El Karout v Nursing And Midwifery Council

In a regulatory appeal, the court must distinguish the admissibility of hearsay evidence from the weight to be given to it. Under rule 31 of the Nursing and Midwifery Council (Fitness to Practise) Rules 2004, fairness is an anterior question. Where hearsay is the sole or decisive evidence on serious charges, the panel must assess whether it is fair to admit it before considering its weight. Informal, unrecorded telephone accounts may be inadmissible where their reliability cannot properly be tested and their admission would materially prejudice the registrant. A procedural failure on that issue may taint the findings and sanction overall, requiring remission to a differently constituted panel.

The appellant, a midwife, appealed under article 38(1) of the Nursing and Midwifery Order 2001 against a Fitness to Practise Committee decision finding misconduct, impairment and imposing a striking-off order. The allegations concerned the theft of dihydrocodeine prescribed for seven patients and the falsification of records.

The Panel found charges proved in relation to five patients. Four of those cases depended wholly or substantially on hearsay accounts obtained during informal welfare telephone calls. The central issue was whether the Panel had failed to determine the fairness and admissibility of that hearsay evidence before assessing its weight, and whether that failure affected the remaining findings, impairment and sanction.

1. Appeal and remission. The appeal was allowed to the limited extent that the striking-off decision was quashed and the case remitted to a differently constituted Fitness to Practise Committee. References to Patients D, E, F and G were to be deleted from the charges and evidence, and no evidence concerning them was to be admitted.
2. Appellate approach. Under CPR 52.21(3), the court may allow an appeal where the Panel’s decision was wrong or unjust because of a serious procedural or other irregularity. A disciplinary appeal is not a de novo hearing. The court may exercise its own judgment on factual findings, but should be slow to interfere with credibility assessments and should give particular weight to professional judgment concerning standards and sanctions.
3. Hearsay. Rule 31 required the Panel first to determine whether admission of the hearsay was fair, and only then to assess its weight. The Legal Assessor’s advice and the Panel’s reasons addressed weight but failed to make that distinct admissibility decision. The absence of proper statements, recordings or precise notes; the informal welfare-call context; the refusal of the patients to engage with the disciplinary process; and the fact that the evidence was sole and decisive on the charges made admission unfair.
4. Effect of the irregularity. The inadmissible evidence could not be treated as confined to Patients D and G. The Panel expressly relied on the accumulation of patients who allegedly had not received the medication and on the resulting inference of theft. It could not safely be assumed that the findings concerning Patients A, B and C, impairment or sanction would have been the same without that evidence.
5. Other grounds. The alleged delay did not breach article 6 of the European Convention on Human Rights. The Panel had applied the balance-of-probabilities standard and had received appropriate advice on dishonesty.

High Court (Administrative Court): The appeal from the Fitness to Practise Committee was allowed in part. The striking-off order was quashed and the allegations concerning Patients A, B and C were remitted for rehearing before a differently constituted Panel, with the allegations concerning Patients D, E, F and G removed.