Anna Svet Semenenko v Nursing and Midwifery Council [2026] EWHC 530 (Admin)

[2026] EWHC 530 (Admin)

Case No AC-2023-LON-000150

IN THE HIGH COURT OF JUSTICE

KING'S BENCH DIVISION

ADMINISTRATIVE COURT

Date Wednesday, 11 March 2026

Between

FORDHAM JAppellant

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Between:

ANNA SVET SEMENENKO

NURSING AND MIDWIFERY COUNCILRespondent

SITTING IN LONDON

The Appellant appeared in person on 11 & 12.3.25 for in person

Matthew Kewley appeared for Respondent (11 & 12.3.25)

Ruth Alabaster appeared for Respondent (17.2.26)

Hearing Hearing dates: 11 & 12.3.25, 17.2.26

Draft judgment: 2.3.26

Approved Judgment

FORDHAM J

This Judgment was handed down remotely at 10am on 11 March 2026, by circulation to the parties or their representatives by email, and by release to the National Archives.

FORDHAM J:

Introduction

[1]This case is about whether it was wrong or unjust for an NMC Fitness to Practise Committee to make adverse findings and/or to impose the sanction of striking-off the register. The case comes before the High Court as a statutory appeal by the Appellant against decisions of the Committee (also known as “the panel”). The Appellant was a midwife and registrant of the NMC. The Committee made adverse determinations as to the facts, as to competence and misconduct, as to impairment of fitness to practise as a midwife, and as to sanction. The Committee imposed the sanction of a striking-off order because of the misconduct, with no further action in respect of the findings of impairment by reason of lack of competence. The appeal is pursuant to Article 38(1) of the Nursing and Midwifery Order 2001 (SI 2002 No.253). The question which I have to decide is whether any decision of the Committee was “wrong”, or whether it was “unjust” because of a serious procedural or other irregularity in the proceedings. That test derives from the Civil Procedure Rules rule 52.21(3).

[2]The Committee’s determination was communicated on 17 July 2023. It is a 201-page document. It includes the reasoned rulings which the Committee had delivered over the course of 35 days of oral hearings. They had taken place in the period between 25 February 2022 (Day 1) and 13 July 2023 (Day 35). For this appeal, I was provided with the transcripts of all of the hearings, including those conducted in private when confidential matters were ventilated. I was also provided with all of the documents which were before the Committee, and all of the guidance documents to which the Committee referred.

[3]The NMC presented the case against the Appellant before the Committee. Prior to the oral hearings before the Committee, the NMC had produced a document listing the Allegations. These were akin to the ‘charges’ which the NMC was making against the Appellant in the proceedings. The Committee allowed some minor textual amendments for clarity. When the Allegations are analysed and broken down, it can be seen that there were, in all, 38 Allegations. There were 9 competence Allegations and 29 misconduct Allegations. One competence Allegation (blood samples mixed on 25.6.18) was admitted by the Appellant, and the Committee declined at a late stage to permit her to withdraw that admission. The other 37 Allegations were denied. In respect of 1 competence Allegation and 5 misconduct Allegations, the Committee found no case to answer after the end of the NMC’s case (Day 13 on 25.3.22). In its determination on the facts the Committee found that 2 competence Allegations and 5 misconduct Allegations were not proved. The Committee found the case against the Appellant proved as to 6 competence Allegations and 18 misconduct Allegations. Of the misconduct Allegations found proved, one was that the Appellant had acted dishonestly. I will be identifying the competence Allegations and the misconduct Allegations later in this judgment.

[4]After arriving at its determination of the facts, the Committee went on to determine impairment and then sanction. It applied the relevant policy guidance. By that stage, the Appellant and her advocate (Joe Cooray) had decided to withdraw from the process. The Committee decided to proceed in the Appellant’s absence. The Committee heard submissions and deliberated. It was satisfied that the conduct underlying the competence incidents could potentially be capable of being addressed in some circumstances. It also said each individual aspect of misconduct could potentially be remediable. But it found that a number of the proved misconduct Allegations demonstrated a significant attitudinal concern in relation to the Appellant’s midwifery practice; that the proved misconduct Allegations when considered collectively showed a pattern of behaviour (over what it termed “several years”), indicating significant attitudinal concerns repeated with different colleagues and patients in a variety of situations; that the underlying attitudinal concerns, particularly as to the dishonesty, would be difficult to remediate; and that no conditions of practice could be formulated given the Appellant’s deep-seated attitudinal concerns and her absence of engagement or insight. The Committee went on to decide that it could not accept the NMC’s invitation to impose a suspension order, given the deep-seated attitudinal concerns, the repetitive pattern of conduct, and the absence of insight. The Committee found as follows: that the Appellant had failed to uphold people’s dignity, to treat them with kindness, respect and compassion, to deliver the fundamentals of care, and to respect her patients’ right to privacy; that through her dishonest conduct she had failed to work cooperatively with her colleagues; that she had failed to preserve safety and respond to needs; and that there was a pattern of incidents with a risk of harm to patients. It concluded that a striking-off order was necessary to mark the seriousness of the misconduct found, the importance of maintaining public confidence in the midwifery profession and to send to the public and the profession a clear message about the standard of behaviour required of a registered midwife. It decided on “no further action” in respect of the finding of impairment of fitness to practise by reason of lack of competence. By this statutory appeal, the Appellant asks the High Court to reverse the Committee’s decisions.

The NMC Procedures

[5]The NMC was the Appellant’s regulator. It is the independent regulatory body for midwives, as well as for nurses and nursing associates. It has separate investigative, case-presenting and adjudicative arms. The Committee was an adjudicative body, acting as an independent and impartial tribunal to consider the evidence and submissions relating to the NMC’s Allegations against the Appellant, and the Appellant’s answer to the Allegations. The governing instruments are the Nursing and Midwifery Order 2001, and the 2004 Rules scheduled to the Nursing and Midwifery Council (Fitness to Practise) Rules Order of Council 2004 (SI 2004 No.1761).

[6]The NMC has statutory objectives. At their heart is public protection. Here are Articles 3(4) and (4A) of the 2001

[7]In the present case, ahead of the oral hearings before the Committee, a number of procedural steps had taken place, from the perspective of the NMC. In particular, there were the following: i) First, the NMC had received a referral. That was on 17 April 2019. It was submitted online by Jayne Beasley, the Assistant Head of Midwifery and Gynaecology at the Aneurin Bevan University Local Health Board (the “LHB”). The LHB was the Appellant’s employer. The LHB’s referral is a 16-page document. Its contents were broken down into what were called 7 “incidents”. ii) Second, the NMC came under a duty to investigate. That is for this reason. The LHB’s referral had raised concerns as to impaired fitness to practise by reason of misconduct and/or lack of competence: see Article 22(1)(a)(i) and (ii) of the 2001 Order. By Article 26(1) of the 2001 Order, the NMC’s investigating committee is statutorily required to investigate any allegation referred to it in accordance with Article 22. iii) Third, information and evidence were obtained in the NMC investigation and an Investigation Report was written. The NMC was under a statutory duty to take all reasonably practicable steps “to obtain as much information as possible about the case” (Article 26(2)(c) of the 2001 Order). The Investigation Report was a 30-page document dated 24 February 2020. It was written for the NMC by the external lawyers, Blake Morgan LLP. It included 4 pages listing the documentary attachments to the report. These included 16 witness statements obtained in the NMC investigation, between 16 October 2019 and 24 February 2020, together with accompanying exhibits. So, for example, exhibit “JB/09” (a “report into the registrant’s behaviour”) was one of 21 exhibits to the statement of Jayne Beasley dated 21 January 2020. A witness statement of Caroline Davis dated 23 February 2020 exhibited notes relating to Patient G. iv) Fourth, the NMC Investigation Report and documents were sent to the Appellant, and she was permitted to make written representations. This was pursuant to rule 6B(4) of the 2004 Rules. The Appellant’s response was a 17-page document dated 25 September 2020. It acknowledged that she had received, and had the opportunity to study, the 700 pages of documents. v) Fifth, the case was considered by NMC Case Examiners. They wrote a 9-page Decision dated 11 November 2020, contained within a letter to the Appellant dated 25 November 2020. Pursuant to rule 6C(1)(2) of the 2004 Rules, the Case Examiners’ Decision found a case to answer and referred the case to the Committee. vi) Sixth, an NMC lawyer’s review was undertaken. This culminated in the Allegations being drawn up, which were then disclosed to the Appellant and placed before the Committee when the NMC presented its case against the Appellant. Alongside the Allegations, the case papers were prepared for the Committee and served on the Appellant. Not all of the documents which had accompanied the Investigation Report were placed by the NMC in the bundle for the hearings. Parts of witness statements were redacted by the NMC. Other witness statements, including the statement of Caroline Davis, were omitted by the NMC. vii) Seventh, the Appellant had several opportunities to put her own documents before the Committee. Among the case papers there was a 145-page first bundle of documents which the Appellant supplied to the NMC. Then there was a 16-page witness statement from her dated 4 January 2023 (Day 22 of the Committee’s oral hearings). Then there was an 82-page second bundle of documents which the Appellant supplied to the Committee on 23 February 2023 (Day 26).

The LHB Procedures

[8]The LHB was the Appellant’s employer. It was the LHB which made the online referral to the NMC on 17 April 2019, triggering the NMC’s duty of independent investigation. Within the referral, Ms Beasley told the NMC about the LHB’s disciplinary and capability action. The topic of capability action was something which was also later considered within the Case Examiners’ Decision (§7v above). The Case Examiners recorded that the Appellant had been transferred from the Royal Gwent Hospital to Nevill Hall Hospital after February 2017, and that she had “successfully passed” her “capability plan” at Nevill Hall on 27 April 2017.

