Discretion to Decline Remittal in NMC Fitness to Practise Appeals: Proportionality, Purpose and Deference in The Nursing and Midwifery Council v Ibrahim [2025] EWCA Civ 1631

1. Introduction

The Nursing and Midwifery Council v Ibrahim [2025] EWCA Civ 1631 is an important Court of Appeal decision on the scope of the High Court’s powers when hearing appeals from the Nursing and Midwifery Council’s Fitness to Practise Committee (FPC), and on the proper approach to remitting cases for re-hearing.

The case arose from disciplinary proceedings against Mr Ishaq Ibrahim, a registered mental health nurse, concerning his management of a highly vulnerable patient (“Patient A”) on a night shift in November 2017 at University College London Hospitals NHS Foundation Trust. Patient A had CNS lymphoma, paranoid schizophrenia, a history of absconding, falls risk, and was subject to a Deprivation of Liberty Safeguards (DoLS) authorisation requiring 2:1 supervision, which had been reduced in practice to 1:1.

The FPC found misconduct and impairment, and imposed a 12‑month Conditions of Practice Order (with an 18‑month interim order). On appeal, a Deputy High Court Judge (Richard Kimblin KC) quashed the FPC’s factual and misconduct findings for failure to engage with critical contextual material, held that impairment was not properly reasoned, and crucially declined to remit the matter to the FPC, instead directing that the charges be dismissed.

The NMC obtained limited permission to appeal to the Court of Appeal. They could not and did not challenge the quashing of the FPC’s factual findings. The sole live issue was whether the High Court judge had erred in law or principle in refusing to remit the case for reconsideration by the FPC. The Court of Appeal (Lord Justice [giving the main judgment], with Snowden LJ and Males LJ agreeing) dismissed the appeal.

The decision establishes and clarifies several important points:

• There is no presumption of remittal to an FPC once its decision is quashed; the High Court has a genuine discretion under article 38(3) of the Nursing and Midwifery Council Order 2001.
• That discretion must be exercised by reference to purpose and proportionality, including consideration of whether a remittal would serve any useful public interest function given the likely outcome, passage of time, absence of ongoing concerns, and regulatory workload.
• Appellate deference to specialist tribunals (such as the FPC) is real but context‑dependent, and is not an overriding requirement where the issues are non‑technical and the court is as well placed as the tribunal to assess them.
• Fitness to practise panels must grapple explicitly with contextual and systemic factors—such as DoLS authorisations, staffing levels, and patient risk history—where these form part of the registrant’s justification.

2. Summary of the Judgment

2.1 Background and FPC decision

On 27–28 November 2017, Mr Ibrahim was working a night shift caring on a 1:1 basis for Patient A, who:

• Had CNS lymphoma and paranoid schizophrenia.
• Was frail, malnourished, unsteady, and described as a “huge falls risk”.
• Had a history of absconding and expressed suicidal ideation.
• Was subject to a DoLS authorisation dated 24 November 2017, recommending 2:1 supervision.

The core allegations were that Mr Ibrahim:

• On one or more occasions prevented Patient A from leaving her room by holding the door shut, causing distress, contrary to advice from colleagues and not supported by a care plan.
• Raised his voice to colleagues (Colleagues A and C) when questioned about his actions.

The FPC:

• Dismissed the allegation that he acted contrary to a care plan because no care plan existed (Charge 2(a)).
• Dismissed the allegation involving Colleague B because that witness did not attend (Charge 2(b)(ii)).
• Found all remaining charges proved, including findings that:
  • He held the door closed on more than one occasion;
  • He ignored advice from Colleague A;
  • He caused distress to Patient A and continued in the face of that distress; and
  • He raised his voice to colleagues, “defending [his] position when [he] knew [he] had done something wrong”.
• Concluded this amounted to misconduct (though “not serious misconduct as per the test set out in Roylance”).
• Found impairment on public interest grounds.
• Imposed a 12‑month Conditions of Practice Order plus an 18‑month interim conditions order.

Critically, in its factual and misconduct reasoning the FPC did not refer to:

• The DoLS authorisation mandating 2:1 supervision.
• The unilateral and undocumented downgrading from 2:1 to 1:1 by Colleague C.
• The full content of the hospital notes describing Patient A’s extreme agitation, falls, and attempts to abscond.
• The registrant’s contemporaneous statement and account of his clinical justification.

