McDaid v NMC [2013] EWHC 586 Submitting new evidence at appeal

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A registered midwife (“the Appellant”) appealed a decision of the NMC’s fitness to practice panel pursuant to Articles 29(9) and 38 of the Nursing and Midwifery Order 2001.

Numerous allegations were made against the registrant in respect of her conduct between August 2009 and March 2010 which were alleged to amount to misconduct. In essence, the Appellant’s case was that she had been a whistleblower and had been victimised as a result of this, which led to the allegations of misconduct against her.

All charges against the Appellant were heard together at a hearing in February – March 2012. The Appellant was given notice of the hearing but she failed to attend and the panel proceeded with the hearing in her absence. The panel found that eleven out of the twelve allegations against her had been proved and the Appellant was struck off the NMC register.

The Appellant’s four main grounds for appeal were that:

  • A member of the panel (Mr H) should not have been on the panel due to a purported connection with one of the witnesses;
  • The panel should not have proceeded in the Appellant’s absence and the Appellant should therefore be granted the opportunity for a further hearing;
  • The panel failed to conduct the hearing fairly;
  • The allegations which the panel upheld could be explained.

Further, the Appellant, through her Counsel, sought to introduce new evidence in support of these grounds of appeal. The new evidence included three documents, namely a witness statement from the Appellant dated February 2013; a document entitled ‘adjournment request’ purportedly dated 24 February 2012 and a copy letter from Newham Hospital dated 18 March 2009. The judge pointed out that, normally, any attempt to introduce new evidence on a hearing of this kind should be made by proper application on notice and the fact that it was not was “to say the least most regrettable”. However, detailed consideration was given to the new evidence and whether or not it could be relied upon by the Appellant.

The Judge dismissed the first ground of appeal on the basis that there was no reason to believe that any fair minded and informed observer, having considered the facts, would or even might conclude that there was a real possibility that the panel was biased.

The second ground of appeal was also dismissed as it seemed “abundantly clear” that the Appellant decided simply not to attend the hearing. Counsel for the Appellant sought to argue that there was no evidence to indicate that the Appellant was sufficiently well to attend the hearing but the judge refuted this argument as being “topsy turvy” and that the panel was right to conclude that proceeding with the hearing was the proper and appropriate course to take.

The third ground of appeal was further dismissed by the judge. He agreed that the panel was required to take reasonable steps to expose weaknesses in the NMC’s case and to make such points on behalf of the registrant as the evidence permitted, but there was no duty on the panel to cross examine the witnesses which was what the Appellant’s Counsel was suggesting. The judge stated that he had read the transcripts and held that the panel did put a number of important questions to a number of witnesses.

The fourth and final ground of appeal was also rejected. The judge concluded that this was merely an attack on the panel’s substantive conclusions.

In respect of the fresh evidence that the Appellant sought to rely on, the judge stated that there was no doubt that the Appellant’s witness statement was ‘new’ evidence, as it was dated February 2013  and, to the extent that it said anything more than was contained in the Appellant’s original statement, contained no new material. The judge therefore declined to allow this to be relied on. 

In respect of the letter dated 18 November 2009, it was common ground that this had not been before the panel. However, the NMC accepted that a copy of the letter had been sent to the NMC at some time in 2011. Counsel for the Appellant submitted that it was crucial evidence in respect of one of the charges as it was contemporaneous evidence which, on the face of it, was flatly inconsistent with the evidence of one of the witnesses. Further, it was submitted that the letter strongly supported the Appellant’s case and the fact that the letter had not been before the panel undermined the panel’s decision in respect of one of the charges which, in turn, potentially “infected” it’s conclusions in relation to the other charges “thereby vitiating the overall conclusions of the panel” striking off the Appellant. 

The NMC accepted that the letter, if genuine, did undermine the panel’s decision but argued that the letter was not genuine. They sought permission to call a witness to give oral evidence and submitted that the issue regarding whether the letter was genuine should be decided by the court as part of the appeal. The judge “reluctantly” concluded that this would be highly inappropriate on a hearing of this kind stating that the question of the authenticity of the letter was very serious and that evidence from various witnesses and possibly an expert would be necessary in this regard. He also pointed out that consideration would need to be given as to whether further disclosure would be necessary.

Despite the wasted time and costs that would inevitable flow, the panel’s decision was quashed.

It is interesting that, despite the Appellant’s shortcomings in failing to attend the initial hearing and in submitting new evidence at an appeal hearing without notice, the judge felt that the evidence potentially carried such weight as to quash the panel’s decision in order for the new evidence to be given due consideration. To the contrary, evidence which was not contemporaneous and did not provide any new material, was not allowed to be relied upon. This case highlights the importance of considering all the evidence and putting this before the panel. Had the ‘authentic’ letter to the NMC been submitted to the panel at the hearing for consideration, it seems unlikely that the Appellant would have been successful in her appeal.