[9]The LHB procedures are separate from the NMC procedures. The case which the Committee was considering was not in the nature of a claim for unfair dismissal by the LHB. It was not in the nature of an appeal from the refusal by the LHB to uphold a grievance raised by the Appellant. It was a freestanding, independent adjudication of the specific Allegations made by the NMC against the Appellant. However, information was provided to the Committee about the LHB procedures. And further information has been provided to me in conjunction with this appeal. Here is the position in outline: i) The documents which the NMC provided to the Committee included the following materials relating to the LHB disciplinary procedures. There was a letter from the LHB to the Appellant dated 9 July 2018, explaining that an investigation had been commenced under the LHB’s disciplinary policy, to consider an allegation of gross negligence (blood sample mixing on 25 June 2018, Patient A). There was a statement of 6 August 2018 from Catherine Davies (a midwife) – not to be confused with Caroline Davis – about that blood sample mixing incident (25 June 2018, Patient A). There was an LHB letter dated 23 August 2018, adding two other cases of concern: a retained swab incident (9 June 2018, Patient B) and a complaint received by the Head of Midwifery (relating to 2/3 November 2017, Patient D). There were notes from the LHB interview of the Appellant on 25 September 2018 in relation to the blood sample mixing incident (25 June 2018, Patient A) and notes of LHB interviews with other individuals about that incident. There was a first page of the notes of the LHB interview of the Appellant on 12 December 2018 in relation to the retained swab incident (9 June 2018, Patient B). There were redacted notes of the LHB interview of Dr Muel on 12 December 2018, limited to the blood sample mixing incident. There was the LHB investigation report written by the LHB’s Louise Taylor and dated 18 January 2019, redacted to refer only to the blood sample mixing incident (25 June 2018, Patient A). There were the notes of the LHB disciplinary hearing on 10 July 2019, and the LHB decision letter of 17 July 2019 dismissing the Appellant for gross misconduct, each redacted to refer only to the blood sample mixing incident (25 June 2018, Patient A). ii) The NMC documents for the Committee also included documents which related to an LHB grievance procedure. There was the Appellant’s grievance letter dated 27 March 2019; and also the LHB grievance outcome decision letter dated 20 May 2019. iii) The bundles of the Appellant’s documents provided to the Committee included materials relating to the LHB’s disciplinary procedures. There was a partly-redacted email from Patient D, which the LHB had acknowledged on 22 August 2018. There was an incident report dated 12 November 2018 regarding the retained swab incident (9 June 2018, Patient B). There was a note of the LHB’s interview on December 2018 with Sue Jordan about the retained swab incident. There was a page from Patient B’s notes. Then the Appellant’s second bundle of documents for the Committee (23 February 2023) included LHB documents relating to the retained swab incident, including an extract from a determination of the Medical Practitioner’s Tribunal imposing the sanction of erasure on Dr Muel, in which the retained swab incident was considered by that Tribunal. There were also included in the Appellant’s documents provided to the Committee, materials from the LHB grievance procedure. iv) Further documents relating to the LHB procedures were placed before this Court on this appeal, either by the Appellant or, at her suggestion, by the NMC. These were not before the Committee. There were the full notes of the LHB interview with the Appellant on 12 December 2018 in relation to the retained swab incident. There were the full notes of the LHB interview with Dr Muel on 12 December 2018, unredacted so as to include the retained swab incident. There was a statement by the Appellant for the LHB, dated 9 January 2019, in relation to Patient D. There was the LHB investigation report written by Louise Taylor dated 18 January 2019, unredacted so as to include the retained swab incident. There were the notes of the LHB disciplinary hearing on 10 July 2019, and the LHB decision letter of 17 July 2019 dismissing the Appellant for gross misconduct, each unredacted so as to refer not only to the blood sample mixing incident but also to the retained swab incident. The Appellant wanted this Court to have all of these further materials, so that I would be in a position to consider how they assisted me in deciding her appeal. I received them and have considered them.

High Court Appeal Documents

[10]On this appeal, the Court’s receipt of materials from both parties included the following. First, the Appellant filed an appellant’s notice on 14 August 2023, accompanied by 40-page grounds of appeal. Second, the NMC provided a 47-page skeleton argument with annexes (13 January 2025) and (on 17 January 2025) a bundle of authorities together with a 3229-page appeal bundle including(a) the appellant’s notice and grounds of appeal;

(b) the Committee’s appealed decision;

(d) the documents which were before the Committee; and

(e) the guidance referred to in the hearing. Third, the Appellant provided a bundle of additional documents, a 70-page skeleton argument (24 February 2025), and five further documents (28 February 2025). These were scanned by my clerk. Fourth, the NMC provided two witness statements (5 March 2025 and 6 March 2025) addressing topics relating to documents and disclosure; a 13-page Note incorporating a Table (10 March 2025); 67 pages of documents (provided on 10 March 2025); and then the Blake Morgan NMC Investigation Report and the Case Examiners referral decision (provided on 12 March 2025). Fifth, on 5 June 2025 the NMC provided a 119-page bundle of documents comprising: (a) an email from the Appellant dated 2 September 2020 with 15 attachments which were included in her first bundle of documents before the Committee: (b) the LHB’s online referral to the NMC; and (c) the 67 pages of documents provided on 10 March 2025. Sixth, the NMC provided on 2 June 2025 a 14-page Speaking Note of the points which Counsel intended to advance at the resumed appeal hearing, in light of the Appellant’s oral submissions delivered over the course of two days in this Court.

High Court Appeal Hearings

[11]The position as to hearings of this appeal in the High Court was as follows. i) On 7 August 2024 the Administrative Court Office (ACO) listed the substantive hearing (with 2 days allocated) to be heard on 28 and 29 January 2025. That January 2025 hearing was vacated by me, at the request of the NMC (27 January 2025) and with the Appellant’s consent, because of urgent personal circumstances relating to the NMC’s advocate. The hearing was refixed for 11 and 12 March 2025. ii) The two-day March 2025 hearing went ahead. The Appellant appeared in person. She made clear and comprehensive oral submissions, further to her grounds of appeal and skeleton argument, which she adopted. Given the detailed nature and the large number of topics and points which she wanted to cover, and the extensive materials to which she wanted to refer, it would not have been possible to complete the hearing within the 2 days allocated unless I imposed a curtailment on her scope and flow. I decided not to do so. I made a decision during the course of the first day, unopposed by the NMC, that the Appellant should be permitted to use the entirety of the 2 days to present her oral submissions in support of her appeal. That is what happened. I decided that I would adjourn the case part-heard so that, at a one-day resumption hearing, the NMC could respond and the Appellant could make any reply. I decided that the Court and the Appellant would be assisted by the NMC filing a Speaking Note ahead of the resumed hearing. iii) The resumption hearing was scheduled for 5 June 2025. On 2 June 2025, the NMC’s advocate’s 14-page Speaking Note was provided. The June 2025 hearing was vacated by me, as requested by both parties, for reasons relating to the Appellant’s health, and urgent personal circumstances relating to the NMC’s advocate. It was refixed for 2 July 2025. iv) The July 2025 resumption hearing did not go ahead. The Appellant requested an adjournment to an alternative date of 7 October 2025, for reasons relating to the health of a family member and because none of the three barristers which she had identified as potential advocates for the resumed hearing were available on 2 July 2025. I decided to adjourn the hearing, which was fixed for 7 October 2025, reminding the parties that the purpose of the resumed hearing was so that the NMC’s advocate could made oral submissions (for which there was the Speaking Note), and then hear any reply by (or on behalf of) the Appellant. v) The October 2025 resumption hearing did not go ahead. On 23 September 2025 and 2 October 2025 the Appellant requested an adjournment of the hearing on 7 October 2025, for reasons relating to the health of a family member. She had identified an advocate but he confirmed (6 October 2025) that he was not instructed for the hearing. The NMC ultimately itself requested an adjournment, for health reasons relating to a family member of its advocate. I adjourned the hearing, inviting the NMC to file a witness statement recording the sequence of events regarding all the adjournments, as it undertook to do and subsequently did (13 October 2025). I made an Order (14 October 2025). vi) The Court sent notice (16 October 2025) that the resumption hearing was listed for 17 February 2026. The hearing proceeded on that date as scheduled.

Proceeding in absence

[12]The Appellant did not attend the hearing on 17 February 2026. There had been no communication from her to the Court or to the NMC to say that she was not coming, or not able to come, or seeking an adjournment, or providing support for an adjournment. The hearing commenced at 10:30am. I proceeded with circumspection. The hearing was paused to allow enquiries to be made and to ensure I had the relevant information. Having done so, Ms Alabaster for the NMC invited me to proceed in the Appellant’s absence. I considered the commentary at the White Book 2025 pp.1239 and 1907. I decided (at 11:40am) to proceed with the resumption hearing of this part-heard appeal, in the Appellant’s absence. In dealing with the appeal, I have dealt with the points raised on the appeal, including those raised in the Appellant’s extensive written and oral submissions, and on their legal merits. In considering the substance of the appeal, I have not held against the Appellant in any way the fact that she did not attend the resumption hearing. I have kept in mind that she is a litigant in person and remained on the look-out for any points which could be taken in her favour. So did the NMC’s advocates.

[13]My reasons for proceeding with the resumption hearing in the Appellant’s absence were as follows: i) First, the Appellant had been able to put forward her appeal. She had provided extensive grounds of appeal and written submissions with supporting materials. She had already made two days of oral submissions, and her oral submissions in support of the appeal were complete. I was in a good position to consider the legal merits of the appeal, following what was already a full and fair opportunity to make written and oral submissions. ii) Second, the Appellant had ceased communication, using known and available channels, and was not contactable. She had used an identified email address to make and receive relevant communications. She had the contact details for the Court, for my clerk, and for Ms Alabaster at the NMC. She knew of the adjournment on 6 October 2025 and had communicated about it. She knew that the case had been adjourned and was to be refixed. She knew how to communicate with the Court, and to cc the NMC. I was told that enquiries made by the Court office and staff, enquiries with my clerk and former clerk, and enquiries within the NMC’s email in-boxes revealed no communication from her. No further adjournment had been requested. Calls were made by the Court and by the NMC to her mobile phone, but they were unanswered. Emails were sent, but there was no response including automated response. iii) Third, there had been several communications giving clear information. She was a recipient of an email from my clerk (6 October 2025 at 12:54) communicating the adjournment and indicating that the resumption was likely to be February/March 2026. She was a recipient of an email from the NMC (13 October 2025 at 12:09) attaching the NMC witness statement and exhibits relating to the various adjournments and the awaited new date. She was a recipient of an Order which I made on 14 October 2025. She was a recipient of an email (16 October 2025 at 17:16) notifying the new hearing date. There was also a letter (16 October 2025). These communications contained reminders as to the way to make any application, of which the Appellant had direct previous experience. Ahead of the hearing (16 February 2026 at 11:51) the NMC had emailed a costs schedule, referable to the hearing. The hearing and its start time were published in the Court’s cause list. There was no evidence of any notification, request or query from the Appellant. iv) Fourth, I arrived at these conclusions. The Appellant’s disengagement from the resumed hearing was a deliberate and voluntary act. She had waived her right to be present and listen to the NMC’s submissions and make a reply. She did so having seen the Speaking Note containing the points which the NMC’s advocate was going to advance. She did so having made her own written and oral submissions. The waiver was clear from her conduct. There was no reason for a further adjournment. It was, moreover, it was highly unlikely that any further adjournment would achieve any purpose. It would lead to another equivalent set of communications. It would increase the costs of the appeal, by increasing NMC’s costs of resisting it. In all the circumstances, in the interests of justice and having regard to the overriding objective, it was appropriate – and in no way unfair – to proceed.

