Ogundele v Nursing & Midwifery Council

On an appeal from a professional disciplinary tribunal, procedural fairness is assessed in the circumstances of the individual case. A tribunal relying on hearsay or untested evidence must proceed with caution, examine its inherent weaknesses, consider supporting evidence, and give reasons addressing the disadvantage caused by the absence of cross-examination. Late evidence does not necessarily require an adjournment where the material is limited, the appellant can master it, and the case can fairly be met. In sanction appeals, the court interferes only where the tribunal’s decision was wrong or unjust by reason of serious or other procedural irregularity. Proportionate protection of the public and public confidence may properly outweigh the practitioner’s personal and financial interests.

The claimant appealed against findings by the Nursing and Midwifery Council’s Conduct and Competence Committee that her fitness to practise was impaired by lack of competence. Eleven of 20 charges concerning her work as a staff nurse were proved, and a 12-month Condition of Practice Order was imposed.

The appeal challenged the particularity of the charges, late service of evidence, reliance on hearsay and an untested statement from a patient, the findings, and the sanction. The central issues were whether the proceedings were procedurally unfair and whether the findings or sanction were wrong within the applicable appellate jurisdiction.

1. Appeal dismissed. The statutory appeal jurisdiction permitted intervention where the Panel’s decision was wrong or unjust by reason of a serious or other irregularity in the proceedings: CPR Part 52.11(3).
2. The charges gave sufficient notice of the case. In a case alleging a continuing pattern of incompetence, the particulars had to be assessed with the supporting material as a whole. The evidence clearly identified the alleged deficiencies and the appellant could understand and answer them.
3. The late service of Miss Furnedge’s statement was unsatisfactory and should have occurred earlier. However, the Panel considered the nature and volume of the material, the availability of a short adjournment under rule 32.2 of the Nursing and Midwifery Council (Fitness to Practise) Rules 2004, the public interest, and the appellant’s ability to master and answer the evidence. The refusal of a longer adjournment caused no material unfairness.
4. Patient A’s statement was admitted although he could not be cross-examined. The Panel was required to proceed with caution, scrutinise the evidence for inherent weakness, and identify corroborative or supporting material. It did so, gave cogent reasons, expressly considered the absence of cross-examination, and acquitted the appellant on one related charge. The findings were therefore not unfair.
5. The Panel was also entitled to rely on doctors’ hearsay complaints in a pattern case. Calling every complainant would have been disproportionate where other witnesses could be cross-examined and the appellant had an adequate opportunity to present her account.
6. The sanction was proportionate. The deficiencies were serious but potentially remediable, and conditions of practice were capable of protecting the public while allowing rehabilitation. Public protection and confidence in the profession properly carried greater weight than the impact on the appellant.
7. The judge criticised the absence of effective case management. Substantial cases should ordinarily be addressed at a pre-hearing review under rule 18 of the Nursing and Midwifery Council (Fitness to Practise) Rules 2004, including late service, admissibility, hearsay and witness arrangements. The appeal was dismissed with costs.

High Court (Administrative Court): The appeal against the Conduct and Competence Committee’s findings and sanction was dismissed. The Panel’s 12-month Condition of Practice Order remained in force. The appeal was dismissed with costs.