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Local investigation report not admissible in disciplinary tribunal

Laura Taylor
Enemuwe v NMC [2015] EWHC 2081 (Admin), Holman JThis recent High Court decision reiterates that, while local investigations may sometimes be admissible in disciplinary proceedings to assist the Enemuwe v NMC [2015] EWHC 2081 (Admin), Holman J

This recent High Court decision reiterates that, while local investigations may sometimes be admissible in disciplinary proceedings to assist the Tribunal to understand the context of a case, the findings of those other proceedings should not themselves be admitted or relied upon.

The NMC brought charges against the Appellant relating to her actions in assisting with the birth of Patient A’s baby in September 2012. The charges related to the Appellant’s behaviour and performance at the time of the child's delivery, and also an allegation that she took home sensitive and confidential medical records following the internal Trust investigation.

The NMC's Conduct and Competence Committee ("the Panel") found some of the behavioural allegations proved, including an allegation that the Appellant had been rude and abrupt and used words to the effect of "you don't know what you're talking about". The Appellant admitted the charge relating to Patient A's medical records. Other charges were found not proved, or that there was no case to answer. Of note, the Panel heard evidence from "Ms 2", the supervisor of midwives who conducted an internal investigation into the Appellant's conduct, and who produced a report detailing her findings, known as the "SOM report". On the basis of their findings, the Panel determined that the Appellant’s fitness to practise was impaired and imposed a caution order for 12 months.

The appeal was made on three grounds, but this article relates to the success of the third appeal ground; namely that pursuant to CPR 52.11(3) 'there was a serious procedural or other irregularity in the proceedings in the lower court'. This ground was argued on the basis that the Panel had erred by placing reliance on the outcome of the SOM report/findings.

There was evident confusion on behalf of the presenting parties and Mr Justice Holman at the appeal, with regard to the scope of the Panel's knowledge of the SOM investigation and findings.  The report does not appear to have been presented to the Panel in written form and details of its findings do not appear in the verbatim transcript. In fact, the Appellant's advocate during those proceedings said “the findings [of the SOM report] are not put before this particular panel.”  However, and key to the success of the appeal, it is clear that the Panel did have knowledge of, or potentially had access to the SOM report and placed an element of reliance upon those findings, since they stated in their determination 'the outcome of the SOM investigation was that all the allegations against you were upheld'.

Mr Justice Holman confirmed that the Panel's apparent awareness of the findings of the SOM investigation represented a 'serious irregularity' and that there was a 'risk here that in some way they allowed themselves to be influenced, even if only peripherally, by their knowledge [of those findings]'. Accordingly, the Administrative Court quashed the Appellant’s fitness to practise impairment finding and the sanction imposed, and the matter was remitted to the NMC.

This case reiterates the usual principle that while professional panels may be informed of the existence of disciplinary investigations, where possible they should not know of previous findings on the very issues that they themselves need to decide; in those cases where it is inevitable that the panel becomes aware of previous findings, the panel should put those from its collective mind. This can be set against R (Squier) v GMC [2015] EWHC 299 (Admin) which related to allegations about the expert evidence given by Dr Squier in care proceedings. In that case, Ouseley J held that a Fitness to Practise Panel of the GMC did not act unreasonably in admitting the redacted determinations from those care proceedings, as the purpose of doing so was not to prove that Dr Squier's evidence was not accepted, but to assist in assessing the basis upon which she gave her evidence, its scope and her use of the underlying research papers. The difference between relying on such investigations for context and relying on them for their probative value in relation to the matters in issue is a critical distinction.