Lavis v Nursing and Midwifery Council

By formal Notice dated 23 June 2014, Ms Penny Lavis (hereafter the ‘Appellant’), a registered midwife, brings an appeal pursuant to Article 38(1)/(4) of the Nursing and Midwifery Order 2001 against the determination by a panel of the Respondent Nursing and Midwifery Council (NMC)’s Conduct and Competence Committee (‘CCC Panel’ or ‘Panel’), dated 27 May 2014. By its determination the Panel suspended the Appellant from practise for a period of 4 months.

The Appellant does not challenge the Panel’s rulings on misconduct, impairment and/or sanctions except insofar as those decisions are, or may be, affected by a successful appeal in respect of a number of factual findings of the Panel. If successful, the Appellant applies for an order which quashes the decision of the Panel in relation to five limbs of charge 1(g) (see generally [37-70] below), and requests that the case be remitted to a fresh panel to determine impairment and sanction. Alternatively, she applies to remit those aspects of charge 1(g) to a fresh panel to re-determine the facts before going on to consider impairment and sanction.

In determining this appeal, I received helpful oral and written submissions from counsel for the parties; I have read extracts from the extensive transcript of the lengthy disciplinary proceedings. I have had access to, and have read selected items from, the bundle of statements and exhibits which was prepared for the Panel hearing.

By this judgment I set out my reasons for allowing the appeal in part. In doing so, I have considered matters as follows:

The Appellant has been a nurse for over 30 years; she qualified as a midwife in 1991, and is now a Band 6 registered midwife. She has (as the Panel accepted and recorded) never previously been before the CCC Panel of the NMC, nor has she been the subject of any prior allegations or complaints. At the time of the events in question she was employed by the Mid Essex Hospital Services NHS Trust (“the Trust”).

In the early hours of 12 June 2011, Ms A was admitted as a low-risk patient to the midwife-led birthing unit of the Broomfield Hospital, Chelmsford; this was her first pregnancy, and she was 41 weeks pregnant. On arrival on the labour ward, she was assigned to the Appellant as her midwife. In a witness statement dated 17 September 2012, Ms A describes the events of that night; I have read that statement with care, together with those passages of the transcript of the cross-examination of Ms A to which my attention was drawn, and the medical notes. It was in very large part upon Ms A’s evidence that the charges against the Appellant were founded.

In her written statement, Ms A expressed a general dissatisfaction with the manner in which she was treated on the labour ward, and how her care was managed by the Appellant during labour; she records that she was not made to feel at ease by the Appellant, and complains that throughout the 3½ - 4 hours on the ward, the Appellant failed to provide relevant support and/or information. Against that background, Ms A makes a number of specific complaints which translate into the charges which were, in due course, brought against the Appellant and were the subject of the disciplinary process.

The relevant sequence of events has been summarised by me in a chronology which is appended to this judgment as Schedule A. Of particular interest are the entries in Schedule A at (vi), (vii), (xxi), (xxii) which I reproduce into the body of this judgment (below) for ease of reference:

And later:-

Given the death of Ms A’s baby within a very few days of his birth, the hospital conducted a number of enquiries and investigations, including a ‘Serious Incident Investigation’, a ‘Root cause Analysis’ and a ‘Supervisory Investigation’. One of those investigations focused on the allegation that the Appellant had falsified Ms A’s handheld records while tending to her during labour; this investigation led to a conclusion that the “allegations were not upheld”. I refer to this only for completeness as it was drawn to my attention during the course of argument at this appeal hearing. I have not attached any weight to this conclusion, given that I know nothing about the scope, depth or rigour of the investigation.

It is convenient, and appropriate, that I set out the details of the charges faced by the Appellant in their entirety, recording against each one the finding of the Panel. I attach this summary as Schedule B to this Judgment.

In summary, it was alleged that, whilst employed as a registered midwife by the Trust, the Appellant failed on 12 June 2011 to provide adequate care to Ms. A and/or her unborn baby. This involved aspects of clinical care, and recording of her care.

The Panel hearing took altogether 16 days; there were 7 days of evidence on determination of the facts, a further day of evidence on the issue of impairment. Eight other days were occupied with legal argument (including a lengthy ‘abuse of process’ determination, and a separate submission of no case to answer), closing submissions, and decisions.

The NMC alleged, and the Panel in due course found, that in light of the factual findings of a number of the charges proved, the Appellant’s fitness to practise is/was impaired by reason of her misconduct, and imposed a 4 month suspension from practise.

