Delays in the NMC Hearing Process (Abuse of Process).
Delays in Nursing and Midwifery Council (NMC) fitness to practise disciplinary proceedings can test the patience of everyone involved, but when do they cross the line into unfairness? When should an NMC case be stopped?
In the High Court appeal case of Nurse Eunice Asiedu-Baning v Nursing and Midwifery Council [2026] EWHC 2731 (Admin), the issue of delay took centre stage. The proceedings against Mrs Asiedu-Baning, a registered midwife, stretched over seven years from the initial referral in 2018 to the final decision in 2025. She argued that this delay amounted to an abuse of process and breached her right to a fair hearing within a reasonable time, as protected by Article 6 of the European Convention on Human Rights.
How Courts Assess Delay
The legal test for delay comes from Okeke v Nursing and Midwifery Council [2013] EWHC 714 (Admin), (February 2013) drawing on the principles set out in Privy Council’s decision in Dyer v Watson [2004] 1 AC 379.
The court set out the test for bringing an NMC Fitness to Practise Hearing to an end, by way of procedural ‘Stay’ (a word meaning pause or stop):
- Is the delay so long as to cause real concern?
- What explains the delay? (Complexity, party conduct, external events like Covid-19)
- Has the delay caused real prejudice, making a fair hearing impossible?
The Defence has the obligation of proving the above elements on the balance of probabilities and that continuation of the case would be an abuse of the tribunal’s process.
The court held that only in exceptional cases—where serious prejudice is shown (properly evidenced)—will a court halt proceedings for delay. See also Attorney-General’s Reference (No.1 of 1990) [1992] QB 630.
What happened in the nurses’ case?
The judge acknowledged the delay was “excessive” and “gave rise to real concern.” However, the reasons were multifactorial: a review process, the Covid-19 pandemic, unforeseen recusal of a panel chair, and the way the defence was conducted. Importantly, the panel and the court found no evidence that the delay made a fair hearing impossible. The panel had access to contemporary records and witness statements, and the seriousness of the allegations meant the public interest in resolving them was strong.
The important elements of the judgment are:
- Delay alone is not enough: There must be real prejudice to the fairness of the hearing.
- Exceptional remedy: Stopping proceedings for delay is rare and reserved for cases where a fair trial is no longer possible.
- Public interest matters: Serious allegations, especially in healthcare, weigh heavily in favour of seeing a case through.
See the CPS’s Guidance on Delay and Abuse of Process generally: Abuse of Process (CPS)
Conclusion
This case is a reminder that while justice delayed can feel like justice denied, the law sets a high bar before proceedings will be stopped for delay (by way of an Abuse of Process argument). The NMC process must be fair, but it must also serve the public interest in accountability and professional standards.
Here at Nurses Defence Service, we provide advice to nurses and midwives about fitness to practise processes and appeals. If you are unhappy about a delay in your NMC case, do get in touch. Contact us without obligation on 0800 0122 506 or use our Contact Form
