Julia Ann Duthie v The Nursing and Midwifery Council

[2012] EWHC 3021 (Admin)

An independent midwife, Ms Duthie, was struck off after a finding that her fitness to practise was impaired by reason of her misconduct. This followed her care for a woman, known as Mrs A, whose baby was stillborn following a home birth. Mrs A and her baby were admitted to hospital after the stillbirth but the baby could not be resuscitated.

The overall charge which Ms Duthie had to meet was that she had not provided an appropriate standard of care for Mrs A or her baby. The individual limbs of the charge had originally included an allegation relating to dishonesty, although this was removed before the hearing. The most important issue was whether Ms Duthie had dissuaded Mrs A and her husband from going to hospital before the birth.

The panel found some allegations proved and set out its reasoning. It stated that it had accepted the evidence of Mr and Mrs A, and rejected both the evidence offered by Ms Duthie and certain documentary evidence.

On appeal, and after reviewing in detail the documentary evidence, Irwin J characterised the way in which the panel had reached its conclusions as a series of steps. This began with a finding that Mrs Duthie had altered and expanded her notes after the event in an attempt to protect herself. This led the panel to find that she had thereby damaged her credibility, which led them to prefer the evidence of Mr and Mrs A.

Irwin J accepted that Ms Duthie had altered her notes and that this was something which could fairly have undermined her credibility. However, he found that this did not necessarily support the credibility of Mr and Mrs A. In addition, the panel had not addressed the conflicts which existed between the evidence of Mr and Mrs A and the contemporaneous records, particularly those records created by professionals other than Ms Duthie.

Part of Ms Duthie’s appeal was based on the assertion that the original hearing was procedurally flawed, in part because, although there was no formal charge of dishonesty before the panel, it had, nevertheless made a finding that she had altered her notes. Ms Duthie claimed that she had been unable to defend herself properly in relation to charges that some of the documents before the panel were not genuine.

Irwin J rejected Ms Duthie’s arguments. He stated that it must be open to a panel to make a finding that certain documents are not genuine, even without a formal charge to that effect. He did, however, state that in circumstances where a case presenter intended from the outset to suggest that documents were fabricated, a specific charge to that effect should have been put to the registrant in advance of the hearing.

Irwin J found that the evidence given to the hearing by Mr and Mrs A was at variance ‘with the content of almost all of the un-impeached contemporaneous records’. In his judgement, this caused grave difficulties in relation to their credibility, and thus with the findings of the panel in relation to certain limbs of the charge.

Irwin J invited submissions as to the appropriate order to be made.