[14]So, the resumption hearing proceeded from 12:00 noon. Ms Alabaster – who was stepping in as a replacement for the previous NMC Counsel – used the time available to do four things. First, she raised and explained a point about the Case Examiners’ report, out of her duty of candour. I was satisfied that the point raised did not alter the position as to proceeding in the Appellant’s absence. I will return to it at §74 below. Second, she took me through the Speaking Note which had been provided to the Appellant on 2 June 2025, and which she knew contained the points which the NMC wanted to make in oral submissions. Third, she adopted the NMC’s skeleton argument and Note (13 January 2025 and 10 March 2025). Fourth, she assisted me with some questions which I considered had arisen out of the Appellant’s submissions. The resumption hearing concluded and I reserved my judgment to provide it in writing, as I now do.

Tackling the Issues

[15]In deliberating about this case and approaching the writing this judgment, I had to make some decisions about the best, clearest and fairest way to tackle the comprehensive and wide-ranging set of points advanced by the Appellant in writing and orally in support of her appeal. I have read everything she wrote, listened to everything she said, and re-read my notes of what she said. In analysing the nature and relevance of her points, given the legal prism through which the Court considers a statutory appeal, it has been possible to identify and gather together themes and points which – in my judgment – best and most helpfully encapsulate the substance of what the Appellant has been submitting to the Court. The framework and the focus in what follows in this judgment has largely come from me, in gathering, channelling and assessing the key themes and points and analysing the issues that matter. It is neither necessary nor proportionate to identify every point. However, I am confident that I have included every point which could potentially make a difference.

The Scope of the Committee’s Enquiry

[16]A strong and recurring theme in the Appellant’s appeal comes, in essence, to this. It was wrong and/or unjust for the Committee’s focus to be limited to the 9 competence Allegations and the 29 misconduct Allegations. The Committee did not have the whole picture. It did not have materials relating to, and did not consider, a series of other highly material and illuminating matters. These would have enabled it to get to the truth, and understand the true picture. The Appellant, for her part, wanted the Committee to have the full picture. She wanted the Committee to consider those other matters. But she was unfairly constrained in defending herself. Documents were not provided to the Committee by the NMC. Contents of documents were redacted, so that relevant matters could not be seen. The Appellant wanted to show what matters had been raised within the LHB and the LHB procedures, and how they had been pursued. She wanted to show what matters had and had not been investigated by the LHB, and what matters had been dropped by the LHB. She wanted to show the Committee that – provided that she was given specific details with specific dates and identified patients and relevant contemporaneous records – she could refute criticisms which were made of her. By doing this, she wanted to show how very unfair it was for vague, non-specific and undocumented allegations to be pursued by the NMC, without dates and patients and records. She wanted to show the Committee the back story, including the culture of bullying, harassment and racism at the LHB; the coffee room gossip. The back story was highly relevant and important. It could cast critical light on what was being said, on the evidence of former colleagues from the LHB, and on the veracity of what they were telling the Committee. That was the essence of the Appellant’s argument in relation to this theme.

[17]The Appellant gave specific examples of this problem as to the scope of the Committee’s enquiry. Foremost among them were the following: i) First, there are the events of 11 May 2016 relating to Patient G. This was the subject of the witness statement of Caroline Davis (23 February 2020). That was a statement obtained in the NMC investigation, prior to the Blake Morgan Investigation Report. It was a statement omitted by the NMC from the documents it placed before the Committee. There was a specific date (11 May 2016) and a specific patient (Patient G). There were patient records. Records and other documents were gathered by the NMC. But none of them were included in the materials for the Committee. They, and the statement of Caroline Davis, are fresh evidence put forward on this appeal. The Appellant says she is able to show from the contents of the patient records for Patient G that the criticisms of Caroline Davis were unfounded. The supposed deficiencies on the Appellant’s part were not deficiencies at all. This is important. It shows unwarranted criticisms being made within the LHB. It also shows that the Appellant can defend herself successfully, when given specific dates and patient details and contemporaneous records, rather than vague and general allegations made without any such material. That is the Appellant’s argument. ii) Next, there is an alleged ‘standing on the bed’ incident of 20 August 2016 relating to an unnamed patient. This incident was described within the JB/09 report, which was before the Committee. What was said there was this. Hannah Thompson had taken over from the Appellant on 20 August 2016, looking after a patient with an inserted epidural, and the Appellant had told Hannah Thompson that the woman had “stood on the bed pushing”. It was then said that the Appellant had confirmed in a discussion on 31 August 2016 that this ‘standing on the bed’ had occurred. This, says the Appellant, was a false accusation. The incident never happened. The discussion never happened. It was falsified in JB/09 as a deliberate untruth. The roster for 20 August 2016, a document which was placed before the Committee, shows that Hannah Thompson was not working that day. The Committee treated this as irrelevant. But it was highly relevant. It demonstrates false accusations made against the Appellant. It shows the deliberate untruths in the JB/09 report. That is the Appellant’s argument. iii) Next, there is the retained swab incident of 9 June 2018 involving Patient B. The NMC redacted references to this incident out of the documents for the Committee. That was unfair to the Appellant. The retained swab incident was an unfounded allegation. It is true that a swab was left unretrieved inside Patient B, after a birthing operation. It is also true that the Appellant signed a document to record that she had counted the correct number of swabs, when the number retrieved was incorrect. But the circumstances, says the Appellant, are important. Her colleague and superior Sue Jordan was present at the operating theatre. Sue Jordan instructed the Appellant to go and write up her notes in the office. The operating clinician Dr Muel had then come into the office and demanded that the Appellant sign the form, when Dr Muel knew full well that the Appellant was not present when the swabs were removed and counted. This is important. It was one of the two matters which was relied on by the LHB as alleged gross negligence justifying dismissal from employment. The Appellant had good answers to it. It was relevant that the Committee should consider it, to put the nature of the other allegations against her into context and to shed light on the veracity of evidence against her, and on her own defence. That is the Appellant’s argument. iv) The Appellant says these are important examples. They are illustrative of an enquiry by the Committee which was wrongly and unjustly narrow in its scope. It did not enable the Committee to arrive at the true picture. It did not afford the Appellant a fair defence. That, then, is the essence of the Appellant’s line of argument on this part of the case.

[18]I have not been able to accept that the Committee’s decisions or decision-making approach or decision-making process was wrong or unjust on this basis. These are my reasons. The starting point is that the Committee needed to make determinations on the facts, and then as to impairment and as to any sanction, by reference to the 9 competence Allegations and 29 misconduct Allegations contained in the list drawn up as the NMC’s case against the Appellant. It was evidence and points made relating to those 38 Allegations which were inevitably going to be, and remain, the primary focus of the hearings before the Committee. There would inevitably be limits to the extent to which an adjudicative body deciding the factual and regulatory merits of a list of Allegations was going to be assisted by being drawn into finding facts about satellite issues regarding a series of other incidents.

[19]It was for the NMC to draw up the list of Allegations which were the NMC’s case against the registrant. It was for the NMC to identify documents and materials on which it was relying as relevant to the 9 competence Allegations and 29 misconduct Allegations which constituted the NMC’s case against the Appellant. The events of 11 May 2016 relating to Patient G formed no part of the case against the Appellant. The NMC was not relying on the witness statement of Caroline Davis (23 February 2020) in relation to that matter. Nor did the alleged standing on the bed incident of 20 August 2016 form part of the NMC’s case against Appellant. Nor did the retained swab incident of 9 June 2018 involving Patient B form any part of the NMC’s case. The practice of putting aside witness statements relating to other incidents, and the practice of redacting descriptions of other incidents from documents, was not new. It was logical and sensible. It was a step which would avoids potential unfairness to the registrant. Any registrant would be entitled to say – with real force – that a fitness to practise committee should focus on the incidents which are relied on, and there should be no risk of prejudice from knowing about other incidents on which no reliance is placed.

[20]The consequence of the focus adopted by the NMC in putting forward its case, leaving out materials such as the Caroline Davis statement (Patient G), and redacting descriptions like the retained swab incident (Patient B), was this. There were materials which related to incidents which were not part of the NMC’s case, which the NMC was not putting before the Committee. That meant these were in the nature of “unused material”. For her part, the Appellant had two things. First, she had access to the documents. Second, she had transparency as to what the NMC was putting forward to the Committee. The question was then whether the Appellant wanted, for her part, to put any “unused” materials forward and make points about them when making her defence to the Allegations, at any of the Committee’s stages of adjudication.

[21]I can accept, in principle, that it could – depending on the circumstances – be wrong or unjust for a fitness to practise committee to refuse to allow a registrant the opportunity to put forward materials, explanations and representations, as part of her defence, even if (or because) they related to incidents which were no part of the case against her. The committee would need to consider relevance, fairness and the appropriateness of any embarking on satellite fact-finding. Whether a registrant wants to introduce evidence about other incidents, which may or may not ultimately cast the registrant in a better light, would be a strategic question for the registrant to consider with their representatives. It may be a very bad idea, and could risk prejudicing the registrant’s defence, to draw attention to other criticisms and concerns. It could give the impression of being evasive, and trying to avoid facing up to the incidents which are directly relevant. Or it could be helpful to the registrant. I can quite see that a registrant may wish to say that the allegations which have been raised against them can only be seen in their true light when a bigger picture is seen and considered. They may wish to say that materials relating to other incidents are illuminating: as to the reliability of what former colleagues are saying; or as to why they are saying it; or as to the reliability of documents; or as to the registrant’s own position in being able to answer the matters relied on. If that is what a registrant or their advocate wants to try and say, then the Committee would need to consider how far it should be permitted, and what ultimate assistance it could provide.

