Newsletters Professional Discipline 17th May 2017

A Scottish twist to Enemuwe

Another appeal looks at the appropriateness of admitting in evidence previous disciplinary reports or conclusions

The recent appeal of Tordoka Georgiva v NMC Scotland [2017] SC EDIN 12 revisits the vexed issue: when may a regulator rely on the disciplinary report of another body? You would be forgiven for thinking this issue was settled by the recent cases of Enemuwe v NMC [2015] EWHC 2081 and Enemuwe v NMC [2016] EWHC 1881. It appears not.

In Ms Enemuwe’s first case the panel found that she had been rude and had used her mobile phone whilst caring for a patient in labour. The findings were quashed on the basis that an investigation and subsequent report by the Supervisor of Midwives (“SOM”) appeared in the panel’s factual determination, such that there was a risk that the Panel had allowed themselves to be influenced by their knowledge that the allegations had been upheld by the SOM. It was unclear quite how that had occurred, as proper objection had been taken at the time by defence counsel. The court held, confirming the established position, that the panel should have declined to admit any evidence of the outcome of the SOM investigation, and treated its findings as “completely irrelevant”.

At the re-hearing the issue raised its head again. The SOM assisted the panel by providing some of the evidence she had gathered in the course of her investigation, namely the notes of interviews she conducted with witnesses. The court noted [para 30] that the evidence was admissible and “of value” as it helped in determining issues as to reliability and accuracy of some of the witnesses who had previously given statements to the SOM. Indeed, the defence relied on inconsistencies arising to argue that the witnesses concerned were unreliable.

The court made the observation that, second time around, the panel had expressly excluded the SOM’s conclusions.

In Georgiva the curious situation arose where the Court considered an appeal from a decision of the Investigating Committee (“IC”) of the NMC to admit in evidence an earlier (adverse) decision of the Registrar’s Appeal Hearing. That earlier Appeal Hearing had concluded she had deliberately provided false documentation in support of her application to be registered as a midwife – being precisely the issue before the IC for its determination. The IC allowed the Appeal Hearing decision in on the basis that it would attach such weight as was fair and appropriate. On refusing the appeal from the IC (brought on Enemuwe principles), the learned Judge appeared to rely on the fact that the IC had placed little weight on the Appeal Hearing decision because the IC had said it was not clear what information that Panel had had before it. Hence it had not imported that decision into its findings, but rather had conducted its own independent fact finding exercise. This begs the question however that had it been clear what information that earlier Panel had, would that have made a difference? If the panel had attached weight to it, would the appeal have been successful?

Clearly where, as so often, there has been some sort of Trust or other investigation ahead of a FTP case, great care and vigilance needs to be exercised when considering the Regulator’s proposed Hearing Bundle to redact out any reference to conclusions reached. This is clear from the import of Enemuwe. However, where an adverse conclusion of an earlier inquiry does come before a panel, this is unlikely to support an appeal so long as the panel has stated that for whatever reason they have regarded the conclusions as irrelevant or as unclear or otherwise neutered the admission into evidence of such prejudicial material. But the real risk of course is that damage was, or may in fact, have been done.

In Georgiva the IC should never have admitted the conclusions of the earlier Appeal Hearing. The position should be “safety first”: unless there is a good and particular evidential reason that the Regulator can justify, or if the defence wish to highlight inconsistencies in witnesses’ previous accounts, the safest course is to remove any Report and supporting documentation altogether from a panel’s consideration. Enemuwe is ammunition to help support such a “safety first” policy; Georgiva is an unhappy decision that should be left to its own facts.

Andrew Hurst

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