Olubokola Bridget Ajana v Nursing and Midwifery Council

MRS JUSTICE BRUNNER : Introduction

1. On 24 September 2024 a panel of the Nursing and Midwifery Council’s Fitness to Practise Committee (‘the panel’) found a number of allegations proved against the appellant Ms Ajana, a registered midwife. Numerous complaints were made about the appellant’s conduct between June 2020 and April 2021 while she was working at Barnet Hospital. The appellant was experienced; she joined the hospital trust in 2019 with 12 years of post-registration experience. The NMC brought charges against her which were determined by the panel after a 20 day hearing, in which both parties were represented by counsel. The appellant denied all of the charges.

2. The allegations related to behaviour towards patients and their babies, including shouting aggressively at new mothers, failing to offer pain relief, shaking a baby and squeezing a new mother’s nipple without her consent. The panel found that the appellant’s behaviour amounted to misconduct, that the appellant’s fitness to practise was impaired and that the only appropriate and proportionate sanction was a striking-off order.

3. The appellant appeals against that sanction decision, asking this court to quash it and either replace it with a less severe sanction or remit the matter to a panel to redetermine. The appellant does not seek to quash the panel’s decision in any other aspect, and so this appeal proceeds on the basis that she carried out the acts as found by the panel which amounted to misconduct which impaired her fitness to practise. The NMC contends that the sanction should stand.

4. The hearing before me took place on 20 November 2025. Ms Adeyemi appeared for Ms Ajana. Ms Mohamed appeared for the Nursing and Midwifery Council. The Parameters of the Appeal

5. This appeal is brought pursuant to Article 38(1) of the Nursing and Midwifery Order 2001 (“the Order”) which gives this court power to dismiss the appeal, allow the appeal and quash the decision appealed against, to substitute its own decision or to remit the case to another panel for redetermination.

6. The legal framework is uncontroversial. This appeal is governed by CPR 52.21(3), which gives me the power to allow the appeal only if the decision of the panel was “(a) wrong; or (b) unjust because of a serious procedural irregularity in the proceedings in the lower court”.

7. Appropriate deference is due to the judgment of the tribunal below in view of its special expertise. On sanction, the court should not conduct a resentencing exercise, substituting its view for the tribunal's. The Court of Appeal held in General Medical Council v Bawa-Garba that as sanctions decisions are multi-factorial judgments, mixing facts, guidance and the law, an appeal court should only interfere if there is an error of principle in carrying out the evaluation or for any other reason the evaluation is wrong in that it fell outside the bounds of what a reasonable panel could properly and reasonably decide. [2018] EWCA Civ 1879 , [2019] 1 WLR 1929 The Provisions Governing Sanction

8. Where a panel concludes that an allegation is well founded, and does not undertake mediation or determine that it is not appropriate to take any further action, it is required to impose one of the sanctions set out in Article 29(5) of the Order, which are a striking-off order, a suspension order, a conditions of practice order or a caution order.

9. The NMC Sanctions Guidance requires a panel to consider the available sanctions in order of increasing severity, in order to achieve a proportionate outcome.

10. The Sanctions Guidance includes sections dealing with aggravating and mitigating features, the latter saying: ‘Mitigating features are aspects of the case that show it is less serious, and point towards a sanction with less impact on the nurse, midwife or nursing associate’s practice being appropriate. The Fitness to Practise Committee will always look carefully at any evidence about mitigation when they are deciding which sanction, if any, to impose.’

11. Three categories of mitigation are then described in the guidance; evidence of insight and understanding, evidence of good practice, and personal mitigation such as illness.

12. The Sanctions Guidance includes this section headed ‘Striking-off order’: ‘This sanction is likely to be appropriate when what the nurse, midwife or nursing associate has done is fundamentally incompatible with being a registered professional. Before imposing this sanction, key considerations the panel will take into account include: • Do the regulatory concerns about the nurse, midwife or nursing associate raise fundamental questions about their professionalism? • Can public confidence in nurses, midwives and nursing associates be maintained if the nurse, midwife or nursing associate is not struck off from the register? • Is striking-off the only sanction which will be sufficient to protect patients, members of the public, or maintain professional standards? The panel should refer to our guidance on seriousness, which highlights a number of factors indicating which kinds of concern it may not be possible for the nurse, midwife or nursing associate to address or put right, and which will most seriously affect the public's trust and confidence in registered nurses, midwives or nursing associates.’