By this appeal, the Appellant originally challenged only the findings on charges 1(g)(ii) / (iii) / (vi) / (vii) / (viii) (see Schedule B). At the outset of the appeal hearing, Miss Christie-Brown for the Appellant sought to amend the Notice of Appeal (pursuant to CPR Pt52.8), to include also a challenge to charges 1(e) and 1(f)(i); this proposed amendment was designed to address a potential inconsistency in the Appellant’s case in respect of the Panel’s findings on charges 1(g)(ii) and (iii). The Appellant had not accepted before the Panel (and still does not accept) that she had not explained the risks and benefits of the Assisted Rupture of the Membranes (‘ARM’) to Ms A prior to conducting the procedure; she further contended, and contends, that it was Ms A who requested the ARM. Hence her record reflected her account of those events, as she portrayed them. This application to amend the Notice of Appeal was not opposed, and I granted permission; indeed, I readily recognised the evidential overlap between charge 1(e) and (f)(i) and (g)(ii)/(iii), and considered it appropriate in all the circumstances that I should (as proposed by Miss Christie-Brown) review the evidence and findings in relation to the actual events before turning to consider the Panel’s conclusions on the Appellant’s recordings of the same.

The burden falls on the Appellant to demonstrate in this appeal that the Panel was ‘wrong’ (CPR 52.11(3)) in its determinations. It is not necessary for the Appellant to demonstrate that the Panel was ‘plainly’ wrong (Re B (Care Proceedings: Appeal) [2013] UKSC 33 at [44] viz: “it is generally better to allow adjectives to speak for themselves without adverbial support”) or indeed ‘clearly’ wrong (GMC v Meadow & Attorney General [2006] EWCA Civ 1390 per Auld LJ at [125]: “I doubt whether the adverbial emphasis of "clearly" adds anything logically or legally to an appellate court's characterisation of the decision below as "wrong””).

The Panel’s first responsibility in this disciplinary process was to assess and determine the primary facts relevant to the charges. Fact-finding is a multi-factorial process. In a case where live oral evidence is given before a court or tribunal, the judge or panel must assimilate the witness’ spoken word, compare it with other evidence (including in particular any written account by the witness of the relevant issues), evaluate the manner in which the evidence is delivered noting inflection, style and tone, and make a judgment of the overall deportment of the witness. Evaluating evidence is an essentially impressionistic exercise, in respect of which the fact-finding tribunal (whether that be a judge, justices, or disciplinary panel) has a significant advantage over any appellate court. The transcript of the spoken word is in many respects valuable as a record, but provides only one dimension of a much more comprehensive appraisal, which it is sometimes difficult for a tribunal fully to articulate. Lord Hoffman described this in Piglowska v Piglowski [1999] UKHL 27, [1999] 3 All ER 632, [1999] 1 WLR 1630, quoting what he had earlier observed in Biogen Inc v Medeva plc [1997] RPC 1, thus:

In the context of an appeal against the decision of a Disciplinary Panel (Southall v General Medical Council [2010] EWCA Civ 407) Lord Justice Leveson made a similar point (at [47]/[48]):

“[47] … as a matter of general law, it is very well established that findings of primary fact, particularly if founded upon an assessment of the credibility of witnesses, are virtually unassailable (see Benmax v Austin Motor Co Ltd [1955] AC 370, [1955] 2 WLR 418); more recently, the test has been put that an appellant must establish that the fact-finder was plainly wrong (per Stuart-Smith LJ in National Justice Cia Naviera SA v Prudential Assurance Co Ltd, The Ikarian Reefer [1995] 1 Lloyd's Rep 455 at 458). Further, the court should only reverse a finding on the facts if it ‘can be shown that the findings … were sufficiently out of tune with the evidence to indicate with reasonable certainty that the evidence had been misread' (per Lord Hailsham of St Marylebone LC in Libman v General Medical Council [1972] AC 217, [1972] 2 WLR 272 at 221F and 275 respectively more recently confirmed in R (Campbell) v General Medical Council [2005] EWCA Civ 250, [2005] 1 WLR 3488 at [23] per Judge LJ). Finally, in Gupta v General Medical Council [2001] UKPC 61, [2002] 1 WLR 1691, Lord Rodger of Earlsferry put the matter in this way (at [10]):

‘In all such cases the appeal court readily acknowledges that the first instance body enjoys an advantage which the appeal court does not have, precisely because that body is in a better position to judge the credibility and reliability of the evidence given by the witnesses. In some appeals that advantage may not be significant since the witnesses' credibility and reliability are not in issue. But in many cases the advantage is very significant and the appeal court recognises that it should accordingly be slow to interfere with the decisions on matters of fact taken by the first instance body. This reluctance to interfere is not due to any lack of jurisdiction to do so. Rather, in exercising its full jurisdiction, the appeal court acknowledges that, if the first instance body has observed the witnesses and weighed their evidence, its decision on such matters is more likely to be correct than any decision of a court which cannot deploy those factors when assessing the position.'