2.2 High Court appeal

Mr Ibrahim appealed to the High Court, essentially arguing:

1. Ground 1: The FPC failed to engage with his contextual justification, in particular the DoLS order, systemic staffing failings, and Patient A’s history and presentation, so it could not fairly find the allegations proved.
2. Ground 2: The FPC’s impairment reasoning failed to address the lengthy passage of time, his unblemished record since, and evidence of remorse, reflection, and remediation.

The judge accepted both grounds. Key conclusions (paras 39–44 of his judgment, as summarised by the Court of Appeal) included:

• The DoLS authorisation, a “carefully considered and reasoned document which has a statutory basis”, was a material circumstance that “had to be fully grappled with” and was “an authoritative statement which plainly should have been followed unless and until it was varied”.
• Mr Ibrahim was “placed in the sole care of Patient A, contrary to the level of provision… signed off” in the DoLS and was “new to the ward and had no care plan from which to work”; there were “arguable systemic failings which were not of his making”.
• To find the NMC’s allegations proved, the panel had to decide whether Mr Ibrahim had clinical justification for keeping Patient A in her room; without addressing the DoLS terms, staffing inadequacy, and the patient’s dangerous and aggressive behaviour, it could not make a fair and rational decision.
• In a case where the registrant advances justification, the panel must make findings about that justification and “go further than making findings on the factual matters… set out in the charges”. It had to address:
  • How Patient A was behaving;
  • The risks to Patient A, other patients, and staff;
  • The significance of the difference between the DoLS requirements and the care actually provided.

The judge therefore:

• Quashed the FPC’s factual findings and the misconduct and impairment findings (Ground 1).
• Found that the impairment reasoning was likewise flawed for failure to engage with the Registrant’s material (Ground 2).

On disposal, applying article 38(3) of the 2001 Order, the judge:

• Noted the usual deference to regulatory panels (citing Meadow v GMC and other authority) but emphasised that his criticisms were document‑based, not dependent on live witness assessment (paras 59–60).
• Was “sure that if the Panel had taken the Appellant's case properly into account… it would have reached different and less serious findings”, possibly no misconduct or less serious misconduct, and therefore a lesser sanction or no sanction (para 61).
• Observed:
  • The interim order had already been in force and had now lapsed.
  • There were no other concerns about Mr Ibrahim’s practice since 2017.
  • His reflective piece showed genuine insight.
  • A re‑hearing would have to be full and would consume significant NMC resources, potentially delaying other serious cases (para 64).
• Concluded that a re‑hearing would be disproportionate and purposeless: the public interest would not be served by remittal. He therefore quashed the decisions and dismissed the charges rather than remitting.

2.3 The NMC’s limited appeal and the Court of Appeal’s decision

Zacaroli LJ granted the NMC only limited permission to appeal, explicitly noting there was “no real prospect of success” in challenging the decision to quash the FPC’s factual findings. Permission was granted solely on:

• Alleged errors in the judge’s implicit factual conclusions and reasoning; and
• His refusal to remit the case to the FPC for reconsideration.

Before the Court of Appeal, the NMC’s arguments (paras 24–26) centred on four propositions:

1. The judge should have made his own alternative factual findings if he was not going to remit; leaving the charges “unresolved” was said to be incompatible with the NMC’s public protection function.
2. Remittal was necessary because only an expert tribunal was properly equipped to answer unresolved questions about misconduct and impairment, and deference required the court to remit (relying on GMC v Jagjivan and other authority).
3. The judge misdirected himself by treating the interim order as equivalent to a period of “time served” for any future sanction (para 62 of his judgment).
4. The delay since 2017 was not, or should not be, a bar to resolving outstanding fitness to practise issues.

