Ayettey v Nursing And Midwifery Council

In a disciplinary appeal, evidence admitted for the limited purpose of rebutting a misleading answer must not be used as substantive evidence of the underlying misconduct. Where a panel relies on prejudicial and untested hearsay about similar conduct in evaluating the primary allegation, the hearing may become unfair and the findings unsafe. The court must assess the panel’s reasoning as a whole; an earlier conclusion based on admissible direct evidence does not create an automatic separation from later reliance on inadmissible or unreliable material. Separate and logically independent findings may stand where they do not depend on the tainted evidence. Any interim suspension should be reconsidered by the specialist panel where some charges are quashed but others remain proved.

The appellant, a senior registered nurse, appealed against findings of a Conduct and Competence Committee of the Nursing and Midwifery Council. The committee found proved allegations that he had touched a student nurse in a sexually inappropriate manner and had dishonestly denied, on a later employment application, that he was subject to disciplinary proceedings.

During the hearing, the committee admitted hearsay material concerning alleged similar conduct towards two other nurses. The material was initially advanced to rebut the appellant’s evidence that nobody had previously complained about him, but the committee later relied on it in assessing the primary allegations. The central issues were whether that use rendered the hearing unfair and whether the findings on the separate dishonesty charges were affected.

1. Charges 1 and 2. The committee’s decision to admit the material concerning Nurses B and L was followed by its use as evidence of alleged behaviour of a similar nature. The committee expressly attached weight to the hearsay evidence and said that it supported its conclusion on the primary allegations. The court therefore could not treat the earlier findings based on the evidence of the appellant and Nurse A as severable from the later reliance on the hearsay material.
2. The material was particularly unsafe because Nurse B’s accounts contained apparent inconsistencies and Nurse L had not made the formal written statement which the committee appeared to believe existed. The admission and use of the evidence made the hearing unfair. The findings on charges 1 and 2 were accordingly unreliable and unsafe and were set aside. Those charges were remitted for rehearing before a differently constituted Conduct and Competence Committee.
3. Charges 3 and 4. The dishonesty allegations concerned a separate and discrete matter. The appellant’s answer on the employment application was plainly untrue, and the committee was entitled to find that he had acted dishonestly. Those findings did not depend on, and were not affected by, the findings on charges 1 and 2.
4. The existing interim suspension was extended to May 2017, subject to a requirement that the committee reconsider by 6 May 2016 whether continuation remained necessary and justifiable while charges 1 and 2 awaited rehearing, having regard to the fact that charges 3 and 4 remained proved.

• Nursing and Midwifery Council Conduct and Competence Committee: found all four charges proved and imposed an interim suspension order.
• High Court (Administrative Court): allowed the appeal in part. Findings on charges 1 and 2 were set aside and remitted for rehearing before a differently constituted panel. Findings on charges 3 and 4 were left standing.