McGuinness v Nursing and Midwifery Council

This is a statutory appeal brought by the appellant, Ms Josephine McGuinness, pursuant to articles 29(9) and 38 of the Nursing and Midwifery Order 2001 against a decision of a panel of the Conduct and Competence Committee (“the panel”) of the Nursing and Midwifery Council (“the NMC”), the respondent, made in a decision letter dated 18 August 2015.

The panel found proved against Ms McGuinness a number of serious clinical failings and two dishonest attempts to conceal two such clinical failings. In the light of those findings Ms McGuinness conceded, and the panel also found, that her actions amounted to misconduct and that her fitness to practise as a nurse was impaired. The panel concluded that the only proportionate sanction was to make a striking-off order, which had the effect of removing her from the nursing register.

Ms McGuinness now appeals that decision, which she is entitled to do as of right. She issued her appeal in time on 15 September 2015. She has identified 30 separate grounds of appeal and she has produced a skeleton argument running to 68 paragraphs in support of her appeal. The respondent’s case has been presented by Mr Kewley, counsel, who has also produced a detailed and helpful skeleton argument. The hearing was originally listed on 9 June 2016 but had to be adjourned due to the time estimate being insufficient. The same occurred, regrettably, at the adjourned hearing on 18 August 2016. Three days were allowed for this hearing although the submissions were able to be completed in two days. I was provided with an appeal bundle comprising 3 lever arch files, including the decision of the panel, the documents placed before the panel, and a full transcript of the proceedings before the panel. I have read the transcripts of the evidence of the relevant witnesses, including the evidence of Ms McGuinness in relation to the charges the subject of the appeal to which she referred me in her note. Page references in this judgment – for e.g. [p1] - are references to the page numbers in the appeal bundle.

Ms McGuinness has acted as a litigant in person throughout in relation to this appeal, although she was represented by counsel instructed by the Royal College of Nursing, Mr Jones, before the panel, save for the sanctions stage of the hearing in August 2015, when she was unrepresented. Ms McGuinness suffers from anxiety and stress and she understandably found it an ordeal to have to represent herself in court on this appeal, needing regular breaks to compose herself. She was however able to present her case clearly and in detail, and I am grateful both to her and to Mr Kewley, who presented the case on behalf of the NMC with skill and with moderation.

The hearing before the panel, which took place in four sessions over 15 days from 19 January 2015 through to 12 August 2015, addressed allegations of misconduct during a period between December 2010 and June 2012 when Ms McGuinness was employed by the University Hospital South Manchester Trust (“the trust”) as a band five staff nurse at the University Hospital of South Manchester (“the hospital”). At the hearing the panel heard evidence from five witnesses on behalf of the NMC, and from Ms McGuinness herself.

In summary, there were 22 separate charges; concerning allegations of misconduct in relation to 18 separate events, 4 of which were said to have been dishonest. Ms McGuinness admitted some of the charges and the panel found proved some – but by no means all – of the charges which remained in issue. As I have said the panel also found dishonesty proved in relation to 2 of the 4 charges where it was alleged.

Ms McGuinness’ grounds of appeal, as amended, fall into three broad categories:

During the course of the hearing Ms McGuinness sensibly focussed most of her attention on the two charges where the NMC alleged and the panel found dishonesty. She also sensibly recognised that unless I allowed the appeal in relation to the findings of dishonesty she could not realistically contend that the sanction imposed was disproportionate.

An appeal such as the present is to be dealt with by way of rehearing in accordance with Part 52 of the Civil Procedure Rules. Part 52.11 (3) provides that the appeal court will allow an appeal where the decision of the lower court was:

In his written and oral submissions Mr Kewley referred me to a number of well-known and established authorities which set out the approach which an appeal court should take in cases such as the present. In particular, I refer to:

I was also referred to a more recent judgment of HHJ Roger Kaye QC, sitting as a High Court Judge, in Mulholland v Nursing and Midwifery Council [2016] EWHC 952 (Admin), where at [38], having referred to Southall, he said that:

“The panel was not, as Ms Maudsley seeks to persuade this court, bound to address in their decisions every single facet or factor of evidence, only those important and relevant aspects which proved or failed to prove (as the case might be) the charges laid against her in the manner made clear in the previously cited authorities.”

In her written and oral submissions Ms McGuinness referred me to a number of authorities. In particular, I refer to:

In order to understand the context of the charges, the hearing before the panel, the decision of the panel and the arguments advanced on this appeal, I should provide some brief background. This is taken in part from the panel’s introductory findings at [pp.47-48]. Ms McGuinness qualified as a nurse in 2007 and was initially employed at the hospital in April 2008. She worked on a number of different wards, including a ward known as F10, a pre-discharge ward, and a two-sided ward known as F4, a combined acute medical ward and pre-discharge ward. In June 2011 there was an investigation into a series of incidents surrounding her administration and recording of medications which had been noted by the ward sister, Ms Kasmir, who was a witness before the panel. A disciplinary hearing took place in August 2011, the outcome of which was that Ms McGuinness was given a final written warning. Following a period of six months’ absence due to ill-health suffering from stress Ms McGuinness returned in January 2012 to ward F10. In April 2012 she was transferred to a different ward, ward F7, a rehabilitation unit, where it was said that she continued to make errors with regards to her medicine management. A record of what was happening was kept by the ward manager, a Ms Royle, who was not called as a witness. A plan of action was put in place to support her at work and in her administration of medication. However in July 2012 a further disciplinary investigation was conducted by a Ms Connaughton into further alleged errors. Ms Connaughton was a directorate matron at the trust, responsible for overseeing a number of wards, who was also a witness before the panel. The result of the investigation was that a formal disciplinary procedure was invoked and a disciplinary hearing took place in October and November 2012, presented by Ms Connaughton to an independent panel, the outcome of which was that Ms McGuinness was dismissed by the trust from the hospital. Ms McGuinness exercised her right of appeal, but was unsuccessful. She has not worked since, again due to ill-health due to stress.

