribunal failed to consider the “specific and obvious effects of oral thrush” and how it impaired the appellant’s ability to concentrate and participate. There was no independent or medical evidence before the Tribunal about the effect on the appellant. Indeed, when the appellant did choose to attend the hearing, she participated and questioned witnesses.

[78]In the absence of such evidence provided by the appellant, the judicial notice taken by the Tribunal is of limited significance. Putting the Panel’s observation about oral thrush to one side, there was simply not the evidential basis provided by the appellant, as was her obligation, for the panel to adjourn the hearing.

Absenting

[79]The Grounds (para 6(vi)) further criticise the Tribunal for both wrongly concluding that the appellant had “decided to absent herself” for placing weight on that conclusion. First, the Tribunal was correct to conclude that there was no good or sufficient reason provided by the appellant for her absence from the first two days of the hearing. Second, the Tribunal did not place weight on her absence. It said in terms in its Reasons (9/64) that “The panel will draw no adverse inference from Mrs Tsolo’s absence in its findings of fact.” This criticism is misconceived.

Fresh evidence

[80]The appellant applies to rely upon further medical evidence. By this evidence, she states in her Grounds (para 9):

“Dr Harper gave A the sick note on 13th July 2023 and A thought that Dr Harper did not want to put detail in there for reasons of confidentiality. Either on 14th or 15th (A does not know which) she telephoned the GP surgery and explained to the receptionist that the NMC required more detail from Dr Harper. The receptionist stated that Dr Harper was not working that day. On 18th July 2023 A visited her GP surgery and saw Dr. Minahil Rashid who provided her with a further sick note stating her condition as being ‘anaemia’. A says that Dr Rashid also gave her a prescription for oral thrush. C wanted to wait for Dr Harper to give more detail. On 2nd August 2023 A spoke to Dr Harper and showed him the email from the NMC. A accepted this as she thought that this was the way that doctors worked. Dr Harper did not provide this level of information but A was unable to find out why. A assumes that Dr Harper thought it was either confidential or that what he had provided was sufficient.”

[81]There is no independent or confirmatory evidence about any of the exchanges that the appellant claims took place between her and Dr Andrew Harper. If there were further details that Dr Harper could provide, they have not been obtained by the appellant and provided to the court at any point in the subsequent two years. Furthermore, one must carefully examine the suggestion that once Dr Harper was told by the appellant that the court needed further information about whether her medical condition made her unfit to attend the disciplinary proceedings, he refused because he believed it was “confidential”. This is frankly implausible. A medical opinion about fitness to attend court, as explained and required by the Court of Appeal, is routine. There is nothing confidential about it if the appellant wishes to use her medical condition as the basis for an adjournment.

[82]It should be noted that the appellant provided the sick note completed by Dr Rashid regarding anaemia. There has been every opportunity for the appellant to obtain evidence about the seriousness of the anaemia. The appellant has failed to obtain any explanatory or confirmatory evidence. When asked about the condition, she said that in fact the anaemia “resolved” by the next visit to the doctor in August 2023 and “I do not have it”. This is likely to provide some indication of its degree of seriousness.

[83]In Adeogba, the Court of Appeal said at para 32:

“new evidence can properly be construed as evidence which was not available to the relevant panel at the time. That approach is not very different from the approach in Ladd v Marshall requiring that evidence could not have been obtained with reasonable diligence for use at the trial.”

[84]The court continued at para 35: “35. Pulling these strands together, in my view, it is clear that evidence as to the reasons why, in any case, a medical practitioner does not appear or engage in a disciplinary hearing is likely to constitute fresh evidence and will require consideration, at least de bene esse. Thus, if a practitioner was taken ill or involved in an accident or had suffered some unforeseen and unforeseeable disaster, that fact would be very relevant to the exercise of discretion whether or not to adjourn and would not have been available at the hearing because, by definition, the practitioner would not have been able to be present to advance it. If there is a good reason for non-attendance, however, it would not necessarily extend to fresh evidence going to the merits of the disciplinary complaint which would have been available to be deployed at the time of the hearing."

