The law on hearsay in fitness to practise proceedings illustrated

The recent case of Mansary v Nursing and Midwifery Council [2023] EWHC 730 (Admin) provides a practical guide as to how fitness to practise panels should approach hearsay evidence.

What is hearsay evidence?

Hearsay evidence is a statement made by a person other than while giving oral evidence at a hearing repeated during the hearing in support of what is being attempted to prove.

Thorneycroft v NMC [2014] EWHC 1565 (Admin) is currently the leading case on the admission of hearsay evidence in fitness to practise proceedings. This states that the admission of hearsay evidence should not be regarded as a routine matter. A fitness to practise Panel must consider first whether the evidence should be admitted at all and if so, how much weight to attach to that evidence.

When determining whether to admit hearsay evidence, the existence of a good and cogent reason for the non-attendance of the witness is an important factor, although the absence of such a reason does not automatically preclude the evidence from being admitted. The Panel must make a careful assessment, taking into account the following principles:

1. Whether the statement is the sole and decisive evidence in support of the charges;
2. The nature and extent of the challenge to the contents of the statement;
3. Whether there was any suggestion that the witness had reason to fabricate their allegation;
4. The seriousness of the charge, taking into account the impact which adverse findings might have on the registrant’s career;
5. Whether there was a good reason for the non-attendance of the witness;
6. Whether the regulator had taken reasonable steps to secure the witness’s attendance; and
7. Whether the registrant did not have prior notice that the witness statement would be read.

The Facts

The appellant was a clinical nurse specialist at a mental health centre. Patient A was admitted to that centre in May 2018 and the appellant was assigned to him as his keyworker. Patient A was discharged at the end of July 2018. The appellant was reported to the Nursing and Midwifery Council (NMC) in October by his employer following an investigation. It was alleged that the appellant had formed a personal, sexual relationship with Patient A and kept it secret.

The matter came to the employer’s attention following a complaint by Patient A’s parents. No statement was taken from Patient A for the purposes of the internal investigation.

Upon receipt of the complaint, the NMC appointed an investigator. This investigator interviewed Patient A with their care co-ordinator present at the NMC offices in August 2019. During the interview, Patient A disclosed that the appellant had made sexual advances towards him and had engaged in sexual activity with him whilst he was an in-patient at the mental health centre. Once Patient A was discharged, a relationship developed. During the interview, Patient A looked uncomfortable so the investigator suggested they take a short break. Following this, Patient A refused to engage in the interview any further. Subsequent attempts were made by the NMC to resume the interview with Patient A, but were unsuccessful due to advice from his psychiatrist as to his poor mental state. Patient A then took his own life in February 2020.

During the August 2019 interview, the investigator made brief handwritten notes, but Patient A’s care co-ordinator did not.

On the first day of the fitness to practise hearing, the NMC applied to admit the investigator’s handwritten notes as hearsay. The Panel’s reasoning for admitting the evidence can be summarised as follows:

1. The evidence was clearly relevant to the allegations;
2. The allegations were very serious and there was a high public interest in admitting the evidence;
3. Patient A’s deteriorating mental health and the advice of his psychiatrist explained why his evidence was not reduced into a witness statement through no fault of the NMC;
4. Although Patient A was the only direct witness, much of the circumstantial evidence was corroborative and supportive;
5. The evidence of secrecy by the appellant about the relationship and that Patient A had been told not to tell anyone about it;
6. The Panel acknowledged that the evidence sought to be admitted by the NMC was decisive evidence.

Following the hearing, the Panel found the appellant’s actions amounted to misconduct and struck him off the register of nurses.

The Appeal

The registered nurse appealed the decision of the Panel, arguing that its reasoning on the hearsay application was wrong. The Court dismissed the appeal, confirming that the Panel’s approach in admitting the investigator’s evidence as hearsay was correct.

The Court stated that there is no blanket prohibition on admitting hearsay evidence, but it requires a careful consideration of the Thorneycroft principles, the quality of the evidence, how it is obtained and the safeguards in place to minimise the detriment to the appellant through the inability to cross-examine the statement maker.

Comment

This judgment is a useful reminder of the approach panels must take when deciding whether to admit hearsay evidence in fitness to practise proceedings. It is a two-stage approach, whereby it must first be decided whether the evidence should be admitted. This requires a careful assessment of the circumstances of the hearsay evidence, taking into account all of the principles laid out in Thorneycroft. If a panel decides to admit the hearsay evidence, it must then decide what weight to attribute to it. However, a panel is also entitled to consider the weight of the evidence as part of determining its admissibility.

It is also important that when a panel is deciding whether the evidence is the sole and decisive evidence in relation to the charges that it tests the hearsay evidence with the other evidence specific to each allegation and tests its inherent reliability. The judgment also highlights the need for a good and cogent reason as to why the witness who made the statement is absent from the hearing.

It is therefore important to ensure witnesses attend to give evidence when required and if they are not in attendance, there must be a good and cogent reason for their absence. Those calling the witness must ensure they have made all reasonable steps to secure the witness’s attendance. It also serves as a reminder of the importance of taking comprehensive and contemporaneous notes when interviewing witnesses in case they are ever required to be relied upon in fitness to practise proceedings.

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