In Nursing and Midwifery Council v Ibrahim [2025] EWCA Civ 1631, the Court of Appeal dismissed the NMC’s appeal against a High Court decision. The High Court had quashed a 12-month Conditions of Practice Order (COPO) and an 18-month Interim COPO.

The NMC argued that the High Court should have sent the case back to a new Fitness to Practise Committee (FPC) panel. They said the case needed scrutiny by an expert panel because it involved clinical issues, including Deprivation of Liberty Safeguards (DoLS). They also claimed the Judge was wrong to treat the Interim COPO as “time served.”

Facts 

The case concerned a mental health nurse (the Registrant) and their care of Patient A during a night shift on 27–28 November 2017. 

Patient A had complex needs: she was frail, malnourished, moved slowly, and often became agitated and unable to express her concerns. 

Three days before the incident, a DoLS assessment recorded that Patient A required 2:1 care (a healthcare assistant and a nurse) due to challenging and aggressive behaviour. However, on 27 November, Colleague C reduced this to 1:1 care without any further assessment. 

The allegations were that the Registrant twice closed Patient A in her room and held the door shut, despite Colleague A’s objections. Colleague A said Patient A was distressed and knocking on the door. 

Colleague A sought help from Colleague C, who confronted the Registrant. A further allegation was that the Registrant raised his voice during this discussion.

Panel Decision 

The final hearing took place in June and October 2023 before two lay members and one registered nurse. 

The Registrant argued that his actions were appropriate given the reduced level of care and relied on documents including the DoLS order and patient records. 

 The panel found the facts proved and found misconduct and impairment and imposed a 12-month COPO and an 18-month Interim COPO. The decision did not address the Registrant’s defence relating to the DoLS order or patient records.

High Court Appeal 

The Registrant appealed to the High Court on the basis that the panel had not engaged with his defence. 

The High Court agreed, quashing the findings of fact and misconduct. The Judge decided that the panel had failed to grapple with the Registrant’s defence at both the facts and impairment stages. Had they done so, it would have resulted in a lesser sanction or no sanction. 

The Judge asked for submissions on an appropriate order. The NMC asked for remittal back to a new panel. The Registrant invited the Judge to consider the purpose of any further order when the Registrant had, by then, complied with the Interim COPO for a substantial period of time. 

The judge had four options: 

• Dismiss the appeal
• Allow the appeal and quash the decision 
• Substitute the decision
• Remit the case to a new panel The Judge allowed the appeal and quashed the decision

Court of Appeal decision 

The NMC appealed, arguing: 

• The charges were left unresolved because the High Court did not substitute findings. 
• The case should have been remitted to a new panel because DoLS is a complex area of clinical practice requiring consideration by a specialist panel. 
• The High Court had been wrong to equate the Interim COPO as “time served” because there had been no review to consider if the conditions remained necessary.

The Court of Appeal rejected these arguments, stating: 

• The case did not raise any complex issues of clinical practice and the circumstances were clear and easy to understand. 
• The Judge did not treat the Interim COPO as time served but rightly considered that no further concerns had arisen during its operation when he considered if remittal would serve any purpose. 
• It was entirely appropriate for a Judge considering an appeal to take into account all the circumstances of the case in the exercise of a discretion provided to him in law, and it was appropriate to consider whether remittal would be purposeful and proportionate.

What to take away

This case highlights two key points: 

• Panels must clearly address the defence case in their decisions. 
• Proportionality should guide decisions at all stages, especially when considering whether to remit a case after a successful appeal. 

How Capsticks can help 

We have represented numerous regulators for more than 20 years, including in relation to appeals. For further information on how we can assist, please contact Jessica Bass or any member of the Regulatory Team at Capsticks.