The Court of Appeal rejected all four strands and upheld the judge’s exercise of discretion:

• Once the FPC’s findings were quashed for failure to grapple with the evidence—and in light of rule 30 of the Fitness to Practise Rules 2004 placing the burden of proof on the NMC—the proceedings had effectively “come to a halt”; it was not necessary for the judge to make alternative factual findings (para 27–28).
• Article 38(3) confers a discretion to dismiss, quash, substitute or remit. There is no rule that the only proper disposal is remittal once an FPC decision is quashed, and appellate interference with the judge’s discretionary choice is tightly circumscribed (paras 22–23, 27–29).
• The judge was entitled to form a robust view (para 61) that, even taking the case against the Registrant at its height, proper consideration of contextual factors would inevitably have led to a lesser finding (or none) and to a lesser sanction or no sanction at all; this was “obviously germane” to whether remittal would serve any purpose (para 29).
• On deference, the court emphasised that:
  • The judge had in fact recognised and applied the need for deference (para 59), referring to Meadow.
  • However, deference is not absolute: its extent depends on how far the issues are clinical and on the panel’s relevant clinical expertise (para 31).
  • In this case the circumstances were clear, the issues not complex clinically, and some allegations were simply that the Registrant raised his voice; the judge was as well placed as the panel to assess those matters (paras 32–33).
• On interim orders, while the final sentence of para 62 of the judge’s judgment could “have been phrased better” and an interim order cannot strictly be counted as “time served” against a future sanction, the Court of Appeal held that this was not the essence of his reasoning. Properly read, he was emphasising the absence of any further regulatory concerns since 2017 and the fact that the interim order had already served its protective function (para 34).
• On delay, the Court of Appeal accepted that delay is fact‑sensitive, but held the judge was entitled to consider the impact of a remittal on timeframes (given existing delays and NMC caseload pressure) and to treat this as a legitimate factor when assessing proportionality (para 35).

Accordingly, the Court of Appeal held that the judge’s reasons in paras 59–64 of his judgment “appropriately identify a range of material considerations” and that his “exercise of discretion… cannot be sensibly criticised” (para 36). The appeal was dismissed, with Snowden LJ and Males LJ agreeing (paras 37–38).

3. Detailed Analysis

3.1 The factual and systemic context: more than a simple misconduct case

An important feature of Ibrahim is that the alleged misconduct occurred in the context of:

• A DoLS authorisation explicitly recommending 2:1 care for a high‑risk patient with severe psychiatric and physical conditions.
• A unilateral, undocumented change by a colleague (Colleague C) from 2:1 to 1:1 observation, contrary to the DoLS assessment and without clear clinical justification.
• Absence of a formal care plan, although there existed a document “purporting to be” one, emphasising:
  • Risk of absconding and previous absconsions despite 2:1 supervision;
  • Suicidal ideation;
  • That doors should not be closed in a way that prevented visual supervision;
  • The need to accompany and keep eyes on Patient A at all times.
• Contemporaneous hospital notes describing:
  • Marked agitation and distress on 27–28 November 2017;
  • Pacing, running towards exits, repeated agitation despite efforts at de‑escalation;
  • Falls after spilling liquids while walking.

Mr Ibrahim’s consistent explanation, including in a near‑contemporaneous statement from December 2017, was that he:

• Recognised that Patient A required 2:1 care and had drawn this to the attention of the staff nurse, who replied that she had been downgraded.
• Observed behaviour (pacing, entering other patients’ bays, attempting to exit the ward, slipping twice on spilled milk, throwing yoghurt at him) consistent with the assessed high risk.
• Considered there was a real possibility of serious harm if she left the ward or continued to move unsteadily around the ward.
• Closed the door briefly, monitoring from the other side, to prevent immediate physical attack and further falls, in what he regarded as a proportionate response in an unsafe system.
• Requested a medical review which never occurred.

This detailed context underpinned the High Court’s finding that the FPC had simply not engaged with the substance of Mr Ibrahim’s justification and that this omission rendered its factual conclusions unsafe. The Court of Appeal proceeded on the basis that these criticisms were correct and unchallengeable.

3.2 The statutory framework for appeals and the range of disposals

Article 38(3) of the Nursing and Midwifery Council Order 2001 confers on the court a wide range of possible disposals when hearing appeals from the FPC:

“(3) The Court or sheriff 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 [Fitness to Practise Committee] or the Council, as the case may be, could have made;
(d) remit the case to the [Fitness to Practise Committee] or Council, as the case may be, to be disposed of in accordance with the directions of the court or sheriff…”

In Ibrahim:

• It was common ground that the High Court had a genuine discretion between at least options (b), (c) and (d) (para 23).
• The judge chose:
  • To quash the decision (option (b)); and
  • Not to exercise the substitution power under (c); and
  • Not to remit under (d).