[22]In the present case, I find it impossible to see anything wrong or unfair in the way the Committee approached the question of other incidents. The Appellant had a series of opportunities to put forward materials of her own. It was she who had supplied the documents which comprised the 145-page first bundle of registrant’s documents which were placed before the Committee. She was then specifically given a further opportunity to provide documents when she came to make her defence and give her evidence, and provided the 82-page second bundle. She had the chance to provide her witness statement. She gave her oral evidence. Her advocate Mr Cooray made closing speeches. All of this was prior to the Committee’s determination of the facts.

[23]The first hearing day had been on 25 February 2022 (Day 1). The NMC had called live witnesses to give oral evidence between 1 March 2022 (Day 2) and 10 November 2022 (Day 20). The Appellant gave her oral evidence between 4 January 2023 (Day 22) and 6 January 2023 (Day 24), and continued to give her oral evidence between 22 February 2023 (Day 25) and 27 February 2023 (Day 27). Closing speeches on the facts were on 28 February 2023 (Day 29) on behalf of the NMC and 1 March 2023 (Day 30) by Mr Cooray on behalf of the Appellant.

[24]The Caroline Davis statement (as to Patient G and 11 May 2016) is illustrative of the opportunities. It was something that came up at the hearing on 2 March 2022 (Day 3). The Appellant told the Chair:

“I request that [the] Caroline Davis statement and patient’s notes be returned to the folder, because it had been removed”, explaining that “she’s a midwife who made a very extensive statement against me”

. She said “I do have it … but I would like it to be included, with the patient’s notes – Patient G I think”. The Chair (Derek McFaull) understandably observed that:

“There’s no charges around Patient G”

. In light of that observation, the Appellant said: “I will let it go”. But the Caroline Davis statement then came up again on 7 March 2022 (Day 6), when Mr Cooray told the Chair: “We do require it, and it is in the unused material. It is a very important piece – when we get all the evidence”. The Committee’s legal assessor (Charles Parsley) gave this advice: “if the NMC do not wish to produce it as part of their case and it is … in the unused material, then if you wish it to be introduced you would have to seek to have that evidence introduced as part of Ms Semenenko’s case and … it would have to be relevant and fair that it be admitted”. Mr Cooray accepted this, saying: “we could refer to it during … her defence submission”.

[25]Then, when her time to give evidence came, the Appellant provided here 16-page witness statement on 4 January 2023 (Day 22). There was no constraint on what she could choose to address in that witness statement. She included a section on “background” and gave evidence about what she said was an LHB environment including gossip behind her back, bullying and racism. She included evidence about the LHB’s suggested capability programme and mentoring, and about what she said had been an unjust suspension by the LHB in April 2018. I interpose that this was the subject-matter of the LHB grievance procedure. The witness statement alluded to an occurrence which was “revealed to be a fabrication”. It described being dismissed by the LHB following “two incidents”. I interpose that they were the blood sample mixing incident (Patient A) and the retained swab incident (Patient B). As to those, the witness statement said:

“I will address these incidents or, if applicable, charges later in this witness statement”

. Later in the witness statement, the Appellant went on to address one of them, which had become the blood sample mixing competence Allegation (25 June 2018, Patient A). She did not address the retained swab incident (9 June 2018, Patient B). Not did she raise and address the ‘standing on the bed incident’; nor the Patient G incident; nor the Caroline Davis statement about the Patient G incident. Instead – and entirely understandably – she gave the background and addressed the “charges” which were “applicable” as the case against her.

[26]A further clear opportunity arose on 23 February 2023 (Day 26). The Appellant had now resumed her oral evidence on 22 February 2023 (Day 25), after a 16 day break since 6 January 2023 (Day 24). In that resumed oral evidence on Day 25, she addressed the report JB/09 which – despite the redactions – contained a visible reference to the ‘standing on the bed’ incident. The Chair observed:

“this isn’t an allegation that’s put before us” and “we won’t consider that paragraph because it’s not evidence to any of the allegations that are in front of us”

. The Appellant responded that “this paragraph is fabrication” and “evidence supporting the fact that Jane Beasley was fabricating her report”. Then the next day (Day 26), it became apparent that the Appellant and Mr Cooray her advocate wanted to put in further documents.

[27]In response, the Chair said:

“we are more than happy to take that evidence”

. He said:

“the easiest way to do this is if you have a document you want us to refer to, it’s put in a bundle and we work through it”

. He then said:

“can I put on record, Ms Semenenko, you take whatever time you need to get the evidence before this panel… If it takes you the rest of the day to do this, take the rest of the day, and tomorrow, and however length of time it needs to take … don’t feel rushed”

. The hearing was adjourned at 11:05 for documents to be provided.

[28]The Appellant and Mr Cooray compiled and provided the second bundle of documents (82 pages) and the hearing resumed at Day 26 at 16:00. They did not feel they needed “tomorrow”. They did not ask for more time. They did not say there were any documents which they needed from the NMC. The 82-page bundle included LHB documents (§9iii above), and an extract from the Medical Practitioner’s Tribunal in relation to Dr Muel and the retained swab incident. There were also documents relating to the Appellant’s own allegations of bullying, harassment and racism; and her pursuit of the LHB’s grievance procedure. The Caroline Davis statement was not included.

[29]So, the Appellant’s oral evidence resumed. On 24 February 2023 (Day 27) she told the Committee that “I want to present … a case of bullying and racial discrimination whilst I was there, the environment I was working in as a part of it”. The Chair said: “OK”. The Appellant then went on to refer to Dr Muel and “two examples”, one of which was “the incident with the swabs” when “he made me sign the papers whilst I wasn’t in the room”; and that “the doctor who left the swabs in the woman’s body … lied about me being in the room”. The Chair said: “there’s no charge about the swabs” and “I think your point is, and if I can clarify, just to make sure we have got it correct, your point is that you’re giving us an example of where the [LHB] treated a doctor and you in a different manner” which “wasn’t right”. The Appellant said “yes”, the LHB had used “completely different criteria”.

[30]Finally, after the Appellant’s oral evidence and the NMC’s closing, the Appellant’s advocate Mr Cooray made his closing speech on behalf of the Appellant (Day 30). The speech did not focus on other incidents which were no part of the case against the Appellant. They did not explain why it was appropriate for the Committee to make findings of fact about them.

[31]I have gone into this topic in detail, because of its prominence as a theme in the Appellant’s appeal to this Court. I am satisfied that the Appellant had a full and fair opportunity to put forward oral and written evidence in her defence. She was able to describe the background, and the work environment out of which evidence from LHB colleagues came. She was able to refer to other incidents. She was able to suggest fabrication of evidence. She and Mr Cooray were able to point out that the two matters which for the LHB had been a basis for dismissal for gross negligence were:(i) the blood sample mixing incident (Patient A), which was only an NMC competence Allegation and not an NMC misconduct Allegation; and

(ii) the retained swab incident (Patient B), which did not feature in the case against her at all. The Committee did not shut any of this out. The Committee gave multiple opportunities. The Committee considered the Appellant’s description about the work environment. It considered her description of fabricated documents. It did not accept her evidence on these points. The Committee was not wrong or unjust to decline to make findings of fact about what did and did not happen in relation to the ‘standing on the bed’ incident (20 August 2018). Nor about Caroline Davis’s statement, which I have read and which was really about the adequacy of the Appellant’s notes at the moment of handover of Patient G (11 May 2016), not about whether the notes became adequate after the Appellant stayed on after her shift to fill in identified gaps. Nor about the circumstances of the retained swab incident and whether the Appellant’s signing of the swab-count document was excused by any action by Sue Jordan or Dr Muel. I repeat: none of these formed part of the case against the Appellant. They were not being held against her. Their resolution would have entailed a satellite enquiry. Given every opportunity, and having provided some documents, the Appellant and her advocate failed to show that findings on these other incidents were appropriate.

[32]I am not, on this appeal, going to make findings of fact about what did and did not happen in relation to the standing on the bed incident (20 August 2018); nor about Caroline Davis’s statement and the adequacy of the Appellant’s notes at the time of handover of Patient G (11 May 2016); nor about the circumstances of the retained swab incident and whether the Appellant’s signing of the swab-count document was excused by any action by Sue Jordan or Dr Muel. It is not relevant to this appeal to do so. It is not appropriate to do so. I am in no position to do so. I have to decide whether the Committee went wrong or acted unjustly. It did not. Nor is there any basis for my overturning as wrong or unjust what the Committee found as to alleged “culture of xenophobia and bullying in the workplace” (§62 below); or what it found as to the fabrication of JB/09 (§64 below). These findings on these issues were neither wrong nor unjust. They were proper and justified findings by the Committee, based on everything it had read and heard.

[33]What is, and was always, necessary for the purposes of this appeal is to focus on the incidents which were the direct focus of the case against the Appellant, and what she says to this Court about those. That is where I now turn.

Patient C (20 August 2016) and Patient D (2/3 November 2017)

[34]It was obvious, from the time that the NMC’s Allegations were drawn up, that the incidents on 20 August 2016 in respect of Patient C, and on 2/3 November 2017 in respect of Patient D, were of central significance. They were at the heart of the case. This is why. There were 29 misconduct Allegations. Of these, 19 related to one or other of these incidents. There were 9 misconduct Allegations which related to Patient C and 20 August 2016. There were 10 misconduct Allegations which related to Patient D and 2/3 November 2017. Pausing there, in the event, the Committee found proved 7 misconduct Allegations in relation to Patient C and 9 misconduct Allegations in relation to Patient D. These were specific incidents on specific dates, with identified patients, and with available patient records. That means they were precisely the sorts of complaint which the Appellant was – and still is – saying she would be able to refute. They were not general or vague or non-specific. They were the subject of direct first-hand oral evidence from individuals who were not former LHB colleagues, but who were the patients themselves. They had each given written statements during the NMC investigation, which statements were in the materials. Patient C gave oral evidence to the Committee on 25 February 2022 (Day 1) and Patient D gave oral evidence on 1 March 2022 (Day 2). They were cross-examined by and on behalf of the Appellant. They were questioned by the Committee. So were other witnesses who gave relevant evidence. Then, of course, the Appellant gave her own witness statement and oral evidence to the Committee, addressing the alleged incidents involving Patients C and D. All of this was at the heart of the case, and was at the heart of the Committee’s striking-off sanction.

