Evidence

Overview

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One of the Fitness to Practise Committee’s (FtPC) most important functions is to resolve disputes between the NMC and the nurse, midwife or nursing associate. Unless the nurse, midwife or nursing associate admits the charges against them, or agrees with our evidence, the panel will need to decide what happened.

This will include resolving whether a contextual factor was present as a matter of fact if it is disputed, and if the contextual factor would have a material impact on the outcome of the case. Panels resolve disputes using the evidence that is put before them.

If we can’t agree any part of our case, we will attempt to prove it by putting evidence before the panel. The nurse, midwife or nursing associate is also able to put evidence before the panel in support of their position.

Admissibility of evidence

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The only evidence that may be provided to the panel is evidence which is relevant to one of the issues the panel needs to decide. It also needs to be fair to the people involved in the case, including patients, family members and loved ones, the nurse, midwife or nursing associate and us as a regulator, that the panel considers that evidence.

Evidence may be unfair where it cannot be challenged.

For example, this could be where the person who gives the evidence cannot be questioned, where it relates to a subjective opinion as opposed to an objective (although possibly disputed) fact.

Findings of other organisations or bodies

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Often, another organisation or body¹ will have carried out some form of investigation into the matters being considered by the panel. The underlying evidence relied on by another organisation or body is admissible and can be presented to a panel (and form part of the bundle) if relevant to the allegations or the wider background.²

The weight that a panel will give to this evidence, which can include statements of fact and expressions of expert opinion, will be up to the FtP committee to decide using its expertise and experience as an independent panel.

The findings of other bodies may be admissible as evidence before a panel.³ When considering whether to admit evidence of findings made by another body, the panel will need to address the following:

1. What is the relevance of those findings to the issues it is considering?
2. Do the findings need to be admitted, given the underlying evidence itself is likely to be relevant and admissible?

The fact that another body has found certain matters proved does not mean that the panel can adopt those findings. The panel must allow the nurse, midwife or nursing associate to argue their case and rely on their own evidence. The panel must reach its own view and own conclusions having regarded all the relevant evidence.

The panel must not use the findings of another body as a substitute for reaching its own decision on the issues before it. The judgment or findings of another decision-maker on the issues before the panel are not relevant to the panel’s decision-making. It may also be unfair for the judgments to significantly influence the tribunal's mind on the crucial issues before it for the same reasons.⁴

How evidence is given to a panel

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Evidence can be given to a panel in several different ways. What is important is that the panel can fairly consider the case before them.

At a meeting, evidence is in the form of written statements and documents. At a hearing, people might speak to the panel to give evidence and to answer any questions that we, the nurse, midwife, nursing associate or the panel may have. This will usually happen if there is a dispute over the facts in the case.

Our rules don’t dictate how evidence should be given and people can give evidence to a panel in a number of ways. This includes attending a hearing centre, over video-link or by telephone.

A decision to hold a hearing at a hearings centre does not mean that a person needs to attend to give evidence ‘in-person’. How a person gives evidence will be a separate decision.

In most circumstances, there is no disadvantage in someone giving evidence by video-link compared to appearing in the same room as the panel⁵. In some cases it may be better to give evidence by video-link rather than over the telephone, although telephone evidence may still be considered a fair way for the witness to give their evidence.

Where the NMC is calling someone to give evidence, we’ll consider what’s fair and practical for the hearing in deciding how they will give their evidence. This includes if they have the right technology and any personal circumstances that might prevent their participation at the hearing centre or remotely.

We’ll inform the nurse, midwife or nursing associate who is subject to the proceedings (and their representative) in advance of the hearing how it is intended our witnesses will give evidence.

If the nurse, midwife, nursing associate or their representative object to how it is intended a witness will give evidence, we’ll try to resolve any disagreements in advance of the hearing. We'll do this by arranging a preliminary meeting as soon as possible so a chair of the FtPC can decide how that witness should attend.⁶

The chair will hear from both sides, and it may be relevant for them to consider our guidance on the demeanour of witnesses. They’ll also consider what benefit there might be in requiring a witness to attend our hearings centre, bearing in mind any concerns the witness may have about this.

Where the nurse, midwife or nursing associate is calling people to give evidence at the hearing, we’ll ask them to give us some information about those witnesses which will include how they’d like to give their evidence.

If we object to the way it’s proposed that someone will give evidence, we’ll arrange a preliminary meeting so that a Chair of the FtPC can give directions about how they should participate.

When the substantive hearing starts, we’ll let the panel know how each witness will give their evidence. We won’t make a formal application, so the panel won’t need to make a decision about how people will give evidence at the hearing.

If, however, there is an objection about how someone gives evidence and we haven't been able to hold a preliminary meeting before the hearing, the panel may need to decide how that particular individual will give their evidence.

If during the hearing, the panel or either side think that the way someone is giving evidence is causing a risk of unfairness, the panel can ask the individual to give evidence in a different way.

Who decides what evidence is admissible

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The panel making decisions about the issues in the case will also decide what evidence is admissible.

This will usually mean that we provide that evidence to the panel. As professional adjudicators, we consider that if the panel members decide the evidence is actually inadmissible, they can put the information out of their minds when making a decision about what happened.⁷

Weight

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When considering how disputes of fact are decided by the panel, a useful analogy is a set of weighing scales. Into one pan of the scales goes all the evidence that’s supportive of a fact, and into the other goes all the evidence that’s unsupportive. When we talk about the ‘weight’ of evidence, we mean how far a piece of evidence moves the scales.

Some evidence may be obviously reliable and is therefore likely to carry substantial weight, for example documents created in the course of business, official records, audio/visual recordings.