The NMC’s argument was, in substance, that once a decision is quashed and serious allegations remain “unresolved”, option (d) – remittal – should be seen as the only proper course. The Court of Appeal firmly rejected any such presumption or rule. The judge’s selection among the statutory options was a classic exercise of discretion, reviewable only on traditional grounds (error of principle, taking into account irrelevant matters, ignoring relevant matters, or reaching a decision outside the reasonable range).

3.3 Burden of proof and the consequence of quashing findings

A central part of the Court of Appeal’s reasoning (para 27) was to place the judge’s decision in the context of rule 30 of the 2004 Fitness to Practise Rules, which puts the burden on the NMC to prove disputed facts. The court reasoned that:

• The judge had held that the FPC failed properly to grapple with the evidence and thus failed to make a legitimate finding that the NMC had discharged its burden of proof.
• Once the FPC’s findings are unsound in that way, the NMC has, in effect, failed to prove its case.
• Accordingly, “the proceedings against the Registrant [are] effectively… at a halt, as the appeal has to be allowed” (para 27).

From that point, the question is not whether the allegations should somehow be “resolved” in a forensic sense, but rather what disposal best serves the public interest given that the NMC has not proved its case on the footing of the existing proceedings and evidence.

The Court of Appeal also noted (para 28) that:

• The judge was not obliged to make alternative factual findings under article 38(3)(c).
• He could have done so—e.g. by substituting a finding that the allegations were not proved—but neither party pressed for that course beyond a suggestion that there should be a finding that the facts were not proved.
• There is no legal rule that negative or exonerating findings must be substituted whenever a panel’s positive findings are quashed.

This is significant: it confirms that it is legitimate for a court, having quashed a panel’s findings for failure to discharge the burden of proof, to refrain both from remittal and from making fresh findings, in effect leaving the charges to fall away in that set of proceedings.

3.4 Deference to specialist tribunals: nuanced, not absolute

The NMC relied on general statements of principle about deference to specialist regulators, particularly:

• GMC v Jagjivan [2017] EWHC 1247 (Admin), which summarised that appellate courts should approach tribunal determinations on serious misconduct, impairment, and sanctions “with diffidence” (para 40(v)), drawing on:
  • Fatnani (GMC v Fatnani and Rasool) on limited appellate intervention in regulatory sanctions; and
  • Khan v General Pharmaceutical Council [2016] UKSC 64; [2017] 1 WLR 169, on respecting a professional committee’s expertise in setting standards and sanctions.
• Meadow v GMC [2007] QB 462, where Thorpe LJ emphasised that “the competence of the regulatory body to judge professional standards lies with the regulatory body, not the court” (para 59 of the High Court judgment, cited at para 31 of the Court of Appeal decision).

The Court of Appeal accepted the general principle of deference but made two important clarifications (paras 30–33):

1. Context‑sensitivity of deference:
   The level of deference owed “must depend upon the extent to which the issues in the case are clinical issues, and the extent to which the panel in question comprises medical professionals with relevant clinical expertise” (para 31). Deference is stronger where:
   • Complex clinical judgments are in issue; and
   • The panel has specialist expertise directly relevant to those judgments.
2. Nature of the issues in Ibrahim:
   The court noted that:
   • The circumstances faced by Mr Ibrahim were “clear and easy to understand” (para 32).
   • The charges did not raise “any complex issues of clinical practice”; some merely alleged that he raised his voice to colleagues.
   • The judge’s criticisms of the FPC were based on documents, not on competing clinical expert opinions.
   Against that background, the judge was as well placed as the panel (particularly its two lay members) to assess whether the panel had adequately engaged with the contextual material and whether remittal would be purposeful.

This treatment does not cut across Jagjivan, Khan or Meadow; rather, it refines and confines their reach. It confirms that:

• Deference is not a universal trump card mandating remittal every time a panel errs.
• Court scrutiny is particularly appropriate where the alleged error is failure to grapple with the registrant’s case and where the issues are:
  • Fact‑sensitive but not technically complex; and
  • Capable of proper evaluation on the papers.

