NMC’s reliance on hearsay evidence leads to successful appeal

El Karout -v- The Nursing and Midwifery Council [2019] EWHC 28 (Admin)

On 23 May 2018, a Conduct and Competence Committee ("the Committee") of the Nursing and Midwifery Council ("NMC") determined that the appellant’s fitness to practise as a midwife was impaired by reason of her misconduct and that the appropriate sanction was an order striking her off the register. The appeal raised was on the following grounds:

1. that the NMC contravened Article 6 of the European Convention on Human Rights in that there was an unreasonable delay, the appellant did not have a real opportunity to present her case and that there was no presumption of innocence;
    
2. that the NMC contravened Article 23.1 of the Universal Declaration of Human Rights in that the appellant had been unable to obtain favourable employment and has suffered financially;
    
3. the Committee was biased or attributed undue weight to the evidence of the NMC’s witnesses and/or attributed insufficient weight to the appellant’s evidence;
    
4. the Committee’s decision to strike off was disproportionate.

The appeal was heard by Mr Justice Spencer on 18 June 2018. At the conclusion of the oral evidence, Spencer J invited written submissions from both parties on an area that troubled him: the admissibility of hearsay evidence in respect of four patients.     

Facts

The appellant had over 20 years’ experience as a midwife. The allegation before the Committee was that, on the ward where she worked, the appellant had stolen packs of dihydrocodeine tablets prescribed for patients to take home when discharged from hospital after giving birth. It was alleged further that she had falsified medical records to facilitate and conceal the thefts.   

The thefts alleged to have been committed by the appellant spanned a period of a fortnight between 20 June and 6 July 2015. Suspicion first fell on the appellant on 1 July when it was discovered that one of the patients about to be discharged did not have in her pack of “to take out” (TTO) medication the dihydrocodeine which the appellant had signed out of the controlled drugs register and had purportedly given to the patient.

In the drugs register, six other patients were identified for whom the appellant had signed out the dihydrocodeine as part of their TTO medication. Each of these six patients were telephoned at home to establish whether they had in fact received and taken home dihydrocodeine as part of their take home pack. In each case the response was that no dihydrocodeine had been given. The results of this investigation were sketchily reported in a document described as an “audit” and the creators of that document gave evidence before the Committee. No witness statements were taken from four of the seven patients who formed part of the allegation, nor were they present to give evidence before the Committee. Although counsel for the appellant made submissions as to the weight that should be given to this hearsay evidence, it was admitted in the form of the oral response which each patient made in the telephone conversation as part of the audit.        

At the conclusion of the hearing, the panel found charges in relation to five of the seven patients proved. 

On appeal

Although it had not been submitted as a ground of appeal by the appellant, Spencer J remained troubled by the admission of hearsay evidence in respect of four of the patients stating:

I am firmly of the view that had the issues of admissibility and weight been properly analysed and separated, as required on the authority of Ogbonna and Thorneycroft, the Panel could not possibly have reached a proper conclusion that it was “fair” to admit the evidence."

Spencer J rejected the NMC’s submission that because the appellant’s counsel had not formally challenged the admissibility of the hearsay evidence, as opposed to making submissions on its weight, the Committee was entitled to move straight on to assess its weight without considering its admissibility.

Spencer J outlined several reasons why the Committee would have been obliged to find that the hearsay evidence in relation to the four patients was inadmissible:

1. All four of the patients had declined to engage with the process; this was not a case where reliance was placed on a properly recorded witness statement from any of them. There was no audio recording of the conversation relied on and no contemporaneous notes of the conversations had been preserved. The sketchy audit schedule was the sole eventual product of the telephone call;
    
2. The context of the telephone conversations was very different from the formal setting of a request for information which might be used in disciplinary proceedings with the career of a midwife at stake. There is a clear difference between an off the cuff response to a question about medication amid a welfare call and a considered response to a specific request for information;
    
3. The evidence was the sole and decisive evidence to prove each of the charges relating to those four patients; and
    
4. The Committee inevitably relied upon the accumulation of examples of patients who had not received their dihydrocodeine as rebutting any suggestion of innocent coincidence if the additional allegations are permitted.    

The appeal was allowed and the matter remitted for hearing before a differently constituted Committee, with all of the allegations of misconduct in relation to the four ’hearsay patients’ deleted from the allegation and redacted from all other evidence.

Commentary

Parties to regulatory proceedings have long relied on Section 1(1) of the Civil Evidence Act 1995, that “in civil proceedings, evidence shall not be excluded on the ground that it is hearsay”, giving consideration to the weight to be afforded to that evidence rather than to its admissibility. The distinction is important and has been emphasised by authorities. This case, adopting the principles of Ogbonna and Thorneycroft, makes clear the need for a Committee to undertake a careful balancing exercise before admitting hearsay evidence, especially in a case where the evidence is the sole or decisive evidence on an allegation. The key issue in all cases is one of “fairness”.