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Judgment date: 21 March 2013
The High Court provides guidance on the duties of Fitness to Practise Panels when hearing a case in the absence of a registrant.
The Appellant Nurse (BM) appealed against the decision of a Panel of the Conduct and Competence Committee (CCC) of the Nursing and Midwifery Council (NMC).
BM was employed as a registered midwife by the Newham University Hospital NHS Trust (the Trust). The allegations against her spanned a period between December 2008 and July 2011. The initial referral to the NMC was by the Trust in August 2009.
The allegations of misconduct that BM faced included breach of confidentiality, dishonesty, unprofessional and aggressive behaviour and the sending of aggressive and inappropriate correspondence to various individuals.
BM denied all allegations, claiming that the false complaints had only been raised against her as a result of her being targeted as a ‘whistleblower’. BM had gone to the press in February 2003 about a controversial issue. It was her case that individuals wanted to remove the threat of her embarrassing them in the future by removing her from her position.
The final substantive hearing, was scheduled for 28-29 February and 1 -14 March 2012. A preliminary hearing took place on 21 February 2012, which BM attended. At the preliminary hearing, BM raised certain issues including that one of the members of the Conduct and Competence Committee Panel (the Panel), Mr Heath, should not sit on the hearing panel. BM confirmed that she was aware of the substantive hearing date and indicated that was due to attend on 28 February 2012.
28 February 2012 arrived, and BM did not attend. Nor did she attend on subsequent dates. After a short adjournment during which enquiries were made, the Panel decided to proceed in the absence of BM, and heard from a large number of witnesses who gave evidence over the course of the next 10 days.
The Panel found all but one of the particulars proved and that BM’s fitness to practice was impaired by reason of misconduct. Further, they found that her misconduct was fundamentally incompatible with continued registration and ordered that her name be struck from the register. An interim order was also imposed.
Although BM’s notice of appeal contained 23 grounds for appeal, the key points were that;
i. Mr Heath, a member of the Panel, should have recused himself, given that he was an ‘acquaintance’ of some of the witnesses;
ii. The Panel should not have proceeded in BM’s absence. It was submitted that greater attempts should have been made to try and locate BM, for example, someone should have been sent to her address. The Panel had taken the fact that BM was tweeting that morning as conclusive of physical wellbeing, which was wrong, as it failed to account for any psychological distress preventing her from attending. It was suggested that this case was ‘unlike the average case’ in that BM’s defence was that the entire case was a conspiracy, and that the Panel should have factored this in to their determination. Given that the matters related to July 2009, it was argued that delay had already done its damage and an adjournment would have made little difference;
Further, it was argued that the Panel had assumed that BM had made no application to adjourn, which was wrong. BM stated through her Counsel that she had made such a request which she had emailed and hand delivered to the NMC on 24 February 2012, a copy of which she sought to adduce as new evidence (see below). The NMC did not accept the authenticity or provenance of this document;
iii. The Panel failed to conduct the hearing fairly. The main thrust of this argument was that having decided to proceed in the absence of the BM, the Panel failed in its duty to put BM’s case to the various witnesses who gave evidence in the course of a 10 day hearing. Counsel relied on the words of Rose LJ in R v Hayward  EWCA Crim 168 that there was ‘a duty to expose weaknesses in the prosecution case and to make such points on behalf of the Defendant as the evidence permits’;
iv. The allegations were an attempt by managers to remove BM after her Daily Mail story, and without hearing that explanation their findings were unsafe.
i. The Court was not persuaded by the argument that Mr Heath should have recused himself due to his knowledge of certain witnesses; the Panel directly and openly considered the issue during the course of the hearing and it was concluded that there was no bias, actual or apparent.
ii. It was held that ‘it is abundantly clear that the Panel proceeded with the utmost care and caution as it was required to do before deciding whether or not to proceed in the absence of the Appellant’. The Panel had delayed the start of the hearing to make enquiries, it had had the benefit of comprehensive legal advice on its powers and the factors to be balanced and they deliberated for over 2 ½ hours before making a decision. It seemed to the Court to be ‘abundantly clear that this is a case where the Appellant decided simply not to attend the hearing’.
iii. The Court considered what, if any, duty exists on a Panel where the registrant does not appear. It was held that;
‘In my judgement, the test as formulated by Rose LJ does indeed apply in the circumstances of the present case.….If the Panel does decide to proceed in the absence of the defendant, it seems to me vital that it performs its task properly and not merely as part of a rubber-stamping exercise.