3.5 Purpose and proportionality in deciding whether to remit

At the heart of the case is the High Court’s decision—upheld on appeal—that remittal would not serve a useful purpose and would be disproportionate. The Court of Appeal endorsed the judge’s multi‑factorial assessment (paras 29, 33, 36), which drew on:

• Likely outcome on remittal (para 61):
  • Even taking the case against Mr Ibrahim “almost at its height”, the judge considered it clear that, had the FPC properly integrated the contextual mitigating features (DoLS, staffing failures, patient risk history, absence of care plan), it would have reached “different and less serious findings”.
  • It would either:
    • Have found no misconduct; or
    • Have found misconduct of a lesser degree.
  • Correspondingly, it would have imposed a “lesser sanction, or no sanction at all”.
  The Court of Appeal treated these as legitimate and realistic predictive assessments, not impermissible speculation.
• Interim order and absence of ongoing concerns (para 62, interpreted at para 34):
  • The interim order had already operated during the period before the appeal; it had “served its purpose in the public interest”.
  • There was no evidence of any other regulatory concern about Mr Ibrahim’s practice in the years since 2017.
  • This supported the view that the risk to the public was low to non‑existent and that any further sanction would likely be unnecessary.
• Registrant’s insight and remediation (para 63):
  • Mr Ibrahim’s reflective piece demonstrated a substantial impact on his approach to practice and appropriate insight.
  • This again made it unlikely that any further sanction would be needed for protective purposes.
• Delay and regulatory resources (para 64, accepted at para 35):
  • The original hearing had already been significantly delayed (five years from the events to the FPC hearing).
  • The judge, drawing on experience of similar lists, noted the heavy workload and case backlogs faced by the NMC.
  • A remittal would likely:
    • Take “a considerable time to be heard”; or
    • If expedited, delay other serious cases.
  • The judge factored in these system‑level considerations as part of the public interest assessment.

The Court of Appeal treated all these as legitimate considerations in judging whether remittal would be proportionate and purposeful. Public interest in regulatory proceedings includes:

• Protection of the public from current and future risk.
• Maintenance of proper professional standards.
• Maintenance of public confidence in the profession and in the regulatory system.
• Fairness to the registrant and efficient use of finite regulatory resources.

Ibrahim underscores that these dimensions sometimes point away from re‑litigation of old allegations where:

• The original findings are unsustainable;
• The likely sanction now would be nil or minimal;
• The registrant has an unblemished record since; and
• Regulatory resources are under significant pressure.

3.6 DoLS, systemic failings and registrant justification

Although the appeal in the Court of Appeal was confined to disposal, the case powerfully illustrates the importance of context in fitness to practise proceedings. The High Court’s criticisms (paras 39–44 of its judgment) were effectively endorsed by the Court of Appeal when it refused permission to challenge the quashing of factual findings and treated those criticisms as the basis for the disposal analysis.

Key elements:

• The DoLS authorisation was “an authoritative statement” that “should have been followed unless and until it was varied” (para 39). It was not a marginal or optional piece of background.
• The panel needed to address:
  • The discrepancy between the DoLS (2:1 care) and the reality (1:1 care);
  • The fact that the Registrant, new to the ward and with no care plan, was placed in an arguably unsafe staffing position not of his making; and
  • The registrant’s reliance on the DoLS and patient history as justification.
• In “a case in which the registrant's case is justification of the action or omission which is alleged, the Panel must at some stage make findings about that justification” (para 44 of the High Court judgment, quoted at para 17 of the Court of Appeal judgment).

This aspect of the case sends a clear message to fitness to practise panels:

• They must not evaluate alleged misconduct in a vacuum.
• They must engage explicitly with systemic failings (e.g. staffing shortages, failure to implement DoLS, lack of care planning) when assessing:
  • Whether the registrant’s conduct was actually unreasonable in the circumstances; and
  • Whether it amounts to misconduct or impairment.
• Failure to do so will risk their findings being quashed for want of rational engagement with the registrant’s case.