[85]I note that the Court of Appeal in Adeogba stated that further (medical) reasons will require consideration “at least” on a de bene esse basis. I have done so. Adopting the reasonable diligence test, I can see no reason why the telephone call (unevidenced) to the surgery on 14 or 15 July could not have been evidenced at the hearing. It is claimed that Dr Harper was not working on the day the appellant called. There is no suggestion that she asked for him to call her back or for her query to be brought to his attention. There is nothing to suggest that the appellant tried to contact Dr Harper again on the subsequent days before the hearing started. When she addressed this court, she claimed that the reason for the Dr Harper not stating that she was unfit for court is that he was “adamant” that would not “divulge” that detail despite her telling him that the court wished to know whether she was unfit to attend the hearing. I find this highly improbable. I cannot understand how any reasonably competent medical practitioner when filling out a sick note would not provide an opinion when asked whether the diagnosed condition rendered the patient unfit to attend court. This is something that medical professionals do routinely every day up and down the country. The obvious explanation is that Dr Harper simply and diligently did as he was asked by the appellant and filled out a pro-forma stating that she was unfit for work because she was “unwell”. It is noticeable that the appellant has not sought to provide the court subsequently with any evidence from Dr Harper setting out such an idiosyncratic approach to patient diagnosis.

[86]As to anaemia, the condition resolved itself by the next doctor’s appointment the next month in 2023. The appellant confirmed to this court that she did not ask Dr Rashid if she was unfit to attend court due to the anaemia, and Dr Rashid has made no such finding. By the time the appellant saw Dr Rashid on 13 July 2023, she knew that the disciplinary hearing was imminent, due to start on 17 July. Yet she told this court that because the hearing had not started, she did not ask Dr Rashid whether the anaemia made her unfit for the hearing. This lacks credibility. The question of her fitness to attend the hearing was of prime importance. She had written to the respondent on 8 July 2023 seeking an adjournment as she was unfit due to her oral thrush. On 10 July, the respondent requested details of the appellant’s medical condition. The appellant saw Dr Rashid three days later. It is improbable that the question of her fitness to attend the substantive hearing four days after that was not at the forefront of her mind. The more likely explanation is that the anaemia, that would resolve shortly after that appointment, was not particularly serious and did not render her unfit to attend the disciplinary hearing, whether on its own or in conjunction with the oral thrush.

[87]Overall, the fresh evidence adds very little of substance. I judge that even if it were properly admissible, which I doubt, it does not render the Panel’s adjournment decision wrong by itself or in combination with Dr Harper’s pro-forma sick note.

Conclusion

[88]There must be fairness to the registrant (appellant). That objective was clearly fulfilled by the Panel in granting her every opportunity to attend and participate in the hearing. Save for the first two days, she did. There was no proper evidential basis to adjourn the hearing. The Tribunal’s decision was not “wrong” in appellate test terms.

[89]The principle of fairness also requires fairness to the regulatory body, witnesses and the public. These were increasingly antiquated allegations. They needed resolving. The recollection of witnesses was at risk of deterioration. Further, there had already been a scheduled hearing date in 2022 that was vacated. It was a hearing the appellant did not attend, claiming without any medical certificate that she was unfit through illness. I am mindful of the precept in Adeogba that it would cut across the proper protection of the public if a practitioner could frustrate the proper regulation of the profession by seeking repeated unmeritorious adjournments. Practitioners have a professional duty to engage with regulatory proceedings. The Panel was correct in noting that there is a “strong public interest in the expeditious disposal of the case” (Reasons, 7/64). The Panel had due regard to the relevant case law and the published guidance (Reasons, 6-7/64). It applied them impeccably.

[90]Day 1 of the hearing was concerned with the adjournment application. It was correctly refused. The appellant suffered no prejudice by being absent. She did not possess the required medical evidence identified by the Court of Appeal, the requirements of which were notified to her by her regulator by email.

[91]On Day 2, the appellant had no good reason not to attend. She did attend from Days 3 to 9, but chose to absent herself on Day 2. The Panel was justified in characterising her absence as being of her own making “without adequate explanation” (Reasons, 8-9/64). The Panel was right to continue in her absence. She attended by far the greater part of the hearing.

[92]On the evidence, the Panel’s decision not to adjourn the hearing was not wrong. There is no serious procedural irregularity for CPR Part 52 purposes. As the respondent says, the Panel asked questions and explored the evidence given on Day 2. The appellant suffered no prejudice due to her voluntary absence. The witnesses Crockford and Wimbles gave evidence and the Panel asked them appropriate questions to test their evidence. Ms Crockford was asked questions by two members of the Panel (Ms Wilkinson and Ms Campbell); Ms Wimbles by all three members, including the Chair. I have carefully examined the transcript of the day’s proceedings. There is nothing inappropriate in how they were conducted.