As earlier indicated (see [17]), these principles apply equally to the role of a Disciplinary Panel as they do to the role of a trial judge (see for instance R (Campbell) v General Medical Council [2005] EWCA Civ 250, [2005] 1 WLR 3488 at [23] per Judge LJ (as he then was), and Phipps v General Medical Council [2006] EWCA Civ 397, [2006] Lloyd's Reports (Medical) 345, per Sir Mark Potter P at [106]). Indeed a disciplinary or regulatory panel (such as the NMC’s CCC Panel in this case) is entitled to particular respect in its determination of matters which draw upon specialist knowledge &/or expertise relevant to the field in which the ‘charged’ practitioner has practised; specifically (but not exclusively) this applies to the fitness to practise / impairment stage and/or the sanction stage (see Cranston J in Cheatle v General Medical Council [2009] EWHC 645 (Admin) at [15]).

On the issue of fact-finding, and specifically where a finding as to the reliability of witnesses is central to the ultimate outcome, Miss Christie-Brown invites me to consider Leggatt J’s comments in his judgment in the case of Gestmin SGPS SA v (1) Credit Suisse (UK) Ltd (2) Credit Suisse Securities (Europe) Ltd. [2013] EWHC 3560 (Comm), where he referred to the:

“common (and related) errors” in supposing “… (1) that the stronger and more vivid is our feeling or experience of recollection, the more likely the recollection is to be accurate; and (2) that the more confident another person is in their recollection, the more likely their recollection is to be accurate.” [16]

Leggatt J described this phenomenon more fully in his judgment, adding:

“[18] Memory is especially unreliable when it comes to recalling past beliefs. Our memories of past beliefs are revised to make them more consistent with our present beliefs. Studies have also shown that memory is particularly vulnerable to interference and alteration when a person is presented with new information or suggestions about an event in circumstances where his or her memory of it is already weak due to the passage of time.

22 In the light of these considerations, the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses' recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose - though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.” (emphasis by underlining added)

These observations are plainly worthy of the most careful consideration, but I have caused to wonder (and I discussed this with counsel during their submissions) whether Leggatt J was intending to make this point specifically about commercial cases, in contrast to other types of case (hence the underlining of the passage above). I believe that he probably was; I do not consider that in other jurisdictions such an exclusive approach could be taken to evidence of recollection which is unsupported by documentary proof – the family law jurisdiction would be one. That said, his general comments about the fallibility of memory I accept apply more broadly, including (I further accept) to a situation such as obtained here.

The Panel’s ‘Notice of Decision’ (setting out its findings, and reasons) is contained in a letter dated 27 May 2014. Ms Christie-Brown challenges the adequacy of reasoning in some respects, and I have had cause to examine with care whether the Panel has sufficiently explained itself in reaching these serious determinations. It is of course a long-established principle that courts and tribunals at first-instance are required to give adequate reasons for their decisions and so in dealing with the arguments I have borne in mind the comments of the Court of Appeal (per Henry LJ’s judgment on behalf of the court), in Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377 at 381:

“(1)

fairness surely requires that the parties especially the losing party should be left in no doubt why they have won or lost. This is especially so since without reasons the losing party will not know (as was said in Ex parte Dave [1994] 1 W.L.R. 98; [1994] 1 All E.R. 315) whether the court has misdirected itself, and thus whether he may have an available appeal on the substance of the case. The second is that a requirement to give reasons concentrates the mind; if it is fulfilled, the resulting decision is much more likely to be soundly based on the evidence than if it is not”;

And later

“(3)

Where there is a straightforward factual dispute whose resolution depends simply on which witness is telling the truth about events which he claims to recall, it is likely to be enough for the judge (having, no doubt summarised the evidence) to indicate simply that he believes X rather than Y; indeed there may be nothing else to say. But where the dispute involves something in the nature of an intellectual exchange, with reasons and analysis advanced on either side, the judge must enter into the issues canvassed before him and explain why he prefers one case over the other. This is likely to apply particularly in litigation where as here there is disputed expert evidence, but it is not necessarily limited to such cases” (emphasis by underlining added).