As well as hearing evidence from Ms Kasmir and Ms Connaughton, the panel also heard evidence from the following witnesses, who also provided witness statements with exhibits:

Before considering the outstanding allegations the panel recorded, correctly, that it was a matter for it as to what weight if any to attach to the evidence before it. It correctly reminded itself that it had to decide whether, on the balance of probabilities, the facts set out in the charges had occurred. It correctly reminded itself that the burden of proof rested with the NMC and that there was no burden on Ms McGuinness to disprove the charges.

The panel also recorded that it had accepted the advice of the legal assessor who advised the panel of the factors to take into account when assessing dishonesty as alleged in charges 9 and 19. There is no suggestion by Ms McGuinness that the advice given by the legal assessor in relation to dishonesty, or indeed more generally, was wrong.

In addressing the substantive appeal, which task I now begin after that lengthy introduction, I will adopt the same approach as Ms McGuinness and Mr Kewley and begin with the two dishonesty charges and then move on to the remaining contested findings before dealing with all remaining matters.

The charges and the panel’s decision were as follows:

“8.

On 21 April 2012:

8.1.

Administered medication to a patient when the drug kardex was still in pharmacy, namely:

8.1.1.1 Fortisip;

8.1.1.2 Paracetamol;

8.1.1.3 Sodium Bicarbonate

Ms McGuinness admitted giving the patient Paracetamol when the Kardex was in the pharmacy but she denies giving Fortisip or Sodium Bicarbonate. Colleague A [Ms Stansfield] was the sister in charge of the ward on 21 April. She told the panel that during the shift Ms McGuinness came to see her and told her that she had given all three medications to the patient whilst the Kardex was in the pharmacy. She said that Ms McGuinness justified this by saying that she had been caring for the patient for the past 5 days, had a note of his medication in her pocket and knew what medication to give him. Colleague A told Ms McGuinness to record this in the daily evaluation sheet. Colleague A later looked the evaluation sheet and the entry read “Kardex in pharmacy. Left shift. Given at 13:00 – Paracetamol + fortisip – and Bicarbonate”.

The panel copy of the daily evaluation sheet has the same entry but after the word “bicarbonate” there are the following additional words “needs to be given”.

In her evidence to the panel Ms McGuinness stated that she wrote the whole entry including the words “needs to be given” on 21 April 2012. She told the panel that she gave the Paracetamol because the patient was in pain. In her evidence to the panel Colleague A was certain that when she looked at the evaluation sheet on 21 April the words “needs to be given” were not on the sheet. The matter was investigated by Ms 1 [Ms Connaughton] and details were included in the minutes of an investigatory meeting held on 11 July 2012 which referred to Colleague A confirming that Ms McGuinness said that she had given all three medications.

The panel preferred the evidence of Colleague A to Ms McGuinness. Colleague A was asked several times about the incident and she maintained throughout that she had a clear recollection of the incident and that she was certain both that Ms McGuinness told her she had administered all three medications and that the words “needs to be given” were not on the evaluation sheet on 21 April 2012. What particularly persuaded the panel was that Colleague A recalled that she was concerned that all three medications had been given because of the possibility of duplicate doses, which the panel finds would be a plausible reaction of a ward sister in such circumstances.

The panel therefore find this charge proved.

8.2.

Made an entry in the nursing notes indicating that some or all of the medications in 8.1 still needed to be given.

Ms McGuinness admitted charge 8.2.

9.

Your action(s) as set out in charge 8.2 were dishonest in that you sought to disguise the fact that you had already administered the medication in 8.1.

The panel has found charge 8.1 proved in full, and has also found that the words “needs to be given” were added at a later stage to the daily evaluation sheet.

The panel noted that at this time Ms McGuinness was aware that her actions were subject to greater scrutiny than would normally be the case for a band 5 nurse simply because she appeared to be making a large number of basic errors. The panel considered whether as a registered nurse she would consider it dishonest to alter medical records retrospectively, without recording a retrospective alteration, and to put information in those records which she knew not to be accurate. The panel concluded that as a registered nurse she would know such actions were dishonest and that her actions were motivated by an attempt to mislead others and to protect herself.

The panel therefore find this charge proved.”

Ms McGuinness took a point as to the wording of the charges. She submitted that the drafting of the charges was insufficiently clear. I regard that as a point of no substance whatsoever. The wording of these charges is perfectly clear in my view. Significantly, no point was taken in this regard before the panel. That is notwithstanding that Mr Jones, who was clearly a competent and experienced counsel, regularly retained by the RCN to defend nurses at disciplinary hearings such as this, took a number of other preliminary objections, including objections to the wording of certain of the charges. Indeed, he successfully opposed an application on behalf of the NMC to amend one of the charges, which in consequence had to be withdrawn. If these charges were thought by Ms McGuinness or by him at the time to be unclear or otherwise such as to cause her prejudice, I have no doubt that it would have been raised at the hearing.

In her oral submissions she took a different point, contending that because charge 8.2 alleged that the amended entry was made on 21^st April 2012 when as a result of Ms Stansfield’s oral evidence it became clear that it was possible that the entry might have been made by someone else, on 22^nd or 23^rd, she was prejudiced in her ability to defend herself by investigating the possibility that the amendment was made on one of those later dates. That however is a fanciful argument, given that it was always her case and her evidence that she made the one entry on the one occasion on the 21^st April which was never subsequently amended by anyone else.

So far as the challenge to the substance of the decision is concerned, Ms McGuinness’ primary complaint is that although the panel referred to Ms Stansfield maintaining that she had a clear recollection and being certain about her evidence, it failed to engage with: (a) the actual evidence given by Ms Stansfield which, she submits, was neither clear, certain or consistent; (b) her own evidence which, she submits, was all three.

As to Ms Stansfield’s evidence, she points to the following:

Ms McGuinness submits that these are real and significant inconsistencies in Ms Stansfield’s account and that the panel could not properly have regarded her evidence as either clear, certain or consistent. I reject this submission, insofar as Ms McGuinness is submitting that it was not properly open to the panel to conclude that Ms Stansfield’s evidence was reliable or to be preferred to her own. I am prepared to accept – as is apparent from the evidence to which I have already referred – that Ms Stansfield’s account was not completely consistent in every material respect from start to finish. But the panel did not say that it was and of course what the panel might properly have regarded as relatively minor inconsistencies would never in themselves have been fatal to the overall credibility of her account.

