White v Nursing and Midwifery Council  EWHC 520 (Admin)
The High Court has held that in general it would be unfair to admit "potentially significant" anonymous hearsay evidence in professional disciplinary proceedings, although there may be exceptions to this in some circumstances.
- Admitting anonymous hearsay evidence is in general unfair because it prevents defendants from challenging evidence by (i) advancing reasons why the witness might have an axe to grind against them or (ii) making enquiries or adducing conflicting evidence in rebuttal.
- The court might, as it did in this case, uphold a professional disciplinary panel's judgment even if the panel erred in admitting evidence if it is clear from the decision that the panel did not take into account inadmissible evidence in reaching its decision
Background to the decision
This case related to disciplinary proceedings brought by the Nursing and Midwifery Council ("NMC") against the applicants, who were sisters in Stafford General Hospital. The NMC alleged, among other things, that the sisters:
- inaccurately recorded patient discharge times from the accident and emergency ("A&E") department; and
- made disparaging (and, in the case of one sister, racist) remarks to and about other members of staff.
Various witnesses gave oral evidence on behalf of the NMC. NMC also adduced three anonymous letters of complaint given to hospital officials (the "Letters"). Counsel for the applicants argued before the committee that the NMC should not be permitted to adduce the Letters as evidence. The legal assessor advised the committee that it could admit oral, documentary or other evidence, whether or not it would be admissible in civil proceedings, provided that the evidence was relevant and fair. The committee found that "it will often…be unfair to admit anonymous hearsay evidence, especially when this forms the sole or central focus of a case", but in the circumstances the evidence "could fairly be admitted by giving it such weight as would be appropriate in all the circumstances".
The committee admitted the Letters. It found some of the charges proved and some not proved. It concluded the ability of both sisters to practise was impaired by reason of serious misconduct and ordered both to be struck off the Nursing and Midwifery register.
The applicants applied for judicial review. They sought an order quashing the committee's decision to strike them from the Nursing and Midwifery register on the basis that the Letters were anonymous hearsay and should not have been admitted.
The applicable rules of the NWC permit the practice committee to admit oral, documentary or other relevant evidence "upon receiving the advice of the legal assessor and subject only to the requirements of relevance and fairness", whether or not the evidence would be admissible in civil proceedings.
Mitting J noted the provisions of the European Convention on Human Rights ("ECHR") which deal with the right to a fair trial. Article 6(1) ECHR, which provides that everyone is entitled to a fair and public hearing by an independent and impartial tribunal established by law, applies to disciplinary proceedings which might lead to the removal of a person's right to conduct professional practice (as held in Le Compte, Van Leuven and De Meyere v Belgium  4 EHRR 1). However, Article 6(3) (which provides that defendants who have been charged with a criminal offence have the right to examine or have examined witnesses against them) does not apply in professional disciplinary proceedings, so there is no express right to examine witnesses in professional disciplinary proceedings.
The judge held that the approach of Strasbourg and UK courts to anonymous and hearsay evidence in criminal proceedings could inform the committee's decision on whether to admit anonymous or hearsay evidence. In principle, anonymous evidence and hearsay evidence can be admitted in disciplinary proceedings despite the prohibition in English law on the admission of anonymous hearsay evidence in criminal proceedings (subject to an exception for anonymous hearsay by way of business evidence).
It was noted that an anonymous witness can be cross-examined, but defendants cannot advance reasons why that informant might have an axe to grind against them. Hearsay evidence cannot be tested by cross-examination, but can be tested by other enquiries or potentially rebutted by conflicting evidence. Admitting anonymous hearsay evidence would remove "both means of subjecting the evidence to critical appraisal". The conclusion was therefore that in most circumstances admitting potentially significant anonymous hearsay evidence will infringe the requirements of fairness, and Mitting J found that the committee had erred in admitting the Letters.
Admitting anonymous hearsay evidence is not, however, prohibited in all circumstances. Mitting J noted in particular the exception for "business records" in criminal procedure. In a hospital context, this might include "a note of a patient's record about his or her condition". Although the author might not be identifiable, the evidence would be "what it purports to be: a contemporaneous note by someone doing their job of something which is apparent to them at the time." Admitting such evidence would not infringe the requirements of fairness.
The judge then considered whether he should quash the judgment. The judge found the committee's written judgment "both meticulous and detailed". He was satisfied that the committee did not take the Letters into account in assessing the evidence on which its findings were based. The decision to strike the applicants off the register was therefore "unassailable".
The Court concluded that it was "difficult to conceive of circumstances" where it would be fair to admit "potentially significant" anonymous hearsay evidence. Professional bodies hearing allegations of misconduct, and lawyers advising them, should be extremely cautious about permitting the admission of anonymous hearsay evidence as it may give rise to a significant risk of judicial review.
The judgment is a reminder of the importance for professional disciplinary panels of giving detailed, clear reasons. Mitting J said it was fortunate the committee set out its reasoning in "meticulous detail". This enabled him to determine the committee's findings were, for the most part, unassailable.
Defendants in professional disciplinary proceedings may heed the judge's statements that ECHR case law can inform the committee's approach to evidential issues. There may therefore be scope to argue that the principles underlying ECHR criminal procedure rights apply to protect defendants' rights, even if article 6(3) does not apply directly.