White v Nursing and Midwifery Council [2014] EWHC 520 (Admin)

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The disciplinary case arose in respect of the two appellant nurses (W and T) following the Francis Inquiry into Mid Staffordshire NHS Foundation Trust. W and T were sisters in the accident and emergency department at Stafford Hospital.

In July 2013, the appellants faced allegations before the Conduct and Competency Committee ("the Committee") of the Nursing and Midwifery Council ("NMC") that they had falsified patient's records in order to meet departmental targets.

There were further allegations of bullying and disparagement of colleagues.

During proceedings the Committee heard evidence from witnesses for the NMC as well as evidence from W and T who also called witnesses. The NMC also adduced three anonymous letters in evidence.

The Committee, following the advice of its legal advisor, admitted the anonymous evidence, subject to submissions about the weight to be attached to it.

The Committee held that W and T's fitness to practise was impaired by reason of their misconduct and struck them off the register.

W and T appealed the decision.

The substance of the appeal was whether it was fair to admit anonymous hearsay evidence in professional disciplinary proceedings.

The High Court held that in this particular case, it was not. Article 6(1) of the ECHR would apply to disciplinary proceedings which might result in the removal of a professional status however the protections of Article 6(3) of the ECHR that applied in criminal proceedings, including the right to examine witnesses, did not apply.

The Court held that evidence in disciplinary hearings would be constrained by the requirements of fairness and the opportunity to test that evidence. The Court referred to the cases of Ogbonna v Nursing and Midwifery Council [2010] EWCA Civ 1216 and R. (on the application of Bonhoeffer) v General Medical Council [2011] EWHC 1585 (Admin), [2012] I.R.L.R. 37.

Owing to the intrinsic nature of an anonymous hearsay statement, the ability to test it in cross-examination is removed. Without the ability to test the anonymous evidence, the test of fairness could not be satisfied in this case.

The Court did note however that there are different categories of evidence and it could be fair to admit hospital records as a contemporaneous note even if it was not possible to identify the author. It was held that the Committee had erred in admitting the anonymous statements.

Despite this, the Committee's decision was upheld. With regard to the main charges against W and T, the Committee had expressly based their findings on the admissible evidence referring only to the anonymous evidence as support for the findings already made.

The appeal was dismissed, save that; any findings in respect of T that had depended in part on the anonymous evidence would be quashed.