Bernadette Jerry v The Nursing and Midwifery Council

Mr Justice MacDonald: INTRODUCTION

1. The court is concerned with an appeal by Ms Bernadette Jerry, who represents herself, challenging the decision of the Fitness to Practise Committee (hereafter “the FPC”) of the Midwifery and Nursing Council (hereafter “the NMC”) dated 9 January 2025 and 10 January 2025 declining to reinstate her to the Nursing Register (hereafter “the Register), Ms Jerry having been struck from the Register in 2015. The NMC is represented by Ms Simran Kaur Ghotra of Counsel.

2. At the outset of the appeal hearing, Ms Jerry made an application to adjourn the proceedings. The NMC was on notice of that application by reason of photographs of a partially completed Form N244 that Ms Jerry had taken and which had been uploaded to the DUC. Ms Jerry proceeded to make clear and reasoned oral submissions in support of her application to adjourn the appeal hearing.

3. For reasons set out in a separate ex tempore judgment, I refused the application for an adjournment. In summary: i) Whilst Ms Jerry contended she needed an adjournment in order to have time to instruct lawyers, Ms Jerry’s Notice of Appeal was issued in March 2025 and notice of this appeal hearing was served in May 2025. In this context, there was no clear evidence of steps having been taken by Ms Jerry to secure lawyers in the 8 months since the appeal was issued, or how she would use the 3 month adjournment she was seeking to do so. ii) Whilst Ms Jerry stated that she had now discovered contemporaneous documentary evidence that she claimed would ground a successful judicial review of the 2015 decision to strike her from the register, rendering this appeal otiose, Ms Jerry stated she had accidently left that crucial, exonerating, documentary evidence at home. iii) Ms Jerry has been involved in this litigation on and off for some ten years. During that time she has represented herself before the Conduct and Competence Committee of the Midwifery and Nursing Council (hereafter “the CCC”) on three occasions, represented herself in an appeal before the High Court and prepared an application for permission to appeal to the Court of Appeal, each raising similar issues to those raised in this appeal. iv) Whilst Ms Jerry claimed that she currently had difficulties with her eyesight due to surgery and, in consequence, the documents, that surgery took place in 2023, following which Ms Jerry was able to draft and submit extensive documentation within the proceedings.

4. In these circumstances, and taking account of the ability of the court to guide a litigant in person in the proper presentation of their case in appeals of this nature (as recently reiterated in Tsolo v Nursing and Midwifery Council [2025] EWHC 2324 at [44]) and the need to deal with proceedings justly at proportionate costs pursuant to the overriding objective in CPR r1.1(1), I declined an adjournment.

5. Having indicated to Ms Jerry that the application to adjourn was refused and that the appeal hearing would proceed, and upon being asked for her oral submissions, Ms Jerry asserted that she was too ill to proceed with the hearing and wished to see a doctor. Prior to that point, there had been no mention by Ms Jerry, either explicitly or otherwise, that she was unwell. Indeed, as I have set out, Ms Jerry had attended court for the hearing and proceeded to make clear, itemised and structured submissions in support of her application for an adjournment. It was only when the court refused her adjournment application that Ms Jerry claimed that she was too ill to proceed. The court having risen to allow Ms Jerry some time, when the hearing recommenced she continued to assert she was unable to proceed albeit that, after the court expressed scepticism in light of the timing of her contended for ill health, her claim of illness evolved into a claim that she was “too stressed to function”. In the circumstances, I directed the attendance of the First Aid Officer.

6. Following the attendance of the First Aid Officer, who reported that Ms Jerry was not presenting as ill but was simply stating that she needed to see a doctor, I informed Ms Jerry that, in light of her ability to attend court and to make structured submissions in support of her application for an adjournment, in circumstances where her assertion of being too ill to participate in the hearing had only arisen after the court refused her application for an adjournment, and where she had seen the First Aid Officer who identified no concerns, I considered her fit to continue with the hearing. I further informed Ms Jerry that I would rise for the short adjournment, during which time she could obtain refreshment and marshal her arguments, and would hear her oral submissions at 2.00pm. I further made clear to Ms Jerry that, having refused her application to adjourn and in circumstances where I considered her fit to continue with the hearing, if she declined the opportunity to make oral submissions I would treat her extensive written submissions as being the submissions in support of her grounds of appeal.

