The Court of Appeal, on an appeal from the Nursing and Midwifery Council (NMC), has upheld the High Court’s quashing of the Conduct and Competence Committee (CCC)’s decision to strike off a midwife, Mrs Ogbonna, in the case of NMC v Ogbonna.
The NMC’s appeal had two limbs; the first concerned the admissibility of the written evidence of a Ms Pilgrim, whose evidence was central to proof of one of the Heads of Charge (charge 1).
The High Court held that as:
- the NMC did not make any attempt to secure Ms Pilgrim’s attendance at the hearing;
- Mrs Ogbonna was not represented and there was a suggestion that she had understood that Ms Pilgrim had refused to attend; and
- there was a fundamental dispute on the facts
the CCC should not have allowed the evidence to be admitted. The Court of Appeal disposed of this part of the appeal and quashed the CCC’s findings on charge 1.
The second limb of the appeal was sought due to the High Court’s failure to consider that the Heads of Charge which Ms Pilgrim’s evidence had little effect on (charge 2 and charge 3) could alone support the CCC’s findings of misconduct and impairment and their decision to strike off Ms Ogbonna. The Court of Appeal found that the CCC’s decision in relation to charges 2 and 3 may be unsafe as the admission of Ms Pilgrim’s evidence may have affected the CCC’s finding of misconduct/impairment as Ms Pilgrim’s evidence was relevant to one limb of charge 3 and, most importantly, acceptance of Ms Pilgrim’s evidence, in light of the factual dispute, may have damaged Ms Ogbonna’s credibility overall. The Court of Appeal therefore ordered that charges 2 and 3 alone be remitted for a hearing before a differently constituted panel.
The NMC's submission that it would achieve fairness to admit hearsay evidence if the CCC then made a careful assessment of the weight to be attached to that evidence was rejected. Instead, the CCC should have first decided whether or not it was relevant and fair to admit the evidence before going on to decide the weight to be attached to the evidence if so admitted.