Ward v NMC [2014] EWHC 1158; Njie v NMC [2014] EWHC 1279The High Court recently considered the admissibility of hearsay evidence in two appeals of decisions of the Nursing and Midwifery Council's
Ward v NMC [2014] EWHC 1158; Njie v NMC [2014] EWHC 1279
The High Court recently considered the admissibility of hearsay evidence in two appeals of decisions of the Nursing and Midwifery Council's Conduct and Competence Committee ("the Committee"), clarifying when it may be fair for a fitness to practise panel to admit hearsay evidence.
Rule 31(1) of the Nursing and Midwifery Council (Fitness to Practise) Rules Order 2004 ("the Rules") permits a Committee, "subject only to the requirements of relevant and fairness… [to] admit oral, documentary or other evidence". This includes hearsay evidence. The admissibility of hearsay in Fitness to Practise proceedings has been developed by the Court in NMC v Ogbonna [2010] EWCA Civ 1216, R (Bonhoeffer) v General Medical Council [2011] EWHC 1585 and, most recently, White v NMC [2014] EWHC 520, in which the High Court has held that it is unlikely to be fair to admit contested hearsay evidence in respect of an allegation where it is the sole or decisive evidence in respect of that allegation. Ward and Njie ratify the approaches established by those authorities.
In Ward the appellant nurse challenged the Committee's striking-off Order, partly on the basis that it had been unfair for the Committee to admit hearsay evidence in respect of one of the allegations against her. The Committee considered that the evidence of these witnesses was relevant and it would not be unfair to admit it as hearsay evidence. Citing Ogbonna, the Committee: recognised that fairness was "fact sensitive"; noted that the appellant had been provided with copies of the two witness statements in question and could have provided written submissions in respect of them; considered that the statements were not the only or core evidence relied upon in respect of that particular charge against the appellant; noted the NMC's "scant" efforts to secure the witnesses' attendance, in assessing fairness to the appellant; and considered that as the appellant had chosen not to attend the hearing and she would not be able to cross-examine the witnesses in any event. They also indicated, however, that the weight to be given to the hearsay evidence would need to be considered in light of all of the evidence presented.
The Court agreed with the Committee, and held that it had applied the principles set out in Rule 31(1) and Ogbonna correctly. Citing White, the Court upheld the Committee's determination that the hearsay evidence only corroborated other evidence and was not the core probative evidence in respect of the allegation.
In Njie, the appellant – a nurse who had also been struck off– appealed the Committee's decision, again partly on the basis that admitting and attaching weight to hearsay evidence had been unfair. Here, a witness was not called by the NMC on account of it being unable to contact him (it had not obtained a witness statement); nonetheless, it sought to adduce before the Committee two relevant statements alleged to have been made by him. Whilst refraining from analysing the Committee's decision to admit the hearsay evidence in particular detail, the Court ruled that the Committee was "perfectly entitled" to take it into account "as part of the totality" of the evidence supporting the charge in issue and that no "discernible unfairness" was caused to the appellant by the Committee doing so.
The High Court recently considered the admissibility of hearsay evidence in two appeals of decisions of the Nursing and Midwifery Council's Conduct and Competence Committee ("the Committee"), clarifying when it may be fair for a fitness to practise panel to admit hearsay evidence.
Rule 31(1) of the Nursing and Midwifery Council (Fitness to Practise) Rules Order 2004 ("the Rules") permits a Committee, "subject only to the requirements of relevant and fairness… [to] admit oral, documentary or other evidence". This includes hearsay evidence. The admissibility of hearsay in Fitness to Practise proceedings has been developed by the Court in NMC v Ogbonna [2010] EWCA Civ 1216, R (Bonhoeffer) v General Medical Council [2011] EWHC 1585 and, most recently, White v NMC [2014] EWHC 520, in which the High Court has held that it is unlikely to be fair to admit contested hearsay evidence in respect of an allegation where it is the sole or decisive evidence in respect of that allegation. Ward and Njie ratify the approaches established by those authorities.
In Ward the appellant nurse challenged the Committee's striking-off Order, partly on the basis that it had been unfair for the Committee to admit hearsay evidence in respect of one of the allegations against her. The Committee considered that the evidence of these witnesses was relevant and it would not be unfair to admit it as hearsay evidence. Citing Ogbonna, the Committee: recognised that fairness was "fact sensitive"; noted that the appellant had been provided with copies of the two witness statements in question and could have provided written submissions in respect of them; considered that the statements were not the only or core evidence relied upon in respect of that particular charge against the appellant; noted the NMC's "scant" efforts to secure the witnesses' attendance, in assessing fairness to the appellant; and considered that as the appellant had chosen not to attend the hearing and she would not be able to cross-examine the witnesses in any event. They also indicated, however, that the weight to be given to the hearsay evidence would need to be considered in light of all of the evidence presented.
The Court agreed with the Committee, and held that it had applied the principles set out in Rule 31(1) and Ogbonna correctly. Citing White, the Court upheld the Committee's determination that the hearsay evidence only corroborated other evidence and was not the core probative evidence in respect of the allegation.
In Njie, the appellant – a nurse who had also been struck off– appealed the Committee's decision, again partly on the basis that admitting and attaching weight to hearsay evidence had been unfair. Here, a witness was not called by the NMC on account of it being unable to contact him (it had not obtained a witness statement); nonetheless, it sought to adduce before the Committee two relevant statements alleged to have been made by him. Whilst refraining from analysing the Committee's decision to admit the hearsay evidence in particular detail, the Court ruled that the Committee was "perfectly entitled" to take it into account "as part of the totality" of the evidence supporting the charge in issue and that no "discernible unfairness" was caused to the appellant by the Committee doing so.