When does delay in fitness to practise proceedings become unfair? High Court considers seven-year NMC case

Overview

• Seven-year delay: The High Court considered an NMC fitness to practise case that took more than seven years to reach a final decision.

• Abuse of process: The registrant argued that excessive delays had made the proceedings unfair and that the case should have been stopped.

• High Court ruling: The Court accepted that the proceedings had taken considerably longer than reasonable but found that a fair hearing remained possible.

• Legal threshold: Delay alone does not constitute an abuse of process. The key question is whether it has caused serious prejudice or compromised the fairness of proceedings.

• Wider implications: The judgment raises important questions for all healthcare regulators about timely investigations, procedural fairness and the rights of professionals facing prolonged fitness to practise proceedings.

The High Court has considered whether excessive delays in professional regulatory proceedings can amount to an abuse of process, following an NMC fitness to practise case which took more than seven years to conclude. The judgment raises important questions for professionals across the regulated health and care sector about the relationship between timely investigations, procedural fairness and the right to a fair hearing.

Long-running fitness to practise investigations are a familiar problem across healthcare regulation. For registrants, the consequences of an unresolved investigation can be substantial, with professional reputations, employment, career opportunities and personal lives potentially affected for years before allegations are finally determined.

The issue is not simply whether regulators should deal with cases more quickly. It is whether, at some point, the length of proceedings and the prejudice caused to the individual become so significant that continuing the process is itself unfair.

A recent High Court judgement, Asiedu-Baning v The Nursing and Midwifery Council [2026] EWHC 2731 (Admin), provides a useful examination of that question.

A seven-year regulatory process

The case arose from allegations concerning clinical record-keeping during a hospital shift in November 2017. The NMC was notified in February 2018, but the Fitness to Practise Committee did not reach its final decision until October 2025.

The proceedings were affected by a number of factors, including the COVID-19 pandemic, adjournments, the need for a fresh hearing following the recusal of an earlier panel chair, and difficulties managing the subsequent proceedings.

The Committee ultimately found allegations of inaccurate clinical records and dishonesty proved, determined that fitness to practise was impaired and imposed a striking-off order.

On appeal, the registrant argued, among other things, that the excessive delay amounted to an abuse of process and that the proceedings should have been stopped.

The High Court acknowledged the exceptional length of the proceedings. Mr Justice Kolinsky observed that the underlying case was not particularly complex, involving incidents on a single night shift, and that the hearing had taken considerably longer than was reasonable. He also identified shortcomings in the management of the proceedings.

Nevertheless, the Court dismissed the appeal, finding that the delay had not rendered the proceedings unfair.

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When does delay become a legal issue?

The legal framework considered by the High Court derives from the right to a hearing within a reasonable time under Article 6 of the European Convention on Human Rights.

In considering the impact of delay, the Court applied the approach in Okeke v Nursing and Midwifery Council [2013] EWHC 714 (Admin), which requires consideration of the length of the delay, the complexity of the case, the reasons for the delay, the conduct of the parties and the consequences for the fairness of the proceedings.

Importantly, the Court recognised that a stay of proceedings for delay should only be imposed in exceptional circumstances. The registrant must establish, on the balance of probabilities, that the delay has caused such serious prejudice that a fair hearing can no longer take place.

The assessment is not simply about the number of years involved. It is about what has happened during those years and the effect on the ability to determine the allegations fairly.

For example, lengthy delays may create difficulties where:

• Witnesses have become unavailable or their recollections have materially deteriorated.

• Relevant records, documents or other evidence have been lost or destroyed.

• The registrant’s ability to obtain evidence or properly challenge allegations has been compromised.

• The passage of time has materially prejudiced the ability to present an effective defence.

• The proceedings have become oppressive or their continuation would otherwise offend the interests of justice.

The High Court’s judgment is particularly interesting because it acknowledged that the case was not especially complex and that some of the delay was attributable to shortcomings in case management. Nevertheless, it concluded that the available evidence remained sufficient to permit a fair determination.

The Court also distinguished the circumstances from Okeke, where a delay of approximately four and a half years had resulted in a breach of Article 6 rights. The different circumstances and consequences of the delay were material to the outcome.

A wider regulatory problem

The issue is not confined to the NMC. Delays in fitness to practise investigations and proceedings have been repeatedly identified by the Professional Standards Authority (PSA) as a concern across the healthcare regulatory landscape.

In its 2024/25 Annual Report, the PSA reported that seven of the 10 statutory healthcare regulators it oversees had failed to meet Standard 15 of its Standards of Good Regulation, which concerns the timely progression of fitness to practise cases. The PSA specifically identified the time taken to complete cases as the primary reason for the failure.

What does this mean for registrants and regulators?

The judgment does not establish that a seven-year investigation is acceptable, nor does it create a period beyond which regulatory proceedings automatically become unfair.

Instead, it reinforces the need for a fact-specific assessment of the consequences of delay.

For registrants, the important distinction is between demonstrating that proceedings have taken an unreasonable length of time and establishing that the delay has caused identifiable prejudice. An application to stay proceedings will need to address the actual impact on the fairness of the case, rather than relying solely on the chronology.

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Disclaimer: This article is for guidance purposes only. Kings View Chambers accepts no responsibility or liability whatsoever for any action taken, or not taken, in relation to this article. You should seek the appropriate legal advice having regard to your own particular circumstances.  Some content may have been generated by AI tools.