High Court gives guidance on proceeding in the absence of the Registrant and admitting hearsay evidence

Judgement date: 14 May 2014

Background

The appellant Nurse (N) appealed against the finding of the Nursing and Midwifery Council’s (the NMC’s) Conduct and Competence Committee (the Panel) that his fitness to practise was impaired by reason of misconduct, in that he had behaved unprofessionally by using inappropriate and/or derogatory language in respect of patients, and the decision to impose a 12 month suspension on his registration.

N was a Senior Nurse (Modern Matron) at a residential home, Chebsey Close. N worked primarily with patients who suffered with learning disabilities and/or neurological impairment and under the auspices of North Staffordshire NHS Trust (the Trust). The Trust dismissed N in 2011 as a result of allegations of gross misconduct and it was out of these allegations that the regulatory proceedings arose.

As stated above the allegations considered by the Panel referred to N using inappropriate and/or derogatory language in respect of patients. The alleged incidents out of which the allegations arose were said to have taken place between 2002 and 2007, although they did not come to light until an investigation in 2011. At all times N denied using such language.

The case was listed for hearing in London on 4 November 2013 with an estimate of 5 days. On 8 October 2013, N contacted the NMC and explained that he could not afford to attend the hearing nor to be represented and provided a number of documents in support of his case, namely his own updated statement, statements from two witnesses and 11 testimonials to his professionalism, personality and good character.

Put simply, N denied using derogatory language about patients and stated that the allegations were based on rumours, distortions and lies. In respect of 2 of the 4 witnesses the NMC sought to rely upon (Ms 1 and Ms 2), N put forward specific reasons why they might have personal antipathy towards him and, in respect of the third witness (Ms 3), N suggested her recollection was tainted by malicious gossip and noted that the conversation in which he was alleged to have made derogatory comments about patients to her took place in 2002. The fourth witness (Ms 4) was a Human Resources advisor and had undertaken the Trust investigation in to N’s conduct  but had no first-hand knowledge of the matters alleged.

Hearing

The hearing took place from 4 to 6 November 2013 and the Panel were told that N had chosen not to attend. Having read N’s letter in which he outlined his financial difficulties in attending the hearing the Panel decided to proceed.

The NMC too had difficulties with attendance and Ms 1 and Ms 2 refused to attend. The Case Presenter made an application to have the statements of Ms 1 and Ms 2 read and submitted there would be no unfairness to N on the basis that the Panel would ‘only give the evidence the weight that it carriers after considering that the witness is not prepared to attend and has not been subject to any cross examination or any questioning by [the Panel]’.

Ultimately, having taken advice from the Legal Assessor and considered the two statements, the Panel decided to allow the evidence of Ms 1 and Ms 2 to be read.

Having decided to allow the statements of Ms 1 and Ms 2 to be read the Panel asked whether any witness statements had been provided by N. The NMC confirmed that some statements had been received but indicated that these variously did not address the charges, contained opinion and addressed inadmissible facts. From this point onwards there was debate as to whether the Panel should have sight of all the evidence N had submitted and whether this evidence should be redacted.

In light of this debate, the Panel did not receive all of the witness statements which N had submitted prior to making their findings of fact. Additionally, also prior to making findings of fact, the Panel was advised by the Legal Assessor that there was no need to question the credibility or reliability of the statements of Ms 1 or Ms 2.

In making their findings of fact, the Panel noted that N did not specifically address the allegations against him, despite the fact he had set out detailed reasons why the witnesses were making the allegations.

Having found N to have used inappropriate and/or derogatory language in respect of patients the Panel moved to consider misconduct and impairment and received copies of N’s testimonials, although these were redacted by the Case Presenter and Legal Assessor prior to being provided to the Panel.

Appeal

The Court considered the relevant law in relation to proceedings in absence and admitting the statements of absent witnesses.

With regard to proceeding in absence it was held that there could be no criticism of the Panel’s decision in light of his letter of 8 October 2013 and that the Panel had discharged their duty to take reasonable steps to test the evidence on N’s behalf as per McDaid v NMC [2013] EWHC paras 43-44.

With regard to admitting the statements of absent witnesses it was held that, having considered NMC v Ogbonna [2010] EWCA Civ 1216 and R (Bonhoffer) v GMC [2012] IRLR 37, the following principles emerge:

  1. The admission of the statement of an absent witness should not be regarded as a routine matter and the Fitness to Practise (FTP) rules require the Panel to consider the issue of fairness before admitting the evidence.
  2. The fact that the absence of the witness can be reflected in the weight to be attached to their evidence is a factor to weigh in the balance, but will not always be a sufficient answer to the objection to admissibility.  
  3.  The existence or otherwise of a good and cogent reason for the non-attendance of the witness is an important factor. However the absence of a good reason does not automatically result in the exclusion of the evidence.                                                                        
  4. Where such evidence is the sole or decisive evidence in relation to the charges, the decision whether or not to admit requires the Panel to make a careful assessment, weighing up the competing factors. The assessment should involve a consideration of the issues in the case, the other evidence to be called and the potential consequences of admitting the evidence and the Panel must be satisfied having undertaken this assessment that, either the evidence is demonstrably reliable or that there is some means of testing its reliability.

In the context of the present case it was essential that the Panel take the following into account when considering whether to admit the statements of Ms 1 and Ms 2:

  1. Whether the statements were the sole and decisive evidence in support of the charges;
  2. The nature and extent of the challenge to the contents of the statements;
  3. Whether there was any suggestion that the witnesses had reasons to fabricate their allegations;
  4. The seriousness of the charge, taking into account the impact which adverse findings might have on N’s career;
  5. Whether there was a good reason for the non-attendance of the witnesses;
  6.  Whether the Respondent had taken reasonable steps to secure the attendance of the witness;
  7. The fact that N did not have prior notice that the witness statements were to be read.

It was held that it was not possible for the Panel to perform the necessary balancing exercise in this instance as they had not been given all the necessary material.

It was further held that this was a case where, in line with Donkin v Law Society [2007] EWHC 414, the character evidence submitted by N potentially went to the credibility of the allegation itself and the testimonials submitted by N were therefore potentially relevant and admissible at the fact finding stage. The issue of relevance and admissibility of testimonial evidence was a matter for the Panel and the Court held that, in leaving the question of relevance and admissibility to the Case Presenter and, indeed in allowing various parts of N’s evidence to be redacted prior to their having sight of it, the Panel had fallen in to error.

Finally, the Court noted that there was nothing in the Panel’s judgement to suggest any thought was given as to the credibility or reliability of Ms 1 and Ms 2.

In light of the above the Court held that the Panel’s findings, based on the hearsay evidence of Ms 1 and Ms 2 could not stand and that, due the irregularities in the conduct of the hearings which had a material bearing on the findings of fact, the decision reached was unjust. The appeal was allowed the determination of the Panel quashed and, having considered whether the public interest required such, no re-hearing was directed.

A useful case consolidating and clarifying the position as to when it is appropriate to proceed in the absence of the Registrant and what considerations it will be necessary for a Panel to bear in mind when admitting the statements of absent witnesses. Additionally, this case serves as a reminder that in Fitness to Practise proceedings the Panel is the arbiter of both fact and law and as such it is not appropriate for questions as to the relevance and admissibility of evidence to be taken by Legal Assessors or Care Presenters on their behalf.