Analysing the regulator’s evidence (and challenging hearsay)

To challenge the regulator’s evidence, read the bundle systematically, map every document and statement to the specific allegation it supports, classify each item as direct, circumstantial, opinion or hearsay, and record what it actually proves. Hearsay is admissible in fitness to practise hearings — but it can be excluded or given minimal weight where admitting it would be unfair. This page shows you how, step by step.

This is a core stage in the free FtP Navigator. If you have just come through an interim order hearing, this is where the substantive defence work begins. Both working templates for this stage are free on this site: the evidence analysis schedule and the hearsay objection letter and skeleton.

What standard of proof applies at an FtP hearing?

The regulator must prove the facts to the civil standard — the balance of probabilities — and the burden of proof stays on the regulator throughout. In plain terms, the panel asks whether it is more likely than not that each incident occurred; numerically, the regulator only has to make the panel 51% sure.

That is a low bar, which is exactly why disciplined evidence analysis matters. The seriousness of an allegation does not raise the standard of proof, but it does go to the cogency of the evidence required to meet it.

You do not have to prove anything. Your task at this stage is not to write your response — it is to understand, line by line, what the regulator is actually relying on, where it is strong, where it is weak, and where it is missing.

What rules of evidence apply in fitness to practise proceedings?

FtP panels are not bound by the strict rules of evidence used in criminal or civil courts: evidence is admissible if it is relevant and if admitting it is fair. Rule 31 of the Nursing and Midwifery Council (Fitness to Practise) Rules Order of Council 2004 puts it this way: subject only to the requirements of relevance and fairness, a practice committee “may admit oral, documentary or other evidence, whether or not such evidence would be admissible in civil proceedings”. The GMC’s rules (FTPR Rule 34) and the equivalent HCPC, GDC, GPhC and Social Work England provisions take the same approach.

Relevance means the evidence must tend to prove an element of the charge. Material that does not go to the charge but is prejudicial — a witness adding “I also hear that she likes a drink prior to coming to work” to a medication-error case — should be challenged and, where appropriate, redacted.

Fairness is the second gateway, and it has real teeth. In NMC v Ogbonna [2010] EWCA Civ 1216 the Court of Appeal made clear that fairness governs whether a disputed hearsay statement should be admitted at all — the panel cannot simply admit everything and adjust the weight later.

How do I read the bundle like a defence lawyer?

Read the bundle five times, each pass looking for something different — do not attempt everything in one sitting. The five-pass method turns a daunting stack of paper into a structured picture of the case against you.

• Pass 1 — Orientation. Who, what, when, where. Map the people, dates and incidents.
• Pass 2 — Allegation mapping. For each allegation, mark every page that touches it.
• Pass 3 — Source. Who created each document, when, and for what purpose?
• Pass 4 — Inconsistencies. Where do witness accounts diverge from each other or from the contemporaneous records?
• Pass 5 — Gaps. What is missing that you would expect to see — and that should exist somewhere?

As you read, flag the dates of every event and every document’s creation; witnesses who appear in multiple statements; phrases such as “I recall”, “I believe” and “it is my view” (opinion, not fact); statements drafted long after the events with no contemporaneous note; and documents the regulator quotes from but has not exhibited in full.

What is an evidence analysis schedule?

An evidence analysis schedule is a table — one row per allegation — recording the allegation verbatim, every piece of evidence relied on for it, its type, what it actually proves on a strict reading, your position, and the gaps. It is the single most important tool at this stage, and everything later in your defence depends on it. Our free evidence analysis schedule template gives you the complete structure to copy and use.

Regulators’ allegations are typically drafted from a complainant’s account. When the schedule is built carefully, the underlying records frequently fail to support the allegation as drafted, or support only a much narrower version of it — and a case can collapse on that alone.

Chart the regulator’s case, then chart your own alongside it. That is classic case analysis: it pinpoints the key factual disputes, exposes uncorroborated or inadmissible evidence, and shapes the questions you will later put to witnesses.

How do I test the strength of each piece of evidence?

Classify every item as direct, circumstantial, opinion or hearsay, because each type fails in predictable ways. The table below summarises the typical weaknesses and how to challenge them.

Evidence type	Typical weaknesses	How to challenge
Direct evidence (witness saw, heard or did the thing)	Witness not actually positioned to observe; account first given long after events; inconsistency with records or other witnesses; motive (grievance, dismissal, ongoing dispute)	Test position, timing, consistency and motive in a structured credibility note; put contradictory contemporaneous records against the account
Circumstantial evidence (fact inferred from other facts)	The inference relied on is not the only reasonable one available	Identify the alternative reasonable inference; if one exists, the regulator cannot rely on the evidence to prove the allegation
Opinion evidence	Witness not qualified to give the opinion (e.g. a healthcare assistant opining on medication administration); opinion dressed up as fact; opinion unsupported by the underlying facts described	Challenge the witness’s qualification; argue that if the regulator holds a witness out as an expert, they must be suitably qualified
Hearsay (out-of-court statement relied on for its truth)	Untested by cross-examination; sole or decisive with no good reason for absence; multiple, anonymous or reconstructed hearsay	Apply the three-stage test below; object in writing as a preliminary issue; alternatively seek minimal weight with reasons recorded

Can hearsay evidence be used in fitness to practise hearings?

