High Court considers reliance by a Regulator on hearsay evidence and failure to adjourn for positive testimonials.

Judgement Date: 17 April 2014

Background

The appellant Nurse (N) appealed against a decision of the Nursing and Midwifery Council’s (NMC) Conduct and Competence Committee (the Panel) to strike his name from the Register following a finding that his fitness to practise was impaired by reason of his dishonest misconduct.

The Panel considered 21 allegations at the substantive hearing. These allegations all related to incidents where it was alleged N had dishonestly provided inaccurate information in various professional contexts.

At the substantive hearing two evidential complications arose. Firstly, N, who was unrepresented throughout, resiled from the position contained within an agreed statement of facts which he had signed at an earlier case management hearing. N stated that he had not understood that he was agreeing to the facts contained within the statement when he signed it and explained his understanding had been that he was agreeing that the NMC were to prove the facts contained within the statement.

Secondly, N ran the defence that many of the inaccuracies which formed the basis of the allegations against him were in fact the fault of employment agencies he had previously found work through.  N had not previously indicated that this was the defence that he was to be running.  As this case had not been raised previously no employees of the relevant employment agencies had been warned to attend to give evidence by either side.

Despite these complications the substantive hearing took place as planned and of the 21 allegations before it the Panel found five proved by admission, eleven proved on the evidence and five not proved. In rejecting N’s arguments on the points found proved on evidence the Panel variously stated that N’s accounts were implausible, incredible, lacking credibility and dishonest.

Of note with regard to the instant appeal, one allegation found proved on the evidence was that whilst enrolled on a course at Brighton University N submitted a portfolio of his work at Broad Street Medical Practice containing a declaration said to be signed by Dr Szoke. The NMC alleged that N had forged Dr Szoke signature and this matter came to light due to the fact the declaration was signed off, on its face, on 20 March 2007 whilst Dr Szoke had left Broad Street Medical Practice on 12 February 2007. N’s case on this point was that Dr Szoke had signed off the portfolio in an incomplete state in advance of his departure.

The NMC relied on the following hearsay evidence in making its case on this point:

  1. An email from Dr Szoke stating he would not sign off a document in the manner described by N;
  2. Evidence from Mr Ricketts, Clinical Lead at Broad Street Medical Practice, of a conversation he had with Dr Szoke where Dr Szoke stated that the signature in question was not his.

Also of note, the Panel initially adjourned the hearing following the finding of facts to permit N’s current manager to attend to give evidence. When it became apparent that N’s line manager could not attend due to childcare commitments the Panel accepted a reference she had written in respect of N in lieu of oral evidence and proceeded to sanction.

Appeal

N appealed the decision of the Panel on the following grounds (as summarised by His Honour Judge Clive Heaton QC):

Unfairness in attaching weight to the hearsay evidence of Dr Szoke. In allowing his evidence the Panel acted in breach of natural justice and in breach of the Appellant’s Article 6 rights;

  1. That the findings by the Panel were incorrect and that the Panel made findings wholly unreasonably;
  2. That the findings of dishonesty in relation to all the allegations found proved was wrong;
  3. That the procedure adopted by the Committee was unfair to N as he was unrepresented;
  4. There had been unreasonable delay since 2008 in resolving the disciplinary proceedings;
  5. Striking off was a disproportionate response to the findings.

With regard to N’s first ground of appeal, N’s case on this point was that he was substantially prejudiced by the failure of the NMC to call Dr Szoke, something which deprived him of the opportunity to cross examine him.

As regards N’s second and third ground of appeal N’s complaint amounted to a disagreement with the decisions arrived at rather than targeted arguments and N’s fourth ground suggested that the Panel put the burden of proof upon N as opposed to the NMC where it should properly lie. N’s fifth ground of appeal speaks for itself.

Finally, N’s sixth ground of appeal amounted to an argument that the Panel should have adjourned their decision on sanction until such time as his manager should give evidence as to his good character.

Decision

In respect of the first ground of appeal the Court noted that the Panel was entitled to admit hearsay evidence as a matter of principle [51] subject to the requirements of relevance and fairness, Ogbonna -v- NMC [2013] EWHC 1595 (Admin).

The Court further noted that with specific regard to hearsay evidence, it should not be relied upon as a matter of course and that a registrant is entitled to test the evidence of his accusers by way of cross examination unless good and cogent reasons can be given for non-attendance, R (Bonhoeffer) -v- GMC [2011] EWHC 1585 (Admin).

Having directed itself as to the relevant authority with regard to the first ground of appeal the Court stated that the question to be asked with regard to the admission of hearsay evidence is "was the admission of such evidence fair?" [51] 

The Court stated that the starting point for determining this was another question; why was the witness not called?

In the instant case the NMC did not know the whereabouts of Dr Szoke when they began their investigation and only discovered at the hearing that he could be located. At this stage the Court stated that NMC had a choice as to whether to adjourn to get a statement from Dr Szoke or ‘bat on [52]’. The NMC decided to bat on and avoid further delay and the Court stated that they were ‘entitled to make that decision’ [52] and that the Panel was ‘entitled to permit’ [51] the NMC to do so.

The Court turned to the next question which was articulated; should any weight have been placed on the two pieces of hearsay evidence from Dr Szoke? The Court stated that it was necessary to look at the ‘totality of evidence [53]’ when considering what weight if any to attach to hearsay and noted that the Panel had recognised that the evidence of Dr Szoke was hearsay, but that having recognised this preferred that hearsay with all its limitations to the evidence of N.

In respect of the first ground the Court held that ‘the panel was perfectly entitled to take into account the hearsay evidence of Dr Szoke as part of the totality of the evidence on the issue and no discernible unfairness was occasioned by that ruling’ [56].

With regard to the second, third and fourth grounds the Court held that the reasons given by the Panel for its decisions were fully explained, that there was no shifting of the burden of proof nor any unfairness or breach of natural justice.

With regard to the fifth ground the Court noted that there had been delay but held that N had ‘failed to identify specific culpable delay on the part of the NMC’ [62] and further noted that ‘proceedings were inevitably extended because the Appellant did not admit the allegations ultimately found proved’ [62].

As to the final ground of appeal the Court held there was ‘nothing to suggest that the Panel’s decision to strike off the Appellant was a disproportionate response’ [63]. As regards the evidence of N’s current manager the Court noted that with regard to N the Panel had ‘little choice but to strike him off [64]’ in view of his ‘repeated and continuing dishonest’ and held that ‘any positive reference from the employer was of minimal significance and the Panel was entitled to proceed on the basis of the written document without calling her’ [64].

The appeal was dismissed.

This case reiterates the position as regards hearsay evidence in regulatory proceedings and reinforces the concept that panels have a wide discretion as to how they receive evidence, in this case positive testimonials, when faced with serious allegations were strike off is a virtual certainty.