7. Following the short adjournment, and as I had explained to Ms Jerry prior to rising, I again indicated that I considered her fit to continue and gave to her an opportunity to make oral submissions in support of her grounds of appeal. Ms Jerry again declined to do so, indicating that she considered her “fundamental rights” were being breached by the court’s refusal to adjourn the hearing and that “psychological shock” was preventing her from functioning. Having given a final opportunity to Ms Jerry to make oral submissions and receiving the same response, I indicated that, as previously stated, I would treat Ms Jerry’s comprehensive Skeleton Argument as her submissions in support of her grounds of appeal and proceeded to hear submissions in reply from Ms Ghotra on behalf of the respondent. Following Ms Ghotra’s concise and well directed oral submissions, I gave Ms Jerry the opportunity to exercise her right of reply. She again declined to make oral submissions, again asserting that she was in “psychological shock” and unable to participate.

8. In the foregoing circumstances, in deciding Ms Jerry’s appeal I have had the benefit of her extensive written submissions to the court, together with the documents on which those written submissions are based, including the transcript of the hearing before the FPC and the decision of the FPC. I have also had the benefit of a comprehensive Skeleton Argument and oral submissions from Ms Ghotra on behalf of the respondent. Having regard to the matters set out above, I reserved judgment on Ms Jerry’s appeal and now set out my decision and the reasons for it. BACKGROUND

9. The allegations against Ms Jerry that formed the basis of the decision of the Fitness to Practise Panel in 2015 arose out of events which took place on a night shift at the Royal Surrey Hospital between 17 and 18 August 2011. At this time, Ms Jerry was employed as an agency nurse. During the night of 17 and 18 August 2011 a patient, Patient A, became unwell. As a result, her observation chart was checked. Ms Jerry had, prior to that point, been responsible for checking Patient A. Inspection of the observation chart revealed that Ms Jerry had entered a question mark in relation to oxygen saturation levels on Patient A’s observations chart, in place of a saturation reading. Ms Jerry did not document any explanation for the entry of the question mark on the observation chart. Later in the shift, Ms Jerry changed her entry of a question mark to one stating that Patient A’s oxygen levels were 95. Ms Jerry did not make it clear that the entry was retrospective. Patient A died the following day. There is no suggestion that the death of Patient A was linked to Ms Jerry’s care.

10. The first substantive hearing in respect of Ms Jerry before the CCC took place between 16 and 24 September 2013. At that hearing, three charges relating to events at the Royal Surrey Hospital, and eight charges relating to incidents at another hospital, were found proved. As a result, the CCC ordered that Ms Jerry be struck from the Nursing Register. Ms Jerry appealed the decision of the CCC. The NMC conceded the appeal and the matter was remitted for re-hearing before a freshly constituted panel of the CCC.

11. The re-hearing took place before the CCC between 1 and 15 May 2015 and 19 and 25 August 2015. Only the three charges relating to events at the Royal Surrey Hospital were proceeded with. The charges were set out in a notice of hearing sent to Ms Jerry on 8 April 2015 and comprised the following: “That you, whilst working as a band 5 staff nurse employed at Buckinghamshire Healthcare NHS Trust (‘the Trust’) between 2006 and 2010, failed to meet the competencies expected of a Band 5 nurse in that you:

1. Failed to inform the nurse in charge that Patient A had raised blood pressure;

2. In respect of Patient A’s oxygen saturation levels: (a) did not measure the levels at 22:00; (b) documented the levels at 22:00 on Patient A’s observations chart as ‘?’; (c) did not document any explanation for the entry of ‘?’; (d) later in the shift, changed your entry described at 2(c) above to one stating that the levels were 95, and did not make clear that entry was retrospective;

3. Your conduct as set out in charge 2(d) above was dishonest, in that you sought to create a false impression in Patient A’s medical notes that you had successfully measured her oxygen saturations as being 95% at 22:00, when you had not.”

12. Before the CCC, Ms Jerry denied all three charges. However, the CCC found the charges proved and held that Ms Jerry had been guilty of serious misconduct. The CCC proceeded to find that Ms Jerry’s fitness to practise as a registered nurse was impaired and that the appropriate sanction against her was to be struck from the Register.

