Acting to stop harm: the FCA and Appointed Representatives
Penny Ann Lavis v Nursing and Midwifery Council,  EWHC 4083 (Admin)
Judgment Date: 5 December 2014
The allegations against the Appellant, a midwife, all arose out of her care of Patient A when that patient went into labour in hospital in the early hours of 12th June 2011. The allegations formed three main groups: firstly, allegations of inadequate care; secondly, failing to maintain accurate records in respect of that care; thirdly, dishonesty in relation to that record-keeping.
Challenge to the factual basis of the Panel’s decision
The Appellant challenged the Panel’s decision on the facts. The Panel had accepted Patient A’s account in relation to several key areas of her care.
The Honourable Mr Justice Cobb reminded himself of several key principles applicable to the Appellate Court’s examination of factual decisions reached by a Panel:
The Panel had heard evidence from the Appellant and Patient A, and had been “impressed” by Patient A and found the Appellant at times “evasive and inconsistent”. They preferred the evidence of Patient A.
At paragraph 36, Cobb J found that the reasons of the Panel sufficiently demonstrated its faithful examination of the evidence:
“Self-evidently the Panel did not explicitly deal with all aspects of the evidence, but I do not regard this as a material deficit… on a straightforward factual dispute whose resolution depends simply on which witness is telling the truth about events which she claims to recall, it would be enough for the Panel (having summarised the evidence) to indicate simply that it believes one rather than another…”
In particular, it was highlighted that there was a specialist midwife on the Panel who would have been able to bring to the deliberation her experience of patients in labour and taking pain relief, in so far as that impacted on Patient A’s alertness, recollection and reliability.
As the Panel had accepted Patient A’s account of the care she received, it followed that the record keeping of the Appellant (which contradicted this) was inaccurate. The Appellant contended that the Panel had fallen into a series of errors when considering the third stage of the case: whether that inaccurate record keeping was dishonest.
The Ghosh test and state of mind
The Panel were properly advised of the two-stage Ghosh test, but their decision revealed that they had applied it wrongly as follows.
At the first stage, they found that the reasonable and honest person would consider that making inaccurate entries was “deliberately misleading” and dishonest. This imported a subjective element into the objective test, distorting and probably fortifying their conclusions on this stage.
At the second stage, they found that the Appellant must have realised her conduct “would be regarded as dishonest” by the standards of that reasonable and honest person, rather than the Appellant realising that her conduct “was” by those standards dishonest. They did not therefore consider in the subjective stage any explanation for the entries which did not involve dishonesty.
This omission, Cobb J set out at paragraph 58, was crucial:
“The Panel could or should more conscientiously have considered the mental element of the alleged dishonesty before reaching its ultimate conclusion on this issue. While dishonesty was plainly one of the possible explanations, it was not the only one: it would have been appropriate, and in my judgment proper, for the Panel to have explicitly considered in respect of each of the entries whether the Appellant had acted in an unthinking way, out of habit, in a “slapdash” manner or while “distracted”… whether [the entry] had been made carelessly, or even automatically recording the normal practice without proper attention to whether the normal practice had actually been observed on this occasion. It is also possible that the sense of each recording, indeed the accuracy, could have been distorted by being inappropriately abbreviated or written in a form of shorthand.”
The Panel should have considered the approach of Singh J in Uddin v GMC  EWHC 2699 (Admin) by considering more specifically the Appellant’s state of mind. At paragraph 31 of that case: “The real issue in many cases may be whether the conduct took place and with what state of mind. For example, was a false representation made? But even if it was, was it done knowing that it was false or may it have been, for example, innocent or even a negligent mistake?”
The fact that the contents of the records were inaccurate and misleading, therefore “false”, may have led the Panel straight to the conclusion that they were completed dishonestly without considering other options.
Failure to address the “third route” between the parties
The Panel did not appear to have considered whether a third option was open to it on the facts, i.e. that record keeping errors were made (contrary to the Appellant’s case) but they were not dishonest (contrary to the Respondent’s case). This was linked to its failure to review all the possible reasons for the entries.
Additionally, the Panel revealed at the impairment stage that their view was that the Appellant had “compounded” her inadequate care by dishonest record keeping “undertaken in order to conceal [this]”. This did not feature in the findings of fact, which did not address whether the entries were made contemporaneously or retrospectively. The fact these questions were being asked later suggested that the Appellant’s state of mind had not been sufficiently considered at the fact finding stage.
Failure to consider each allegation separately
Finally, the Panel did not appear to having considered the record-keeping failures separately in relation to dishonesty. Cobb J referred to the important guidance from the case of R v Lucas (Ruth)  QB 720: a conclusion that a person is lying or telling the truth about point A does not mean that she is lying or telling the truth about point B. A witness may lie for many reasons. The fact that she has lied in respect of one matter does not mean that she has lied in respect of everything.
In respect of these four areas the Panel “appeared to have approached the issue of dishonesty in an irregular way, such as to render its finding in this important respect unsustainable”. The case was remitted back for a Panel to consider again this issue.
A series of errors made in relation to a Panel’s consideration of dishonesty; in particular a failure to conscientiously consider alternative explanations for inaccurate and misleading (and therefore false) records. The case highlights the need to look carefully at the practitioner’s state of mind rather than proceeding directly from a finding of false record keeping to dishonesty.
By Ally Wilkes, Barrister, Regulatory
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