VIII. Issue 3: Challenging findings of fact, misconduct & impairment

[93]The appellant submits that the Panel was wrong to make the findings it did on the facts, and on misconduct and impairment. The Grounds put it in this way at para 2:

“A [the appellant] asks the Court to set aside the decision entirely on the basis of serious procedural irregularity/unfairness and to order a re-hearing of the matter. If the hearing should not have proceeded in A’s absence (even though A missed only 2 days of the hearing) then the hearing was invalid as a whole and any decisions arising from it must be set aside and a re-hearing arranged.”

[94]This submission depends on the adjournment decision being flawed. It is not. It was not a serious procedural irregularity, not did it produce unfairness. Therefore, the condition precedent for this ground fails. However, at the hearing the appellant sought to criticise the substance of the findings of fact made by the Panel. This was not part of the Grounds. Nevertheless, the various factual matters she wished to raise without any notice to the court or the respondent amounted to an evidential re-running of the disciplinary hearing by reopening the Panel’s findings. The proper approach to this is settled in law.

[95]The appeal court will interfere with findings of primary fact in limited and defined circumstances, as helpfully summarised by Morris J in Byrnev GMC

[2021] EWHC (Admin) 2237

(“Byrne”) at para 15:

“where “any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses could not be sufficient to explain or justify the trial judge’s conclusions”: per Lord Thankerton in Thomas v Thomas approved in Gupta; - findings “sufficiently out of the tune with the evidence to indicate with reasonable certainty that the evidence had been misread” per Lord Hailsham in Libman; - findings “plainly wrong or so out of tune with the evidence properly read as to be unreasonable”: per in Casey at §6 and Warby J (as he then was) in Dutta at §21(7); where there is “no evidence to support a … finding of fact or the trial judge’s finding was one which no reasonable judge could have reached”: per Lord Briggs in Perry after analysis of McGraddie and Henderson.”

[96]The approach to fact-finding was also summarised by Cranston J in Yassin v GMC

[2015] EWHC 2955 (Admin)

(“Yassin”) at para 32:

“ iii) The Panel has the benefit of hearing and seeing the witnesses on both sides, which the Court of Appeal does not; iv) The questions of primary and secondary facts and the over-all value judgment made by the Panel, especially the last, are akin to jury questions to which there may reasonably be different answers: Meadows v. General Medical Council [197], per Auld LJ; v) The test for deciding whether a finding of fact is against the evidence is whether that finding exceeds the generous ambit within which reasonable disagreement about the conclusions to be drawn from the evidence is possible: Assucurazioni Generali SpA v. Arab Insurance Group [2003] 1 WLR 577, [197], per Ward LJ; vi) Findings of primary fact, particularly founded upon an assessment of the credibility of witnesses, will be virtually unassailable: Southall v. General Medical Council [2010] EWCA Civ 407 [“Southall”], [47] per Leveson LJ with whom Waller and Dyson LJJ agreed.”

[97]Although the appellant told this court that “all the allegations are untrue”, nothing said by her comes close to being sufficient to cast doubt on the findings of fact of the Panel. The findings relied on an assessment of credibility. As such they are “virtually unassailable” as Leveson LJ put it. It is noteworthy that the appellant did not give evidence on her own behalf at the disciplinary hearing. She sought to give an oral account and not be cross-examined. The Panel understandably refused such an imbalanced distortion of proper procedure. When she was asked by this court why she took such a stance, she stated that she “did not understand what being on oath means”. This is highly improbable. By the time she had the opportunity to give evidence, she had been in the hearing for several days and had seen other witnesses giving evidence on oath. Indeed, she had questioned some of them.

[98]As to the finding of misconduct, I have read carefully the Panel’s analysis of why its findings of fact amounted to a falling seriously short of the professional standard required. Once the findings of fact were made, the finding of misconduct was a reasonable and rational consequence of those highly adverse findings.

[99]Having properly and rationally found misconduct, impairment of fitness to practise was plainly made out. Her actions placed vulnerable patients at risk of harm; the dishonesty findings were clearly “extremely serious”; her insight was limited (“extremely limited”); the breaches of the conditions of practice order, designed to regulate her to protect the public, were deliberate, and showed disregard for the regulator, professional regulation and revealed a deep-seated attitudinal problem. There was no evidence that the risk of repetition was or was sufficiently reduced.