13. The FPC heard Ms Jerry’s application for reinstatement to the register on 9 and 10 January 2025, in accordance with Art 33 of the Nursing and Midwifery Order 2001 (hereafter “the 2001 Order”). The reasons give by the FPC for declining to reinstate her to the Register can be summarised as follows: i) The FPC noted that the substantive decision of the CCC to strike Ms Jerry from the Register indicated that the CCC had been satisfied that Ms Jerry had demonstrated no remorse or insight whatsoever and had aggravated matters by attempting to apportion blame to two former colleagues by making serious and meritless allegations against them on two occasions during the substantive hearing. ii) The FPC noted that the CCC had concluded that it could not be satisfied that the issues underlying its findings of dishonesty had been recognised by Ms Jerry or that Ms Jerry had addressed her serious clinical failings and dishonesty and that there remained a significant risk of repetition of such conduct. iii) The FPC noted that, in determining the question of sanction, the CCC had been satisfied that there was no evidence that Ms Jerry had any insight into her misconduct or the seriousness of her misconduct, had demonstrated no remorse, had failed to acknowledge the seriousness of her misconduct, had given no undertaking before the CCC not to repeat it, had failed to recognise the potential impact of her shortcomings on Patient A, that there were material concerns about Ms Jerry’s probity, honesty and trustworthiness and that Ms Jerry presented a serious and ongoing risk of repeating her behaviour. iv) The FPC concluded that, having heard Ms Jerry’s oral evidence under affirmation, Ms Jerry failed to acknowledge the fact of her dishonesty, continued to blame others and was unable sufficiently to demonstrate a link between her asserted reflection on what had happened and her actions and inaction at the time. v) The FPC concluded that, when asked about the risk of harm, Ms Jerry failed to consider the impact that her conduct had had on her colleagues, patients or the patients’ relatives. vi) The FPC found that, in considering the period since she had been struck off, Ms Jerry’s record of employment was muddled and incomplete to the extent that, even during her oral evidence, she was unable to clarify specific roles and responsibilities in different organisations and her periods of employment. The FPC noted the absence of objective evidence from Ms Jerry’s employment and of testimonials from her employers or people she was responsible for caring for as a Healthcare Assistant. vii) In considering whether Ms Jerry had demonstrated strengthened practice, the FPC bore in mind that she had completed mandatory training as part of her role as a Healthcare Assistant but was not satisfied that training related directly to Ms Jerry’s misconduct and the proven incidence of dishonesty. The FPC noted that Ms Jerry had produced no objective evidence to support her assertion that she took observations and charted accurately in her current role. Whilst Ms Jerry made reference to the NMC’s Code of Practice, the FPC found that she was unable to explain how this connected to the proved charges. viii) The FPC found that Ms Jerry was not able to demonstrate sufficiently having kept up to date with developments in the profession or how she had planned how she would be able to return to nursing after such a significant absence from the Register. ix) The FPC concluded that Ms Jerry had not demonstrated that she could practise safely as a nurse at the current time given her inability to demonstrate full insight into, or to take responsibility for, the incidents which had led to her being struck off the Register.

14. In determining in the foregoing context that it was not appropriate that Ms Jerry’s registration be restored and rejecting her application, the FPC concluded as follows: “The panel considered that your past misconduct which included dishonesty was serious. Your actions placed patients at risk of harm and undermined public confidence in the nursing profession. When faced with questions from the panel, your responses were frequently generic, rather than focused on the specific issues that needed to be addressed. Given the absence of full insight into your misconduct, particularly the dishonesty, lack of strength in practice, and lack of objective evidence from employers to support a potential return to the nursing profession, the panel was not satisfied that you are a fit and proper to return to the register at the current time and to do so would undermine confidence in the nursing profession.” GROUNDS OF APPEAL AND SUBMISSIONS

15. The grounds of appeal are set out in Ms Jerry’s Skeleton Argument. A number of the grounds she relies on go to the substantive decision of the CCC in 2015 and the decision of the High Court in 2016 dismissing Ms Jerry’s appeal against the decision of the CCC, rather than to the decision of the FPC in January 2025 refusing to restore Ms Jerry to the Register. I address this issue below. Ms Jerry contends by her grounds of appeal that there was no credible evidence presented to the CCC in August 2015 for any of the charges and that the High Court should not have agreed in 2016 with the sanction imposed by the CCC.