Patient C (20 August 2016)

[35]Here are the 7 misconduct Allegations which the Committee found proved and found constituted misconduct, in relation the Appellant’s actions in the case of Patient C (20 August 2016). [8i] On 20 August 2016, the Appellant made inappropriate comments to a patient (Patient C), saying words to the effect of “I am Anya, I am Russian. If you don’t like that I can get another midwife”. [8ii] On 20 August 2016, the Appellant made inappropriate comments to Patient C, saying words to the effect of “I am quite different, you either love me or hate me, take it or leave it”. [9a] On 20 August 2016, the Appellant spoke inappropriately to Patient C by informing Patient C that she (the Appellant) did not agree with hospital policies and guidelines and went with her own practice. [9b] On 20 August 2016, the Appellant spoke inappropriately to Patient C by informing Patient C that she (the Appellant) would not let her own daughter have an epidural. [11a] On 20 August 2016, the Appellant instructed Patient C to inform the next midwife that she was 9cm dilated notwithstanding that she (the Appellant) knew Patient C to be 10cm dilated. [11b] On 20 August 2016, the Appellant recorded in Patient C’s notes that Patient C was 9cm dilated when she (the Appellant) knew Patient C was 10cm dilated. [12] The Appellant’s actions in Allegation [11a] and [11b] were dishonest in that the Appellant had examined Patient C and knew her to be 10cm dilated.

[36]The essence, as I saw it, of the Appellant’s appeal to this Court in relation to Patient C and the events of 20 August 2016 was as follows. i) It was wrong and/or unjust: to make adverse findings of fact in relation to these misconduct Allegations; to find that there was inappropriate conduct on the Appellant’s part; to find misconduct; and to find dishonesty. ii) There was no independent corroboration of Patient C’s evidence. LHB colleague Mark Smart told the Committee that he had been present in the room with Patient C and the Appellant, for some of the time. But Mark Smart’s evidence was wholly discredited by the rota which showed he was on annual leave on 20 August 2016. The incident with Patient C was back in August 2016. It was never part of any LHB’s disciplinary procedure. There was no contemporaneous record of any action by or within the LHB: no “Datix” document; no disciplinary investigation by the LHB; no disciplinary interview; no opportunity at the time to respond. The evidence that Patient C’s mother had complained to LHB colleague Susan Pippen was also wholly discredited: by the rota which showed Ms Pippen (like Mark Smart) was not working on 20 August 2016; and by Jayne Beasley’s evidence that it was Jane Morgan and not Susan Pippen who reported the incident. The post-handover notes of colleague Holly Griffiths do not support several of the Allegations, and there was no opportunity to cross-examine Ms Griffiths. There is an SBAR document (a supposed meeting note) but that document was fabricated. iii) The contemporaneous documents show that Patient C was unhappy with the treatment she received at the hospital prior to the Appellant’s role. Patient C’s evidence against the Appellant has come years after the event. It has been guided or steered to make the case against the Appellant. Patient C lied to the Committee under oath, saying she had made a formal complaint when in fact she had filled in a clinical negligence proforma. iv) Allegations [8i] and [8ii] mischaracterise comments which were a friendly joke to put Patient C and her Spanish husband at ease. Allegation [9a] is derived from coffee room gossip and Patient C was steered to say this. Allegation [9b] is referable to the Appellant following policy and avoiding recommending an epidural, and anyway there was no delay in granting Patient C’s wish. Allegation [11a] is borne out of miscommunication, with the Appellant saying too much and the message getting lost in translation, in circumstances where Patient C was 9cm dilated, which fluctuated to 10cm during a strong contraction and then back to 9cm. It would not make sense to instruct a patient to say something to a midwife, and the midwife would never take it from the patient. Allegation [11b] is wrong: the Appellant recorded both 9cm and 9½cm, at a time when there was fluctuation and the Appellant knew that Patient C was not ready to push. Allegation [12] is wrong: it was a temporary fluctuation to 10cm, not knowledge of a 10cm dilation, and there was no dishonesty.

[37]I have considered all of the points which the Appellant has made in relation to this part of the case. I can see no basis for a conclusion that the Committee’s findings, approach to the evidence, or reasons were wrong or unjust. There is no basis on which this Court could properly overturn the Committee’s findings relating to Patient C.

[38]The Committee had the considerable advantage of hearing the first-hand oral evidence, tested with questioning, of Patient C and of the Appellant. It had the closing submissions of the NMC advocate and the Appellant’s advocate. It had well in mind the passage of time, what had been raised, and when. The Committee had the contemporaneous post-handover note, which colleague Holly Griffiths wrote on the day itself (20 August 2016). That note recorded what Patient C told Ms Griffiths. The entry at 19:55 said Patient C “has just informed me that at previous examination at 19:00 Anya, midwife examining had told her she was ‘fully dilated’ but had told [Patient C] ‘not to tell’ and [Patient C] is aware that I believed last examination was 9cm as documented”. This same topic was referenced in a further contemporaneous entry at 13:00 on 21 August 2016 describing a conversation with Patient C’s mother and the family being “unhappy with aspects of previous midwife’s care”. In terms of what was “documented”, the Committee had the Appellant’s contemporaneous cross on the chart to show 9cm and 19:00, and the Committee heard the Appellant’s evidence about another mark on the chart. The Committee took a careful, fair and informed approach to Mark Smart’s evidence and the rota. It decided on 24 August 2022 (Day 17) that he should be recalled specifically because of that topic, he was questioned about it on 10 November 2022 (Day 20) and explained that he was “called in to cover a shift in theatre”. The Committee accepted this and relied, in the Appellant’s favour, on Mark Smart’s description of what happened when he “was present” in the room, in finding not proved misconduct Allegations [10a] and [10b] about the Appellant “shouting”. The Committee had an email from Jane Morgan to Jayne Beasley on 24 August 2016 describing conversations between Jane Morgan, Patient C and Patient C’s mother – not on the day itself – but rather after Patient C was “readmitted” and Jane Morgan had been “caring for her”. The Committee considered this and the other evidence with care. It gave clear and cogent reasons for its findings.

[39]In the decision document, the Committee’s fact-finding consideration of the misconduct Allegations relating to Patient C and 20 August 2018 covers 19 pages. The Committee considered relevant contents from the following: Patient C’s medical notes; the oral evidence from Patient C, the Appellant, Mark Smart (including his recall as a witness to deal with the point about the rota), Jayne Beasley, Jane Morgan and Susan Pippen; the contents of the Appellant’s witness statement provided for the Committee; the contents of witness statements given in the NMC investigation by Patient C, Mark Smart, Jayne Beasley and Jane Morgan; documents describing meetings, between Jayne Beasley and Mark Smart, between Jayne Beasley, Mark Smart and the Appellant, between Jayne Beasley and Patient C; Jayne Beasley’s JB/09 report (about whose “credibility and reliability” it had earlier made findings); Jane Morgan’s email (24 August 2016); documents relating to the LHB’s capability review; and the clinical negligence proforma dated 16 November 2016.

[40]The Committee’s reasons in relation to misconduct Allegation [12] end with this: The panel was of the view that you had been aware that Patient C was 10cm dilated when you deliberately wrote down in her medical records that she was 9cm dilated. You had also told Patient C that you were going to record that she was 9cm dilated in her medical records. The panel was satisfied that you instructed Patient C to tell the oncoming midwife that she, Patient C, was not fully dilated and this was said within earshot of Patient C’s mother. The panel found you had done this with the intention to avoid intervention. The panel was of the view that you would have been aware that it was deliberately misleading to instruct Patient C to give false and misleading information to the oncoming midwife that she was not fully dilated. The panel was also of the view that you would have been aware that it was deliberately misleading to write a false entry in Patient C’s notes. The panel bore in mind that it had heard evidence that you did not like intervention during labour however irrespective of your own personal opinions you should have followed the hospital’s policy. The panel was of the view that an ordinary decent person would conclude that your conduct during this incident was dishonest. The panel was satisfied that your actions in recording a false entry in Patient C’s medical notes and instructing Patient C to inform the next midwife that Patient C was 9cm dilated when you knew that she was 10cm dilated was dishonest in accordance with the test set out in the case of Ivey v Genting Casinos. The panel therefore found this charge proved.

[41]In my judgment, there is no basis within the Appellant’s grounds of appeal and skeleton argument or otherwise, including when looking at criticisms in combination and as a whole, for this Court to conclude that the Committee’s decisions or decision-making were wrong or unjust. What follows from this is that the Committee’s findings on the 7 misconduct Allegations found proved in relation to Patient C and 20 August 2016 – including the finding of dishonesty – must stand.

