The PSA’s Section 29 appeal powers in practice: the case of PSA vs NMC and Tchampet

Summary

The High Court’s (Griffiths J) decision in PSA v (1) NMC (2) Tchampet [2026] EWHC 141 (Admin), in which I acted on behalf of the Professional Standards Authority (PSA) , reinforces the important weight that should be given to previous adverse findings at the impairment and sanction stages of a disciplinary committee’s decision-making. It also demonstrates the seriousness of a Registrant dishonestly attempting to cover up their misconduct during an investigation, even if they subsequently make admissions.

The 2015/16 incident and 2017 warning

Ms Tchampet, the Registrant, had qualified as a nurse in 2012. In 2016, her employer, a nursing agency, referred her to the NMC. She had worked night shifts alongside a healthcare assistant (HCA), providing 2:1 care to Patient A at Patient A’s home. Patient A had complex care needs, including a severe form of epilepsy. Patient A’s condition was such that they could have multiple seizures of different types overnight requiring swift intervention.

The HCA raised concerns that the Registrant had, on several dates between July 2015 and January 2016, slept on duty while caring for Patient A. In representations to the NMC, the Registrant accepted she had closed her eyes while resting for up to 20 minutes, apologised, and assured the NMC she had learned her lesson, and this would not be repeated. She further stated that, as she found it difficult to stay awake in a community setting on night duty, she would focus on her job at a hospital. The NMC’s case examiners decided that, while there was a case to answer on the facts, there was no evidence that the Registrant’s practice needed restricting in the interests of public safety, given the insight demonstrated and the evidence of current safe practice. They imposed a 1-year warning, commencing in August 2017.

The 2019 incident

In 2020, the Registrant’s employer, a nursing agency, referred her to the NMC. On 17/18 December 2019, the Registrant had worked a night shift at Child A’s home. Child A was a 10-year-old boy with a closed spinal fracture; he was quadriplegic, with no respiratory effort and ventilated through a tracheostomy; and he had gastronomy catheterisation. The reason for the Registrant to work the night shift at Child A’s home was to provide 1:1 care to him and perform clinical observations, on both of which Child A was completely reliant. As the Registrant later accepted, the consequences of failing to perform her duties could be fatal for Child A.

However, on the night in question, the Registrant covered a CCTV camera in Child A's room with a cloth, slept for nearly four hours during the night, and, in the morning, at 06.11, in breach of hygiene and/or infection control, used the same cloth with which she had covered the camera to wash the child. She recorded, in Child A’s observation chart, that she had observed him at 02.00 and made hourly observations from 02.00 to 05.00 when she knew this was not the case. During an internal investigation, the Registrant initially denied she had slept on duty, explaining that she had developed thrush, and had to scratch herself, so covered the camera for privacy. She maintained this explanation at a meeting on 14 January 2020, but on 3 February 2020, recanted, and accepted that she had been asleep while the camera was covered.

The panel’s decision

In 2025, a panel of the NMC’s FtP committee heard allegations arising from the 2019 incident. The Registrant admitted all the allegations (including dishonesty). She expressed remorse and adduced testimonials from her colleagues. She submitted she had identified that the risk of sleeping for her involved working long single-handed shifts at night in a community setting. She had determined not to put herself in that position again and, accordingly, for the past five years she had been working night shifts, but in a busy hospital setting without incident. The panel found there was a minimal risk of repetition and a finding of impairment was unnecessary on public protection grounds, though such a finding was necessary in the public interest. At sanction stage, the panel imposed a 9-month suspension. It found that the Registrant’s dishonesty was towards, but not at, the higher end of the spectrum and was a single episode arising from one shift.

The appeal

The PSA referred the panel’s decision to court under s 29 of the NHS Reform and Health Care Professions Act 2002. The NMC conceded, but the Registrant opposed the PSA’s appeal.

Allowing the PSA’s appeal and substituting an order striking the Registrant off, the court found:

• A factor which the panel did not mention in its decision was that on the previous occasion (the 2015/16 incident), the Registrant had escaped greater sanction in part because of good references, and her assurance that she would not work in a community setting. But those assurances, and good references, turned out not to be a reliable indicator of risk of repetition, because she committed the 2019 misconduct in a community setting which was even more exposed than before: [72].
• The Registrant’s dishonesty in the 2019 incident was not really a one-off incident. It came on the back of the 2015 incident and the 2017 warning. The dishonesty was not just in relation to covering up the camera and the sleeping, but also in relation to falsifying the record about checks. It continued with lies told for six weeks in the course of a formal investigation: [77].
• The panel’s findings that the Registrant’s dishonesty was (1) towards, but not at the higher end of the spectrum and (2) a single episode were either wrong or a distinction not sufficient to make a difference between a case requiring striking off and a case which could be dealt with by a suspension: [88].
• The evidence of the Registrant’s insight had to be considered in the light of the acceptance of insight by the Case Examiners in 2017 which proved to be unreliable: [93].
• Giving due weight and deference to the reasoning of the Panel, it is incomplete and unsound and does not support its conclusion that suspension was an appropriate and sufficient sanction on the facts of the Registrant’s case. The only possible decision was to strike off and the panel’s own findings of primary fact supported this: [94]–[95].