Plainly, not every factor which weighed with the Panel in its appraisal of the evidence has to be identified and explained (see Lord Phillips MR at [19] in Peter Andrew English v Emery Reimbold & Strick Ltd : DJ & C Withers (Farms) Ltd v Ambic Equipment Ltd : Verrechia (T/A Freightmaster Commercials) v Commissioner of Police for The Metropolis[2002] EWCA Civ 605, and see Holman J in R (Kibe) v NMC [2013] EWHC 1402 (Admin)). In Southall (supra) at [55]/[56] Leveson LJ added

“[55]… in straightforward cases, setting out the facts to be proved (as is the present practice of the GMC) and finding them proved or not proved will generally be sufficient both to demonstrate to the parties why they won or lost and to explain to any appellate tribunal the facts found. In most cases, particularly those concerned with comparatively simple conflicts of factual evidence, it will be obvious whose evidence has been rejected and why. …

[56] When, however, the case is not straightforward and can properly be described as exceptional, the position is and will be different.”

In pursuing her appeal, Ms Christie-Brown complained that some of the arguments which she had advanced (and indeed which her opponent had advanced) had not been adequately addressed by the Panel; she specifically referred to their failure to address her points about Gestmin which I have summarised above. It is of course not necessary for a judge to deal with every argument presented by counsel in support of the case; in this respect, in English, Lord Phillips MR referred (at [17]) to the judgment of Griffiths LJ in Eagil Trust Co Ltd v Pigott-Brown [1985] 3 All E.R. 119:

“When dealing with an application in chambers to strike out for want of prosecution, a judge should give his reasons in sufficient detail to show the Court of Appeal the principles on which he has acted, and the reasons which led him to his decision. They need not be elaborate. I cannot stress too strongly that there is no duty on a judge in giving his reasons to deal with every argument presented by Counsel in support of his case. It is sufficient if what he says shows the parties, and if need be the Court of Appeal the basis on which he acted… (see Sachs LJ in Knight v Clifton [1971] 2 AER 378 at 392–393, [1971] Ch. 700 at 721).” (p.122). (emphasis by underlining added).

Lord Phillips MR made clear (in English) that these observations of Griffiths LJ apply to judgments of all descriptions ([18]), adding:

“When giving reasons a Judge will often need to refer to a piece of evidence or to a submission which he has accepted or rejected. Provided that the reference is clear, it may be unnecessary to detail, or even summarise, the evidence or submission in question. The essential requirement is that the terms of the judgment should enable the parties and any appellate tribunal readily to analyse the reasoning that was essential to the Judge’s decision”.

Finally, in this respect, I should confirm that I am conscious that in my appellate capacity I am not permitted to substitute my own discretion for that of the Panel by undertaking a narrow textual analysis of the reasons given by the Panel and thereby reaching a conclusion that it had misdirected itself (see again Lord Hoffman in Pigloswka ibid.).

The Panel heard evidence from Ms A and the Appellant; they were the two essential witnesses of fact. Evidence was, however, also adduced at the fact-finding stage from the Trust’s Head of Midwifery and Nursing for Women’s and Children’s Services and the Trust’s Supervisor of Midwives; the Appellant called, in support of her case, a retired registered nurse and midwife.

The Panel observed that it had been “impressed by the evidence of Ms A who, in the panel’s view, gave a clear and honest account of her recollections.” By contrast, the panel’s view of the Appellant was that she was “at times” during her evidence “evasive and inconsistent”. The Panel made the following further observations about the Appellant and her evidence, which may legitimately have coloured its assessment of her:

In challenging the Panel’s overall assessment of the two key witnesses, Miss Christie-Brown contends that the Panel took an unfairly biased view of the two competing accounts, readily passing critical judgment on the Appellant’s case without bringing the same scrutiny or rigour to the evidence of Ms A. She complained that the Panel ostensibly failed to consider internal inconsistencies in Ms A’s own evidence, in particular:

Miss Christie-Brown further contends that the Panel did not adequately explain why they relied on the Appellant’s records and evidence in some respects (i.e. in relation to some of the foetal heart monitoring) but not in others.

These points are, to an extent, well-made, but do not, on my analysis, take the Appellant far in the pursuit of her contention that the Panel was wrong:

Moreover (in relation to the submission described in [30] above):

In a similar line of argument, Miss Christie-Brown submitted that the Panel failed to give any or any due credit to the Appellant for having been ostensibly reliable in some respects of her evidence. In this respect, she drew attention to the notes recording the foetal heart rate monitoring, as to which the Panel concluded:

“In the absence of specific evidence to challenge these recordings the panel is of the view that they may be accurate.”

This conclusion of the Panel is either not well-expressed, or it demonstrates a possibly flawed approach to this part of the evidence. The burden at the Panel hearing fell upon the NMC to demonstrate in support of its case as to fitness to practise, to the ordinary civil standard of proof, that the records were inaccurate; if NMC failed to do so, then the records had to be treated as accurate. As Lord Hoffman said in Re B (Care Proceedings: Standard of Proof) [2008] UKHL 35 (at [2]):

“If a legal rule requires a fact to be proved (a ‘fact in issue'), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened”.

