Thorneycroft v Nursing and Midwifery Council [2014] EWHC 1565 (Admin)

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A panel of the Conduct and Competence Committee of the respondent Nursing and Midwifery Council (the panel) found that the appellant registered nurse's fitness to practice was impaired by reason of misconduct and suspended his registration for 12 months.

In the absence of the two principal complainants and the appellant, it relied on the two witnesses' witness statements containing hearsay evidence and a third witness, in finding that the appellant had behaved unprofessionally by using inappropriate and/or derogatory language. The panel, on the advice of the legal assessor, did not receive character references enclosed by the appellant and it did not know of a letter submitted from a witness at the meeting with the third witness, stating that he had no recollection of anything improper taking place (the letter). The appellant appealed.

The appellant contended that there had been flaws in the panel's approach to the case, including that: (i) the decision to admit the statements of the two witnesses had been unjust and wrong; and (ii) he had been entitled to assume that the reliability and credibility of the two witnesses would be tested by questioning from the panel.

The appeal would be allowed.

The panel had been led into error in its approach to the evidence of the two missing witnesses. The decision to admit the witness statements, despite their absence, had required the panel to perform a careful balancing exercise. It was clear that the panel had not been provided with the material which it had needed to perform the necessary balancing exercise. The panel should have been provided, at the fact-finding stage, with all the documents which the appellant had submitted, including the character references. In the circumstances of what had been alleged, many of the references submitted by the appellant had been relevant and admissible for that purpose. In the appellant's absence, the only proper way for the panel to judge the relevance and admissibility of the references had been to read them for itself. That had not been done. Further, the panel did not appear to have given any consideration to the credibility or reliability of the two witnesses when it had come to make its findings of fact. Accordingly, the findings based on the hearsay evidence of the two witnesses were unsustainable. Furthermore, the findings in respect of the third witness could not stand either. The panel might have formed the view that her evidence had been supported by its findings in respect of the evidence of the two witnesses and it had never been given the letter (see [56]-[59], [61]-[63] of the judgment).

The effect of those errors was such that the panel's decision was unjust and would be quashed with no direction for a rehearing (see [64], [69] of the judgment).

Reproduced with kind permission of LexisLibrary.