Case Update: White v Nursing and Midwifery Council and Turner v Nursing and Midwifery Council [2014] EWHC 520 (Admin)

11 March 2014

This highly anticipated judgment from the High Court on the admissibility of anonymous hearsay evidence in professional disciplinary proceedings holds that “it is difficult to conceive of circumstances in which the admission of potentially significant evidence which is both anonymous and hearsay will not infringe the requirement of fairness” and finds that in the present cases arising from the Francis Inquiry, the evidence of anonymous members of staff was inadmissible and “should not have been relied on probatively”. 

Judgment date: 11 February 2014

The Hearing

This appeal arises from disciplinary proceedings brought by the Nursing and Midwifery Council (“NMC”) against two Sisters in the A&E department of Stafford General Hospital which gave rise to the Francis Inquiry. Both appellants faced multiple charges, at the heart of which were allegations that they had falsified discharge times on casualty cards to avoid breaching the set maximum target of four hours to discharge a patient who had been admitted into the A&E department. It was said that the consequence of this was that patients were put at risk. The NMC relied upon, in the main, evidence given by six live witnesses. In addition, the NMC also relied upon three letters of complaint written anonymously in the course of the initial internal investigation.

Perhaps unsurprisingly, at the commencement of the substantive hearing, the representative on behalf of the appellants objected to the inclusion of the anonymous letters. The Fitness to Practice Panel (“the Panel”) heard legal advice by the legal assessor which predominantly directed the Panel to the requirements of relevance and fairness. The Panel concluded that the anonymous evidence was admissible insofar as it would be attributed appropriate weight and in the context of the evidence not forming the sole or principal basis of the case against the appellants.

The Appeal

In considering this important appeal point, the Court’s judgment can be sensibly read as twofold. Firstly, should the anonymous hearsay evidence have been admitted? And secondly, having so been admitted, did it adversely and unfairly impact on the Panel’s findings against the appellants.

The Court considered the impact of Article 6 of the European Convention on Human Rights (“ECHR”) and the applicability of Article 6 (1) to disciplinary proceedings where one’s professional practice is at stake. However, the Court went on to hold that Article 6 (3) cannot apply to disciplinary proceedings as there is no express right for a person “to examine or have examined witnesses against him” as in criminal proceedings [10]. The Court then had to consider carefully the terms of Rule 31 (1) of the NMC Fitness to Practice Rules 2004 which provides for the admissibility of evidence as would be admissible in civil proceedings subject only to the requirements of relevance and fairness. This rule however is constrained by the requirement of ‘fairness’ as set out in the case of Bonhoeffer v General Medical Council [2011] EWHC 1685 (Admin) and the requirement for the Registrant to have the opportunity to test the evidence of a significant complaint in Nursing and Midwifery Council v Ogbonna [2010] EWCA Civ 216.

The Court went on to examine the general approach of the Strasbourg and UK Courts to anonymous and hearsay evidence in criminal proceedings. The ECHR has held that there is no reason for anonymous (Doorson v Netherlands [1996] 22 EHRR 330) or hearsay (Al-Khawaja v United Kingdom [2012] 54 EHRR 23) evidence to be excluded.

In England and Wales the admission of both anonymous and hearsay evidence in criminal proceedings is in principle prohibited (R v Ford [2010] EWCA Crim 2250), however the Court noted that this rule is not absolute given the provision of section 117 of the Criminal Justice Act 2003 which allows for the admission of anonymous hearsay evidence by way of business documents. Applying this provision to disciplinary proceedings, the Court used as analogy the use of hospital business records which are relied upon, such as a patient’s medical record, where it is not always possible to identify its author but which remains admissible under Rule 31 (1) because it quite plainly does not infringe the requirement of fairness; it is a contemporaneous note of someone doing their job and recording what is apparent to them at the time.

However this was not the type of evidence which was at the heart of this appeal. The anonymous hearsay evidence here was potentially significant evidence about the attitude and conduct of the appellants. The Court identified the offending nature of the evidence as twofold; (1) it’s anonymity which prevents  the appellant from advancing any informed reason why the informant might be critical of her attitude and conduct and (2) hearsay which prevents testing by way of cross-examination. Had the evidence been simply hearsay, the appellants could have at least been afforded the opportunity to test the evidence by other enquiries or adducing conflicting evidence. However the doubly damaging nature of the evidence, which removed the means of subjecting evidence to critical scrutiny, meant that the requirements of fairness could not be satisfied.

Having come to its conclusion that the anonymous hearsay evidence should not have been admitted as having probative value, the Court was careful in limiting its conclusion to its facts and making it clear that ‘nothing in the principles…prohibits the introduction and reliance on anonymous hearsay in all circumstances [15]’. For instance, if used by way of a business hospital record (as explained above) the evidence could still be admissible for that more limited purpose.

Given the Panel had then erred in admitting the anonymous statements, the Court went on to determine what impact, if any, it had on the fairness of the hearing and of the Panel’s findings. In relation to the case against Mrs Turner, only one proved subcharge was dependant solely on the anonymous statement which added nothing to the remaining subcharges of the same subgroup. In relation to the case against Mrs White, all charges reliant solely on the anonymous statement had been dismissed. For both appellants, there were two subcharges which the Panel had made reference to anonymous statements and which were of critical importance to the outcome of the case. However on detailed analysis of the Panel’s decision, it was clear (and accepted by the appellants’ representative) that the Panel had based its findings only on the admissible live evidence and that the anonymous statements were referred to only after the panel had stated its conclusion on the basis of admissible evidence. The Panel had made it abundantly clear that it had not relied on this inadmissible evidence and reference to the anonymous statements were as supporting a finding already made. Therefore, having erred in the first instance in admitting this evidence, the error in their decision was rectified ultimately by the Panel’s detailed and considered determination on how it reached its findings.

A significant and noteworthy case on anonymous hearsay evidence, particularly in the wake of the Francis Report and in an increasing culture encouraging practitioners to raise concerns and to whistle-blow. It will be interesting to see how Regulators respond to the growing call for practitioners to raise concerns whilst still affording them adequate protection from the internal investigations through to the disciplinary proceedings whilst also balancing and protecting the Registrant’s right to a fair hearing and their corresponding right to know the identity of their accuser.

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