16. With respect to the decision of the FPC in January 2025, whilst her grounds are discursive and somewhat difficult to follow, it is apparent from her Skeleton Argument that Ms Jerry relies on the following ten grounds of appeal with respect to that decision: i) The NMC failed to acknowledge to the FPC that it had provided incorrect information to the FPC and the High Court in 2016. ii) The NMC failed to inform the FPC that at the appeal hearing before the High Court in 2016 the NMC provided dishonest information to the court by using the patient’s A&E notes instead of the nursing notes and, accordingly, acted dishonestly at the hearing before the FPC. iii) The NMC failed to highlight to the FPC that the initial charges were quashed in August 2014. iv) The NMC failed to provide the FPC with compelling evidence of the nurses notes, the incident report by Ms Jerry, the original observation chart, and the original recorded telephone conversation of witness CH, rendering the FPC process flawed and denying Ms Jerry a fair hearing. v) The NMC provided false, incorrect, subjective and misleading information at the hearing on 9 and 10 January 2025 in relation to the charges. vi) The NMC put before the FPC no evidence to “validate” the findings made by the CCC. vii) The FPC was wrong to refuse to reinstate Ms Jerry to the register in circumstances where the FPC failed to follow a principled process in failing to ensure that the NMC provided the relevant factual evidence to back the findings made by the CCC. viii) New evidence was available which impacted on the appropriateness of the original order. ix) The FPC failed to acknowledge that Ms Jerry had achieved the “necessary hours” for restoration as evidenced by her certificates of training and her engagement in “many hours of learning”. x) The FPC erred in deciding that Ms Jerry had not taken full responsibility in respect of her dishonesty because dishonesty had not been proved against her.

17. As I have noted, in addition to these matters, Ms Jerry’s grounds of appeal assert a number of matters that she contends undermine the decision of the CCC in 2015 to strike her from the register, and the decision of the High Court in 2016 to dismiss her appeal against the decision of the CCC. In so far as Ms Jerry seeks to rely on these matters, I accept the submission of Ms Ghotra that these grounds represent an attempt to re-litigate the findings made at the substantive hearing in May and August 2015, they having already been the subject of unsuccessful appeals to the High Court and the Court of Appeal.

18. As Ms Ghotra points out, no application has been made by Ms Jerry pursuant to CPR r.52.30 for permission to re-open the High Court appeal and to adduce the fresh evidence. Whilst Ms Jerry claimed at this hearing to have discovered an “incident report” by way of new evidence, Ms Jerry also stated she had accidently left that crucial, exonerating documentary evidence at home. In these circumstances, I have confined my consideration of Ms Jerry’s appeal to the grounds of appeal itemised above.

19. With respect to Ms Jerry’s submissions set out in her Skeleton Argument, the majority of her highly detailed written submissions also seek to demonstrate that the original decision to strike her from the Register, and the decision of the High Court to refuse her appeal, were flawed (and reflect closely the submissions made to the High Court in 2016).

20. Within this context, with respect to the decision of the FPC in January 2025, which is the subject of this appeal, Ms Jerry’s central submission is that the decision of the FPC was flawed because the FPC was unaware that the decision of the CCC was, in Ms Jerry’s submission, invalid by reason of unfairness and abuse of process and should have been overturned on appeal.

21. Ms Jerry’s assertion of unfairness and abuse of process before the CCC centres primarily on what Ms Jerry submits was a failure by NMC to place before the CCC evidence (in the form of contended for nurses notes, the incident report by Ms Jerry, the original observation chart, the original recorded telephone conversation of witness CH and evidence of the absence of an investigation by the hospital) that would have exonerated her. In addition, within her Skeleton Argument, Ms Jerry undertakes a point by point demolition of each of the three charges found proved by the CCC in an effort to refute the CCC’s findings, again submitting that this undermines the validity of the decision of the FPC not to reinstate her.

22. In response, Ms Ghotra submits on behalf of the Respondent that the FPC was concerned in January 2025 not with correctness of the decision of the CCC in 2015, which stood in light of the dismissal of Ms Jerry’s appeal in 2016, but solely with question of whether, pursuant to Art 33(5) Nursing and Midwifery Order 2011, Ms Jerry satisfied the requirements for reinstatement on the register. Ms Ghotra submits that, on the basis of the information the Fitness to Practise Panel had before it, the FPC was plainly entitled to find that it was not appropriate for Ms Jerry’s registration to be restored. RELEVANT LAW

23. Pursuant to Art 3(4) of the 2001 Order, the over-arching objective of the Council in exercising its functions is the protection of the public. Under Art 3(4A), the pursuit of this over-arching objective involves protecting promoting and maintaining the health, safety and well-being of the public; promoting and maintaining public confidence in the professions regulated; and promoting and maintaining proper professional standards and conduct for members of those professions.

