El Karout -v- The Nursing and Midwifery Council [2019] EWHC 28 (Admin)

In this case a midwife of over 20 years’ experience was subject to an allegation that, on the ward where she worked, the she had stolen packs of dihydrocodeine tablets prescribed for patients to take home when discharged from hospital after giving birth. It was alleged further that she had falsified medical records to facilitate and conceal the thefts.   

On 23 May 2018, a Conduct and Competence Committee of the NMC determined that the appellant’s fitness to practise was impaired and that the appropriate sanction was an order striking her off the register.

This decision was the subject of the appeal heard before the High Court.  Amongst the ground for appeal was the following:

• the Committee was biased or attributed undue weight to the evidence of the NMC’s witnesses and/or attributed insufficient weight to the appellant’s evidence;
• the Committee’s decision to strike off was disproportionate.

Mr Justice Spencer hearing the appeal sought submissions on the particular issue of the admissibility of hearsay evidence in respect of four patients.     

The NMC argued that since the appellant did not formally challenge the admissibility of the hearsay evidence, as opposed to making submissions on its weight, the Committee was entitled to move straight on to assess its weight without considering its admissibility.

Spencer J found however that the NMC committee should have found that the hearsay evidence in relation to the four patients was inadmissible stating:

• All four of the patients had declined to engage with the process. There was no audio recording of the conversation relied on and no contemporaneous notes of the conversations had been preserved.
• The context of the telephone conversations was very different from the formal setting of a request for information which might be used in disciplinary proceedings with the career of a midwife at stake.
• The evidence was the sole and decisive evidence to prove each of the charges relating to those four patients; and

Spencer J allowed the appeal remitting the matter back before a differently constituted committee and with the hearsay evidence deleted from the allegation and redacted from all other evidence.

 

There has been a long-held view that hearsay evidence is inadmissible in civil proceedings but that the appropriate amount of weight should be added to this hearsay evidence.

 

Spencer J in this case ruled that the correct approach to adopt is one set out in a previous case Thorneycroft v Nursing and Midwifery Council [2014] EWHC 1565 (Admin).  In short, this case ruled that regulatory bodies in fitness to practise hearings need to be careful when relaying on hearsay evidence particularly in cases where hearsay evidence forms a substantial part of the evidence. – Stephen McCaffrey