Controlling and Coercive Behaviour: Widening the Net
High Court considers admissibility of hearsay evidence as they uphold decision of Conduct and Competence Committee that a nurse’s fitness to practise is impaired and that she should be struck off.
Judgement Date: 11 April 2014
W, a registered nurse at a private residential care home, faced four allegations before a panel of the Conduct and Competence Committee of the respondent Nursing and Midwifery Council (the Panel) relating to the treatment of three residents of a Care Home between 15 and 18 March 2011. These included failures to maintain accurate contemporaneous records, failing to undertake assessments prior to administering treatment to a resident and dishonestly documenting that a Percutaneous Endoscopic Gastrostomy feed had been commenced when it had not. W was employed by the Care Home from 31 January 2011 until March 2011.
The hearing proceeded in the absence of W. The Panel found all allegations proven, that her fitness to practise was impaired and recommended that her name be struck from the register.
W appealed that decision on six grounds, arguing that the Panel erred in proceeding in her absence and had inappropriately admitted hearsay evidence against her. She asserted that the Panel erred in their findings of fact and as such should not have found her guilty of misconduct It was argued that the Panel had paid insufficient regard to her mitigation; namely health issues, her difficulties with the Care Home’s management and her otherwise unblemished career. It was further suggested that the Panel imposed too severe a sanction in striking her name from the register.
The Appellant, who was representing herself, did not appear at the Appeal. While no formal application was made to adjourn the hearing, the Appellant’s former solicitors wrote to the Court to informally request that the hearing be adjourned due to the illness of the Appellant’s father. The Court considered the approach to be adopted in these circumstances and decided that it would not be unfair to proceed and that it was in the interests of justice to do so.
The Appellant did not attend the initial hearing due to reported health issues and submitted on appeal that the Panel were wrong to proceed in her absence. The Court considered the approach taken by the Panel in considering whether or not to adjourn and found that they had clearly applied the principles in R v Jones (Anthony William)  UKHL 5, and that the appellant had voluntarily absented herself from the hearing.
On appeal the Appellant contended that it was unfair to admit two written statements of witnesses who were unable to attend the hearing as hearsay evidence. The Panel considered the evidence and found both that it was relevant and that it would not be unfair to admit the evidence; the Appellant had been provided with copies of the statements and it was made clear to her that she could make any written representations she wanted. On appeal the court found that the Panel applied the correct approach and rightly took account of the relevant circumstances. They were clear that each determination is fact sensitive and were particularly aware of the requirement for fairness, for example the efforts to secure the attendance of the witnesses per Nursing and Midwifery Council v Ogbonna  EWCA Civ 1216. These statements were not the only probative evidence but rather supported other evidence, per White v Nursing and Midwifery Council  EWHC 520. The Panel’s approach could not be criticised.
The Appellant submitted that the Panel failed to have due regard to her written submissions, which clearly outlined that that witnesses were less biased against her, given that she had acted as a “whistleblower”. The Court found that the Panel explored this issue with the witnesses appropriately and correctly found them both credible and reliable and as such the Panel could not be challenged.
A previous finding by an interim orders panel in this matter, which had concluded that the evidential matrix for dishonesty could not be established, was also relied upon by the Appellant under this ground of appeal. The Court correctly found that this assertion was misconceived as an interim orders panel does not make findings of fact, per Perry v Nursing and Midwifery Council  EWCA Civ 145, and indeed if this was taken into account by the Panel could have been prejudicial to the Appellant.
The Court found that in respect of the findings of misconduct and impairment, the Panel considered the issues and guidance in Roylance v GMC (No 2)  1 AC 311 and Council for Healthcare Regulatory Excellence v Nursing and Midwifery Council & Grant  EWHC 927 (Admin). The Panel appropriately focused on the need to protect the public from risk.
In considering the contention that the sanction was too severe in the circumstances, the Court considered the approach to be adopted in appeals of this sort, noting that there will be considerable deference to a professional disciplinary panel, as they have had the advantage of hearing from the witnesses and brought to the deliberations their own specialist experience of disciplinary tribunals. The Court found that the Panel approached sanction with care and took into account the relevant guidance. It was held correctly that W’s actions were significant departures from the standards expected, and noted the Panel’s careful and comprehensive analysis of the matter in light of Mr Justice Mitting’s comments in Parkinson v Nursing and Midwifery Council  EWHC 1898 (Admin).
A helpful case which clearly articulates the correct approach to be taken by panels when dealing with hearsay evidence.
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