Reference: HEA-3

Last Updated 28/07/2017



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During the investigation of a nurse or midwife’s case, we will provide them with the evidence we have obtained. This may include ‘unused material’, which is evidence we do not intend to rely on. We will disclose this information if it could undermine the case against the nurse or midwife or support their case. This makes sure that the process is fair and that the nurse or midwife is given sufficient information to properly respond to the allegations made against them. We will not disclose any material that is subject to legal privilege.

Obtaining evidence for the nurse or midwife

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The nurse or midwife may request that we get evidence or documents for them that support their case. This is sometimes referred to as requesting disclosure.

This is because, as a regulatory body, we have the power to request the disclosure of documents from organisations or people1 that the nurse or midwife may not be able to get themselves. When the nurse or midwife requests that we obtain documents for them, our legal team will consider whether the request meets the criteria for disclosure.

Decision making criteria for obtaining evidence

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Although there is no duty on us to gather evidence requested by a nurse or midwife, the nurse or midwife has a right to a fair hearing and we will consider what is relevant, essential, and fair to obtain.2

We apply the following three criteria to our consideration.

  • Is the material requested relevant and essential? For example, a request for patient notes over a month period may not be relevant or essential if the allegation only concerns a medication error that occurred on one day. The nurse or midwife may need to explain why the requested material is essential for us to get.
  • What steps has the nurse or midwife taken to obtain the material themselves? The nurse or midwife should have made attempts to get the information themselves before requesting us to do so. They should also provide us with the contact details of who to contact for us to make the request.
  • Are we better placed to obtain this material from the organisation or person that holds it? Because we have a statutory power to request information for the purposes of our investigation, we may be better placed to request the material than an individual nurse or midwife.

Information we do not obtain for the nurse or midwife

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We do not obtain witness statements on the nurse or midwife’s behalf. If we have already obtained a statement from a witness, we will disclose it to the nurse or midwife if it undermines the case against them. However, we will not contact a witness to take a statement on the nurse or midwife’s behalf. If the nurse or midwife believes that a witness can support their case, they should contact the witness and arrange a statement or their attendance at a hearing.

1 Article 25(1) of the Nursing and Midwifery Order 2001

2 R (Johnson and Maggs) v Professional Conduct Committee of the Nursing and Midwifery Council [2008] EWHC (Admin)