The weight of other evidence may depend on what the panel decides about whether a witness or piece of evidence is credible. In those circumstances the panel will need to carefully consider issues like:

• whether the evidence is ‘inherently plausible’
• whether it’s supported by other evidence
• consistency with previous accounts
• how likely the person giving the evidence is to be mistaken

Burden of Proof

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Where facts relating to an allegation are in dispute (including those relating to context), the burden of proving such facts rests on the NMC.⁸ The Tribunal’s task is to assess the evidence in the round and decide whether the NMC has shown the fact was more likely to have happened than not.

What does the panel do if the evidence on the weighing scales in relation to an important disputed fact is evenly balanced?

In these circumstances the panel can find in favour of the nurse, midwife or nursing associate’s position on the disputed fact without calling into question the evidence or credibility of the person giving evidence on behalf of the NMC. This is because in situations where material facts are in dispute, the NMC bears the burden of proving that their position is the correct one – this can be referred to as the “burden of proof”.

Credibility

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There is a considerable body of authority setting out the lessons of experience and of science in relation to decisions on facts.⁹

When assessing credibility panels should not rely on the appearance or behaviour of a person giving oral evidence (‘demeanour’). One of the most important qualities expected of a decision-maker is that they will try to avoid being influenced by personal biases and prejudices in their decision-making.

Panels should not attempt to assess whether someone’s evidence is truthful from the manner in which it is given, such as from their appearance, tone or other aspects of their behaviour in answering questions.

A person may have confidence in his or her recollection and be honest. However, that does not mean that their recollection provides any reliable guide to the truth on this basis alone.

We believe memories to be more reliable than they are. Two common errors are to suppose (1) that the stronger and more vivid the recollection, the more likely it is to be accurate; (2) the more confident another person is in their recollection, the more likely it is to be accurate.

Memories are fluid and malleable and can be subject to powerful biases. Events can come to be recalled as memories which did not happen at all or which happened to somebody else. The older the events, the more important it is to hold fast to these principles of reasoning.

The only objective and reliable approach is to focus on the content of a person’s evidence. Panel’s should consider whether evidence is plausible and consistent with objectively verifiable evidence (including evidence of what the witness has said on other occasions) and with known or probable facts. Panels should start with the objective facts as shown by authentic, contemporaneous documents, independent of the person giving evidence, and use oral evidence to test it.¹⁰

Hearsay

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In general terms, hearsay is any evidence which is not given orally by a witness with direct experience of the matter they are giving evidence about, and which is being given to prove an issue in dispute.

Evidence given by telephone and video link is not hearsay evidence. To the extent that there are limitations on evidence given by remote means that is a matter of weight (see above).

Most commonly, hearsay evidence will involve a witness reporting what they were told about something in issue by another individual who is not themselves a witness, or a statement being placed before a panel without the maker of the statement giving oral evidence.

Hearsay evidence is not in-admissible just because it is hearsay in our proceedings. However there may be circumstances in which it would not be fair to admit it, for example where it is the sole and decisive evidence in respect of a serious charge and it isn’t ‘demonstrably reliable’ and not capable of being tested.¹¹

Hearsay statements will usually carry less weight than oral evidence because it cannot be tested. Hearsay evidence may also be inadmissible where the weight which could be given to it in the circumstances of the case is zero, even where there is other evidence that could ‘corroborate’ (or support) it.¹² Although it’s not possible to provide a complete list of situations where this could happen, one example is where the evidence of a crucial witness is hearsay, and the fact that the nurse, midwife or nursing associate can’t challenge it is so unfair that nothing else in the hearing process can avoid the unfairness.

No case to answer

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There may be situations where, at the close of our case, the nurse, midwife or nursing associate feels that we just haven’t put forward enough evidence to mean they still have a case to answer.

There will be no case for a nurse, midwife or nursing associate to answer where, at the close of our case, there is:

1. no evidence
2. some evidence, but evidence which, when taken at its highest, could not properly result in a fact being found proved against the nurse, midwife or nursing associate, or the nurse, midwife or nursing associate’s fitness to practise being found to be impaired.

The question of whether there is a case to answer turns entirely on our evidence. Evidence which might form part of the nurse, midwife or nursing associate’s case will not be taken in to account.

Where the strength or weakness of our evidence depends on the weight it should be given, a submission that there is no case to answer is likely to fail. That issue is best considered after all the evidence has been heard.¹³

When should panels resolve disputes regarding context

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As mentioned above there will be times when a FtPC will need to resolve whether a disputed contextual factor was present or not, and make a factual finding about that.

This will only be necessary if the contextual factor would have a material impact on the outcome of the case. For more information about our approach to context please see our guidance on taking account of context.

So at what stage of a hearing should a panel resolve whether a contextual factor is present? This is likely to be something that panels will need to decide on a case-by-case basis, and panels will need to be flexible in their approach.

Panels have a wide discretion under our rules to determine how a hearing is conducted, and they will need to use that discretion to decide when they think the dispute should be resolved.¹⁴

In some circumstances they might decide it is appropriate to determine the issue at the facts stage, or alternatively they may decide that it is more appropriate to decide the issue at the impairment stage. The decision on when to resolve a disputed contextual factor could depend on when the contextual factor is raised during a hearing.

Prior to the hearing, we'll have reviewed the case and tried to work with the nurse, midwife or nursing associate to clarify the important issues in the case. The case presenter should usually be able to assist the panel with whether a material contextual factor is in dispute and the most appropriate point to resolve it.

When the panel does resolve a dispute in relation to context they will need to make it clear in their reasons what the contextual factor was that they resolved, and how they reached their decision.

Further evidence

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Our overarching objective is the protection of the public. Because of this, the panel has a responsibility to ask us to obtain further evidence if they are concerned that there are gaps in the evidence which will prevent them from properly performing their function.¹⁵