Lawyers must fix the problems with gagging orders before it is too late
El Karout -v- The Nursing and Midwifery Council  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:
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.
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.
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:
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.
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”.
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