4. Precedents and Authorities Cited

4.1 Meadow v GMC [2007] QB 462

Meadow concerned disciplinary proceedings against Professor Sir Roy Meadow, a paediatrician whose expert evidence had played a controversial role in criminal proceedings. In the passage cited (para 280), Thorpe LJ emphasised that:

“The competence of the regulatory body to judge professional standards lies with the regulatory body, not the court. The court must accord due deference to the evaluation of a panel composed of medical professionals who are obviously better placed to make a peer judgment.”

In Ibrahim, the High Court cited Meadow to acknowledge that competence in judging professional standards lies primarily with the NMC and that the court should be slow to substitute its own views (para 59). The Court of Appeal accepted that this is the right starting point but stressed (para 31) that:

• Deference “is not an absolute or overriding requirement in every case”.
• Its extent depends on:
  • The extent to which the issues are genuinely “clinical”; and
  • The panel’s relevant expertise.

Thus, while Meadow remains good law on the principle of deference in professional regulatory appeals, Ibrahim refines its application: deference is calibrated to the case, not applied mechanically.

4.2 GMC v Fatnani and Rasool; Khan v GPhC; GMC v Jagjivan

The Court of Appeal referred to Jagjivan [2017] EWHC 1247 (Admin), and in particular para 40(v), which in turn drew together principles from:

• GMC v Fatnani and Rasool [2007] EWCA Civ 46: emphasising that appellate courts should not interfere with sanctions unless they are clearly wrong or outside the range of reasonable responses.
• Khan v General Pharmaceutical Council [2016] UKSC 64; [2017] 1 WLR 169: emphasising that the sanctions regime is primarily a matter for the professional regulator, which is uniquely placed to gauge what is necessary to maintain standards and public confidence.

Jagjivan distilled these into the proposition (quoted at para 25 of Ibrahim) that in regulatory proceedings:

“the appellate court will approach Tribunal determinations about whether conduct is serious misconduct or impairs a person's fitness to practise, and what is necessary to maintain public confidence and proper standards in the profession and sanctions, with diffidence…”

In Ibrahim, the Court of Appeal:

• Acknowledged this principle and accepted it as a correct general statement.
• But held that it did not compel remittal in a case like this, where:
  • The panel’s error was a failure to engage with critical evidence and justification;
  • The issues did not involve complex clinical judgment; and
  • The judge was as well placed as the panel to assess whether remittal would serve a meaningful public interest purpose.

The key development is not a departure from Fatnani, Khan or Jagjivan, but a demonstration that deference does not equate to a remittal obligation. It remains open to the appellate court, in an appropriate case, to conclude that:

• A regulator has not proved its case;
• Remittal would be of marginal or no utility; and
• Dismissing the charges is compatible with, and may better serve, the public interest.

4.3 Roylance and the concept of “serious misconduct”

The FPC referred to “serious misconduct as per the test set out in Roylance” (Roylance v GMC (No 2) [2000] 1 AC 311) and then stated that Mr Ibrahim’s actions amounted to misconduct but “albeit not serious misconduct”. Under Roylance, misconduct in the regulatory sense connotes a serious departure from professional standards, often described as “deplorable” by the standards of the profession.

Although the High Court and the Court of Appeal did not need to engage in detail with this doctrinal point (because the findings were quashed), the FPC’s formulation is worth noting. It suggests some conceptual confusion at panel level about:

• Whether there exists a category of “non‑serious misconduct” sufficient to found impairment; and
• How to align the statutory/regulatory language of “misconduct” with the Roylance test of seriousness.

Ibrahim does not resolve this issue, but it reinforces the broader requirement that panel reasoning on misconduct must be legally coherent, grounded in the correct test, and adequately explained.

5. Impact and Significance

5.1 For appellate courts: no presumption of remittal

The most direct doctrinal impact of Ibrahim is the clear statement that:

• Article 38(3) confers a true discretion between:
  • Quashing the decision;
  • Substituting a decision; and
  • Remitting for reconsideration.
• There is no rule or presumption that, once a panel’s decision is set aside, the case must be remitted so that allegations can be re‑litigated.
• The proper disposal is to be determined by a holistic evaluation of the public interest, including proportionality, purpose, delay, likely outcome, resource implications, and the registrant’s subsequent practice.

