High Court gives guidance on the approach to be taken to hearsay evidence and particularising the charge in ‘pattern’ cases.

Judgement date: 2 July 2013

Background

The appellant Nurse (N) trained as a nurse in Nigeria between 1985 and 1988. She came to the UK in 1999 and undertook a Nursing Adaptation Course. She worked in Royal Liverpool Hospital from the completion of this course until 2006 when she moved to Broadgreen Hospital. During her time at Broadgreen Hospital a number of staff expressed concerns about her competence. These concerns necessitated a referral to the Nursing and Midwifery Council (NMC) and in total the appellant faced 20 charges before a Panel of the Conduct and Competency Committee of the NMC (the Panel). The Panel found 11 charges to be proven. In general terms the allegations related to deficiencies in the appellant’s competence in the fields of communication, wound management, emergency response protocol and leading and directing a team. The allegations were particularised under three broad categories and further particularised with examples, both specific and general within these categories. In short, the case was one where it was said that a ‘pattern’ of lack of competence could be seen over a number of years.

Having found 11 charges to be proven the Panel found that the appellant’s fitness to practice was impaired by reason of her lack of competence and imposed conditions on her practice, namely, that she must have her practice supervised by a senior nurse on duty concurrently with her.

Appeal

The appellant appealed the finding fact on the basis that :

  1. It was impossible to meet 5 of the charges in that they were imprecise, vague and unclear and as such the NMC had failed to sufficiently particularise charge;
  2. Late service to two witness statements was a serious procedural irregularity and that this undermined the fairness of proceedings.
  3. A witness (Patient A) was not present at the hearing and the Panel accepted his statement without Counsel for the appellant having the opportunity to test his evidence in cross examination.
  4. Statements from a number of other witnesses were accepted by the Panel without Counsel for the appellant having the opportunity to test their evidence in cross examination.

Additionally the appellant appealed the sanction on the basis that:

  1. The imposition of a condition of supervised practice meant the appellant would never be able to demonstrate she could practice unsupervised
  2. The sanction was disproportionate.

Decision

Jeremy Richardson QC found in favour of the NMC on all grounds and dismissed the appeal.

In respect of the first ground it was held ‘[15]… in a case where it is asserted there is a long standing pattern of lack of confidence and not simply a few episodes there will inevitably be a volume of evidence revealing the pattern…’.

He went on to state that where such a volume of incidents reveal a pattern that there ‘[15]…cannot be a shred of misunderstanding as to the thrust and detail of the alleged incompetence’. He took no issue with the generalised nature of some particulars complained of, seeing them as inevitable in a case where it is argued that a pattern of behaviour demonstrates lack of competence.

In respect of the second ground the Court stated that given that the two witness statements were ‘less than voluminous’ and that a short adjournment was allowed for Counsel and the appellant to digest them, that there was no procedural irregularity in allowing them to be admitted in to evidence. He stated it was for the Panel to consider the correct course of action taking the public interest into the balance and it was clear that the Panel had done so in the immediate case. It is worth noting that he went on to say that if the evidence had been voluminous or plainly ambush evidence different considerations would apply.

In respect of the third ground the Court was clear that the fact Patient A was not present was unsatisfactory. However it went on so state that where a situation such as this arose it was for the Panel to proceed with caution and to consider the evidence to see if there was any inherent or other weakness and to look to any supporting evidence with which to buttress it. Where a Panel took this course the Court was clear that the inability to test the witness in cross examination was ‘[31]… not fatal…’ to the fairness of proceedings.

In respect of the fourth ground it was said that in ‘pattern’ cases, where the registrant has ample opportunity to present their case it would be ‘disproportionate to call every witness in respect of every item of complaint’. He took no issue with the NMC relying on hearsay evidence given the volume of people necessarily involved in a ‘pattern’ case.

In respect of sanction the appeal was similarly dismissed. The Court stated with respect to both points that he was clear the Panel had calibrated sanction with ‘some care’.

Note

Jeremy Richardson QC was keen to emphasise that in his view the problems which gave rise to the appeal could and should have been dealt with at a pre-hearing review. Practitioners should be alive to the need for effective case management in ‘pattern’ cases, and more generally, going forward.

This case is helpful to practitioners for its guidance in ‘pattern’ cases. The judgement clearly accepts the reality that in ‘pattern’ cases some particulars will be necessarily vague and that practitioners, in the interests of efficiency and cost, may need to rely on hearsay evidence in these cases to fully demonstrate the pattern of lack of competence they say exists.