White v Nursing and Midwifery Council [2014] EWHC 520 (Admin)

The High Court has found that as a general rule it would be unfair to admit anonymous hearsay evidence in professional disciplinary cases.  The Court stated "it is difficult to conceive of circumstances in which the admission of potentially significant evidence which is both anonymous and hearsay will not infringe the requirement of fairness".

The appeal arose from disciplinary proceedings brought by the Nursing and Midwifery Council (“NMC”).  Two Sisters in the A&E department of Stafford General Hospital faced multiple charges, the heart of which related to falsified discharge times to avoid breaching the set maximum target.  The NMC relied upon, in the main, evidence given by six live witnesses.  In addition, the NMC also relied upon three letters of complaint written anonymously during the course of the initial internal investigation.  The letters were potentially significant evidence about the attitude and conduct of the appellants.

Under an application for Judicial Review, the High Court considered two points.  Firstly, should the anonymous hearsay evidence have been admitted? Secondly, having been admitted, did it adversely and unfairly impact on the Panel’s findings against the appellants. The Court provided a detailed and interesting analysis of the approach that both the UK and European Courts have taken in relation to anonymous and hearsay evidence.  They found that in principle, it can be admitted in disciplinary proceedings despite the prohibition in English law on the admission of anonymous hearsay evidence in criminal proceedings (subject to an exception for anonymous hearsay by way of business evidence). The Court went on to say that whilst hearsay evidence cannot be tested by cross-examination, it can be tested by other enquiries or rebutted by conflicting evidence,  but admitting anonymous hearsay evidence would remove "both means of subjecting the evidence to critical appraisal".   Therefore the court ruled that admitting the potentially significant anonymous hearsay evidence did infringe the requirements of fairness but it was careful in limiting its conclusion to the facts of this particular case and made it clear that ‘nothing in the principles…prohibits the introduction and reliance on anonymous hearsay in all circumstances [15]’.  However it did go on to say that it would be "difficult to conceive of circumstances" where it would be fair to admit "potentially significant" anonymous hearsay evidence.

Having come to its conclusion that the evidence should not have been admitted, it went on to consider if the committees findings were unsafe.  The court considered carefully the committees reasoning and after detailed analysis ruled that it had been made abundantly clear that the committee had not relied on the inadmissible evidence and reference to the anonymous statements were by way of supporting a finding already made. Therefore, having  erred in the first instance in admitting this evidence, the error in their decision was rectified ultimately by the Panel’s detailed and considered determination on how it reached its findings. The decision to strike the applicants off the register was therefore "unassailable".

Comment:

This is an interesting and significant case and it is clear that Professional bodies hearing allegations of misconduct, and those advising them, should be extremely cautious about admitting anonymous hearsay evidence.  It also serves as a reminder to committees to give detailed and clear reasoning for their decisions. From a defence perspective, there may also be scope to argue that the principles underlying ECHR criminal procedure rights apply to protect the health registrant's rights.

It is also worth commenting, particularly in the wake of the Francis Report, how this will all be balanced with the duty of candour referred to in the Francis report and the growing call for practitioners to raise concerns theselves as set against the encouragement of the practice of whistle blowing. How all of this will sit with this case and protecting health registrant's rights to a fair hearing will no doubt cause substantial difficulties for the legal draftsmen and the health regulators for some time to come.