Our March bulletin reported the case of Ogbonna v Nursing and Midwifery Council, in which the High Court quashed the striking off and interim suspension orders imposed on a midwife, Ms O.

The three charges, containing a total of 15 allegations, originally brought against Ms O were that she had:

  •  improperly left a delivery suite;
  •  failed to give appropriate care; and
  •  failed to properly hand over the care of a patient.

The court at first instance had found that the admission of evidence (under Rule 31 of the Nursing and Midwifery Council (Fitness to Practise) Rules 2004) from an absent witness at the hearing had tainted the sanctions imposed. The evidence had been allowed in on the basis that the witness no longer lived in the UK and, in line with Rule 31, the evidence was relevant and it was fair to admit it. The court had held that it was unfair to admit the evidence as Ms O did not have the opportunity to cross examine the witness and there had been no attempt to secure the attendance of the witness either in person or by videolink.

In the Court of Appeal, the Nursing and Midwifery Council (NMC) argued that:

  • it should be granted permission to appeal the finding in relation to the first charge as the requirement of fairness could be satisfied by the Committee attaching appropriate weight to the evidence of the absent witness; and
  •  it was not correct that the Committee's findings in relation to the second and third charges were tainted by the admission of the evidence of the absent witness.

In relation to the first ground of appeal, Lord Justice Pill, Lord Justice Rimer and Lord Justice Black in the Court of Appeal held that permission to appeal should not be given: Davies J in the High Court had not established any general rule regarding the admissibility of evidence under Rule 31 and had been correct in finding that fairness demanded that, where evidence was strongly disputed, greater efforts on the part of the NMC to secure attendance of the witness were required.

In relation to the second ground of appeal, the Court of Appeal held that it was not possible to establish how the evidence of the absent witness might have affected the Committee's decision (if at all) in relation to the second and third charges and it was, therefore, wrong for the High Court to have allowed the appeal on the basis that there had been such an effect. It was, therefore, fair that the NMC's appeal (in so far as it related to those charges) be allowed and those charges were remitted to the Committee.