Crucible Counsel win NMC case following successful hearsay argument.

Laura Herbert and Ben Rowe represented two registrants who faced accusations of bullying, which dated back many years. The nurses had already been investigated by the NMC (following an initial report in 2017) on two separate occasions and it was found that they had no case to answer – of note, the complainant nurse never finalised a witness statement with the NMC. The complainant, however, succeeded in an employment tribunal against her employer and this caused the NMC to reopen the investigation in 2021 – some six years after the original complaints had been made. Sadly, shortly after making a further complaint, the nurse who made the allegations passed away.

The NMC continued to investigate and, after further delays, the case was heard before the NMC Fitness to Practise Committee in February 2025 – ten years after the original complaints.

The vast majority of the NMC case, and all of the key evidence, consisted of hearsay evidence (this is evidence where the original maker of the statement or evidence is not able to give the evidence themselves – in this case, because the complainant had died). This included evidence such as a statement and exhibits prepared for the employment tribunal before the complainant died; the employment tribunal’s judgment; and extracts of notes made by the complainant in 2015/6. Ben and Laura argued that it would be unfair to allow the NMC to use this evidence in the hearing as their clients would not be able to question or test the evidence, and because it was effectively the sole and decisive evidence of the allegations (relying on the case of Thorneycroft v NMC from 2014). They also objected to the inclusion of material from a separate tribunal, suggesting that the NMC panel should make its own, fresh, determination and not be influenced by the findings of another court.

The panel accepted Laura and Ben’s submissions in full and excluded all of the hearsay evidence in the case. As a result, the NMC was forced to concede that they were unable to prove the case with the evidence that remained, and so they offered no evidence. Both nurses had all matters against them dismissed and they are now able to continue their practices with a clean record, having had to wait ten years.

Ben and Laura were instructed by Anahita Syed and Rachael Davis of the Royal College of Nursing.