EL KAROUT V NURSING AND MIDWIFERY COUNCIL [2019] EWHC 28 (ADMIN) – Case Digest

Law Report: EL KAROUT V NURSING AND MIDWIFERY COUNCIL [2019] EWHC 28 (ADMIN)

Case Law Digested by Barrister Penny Maudsley

Ms EK had some 20 years of experience as a midwife with no previous findings of misconduct. The allegation was that on the ward where she worked, Ms EK had stolen packs of dihydrocodeine tablets prescribed for patients to take home when discharged from hospital after giving birth, and had falsified medical records to facilitate and conceal the thefts. It was alleged that Ms EK had stolen dihydrocodeine in this way in relation to seven patients, although the Panel found the allegation of theft proved in relation only to five of the seven.

The striking feature of the NMC’s case against Ms EK was that of the seven allegations of stealing dihydrocodeine, four depended entirely on hearsay evidence to establish that the patient had not received the dihydrocodeine prescribed for her. In relation to patients D, E, F and G the only evidence that the patient had not received dihydrocodeine as part  of her  tablets to take out (TTO)  medication came from the  audit  conducted  by Ms 3 and her colleagues in which these and other patients were  telephoned at home,  on the pretext of a welfare call, in order to  ascertain whether they had been given dihydrocodeine as part of their TTO medication.

Spencer J [89] said the “investigation” conducted by Ms EK’s employer and her colleagues in relation to  these  seven patients, based solely on replies in “welfare” telephone calls, could never have been a proper foundation in itself for disciplinary  proceedings  whose  outcome  could jeopardise the appellant’s whole career as a midwife.

Two years had elapsed since the relevant events, and it was incumbent on the NMC to ensure that the case was presented fairly. In the event, only one of the other five  patients was  prepared, belatedly, to be a witness: Patient C. The other four, Patients D, E, F and G, declined to co-operate.[91]

It was extremely  regrettable  [92] that  no consideration seemed  to  have  been given  by  the  NMC  initially  in  framing  the  charges, or by counsel or the Legal Assessor at the hearing, to the admissibility of the hearsay evidence from these four patients, as opposed to the weight  to  be  attached  to  that hearsay evidence. The distinction was very important, and has been emphasised in the authorities, NMC v Ogbonna [2010] EWCA Civ 1216 and Thorneycroft v NMC [2014] EWHC 1565, R (Bonhoeffer) v GMC [2012] IRLR 37.

The learned Judge [126] remained ‘very troubled by the admission of  the  hearsay  evidence  in respect  of Patients D, E, F and G and was firmly  of the  view  that  had the issues of  admissibility and weight  been properly analysed  and  separated, as required on the authority of Ogbonna and Thorneycroft, the  Panel could not possibly have reached a proper conclusion  that  it  was “fair”  to  admit  the  evidence.  It follows that the Panel’s findings in relation to Patients D and G must be quashed. The proceedings were thereby rendered unfair through a serious procedural irregularity. 

For that reason he was also satisfied that the findings as a whole could not stand, because  it cannot safely be assumed that the  Panel  would  necessarily  have  found  the  other allegations of misconduct  proved,  or  would  necessarily  have  reached  the  same conclusion on the issue  of  impairment  of  fitness  to  practise,  or  on  the  issue  of sanction. 

It  followed  that  the  appeal  must  be  allowed  and  the  matter  remitted  for hearing before a differently constituted Panel, with all the allegations of  misconduct  in relation to Patients D, E, F and G deleted from the Charges and edited out of the witness statements and other evidence.

At [129] the learned gave his reasons: First, it was not even a case where reliance was placed on a properly recorded witness statements from any of these four patients. All four of  them had  declined  to  engage  with  the process. The hearsay evidence was the oral response which each of them purportedly made to an enquiry by Ms 3, or in the case of Patient F by Ms 1, over the telephone. There was no audio recording of the conversation. There was no precision in the noting of the conversation. Although Ms 3 spoke of a template, there was no “script” produced to show exactly what was to be said in each conversation to ensure consistency in the questions asked. Whatever contemporaneous note may have  been made of any of the conversations they had not apparently been preserved, which  was  extremely poor practice. The sketchy composite audit schedule was the sole eventual product of the all-important telephone calls.

Second [130] and equally important, even if the Panel could fairly and properly rely on the accuracy of what the Patient was reported as saying, the context of the telephone conversations was very different from the formal setting  of  a request  for  information which might be used in disciplinary proceedings with  the  career  of a  midwife  at  stake… But there is a world of difference between, on the one hand, an off-the-cuff response to a question about medication amid general conversation in a welfare call and, on the other, a considered response to a very specific request for information, ensuring that the patient knew and understood the importance of the  consequences  of her  answer.

Third, [131] this hearsay from the telephone conversations was the sole and decisive evidence to prove each of the charges relating to these four patients. It was the sole evidence that the dihydrocodeine had not been supplied to these patients and taken home. Unless that was proved, all the charges in relation to these four patients would have failed.

Fourth, [132] there was an obvious consequent unfairness if  the  hearsay  evidence  were admitted, in  that  the  Panel  would  then  inevitably  rely  upon  the   greater  accumulation  of examples of patients who had not received their dihydrocodeine as rebutting any suggestion  of  innocent  coincidence.

The fact that the Panel wrongly found the charges proved in relation to Patients D and G may very well have reinforced, improperly and unfairly, their conclusion in relation to Patients A, B and C.

For all the  reasons explained,  the learned Judge was quite  satisfied  that  the  findings  of the  Panel in relation to Patients D and G must be quashed and that consequently the findings in relation to patients A, B and C must  be  quashed as well.

The case was remitted to be heard by a differently constituted Panel.

At [89] the learned Judge gave this warning about the care that must be taken in fitness to practise hearings when faced with serious allegations in the context of criminal proceedings. 

Only Patients A and B made witness statements to the police. They were the only patients to give evidence at the Crown Court trial.  Ms 3 and Ms 1 also gave evidence at the trial. The fact that the appellant was acquitted by the jury of stealing the dihydrocodeine prescribed for Patients A and B –precisely the allegation she faced in these disciplinary proceedings – obviously did not preclude the Panel from reaching a contrary conclusion. This was not least  because the  standard  of  proof  was  different:  the criminal standard of proof beyond reasonable doubt in the Crown Court, the civil standard of proof on the balance of probabilities  in  the  disciplinary  proceedings.  However, the fact of her acquittal was not  altogether irrelevant.  As  a  matter  of common sense and common fairness the Panel were obliged to proceed  with  greater caution in differing from the jury’s conclusion on the very same allegations of theft, particularly in view of the serious consequences of such a finding  for  the  appellant’s career as a midwife. Although  as  a  matter  of law  the  standard  of proof remained  the civil standard, it is well established that the more serious  the  charge  alleged,  the  more cogent is the evidence needed  to  prove  it: see R v  H [1996] A.C. 563. The Panel were so advised by the Legal Assessor, although no reference is made to it in their reasons.

This case is a strong reminder that any evidence that is not formally obtained by the NMC as part of the investigation should be treated with caution and should be argued before the Panel if it appears to be hearsay.

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