Yes — hearsay is admissible in FtP proceedings, but it is not unlimited, and disputed hearsay can be excluded where admitting it would be unfair. Hearsay is best defined by s.114(1) of the Criminal Justice Act 2003 as a “statement, not made in oral evidence, that is relied on as evidence of a matter in it”.

It is the single most common feature of FtP bundles: a statement read because the witness is not called; a witness repeating what a colleague told them; an investigator’s note of a complainant’s interview; a complaint letter from an absent complainant. If you agree the content, a read statement may be uncontroversial. If it is disputed, the witness should attend for cross-examination.

The established principle is that a panel must not admit hearsay that is the sole and decisive evidence of a serious allegation unless there is a good reason for the witness’s non-attendance and sufficient counterbalancing measures to protect your right to a fair hearing. Ogbonna shows the principle in action: the NMC sought to rely on an untested statement as the sole evidence for a career-ending charge, and the Court of Appeal held that fairness demanded the maker be available for cross-examination. In R (Bonhoeffer) v General Medical Council [2011] EWHC 1585 (Admin), the court confirmed that the gravity of the potential outcome is an important factor — the more serious the consequences, the stronger your claim to test the evidence.

Can anonymous complaints be used against me?

Anonymous hearsay is the weakest category of evidence, because there is no means of testing the source’s reliability at all — and you should strongly resist its admission for any contested allegation. Where an anonymous complaint reaches the panel through an investigator, every safeguard the fairness test depends on is missing.

The same logic applies to multiple hearsay (“X told me that Y told them…”), where each link in the chain compounds unreliability, and to reconstructed hearsay — a statement composed by an investigator from notes and signed off months later. Probe the drafting history and the gap between event and statement.

How do I object to hearsay evidence?

Object early, in writing, with reasons — and ask the panel to rule on admissibility as a preliminary issue before live evidence starts. The mechanics vary by regulator, but the structure is always the same. Our free hearsay objection template contains both the letter and the skeleton argument.

• Identify each piece of hearsay precisely: document, statement, paragraph, page.
• Identify the allegation it goes to and why the regulator relies on it.
• Apply the three-stage test in writing: sole or decisive? good reason for non-attendance? sufficient counterbalancing measures?
• Test the reason given for absence. “Unwilling to attend”, “no longer at the trust”, “cannot be traced” — ask for a statement from the regulator’s officer setting out what enquiries were made, when, by whom and with what response; where fear is asserted, ask for its evidence base; where unwillingness is asserted, ask whether a witness summons has been considered.
• Argue what counterbalancing measures are missing: no independent corroboration, no contemporaneous documentation, no opportunity at any stage to test the account.
• In the alternative, ask the panel to admit the evidence but attach minimal weight, with reasons recorded — and reserve all positions for closing submissions.

Checklist: working through a new bundle

• Confirm the exact wording of every allegation before reading anything else
• Complete the five-pass read, marking up dates, sources, inconsistencies and gaps
• Build the evidence analysis schedule — one row per allegation, no blank columns (“none” or “to be obtained” makes the gap visible)
• Classify every item: direct, circumstantial, opinion or hearsay
• Complete the hearsay sub-schedule and apply the three-stage test to each item
• Draft a structured credibility note for each regulator witness (opportunity, contemporaneity, consistency, motivation, bias, memory)
• List documents you would expect to exist but have not been given — interview notes, draft statements, internal investigation reports, incident-report entries, rotas, audit trails, training records
• Build a working chronology with conflicts flagged
• Only then start drafting your response — never before the schedule is complete

If any allegation involves dishonesty, sexual misconduct, criminal proceedings or vulnerable patients, speak to our fitness to practise solicitors before you respond to anything.

Free templates in this section

Evidence Analysis Schedule — one row per allegation: verbatim allegation, evidence relied on, evidence type, what it actually proves, your position, and gaps — plus a hearsay sub-schedule and witness credibility notes. Free to read and copy on the page.

Hearsay Objection — letter and skeleton — a letter to the regulator objecting to identified hearsay before the hearing, and a skeleton argument applying the three-stage test, adaptable across NMC, GMC, GDC, HCPC, GPhC and Social Work England. Free to read and copy on the page.

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This page is general information, not legal advice. No liability is accepted for reliance on it. Rules and guidance change — always check the current position or take specialist advice.