EL KAROUT V NURSING AND MIDWIFERY COUNCIL  EWHC 28 (ADMIN) – Case Digest
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  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.
It was extremely regrettable  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  EWCA Civ 1216 and Thorneycroft v NMC  EWHC 1565, R (Bonhoeffer) v GMC  IRLR 37.
The learned Judge  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  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  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,  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,  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  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  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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