Therefore, there was no place for the conclusion that the records ‘may’ be accurate.

However, I do not regard the flawed approach identified in [34] as material to the outcome, as it is apparent that the Panel proceeded on the basis that there had indeed been “appropriate monitoring of the foetal heart” and ostensibly attached to this fact appropriate weight.

In my judgment, the 27 May 2014 letter/document setting out the reasons of the Panel sufficiently demonstrates the Panel’s faithful examination of the evidence of both the Appellant and Ms A; it appears that the Panel subjected all the evidence to a broadly similar degree of scrutiny, and the reasons fairly reflect this. Self-evidently the Panel did not explicitly deal with all aspects of the evidence, but I do not regard this as a material deficit, for as the authorities cited above indicate (see for example Flannery, and Southall) 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 this instance, the Panel has descended into greater detail. On matters of specialist knowledge, which include the impact of pain relief on the functioning and awareness of the patient in labour, I am entitled (indeed obliged) to afford a degree of deference to the Panel (see Bhatt v General Medical Council [2011] EWHC 783 (Admin), adopted in Singh Wasu v General Medical Council [2013] EWHC 3872 (Admin).

The first challenge in this appeal is to the finding that the Appellant had recorded in the antenatal notes at 01.45hrs that she had discussed with Ms. A the risks and benefits of the ARM procedure when in fact she had not.

The Panel recorded that Ms A was “adamant” (Panel’s discussion Charge (f)(i) and 1(g)(iii)) that the Appellant had not advised her of the risks and benefits of the ARM:

“She was not aware of any risks and benefits of the procedure other than the one identified by [the Appellant], namely that it would help to ‘bring on her labour quicker thus allowing her to get into the birthing pool.” (Panel’s conclusion on charge (f)(i)).

I weigh into my consideration on this aspect of the appeal (it is a source of complaint that the Panel did not) the comments from Gestmin ([20] above) to the effect that it would be an error to assume that the more confident a person is in their recollection, the more likely their recollection is to be accurate.

However, having reviewed the evidence, and compared the accounts of the protagonists, the Panel was clear that the Appellant had not advised Ms A of the risks of the ARM; on this, for reasons set out above, I consider that the Panel was entitled to prefer the evidence of Ms A. It found Ms A to be “clear and consistent on this issue. She was categoric that no such advice had been given” and compared that with the evidence of the Appellant herself - “at odds” with much of her other evidence “which was” (by contrast)“clearly expressed” (charge 1(f)(i)). I have read the relevant parts of the transcript at which the Appellant gives her account of purporting to explain the risks and benefits to Ms A; the account does appear convoluted and vague, with the Appellant merely providing the Panel with an account of:

Having found, as they were entitled to do in my judgment that no such advice about the risks of the ARM had been given, it follows that the Appellant’s record in the medical notes that she had done so, must be “inaccurate and amounts to a failure to maintain accurate records in relation to the care given to Ms A”.

The Appellant’s challenge to this finding therefore fails.

In this second respect, it is recorded against the Appellant that she had recorded in the antenatal notes at 02.00hrs that Ms. A had requested the ARM when in fact she had not. The Appellant accepted (so it is recorded in the Panel findings) that an ARM was not clinically indicated, and that she would “not normally perform an ARM at this early stage of labour but insisted that Ms A had requested that one be performed…”. Of the two NMC witnesses called to deal with this issue, one said that the ARM should not have been carried out, while the other was unsure (although apparently considered that it was “the wrong choice”). The evidence filed on behalf of the Appellant was that while there was no clinical indication for an ARM in this case, she “would have done an ARM if that was what the mother wanted.” The question of whether the patient requested the ARM was therefore crucial to the circumstances in which it came to be carried out. In its review of the evidence, the Panel recorded (in relation to ‘Finding 1(e)’) that:

“Ms A told the panel that she then asked [the Appellant] to re-examine her to establish whether she had progressed sufficiently to enter the pool. Ms A said that [the Appellant] agreed to this and suggested that if, upon examination, she was not 5cm dilated, [the Appellant] could break her waters ‘to bring on [her] labour quicker’. Ms A told the Panel that she accepted [the Appellant’s] recommendation as she wanted to get into the pool. She believed that [the Appellant was] there to look after her and she trusted [the Appellant’s] judgment as a midwife.”

It seems to me that the Panel was entitled to conclude (having regard to the general assessment of credibility) that Ms A had not requested, let alone, as the Appellant contended, “insisted” (see the finding in relation to charge 1(e)) upon the ARM procedure, and that it had been performed (as the Appellant accepts) at a time when it had not been clinically indicated. Therefore it appears that this information was wrongly recorded in the medical records; the Panel was in my judgment entitled so to conclude. It could not be said that it was wrong to do so.