However, it is important to note that that test as formulated by Rose LJ does not suggest that there is any duty on the Panel to cross-examine witnesses in the way that such an exercise might be performed by a litigant in person or by a legal representative.
It was noted that the test as formulated only requires the panel to take ‘reasonable steps’ to expose weaknesses in the case; what is reasonable will depend, it was said, on the particular circumstances of the case. It was held that for the Panel to engage in a detailed cross-examination of the witnesses ‘goes far beyond any duty which might be said to exist in these circumstances’. In this particular case the Panel certainly did put a number of important questions to witnesses. This aspect of the appeal was accordingly rejected.
iv. Given that this ground of appeal was essentially an attack on the substantive conclusions of the Panel, it was held to be inappropriate for the Court exercising an appellate function to consider it.
The ‘New Evidence’
Counsel for BM sought to introduce ‘new evidence’ at the appeal hearing;
a) a detailed and recent witness statement from the Appellant
b) a document entitled ‘Adjournment Request’ purportedly sent on 24 February 2012, and
c) a copy of a letter from Newham University Hospital dated 18 March 2009 (the March letter) which had been provided to the NMC in 2011 but had not been included in the final hearing bundle.
The Court considered the words of Sedley LJ in Al-Koronky v Time Life Entertainment Group  EWCA Civ 1123, that in order to be admitted, three conditions had to be met;
‘firstly, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; secondly, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; thirdly the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible’.
It was held that;
a) the witness statement was not to be admitted; BM had ample opportunity to provide a statement prior to the hearing explaining her version of events and the document contains no new material;
b) The purported ‘Adjournment Request’ document was also not to be admitted; even if one were to proceed on the basis that it was genuine, the Court was not persuaded that it would have made any difference to the Panel’s decision to proceed in the absence of BM. Firstly, it was littered with ‘demonstrably untrue’ statements and secondly, there was nothing within it to provide any proper justification for an adjournment.
c) The March letter was to be admitted; it was a crucial document which potentially throws a completely new light on the charges against the Appellant. It was disputed by the NMC that this letter was genuine and an offer was made by Counsel for the Court to hear evidence from a witness who denied being the signatory of the document. The Court concluded that such a course would be ‘highly inappropriate on a hearing of this kind’. It had been conceded on behalf of the NMC that if the document was genuine, the Panel’s decision would have to be quashed on all charges given that all findings would have been ‘infected’ by this issue.
Therefore, although it was said that the Court had ‘not reached this conclusion with any enthusiasm’, for this reason alone, the Panel’s decision was quashed and the matter remitted to a new Panel of the CCC.
BM also applied for judicial review, for an order requiring the NMC to provide reasons why it decided to refer BM to the ISA. It was argued that this raised an important issue; namely whether a body in the position of the NMC has an obligation to explain its decision to refer a person to the ISA, in particular what danger it says the individual poses to children or vulnerable adults. This issue did not fall to be considered in this case as the NMC had in fact on this occasion provided reasons and, in any event, the ISA had concluded that BM was not a danger to children or vulnerable adults. The matter was therefore, in this case, academic.
This case reminds legal assessors, presenting officers and panel members that it is incumbent upon them to ensure that, in the absence of the Registrant, they expose weaknesses in the prosecution case and make such points on behalf of the registrant as the evidence permits. That duty does not extend, however, to the detailed cross examination of witnesses.
Further, it starkly illuminates the potential consequences when important evidence is not contained within the final hearing bundle, especially where the Registrant is absent.
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