White v Nursing and Midwifery Council [2014] EWHC 520 (Admin)

In this case the Administrative Court found that, in the context of disciplinary proceedings, it was difficult to conceive of circumstances in which the admission of potentially significant evidence about the character and conduct of a registrant, which was both anonymous and hearsay, would not infringe the requirement of fairness.

However, there was no reason why, in principle, such material should not be admitted into evidence. The key was whether it would be fair to do so.

Factual background

The appellants, T and W, were sisters in the A&E department of Stafford General Hospital. Following the events which led to the Francis Inquiry, the Nursing and Midwifery Council (NMC) brought disciplinary proceedings against them. Although both faced numerous allegations, the crux of the case was the fabrication of discharge times on patient records in order to avoid breaches of discharge targets for patients who had been admitted to A&E. A Conduct and Competence Committee (the committee) of the NMC found that the fitness to practise of both T and W was impaired by virtue of serious misconduct and both were struck off.

The NMC relied on evidence from six witnesses as well as three anonymous letters of complaint. At the start of the hearing it was submitted on behalf of T and W that the NMC should not be permitted to adduce the three anonymous documents but, after receiving advice from its legal assessor, the committee decided to admit the evidence. T and W appealed against the committee's findings on the basis that that evidence should not have been admitted.

The Administrative Court's decision

The court noted that, while it is settled law that Article 6(1) of the European Convention on Human Rights (ECHR) applies to disciplinary proceedings, Article 6(3) does not apply and, accordingly, there is no express right for a person to "examine or to have examined witnesses against him".

The court also considered Rule 31(1) of the Nursing and Midwifery Council Fitness to Practise Rules 2004, which provides:

Upon receiving the advice of the legal assessor and subject only to the requirements of relevance and fairness the practice committee, upon considering an allegation, may admit oral, documentary or other relevant evidence whether or not such evidence would be admissible in civil proceedings.

The court noted that, while the wording was apparently permissive, the ability of the committee to admit relevant evidence was constrained by the requirements of fairness and the issue was invariably fact-specific. The court also noted that, in criminal proceedings in England & Wales, anonymous hearsay evidence was prohibited in principle, although this prohibition was not absolute because Section 117 of the Criminal Justice Act 2003 authorised the admission of anonymous hearsay evidence by way of business documents.

The court went on to say: "In the context of disciplinary proceedings, it is difficult to conceive of circumstances in which the admission of potentially significant evidence about the attitude and conduct of a registrant which is both anonymous and hearsay will not infringe the requirement of fairness… It cannot normally be fair for significant evidence about the attitude and conduct of a registrant to be admitted against her which she has no opportunity to test or meet by anything beyond a bare denial…

"In cases such as this, in which, from the evidence given by live witnesses it was clear that there were two views of the registrant's attitude and conduct amongst the staff of the departments in which they worked, removal of both means of subjecting the evidence to critical appraisal meant that the requirements of fairness could not be satisfied. The evidence of anonymous members of staff who could not have been cross-examined should not have been relied on probatively."

Accordingly, the anonymous hearsay evidence should not have been admitted. The court was, however, careful to emphasise that nothing in the principles which must be applied to such cases prohibits the introduction and reliance on anonymous hearsay evidence in all circumstances. It cited, in particular, contemporaneous hospital records from which it would not always be possible to identify their author but which were plainly admissible under Rule 31(1) because they did not infringe the requirement of fairness.

The court found that charges against T which had depended on the anonymous evidence should be quashed. However, as the committee made clear in its judgment that it had not relied on the inadmissible material in relation to the main charges against T and W, those charges would not be quashed and, accordingly, the striking off could not be challenged.