Do Unrepresented Registrants Get a Fair Deal?
As a doctor, nurse or midwife due to appear before one’s professional body, you might be forgiven for expecting your hearing to proceed fairly regardless of whether you are present or not.
It isn’t unusual for registrants to exercise their right not to appear before a tribunal of the General Medical Council (GMC) or Nursing and Midwifery Council (NMC) – some registrants are embarrassed; others see the proceedings as a fait accompli; whilst others, in light of possible loss of employment, question the value of the cost of travel and accommodation. Any of these perfectly understandable views might be all the more justified in light of the fact that registrants are informed they are able to submit written representations for consideration by the tribunal.
NMC Lawyer Insight
One might be somewhat dismayed to discover, therefore, that as recently as 2014 in the matter of Thorneycroft v NMC, the NMC reached the conclusion that a registered nurse’s fitness to practice was impaired by virtue of misconduct and that he ought to be suspended for 12 months. This was predominantly on the basis of evidence which was allowed to be simply read to the Committee, without challenge, despite detailed written representations having been submitted by the registrant disputing the content of the statements.
The law relating to the admissibility of this type of evidence (hearsay) has evolved in recent years by way of a number of rulings in the High Court. Whilst allowing the admission of such evidence has repeatedly been ratified, subject to the adoption of a ‘fairness’ test, the Court has also made clear that if the relevant statement or statements provide the ‘sole and exclusive‘ evidence against the registrant, then the admissibility of such evidence without the possibility of challenge will almost inevitably be unfair – and therefore ought not to be allowed.
Fortunately the failings of the Conduct and Competence Committee in Thorneycroft v NMC were exposed by the High Court during an appeal that ultimately led to the decision being overturned. The Court found that the NMC had erred in allowing the evidence of two complainants to be admitted unchallenged, in circumstances in which their statements did amount to the sole and exclusive evidence against an unrepresented registrant, notwithstanding the fact that it was made clear in written representations that the evidence was vehemently disputed.
Of equal concern, the Committee also failed to consider the entirety of the registrant’s written representations, instead allowing them to be redacted by the NMC’s representative and Legal Advisor, on the basis that they were not relevant. The High Court stated it was the role of the Committee, not the Legal Advisor or the NMC’s representative, to determine what material was relevant or irrelevant.
Fortunately, Thorneycroft had the wherewithal to challenge the decision of the Committee in the High Court. How many others would have suffered, or might suffer injustice in similar terms without the benefit of prompt advice at the outset, or on appeal?