Ogbonna v Nursing & Midwifery Council

Under Rule 31 of the Nursing & Midwifery Council (Fitness to Practice) Rules Order of Council 2004, evidence is admissible only consistently with relevance and fairness. Where a witness is critical, fairness ordinarily requires an opportunity for cross-examination unless there are good and cogent reasons for the witness’s absence. A regulator should make reasonable efforts to secure attendance, particularly where credibility is disputed and the practitioner is unrepresented. If a critical witness’s statement is admitted unfairly, findings materially dependent on that evidence may be set aside. A tribunal must also take proper account of an unrepresented practitioner’s disadvantage when evaluating evidence and sanction.

A registered midwife appealed against decisions of the Nursing and Midwifery Council’s Conduct and Competence Committee. The Committee found fifteen factual allegations proved, found misconduct and impairment of fitness to practise, imposed a striking-off order, and made an interim suspension order.

The appeal challenged, among other matters, the amendment of a charge, the admission of a critical witness’s written statement in her absence, the treatment of documentary and testimonial evidence, the findings of misconduct and impairment, and the sanctions. The central issue was whether the Committee had acted fairly in admitting and relying upon the absent witness’s evidence.

1. Appeal allowed. The admission of Ms Pilgrim’s written statement was unfair. The Nursing and Midwifery Council had made no effort to secure the attendance of a critical witness, either in person or by video link, after learning that she lived abroad.
2. Rule 31 of the Nursing & Midwifery Council (Fitness to Practice) Rules Order of Council 2004 permits admission of evidence subject to relevance and fairness. Relevance was established, but fairness required the appellant to have an opportunity to test the evidence by cross-examination unless good and cogent reasons justified non-attendance. No such reasons had been shown.
3. The Committee misdirected itself by treating the witness as unable to attend. It failed to address the appellant’s point that no plan had been made to secure attendance. The witness was the sole witness of fact on one head of charge, and the evidence disclosed significant ill feeling between her and the appellant. The statement also contained irrelevant and prejudicial allegations which should have been redacted.
4. The appellant’s unrepresented status materially increased the need for fairness and proper assistance in the conduct of the case. The Committee’s findings of misconduct and impairment relied upon the tainted head of charge and therefore could not stand.
5. The court did not determine the appropriate sanction. It nevertheless identified concerns about the Committee’s treatment of testimonials, its limited consideration of the appellant’s work in the wider hospital environment, and its failure to explore the isolated nature of the events and the appellant’s ill health. The striking-off order and interim suspension order consequently could not stand.

• High Court (Administrative Court): appeal from the Nursing and Midwifery Council Conduct and Competence Committee allowed. The findings of misconduct and impairment, striking-off order, and interim suspension order could not stand.