The recent judgment of the Court of Appeal in Miller & Another v The Health Service Commissioner for England[1] contains views that will please those acting on behalf of registrants in regulatory proceedings in the health and social care sector.

In addressing what was described as an ‘unfortunate phrase’, the Senior President of Tribunals cast doubt on the maxim, often relied upon in investigations by regulators when faced with incomplete clinical records, to the effect that ‘if it is not written down it didn’t happen unless there is other corroborating evidence’. The judgment states:

‘Aside from reinforcing an impression of pre-determination, that is an inappropriate way to conduct an investigation: it merely engenders defensive note taking by doctors rather than clinical good practice. It is important to look for corroborating contemporaneous notes and also for evidence of good recording and safeguarding practices but it is also important to listen to what a professional says.’

The judgment in Miller follows the earlier decision of the FHSAU in NHS Commissioning Board v BargainDentist.Com, where the adjudicator questioned NHS England’s submission that it had established a prima facie case that contractually required dental examinations were not carried out, merely on the basis of an absence any record of the examinations.

The Court of Appeal’s view in Miller is likely to be of assistance to registrants engaged in regulatory investigations in the health and social care sector whose position within the investigation is unsupported by their clinical records. What is required is a balanced assessment of the totality of the evidence, including the evidence of the practitioner. This can include evidence of the practitioner’s usual practice.

That is good news, but where the registrant’s position is unsupported by their contemporaneous clinical records, they are not out of the woods.

The High Court’s recent decision in Hassell v Hillingdon Hospitals NHS Foundation Trust[2] serves as a reminder, were one needed, of the risk that a practitioner’s evidence may ultimately be rejected on its merits. In that case the judge commented on the defendant surgeon’s evidence about his usual practice:

‘Even making proper allowances for the fact that Mr Ridgeway was in the witness box and not talking to a patient it was plain that his belief about what he would invariably have said was not reliable.’

In Miller, the Court of Appeal was giving judgment in a successful appeal brought by a general practice against a decision to dismiss its claim for judicial review challenging a decision of the Parliamentary and Health Service Ombudsman in circumstances where a GMC investigation had concluded with no further action. The court expressed interesting views as to the standard applied by the ombudsman and Huw Llewellyn-Morgan’s analysis of that can be accessed by clicking here.