Background
Adekemi Adefidiya, a registered nurse, faced referrals to the Nursing and Midwifery Council (NMC) from four separate employers between 2019 and 2020. The complaints included: failing to take proper observations and record-keeping for a terminally ill patient in palliative care at home (Patient A, who died on 7 February 2019); failing to meet competency standards for level 2 and 3 critical care patients at Barts Health NHS Trust while claiming sick pay she was not entitled to; concealing her employment history and her NMC referral from Royal Papworth Hospital when she commenced employment there; and working a shift at St John and St Elizabeth Hospital in breach of an interim conditions of practice order.
The NMC’s Fitness to Practise Committee (FTPC) conducted a lengthy hearing and found proved charges of both lack of competence (charge 11) and misconduct across the remaining charges. It found the Appellant’s fitness to practise currently impaired on grounds of public protection — noting a high risk of repetition, multiple instances of premeditated dishonesty for personal financial gain, and a sustained pattern of working in conditions she knew she should not — and also on public interest grounds. The FTPC imposed a striking-off order, concluding the conduct was fundamentally incompatible with remaining on the register. Ms Adefidiya, appearing in person, appealed to the High Court on multiple grounds.
The Court’s Holding
Stephen Midwinter KC, sitting as Deputy High Court Judge, dismissed the appeal in its entirety. On hearsay evidence: the FTPC had correctly applied the approach in Thorneycroft v NMC [2014] EWHC 1565 in deciding to admit written statements from two colleagues. The Appellant had not objected to admission at the time, and the statements were not the sole or decisive evidence for the charges to which they related. On amendment of charges: the additions arose from the same episodes already before the FTPC, and the Appellant did not identify any respect in which her conduct of the case would have been materially different had the charges been introduced earlier. On impairment: the FTPC had applied the correct legal test from Cox J’s judgment in CHRE v NMC and Grant and Dame Janet Smith’s criteria (the “Dame Janet Smith test”). The court expressly rejected the argument that the FTPC applied a “low threshold.” On sanction: the striking-off order was justified by the number, seriousness and premeditated nature of the dishonesty charges; the Appellant had breached previous conditions of practice and shown limited insight.
The judge noted one point in the Appellant’s favour — that charge 13(d) (failing to disclose an NMC referral to Royal Papworth Hospital before 6 March 2020) may have been found proved without a sufficient evidential basis for dishonesty — but held this was not material to the overall outcome. The findings on charges 13(a)–(c) stood independently, and the impairment and sanction decisions would have been the same without that one sub-charge.
Key Takeaways
- On appeal from an NMC FTPC decision, the appellate court applies particular deference to a specialist tribunal’s assessment of clinical conduct, impairment, and appropriate sanction under the principles in Ghosh v General Medical Council [2001] 1 WLR 191 — the court will not substitute its own view without a compelling reason.
- Failure to object to hearsay evidence at the time of the hearing will generally preclude a successful challenge on appeal; the FTPC’s discretion to admit hearsay under rule 31 of the NMC Rules is subject only to relevance and fairness, per the framework in Thorneycroft.
- The Dame Janet Smith test for impairment, applied via Cox J’s judgment in CHRE v NMC and Grant, requires consideration of whether the practitioner puts patients at unwarranted risk, brings the profession into disrepute, breaches fundamental professional tenets, or cannot be relied on to act with integrity — any one is sufficient.
- Deliberate dishonesty — particularly premeditated dishonesty repeated over a sustained period for personal financial gain — sits at the top of the scale of professional misconduct and strongly indicates that a striking-off order is the only proportionate sanction.
Why It Matters
Adefidiya is a useful consolidation of the appellate framework governing NMC fitness-to-practise appeals. For nurses and midwives facing FTPC proceedings, the judgment reinforces several realities: procedural objections (hearsay, amendment of charges) will rarely succeed on appeal unless the defect was objected to below and demonstrably affected the outcome; the impairment test is broad and a finding of impairment on multiple grounds is very difficult to dislodge; and where dishonesty is found proved and is premeditated and repeated, a striking-off order will almost always be upheld.
For legal advisers representing practitioners before the NMC, the judgment is a reminder that objections to evidence and charges must be raised clearly at the hearing — not preserved for appeal. The one point the judge accepted in the Appellant’s favour (the dishonesty finding on charge 13(d)) had no practical consequence precisely because the other findings were overwhelming. In serious multi-charge cases involving a pattern of dishonesty, the prospects of a successful appeal against sanction are particularly slim.