In her submissions Ms McGuinness also attempted to cast doubt on the reliability of Ms Stansfield’s evidence by contending that her evidence both as to whether or not fortisip could be given without a prescription and as to the purpose of administering sodium bicarbonate was wrong. However, to make good this submission she attempted to rely on evidence which she had adduced in a document, comprising her further reflections, only provided to the panel after it had already produced its decision on the facts and, hence, which the panel could obviously not have considered at the fact-finding stage. In any event, it does not seem to me that this issue could have detracted to any material extent from the reliability of Ms Stansfield’s evidence, which was not whether or not the incorrect administration of these medications could have led to a serious outcome for the patient in this case, but the practice of administering medication which was prescribed in the sense that it was included on the Kardex without the Kardex being on the ward.

Ms McGuinness also submitted that the panel failed to engage with her argument that the way in which the disciplinary investigation was conducted in July 2012 was inconsistent with Ms Stansfield having reported to Ms Connaughton or anyone else that she had falsified the evaluation sheet. She pointed to the fact that the brief description of the incident which appeared on the version of the minutes which she had initially been provided with made no reference to any falsification of the evaluation sheet, simply stating “At handover Ms McGuinness advised that she had given fortisip, paracetamol and sodium bicarbonate to patient HT and the drug Kardex was in pharmacy”. (I should note in passing that although much was made by Ms McGuinness about the discrepancy between the two versions of the minutes, there is absolutely no reason to think that there was anything remotely sinister in the fact that the second version omitted reference to this introductory sentence.)

I accept that the minute does not record that the issue of the alleged alteration to the evaluation sheet was referred to in terms. However, it does record Ms Connaughton as asking why the evaluation sheet stated at 13.00 “paracetamol, sodium bicarbonate, fortisip had been given”. When Ms Connaughton was asked in cross-examination about this she said that “there was a discussion about what was documented and what had been said” [p.431]. She did however also accept that it was not clear that any allegation of falsification of documents was put to Ms McGuinness and later, in answer to questions from the panel, she said [p.478] that her role as investigating officer was simply to clarify the facts and [p.493] to “gain [Ms McGuinness’] account of these reported incidents”.

It is unfortunate that the notes originally made by Ms Stansfield, which were available to Ms Connaughton at the July 2012 hearing, and which might have clarified the position, were not retained. Ms Stansfield had referred to these notes in her handwritten statement made on 13 September 2012, as did Ms Connaughton in her minutes, so that it is clear that they existed. However, there was no suggestion that they had been deliberately destroyed or suppressed by either witness or by the trust or the NMC, or that the NMC had failed in its duty of disclosure in this regard.

In my judgment the essential question for the panel was not what was said at the interview but whether, insofar as specific reference was not made at the interview to the alleged alteration of the evaluation sheet, that indicated that Ms Stansfield had not by this point in time even alleged that this had happened. Ms McGuinness contended that she had not, and if she had it would have been taken much more seriously by the trust, so that it would not have been left until June 2012 to investigate. These are all points which I accept do have some force, and indeed they were made by Ms McGuinness to the panel in the course of her evidence and by Mr Jones on her behalf in final submissions, so that in my view there is no reason to think that this panel did not have them well in mind when reaching its conclusions.

In my view, given Ms Connaughton’s evidence as to the purpose of the investigation and as to what she recalled being discussed at the meeting, I am satisfied that the panel would have been entitled to conclude on the evidence that, even if an allegation that the evaluation sheet had been altered after the event by Ms McGuinness was not formally put to Ms McGuinness at the disciplinary investigation meeting in July 2012, that did not necessarily mean that Ms Stansfield had not previously raised it such that it damaged in any material way the overall credibility of Ms Stansfield’s account. On any view, it was not a point which the panel, acting reasonably, would have had no option but to accept and thus reject Ms Stansfield’s account as lacking credibility.

To avoid later repetition, I reach the same conclusion for the same reasons in relation to the credibility of Ms Lester’s account in relation to charges 17-19, which I address below.

Ms McGuinness also complains that the panel failed to refer or engage with her evidence, which as I have said she submitted was clear, consistent and credible. However, the panel clearly did refer to her evidence, both generally and specifically in relation to these charges. I accept that it did not expressly state that it rejected her evidence, or give reasons why. However, the panel stated that it “preferred” Ms Stansfield’s evidence to hers, and gave reasons as to why it found Ms Stansfield’s evidence credible. By reference to the principles stated in Southall there was no obligation upon the panel to go on to give reasons why it found Ms McGuinness’ evidence less credible, only to set out the key points for reaching the conclusion it did for preferring Ms Stansfield’s evidence.

Ms McGuinness also complains that the panel failed to give due consideration or weight to a document which was adduced on her behalf – in the face of objection from the NMC representative – namely the Medicines Management Policy which, at section 8.5, confirmed that it was acceptable for a nurse of her grade to administer paracetamol without a prescription, although which also stated that this should be documented on the front of the Kardex. However it is clear that this document was both put to the NMC witnesses and referred to by Ms McGuinness in her evidence. Moreover the panel were clearly aware of the nature of the three medications the subject of the charge, and of Ms McGuinness’ case that both fortsip and sodium bicarbonate could in fact be administered without a prescription. The panel was clearly entitled in my view to conclude that the gravamen of these charges related not so much to the intrinsic dangers of administering these medications without a prescription but to the failure to note the administration of medication on the Kardex and the subsequent alteration of the evaluation sheet to seek to conceal the full picture.

