In the recent case of White v the Nursing and Midwifery Council ("NMC") the High Court once again considered the issue of anonymous hearsay evidence and whether the admission of such evidence amounted to a breach of the requirement for fairness in disciplinary proceedings. In proceedings against two nurses before the NMC's fitness to practise panel, three anonymous letters were admitted as part of the evidence against the registrants. The panel's reasoning for allowing these letters in evidence was that since they were not the only evidence, they could be fairly admitted subject to submissions about the weight to be attached to them. A number of the charges in the case were reliant upon separate evidence in the form of documentation and oral witness evidence adduced at the hearing. At the conclusion of the hearing, findings were made against the nurses and they were struck off the register.
The nurses appealed against the decision to strike them off on the basis that the anonymous hearsay evidence should not have been admitted. The Court held that, in accordance with established case law, article 6(1) of the ECHR applied to disciplinary proceedings that might result in the removal of professional status, but that the protections of article 6(3) that applied in criminal proceedings, including the right to examine witnesses, did not apply. The Court referred to the cases of Ogbonna v NMC  EWCA Civ 1216 and R (on the application of Bonhoeffer) v GMC  EWHC 1585 (Admin), which make clear that, notwithstanding the fact that Article 6(3) does not apply to disciplinary proceedings, the evidence that is admissible in disciplinary proceedings is constrained by the requirements of fairness and the opportunity to test that evidence. The Court observed that the general approach to anonymous and hearsay evidence in the UK and European Courts is fact-specific, although such evidence is in principle prohibited in UK criminal proceedings on the basis that it can often only be met with a bare denial and cannot be tested by cross-examination. The Court held that the same principles that apply in prohibiting this type of evidence in criminal proceedings should also be read across to professional disciplinary proceedings. The fact that there was no means to test the anonymous hearsay evidence in the present case meant that the test for fairness could not be satisfied and the panel had erred in admitting this evidence. The findings against the nurses that were solely reliant upon the anonymous hearsay evidence were therefore quashed.
Despite this, the Court held that the striking off orders against the nurses should remain in place and their appeals were dismissed. The Court found that the panel's conclusions on the main charges were expressly reliant upon properly admissible evidence and that the anonymous evidence was only referred to thereafter by the panel as support for findings already made. Therefore the findings on the main charges had not been influenced by the anonymous evidence and those charges should not be quashed and the striking off orders stood.
This case demonstrates how difficult it now is for a regulator to justify reliance upon anonymous hearsay evidence in proceedings against a professional. However, the Court did make the distinction between different types of evidence and specifically observed that, for example, it could be fair to admit hospital records as a contemporaneous record of events even if the author of the notes could not be identified. Whilst it may be that certain types of evidence can be fairly admitted to proceedings without being attributed to a particular author, it appears that this will only be the case in limited circumstances and regulators will need to think carefully about whether there is value in seeking to rely on such evidence given the risks of its admissibility being challenged.