Enemuwe v Nursing And Midwifery Council

In professional disciplinary proceedings, a committee may admit evidence only subject to relevance and fairness. Knowledge that an earlier investigation took place is distinct from reliance on that investigation’s factual findings or outcome. Ordinarily, the earlier findings and outcome are irrelevant to the committee’s own fact-finding and should be excluded. Repeated reference to the earlier outcome in reasons for finding charges proved may constitute a serious procedural irregularity, even where the committee also relies on direct witness evidence and the court cannot say that the conclusion was wrong.

The appellant, a registered midwife, brought a statutory appeal against findings by a Conduct and Competence Committee of the Nursing and Midwifery Council. The Committee found proved allegations that she had spoken abruptly or rudely to a patient and had used a mobile phone while providing care. It also found a separate allegation admitted and imposed a 12-month caution order.

The appeal initially challenged the reliability of the factual findings, the impairment decision and the sanction. The hearing focused on whether the Committee had improperly relied on the outcome of an earlier supervisory investigation by a supervisor of midwives. The court determined the appeal on that issue alone.

1. The appeal was allowed and the Committee’s decision was quashed. The court proceeded under CPR rule 52.11(3)(b), which applied to the statutory appeal as the parties had accepted. The court did not decide that the Committee’s factual conclusions were wrong. The appeal succeeded because the proceedings were affected by a serious irregularity.
2. Under rule 31(1) of the Nursing and Midwifery Council Rules 2004, a Practice Committee may admit evidence whether or not it would be admissible in civil proceedings, but only subject to relevance and fairness. Those requirements prevent admission of evidence that is irrelevant or unfair.
3. A Committee may need to know that an earlier local investigation occurred. That is materially different from taking account of the earlier investigation’s factual findings or outcome when determining disputed facts for itself. Normally, those findings and that outcome are irrelevant to the Committee’s fact-finding and should be excluded.
4. The Committee twice referred to the outcome of the supervisory investigation, namely that all allegations had been upheld, and stated that the investigator had confirmed that outcome. Those references formed an integral part of the reasoning for finding the contested charges proved. The fact that the Committee also referred to direct witness evidence did not remove the risk that it had been influenced, even peripherally, by the earlier outcome.
5. The matter was remitted under Article 38(3)(d) of the Nursing and Midwifery Order 2001, SI 2002/252, for the Council to decide whether the charges should be reheard or left in abeyance. If reheard, the case had to be heard by a completely fresh panel. The Council was ordered to pay the appellant’s appeal costs of £1,920 inclusive of VAT.

• High Court (Administrative Court): statutory appeal allowed; the Committee’s decision was quashed and the matter remitted to the Nursing and Midwifery Council for review.
• Nursing and Midwifery Council Conduct and Competence Committee: on 15 January 2015, found certain allegations proved, found impairment of fitness to practise and imposed a 12-month caution order.