Mr Kewley’s essential submission was that all these issues went to the panel’s assessment of credibility and that there is no evidence or basis for believing that it did not consider them. He submitted that the panel was entitled to form the view that the resolution of the first factual issue in dispute as between Ms Stansfield and Ms McGuinness, namely whether or not Ms McGuinness had said that she had administered all 3 medications to the patient whilst the Kardex was in the pharmacy, was key to resolving the dispute as to charges 8.1.1.1 and 8.1.1.3, and hence as to the import of charge 8.2 and the resolution of the dishonesty charge 9. As Mr Kewley said, if the panel was not persuaded by Ms Stansfield’s evidence about what she had been told by Ms McGuinness, then there was no real basis for rejecting Ms McGuinness’ interpretation of the evaluation sheet, or concluding that it had been subsequently amended in an attempt to cover up the true position, whereas and by contrast if the panel was persuaded by Ms Stansfield’s evidence about that conversation then it was difficult to see how Ms McGuinness’ explanation as to why the evaluation sheet read as she said it did could ever have been credible.

Mr Kewley also submitted that: (a) there was never any question of Ms Stansfield’s account as regards what she was told by Ms McGuinness, whether in the previous documents or in her evidence to the panel, ever being anything other than completely consistent from day 1; and (b) the panel was entitled to place considerable reliance on the inherent plausibility of Ms Stansfield’s explanation as to why she was so sure that Ms McGuinness had referred to all three medications. I agree. I also note that in closing submissions the NMC case presenter made [p.1008] what seems to me to be a strong forensic point, which was that Ms Stansfield could scarcely have just guessed that the other two medications were fortisip and sodium bicarbonate. It follows, in my view, that the choices for the panel were either: (i) Ms Stansfield was correct in her recollection as to what had provoked her to question Ms McGuinness at the very outset; or (ii) having seen the evaluation sheet which, on Ms McGuinness’ case, had never been altered, Ms Stansfield had somehow persuaded herself that Ms McGuinness had said she had given all 3 medications when – on Ms McGuinness’ case - that was neither what she had said nor what the evaluation sheet had ever said. It is not difficult to see why the panel might have found the second choice rather difficult to accept.

I remind myself that the panel had to approach this issue with care, on the basis that they were aware that their decision on credibility was key not just to charge 8.1 but also to charge 9, which was a most serious charge of dishonesty. But I also have to remind myself that I do not have the considerable advantage which the panel did of seeing Ms Stansfield give her evidence in examination-in-chief, in cross-examination and in re-examination, as well as asking her questions themselves, and of seeing Ms McGuinness undergo the same process. It is not simply a question of demeanour, but of the panel being immersed in a full trial process over an extended period. I am prepared to accept that it is possible that a different panel on a different day might have reached a different conclusion, and might have concluded that it was not persuaded that Ms Stansfield was a more credible witness than Ms McGuinness. However, that does not mean that the decision which this panel made in this case, having heard these witnesses give the evidence which they did and having seen them do it, was one which can be said to be wrong.

Indeed, it is also right to record that in my view, although I accept Ms McGuinness’ account was not completely inconsistent with the evaluation sheet, at least on one reading of it, the more obvious reading of the evaluation sheet tended to support Ms Stansfield’s account. That is primarily because the word “2moro” (shorthand for “tomorrow”) had been deleted, which does not make sense even on Ms McGuinness’ account in cross-examination, which was that this was done on the advice of the nurse taking over at the end of her shift on the basis that even though she was scheduled to be on duty that day she might fall ill and be unable to come to work [pp.924-5]. It is also because the words “needs to be given” have at least the look of being added to the entry subsequently, which initially read “given at 1300 – para + fortisip – and bicarbonate. Sign kardex 2moro”.

I should also mention a further ground raised by Ms McGuinness, which was the panel’s failure to engage with her case that she had been the subject of bullying and victimisation. Ms McGuinness contends that where the panel had to decide between competing accounts given by the NMC’s witnesses on the one hand and her on the other, it was important to consider the reliability of the former in the context of her complaints. However:

I should also record that Ms McGuinness submitted that the panel should have questioned Ms Connaughton specifically about the allegations of bullying and victimisation and her involvement in the disciplinary process, with a view to making a fair decision as to whether or not the charges of dishonesty which had been put before the panel – but were not the subject of the disciplinary procedure – had been included as part of the campaign against her. However, as Mr Kewley said, this was an adversarial process and, having read Mr Jones’ cross-examination of Ms Connaughton, he undoubtedly cross-examined her in relation to all of these matters. It was not for the panel to ask the questions again, or in a different way. Furthermore the complaint itself makes no sense. Mr Jones cross-examined Ms Connaughton on the basis that she had decided that she had wanted to get rid of Ms McGuinness as a problem nurse on the ward, which is why these allegations had been taken up and followed through with such assiduity. But once Ms McGuinness had been dismissed by the trust Ms Connaughton had, adopting this hypothesis, achieved her goal. There would have been no reason for Ms Connaughton to have been part of some further campaign to injure Ms McGuinness by procuring that the same complaints, with allegations of dishonesty thrown in for good measure, were brought by the NMC.

Ms McGuinness also made a complaint about the NMC’s failure to disclose documents which she says supported her case in relation to bullying and victimisation. However, as Mr Kewley points out, these were documents in the possession or control of the trust, not the NMC. No request for disclosure or submission that the NMC had taken no or inadequate steps to seek to obtain relevant documents in this regard was made to the panel. The panel could have been asked to order further disclosure or even to stay the charges as an abuse of process if the panel had been satisfied that the NMC were in serious default as regards disclosure or that no fair trial was possible without these documents being made available. Whilst the panel might, as Andrews J. stated in Suddock, have been required to take into consideration the absence of potentially relevant documents when deciding the issues, there is no basis for a submission that the panel did not do this. As I have said the question of disclosure was raised throughout the panel hearing, and taken up by Mr Jones in closing submission on her behalf, both expressly on a number of occasions in relation to general charges – see for example [p.1021] – and generally – see the reference about non-disclosure being a “recurring theme” [p.1028] and the further express reference to non-disclosure at [p.1032].

I have looked at the further documents submitted by Ms McGuinness at this appeal hearing since, as Mr Kewley informed me on day 2, the NMC that did not object to my considering them without prejudice to the strict application of the test for admitting fresh evidence on appeal. In my view they take matters no further at all in this regard.

