Judgment date: 31 October 2012

Finding dishonest when it has not been pleaded.

The Appellant was a Midwife whose fitness to practise was found impaired by reason of misconduct. Her name was struck from the register.

The proceedings concerned the Appellant’s care of a woman before and during her labour, where the baby was stillborn at home. One of the key issues to be decided was whether the Appellant had dissuaded the parents from going into hospital earlier. The main charge faced by the Appellant was that she had failed to provide an appropriate standard of care for the patient and her baby.

Mr Justice Irwin had to determine whether the decision of the Nursing and Midwifery Council Conduct and Competence Committee was wrong.

At the outset, Mr Justice Irwin reiterated the principle in Cheatle v GMC [2009] EWHC 645 that there will be a reluctance to condemn findings as wrong, where findings depend on the assessment of the credibility of a witness who the panel have heard from and whom the High Court have not seen. Mr Justice Irwin highlighted that this case was rich in contemporaneous written evidence.

Mr Justice Irwin summarised the panel’s approach in reaching their conclusion. Firstly they found that the Appellant had altered and expanded her notes dishonestly after the event, in an attempt to protect herself. They found this to damage her credibility. They found that this therefore supported the credibility of the patient and his wife. Finally where there was a conflict in the evidence between the patient and the Appellant, the panel accepted the evidence of the patient and his wife.

Mr Justice Irwin found this approach flawed. Finding that an Appellant has altered their notes can undermine their credibility but this does not automatically make the other witnesses’ evidence credible. A conflict between the patient’s evidence and the contemporaneous notes created by other professionals (other than the Appellant) and those records created by the Appellant, which were unchallenged, was never properly addressed by the panel.

In relation to the ‘notes issue’, a charge of dishonesty was withdrawn before the hearing and no additional charge accusing the appellant of altering her notes was laid. This meant, she argued, that she was at a disadvantage in defending herself on the point. However, Mr Justice Irwin accepted that he was not persuaded that the appellant was prevented from doing herself justice in answering the proposition of altering her notes. She could have made an application to call another witness to deal with this but did not do so.

Importantly Mr Justice Irwin recognised that in the course of a hearing there may be an inference that documents are not genuine or have been altered or created to serve the case of a party. His view was that no panel can be precluded from such a finding where there is the proper inference simply because there has been no charge put. He likened it to a panel concluding that a piece of oral evidence given is misleading or a lie.

However, he pointed out that the presenter knew from the outset that they intended to make the suggestion that some of the appellant’s notes were manufactured after the event and that it would have been proper to lay charges encapsulating that at the outset.

Mr Justice Irwin noted that the panel’s conclusions regarding the credibility of the patient do not seem consistent with the reliable contemporaneous material that existed both before and after the stillbirth of the baby. A panel should make their reasoning clear enough to render an unexpected conclusion comprehendible. Reference to the demeanour of the witness is unlikely to suffice and the panel’s explanations of their reasons in this case were inadequate.

This case reinforces the requirement for a panel’s written decision to give consideration to conflicting accounts and justify why one account is favoured in preference to another. Simply commenting on the credibility of a witness without outlining the consideration given to the remaining evidence is not sufficient. The reason why a panel prefer one account when there is material in existence at odds with that account, needs to be clearly addressed in the decision.

Further, it is proper for a Panel to conclude that a Registrant has been dishonest in the alteration or creation of evidence to serve its case and to take that into account when considering credibility. If this is known in advance, however, charges should be laid.