24. Art 33 of the 2001 Order provides as follows with respect to the restoration to the Register of those who have been struck off by the CCC: “ Restoration to the register of persons who have been struck off 33.—(1) Where a person has been struck off the register by virtue of an order made under article 29(5)(a), 30(1)(b) or 38(3)(c) and the person wishes to be restored to the register, that person must make an application for restoration to the Registrar. (2) Subject to article 30(7), no such application may be made— (a) before the end of the period of five years beginning with the date on which the order under [F2article 29(5)(a), 30(1)(b) or 38(3)(c)] took effect; or (b) in any period of twelve months in which an application for restoration to the register has already been made by the person who has been struck off. (3) An application for restoration must be referred by the Registrar to the Fitness to Practise Committee for determination. (4) Before making any decision on the application the Committee shall give the applicant an opportunity to appear before it and to argue his case in accordance with rules made by the Council which shall include the matters referred to in article 32(2)(b), (g), (i), (j), (k), (m), (n) and (o). (5) The Committee shall not grant an application for restoration unless it is satisfied, on such evidence as it may require, that the applicant not only satisfies the requirements of article 9(2)(a), (b) and (ba) but, having regard in particular to the circumstances which led to the making of the order under article 29, 30 or 38, is also a fit and proper person to practise the relevant profession. (6) The Committee may make the granting of an application subject to the applicant satisfying such requirements as to additional education or training and experience as the Council has specified under article 19(3) and which apply to him. (7) On granting an application for restoration, the Committee— (a) shall direct the Registrar to register the applicant in the relevant part of the register on his satisfying the Registrar as mentioned in article 10(4)(aa), on his satisfying any requirements imposed under paragraph (6) and on payment of the prescribed fee; and (b) may make a conditions of practice order with respect to him. (8) The provisions of article 29 shall have effect in relation to a conditions of practice order made under paragraph (7) as they have effect in relation to a conditions of practice order made under that article and article 30 shall apply as if the order made under paragraph (7) were an order made under article 29. (9) If, while a striking-off order is in force, a second or subsequent application for restoration to the register, made by the person who has been struck off, is unsuccessful, the [F6Fitness to Practise Committee] may direct that that person’s right to make any further such applications shall be suspended indefinitely. (10) A person in respect of whom a direction is made under paragraph (9) may, after the expiration of three years from the date on which the direction was made, apply to the Registrar for that direction to be reviewed and, thereafter, may make further applications for review but no such application may be made before the expiration of three years from the date of the most recent review decision. (11) The Registrar shall refer an application made under paragraph (10) to the Fitness to Practise Committee for determination. (12) A person whose application under paragraph (10) or whose application for restoration is refused or made subject to his satisfying requirements under paragraph (6) may appeal to the appropriate Court and article 38 shall apply to that appeal. (13) The appeal must be brought before the end of the period of 28 days beginning with the date on which notice of the decision rejecting the application, or granting it but imposing conditions under paragraph (6), is served on the applicant.”

25. As can be seen, Art 33(12) allows a person whose application for restoration is refused to appeal and Art 38 applies to the appeal. By virtue of Art 38(3) of the Order, the High Court may (a) dismiss the appeal; (b) allow the appeal and quash the decision appealed against; (c) substitute for the decision appealed against any other decision the Practice Committee concerned or the Court, as the case may be, could have made, or (d) remit the case to the Practice Committee concerned or the Council, as the case may be, to be disposed of in accordance with the directions of the Court. By virtue of Civil Procedure Rule 52.21(3) the High Court will only allow such an appeal where the decision of the lower court was (a) ‘wrong’ or (b) ‘unjust because of a serious procedural or other irregularity’.

26. In Cheatle v General Medical Council [2009] EWHC 645 (per Cranston J at para 12-15), referring to the Court of Appeal decisions in Meadow v General Medical Council [2006] EWCA Civ 1390 and Raschid v General Medical Council [2007] EWCA Civ 46 it was held: i) An appeal is not confined to a point of law, but neither at the other end of the spectrum is it a de novo hearing, where witnesses give evidence again. ii) An appeal is not limited to review, but the Court would not interfere with a Fitness to Practise Panel’s decision unless it was wrong. iii) In considering whether the decision of a Fitness to Practise Panel is wrong the focus must be calibrated to the matters under consideration. iv) Decisions on fitness to practise, such as assessing the seriousness of any misconduct, may turn on an exercise of professional judgment. In this regard respect must be accorded to a professional disciplinary tribunal like a Fitness to Practise Panel. However, the degree of deference will depend on the circumstances.