13. The separate NMC Guidance entitled ‘How We Determine Seriousness’ (‘the Seriousness Guidance’) includes this: ‘some behaviours are particularly serious as they suggest there may be a risk to people receiving care, examples include: Conduct or poor practice which indicates a dangerous attitude to the safety of people receiving care’. The Panel’s Findings

14. The panel found most charges to be proved. It is not necessary to set them out in full given the parameters of this appeal. They related to seven different women who were in labour or had recently given birth, over a ten month period. Many of the women were alone, because of rules in place during the pandemic. I set out below a precis of the proven charges, along with extracts from the panel’s summary of its findings in relation to some of the patients. Those extracts show the panel’s view of the gravity of some of the appellant’s behaviour, and the panel’s conclusion that the appellant’s behaviour stemmed from her attitude. i) On 27/28 June 2020 the appellant instructed Patient H that she could not stay in bed after a caesarean section, spoke to her in an aggressive tone, told her ‘you shouldn’t cry’, and failed to provide adequate care including leaving her bed covered in blood, and failing to provide pain relief. The panel noted that the patient was vulnerable and determined that ‘ your conduct was of a poor practice which indicates a dangerous attitude to the safety of people receiving care’. ii) On 23 October 2020 the appellant refused to assist Patient E to change the baby’s nappy, spoke to her in an aggressive tone using words to the effect of ‘stop pressing the call buzzer for assistance’ and ‘why is your baby always crying’, and took her baby into the corridor without consent. iii) The appellant initially refused to change Patient G’s blood-stained bed linen, refused to check her dilation after she had arrived on the ward, failed to offer pain relief or explain choices when Patient G was in labour, and spoke to her rudely. iv) On 25/26 December 2020 the appellant shouted at Patient J to stop using the call buzzer and did not ensure that her bedding was changed. The panel’s decision records that it ‘was of the view that your behaviour was attitudinal in nature and you displayed poor practice by not ensuring that Patient J’s bed linen was changed and by shouting at her, whilst vulnerable, when she required assistance from you after giving birth’. v) On 11/12 January 2021, the appellant asked Patient A why she had not stood up following a caesarean section, shouted at her after she had used the call buzzer, spoke to her in an aggressive tone saying words to the effect of ‘then you won’t go home today’, ignored her while she was crying, and did not offer assistance when she was struggling to breast-feed. The panel’s findings included: ‘your tone was aggressive and alarming and this displayed a bad attitude towards patients in your care. You failed to provide Patient A with assistance at her most vulnerable and despite this you did not send a colleague back to check on her which was poor practice.’ vi) On 16/17 April 2021 the appellant rolled her eyes at a question from Patient F about blood in her baby’s nappy and ignored the question, responded to requests for pain relief aggressively and did not provide timely pain relief. vii) On 28 April 2021 the appellant shouted at Patient I that she needed to stop her baby from crying, removed the baby from their cot/the patient without consent, shook the baby for 5-10 seconds, squeezed the patient’s nipples without consent saying words to the effect of ‘you’ve got no milk, that’s why he is crying, you need to give him formula’. The appellant also shouted at other mothers on the ward, saying ‘we are not here to look after your babies, you are the mums’. The panel found that ‘not providing assistance and removing her baby without her consent to shake the baby, fell short of the standards expected of you as a registered midwife. The panel was also concerned that squeezing Patient I’s nipples without showing any empathy amounted to serious misconduct’. I note that the evidence from Patient I included a description that ‘she [Ms Ajana] picked him [Patient I’s baby] up. She held him out here and shook him. That is not rocking. S he was very angry and shouting at my baby to stop crying’. Patient I described the shaking as gentle.