IX. Issue 4: Sanction

[100]As to the striking-off order, the Panel meticulously identified and weighed the relevant factors in the published guidance (as included in the authorities bundle). Nothing irrelevant was considered. Nothing relevant was omitted. The published guidance on striking off was considered in appropriate detail and used as the framework for the Panel’s decision. The Panel rationally and reasonably concluded:

“The panel was satisfied that the misconduct in relation to medication administration is capable of remediation. However, the panel considered that it is extremely difficult to remediate dishonesty and attitudinal behaviours. Therefore, the panel carefully considered the evidence before it in determining whether or not Mrs Tsolo has strengthened her practice. The panel was of the view that Mrs Tsolo has not demonstrated her strengthened practice, nor has she undertaken any training at an appropriate level. The panel noted that the breaches of the interim orders which were deliberate showed a disregard to her regulator and represent a deep-seated attitudinal issue. Where the panel found dishonesty, it would expect Mrs Tsolo to demonstrate that she has gained clear insight and that there would be no repetition. The panel was of the view that Mrs Tsolo had not yet been able to demonstrate that she would know exactly where to turn to should she find herself in a similar situation, and she had not satisfied it that the risk of repetition was sufficiently reduced. It further noted that there has been a failure to follow simple instructions.”

[101]The Panel considered the three questions set out in the guidance:

“Mrs Tsolo’s actions were significant departures from the standards expected of a registered nurse and are fundamentally incompatible with her remaining on the register. The panel was of the view that the findings in this particular case demonstrate that Mrs Tsolo’s actions were extremely serious and to allow her to continue practising would undermine public confidence in the profession and in the NMC as a regulatory body. Balancing all of these factors and after taking into account all the evidence before it during this case, the panel determined that the appropriate and proportionate sanction is that of a striking-off order. Having regard to the effect of Mrs Tsolo’s actions in bringing the profession into disrepute by adversely affecting the public’s view of how a registered nurse should conduct herself, the panel has concluded that nothing short of this would be sufficient in this case. The panel considered that this order was necessary to mark the importance of maintaining public confidence in the profession, and to send to the public and the profession a clear message about the standard of behaviour required of a registered nurse.”

[102]The Panel found seriously dishonest conduct by the appellant. When charges of dishonesty are found proved, being struck off is a real risk for practitioners. In Parkinson v Nursing and Midwifery Council

[2010] EWHC 1898 (Admin)

, Mitting J stated at para 18:

“A nurse found to have acted dishonestly is always going to be at severe risk of having his or her name erased from the register”

[103]Further, Collins Rice J held in General Medical Council v Donadio

[2021] EWHC 562 (Admin)

(“Donadio”) at para 51:

“52. There is no doubt whatever about the seriousness with which the decided appeal cases regard dishonesty. I was referred to Nicholas-Pillai v General Medical Council [2009] EWHC 1048 at paragraph 27 (untruthful record-keeping), Khan v GMC [2015] EWHC 301 (Admin) at paragraphs 6-9 (fake prescriptions for controlled drugs for financial gain), and GMC v Theodoropolous [2017] EWHC 1984 (Admin) at paragraphs 35-47 (false record of registration details used to obtain a locum placement). These are examples comfortably within what the Sanctions Guidance says about dishonesty, and the appellate courts are unhesitating in their view that dishonesty persisted in, coupled with a lack of insight, is a powerful indicator for erasure.”

[104]Further, in Donadio, the court held that breaching a conditions of practice order deliberately is a very serious matter (para 71), and quashed a sanction short of erasure. There is nothing to indicate that the striking-off order was “excessive”, as the appellant submitted. It is a decision that cannot be characterised as “wrong”. It is a logical, reasonable and rational consequence of the appellant’s proved misconduct and impairment. Vulnerable patients were put a serious risk by the appellant’s deficient conduct and she has proved to be seriously dishonest with next to no insight, engaging in repeated and deliberate regulatory breach. It is, as commonly stated, difficult to remediate dishonesty.

X. Issue 5: Interim Suspension Order

[105]The challenge to the ISO is misconceived. The respondent submits that there is no power to appeal the making of the ISO under Article 38. The correct procedure would have been for the appellant to make an application under Article 31(12) to terminate the ISO. There has been no termination application made.

[106]In any event, and on the substantive merits, once the Panel reached the conclusion that the appellant should be struck off the register, there was a high degree of need for the public to be protected until the conclusion of the appeals process by way of an ISO. It cannot be argued that the imposition of such a protective order was wrong or unreasonable.

XI. Disposal

[107]The appeal is dismissed.

order

Issue 1: Appeal adjournment Issue 2: Adjournment at first instance Issue 3: Challenges to findings of fact, misconduct and impairment Issue 4: Sanction Issue 5: ISO VI. Issue 1: Appeal adjournment

Cited in 1 later judgment

Bernadette Jerry v The Nursing and Midwifery Council 2025