By this further ground of appeal, it is said that the Panel was wrong to find that the Appellant had recorded in the labour notes at 03.30 that she had changed Ms A's pad when in fact she had not. Ms A’s evidence had been dogmatic “I guarantee that she didn’t because I remember she didn’t” (my emphasis by underlining). The Panel recorded that, by contrast, the Appellant was “unable to provide specific details about [her] recollection of times in which [she] changed the pad…”.

The Panel’s decision is expressed in strong terms as follows:

“The Panel accepts the possibility that Ms A may not have noticed her pad being changed following a vaginal examination. However, the Panel found it inconceivable that she would not be able to recall her pad being changed whilst she was sitting down next to the birthing pool, when she would have had to have her underwear removed.” (emphasis by underlining added).

In challenging that finding, Miss Christie-Brown observes that the use of “inconceivable” could not possibly be apt to describe Ms. A’s ability to “recall” the incident in question; it must, postulates Miss Christie-Brown, be at least ‘conceivable’ that Ms A has inaccurately recalled the events, or has forgotten something important. There is considerable force in Miss Christie-Brown’s submission as it stands, but I consider that the submission misses the mark. It is my view that, when looking at the whole of the passage (above) in context, the Panel has merely infelicitously expressed itself. In my view, the word ‘inconceivable’ is being used to describe the implausibility of Ms A not noticing that her underwear was being changed and the pad being removed while she was sitting by the birthing pool.

The entry in the medical records about the change of the pad is accompanied (recorded against the same time: 03:30) by a record of maternal and foetal heart rates; although not wholly legible it appears to be “FHR 150, maternal pulse 80”. These other recordings have not been shown to be inaccurate, yet it is notable that the Panel did not overtly weigh this evidence in their reckoning when considering the accuracy of the recording of the change of pad (or, later, when coming to consider the Appellant’s state of mind when entering this data on the records). This is surprising, but does not fundamentally undermine the reliability of the finding.

On the evidence overall, the Panel was entitled to have resolved the factual conflict (about whether the pad was changed) in favour of Ms A, and I cannot conclude that this was ‘wrong’ in light of its general assessment of the respective credibility of the protagonists.

By this ground, the Appellant contends that the Panel was wrong to find that she had recorded in the labour notes at 03.45 that she had noticed the prolapsed umbilical cord when in fact (on Ms A’s account, as the Panel found) this had been drawn to her attention by Ms. A's husband.

There was a direct conflict of evidence as to who removed Ms A’s underwear at the point when she had the “urge to push” (03:45hrs). It is perhaps surprising that the NMC did not call Ms. A’s husband on this point, as he would have been able to give direct evidence of what occurred; however the Panel was entitled to accept the evidence of Ms A and prefer it where it differed from the Appellant. The Appellant contemplated that she and Ms A’s husband may in fact have noticed the prolapsed cord at the same time; this would not have been inconsistent with the record.

However, the Panel’s clear finding on this aspect derived from the fact that the evidence of the Appellant was “contradictoryand lacked credibility. At times [the Appellant] suggested that the underwear was removed prior to Ms A getting on the bed; at other times, the suggestion was that it was removed whilst getting on the bed. The suggestion was also made that the underwear was removed when Ms A was actually on the bed”. The Appellant refuted the account of Ms A; the Panel recorded this but in the analysis “preferred the account given by Ms A”.

I cannot say that the Panel was wrong about this; while I recognise that there may be a number of explanations for why the Appellant wrote that she “noticed cord at perineum” including:

A number of points arise for my consideration in relation to the appeal concerning charge 1(g)(viii). I summarise them thus:

(i) The Panel were advised by their legal assessor to follow the two-stage Ghosh test (R v Ghosh [1982] QB 1053). That test is defined as follows (per Lane LCJ):

“In determining whether the prosecution has proved that the defendant was acting dishonestly, a jury must first of all decide whether according to the ordinary standards of reasonable and honest people what was done was dishonest. If it was not dishonest by those standards, that is the end of the matter and the prosecution fails.

If it was dishonest by those standards, then the jury must consider whether the defendant himself must have realised that what he was doing was by those standards dishonest. In most cases, where the actions are obviously dishonest by ordinary standards, there will be no doubt about it. It will be obvious that the defendant himself knew that he was acting dishonestly. It is dishonest for a defendant to act in a way which he knows ordinary people consider to be dishonest, even if he asserts or genuinely believes that he is morally justified in acting as he did”.