27. In Cheatle v General Medical Council , Cranston J made clear that it is for the Panel, as the primary decision maker, to make findings of fact on the basis of the evidence the Panel has heard. Within this context, whilst on appeal the court may, where appropriate, correct material errors of fact, namely errors that do or might impact on the conclusions reached by the Panel, the court will not otherwise interfere in the findings of the Panel, even if the court takes the view it might not have reached the same conclusions on the evidence as the Panel did. DISCUSSION

28. Having considered carefully the comprehensive written submissions of Ms Jerry, and the written and oral submissions of Ms Ghotra on behalf of the NMC, I am satisfied that Ms Jerry’s appeal must be dismissed. My reasons for so deciding are as follows.

29. The majority of Ms Jerry’s grounds of appeal, and much of Ms Jerry’s argument, proceeds on the mistaken premise that the function of the FPC was to examine the probity of the original findings and decision of the CCC and the correctness of the outcome of her first appeal before the High Court. That was not the function of the FPC. It is also not the function of this court.

30. Ms Jerry appealed the decision of the CCC to strike her from the Register. That appeal was refused for the reasons set out in the judgment of May J in Jerry v Nursing and Midwifery Council [2016] EWHC 681 (Admin) on 4 February 2016. Ms Jerry’s application to the Court of Appeal for permission to appeal the decision of May J was refused on 7 December 2016 as being totally without merit. Accordingly, the findings and decision of the CCC stand. As I have made clear, no application has been made by Ms Jerry pursuant to CPR r.52.30 for permission to re-open her appeal and adduce fresh evidence.

31. Within this context, the FPC was concerned in January 2025 solely with the question of whether Ms Jerry should be reinstated to the Register, having regard to the requirements set out in Art 33 of the 2001 Order. Likewise, this court is solely concerned with whether the FPC erred when making its decision on the question of whether Ms Jerry should be reinstated to the Register. I am satisfied that there is no basis for contending that the decision of the FPC in answering to that question was wrong or unjust because of a serious procedural or other irregularity.

32. The first group of grounds of appeal relied on by Ms Jerry concentrate on the assertion that the NMC knew, and failed to bring to the attention of the FPC, that the NMC had provided erroneous information to CCC in 2015 and the High Court in 2016 and, accordingly, acted dishonestly before the FPC in January 2025. There is no merit in these grounds.

33. As set out above, it was not the task of the FPC either to review or to rehear the proceedings before the CCC. The FPC was solely concerned with whether the criteria for reinstating Ms Jerry to the register had been met. In the circumstances, there was no reason for the FPC to consider the conduct of the proceedings before the CCC. As I have noted, at this appeal hearing this court is solely concerned with whether the FPC erred when making its decision on the question of whether Ms Jerry should be reinstated to the Register and not with the decision of the CCC or the decision of May J. In any event, there is no evidence that the NMC failed dishonestly to disclose material. In 2016, May J was satisfied that proper disclosure had taken place, being satisfied that the patient notes were disclosed, which appeared to contain nothing of any relevance, and there were no other patient notes than these which have been disclosed by the hospital. Ms Jerry’s application for permission to appeal to the Court of Appeal, which again asserted that the NMC failed dishonestly to disclose material, was dismissed as totally without merit. In the circumstances, the first group of grounds of appeal relied on by Ms Jerry are unsustainable.

34. In a similar vein, the second group of grounds relied on by Ms Jerry asserts the NMC provided false, incorrect, subjective and misleading information at the hearing on 9 and 10 January 2025 in relation to the charges, and failed to provide the FPC with relevant information, namely the fact that the initial charges were quashed in August 2014, the nurses notes, the incident report by Ms Jerry, the original observation chart, and the original recorded telephone conversation of witness CH, which actions and omissions rendered the FPC process flawed and denied Ms Jerry a fair hearing. Again, there is no merit in these grounds.

35. Once again, it was not the task of the FPC either to review or to rehear the proceedings before the CCC. Once again, the FPC was solely concerned with whether the criteria for reinstating Ms Jerry to the register had been met, and this court is solely concerned with whether the FPC’s decision on that question was wrong or unjust because of a serious procedural or other irregularity. In the circumstances, there was no reason for the FPC to consider the conduct of the proceedings before the CCC, which had been the subject of an appeal and an application for permission to appeal to the Court of Appeal, both of which had failed. In any event, with respect to the specific criticism that NMC provided false, incorrect, subjective and misleading information to the FPC, and failed to provide the FPC with relevant information, these matters were addressed in appeal in 2016 and the appeal dismissed. May J was satisfied that the patient notes were disclosed, which she had seen and appeared to contain nothing of any relevance, and there were no other patient notes which had been disclosed by the hospital. With respect to the handling of the amended charges following the initial charges being quashed, May J was satisfied in 2016 that the NMC were correct to proceed in the way it did.

