Megan Fletcher-Smith successfully represented a registered nurse in a widely publicised appeal against a decision of the Nursing and Midwifery Council.
The appeal raised questions as to the reasoning to be expected of fitness to practise and other professional discipline tribunals when making findings of fact on the balance of probabilities, which turn on witness’ conflicting factual narratives.
The Background
The registrant had been the Nurse Manager at a private school. In the proceedings before the NMC, she had faced 32 charges arising from a collective grievance, jointly submitted by 4 nurses who were under her management in the boarding school’s health centre.
Megan had demonstrated significant inconsistencies & factual anomalies in the NMC evidence. Despite this, the Panel ‘preferred’ the evidence of those witnesses, and did not address these inconsistencies and anomalies in their written determination.
The Panel found various allegations proved against the registrant, and that these amounted to serious professional misconduct; that the registrant’s fitness to practise was currently impaired and that the proportionate sanction was a 6 month Suspension Order. The Panel also imposed an 18 month Interim Suspension Order, to cover the appeal period.
The Appeal
The Royal College of Nursing agreed to fund an appeal against the Panel’s findings; and in November 2024, Megan attended the High Court. The hearing took the format of a re-hearing by reference to extensive transcripts, the documentary evidence which had been available to the Panel, and the Panel’s written determinations.
It was Megan’s submission, and the crux of the appeal, that the Panel had failed to have proper regard to the general credibility and reliability of any witness, had failed to provide reasons for ‘preferring’ NMC witnesses’ evidence over the evidence of the registrant and/ or her witness, and had failed to properly take account of evidence in support of the registrant’s case.
It was submitted that these failings rendered the findings of fact both wrong, and unjust because of a serious procedural or other irregularity, as per CPR 52.21(3).
Held
Deputy High Court Judge Alan Bates found as follows:
- It was incumbent upon the Panel to provide informative reasons & rational explanations for its findings, in relation to all the facts necessary for supporting a finding that the NMC had discharged the burden of proof. The Panel’s reasoning needed to be adequate to enable the registrant to understand why the Panel had found disputed allegations proved against her, believed the evidence of the complainant nurses and thus, implicitly, rejected the contrary evidence of the registrant and/ or her witness;
- The reasoning of the Panel was inadequate for sustaining the findings that were made against the registrant;
- The panel did not properly assess the general credibility and reliability of certain witnesses. The Panel should have given express, careful consideration to all the points made by the registrant as to why the NMC witness’ various accounts should be viewed with caution;
- The Panel also failed to make any assessment, or even comment, with respect to the general credibility and reliability of the registrant and her witness;
- The Panel’s approach of considering the evidence relating to each charge against the registrant on an individual charge-by-charge basis, led the Panel into error. It failed to consider whether the fact that a witness’ account in relation to one allegation was found to be untrue should affect the degree of confidence that it should place on that witness’ assertions in support of other allegations;
- The Panel also failed to properly evaluate the contextual evidence;
- The Panel’s failure to grapple with assessing the credibility and reliability of key witnesses had the consequence that it failed to deal adequately with the crux of the registrant’s case;
- It was not within the gift of the Panel to require Megan to ‘tweak’ her forensic questioning of NMC witnesses so as to assist the Panel in ‘getting the best out of’ a witness in their oral evidence. A witness’ attempts to deflect questioning was not a good reason for the Chair effectively to ask Megan to modify her approach;
- The Panel was wrong to reduce the registrant’s concerns regarding the complainant nurse’s having ‘colluded’ in presenting their accounts, to a specific allegation that there had been a ‘conspiracy to deceive’ (a definition provided by the Panel itself, effectively putting words into the registrant’s mouth). That error was compounded by the Panel then implicitly placing a burden of proof on the registrant in respect of that allegation and then finding that she had not discharged that burden;
- The Panel’s reasoning revealed that it took several approaches which were legally unsustainable:
- That the Panel sometimes chose to prefer a witness’ written evidence, even when they effectively abandoned, in the oral evidence, an allegation made in their written statement;
- That Panel made unjustified assumptions that the registrant’s evidence did not relate to the incident which was the subject of the charge, a determination for which there was no basis; and
- The Panel’s reliance upon its assessment of the registrant having had a difficult relationship with a particular student as evidence justifying a conclusion that the registrant shouted at the student. The Panel had failed to keep in mind the proper starting point, namely that the burden was on the NMC to present cogent evidence sufficing to satisfy the Panel that the alleged conduct had occurred.
- By the time the Panel made their decision, the allegations had already been hanging over the registrant for 6 years. The time taken by the NMC to progress this matter had been far too long.
His Lordship determined that:
- the facts not admitted by the registrant, and found proved by the Panel, were found not proved;
- the registrant’s fitness to practise is not currently impaired; and
- there is to be no sanction.
This successful appeal brings to a conclusion a long period of distress for the registrant, who commented as follows:
“Megan has been incredible. She gave me back my career, and the job I truly love. This experience has been horrific, but Megan has kept me grounded with clear advice, which I was able to rely upon and take solace in.”
The full judgment can be found here: https://www.bailii.org/ew/cases/EWHC/Admin/2025/373.html