15. Although the question of impairment is not under appeal, the panel’s findings in relation to impairment are of relevance when considering sanction: ‘ P atients were put at risk and were caused physical harm as a result of your misconduct. Your misconduct has breached the fundamental tenets of the nursing profession and therefore brought its reputation into disrepute. It was satisfied that confidence in the midwifery profession would be undermined if its regulator did not find your misconduct to be serious. The panel considered your registrants response bundle, which included character references from a former colleagues and colleagues from the Hospital, as well as the training certificates you provided. The panel was of the view that the misconduct identified in this case is capable of being addressed. However, the panel carefully considered the evidence before it in determining whether or not you have taken steps to strengthen your practice. The panel took into account relevant training you have undertaken. The panel believes that you succeeded in completing your action plan which was done under restrictions and monitored by your manager. The panel acknowledges the current reference from your manager that signed off your action plan. The panel determined that your insight is not sufficiently developed, in particular you are not able to show insight into why you behaved in the way you did, where you went wrong and the impact of your behaviour on the patients concerned. Nor were you able to demonstrate how you would behave differently if working in the circumstances in which your misconduct occurred. For these reasons, the panel determined that your insight is not sufficiently developed. The panel is of the view that there is a risk of repetition based on the attitudinal nature of the regulatory concerns identified, which occurred on seven different occasions with women who were about to give birth or had already given birth. The panel determined that, notwithstanding the fact that you have spent two years without being subject to conditions of practice, there remains a risk of harm in relation to your failure to communicate with patients in your care. In relation to you working Bank shifts on the Ward, the panel further determined that you were not able to provide a satisfactory example of providing safe and adequate care in an empathetic manner in the circumstances which gave rise to your misconduct. The panel therefore decided that a finding of impairment is necessary on the grounds of public protection.’

16. Under the heading ‘Sanction’ which directly followed the section on impairment, the panel said it had regard to all the evidence, to the Sanctions Guidance, to the advice of the legal assessor, and to the Seriousness Guidance. The panel set out the submissions which it had heard in relation to sanctions which included reference to various mitigating features such as references and the fact that the appellant had worked unrestricted and without further incident for a significant time.

17. Having noted in that way the existence of material which could mitigate the case, the panel then set out aggravating and mitigating features as follows: ‘The panel took into account the following aggravating features which it considered apply in this case: • Your misconduct was over a prolonged period of time (ten months) • You caused physical and emotional abuse to patients, including shaking of a patients baby • You deliberately neglected to provide fundamental midwifery care • You violated the dignity and respect of patients • You acted without empathy or compassion • You repeated the type of misconduct, refusing pain relief, ignoring patients, treating patients with disrespect • Your misconduct and lack of empathy stemmed from underlying attitudinal issues • Your insufficient insight into the regulatory concerns The panel also took into account the following mitigating features, which it considered apply in this case: • Successful completion of an action plan resulting in the revocation of an interim order The panel referred to its earlier decisions regarding the seriousness of the facts found proved which led to its finding on current impairment. It was satisfied that your serious misconduct amounted to wide-ranging and serious failings over a prolonged period of time. It determined that your behaviour, which involved deliberate breaches of the Code, your aggressive behaviour towards patients, and failings in patient safety, all indicated a dangerous attitude to the safety of vulnerable people receiving care, whilst under your direct care.’

18. The reference to a dangerous attitude to safety echoes wording in the Seriousness Guidance where it indicates particular seriousness.

19. The panel then set out its consideration of each of the available sanctions in turn, rightly approaching them in increasing order of severity, explaining why each of the less severe sanctions would not be appropriate.

20. The panel concluded its decision to strike out in this way: ‘The panel found that the regulatory concerns raise fundamental questions about your professionalism, in particular the attitudinal concerns arising from your repeated serious misconduct. The panel concluded that your actions, in failing to treat vulnerable patients safely, professionally and with kindness were significant departures from the standards expected of a registered midwife and are fundamentally incompatible with remaining on the register. The panel determined that your actions were so serious that to allow you to remain on the register would undermine the public’s trust and confidence in the nursing profession, in the NMC as a regulatory body and in the standards expected of registered midwives. Balancing all of these factors and after taking into account all the evidence before it during this case, the panel determined that the only appropriate and proportionate sanction is a striking-off order. The panel understands that this order will have an adverse effect on you but considers that it is necessary for the protection of the public, to maintain public trust and confidence in the profession and to send to the public and the profession a clear message about the standards of behaviour required of a registered midwife’.

21. The panel thus found that each of the three key considerations in the Sanctions Guidance which point towards strike off were present: there were fundamental questions about the appellant’s professionalism, and public confidence and protection could not be maintained with any other sanction. Discussion: Grounds of Appeal which do not relate to Sanction

22. Grounds one to four relate to procedural decisions by the panel in the context of its findings about fitness to practise. They are not procedural decisions about the sanction. It became apparent at the hearing that counsel for the appellant was asking me to find that those procedural decisions demonstrate that the panel was biased towards the appellant; it was said that the panel had turned against the appellant from the start and had predetermined the outcome. The NMC’s position is that the matters complained of do not disclose any real or apparent bias. I remind myself of the test of whether a fair minded and informed observer with knowledge of the material facts (‘an observer’) would think there was a real possibility of bias. In the context of this case that means an observer thinking there was a real possibility that the panel had so taken against the appellant that it had predetermined that it would suspend or strike-off the appellant.