Patient D (2/3 November 2017)

[42]Here are the 9 misconduct Allegations which the Committee found proved and found constituted misconduct, in relation the Appellant’s actions in the case of Patient D (2/3 November 2017): Misconduct Allegation [13a]. On 2 and/or 3 November 2017, the Appellant was rude and abrupt to a patient (Patient D) and her partner whilst explaining how to use gas and air. Misconduct Allegation [13b]. On 2 and/or 3 November 2017, the Appellant failed to check the canister when Patient D informed her that the gas and air was not working. Misconduct Allegation [13ci]. On 2 and/or 3 November 2017, the Appellant failed to respect Patient D’s wishes and dignity by attempting to remove Patient D’s nightdress without warning or consent. Misconduct Allegation [13cii]. On 2 and/or 3 November 2017, the Appellant failed to respect Patients D’s wishes and dignity by pressurising Patient D’s partner and mother to watch the birth against Patient D’s wishes. Misconduct Allegation [13ciii]. On 2 and/or 3 November 2017, the Appellant failed to respect Patients D’s wishes and dignity by informing Patient D that she (the Appellant) would get 10 male doctors to perform stitches despite Patient D’s request for a female doctor. Misconduct Allegation [13cv]. On 2 and/or 3 November 2017, the Appellant failed to respect Patients D’s wishes and dignity by making inappropriate comments including telling Patient D that she had a “pretty vagina” thereby causing embarrassment to Patient D. Misconduct Allegation [13cvi]. On 2 and/or 3 November 2017, the Appellant failed to respect Patients D’s wishes and dignity by taking photographs of Patient D’s vagina without clinical reason or consent. Misconduct Allegation [13cvii]. On 2 and/or 3 November 2017, the Appellant failed to respect Patients D’s wishes and dignity by informing patient D that she (the Appellant) was disappointed she (Patient D) was giving up attempting to breastfeed notwithstanding Patient D’s baby having been unable to feed from the breast for over 4 hours. Misconduct Allegation [13cviii]. On 2 and/or 3 November 2017, the Appellant failed to respect Patients D’s wishes and dignity by inappropriately telling Patient D that she (Patient D) did not know what she was doing and must not have read any books, after Patient D asked to speak to her mother for advice.

[43]The essence, as I saw it, of the Appellant’s appeal to this Court in relation to Patient D and the events of 2/3 November 2017 was as follows. i) It was wrong and/or unjust: to make adverse findings of fact in relation to these misconduct Allegations; to find that there was inappropriate conduct on the Appellant’s part; or to find misconduct. ii) Patient D had made a complaint on 22 August 2018, the incident was added to the LHB’s disciplinary investigation (23 August 2018) and the Appellant responded in writing (9 January 2019). The matter was then dropped: the Appellant was interviewed in the LHB disciplinary procedure, only in relation to the Patient A (blood sample mixing) incident and the Patient B (retained swab) incident. Those alone were the subject of the Taylor investigation report (18 January 2019) and the LHB dismissal for gross negligence (17 July 2019). But then the Patient D (2/3 November 2017) incident was resurrected in the LHB’s online referral to the NMC (17 April 2019). The Appellant’s response in the LHB disciplinary procedure to the Patient D incident (9 January 2019) was not seen by the Committee, as it should have been. iii) The Patient D Allegations were and are untrue. The Appellant was not rude or abrupt. She checked the gas canisters, both of which were shockingly below 50%, and dealt with this by phoning from outside the room. The Appellant began to ease off the soaking wet nightdress, then respected Patient D’s wish to keep it on. Watching the birth was an offer, in circumstances where no birth-plan was recorded. The Appellant’s comments were and have been misunderstood and distorted. The comment about male doctors was a recognition that nobody would want that. The vagina comment was an act of reassurance. Taking photos was an offer: Patient D agreed and Patient D’s husband handed the Appellant his phone. The breast-feeding comment was an act of encouragement. The books comment was a reference to books which were available.

[44]Again, I have considered all of the points which the Appellant has made. But again, I can see no basis for finding that the Committee’s findings, approach to the evidence, or reasons were wrong or unjust. There is no basis on which this Court could properly overturn the Committee’s findings relating to Patient D.

[45]The Committee had the considerable advantage of hearing the first-hand oral evidence, tested with questioning, of Patient D and of the Appellant. It had the closing submissions of the NMC advocate and the Appellant’s advocate. It had the documents which the NMC and the Appellant had put forward. The Appellant had every opportunity to put forward the contents of her original response (9 January 2019), if she wished to do so. The Committee considered the timing of Patient D’s complaint, the absence now of any birthing plan; the credibility and reliability of Patient D’s evidence and specificity of her recollection. The Committee found not proved this misconduct Allegation [13civ]:

“On 2 and/or 3 November 2017, the Appellant failed to respect Patients D’s wishes and dignity by leaving Patient D after being informed that she felt the need to pass urine thereby necessitating Patient D to urinate on the bed.”

As to that, it found that the Appellant had acted to facilitate urination with a catheter, and Patient D (as she accepted in cross-examination) had not told the Appellant that she still felt the need to urinate. In the decision document, the Committee’s fact-finding consideration of the misconduct Allegations relating to Patient D and 2/3 November 2017 covers 20 pages. The Committee considered relevant contents from the following: Patient D’s medical notes; Patient D’s complaint (21 August 2018); the oral evidence from Patient D and the Appellant; the questions and suggestions which the Appellant had put to Patient D in direct questioning (which the Committee had permitted on 1 March 2022: Day 2). The Committee’s reasoning is comprehensive, clear and cogent.

[46]What follows from this is that the Committee’s findings on the 9 misconduct Allegations found proved in relation to Patient D and 2/3 November 2017 must stand.

Other Misconduct Allegations

[47]There were two further misconduct Allegations which the Committee found proved, and found constituted misconduct. These were: Misconduct Allegation [4]. On an unknown date in July 2016, the Appellant informed a patient that there was a risk that terrorists could contaminate formula milk, in an inappropriate attempt to persuade the patient to breastfeed her baby. Misconduct Allegation [14]. On an unknown date between June and August 2016, she spoke inappropriately to a patient whilst carrying out a vagina examination, using words to the effect of “your husband must have a small penis as you are very tense”.

[48]The Appellant says on this appeal that these adverse findings were wrong and/or unjust. In essence, as I saw it, she says this. These Allegations formed no part of the LHB’s disciplinary procedure. They were vague and undocumented: there was no identified date, no identified patient, no identified clinical records. These were examples of coffee-room gossip. They involved unreliable evidence from former colleagues who, in other respects, are proven liars. It was wrong to find them proved.

[49]As to Allegation [4], the Committee’s fact-finding consideration involved 2 pages of reasoned assessment. The Committee considered and accepted the clear and consistent written and oral evidence of colleague Maria Bell, who said she recalled this exchange with a patient:

“[The patient] said [the Appellant] had told her she should breastfeed because of what was going on. I asked what she meant and she said what’s going on with terrorists in the world, that they could put something in the formula to kill the babies”

. The Committee considered, and accepted, the evidence of Mark Smart and Jayne Beasley, about this incident being raised and discussed with the Appellant at a meeting on 22 July 2016. It considered notes relating to that meeting. It considered the Appellant’s witness statement and oral evidence, including her claim – which it rejected – that the notes relating to the meeting had been fabricated.

[50]As to Allegation [14], the Committee’s fact-finding consideration involved 1½ pages of reasoned assessment. The Committee considered and accepted the written and oral evidence of LHB colleague Mark Smart. It considered meeting notes dated 22 July 2016, when Mark Smart and Jayne Beasley were recorded as raising and discussing this incident with the Appellant. It considered the Appellant’s witness statement and oral evidence, including her denial – which it rejected – that the incident took place.

[51]Again, having considered these and all the other points which the Appellant has made, I have been able to see no basis for finding that the Committee’s findings, approach to the evidence, or reasons were wrong or unjust. In my judgment, I have been given no basis – and I can see no basis – on which this Court could overturn the Committee’s findings.

Misconduct Allegations which the Committee rejected

[52]I have kept in mind throughout that there were 11 further misconduct Allegations, and that these were not upheld by the Committee. Allegation [6] was found proved as to the facts but, as a genuine and admitted error, not constituting misconduct. The Committee on 11 November 2022 (Day 21) found no case to answer in relation to Allegations [2], [5a], [5b], [5c] and [5d]. The Committee found Allegations [3], [7], [10a], [10b] and [13civ] not proved. As has been explained above, this included two misconduct Allegations relating to Patient C and 20 August 2016 (Allegations [10a] and [10b]) and one misconduct Allegation relating to Patient D and 2/3 November 2017 (Allegation [13civ]).

[53]Here are the 11 Misconduct Allegations which the Committee did not uphold: Misconduct Allegation [2]. On an unknown date in 2016, without patient consent or clinical reason, the Appellant took photographs of a baby during the course of bathing the baby. Misconduct Allegation [3]. On an unknown date between 1 September 2016 and 3 October 2016, the Appellant told the partner of a patient that he would have to by his own formula milk, in the knowledge that the hospital provided formula milk. Misconduct Allegation [5a]. On an unknown date in May 2016, the Appellant conducted herself in an inappropriate manner in that she entered an occupied recovery area without knocking. Misconduct Allegation [5b]. On that unknown date in May 2016, the Appellant conducted herself in an inappropriate manner in that she spoke aggressively to the anaesthetist. Misconduct Allegation [5c]. On that unknown date in May 2016, the Appellant conducted herself in an inappropriate manner, in that she is discussed confidential details of a patient’s care in the earshot of another patient. Misconduct Allegation [5d]. On that unknown date in May 2016, the Appellant conducted herself in an inappropriate manner in that she shouted at and pointed a finger at a colleague (Colleague A). Misconduct Allegation [6]. On 6 February 2016, the Appellant incorrectly recorded the birthweight of a baby (Baby E) on the handwritten birth register. Misconduct Allegation [7]. On an unknown date between 2015 and 2016, the Appellant breached professional boundaries by driving a patient’s husband home in her private vehicle during her rostered working hours. Misconduct Allegation [10a]. On 20 August 2016, the Appellant conducted herself in an inappropriate manner in that she shouted at Patient C for allowing the doctor to locate a cannula in her (Patient C’s) hand. Misconduct Allegation [10b]. On 20 August 2016, the Appellant conducted herself in an inappropriate manner in that she shouted at the doctor in the presence of Patient C for locating the cannula in Patient C’s hand. Misconduct Allegation [13civ]. On 2 and/or 3 November 2017, the Appellant failed to respect Patients D’s wishes and dignity by leaving Patient D after being informed that she felt the need to pass urine thereby necessitating Patient D to urinate on the bed.

[54]The Appellant argued, in particular, that Allegation [7] involved a serious and false allegation about the circumstances in which she gave the lift. But the answer is that the Committee found this Allegation not proved, given the nature of the evidence from Jayne Beasley, Janet Lawson and the Appellant. The Committee did not find that any general or universal conclusion flowed from that specific finding or the others. There was nothing wrong or unjust in the way that and the other matters were approached and reasoned.

