A decision made by the UK Nursing and Midwifery Council (“NMC”) to strike off a registrant following a finding of professional misconduct was recently appealed to the England and Wales High Court. In reaching its decision, the court provided useful guidance in determining witnesses’ credibility and reliability.

Ms Vasanta Marni Suddock was Home Manager and Matron at the Warberry Nursing Home (the “Nursing Home”) between February 1994 and October 2011.

Ms Suddock faced 17 charges of professional misconduct. The charges included failure to ensure appropriate clinical care was provided to residents, bullying and other inappropriate behaviour and failure to ensure medication was stored safely. Ms Suddock denied that her fitness to practise was impaired and claimed that there was a conspiracy against her and that the alleged offences did not take place. The NMC found that a number of the allegations of professional misconduct had been proved and made a striking off order.

Ms Suddock appealed the decision of the NMC on the basis, inter alia, that the decisions “were against the weight of the evidence, ignored contemporaneous documentary evidence, or were based on evidence that was demonstrably unreliable and/or untruthful”. Mrs Justice Andrews, in the appeal, found that this criticism of Ms Suddock was well founded in relation to certain charges.

Mrs Justice Andrews stated that the NMC “failed to appreciate that there is evidence that strongly supports Ms Suddock’s assertion that someone, acting in bad faith, has set out to ruin her hitherto unquestioned professional reputation and her career. I have regrettably concluded that the panel’s approach to the question of credibility and reliability is so undermined in consequence that I cannot, in fairness, allow its adverse findings to stand”.

The Judge went on to say that the NMC placed “far too much reliance on the demeanour of the witnesses” and that this case demonstrates the potential for grave injustice that can arise in proceedings of this nature when a person in Ms Suddock’s position is unrepresented.

The Judge stated that witnesses’ demeanour is not an irrelevant factor for a court to take account of but offered guidance in relation to more reliable indications of determining the truth:

  1. The way in which the witness evidence fits with any non-contentious evidence or agreed facts, and with contemporaneous documents;
  2. The inherent probabilities and improbabilities of his or her account of events; and
  3. Consistencies and inconsistencies, both internally, and with the evidence of others.

Mrs Justice Andrews stated that “the decision-maker should therefore test the evidence against those yardsticks so far as is possible, before adding demeanour into the equation”.

While only of persuasive authority here, the decision is a good reminder of the role of Fitness to Practise Committees in taking witnesses’ demeanor into account.

Please click here for a link to the judgment.