36. Finally with respect to Ms Jerry’s grounds centring on the provision of information to the FPC, Ms Jerry asserts that the NMC put before the FPC no evidence to “validate” the findings made by the CCC, and that the FPC therefore failed to follow a principled process by failing to ensure that the NMC provided the relevant factual evidence to back the findings made by the CCC.

37. The decision to remove Ms Jerry from the register was made by the CCC for the reasons it gave in 2015. Ms Jerry’s appeal against that decision was dismissed by May J in 2016. In the circumstances, the conclusions of the CCC stood for the reasons set out in its decision. The reasons for the CCC’s determination on the factual findings made at the substantive hearing were included in the bundle that was before the FPC. Within this context, the NMC was not required to, nor was it necessary for it to, “validate” the findings made by the CCC or to provide evidence to “back up” those findings. The CCC’s decision had already been made and, to reiterate, the task of the FPC was not to examine the validity of that decision but to decide whether Ms Jerry met the criteria for reinstatement to the Register having previously been struck off pursuant to that decision. Within this context, the NMC guidance at APP-2a entitled ‘ Deciding on applications for restoration ’ contained within the NMC’s Fitness to Practise library makes clear that it is sufficient for the NMC to inform the Panel of the background to the case and to direct the FPC to the written determination of the CCC. This was done.

38. In the circumstances, Ms Jerry’s ground asserting that the FPC erred in its evaluation of the evidence in relation to all charges found proved by the CCC, rendering its decision flawed, must also fail in circumstances where this was, again, not the task of the FPC.

39. The fact that the task of the FPC was not to review or to rehear the proceedings before the CCC, but to decide whether the criteria for reinstating Ms Jerry to the register had been met, also fatally undermines the ground relied on by Ms Jerry by which she asserts that new evidence not before the FPC is now available, rendering the decision of the FPC flawed. The evidence that Ms Jerry asserts exists was not produced at the hearing before the CCC and no clear explanation was forthcoming from Ms Jerry as to why this was. As I have noted, Ms Jerry was not able to produce that evidence, asserting it had been accidently left at home notwithstanding that it was central to her case. In any event, were such evidence to exist the appropriate application would be to apply under CPR r.52.30 for permission to re-open the High Court appeal and adduce the fresh evidence on appeal. No such application has been made by Ms Jerry.

40. The two grounds of appeal relied on by Ms Jerry that do seek to tackle head on the decision of the FPC not to reinstate her to the register are, first, Ms Jerry’s contention that the FPC failed to acknowledge that Ms Jerry had achieved the “necessary hours” for restoration as evidenced by her certificates of training and her engagement in “many hours of learning” and, second, that the FPC erred in deciding that Ms Jerry had not taken full responsibility in respect of her dishonesty because dishonesty had not been proved against her.

41. With respect to the question of “necessary hours”, as I have noted it is clear from its decision that the FPC had sight of the training certificates Ms Jerry had provided for the hearing and that the Panel heard evidence from Ms Jerry on this issue, noting specifically that Ms Jerry had completed training modules relating to handling of medication, avoiding drug errors in the workplace, health and safety, safeguarding and mental health. However, as Ms Ghotra helpfully clarified, achieving the necessary hours to be restored to the Register is not the determinative factor, but rather a factor to be taken into account when considering an application to be restored on the NMC’s Register. The panel was further concerned that the training in which Ms Jerry had engaged did not go to the misconduct that had been identified by the CCC: “In considering whether you have demonstrated strengthened practie, the panel bore in mind that you have undertaken some mandatory training as part of your role as a Healthcare Assistant. This included training relating to handling of medication, avoiding drug errors in the workplace, health and safety, safeguarding and mental health. However, the panel was not satisfied that the training you had undertaken relates directly to your misconduct and the incident of dishonesty.”

42. In the circumstances, there is no merit in Ms Jerry’s ground of appeal against the manner in which the FPC dealt with the remedial training undertaken by Ms Jerry.

43. With respect to the question of the finding of dishonesty, it is clear from the decision of the CCC that was before the FPC that the CCC made an express finding of dishonesty when addressing Charge 3. Within this context, in considering whether to reinstate Ms Jerry to the Register, the FPC was entitled to, and did, consider the level of insight and remorse displayed by Ms Jerry with respect to her proven dishonesty and to take into account her level of insight and remorse. This position is not changed by the fact that Ms Jerry clearly does not accept the finding of dishonesty made against her by the CCC.