Finally, as regards the finding of dishonesty, Ms McGuinness complained that there was no evidence that she was aware that her actions were under scrutiny because she appeared to be making a large number of basic errors. However that is clearly a conclusion which the panel was entitled to draw, especially in the light of the chronology as regards the events of 2011 and the fact that she had received a final written warning at that point. Indeed Mr Jones submitted in closing [p.1031] that the fact that Ms McGuinness was aware that her actions were being closely monitored was a factor which made it unlikely that she would deliberately and dishonestly amend a document. As Mr Kewley submitted, there is no basis for criticism of this part of the decision, which clearly addressed the question of dishonesty from a subjective point of view in accordance with the relevant legal test, and the panel gave perfectly cogent reasons for arriving at the conclusion which it did.

The charges and the panel’s decisions were as follows:

“17.

On 22 and 23 June 2012:

17.1

Failed to administer Bisoprolol to a patient;

17.2

Failed to record on the drug kardex whether Bisoprolol had been administered.

Ms 3 [Ms Lester] gave evidence that she was administering Bisoprolol to the patient on 24 June and noticed that there were no entries on the Kardex since 21 June. She said that she counted along from the entry on 20 June, leaving two blank boxes for 22 and 23 June and made an entry in the appropriate column for 24 June. She said she saw Ms McGuinness later and mentioned the gaps in the medication record to her. Ms 3 stated that Ms McGuinness said that she was not aware that the patient was taking Bisoprolol. Ms 3 told the panel that Ms McGuinness went into the patient’s room and came out about 5 minutes later and asked her to look at the Kardex. Ms 3 said she would do so later. When she looked the Kardex it had been altered. The entry for 21 June now read 22 June and appeared to have Ms McGuinness’ signature in the box below. There was an entry in the first blank box for 23 June and there was still one other blank box. Ms 3 concluded that Ms McGuinness had altered the patient record.

In the disciplinary meeting on 11 July 2012 Ms McGuinness stated that the initials from 22 and 23 June were hers, that she had given the medication on those days, that the dates appeared to have been written over and that this caused some confusion. In oral evidence she maintained that Ms 3 was mistaken and that the accusation that she had written over another nurse’s entry had just “morphed” from the original allegation. She also pointed to what she considered were deficiencies in Ms 3’s medication practice. In addition, she maintained that as she had signed that she had given other drugs to the patient that day, it was inconceivable that she would have missed this drug. However, she accepted that she altered dates, from 21 to 22 and from 22 to 23 June. She maintained that now her signature for 22 June appeared to have been defaced.

The panel prefers the evidence of Ms 3 to the evidence of Ms McGuinness on this issue. Ms 3 was consistent that she initially saw two empty boxes on the Kardex and that when she brought this Ms McGuinness’ attention she returned with the Kardex which then only had one empty box. This was consistent with her account throughout this matter. The panel notes that she gave a written statement to Ms 1 and confirmed such in a meeting on 3 August 2012, just less than six weeks after the incident, during which she gave a detailed account of what had happened. Moreover, the panel notes that the entries which Ms McGuinness says she made were amended by her and that no satisfactory explanation has been given as to why, if she had made such entries contemporaneously on 22 and 23 June, she left no space for an entry on 21 June. In addition, the panel found Ms McGuinness’ evidence on this point evasive and was concerned that she attempted to portray Ms 3’s nursing practice as unreliable in a way which deflected criticism from Ms McGuinness.

The panel concluded that Ms McGuinness had altered the records along the lines suggested by Ms 3. The panel also concluded, on the basis that Ms McGuinness had not made any contemporaneous entries on the Kardex on 22 and 23 June, that she did not administer Bisoprolol on either of those two days.

The panel therefore find both limbs of this charge proved.

18.

On 24 June 2012, retrospectively recorded on the drug kardex of the patient that you had administered Bisropolol.

The panel has already concluded above that Ms McGuinness did not administer this drug and that she altered the records retrospectively after being informed of the situation by Ms 3.

The panel therefore find this charge proved.

19.

Your action(s) as set out in charge 18 were dishonest in that you were trying to conceal the fact that you had not completed the drug kardex.

The panel concluded that Ms McGuinness deliberately made retrospective entries in the patient’s records and attempted to pass these entries off as if they had been made contemporaneously. She knew that she was subject to close scrutiny following a series of errors made by her.

The panel concluded that Ms McGuinness, as a registered nurse, would consider that making retrospective and inaccurate entries in patient records in order to deflect blame for a mistake was dishonest.

The panel therefore find this charge proved.”

The case advanced by Ms McGuinness on appeal in relation to these findings on these charges is similar to that advanced in relation to charges 8 – 9.

Thus Ms McGuinness again took a point as to the wording of the charges, again submitting that the drafting of the charges was insufficiently clear. Again, and for the same reasons, I regard that as a point of no substance whatsoever.

The panel recorded both the evidence given by Ms Lester and by Ms McGuinness. As to the latter, Ms McGuinness complained that the panel had made an error in that it had wrongly stated that she had accepted that she altered two entries for two dates, from 21^st to 22^nd and from 22^nd to 23^rd June, whereas in fact she had only admitted altering the first date from 21^st to 22^nd, and then immediately and for a perfectly innocent reason, namely to correct her own mistake in incorrectly writing 21^st in the first place. Mr Kewley accepts that this was an error by the panel. What Ms McGuinness in fact said in cross-examination [p.965] was that she accepted that the original Kardex looked as if the date on the 3^rd column along (where the date 23^rd appears) had been altered, but she was disputing that it had in fact been altered by her at any stage. Nonetheless, as Mr Kewley also submitted, that was plainly an immaterial error, since it was not germane to the conclusions reached by the panel, because: (a) it had never been Ms Lester’s evidence or the NMC’s case that this entry had been present when Ms Lester saw it for the first time or, therefore, that it had been deliberately falsified; (b) the panel did not place any reliance on this in the paragraph stating their reasons for their decision.

The panel proceeded to give reasons for preferring the evidence of Ms Lester to that of Ms McGuinness. Mr Kewley submitted, and I agree, that the reasons given here were plainly adequate and sufficient in accordance with the obligation upon a tribunal such as this as expounded in Southall. As to those reasons give, the following points are material.

