Nursing & Midwifery Council v Ogbonna

Fairness under rule 31(1) is a condition of admitting hearsay evidence, not merely a matter of the weight given to it afterwards. The assessment is fact-sensitive. Where a seriously contested charge depends upon a sole witness, fairness may require reasonable steps to secure an opportunity for cross-examination unless cogent reasons justify the witness’s absence.

If unfairly admitted evidence creates a real risk that a disciplinary panel’s assessment of credibility on other charges was affected, those findings and the consequential sanction may be unsafe. The proper course may be to quash the decision and remit the unaffected charges for a fresh hearing before a differently constituted panel.

A registered midwife was struck off by the Nursing and Midwifery Council’s Conduct and Competence Committee after it found three misconduct charges proved and held that her fitness to practise was impaired.

On appeal, Nicola Davies J held that it was unfair to admit the written evidence of the sole material witness to Charge 1 without an opportunity for cross-examination. She quashed the Committee’s decision: [2010] EWHC 272 (Admin).

The Council’s second appeal challenged the effect of that ruling. Permission to challenge the fairness ruling was refused, but permission was granted on whether Charges 2 and 3 could sustain the sanction independently. The central issue was whether the unfair admission of evidence on Charge 1 left the remaining findings safely available.

1. Appeal allowed. The court upheld the conclusion that Charge 1 had been determined unfairly, but varied the disposal. It quashed the Committee’s decision and remitted Charges 2 and 3 for a fresh hearing before a differently constituted panel. Charge 1 could not be reopened.
2. Under Nursing and Midwifery Council (Fitness to Practise) Rules 2004, rule 31(1), relevance and fairness govern whether hearsay evidence should be admitted. Fairness is therefore to be assessed at the admission stage. It cannot be satisfied simply by admitting the evidence and leaving its weight for later assessment.
3. The fairness inquiry is fact-sensitive. Here, the statement was the sole material evidence for parts of Charge 1, was strongly disputed, and could not be tested by cross-examination. The Council had made no effort to secure the witness’s attendance in person or by video link. In those circumstances, the Committee had misdirected itself by assuming that the witness was unable to attend and by admitting the statement without addressing those matters.
4. The court rejected the suggestion that the first-instance judgment imposed a general new rule on hearsay. It required only a proper assessment of fairness on the particular facts. Pill LJ added that fairness includes the parties’ conduct in obtaining and presenting the evidence; it is not confined to evidence already admitted.
5. Although the witness’s statement was not formally relied on in the reasons for Charges 2 and 3, there was a real risk that the Committee’s acceptance of it affected its assessment of the midwife’s credibility on those charges. Their factual findings, the findings of misconduct and impairment, and the striking-off sanction were consequently unsafe. A rehearing of Charges 2 and 3 was required.

• Court of Appeal (Civil Division) — Allowed the Council’s second appeal as to disposal, upheld the unfairness ruling on Charge 1, quashed the Committee’s decision, and remitted Charges 2 and 3 for a fresh hearing: [2010] EWCA Civ 1216.
• High Court, Administrative Court — Nicola Davies J allowed the registrant’s appeal, held the admission of the sole material hearsay evidence on Charge 1 unfair, and quashed the Committee’s decision: [2010] EWHC 272 (Admin).
• Nursing and Midwifery Council Conduct and Competence Committee — Found all three charges proved, found misconduct and impaired fitness to practise, and ordered striking off on 24 June 2009.