[55]The Committee considered each Allegation on its merits, on the evidence, with conspicuous care and with clear and cogent reasoning. I can see no conflict or material tension in the Committee’s reasoning. The Committee’s findings in respect of Allegations not being proved did not undermine findings as to Allegations which it found proved.

Misconduct Determination

[56]The Committee delivered its fact-finding determination, as to the competence and misconduct Allegations, on 5 April 2023 (Day 31). The Appellant and her advocate Mr Cooray then decided to withdraw from the proceedings. That was an informed choice by them. The Committee unassailably decided to proceed in the absence of the Appellant. There was nothing wrong or unjust in doing so. On 10 July 2023 (Day 32), the Committee heard the NMC’s submissions on whether the facts as determined amounted to a lack of competence, whether they amounted to misconduct, and if so whether the Appellant’s fitness to practise was currently impaired. It gave its reasoned determination on those issues on 13 July 2023 (Day 34). So far as misconduct was concerned, the Committee summarised the NMC’s submissions on misconduct, identified the relevant standards in the NMC Code of Professional Conduct, then gave a 4-page assessment of why the 18 misconduct Allegations did constitute misconduct. There then followed a reasoned assessment of why it found that the Appellant’s fitness to practise was impaired by reason of the misconduct.

[57]Within the Committee’s Day 34 determination it made these misconduct-related findings. The Committee reasoned that each aspect of misconduct would either be unacceptable and/or shocking to a fully informed member of the public or another registered professional; or alternatively that such a person would find it fell below the standards expected of a registered midwife. This is the thrust of what the Committee decided: i) First, as to Allegation [4] conduct. This conduct was highly inappropriate and unprofessional; it had the potential to cause emotional harm to the patient and her family; and failed to treat her patient with dignity and respect as she sought to influence the patient’s choices by providing false and misleading information. ii) Next, as to the Patient C conduct. The Allegation [8i] and [8ii] conduct caused Patient C emotional harm and distress; demonstrated a lack of respect and dignity; was unkind and unprofessional; and came at a time when Patient C was in an emotionally vulnerable, anxious and compromised situation. The Allegation [9a] conduct involved hospital policies and guidelines provided to ensure the best care for patients; involved the Appellant saying to patients that she went with her own practice and did not agree with the hospital policies and guidelines (provided to ensure the best care for patients); which was neither safe nor professional; and which would increase a patient’s vulnerability and undermine a patient’s confidence in the Appellant, the hospital and the midwifery profession. The Allegation [9b] conduct was inappropriate and unprofessional in providing a vulnerable patient with the Appellant’s own personal views when providing care; involved expressing disapproval of the patient’s decision which was inappropriate and unkind; and caused apparent emotional harm and distress. The Allegation [11a] and [11b] conduct was highly unprofessional; put Patient C in an untenable position by expecting her to lie to the next midwife; would undermine the patient’s confidence in the Appellant’s practice, the hospital and the midwifery profession; where the Appellant was required to work with her colleagues to provide the best possible care for her patients but had done the opposite. The Allegation [12] conduct involved knowingly recording the wrong information in patient records; it involved a patient in the deception; it breached the fundamental tenet of the midwifery profession of integrity; it caused confusion in relation to Patient C’s ongoing care; and it undermined public confidence in the midwifery profession. iii) Next, as to the Patient D conduct. The Allegation [13a] conduct caused Patient D emotional harm. The Allegation [13b] conduct involved the Appellant unacceptably failing to check the gas and air cannister even when alerted to the problem by a patient who was in pain. The Allegation [13ci] [13cii], [13ciii], [13cv], [13cvi], [13cvii] and [13cviii] conduct failed to respect Patient D’s wishes and dignity by not listening to her individual choices at a time when she was in a vulnerable state; it involved conduct and comments to Patient D which had been dismissive at the material time and action without regard for Patient D’s wishes or dignity which caused Patient D emotional harm and distress. iv) Finally, as to the Allegation [14] conduct. This would have caused embarrassment to the patient and was likely to have cause her emotional harm anddistress whilst in a situation where the patient was likely to be vulnerable.

[58]In its reasoned determination on impairment the Committee expressed the view that the misconduct Allegations, which it had found proved and had found constituted misconduct, collectively involved a pattern of behaviour, over what it called “several years”, indicating significant attitudinal concerns. I pause to note that the Committee’s reference to “several” years and misconduct was actually describing “two” years (2016 and 2017), but I am satisfied that nothing turns on this choice of description, in a context where the Committee was well aware of the relevant findings and the relevant dates.

[59]It was based on its determinations of the facts, and as to misconduct and as to impairment – and having heard submissions on sanction from the NMC – that the Committee went on to find on 13 July 2023 (Day 35) that the necessary sanction was a striking-off order. The Committee referred to the deep-seated attitudinal concerns, the absence of insight shown by the Appellant, the seriousness of the misconduct, and the importance of maintaining public confidence in the profession. The conclusion was clear, comprehensive and cogent.

The LHB: environment, procedures, documents etc

[60]There are other topics raised by the Appellant on her appeal to this Court. A key topic concerns a number of points made which relate to the LHB, about the environment at the LHB, about the LHB’s procedures, about documents produced within the LHB or by former colleagues at the LHB, and about evidence given by those former colleagues. I considered all of these, and the other, points made in arriving at my judgment. I have touched on some of this already. I will identify here what I considered to be the main points and the best illustrative points. But it is important to start by remembering what the function of the NMC procedure, and the function of this statutory appeal, is not. The Committee was not reviewing the procedural or substantive merits of the LHB’s actions as the Appellant’s employer, whether in the disciplinary procedure leading to the dismissal for gross negligence (17 July 2019), or in the grievance procedure leading to the rejection of the Appellant’s grievance (20 May 2019). The Committee was considering the merits of competence and misconduct Allegations, at a hearing with evidence. This Court is considering whether the Committee’s decisions or decision-making was wrong or unjust.

[61]Some of the Appellant’s points relate to the environment at LHB. In essence, as I saw it, it comes to this. The Allegations arose from an environment where the Appellant was subjected to bullying, harassment, intimidation and racism. There was coffee room gossip. Things were said behind her back. The environment persisted. She raised her concerns but they were never addressed. They were ignored in the disciplinary procedure. All of this shed light on what had arisen and when. It shed light on the credibility of witnesses who were LHB former colleagues and the reliability of LHB documents. It was wrongly and/or unjustly ignored by the Committee. That is the argument.

[62]The answer to these points is this. There is no basis for finding the Committee to have been wrong or unjust in its decisions, or decision-making. The Appellant had the opportunity to make points relating to these matters, to produce any documents, and to explain why the points and documents were relevant to the Committee’s decision-making function. The Committee did not ignore these complaints. It dealt with applications on 27 February 2023 (Day 28) alleging unfairness, including because “whenever [Mr Cooray] tried to ask questions not directly related to the charges, to address the concerns of harassment, bullying and xenophobia in the workplace, he was stopped”. The Committee rejected the complaint that it had “prevented questioning outside of the charges”, recording that it had been “careful to follow correct hearing procedure and the legal advice”. The Committee dealt with the facts on the merits and the directly relevant evidence. It was and remained alive to the Appellant’s points. And it specifically returned to them in the context of deciding on impairment. Here was its reasoned assessment: The panel had regard to Mrs Semenenko’s evidence that there as a culture of xenophobia and bullying in the workplace. The panel took into account that it had no other evidence to support this assertion. It noted that there was a local investigation conducted by the Trust which considered Mrs Semenenko’s claims of xenophobia and bullying however this complaint was not upheld. The panel noted that the witnesses who were questioned about these claims denied that there had been a culture of xenophobia and bullying in the workplace.

[63]Some of the Appellant’s points relate to documents. In essence, as I saw it, her case came to this. Documents from within the LHB were manipulated and fabricated. This sheds light on the reliability of the documents, and the credibility of witnesses who were involved in the production of those documents. In particular, there are SBAR documents, which are reports referring to meetings. What could be seen from various SBAR documents were different contents in different versions. This shows manipulation and fabrication. One key report is Jayne Beasley’s JB/09 to her witness statement in the NMC investigation. By way of example, JB/09 includes, at appendix 10, an SBAR document whose contents have been manipulated. The NMC relied on these documents and on the evidence from those involved in producing the documents. So did the Committee. These points about manipulation and fabrication were wrongly and/or unjustly ignored by the Committee. That is the argument.

[64]The answer to these points is this. The Appellant had the opportunity to make points relating to these matters, to produce any documents, and to explain why the points and documents were relevant to the Committee’s assessment. The Committee considered the points which she had made. On 22 and 23 March 2022 (Days 10 and 11) the Committee considered written and oral submissions on behalf of the Appellant as to abuse of process. The abuse of process application claimed that documents contained false information and that there had been serious tampering of evidence. The Committee considered this claim and rejected it in a reasoned determination on 24 March 2022 (Day 12). It noted the following (Day 12): that at no point did the Appellant or her advocate put the allegation of tampering to any NMC witness during questioning of them; that Ms Beasley had been cross-examined with regards to two different SBARs relating to the same meeting, which had a different level of detail; that, other than that, no other witness had been asked whether there was any part of the contents of the documents they produced that they did not recognise; and that the Committee would be in a position to hear submissions on this at a later stage of proceedings. The Committee explained that Ms Beasley had been recalled earlier on 24 March 2022 (Day 12), to answer questions about a document said to have been manipulated. She had given a credible explanation as to why a Datix document referring to pre-Covid events now appears within an updated form with a field which now automatically appears and makes reference to Covid. Later, on 28 February 2023 (Day 29), the Committee gave a reasoned rejection of an application to exclude JB/09. Then, in its ultimate determination on the facts on 5 April 2023 (Day 31), the Committee addressed the Appellant’s submissions that this JB/09 report was fabricated, and gave a cogent reasoned finding that it had not been fabricated. There was a careful decision-making approach. Cogent and clear reasons were given. I have been unable to see any basis for finding these decisions, or the decision-making approach, to have been wrong or unjust.