Ms Lester was indeed completely consistent throughout her evidence that initially she saw two empty boxes – more accurately columns running down the relevant part of the Kardex – and, having brought this to Ms McGuinness’ attention, the next time she saw the Kardex it had only one empty box or column.

Ms McGuinness submits that Ms Lester had not previously stated explicitly that when she saw the Kardex on the second occasion either the date or the initials in the second column had been written over. That is true. However, since it was Ms Lester’s evidence from the outset that when she first saw the Kardex the most recent completed column entry had the 21^st written in it in the date box, it was obvious from her evidence that she was saying that when she saw the Kardex for the second time that date now read 22^nd, so that I do not regard this as a point which seriously undermined the credibility of her account.

Furthermore, Ms McGuinness also submits that Ms Lester did not give evidence, whether previously or at the hearing, that Ms McGuinness had initialled over the previous initials on the second column. That is also true. But that is because Ms Lester very fairly accepted that she could not recognise Ms McGuinness’ initials and, hence, was unable to say whether or not Ms McGuinness’ initials did appear on that box. That, it seems to me, supports her credibility as a non-partisan witness rather than undermines her reliability. The panel was entitled to have regard to the fact that the alternative explanation advanced by Ms McGuinness, which was that someone had subsequently, after the disciplinary hearing, defaced the initials box on the second column by writing over her existing initials, was itself implausible and, insofar as it appeared to imply deliberate falsification, even more unlikely not just because that is inherently unlikely to have happened without good evidence to support it, but also because it is difficult to understand – even on Ms McGuinness’ hypothesis – what it was intended to achieve.

The panel gave as one reason for its finding on consistency the fact that Ms Lester had provided a detailed account in a written statement which she confirmed at the meeting with Ms Connaughton on 3^rd (in fact 2^nd) August 2012 which, as they noted, was less than six weeks after the incident. Before me Ms McGuinness has submitted that neither the statement nor the record of interview was formally put in evidence and indeed the latter was not even signed. However, as Mr Kewley submitted, the panel was entitled to have regard to this documentary evidence even if it might not have been admissible in civil proceedings, so long as it was relevant and fair to do so: see rule 31(1) of the Nursing and Midwifery Council (Fitness to Practise) Rules Order 2004. As he said, both documents had been placed before the panel as relevant and admissible documents by agreement of the parties through their representatives, so that there was no question of their admissibility being challenged or of it being unfair for the panel to have had regard to them. Furthermore, in fact Ms McGuinness herself made reference to the statement and to the interview record in her cross-examination at [p.966], as did Ms Connaughton in answer to questions from the panel at [pp.478-9], so that in that regard the evidence was put before the panel in evidence.

The panel was entitled to rely upon the fact that if Ms McGuinness’ explanation was correct then she would have been expected, as she admitted in examination-in-chief [p.846], to have left a gap between the entry on the 20^th and her entry on the 22^nd. She had to explain this by saying that she made a mistake by not appreciating when she came to sign the Kardex on the 22^nd that there was no entry for the 21^st there, but the panel were entitled to conclude that this was an unlikely explanation.

Indeed, in my view it goes further than that because, as was put to Ms McGuinness in cross-examination [p.964], it is clear that the same person had initialled that s/he had administered medication on 21 June in relation to all of the other entries on the Kardex. It would follow that, for Ms McGuinness’ case to be right, that person must for some unexplained reason either have failed to administer the bisoprolol on 21 June or failed to sign the Kardex to document it. Thus Ms McGuinness’ evidence involves two separate nurses having made two separate errors on two successive dates in relation to this one drug, which in itself in my view is intrinsically unlikely, although admittedly not impossible.

I accept that it could also however have been argued on Ms McGuinness’ behalf that if Ms Lester’s version of events was accurate, and she had left two columns free from 21^st to 24^th, it made no sense for Ms McGuinness to overwrite the existing column for 21^st and then complete the next column along, rather than just using the two free columns to add the entries for 22^nd and 23^rd. However these were all arguments which ultimately fed into the overall assessment and decision which the panel had to make, and it does not seem to me that this was anything other than one of a number of different points which the panel had to weigh in the balance when making its decision.

The panel was also entitled to rely upon its assessment of Ms McGuinness’ evidence on this point as “evasive”. That is an assessment which a first instance tribunal is entitled to make. It may be based on demeanour as well as the actual answers given. Mr Kewley very fairly conceded that it might be unsafe to rely on this alone, especially if the other evidence all pointed the other way. However, as he rightly said the panel relied on this as a buttressing point rather than as the sole, or even the main, point, and it was plainly entitled to do so.

The panel was also entitled to rely on its view of Ms McGuinness’ attempt to deflect criticism by blaming Ms Lester’s nursing practice. Although Ms McGuinness submitted that this was unfair because that is not what she was doing, and she was simply drawing attention to it in order to query Ms Lester’s reliability as a witness, I am satisfied that the panel was entitled to take the contrary view. She raised this criticism repeatedly, initially quite unprompted in examination-in-chief [p.847-8], and again in cross-examination at [p.963] and at [p.968]. It is difficult to see its relevance to Ms Lester’s reliability as a historian.

Turning to matters not mentioned by the panel, Ms McGuinness complains that the panel failed to question Ms Stansfield about her role in this incident. She said in examination-in-chief [p.847] that when Ms Stansfield had raised with her what Ms Lester had reported to her she was able to show her the Kardex with only one column missing, and expressed her concern that Ms Stansfield had not been asked about this in the disciplinary meeting. However:

Ms McGuinness also complains that there was no allegation of falsification or of overwriting dates or initials made at the disciplinary investigation of 11 July 2012. She complains that the panel ought to have questioned Ms Connaughton about this. However:

Ms McGuinness also complains that the NMC did not undertake, and she was given no opportunity to commission, a forensic examination of the original Kardex to seek to determine when or in what order the alterations to the boxes on the 2^nd column had been made. However again the answer to this point is that it was an adversarial process; it was for Ms McGuinness or her representatives to obtain such evidence if that is what she wished to do.

