Evidence

Reference: DMA-5

Last Updated 04/01/2019

Overview

Back to top

One of the Fitness to Practise Committee’s most important functions is to resolve disputes between the NMC and the nurse or midwife. Unless the nurse or midwife admits the charges against them, or agrees with our evidence, the panel will need to decide what happened. They do this 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 or midwife is also able to put evidence before the panel in support of their position.

Admissibility of evidence

Back to top

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 or midwife, 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, or where it relates to decisions reached by other tribunals or fact-finding organisations.

Who decides what evidence is admissible

Back to top

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.1

Weight

Back to top

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

Credibility of witnesses

Back to top

When considering the credibility of witnesses, the panel will keep in mind that minor inconsistencies can generally be explained by the effect the passage of time has on memory. The demeanour of a witness is actually often the least useful barometer by which to determine whether their account is accurate.2

It’s also important to remember that if a witness is giving evidence about what did and did not happen, the fact that they may not be a clinical specialist, or don’t have healthcare expertise, will not make them less able to remember what happened. It also won’t mean that their evidence about what happened will be of less value than evidence given by a clinical or healthcare specialist.

Hearsay

Back to top

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.3

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.4 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 or midwife can’t challenge it is so unfair that nothing else in the hearing process can avoid the unfairness.

No case to answer

Back to top

There may be situations where, at the close of our case, the nurse or midwife 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 of midwife 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 or midwife, or the nurse or midwife’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 or midwife’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.5 

Further evidence

Back to top

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.

1 For an example of the Court of Appeal commenting on a panel’s ability to do this, see R. (on the application of Chief Constable of Thames Valley) v Police Appeals Tribunal [2016] EWCA Civ 1315
2 See for example, R v Turnbull [1977] QB 224; Suddock v NMC [2015] EWHC 3612 (Admin); and R (on the application of SS (Sri Lanka) v Secretary of State for the Home Department [2018] EWCA Civ 1391:

[36] … it has increasingly been recognised that it is usually unreliable and often dangerous to draw a conclusion from a witness's demeanour as to the likelihood that the witness is telling the truth. The reasons for this were explained by MacKenna J…:

"I question whether the respect given to our findings of fact based on the demeanour of the witnesses is always deserved. I doubt my own ability, and sometimes that of other judges, to discern from a witness's demeanour, or the tone of his voice, whether he is telling the truth. He speaks hesitantly. Is that the mark of a cautious man, whose statements are for that reason to be respected, or is he taking time to fabricate? Is the emphatic witness putting on an act to deceive me, or is he speaking from the fullness of his heart, knowing that he is right? Is he likely to be more truthful if he looks me straight in the face than if he casts his eyes on the ground perhaps from shyness or a natural timidity? For my part I rely on these considerations as little as I can help."

3 Thorneycroft v Nursing and Midwifery Council [2014] EWHC 1565 (Admin)
4 The Professional Standards Authority v (1) The Nursing and Midwifery Council (2) Jozi [2015] EWHC 764 (Admin)
5 R v Galbraith [1981] 1 WLR 1039
6 The Professional Standards Authority v (1) The Nursing and Midwifery Council (2) Jozi [2015] EWHC 764 (Admin)

Want to download and print whole sections of this FtP library? Visit the downloads page.