Admission of hearsay evidence – a practical use of the Thorneycroft principles
When it comes to admitting hearsay evidence, certain factors should be considered. On 2 February 2023 in Mansaray v Nursing and Midwifery Council (“NMC”), we had a useful reminder of the practical use of what needs to be taken into account as the High Court saw an appeal in relation to the admission of hearsay evidence at an NMC Fitness to Practise Committee (“the panel”) hearing. The judgment considered whether the panel had correctly admitted hearsay evidence, in line with the principles in Thorneycroft v NMC [2014] EWHC 1565 and the circumstances that made the hearsay evidence admissible in the absence of a signed statement and the witness himself.
The facts of the fitness to practise matter
The appellant nurse was working for an NHS Trust on an acute in-patient mental health ward and was assigned to Patient A, who was admitted to hospital under section 3 of the Mental Health Act 1983. Patient A was in hospital, under the nurse’s care, for two months in the summer of 2018. After he was discharged, concerns were raised about the nurse inappropriately contacting Patient A after his discharge and commencing a personal relationship with him. An internal investigation was completed at the NHS Trust and the matter was referred to the NMC.
As part of the NMC investigation, one of its investigators undertook an in-person interview with Patient A, who attended the NMC’s offices with his care coordinator in August 2019. Patient A disclosed during the interview that whilst he was on the hospital ward, the nurse had made sexual advances towards him, engaged in sexual activity with him and given him his phone number. He also disclosed that after his discharge, he had regular calls and text conversations with the nurse. He had also visited the nurse’s home and engaged in sexual activity with him, whilst he was there.
There was a short break during the interview and when the interview recommenced, Patient A said that he did not want to continue the discussion. No statement was drafted or signed, however the NMC investigator had taken brief handwritten notes of what had been discussed.
The NMC investigator was unable to interview Patient A again due to his deteriorating mental health, which sadly led to Patient A taking his own life in February 2020.
The Panel hearing
In August 2022, the NMC made an application to admit the NMC investigator’s account and handwritten notes from the interview with Patient A as hearsay evidence for the panel’s hearing. The NMC’s application was successful. The factors the panel took into account for this decision were summarised in the High Court as:
- The evidence was clearly relevant to the allegations of both sexual behaviour and sexual motivation;
- The allegations were very serious and there was a high public interest in admitting the evidence;
- Patient A’s deteriorating mental health and the advice of his doctor explained why his evidence was not reduced into a witness statement, and this was no fault of the NMC;
- Although Patient A was the only direct witness, much of the circumstantial evidence was supportive, such as the text messages, the admitted allegations and the evidence of Patient A’s parents;
- The evidence of secrecy by the appellant about the relationship and that Patient A had been told not to tell anyone about it;
- It was acknowledged that the evidence sought to be admitted by the NMC was decisive evidence.
The appeal hearing
The nurse’s criticism of the panel’s admissibility ruling was based on a number of factors; however, one of the key criticisms was that the evidence was not demonstrably reliable or capable of being tested. The nurse argued that Patient A’s mental health issues affected his credibility and that the fact there was no signed witness statement was significant.
Mrs Justice Stacey found that despite Patient A’s mental health illnesses, there was nothing to suggest that he was lying or giving an inaccurate account of what had happened with the nurse. The judge accepted that it may have been helpful if the panel had addressed in more detail whether Patient A’s psychiatric history may have impacted on the accuracy of his evidence. However, the judge concluded that it was clear that any lies Patient A had told to medical professionals in the course of his history were of a different nature to the matters disclosed to the NMC investigator during his interview and did not detract from his credibility about this account. The judge further highlighted that it would be quite wrong to make assumptions based on outdated stereotypes that those with mental health conditions are not capable of being believed.
The judge also noted that there was a good explanation provided for the fact that there was no signed statement from Patient A. The judge considered that Patient A was fully aware that he was participating in a formal interview procedure. This was evidenced by virtue of the fact that he travelled to the NMC offices, with his support worker, following an initial conversation with the NMC public support services team. Therefore, it was reasonable to infer that Patient A knew of the seriousness of the investigation and the fact that there was no signed statement had “little bearing”. It was also noted that there was a clear reason for Patient A not attending the hearing to give evidence, as he had since passed away.
After consideration of the points above, the judge concluded that Patient A’s account was reliable and further considered it was capable of being tested to some degree, with the surrounding evidence. The judge therefore concluded that the panel had been entitled to admit the hearsay evidence; they acknowledged that it was decisive evidence and applied the appropriate degree of scrutiny before allowing it in. There had been no procedural error in the panel’s approach with admitting this hearsay evidence. The judge dismissed the nurse’s appeal on all grounds.
Comment
This is a helpful case which illustrates the practical application of the principles in Thorneycroft v NMC and demonstrates clearly how they are to be applied. In particular, this judgment emphasises the existence of a cogent reason for the non-attendance of a witness and explores the factors taken into consideration when assessing whether to admit hearsay evidence that is the sole or decisive evidence, its reliability and ability to be tested. This case should also serve as helpful reminder as to the importance of taking clear and detailed notes during witness interviews and conversations, as these can become invaluable sources of evidence for a panel to consider, even if that was not the original purpose when they were first created.
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