High Court gives guidance on bad character and hearsay in regulatory proceedings

Judgement date: 19 December 2013

Background

The appellant nurse (H) was the manager of a Primary Care Mental Health Team and employed by the South Manchester Primary Care Trust. The allegations against H were as follows:

  1. In around September 2005 [she] began a sexual relationship with Service User A while Service User A was under [her] care (Charge 1)
  2. Had an inappropriate relationship with Service User A in that having referred him to another practitioner in approximately September 2005 [she]:

a. Engaged in a sexual relationship with him in or about October 2006 onwards
b. Married Service User A in 2008 (Charge 2)

As will often be the cases in charges of a sexual nature the only direct witnesses to Charge 1 were those directly involved, H and Service User A. It suffices to say that Service User A and H gave widely varying factual accounts of how their relationship started. Service User A suggested that following his second meeting with H, a consultation on 13 October 2005, H initiated a sexual relationship with him. Service User A went on to state that he had a further consultation with H on 14 October 2013 and that this was cut short by H and ended in him being discharged due to the difficulties caused by their now sexualised relationship.

H in contrast stated that she continued to deal with Service User A in a professional capacity until 18 November 2005 when he was discharged. She stated they had met by chance in January 2006 and that it was at this point a relationship developed becoming sexual in October 2006.

In May 2008, H and Service User A married but the relationship broke down leading to divorce in June 2011.

H admitted Charge 2 but disputed Charge 1. The Committee found that H and Service User A had started a sexual relationship and that this sexual relationship began whilst Service User A was a patient of H in or around September 2005 and in so deciding preferred the evidence of Service User A to that of H. In respect of Charge 1, H appealed against the finding of fact of the respondent’s Conduct and Competence Committee (the Committee).

Appeal

H appealed the Committee’s decision to prefer the evidence of Service User A on the grounds that the decision was flawed as the Committee had:

  1. failed to give any weight to the bad character of Service Use A;
  2. failed to give appropriate weight to the evidence of the appellant’s witnesses;
  3. wrongly concluded Service User A’s account was consistent with contemporaneous notes;
  4. wrongly concluded the only plausible explanation for the appellant not referring Service User A to another colleague was in order to further their sexual relationship;
  5. wrongly found that the appellant was so overcome with lust she could have engaged in a sexual relationship after her second meeting with Service User A.

Judgement

Bad Character

The apparent bad character in this case fell in to two sub categories; previous convictions and dishonesty in respect of various collateral issues. In respect of previous convictions it is right to say that Service User A had a conviction for theft from 1989 and for a violent crime in 1990. It was noted by the Court that an application had been made on behalf of H to adduce evidence of Service User A’s criminal convictions.

The Court expressed some confusion as to why such an application had been made at all and noted that Rule 31 Nursing and Midwifery Council (Fitness to Practise) (Amended Rules) 2011 suggests that a Committee will, ‘[18] take a rather more liberal view of the methods by which a fact or allegation can be provided than would a court of law’. Nonetheless, the Court was clear that, having concluded on the application that Service User A’s criminal convictions were irrelevant and inadmissible, that the Committee could not then be criticised for failing to take them into account.

In the alternative, it was argued on behalf of H that the evidence of various witnesses that H had been dishonest in respect of matters wholly collateral to the case, i.e. benefit/compensation fraud should have been given weight by the Committee. The Court was clear on this point; these allegations of collateral dishonesty were not relevant or admissible and could ‘[25] only be adduced for the purpose of challenging Service User A’s credibility or challenging his denial of such allegations when put to him in cross-examination’.

The Court was clear that the Committee could not be criticised for leaving out collateral material and rehearsed the policy reason for this; namely that requiring a fact-finding Tribunal to make preliminary rulings of admissibility and acceptance of collateral evidence prior to a determination as to the extent these preliminary finding impact of the credibility of a witness in the main proceedings is overly burdensome, [26].

Hearsay

Having dealt with the points of bad character/dishonesty the Court turned to look at certain elements of indirect evidence, relating to the sexual relationship between H and Service User A. In summary a number of witnesses had made reference to discussions they had in October 2006 with H that indicated her sexual relationship with Service User A had begun at that time as opposed to earlier as alleged. Seemingly this evidence was dismissed by the Committee, whose only reference to it was to call it ‘predominately hearsay’.

The Court usefully restated the nature of hearsay evidence and reminded itself that it was admissible in civil courts. Whilst the Court was clear that there was a need to be cautious in respect of hearsay evidence due to the risks of misrecollection or truthful reporting of self-serving statements it was held that the Committee was ‘[29] wrong to simply reject the evidence as hearsay’. Rather the Court held that the Committee was, ‘[29] bound to give careful consideration to each element of evidence and then to arrive at a conclusion taking into account all the evidence in the round'.

Additionally, one witness recollected that whilst out shopping with H she had met Service User A in January 2006. This meeting was supportive of H’s account of how the relationship between her and Service User A evolved and Service User A strongly denied it had taken place. The Committee failed to deal with these conflicting accounts in their decision, despite the fact the witnesses account was clearly not hearsay and the Court opined that the Committee ideally should have as inevitably it would have impacted on credibility of one or other party.

Consistency with contemporaneous notes

The Court noted that it was accepted by the Committee that H’s patient notes were an accurate record. In light of this it was stated that the notes provided a cogent means by which credibility could be assessed. The Court noted various inconsistencies between Service User A’s oral evidence and indications given by the notes and further held that it was necessary for the Committee to have explained how and why it had reached any conclusion where it preferred the evidence of Service User A to the account given in the contemporaneous notes which it had previously accepted as accurate.

Conclusion

In light of what was held in respect of ground 1-3 as detailed above the Court declined to consider the remaining grounds and the matter was remitted for the issues to be determined by a new Panel having regard to the guidance in His Honour Judge Pelling’s judgement.

A useful case indicating that unless wholly irrelevant or statue barred, bad character evidence is likely to be admissible in regulatory proceedings. Further, it reminds panels that they should deal with any direct conflicts in the evidence/contemporaneous documentation.