Nurse succeeds in sanction appeal in Hindle v NMC

“The Deputy Judge noted that the appeal raises:

“questions as to the standard of reasoning to be expected of fitness to practise (“FtP”) and other professional discipline tribunals when making findings of fact, on the ‘balance of probabilities’, which turn on witnesses’ conflicting factual narratives. The questions relate to: (a) whether, and in what circumstances, the tribunal is required to set out its assessment of the general credibility and reliability of each witness’s evidence; and (b) the extent of the forensic analysis and reasoning required for making such assessments.”

 He continued:

It was a matter for the NMC, as prosecutor, to decide how many charges to bring against the Appellant and what those charges should be. The decision to bring so many charges inevitably placed a considerable burden on the Panel, which had to make findings in relation to an unusually large number of allegations.

For the reasons set out in this judgment, I have concluded that the reasoning of the Panel in its statement of reasons (the “Reasons”) was inadequate for sustaining the findings that were made against the Appellant. In summary, the Panel did not properly assess the general credibility and reliability of certain witnesses who provided written and oral evidence and were cross-examined, and whose evidence was crucial to determining the charges the Appellant had denied (the “Disputed Conduct Allegations”). Those witnesses – whom I will refer to as the “Key Witnesses” – were the four Complainant Nurses, the Appellant, and one of their colleagues (whom I have, for convenience, referred to as “the Paramedic”).

The Disputed Conduct Allegations that the Panel had to determine turned very substantially on factual accounts given by the Complainant Nurses which were contradicted by the Appellant and, in relation to some allegations, by the Paramedic. The differences between the Key Witnesses’ respective factual accounts were unlikely to be explicable by mere differences in individuals’ honest recollections or perceptions of events. Both the Appellant and the Paramedic asserted in their evidence that the Complainant Nurses had “fabricated” their versions of events as part of a concerted campaign to undermine the Appellant and drive her out from her job as their manager.

Against this background, a vital element of the Panel’s task in these proceedings was to decide which witnesses’ accounts could be relied on in relation to the various disputed allegations. In my judgment, this required the Panel to take into account, as a relevant consideration, the extent to which each of the Key Witnesses was generally credible and reliable, and whether there were factors present which should cause her or his evidence to be viewed with caution or circumspection. The Panel had also to explain, in respect of the disputed allegations it found proved, why it had preferred the account given by one or more of the Complainant Nurses to the contrary account given by the Appellant and, where relevant, by the Paramedic. It was not sufficient for the Panel merely to set out the witnesses’ respective accounts, and to then say, “We prefer the evidence of [name of witness(es)] and therefore find this charge proved”. The Applicant was entitled to know why her evidence on the relevant matter had not been relied upon by the Panel, and such reasons as were given in that regard had to be rational and based on weighing up all legally relevant considerations. Such considerations ought to have included the Panel’s assessment of the relevant witnesses’ general credibility and reliability, taking all relevant factors into account.

Of course, witnesses’ factual accounts may be honest but mistaken; and a witness may, for a variety of reasons, tell some lies, whilst being truthful about other matters. The fact that a witness has been found to have given an incorrect account, or even to have deliberately lied, in relation to one matter does not mean that everything the witness says is untrue or to be disregarded.

But it does not follow that forming an assessment of the general credibility and reliability of witnesses’ evidence is unimportant or irrelevant. On the contrary, such an assessment will often be an important input to the tribunal properly evaluating whether a burden of proof has been satisfied in respect of matters on which there is a conflict between the accounts of different witnesses. If one part of a witness’s evidence appears to be untrue, then this may properly be taken into account when the tribunal is considering whether, and to what degree, it can place reliance on another part of her evidence. This is common sense. It will often be appropriate for the tribunal also to consider why the witness’s evidence was false or incorrect on a certain matter, as this may be relevant to the extent to which the witness’s evidence generally, or in relation to certain other matters, being viewed with caution. For example, the tribunal may discern that the witness has a tendency to rush to draw negative inferences or conclusions about a particular person or group of persons, or that she appears to have been motivated by an objective or desire to achieve a particular self-serving result.

In my judgment, the Panel’s approach of considering the evidence relating to each charge against the Applicant on an individual charge-by-charge basis, effectively in silos, has led it into error. It has, for example, failed to consider whether the fact that the Complainant Nurses’ factual accounts in relation to one allegation was found (by reason of those accounts having been contradicted by CCTV evidence) to be incorrect should affect the degree of confidence it should place on those witnesses’ assertions in support of other allegations. It has also failed to properly evaluate the contextual evidence relating to the Complainant Nurses’ behaviour prior to, and during their employer’s investigation of, their joint complaint submission, which was relevant to a proper assessment of the degree to which the Panel could have confidence in the truthfulness and reliability of their evidence.

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