23. Those grounds are entirely unsupportable. The appellant complains about the procedural decisions which did not go her way, but the observer would also note decisions which were adverse to NMC including the panel’s refusal to accept a statement as hearsay, and a finding of no case to answer in relation to some of the charges. An observer would have seen a panel acting fairly and conscientiously, applying guidelines, taking and following legal advice, giving counsel on both sides every opportunity to make submissions, and making clear and reasoned procedural decisions.

24. Ground 1 relates to the panel’s circulation of a timetable on Day 1 of the hearing which included time for deliberation on sanction. It is said that indicated that the panel had made its mind up about the conclusion of the case before it had even begun. Producing a draft timetable was a standard and sound case management step, and it is obviously sensible for a timetable to include steps which may arise later in proceedings. An observer would not derive any hint of predetermination.

25. Ground 2 relates to the panel’s decision to permit a witness to give evidence with her camera turned off, as the witness felt that if the appellant could see her she would be unable to give best evidence. The appellant says that the panel did not sufficiently take into account her request to see the witness in order to try to recall the incident being complained of. There is no appeal against the finding that the matters complained of by that patient did, in fact, occur. The panel plainly weighed up various factors, and there is no conceivable basis for making a finding of real or apparent bias.

26. Ground 3 relates to the panel’s decision to admit a summary of patient records to show whether the appellant had been working with those patients. The appellant submits the decision was unfair. The panel directed itself properly when making the decision, which as it identified could have assisted the appellant if the records had demonstrated that she was not on shift at relevant points. Again, there is no basis for arguing that this decision demonstrates predetermination bias.

27. Ground 4 is that that the panel failed to address whether specific subclauses of charges amounted to misconduct if considered in isolation. It is fanciful to suggest that an observer would think that the level of detail in the panel’s reasoning disclosed a predetermination about sanction.

28. Ground 5 is a further ground which does not relate directly to sanction. It is submitted that that the panel’s approach to impairment was flawed. The decision about impairment is not under appeal. Issues about the panel’s treatment of mitigation evidence are dealt with below in in the context of sanction Discussion: Grounds of Appeal relating to Sanction

29. Grounds six to ten are more directly related to the sanction issue under appeal. There is considerable overlap in the grounds. I have considered all aspects of the grounds, which are in summary that: i) The panel paid insufficient regard to mitigating features, including the appellant’s work as a midwife after the period of allegations. ii) The panel did not follow NMC’s Sanctions Guidance on suspension orders as it dismissed suspension purely on the basis that it had concluded that the misconduct was not ‘a single instance of misconduct’ and did not give reasons for its conclusion that the charges stemmed from harmful attitudinal issues posing a risk of repetition. iii) The panel wrongly equated the appellant’s denial of the allegations with a lack of insight. iv) The panel did not consider the question of risk in its assessment of the proportionality of strike off. v) The panel failed to follow the NMC’s sanction guidance in that no or insufficient analysis was conducted as to whether public confidence and protection of the public could be achieved by any other sanction. The striking off order was not the appropriate and proportionate sanction, and a lesser sanction should have been imposed.

30. The panel’s decision should be read as a whole. The panel’s reasons relating to sanction makes explicit reference back to the section relating to impairment, where the panel analysed material relating to insight and risk of repetition.

31. The appellant submits that the panel did not properly take mitigating features into account. In support of that submission, my attention is drawn to the panel’s list of aggravating and mitigating features. The list of aggravating features is lengthy. The list of mitigating features includes a single entry relating to an action plan. Counsel for the appellant submitted that the panel must have ignored other mitigation material, and that if the panel had listed all the mitigation it would have been clear that striking off was wholly disproportionate in the circumstances. The NMC submits that it is clear reading the reasons as a whole that the panel had all relevant mitigating features in mind.

