Author: Matthew Cassells, Senior Lawyer, Nursing and Midwifery Council (NMC)

The admissibility of hearsay evidence in regulatory proceedings has attracted a large amount of judicial consideration since Nursing and Midwifery Council v Ogbonna [2010] EWCA Civ 1216.

Thorneycroft v Nursing and Midwifery Council [2014] EWHC 1565 (Admin) is generally considered to distil the essential principles. It is routinely cited by tribunals and those who advise them as providing authoritative guidance on the matters a panel should consider when ruling on admissibility.

Mansaray affirms the continuing importance of Thorneycroft, provides a warning to tribunals about the need to properly reflect the test set out therein in their reasons, clarifies the proper approach to weight and provides practical guidance on how and when the admissibility of hearsay evidence should be considered.

The facts

Mansaray concerned an inappropriate relationship between a nurse (Mr Mansaray) and a patient (Patient A).

In May 2018, Patient A was detained under Section 3 of the Mental Health Act 1983. Mr Mansaray was assigned to Patient A as his key worker.

On 27/28 July 2018, Patient A was discharged. It became apparent that, post discharge, Mr Mansaray had a relationship with Patient A which was in breach of professional boundaries. Telephone records made it clear beyond any doubt that Mr Mansaray and Patient A were in regular contact and location data from Patient A’s phone strongly suggested that they had several in-person meetings. 

Mr Mansaray accepted that he had a relationship with Patient A which breached professional boundaries but denied anything more untoward. His case was either that he was engaging with Patient A out of concern for his welfare or as part of research he was undertaking into drug addiction.

Patient A was interviewed as part of the NMC’s investigation. He disclosed that Mr Mansaray had begun a sexual relationship with him whilst he was an in-patient and that this had continued following his discharge.

After making this disclosure, Patient A’s health deteriorated. He took his own life six months later.

As a result, Patient A’s account of the sexual relationship was hearsay.

When the Fitness to Practise Committee (FtPC) came to consider the case they decided to admit Patient A’s hearsay account, preferred his evidence to that of Mr Mansaray and, given the serious nature of the conduct found proved, struck Mr Mansaray’s name from the nursing register. 

The appeal

Mr Mansaray appealed against the panel’s decision on the basis that either Patient A’s hearsay account should not have been admitted or, if it could be admitted, that it could not bear the weight necessary to find the disputed charges in respect of the sexual relationship proved. An ancillary point was made about whether the FtPC having been provided with Patient A’s evidence before determining its admissibility was a procedural irregularity.

The Court found that there is ‘no blanket prohibition on hearsay evidence, but it requires a consideration of the evidence carefully in line with the Thorneycroft principles, the quality of the evidence, how it is obtained and the safeguards in place to minimise the handicap to the appellant through the inability to cross-examine the maker of the statement’.

The FtPC was criticised for its ‘infelicitous wording’ in purporting to admit Patient A’s evidence because it was not ‘so unreliable that it should not be admitted into evidence’. However, despite the recommendation that ‘in future, panels use the correct wording, not an inaccurate paraphrase’ the Court accepted that, when their decision was viewed as a whole, it was clear that the panel had carefully considered Patient A’s account and the other evidence in the case and properly concluded that his account was ‘demonstrably reliable and in some respects was capable of being tested by other evidence’.

The Court also clarified how tribunals should approach the question of weight when considering admissibility of hearsay.

In the case of Thorneycroft, it was said that ‘The fact that the absence of the witness can be reflected in the weight to be attached to their evidence is a factor to weigh in the balance, but it will not always be a sufficient answer to the objection to admissibility’.  Since then, there has been some uncertainty about whether it is ever appropriate for a tribunal to consider weight as part of their consideration of admissibility. That question has now been resolved.

As the Court made clear, ‘[i]n order to assess the degree of demonstrable reliability and the capability of it being tested in order to decide whether to admit it, it is to some extent necessary to weigh the evidence itself. That is a separate exercise to the weighing of the evidence and testing it against all the other evidence, including oral witness evidence and cross-examination of all the other witnesses, in order to make findings of fact’.

The question of whether the FtPC having been provided with Patient A’s evidence before determining its admissibility was a procedural irregularity was answered:

‘The difficulty with the appellant's challenge is that the Panel had to read the hearsay evidence in order to consider its admissibility. It would have been impossible for them to assess its admissibility if they had not read it… It was also necessary for them to have regard to some of the other evidence in order to consider its reliability and consider the existence of any corroborative or circumstantial or other supporting evidence…Therefore, the mere fact that the pages were contained in the bundle, as opposed to being kept separate until after the determination of the admissibility point, does not amount to a procedural error’.

It is hoped this will put to rest the practice of submitting that admissibility should be decided in a vacuum.

The main takeaways

Whilst Thorneycroft will continue to be the ‘go to’ case when the admissibility of hearsay evidence is considered, Mansaray represents an important contribution. In particular, Mansaray:

1. Is, to the author’s knowledge, the first regulatory case to consider the admissibility of hearsay evidence where the absence of the witness is a result of their death.
2. Clarifies how panels should approach the question of weight when considering the admissibility of hearsay evidence.
3. Makes it clear that panels considering admissibility must read the evidence whose admissibility they are to determine and consider it in the context of all the other evidence in the case.