This will assist future courts in:

• Resisting blanket submissions from regulators that remittal is the only way to protect the public whenever a panel’s decision is defective.
• Providing structured reasoning when they decide not to remit, ensuring they:
  • Identify the error in the panel’s decision;
  • Consider the burden of proof and the consequences of its non‑discharge;
  • Assess whether the issues are such that the court is as well placed as the panel;
  • Evaluate whether any further hearing would likely change the outcome or add real public protection value.

5.2 For regulators and panels: the necessity of engaging with context

The case also has a clear impact at the level of first‑instance regulatory decision‑making:

• Panels must explicitly address:
  • DoLS authorisations and other statutory or quasi‑statutory care frameworks;
  • Staffing arrangements and deviations from assessed levels of observation;
  • Documented patient risk factors (falls, absconding, aggression, suicidal ideation);
  • The registrant’s explanation and justification in light of those factors.
• Failure to do so will likely be treated as a failure to “fully grapple” with material evidence, rendering findings vulnerable to being quashed.
• Regulators cannot safely assume that contextual arguments will be side‑lined on appeal; here they led to the total collapse of the case and dismissal of charges.

This may influence:

• The way case presenters and panels frame allegations—ensuring that the charge sheet and reasons reflect the actual complexity of the clinical and systemic environment.
• Training for panel members on how to evaluate and record contextual factors, particularly where registrants are working in under‑resourced or structurally unsafe environments.

5.3 For registrants and their representatives

Ibrahim provides a valuable set of tools for registrants:

• On appeal, they can argue that:
  • The panel failed to address key contextual evidence or justification;
  • The regulator has not discharged the burden of proof; and
  • Given the passage of time, lack of further concerns, and the nature of any original sanction, remittal would be neither necessary nor proportionate.
• They can point to Ibrahim as authority that:
  • The court is not bound to remit; and
  • Public interest includes avoiding fruitless re‑hearings that will not lead to meaningful sanctions.
• In first‑instance proceedings, they can emphasise:
  • DoLS and other systemic safeguards they reasonably relied on;
  • Staffing shortages, resource constraints, and unsafe environments not of their making;
  • Steps taken to seek support (e.g. requesting medical review); and
  • The need for panels to make explicit findings on these points.

5.4 For the understanding of “public interest” in regulatory law

Finally, Ibrahim advances a more sophisticated understanding of the “public interest” in health professional regulation:

• It is not synonymous with “resolving every allegation to a definitive factual conclusion no matter how old or marginal”.
• It includes:
  • Protecting the public from future harm;
  • Maintaining standards and confidence; but also
  • Ensuring proportionate use of regulatory processes and respecting the personal and professional impact on the registrant.
• It requires regulators and courts to ask:
  • What useful protective purpose would a re‑hearing now serve?
  • Given the registrant’s subsequent conduct and the likely range of sanctions, would further proceedings meaningfully contribute to public protection or standards?

This more rounded conception is particularly salient in long‑running historic cases, especially where the original panel’s decision is set aside for serious reasoning failures.

6. Complex Concepts Simplified

6.1 DoLS (Deprivation of Liberty Safeguards)

DoLS are legal safeguards under the Mental Capacity Act 2005 (as in force at the relevant time) that authorise deprivation of liberty for people who lack capacity to consent to their care or treatment in hospitals or care homes, where such deprivation is necessary and proportionate to prevent harm.

In this case:

• The DoLS authorisation for Patient A:
  • Recognised her paranoid schizophrenia, substance abuse history, non‑compliance with medication, and challenging/aggressive behaviour.
  • Required 2:1 care to reduce risks, including absconding and harm to herself or others.
• It provided a formal, medically considered baseline as to how risky Patient A was and what level of supervision was required.

For a nurse stepping onto a ward, a DoLS authorisation is not merely background; it defines the lawful framework within which care must be delivered. Acting in a setting where the DoLS is not properly implemented (e.g. 1:1 care instead of 2:1) is a systemic problem, not necessarily the registrant’s personal fault.

6.2 2:1 vs 1:1 care and systemic failings

“2:1 care” means two staff members (typically a registered nurse and a healthcare assistant) are assigned to one patient at all times. “1:1 care” means only one staff member is directly assigned.

Reducing 2:1 to 1:1 for a high‑risk patient like Patient A:

• Increases the likelihood that the assigned nurse will struggle to:
  • Maintain constant close supervision;
  • Manage violent or aggressive behaviour safely; and
  • Prevent absconding or falls.
• Creates a tension between:
  • What the DoLS, risk assessments, and hospital documentation say is needed; and
  • What staffing resources actually allow.