The Panel purported to apply the Ghosh test to the facts of this case; it applied the first stage of the test thus:

“the reasonable and honest person would consider that making inaccurate entries in relation to the care given to Ms A and/or her unborn baby is deliberately misleading and dishonest”.

And the second stage of the test:

“given the nature, number and significance of the inaccuracies found proved and your evasive and inconsistent account of the evidence, the panel is satisfied that you must have realised that what you were doing would be regarded as dishonest by the standards of the reasonable and honest person.” [41]

The Respondent (NMC) acknowledges that the Panel could have worded the first limb of the test “more precisely” (§71 Skeleton Argument); I agree. Indeed I would go further; in my judgment, the Panel improperly imported into the objective stage of the test the concept of ‘deliberate misleading’ (i.e. a subjective element), which would have had the effect of distorting (and probably fortifying) the ‘objective’ test. I am not sure that the Panel were right to conclude that objectively viewed making false entries was necessarily “dishonest” according to the ordinary standards of reasonable and honest people.

Miss Hoggett-Jones referred to the Panel’s approach as ‘stepwise’, a euphemism in this context perhaps for a lightness of foot which fails to make any of the necessary impressions on the ground to demonstrate how they have travelled from A to B. On reading the reasons in this section of the letter of 27 May 2014, I am not at all satisfied that all of the necessary ‘steps’ have been taken between the findings of fact and the understanding of the Appellant’s motivation or reasons. If the necessary steps had been taken, they were not identified sufficiently carefully in its reasoning.

Having erred in its application of the ‘first stage’ of the test, it would in the circumstances have been more re-assuring if the ‘second stage’ test had been expressed in a manner which was more faithful to Lord Lane LCJ’s original; the phrase from Ghosh “the defendant himself must have realised that what he was doing was by those standards dishonest” became “[the Appellant] must have realised that what [she was] doing would be regarded as dishonest”. While not considering that the difference is material (“those standards” refers to “the ordinary standards of reasonable and honest people”) nonetheless in grappling with the ‘second stage’ test, the Panel did not seem to consider any explanation for the entries which did not involve dishonesty, being drawn to only one conclusion having regard to the “nature, number and significance” of the entries. I note that it was not the Appellant’s case that the entries in the records had, for instance, been made by mistake (indeed, the Appellant conceded that there was no room for a mistake or error; her case was that her notes reflected the true account of events which in the material respects described above had been rejected by the Panel). But I consider that 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’ (see [28(ii)] above). It would have been appropriate for there to be some consideration of whether the record (or any of the records) 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.

In this respect, the Panel may have been better advised to consider the approach of Singh J in Uddin v GMC [2012] EWHC 2669 (Admin) by considering more specifically the Appellant’s state of mind. Singh J pointed out (at [31]) that:

“… even in the criminal context it is not general practice to give the so-called Ghosh two-part direction. … One context in which the twofold Ghosh direction may be required is where,on behalf of a defendant in criminal proceedings, an issue is raised whether he or she realised that the conduct charged was dishonest by the standards of reasonable and honest people. In many cases, there will be no such issue of fact raised. It will be perfectly apparent that if the conduct alleged did take place then it clearly was dishonest. 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?” (emphasis by underlining added).

I am concerned in this case, as Singh J was in Uddin (see [48] ibid.), that the fact that the contents of the records are inaccurate and misleading, and indeed are "false", led the Panel straight to the conclusion that they were completed dishonestly without properly considering other options.

(ii) The point above is linked to the next argument run on this appeal, which is that the Panel could have taken its own independent view on the issue of intent/motivation; it could have rejected the Appellant’s case that she had not made false entries, and rejected the NMC’s case that she had made false entries dishonestly, and simply resolved that the case was not proved. Miss Christie-Brown suggested to me for example that the erroneous entries could have been the product of “innocent or negligent mistake” (per Uddin v GMC [2012] EWHC 2669 (Admin); §47 Skeleton Argument). On this point, I was referred further to the interesting decision of Rhesa Shipping Co. SA v Emunds: Rhesa Shipping Co. SA v Fenton Insurance Co. Ltd. [1985] 1 WLR 948 (The POPI M). A similar point was made by Coleridge J Re A (Removal Outside Jurisdiction: Habitual Residence) [2011] EWCA Civ 265,[2011] 1 FLR 2025, where he said:

“In my judgment, a fact-finding judge is always entitled to consider version A put forward by one side and also version B put forward by the other and reach version C which represents a selection from or a mix or hybrid of the two competing versions. Such a course is always open to him providing the judge explains, by reference to the evidence, how and why he reaches a conclusion different from that contended for by either side” [54].

Munby LJ specifically agreed with this: see [50].