In the end it was for the panel to reach a decision about the alleged additions to the 3^rd column and the apparent alterations to the 2^nd column. I accept that the charge did not specifically allege that Ms McGuinness had overwritten both the date and the initials in the 2^nd column but it was – I am satisfied – implicit in the charge founded on the evidence of Ms Lester which supported it, and it was clearly investigated at some length and in some detail in the hearing before the panel. The panel was entitled to make this finding, even though as I have said Ms Lester herself did not feel able to give evidence in terms that she could recognise Ms McGuinness’ initials in the 2^nd column, not least because Ms McGuinness herself admitted that they were her initials. Again it is perhaps pertinent to observe that the logical conclusion from Ms McGuinness’ evidence and case is that someone connected with the trust, whether Ms Connaughton or someone else, had attempted in some way to write over the initials on the 2^nd column of the original Kardex entry after the event. Frankly it is difficult to see what the point of such a course of action would have been, unless it is said to have been some particularly crude and blatantly fraudulent attempt to strengthen the evidence against Ms McGuinness. Again, one comes back to Ms McGuinness’ complaints of bullying and victimisation, and to the fact that it was for the panel to weigh all of these matters in the round and to reach a conclusion about them, and there is no reason in my view to think that they did not. The conclusion which they reached cannot in my view be said to be one which an appeal court could categorise as wrong.

My task if to consider and decide, by reference to all of the evidence and the reasons given by the panel, whether the decision which they reached can properly be overturned by this court on appeal as being one which I am satisfied, having due regard to all of the advantages which the panel had which I do not have in making this decision, was wrong. As with charges 8 – 9, I accept that the evidence was not all one way, and I also accept that it is possible that another panel on another day might have come to a different conclusion on these charges involving, as they of course did, serious allegations of dishonesty. However, that is very different from a finding that the decision which the panel actually made could be regarded as wrong. I am very far from being convinced that the decision could in any way properly be categorised as one which was wrong. It was a decision the panel was perfectly entitled to reach on the evidence before it.

The charge and decision were as follows:

“2.

On 20 January 2011, failed to sign the drug kardex as to whether insulin had been

administered to a patient.

Ms 5 [Ms Kasmir] gave evidence that she was on duty that day and was quite sure that Ms McGuinness had stayed late after her shift to help. She was also clear in her recollection, that after looking at the patient’s drug chart, she rang Ms McGuinness at home to check whether the insulin had been given, and that Ms McGuinness could not remember whether she had given the insulin. Ms McGuinness stated that she did not stay late on that day and was therefore not at work at the time the medication should have been administered and the Kardex signed.

The panel noted that the Drug Kardex (Kardex) which was in the NMC exhibits had not been signed. The panel looked at the patient notes which had the following entry at 21:00 on 20 January:

“On examination of drug chart noted 17:00 insulin not signed for....Spoke to S/N Guinness (sic) (previous nurse) insulin not given none at time on ward”. This note was made by Ms 5 on the day in question and the panel has no reason to doubt its accuracy. This indicates that

Ms McGuinness was the nurse with responsibility for the patient at 17:00.

The panel concluded that Ms McGuinness was at work at the relevant time, that the patient in question was one of her patients and it was therefore her duty to administer the insulin and that she had failed to sign the Kardex.

The panel therefore finds this charge proved.”

This was a straightforward conflict of evidence between Ms McGuinness and Ms Kasmir, and the panel was plainly entitled to prefer and accept Ms Kasmir’s account on the basis that it was consistent with the contemporaneous entry. They had the benefit of the submission by Mr Jones in closing [p.1016] that there was a discrepancy between the entry and Ms Kasmir’s witness statement, and his further submission that even witnesses who are sure can still be wrong. There is no reason to consider they did not take these points into consideration.

The reality is that if this contemporaneous entry was genuine it is very difficult to see how it could not have been accurate. The only other possible explanation was that Ms Kasmir had created it after the event, and the panel would have been entitled to consider that a most unlikely explanation, unless it had been satisfied that this charge had been cooked up as part of a campaign of victimisation.

The charge and the decision were as follows:

“6.2

Failed to administer medication for the patients you had responsibility for during the lunch time medication round

Ms 5 made a note about this which is undated, but she informed the panel that she believes she made it shortly after the incident. Ms McGuinness told the panel that when she had finished speaking to Ms 6 about the administration of Clopidogrel (as set out above), she asked to be put through to Ms 5. Ms 5 stated that she was on duty when Ms McGuinness telephoned her, and that Ms McGuinness informed her that she had forgotten to do the lunchtime medication round. Ms 5 then looked at the Kardex records and it appeared to her that a number of patients had not been given lunchtime pain relief.

Ms McGuinness does not contest the fact that she rang Ms 5. However, she states that she rang simply to tell her that she had missed signing for one patient for whom she had administered a gram of Paracetamol.

The panel took into account that Ms 5’s note was made shortly after the event. Further Ms 5 was quite clear in her recollection that she checked the Kardex records for Ms McGuinness’ patients and a number of them had not been given the lunchtime pain relief. The panel prefer the evidence of Ms 5 to that of Ms McGuinness.

The panel therefore find this charge proved.”

The same general points as to the justification for the panel’s decision arise here as they do as regards charge 2.

Ms McGuinness complains about the lack of disclosure, saying – as she had to the panel [p.974] - that the RCN had asked for the drug Kardexes for all of the patients during the lunch time medication round, which had not been provided. However the same points may be made here as are made above in relation to other complaints about a failure to disclose relevant documents. Further, in this case, given that there was a contemporaneous entry which they regarded as genuine, the panel would have been entitled to conclude that the likelihood of there being any other contemporaneous documents which contradicted that note would have been small.

The charge and the decision were as follows:

“14 Between 14 and 16 June 2012:

14.1

Incorrectly administered Ramipril to a patient;

Ms McGuinness admits administering Ramipril but denies that it was incorrect to do so.

