Legal Updates

Eunice Ogbonna (O) a registered Midwife with the Nursing and Midwifery Council (NMC) was subject to three charges, namely:

• Charge 1 – O’s alleged unjustifiable leaving of the Delivery Suite;
• Charge 2 – alleged criticisms regarding delivery of the baby of Patient A; and
• Charge 3 – alleged criticism regarding a failure to hand over the care of Patient A to another Midwife.

The NMC’s Conduct and Competence Committee (CCC) found all three charges proved, that they constituted misconduct and that O’s current Fitness to Practise was impaired. They struck O off the Register. During the hearing the NMC relied upon the statement of O’s Line Manager, P, who was the sole eye witness to charge 1. She was not called to give evidence and the NMC applied for the statement to be adduced as hearsay. There had been a history of bad blood between O and P.

At first instance, and on appeal to the Divisional Court, O, a litigant in person, submitted that she wanted to cross-examine P. The NMC produced evidence that it had contacted P who resided in the Caribbean. However, no enquiry was made as to P’s availability to attend the hearing in person nor was consideration given to the use of a video link, to enable P to give evidence. The NMC averred that no video link was available before the CCC. On appeal to the High Court, the decision of the CCC was quashed and no further order made. Davis J found that the Panel had misdirected themselves, in that they stated that they found P was not available to attend, when in fact no enquiry had been made as to her availability. Rule 31(1) of the NMC Rules1, required the CCC to consider fairness when admitting a hearsay statement. Given the CCC’s misdirection, proper consideration had not been given to the fairness test as outlined in the rules. The NMC appealed to the Court of Appeal.

The Court of Appeal ruling

The concerns of the NMC, that the High Court judgment appeared to narrow the admission of hearsay statements, were significantly allayed by the Court. Indeed, at paragraph 25 of its judgment, the Court of Appeal, per Rimer LJ, ruled that the judgment of Davis J did not purport to lay down any more general principal other than the need for proper consideration to be given to the criterion of fairness, when the question of the admission of a hearsay statement under r.31 arose. It was left clear that the judgment of Davies J was fact sensitive and not general in application. Importantly, Rimer LJ stated obiter that if “…despite reasonable efforts the NMC could not have arranged for [P] to be available for cross-examination then the case for admitting her hearsay statement might well have been strong”.

Whilst the Court dismissed the NMC’s appeal in relation to charge 1 and the admission of the hearsay statement, it did accede to the NMC’s submission that charges 2 and 3 should be remitted for re-hearing, as these matters were capable of constituting misconduct which was serious enough to impair O’s fitness to practise.

Analysis

Hearsay evidence is generally admissible within civil proceedings in line with the Civil Evidence Act 1995. However, where Regulators have their own rules providing for decisions as to admissibility, then the rule itself needs to be considered. Where fairness is a criterion, sufficient enquiry and/or a sufficient reason need to be given as to why a relevant witness cannot attend, particularly where the evidence is deemed to be sole or critical in relation to an important finding of fact. Considerations that are likely to persuade the first instance Tribunal to admit a hearsay statement, are likely to arise in cases where a witness is genuinely unavailable, is intimidated or unwell, and where there is evidence to support the assertion made. Weight should additionally be given to the nature of the content of the statement. Where a witness is a sole and decisive witness of fact in relation to a particular charge, then it is with more careful scrutiny that the Courts will review a decision of an FTP Committee to allow a Regulator to adduce a statement by way of hearsay.

Wherever possible, Regulators should try to embrace new technologies available to reduce the cost of witnesses attending to give evidence. If the facility to use video link is not available, then more innovative approaches should be considered to achieve the same result (i.e. web based video telephone calls) which will reduce the need for litigation on appeal.

Vicky Lord

Footnotes

1 Nursing and Midwifery Council (Fitness to Practise) Rules 2004: SI 2004/1761.