Ibrahim emphasises that such systemic under‑provision must be recognised in assessing whether the nurse’s conduct is blameworthy. Fitness to practise proceedings should not treat frontline staff as scapegoats for broader organisational shortcomings.

6.3 Misconduct vs impairment

In health professional regulation:

• Misconduct refers to behaviour that falls seriously below the standards expected of a professional. Under Roylance, it generally connotes a serious departure from professional standards.
• Impairment refers to whether, at the time of the hearing, the registrant’s fitness to practise is currently impaired—taking into account:
  • Risk of repetition;
  • Insight and remediation;
  • Passage of time;
  • The need to maintain public confidence and standards.

Not every instance of past misconduct necessarily results in current impairment; a one‑off lapse in a stressful context, fully remediated, may not justify ongoing restrictions. In Ibrahim, the FPC found misconduct and impairment, but the High Court held that its impairment reasoning did not properly address:

• The years that had elapsed since 2017;
• The absence of any further concerns; and
• Mr Ibrahim’s remorse and reflective practice.

6.4 Conditions of Practice Order vs Interim Order

A Conditions of Practice Order:

• Is a substantive sanction imposed after a finding of misconduct and impairment.
• Imposes conditions (e.g. supervision, training, mentoring, reporting obligations) for a fixed period (e.g. 12 months).
• Is usually subject to review before expiry to assess whether it remains necessary.

An Interim Order:

• Is a temporary measure (suspension or conditions) imposed while:
  • Proceedings are ongoing; or
  • An appeal is pending.
• Is designed to protect the public during the process, not to penalise past conduct.

In Ibrahim, the High Court noted that:

• An interim conditions order had already been in effect.
• There were no new concerns about Mr Ibrahim’s practice.
• Given this, any further substantive order after remittal would likely be unnecessary.

The Court of Appeal clarified that while an interim order is not literally “time served” against a future sanction, its existence and expiry can be relevant in assessing whether further regulatory intervention is still required.

6.5 Quashing, substitution and remittal

• Quashing a decision means setting it aside so that it no longer has legal effect.
• Substitution means the court replaces the panel’s decision with its own (e.g. substituting a finding that allegations are not proved, or imposing a different sanction).
• Remittal means sending the case back to the original (or a differently constituted) panel for a fresh or further hearing, often with directions.

Ibrahim confirms that:

• Courts have a choice between these routes; remittal is not compulsory.
• The choice depends on where the public interest lies once the original decision is quashed.
• In some cases, quashing without remittal—effectively bringing proceedings to an end—is a legitimate outcome.

7. Conclusion

The Nursing and Midwifery Council v Ibrahim [2025] EWCA Civ 1631 is a significant decision in the law of professional regulation, particularly for health professions governed by the NMC.

It establishes that:

• The High Court’s powers under article 38(3) of the 2001 Order are genuinely discretionary. There is no rule that cases must be remitted once a panel’s decision is found to be flawed.
• Where a panel has failed to grapple with critical contextual evidence and justification, and thus failed to demonstrate that the regulator has discharged the burden of proof, the appeal court may properly quash the decision without remittal.
• In deciding whether to remit, courts must consider:
  • Whether a rehearing would add meaningful public protection or standard‑setting value;
  • The likely outcome if all context is properly considered;
  • The time elapsed since the events and since any earlier hearing;
  • The registrant’s subsequent practice and insight; and
  • The impact on regulatory resources and other cases.
• Deference to specialist tribunals remains an important principle but is not absolute. Its intensity depends on the clinical complexity of the issues and the tribunal’s expertise.
• Fitness to practise panels must engage fully with DoLS authorisations, staffing and systemic failings, and the registrant’s justification when assessing alleged misconduct.

In a wider sense, Ibrahim signals a mature view of the public interest in professional regulation, balancing the need to protect patients and uphold standards with fairness to individual practitioners and responsible stewardship of limited regulatory resources. It will be an important reference point for future appeals where the appropriateness of remittal is contested, and for panels assessing frontline clinical decisions made under intense systemic pressure.