Having reflected on it, I do not conclude that the Panel was wrong not to take a third route which was neither advocated by the Appellant or the Respondent; but given that it did not ostensibly review all the possible reasons for the entries, and appeared to take a course between the factual findings and the finding of dishonesty which did not reflect those reasons, they did not appear specifically to entertain the possibility that the allegation of dishonesty was simply ‘not proved’.

(iii) Impairment finding: At the impairment stage of the hearing, the Panel found that the Appellant had “compounded” her failures of clinical practice “by dishonest record keeping which the panel considers was undertaken in order to conceal those failings”. This rationale for the false entries did not feature in the Panel’s discussions of its findings of fact.

Miss Christie-Brown submits that “if the notes were completed contemporaneously, then it makes it more likely that they are an accurate record, in the absence of evidence to the contrary, and therefore reliable” (Skeleton Argument §30). This argument is not logical, and I do not accept it. However, a better point argued on behalf of the Appellant in this regard was that “the failure to explain matters properly at the proper stage casts doubt on the correctness of the reasoning which lay behind the findings of fact, including dishonesty” (§40 Supplemental Skeleton Argument). The question of whether the entries were made contemporaneously or retrospectively should have been asked at the fact-finding stage; the fact that these essential questions were being addressed at the impairment stage suggests that they had not sufficiently addressed the issue of the Appellant’s state of mind when the entries were made.

(iv) Consideration of dishonesty in respect of all earlier proven charges together. The Panel concluded that the Appellant’s conduct had been dishonest in relation to all four charges proved; however, in no respect did the Panel refer to having considered the charges individually. There was consensus at the Bar that the Panel ought to have done so: Miss Christie-Brown submitted that “even if it is proved that one of the entries was dishonest, it does not follow that all of the entries were” (§48 Skeleton Argument); Ms Hoggett-Jones appears to have accepted that it was incumbent on the Panel to consider the question of dishonesty separately in relation to the individual factual findings: “the mere fact that the panel summarised their reasons for finding the four dishonesty matters proven in one explanation does not mean that they did not consider each entry individually”: (§72 Skeleton Argument). Indeed it appears that this was their legal advice too (“You should consider the facts relating to each charge separately; the evidence is, or may be, different… The decision may not be the same on each.”)

Although neither counsel referred me to the decision of R v Lucas (Ruth) [1981] QB 720 and R v Middleton [2000] TLR 293 explicitly, the guidance from those cases is surely relevant, for, as appears from these authorities, 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 party or witness may lie for many reasons, for example, shame, panic, duress or distress; the fact that a witness has lied in respect of one matter does not mean that he or she has lied in respect of everything. It does not appear that the Panel considered the recordings of the events individually when examining the reasons for the entries, and in light of the guidance in Lucas I consider that it should have done so, and done so carefully. Why? Because the finding about dishonesty is a significant one; as the Panel itself explained in its review of the facts at the ‘sanctions’ stage – a finding of dishonesty operates as a significant sanction in itself.

In my judgment, the Panel ought to have considered the second ‘subjective’ test of Ghosh in relation to the charges taken individually; it is possible that in relation to one or more they may have concluded that the entry was not dishonest. Miss Christie-Brown specifically points to possible alternative explanations for the entries at least in relation to charge 1(g)(vi) and (vii); as the particular matter will be considered by the Panel afresh, I do not propose to comment further.

(v) Positive testimonials: The Panel plainly took into consideration the positive testimonials filed on behalf of the Appellant, and accepted the ‘good character’ evidence as “credible”. It specifically weighed the Appellant’s good character in relation to both:

Conclusion on charge 1(g)(viii): It follows that on four of the five arguments on dishonesty ([54-68] above), the Panel findings are not in my judgment satisfactory, or satisfactorily expressed. In my judgment, and for the reasons discussed the Panel appears to have approached the issue of dishonesty in an irregular way, such as to render its finding in this important respect unsustainable. If the reasoning of the Panel had been defective in only one of the five respects above, it may have been possible to conclude that the overall outcome is not vulnerable; but given the range and seriousness of legitimate complaints, I cannot so conclude.

I have had regard specifically to the provisions of Article 38(3) of the Nursing and Midwifery Order 2001 in reviewing the options for the disposal of the appeal.

In light of my conclusions above, I am of the view that I must allow the appeal in part – i.e. in relation to appeal against the finding on charge 1(g)(viii) only – and remit the case for a Panel to consider again the issue of dishonesty having regard to my comments. I shall hear counsel as to the precise form of order, and the manner &/or scope of the Panel’s re-consideration of the issue of dishonesty.

That is my judgment.

Chronology of relevant key events

Schedule B