32. I accept the appellant’s submission that there were matters raised in mitigation which do not appear on the list of mitigating features. The panel had been provided with material which clearly fell within the categories of mitigating material described in the Sanctions Guidance including material relating to good practice from training records and testimonials . Those mitigating features should have been included in the list, and the panel should then have set out its conclusions about the weight given to the various aggravating and mitigating features.

33. However, I do not accept the appellant’s submission that it should be inferred that the panel ignored material which weighed in the appellant’s favour. The panel had referred to that material repeatedly in earlier sections of its decision and had included details such as positive quotes from patients and colleagues in character references. I cannot accept that the existence of mitigating material was then entirely excised from the panel’s mind when considering sanction. The inference I draw is that the panel had wrongly conflated the two required steps in relation to mitigation. Instead of listing the mitigating features and then assessing their weight, it seems to me that the panel determined that most of the mitigating features did not carry much weight and therefore did not list those features. In support of that inference I note that the panel had already identified and weighed up the mitigating evidence relating to good practice in the impairment section of the decision, and determined that a risk of repetition remained. It follows that although I consider the panel fell into error in omitting mitigating material from their list, I do not consider that to be a material error. It does not mean that the panel’s conclusion was wrong or unjust because of a serious procedural irregularity.

34. I reject the submission that the panel’s approach to suspension was not in line with the Sanctions Guidance. The panel did not, as asserted by the appellant, discount suspension purely on the basis that the misconduct was not a single instance. In fact the panel properly noted a factor in favour of suspension, the lack of repetition of behaviour in recent times, before noting factors against suspension including attitudinal issues posing a risk of repetition and lack of sufficient insight. That was a balanced and appropriate approach. There was a clear basis for the panel’s finding that the appellant had an ‘attitudinal’ issue. It is apparent from the decision as a whole that the panel concluded that the repeated pattern of behaviour against many women over a ten month period revealed a deep-seated and entrenched issue arising from the appellant herself, rather than, say, from external pressures. That was described as ‘a dangerous attitude’. That is an obvious conclusion to draw from the appellant’s pattern of behaviour.

35. The panel did not, as the appellant submits, equate denial of the allegations with a lack of insight. The transcript shows that the panel was correctly advised by the legal advisor that ‘you can’t simply say, well, she hasn’t admitted everything, so she can’t have any insight’, and there is no indication that the panel acted against that advice. The panel considered the appellant’s insight in the context of the material she provided, as well as her evidence, and concluded that her insight ‘is not sufficiently developed’

36. The appellant’s submission that the panel failed to consider the question of risk in its assessment of proportionality of strike off is unfounded. The panel concluded that there was a risk of repetition after weighing up various factors, including its findings that the appellant’s behaviour stemmed from attitudinal issues, that she had insufficient insight, and that she had been working unrestricted for the previous two years without incident. The panel had identified that the appellant’s behaviour involved a risk of harm and actual harm. The panel’s conclusion about risk of repetition and its central relevance to the choice of sanction is evident from the decision as a whole. There was no need for the panel to explicitly rehearse its findings about risk in the section dealing with strike off.

37. I reject the submission that the panel did not follow NMC Guidance: there are clear demonstrations throughout the sanctions section of the decision that the panel paid careful attention to the guidance, taking the required staged approach to consideration of sanctions, and referring to proportionality, the need to maintain confidence in the profession, and public protection repeatedly. The panel’s ultimate conclusion to strike off the appellant was justified with reference to considerations in the Guidance on Sanctions.

38. The panel’s conclusion that strike off was the only available sanction was a sound and well-supported decision. This was a serious case involving a midwife shaking a baby and repeatedly acting with hostility towards women who were at times alone, vulnerable, in pain, exhausted, and no doubt desperate for kind and safe care. The panel’s expertise carries particular weight in this arena, given that the case involved evaluation of patient safety, substandard care and clinical risk. The panel was well placed, having heard evidence, to assess ongoing risks. It cannot be said that there was an error of principle in carrying out the evaluation about sanction or that for any other reason the evaluation is wrong in that it fell outside the bounds of what a reasonable panel could properly and reasonably decide. Conclusion

39. The decision of the panel was not wrong, nor unjust because of a serious procedural irregularity. The appeal is dismissed. Costs

40. Counsel at the hearing agreed that costs would follow the event, and no submissions were made in relation to the quantum of costs. I consider costs as claimed to be appropriate. The appellant is ordered to pay the respondent’s costs on appeal, summarily assessed at £7,247.