AC-2025-LON-000651 - [2025] EWHC 2814 (Admin)

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.”

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.

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.

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.”

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.

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.”

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.