The panel considered the Kardex and associated patient records, which indicates that MsMcGuinness administered the drug on 14, 15 and 16 June. There is a note on the chart which appears to be written on 27 May which states “give if BP>100 systolic”. The panel notes from the minutes of the disciplinary meeting on 11 July 2012 that Ms McGuinness knew that this note was on the Kardex but that she had “misread” it. The patient’s blood pressure chart indicates that blood pressure was taken at least three times each day and, with one exception, the readings were always at or below 100. This is further corroborated by the patient’s MEWS score which is recorded as 1 in the systolic blood pressure score box, in all bar one of the boxes. A score of 1 in the systolic blood pressure box indicates that the blood pressure was between 85 and 89.

The panel concluded that the patient’s systolic blood pressure was consistently below 100 during this period and therefore it was incorrect to administer Ramipril.

The panel therefore find this charge proved.”

Ms McGuinness complained that although in the disciplinary hearing reference was made to the full notes being pulled for review and she had asked to see the doctors’ notes, those documents were not provided. When Ms Connaughton was asked if these notes would have been available she accepted that she could have obtained them from the archives [p.454], although of course she was not being asked whether or not she would in her capacity as an employee of the trust have been authorised to do so. The evidence as given by Ms McGuinness in re-examination [p.976] was that the NMC had asked the trust to provide these documents, and precisely the same points may be made here as I made in relation to charge 6.2 above. Mr Jones made the same submission about the absence of notes [p.1028] and again there is no reason to think that it was not considered.

Furthermore, as is apparent from the decision itself this is self-evidently a matter where the panel must have benefitted from the expertise of the nurse panel member, and this court ought to accord especial respect to the decision of a specialist panel in relation to challenges to decisions such as this, where the court does not have the specialist expertise available to the panel.

In oral submissions Ms McGuinness pointed out a discrepancy between the two versions of the same chart. However: (a) this was a matter which Ms McGuinness referred to it in her evidence and Mr Jones referred to it in his closing submissions, so that there is no reason to think that the panel did not give it such weight as was appropriate; (b) there is no basis for considering that it was a point of such weight that the panel was either obliged to find the charge not proved or at the very least explain why that conclusion did not follow, not least since the discrepancy referred to related to an entry on the 13^th June 2012, when the allegation related to 14^th to 16^th June 2012. The same points may be made in relation to her other complaint which was, as she said in evidence before the panel and repeated before me, on her version of events other nurses had administered Ramipril in similar circumstances to her. Indeed it is perhaps worth noting, in considering Ms McGuinness’ overall complaint of bullying and victimisation, that at the disciplinary hearing conducted by the trust the allegation based on this incident was not upheld for this reason, as Ms Connaughton confirmed in her evidence [p.410].

I refer to this solely for completeness, because although in the grounds of appeal there is no challenge to this decision there is, at [62] of the skeleton argument, a complaint that the panel preferred Ms Connaughton’s account in preference to her account.

Ms McGuinness did not press this in oral submissions. In my judgment there is no merit in this as a complaint. The panel’s reasons were that:

“The panel next considered the entry for 16 June. The panel were informed by Ms 1 that she had looked at this Kardex on or after 17 June and at that time, there was no entry on the Kardex for 16 June. She then took a photocopy of the Kardex. When she looked at the original Kardex again there was a date of 16 June and Ms McGuinness signature below it.

The panel concluded that Ms McGuinness completed this record at a date on or after 17 June 2012.”

This was a straightforward question for the panel as to whether or not to prefer and accept Ms Connaughton’s account to that of Ms McGuinness. It recorded the essence of the evidence given by Ms Connaughton and made it clear that it accepted that evidence. This was precisely the sort of succinct summary of reasons which Leveson LJ indicated was required in Southall, and there is no basis for any submission that the decision to prefer the evidence of Ms Connaughton to that of Ms McGuinness was in any way perverse.

Nothing was said in the grounds of appeal or the skeleton argument about impairment. That is not surprising since Mr Jones had, once the determination on the facts was promulgated, said at the hearing that Ms McGuinness accepted that her actions amounted to misconduct and that her fitness to practise was currently impaired.

The panel nonetheless considered the questions of misconduct and impairment in considerable detail and with scrupulous care, and concluded that Ms McGuinness’ fitness to practise was currently impaired by reason of her misconduct.

As I have said, at the hearing before me Ms McGuinness realistically conceded that if the findings of dishonesty stood there was no real prospect of her showing that the decision on sanction was wrong.

As Mr Kewley submitted in his skeleton argument, the panel was best placed to use its professional judgment to determine the appropriate sanction, considering all of the information before it and deciding what weight to place on the evidence provided by Ms McGuinness in light of the gravity of her misconduct and the potential risk to which she placed a number of patients in her care. Its decision to impose a striking-off order fulfilled the panel’s obligations to act proportionately while protecting the public and upholding the public interest. The panel gave clear and cogent reasons for its decision which was, I accept, unimpeachable.

Ms McGuinness did make some complaint about the panel failing to have regard to a further reflective piece that she had submitted to the panel at that point, but it is plain from the decision that the panel considered all of the material provided to it. There is no basis for her criticism of the procedural fairness of the sanctions hearing which took place in August 2015, at which point she appeared without the benefit of legal representation. As Mr Kewley submitted in his skeleton argument, and as I accept, that hearing was scrupulously fair. In particular:

Ms McGuinness also made a complaint that the panel had concluded, when considering the possibility of imposing a conditions of practice order, that she did not have the potential to undertake further training, since she had previously been under performance management by the trust and was unsuccessful in meeting the requirements of that programme. Whilst Ms McGuinness was unhappy with this conclusion, because she considered that she had only failed one drug assessment, it seems to me that this was a conclusion which the panel was entitled to reach and, moreover, even if the panel was in error in this regard it was plainly immaterial to the eventual outcome, since given the panel’s findings and conclusions in relation to the misconduct in particular the dishonesty charges the panel was clearly entitled to conclude, as it did, that “it would not be possible to formulate any practicable and workable conditions”.

This appeal fails and must be dismissed.

As I said at the conclusion of the hearing, if the parties are unable to agree all consequential matters I will be willing to deal with such matters by way of exchange of written submissions if practicable, to save Ms McGuinness the need for further attendance and the NMC the cost of doing so. Otherwise there will have to be a further short hearing to do so.