White v Nursing And Midwifery Council

In professional disciplinary proceedings, anonymous hearsay is not subject to an absolute rule of exclusion. However, significant evidence about a registrant’s conduct or attitude will ordinarily be unfair where the registrant cannot identify or cross-examine the informant and can do little beyond making a bare denial.

The fairness requirement governing admissibility remains fact-specific. Anonymous material may be admitted for a limited contextual purpose, or where its nature permits adequate testing, such as a contemporaneous business record. An erroneous admission does not necessarily invalidate findings. The question is whether there is a real risk that the tribunal relied on the material when assessing admissible evidence.

Sharon Turner and Tracy White appealed against decisions of the Nursing and Midwifery Council Conduct and Competence Committee. Following a 14-day hearing, the Committee found several allegations proved, concluded that both registrants’ fitness to practise was impaired by serious misconduct, and ordered that they be struck off the register.

The appeals concerned three anonymous letters or statements relied on by the NMC. The central issue was whether anonymous hearsay was admissible under rule 31(1) of the Nursing and Midwifery Council Fitness to Practise Rules 2004 and, if not, whether the Committee’s findings and sanctions were unsafe because it referred to the material.

1. Appeals allowed in part and otherwise dismissed. Findings against Mrs Turner which depended in part on the anonymous statements were quashed. The critical findings concerning falsification of discharge times were upheld in both cases, and the striking-off sanctions remained in place. No order for costs was made.
2. Article 6(1) of the European Convention on Human Rights applies to disciplinary proceedings capable of resulting in the removal of a person’s right to practise a profession. Article 6(3), including the express criminal-proceedings right to examine witnesses, does not apply directly. Nevertheless, rule 31(1) constrained the Committee’s broad power to admit evidence by the requirements of relevance and fairness.
3. The approach of the Strasbourg and domestic courts to anonymous and hearsay evidence in criminal proceedings may inform disciplinary proceedings, but does not create an automatic prohibition. The issue is fact-specific. It will normally be unfair to admit significant anonymous hearsay concerning a registrant’s conduct or attitude where the registrant cannot test the evidence by cross-examination or identify informed reasons why the informant might be hostile. Such material may nevertheless be admissible for a limited contextual purpose, or where its character permits fair evaluation, such as a contemporaneous patient record.
4. The Committee therefore erred in admitting the anonymous statements as probative evidence. However, the relevant findings did not have to be quashed merely because the material was mentioned. Applying the real-risk approach in NMC v Ogbonna, [2010] EWCA Civ 1216, the question was whether there was a real risk that the Committee had factored the anonymous statements into its assessment of the live witnesses.
5. There was no such risk in relation to the critical findings. The Committee’s meticulous reasoning showed that it relied on the live witnesses and referred to the anonymous letter only as subsequent support for conclusions already reached. Those findings, and the sanctions substantially based on them, were unassailable. Some lesser findings against Mrs Turner were materially dependent on the anonymous evidence and were quashed.

• Conduct and Competence Committee of the Nursing and Midwifery Council: found allegations proved against both registrants, determined that their fitness to practise was impaired by serious misconduct, and ordered that they be struck off the register.
• High Court (Administrative Court): quashed the limited findings against Mrs Turner which depended in part on anonymous statements. The critical findings and sanctions were upheld. No order for costs.