[65]Some of the Appellant’s points relate to the events of April and May 2018. What she says, in essence as a I saw it, came to this. There are important LHB documents relating to meetings (17 April 2018 and 20 April 2018); to a suspension decision and report (19 April 2018 and 23 April 2018); to a characterisation of the Appellant’s absence having been through illness; to a return to work (16 May 2018); and to the environment at work after that return. The events in April and May 2018 were the subject of the LHB grievance procedure. They shed light on what happened in the LHB disciplinary procedure. A correct understanding of the events would shed light on the credibility of witnesses who were LHB former colleagues; and on the reliability of certain documents. But all of this was wrongly and/or unjustly ignored by the Committee.

[66]The answer to these points is this. The Appellant had the opportunity to make points relating to these matters, to produce any documents, and to explain why the points and documents were relevant to the Committee’s assessment. The Committee was given no basis on which it was relevant or appropriate, in determining the issues arising in the NMC’s case against the Appellant, for a satellite fact-finding enquiry into the issues which the Appellant had unsuccessfully ventilated in an LHB grievance procedure. Nor can I see any basis on which these aspects are relevant or appropriate, in determining this appeal against the Committee’s adverse decisions on the NMC’s case against the Appellant.

The Competence Allegations

[67]So far in this judgment I have focused almost exclusively on the misconduct Allegations. I have said very little about the competence Allegations. That is for these reasons. The Committee considered all of the Allegations on their merits, on the relevant evidence. Having done so, it was ultimately the adverse findings on the misconduct Allegations which were squarely – and expressly – the basis for the sanction of striking-off. That necessarily makes the findings on, and arising from, the misconduct Allegations the principal focus of any appeal. If the Appellant were able to show that the Committee was wrong or unjust in its decision-making on the misconduct Allegations, that would be a basis for allowing her appeal and overturning the Committee’s decision to strike her off. But if she is unable to show this, her appeal could not in my judgment succeed. That is because the decision-making as to misconduct would remain, as the unimpeached basis for the striking-off sanction.

[68]Notwithstanding that, I have considered all of the competence aspects of the case, the Committee’s reasoning on all issues and as a whole, and all of the points which the Appellant has raised in writing and orally. I have been quite unable to identify anything wrong or unjust in the way in which the Committee addressed the competence Allegations, the decisions which it made, or any integrated or knock-on effect when points are considered individually, in combination, or as a whole.

[69]I will explain the position briefly, so far as concerns this part of the case. There were 9 competence Allegations. For each of these it was alleged that the Appellant had: … failed to demonstrate standards of knowledge skill and judgment to perform the role of Band 6 midwife safely in that … Competence Allegation [1a]. On an unknown date in 2016, the Appellant failed to notice a bradycardia and therefore took no action to improve the foetal well-being of a patient’s unborn baby. Competence Allegation [1b]. On an unknown date in May 2016, the Appellant failed to provide a patient with nebulisers as prescribed. Competence Allegation [1dii]. On unknown dates between 2015 and 2016, the Appellant took patient’s blood using needles not supplied by the hospital. Competence Allegation [1e]. On an unknown date in June 2016, the Appellant inappropriately bathed and fed a baby simultaneously. Competence Allegation [1f]. On an unknown date between June and August 2016, the Appellant left theatre, following a patient having a spinal anaesthetic inserted thereby failing to monitor the patient’s blood pressure and foetal heartbeat. Competence Allegation [1h]. On 25 June 2018, the Appellant mixed two samples of blood from a patient (Patient A) thereby causing an inaccurate haemoglobin reading.

[70]As to the other 3 competence Allegations, on Allegation [1c] the Committee found no case to answer; while Allegations [1di] and [1g] were found not proved. Here are the 3 competence Allegations which the Committee did not find proved: Competence Allegation [1c]. On 19 April 2016, the Appellant directed a patient (Patient F) to actively push contrary to the obstetrics team’s instructions. Competence Allegation [1di]. On an unknown date between 2015 and 2016, the Appellant carried out vaginal examinations using gel not supplied by the hospital. Competence Allegation [1g]. On an unknown date between 2017 and 2019, the Appellant inappropriately bathed a baby in a deep bath in the early hours of the morning.

[71]The Appellant made a number of points on her appeal to this Court regarding the competence Allegations, especially those which the Committee accepted as proved, but also those which the Committee rejected as not proved. Prominent among these points were the following. She argued that accepted Allegation [1a] was incorrect on the evidence. She argued that accepted Allegation [1b] was incorrect, given a fatal conflict in evidence between colleague Emma Peard and the JB/09 report of Jayne Beasley. She argued that rejected Allegation [1c] supports the general conclusion that she would be able to refute any allegation in respect of which she is given a specific date, an identified patient, and the patient records. She argued that rejected Allegation [1di] supported a finding that an Allegation had been “false”, supporting a more general conclusion that Allegations were “false. She argued that accepted Allegation [1dii] was incorrect, on the basis that she had sourced needles from other departments at the hospital. She argued that it was incorrect on the evidence to accept Allegation [1e]. She argued that accepted Allegation [1f] was incorrect, on the basis that what actually happened was that she went out to get the patient a drink of water, leaving another midwife present. She argued that it was wrong and/or unjust not to allow the withdrawal of an admission on Allegation [1h], in light of new evidence about Dr Muel.

[72]I have considered all of these points, and all of the other points raised by the Appellant. I have considered the Committee’s reasoned determinations on the facts, and then on lack of competence, on impairment and then what it said about competence in the context of sanction. Having done so, I was unable to find any aspect of the Committee’s decisions or decision-making which are wrong or unjust, nor any flaws which undermine as wrong or unjust the overall decisions.

The Case Examiners’ Report

[73]This was a discrete topic. The Appellant argued that it was wrong and/or unjust for the Committee to refuse to admit the Case Examiners’ Report (11 November 2020). That report was the subject of an application which the Appellant’s advocate Mr Cooray made to the Committee, in writing and oral submissions on 23 and 24 August 2022 (Days 16 and 17). The application to admit the Case Examiners’ Report was rejected, for reasons which the Committee gave on 25 August 2022 (Day 18). I have considered the application that was made, and the submissions orally and in writing made to the Committee. Having done so, I am unable to see anything wrong or unjust about that decision. The Committee explained that it had been given no cogent reason why the report should be received into evidence. It was concerned to focus on the Allegations which were being put forward, and the evidence relied on in support, independently of what had been said by Case Examiners at the earlier stage of referring them.

[74]There was, in fact, a specific argument which could have been – but was not – advanced by Mr Cooray before the Committee, as to the relevance of the Case Examiners’ Report. Ms Alabaster raised it with the Court at the resumption hearing, in accordance with her duty of candour. The Appellant had by then absented herself, so she was not present in person to adopt it. I have treated it as though it were an argument made in support of the appeal, by the Appellant herself. i) The argument was this. Within the Case Examiners’ Report, the reasoning was that competence matters which arose prior to 27 April 2017 were not being referred to an FTP committee, except insofar as those matters raised questions of “safety”. The Case Examiners said there was no case to answer in relation to anything which was competence-related but not safety-related which occurred prior to 27 April 2017. It relied on the fact that the Appellant had been signed-off as competent under a capability programme by letter dated 27 April 2017. This reasoned non-referral would have been relevant to the Committee’s consideration of any issue as to the validity of the Allegations, or as to abuse of process. The Committee could and should have allowed reliance on the Case Examiners’ Report, to this extent and for this purpose. It could then have seen that pre-27 April 2017 competence incidents were being relied on within the competence Allegations, inconsistently with the Case Examiners’ decision. That is the argument. … failed to demonstrate standards of knowledge skill and judgment to perform the role of Band 6 midwife safely in that … This means the competence Allegations, as framed, involved considering “safety”. This “safety” preamble was repeated in the Committee’s determination of the facts, when each competence Allegation was introduced. The Committee began by identifying the duty on the Appellant to demonstrate the standards of knowledge, skill and judgement to perform the role of a Band 6 midwife “safely”, and found that she had failed to do so. Third, for reasons which I have explained, the striking-off decision rested on the misconduct Allegations. It follows in my judgment, whatever the position relating to any or some pre-April 2017 competence matters, the misconduct Allegations were plainly properly before the Committee. And the findings on the misconduct Allegations, and consequential impairment in fitness to practise, was identified as a freestanding basis for the sanction of striking-off. For any and all of the reasons, the new argument cannot succeed.

Overall

[75]It follows from everything that I have said above that the Appellant’s appeal fails. The Committee’s decisions stand. As to the “fresh evidence” which is relied on by the Appellant, this calls for a ruling. I rule as follows. Having considered all the materials which the Appellant put before the High Court, but not put before the Committee, I am satisfied that they all of them could with reasonable diligence have been relied on before the Committee. Having had every opportunity to do so, she cannot now rely on them to undermine the Committee’s decisions. But nor, having considered all of the fresh evidence, is it capable of supporting a conclusion that the Committee was wrong or unjust. So far as the Case Examiners’ Report is concerned, the Appellant did try to rely on that before the Committee, which refused to admit that document. But the Appellant did not advance the argument which I have discussed (§74 above), and the appeal cannot succeed even with the Report. I will dismiss the appeal and formally refuse permission to rely on the fresh evidence.

Consequential Matters

[76]Having circulated this judgment to both parties as a confidential draft, with a timetable for submissions on any consequential matters, I am able to explain here in the final approved judgment what order I made and why. The only consequential matter which has been raised is the NMC’s application for costs. I am satisfied that the Appellant was forewarned, was sent the NMC’s costs submissions and a draft order, to enable her to respond by a clear deadline. She has not engaged. I am satisfied that the NMC should have its costs of the appeal, which I summarily assess at £6,000. Costs should follow the event. There is no reason to deprive the NMC, an independent statutory body funded by fees paid by the professional members who make up the register (ie. nurses, midwives and nursing associates), of its costs. The third day was needed because of the additional time taken in the Appellant in making her oral submissions. She has disengaged, but has not withdrawn the appeal. I have applied a broad-brush deduction (down from £6,967) to reflect the fact that I am not ordering costs on an indemnity basis.

Order

(4) The over-arching objective of the Council in exercising its functions is the protection of the public. (4A) The pursuit by the Council of its over-arching objective involves the pursuit of the following objectives –(a) to protect, promote and maintain the health, safety and wellbeing of the public;

(b) to promote and maintain public confidence in the professions regulated under this Order; and