44. As Ms Ghotra submitted, by reference to General Medical Council v Khetyar [2018] EWHC 813 (Admin) , insight requires that motivation and triggers be identified and understood and that if insight is possible at all without there being an acceptance that what happened did happen it will be very rare. In Blakey v General Medical Council [2019] EWHC 905 Mr Justice Lewis (as he then was) recognised that where a finding of dishonesty is made by the Panel but not accepted by the registrant it is nonetheless the case that: “[27]... remediation, and insight, may be demonstrated in a number of ways. These include, by way of example, the following. A doctor may accept that, with the benefit of hindsight, what he or she did was wrong (or dishonest) even though the doctor did not consider at the time consider that he or she was acting dishonestly. Alternatively, the doctor may accept that members of the public would view the conduct as dishonest and undermining their trust in the doctor even if the doctor considers that the conduct, viewed in context, was excusable or not dishonest.”

45. In this case, there was (and continues to be at this hearing) no acceptance by Ms Jerry of the CCC’s finding of dishonesty. In assessing, within that context, the extent to which Ms Jerry demonstrated insight into, and had taken steps to remedy her dishonesty, the FPC was entitled to take into account the extent to which Ms Jerry was prepared to acknowledge, in any way, the finding of the CCC, whether she was able to acknowledge the impact on patients and colleagues of the conduct found by the CCC to have been dishonest, whether she had taken any specific remedial steps to address the dishonesty found by the CCC and whether she had reflected on the actions that led to the finding of dishonesty and could demonstrate a link between that reflection and an improved understanding of and attitude towards dishonest conduct.

46. Within this context, the FPC’s decision makes clear that the Panel considered that during the course of the restoration hearing, Ms Jerry demonstrated limited reflection and insight into the dishonest conduct found by the panel and into her misconduct generally: “The panel noted that you made some references during your oral evidence and within your paperwork to highlighting the importance of being honest, however, you failed to acknowledge the fact of your dishonesty and continued to blame others. You have therefore not fully taken responsibility for your dishonesty. Whilst you spoke about the O’Driscoll reflection framework, you appear to address it generally and were unable to sufficiently demonstrate the link between the reflection and your actions and inaction. .../ The panel acknowledged that you showed some remorse in that you stated that the situation had been deeply traumatic for you. However, when asked about the risk of harm during your oral evidence, you failed to consider the impact of the situation on your colleagues, patients or their relatives. You told the panel that whilst you accepted that the incidents took place, you attempted to attribute blame elsewhere, for example you stated you had to go on your break, and/or that the machine was not working.” And: “The panel considered that your past misconduct which included dishonesty was serious. Your actions placed patients at risk of harm and undermined public confidence in the nursing profession. When faced with questions from the panel, your responses were frequently generic, rather than focused on the specific issues that needed to be addressed. Given the absence of full insight into your misconduct, particularly the dishonesty, lack of strength in practice, and lack of objective evidence from employers to support a potential return to the nursing profession, the panel was not satisfied that you are a fit and proper to return to the register at the current time and to do so would undermine confidence in the nursing profession.”

47. In the forgoing circumstances, the FPC was plainly entitled to conclude, as it did, that Ms Jerry was not a fit and proper person to be reinstated to the Register. There is no merit in this ground. CONCLUSION

48. Whilst Ms Jerry declined, for the reasons set out above, to make any oral submissions in support of her appeal to supplement the extensive written submissions she provided to the court in support of the same, it was clear from the representations she did make to the court during the course of her adjournment application that Ms Jerry continues, fundamentally, to disagree that she did anything to justify the decision of the CCC to remove her from the Register. Consistent with this view, the majority of her grounds of appeal to this court seek again to traduce the decisions made by the CCC in 2015 and on appeal by May J in 2016 rather than dealing with the decision not to reinstate her.

49. However, as set above, none of that is to the point in circumstances where the question for this court is whether the FPC erred when making its decision on the question of whether Ms Jerry should be reinstated to the Register. As Ms Ghotra submits, the FPC was bound to find that it was not appropriate for Ms Jerry’s registration to be restored where there was an absence of any meaningful insight into the misconduct found against her and a lack evidence of strengthened practice

50. For the reasons I have set out, I am satisfied that there is no basis for contending that the decision of the FPC to refuse to reinstate Ms Jerry to the nursing register was wrong or unjust because of a serious procedural or other irregularity. Accordingly, I dismiss the appeal and will deal with the question of costs on the basis of short, written submissions.