Newsletters Professional Discipline 14th Jun 2018

“If it’s not Written Down, it Didn’t Happen”

Professional discipline proceedings very often raise the question: on what evidence can a tribunal infer that a particular omission was made. Allegations are often pleaded in the alternative, in the broad format, “did not do”/“did not record”. Very often the failure to do something is proved by the evidence of a patient, or perhaps by the evidence of some subsequent development in the patient’s condition that gives rise to an inference that the omission must have been made.

Some regulators, notably the General Dental Council and the Nursing and Midwifery Council, however, will take matters a step further. Cases are brought with regrettable frequency where the sole evidence is the clinical records. The regulator’s case is: it was not written down, so you can infer that it did not happen.

This is a line of reasoning that is eminently open to challenge. It is hardly necessary to point out that it is not for the professional to prove to the tribunal that he did do whatever is alleged. That would be a reversal of the burden of proof. The regulator must produce evidence as part of their case to satisfy the tribunal that the professional made the failing.

That evidence cannot consist of a mere absence in the patient notes. It is right to say that if Mr X does not take a medical history then Mr X will not record taking a medical history, but to suggest that the reverse is also true is a logical fallacy: “All birds have two legs. I have two legs, therefore I am a bird”.

There are also a number of points to be made about the dangers of treating the records as an infallible guide to the treatment provided. Close examination of most patient notes will show that on occasion things are done but not recorded, or are recorded in some parts of the notes (on a chart, perhaps) but not elsewhere.

In some cases there will be at least a suspicion that the tribunal do not have a full set of patient notes. The referral may have been made by colleagues with a motive to hide documentation implicating themselves. Paperwork may have been lost or destroyed. If there is a hint that there may be missing documents, then it is difficult to rule out the possibility that matters were recorded but the records are not available.

Moreover, one of the key reasons why record-keeping failures are regarded as serious is that inadequate patient notes mean that a person reading the notes cannot work out what has happened at a previous consultation. The obvious consequence of this is that not only can another professional not work out from the notes what has happened but neither can a tribunal. It follows as a matter of logic that if an event is not recorded in these inadequate and deficient notes then it may be that the event did not happen, but it may equally be that it was not recorded. If it were the regulator’s case that the professional’s notes were impeccable in all regards then there might be some basis for suggesting that where he has not recorded something then that is because it was not done, but that is a rather more difficult proposition when the regulator’s case is that the notes were far from impeccable.

The point has been considered recently, once by the Court of Appeal (Civil Division), and once by the NHS Litigation Board. These decisions do not bind a tribunal but they may be of persuasive value.

The NHS Litigation Board determined a dispute between the NHS Commissioning Board and on 30 December 2013. The Commissioning Board had refused to pay a dental contractor for dental work on the basis that there was no record that the work had taken place. The Litigation Board made the following observations:

NHS England refers to the FGDP publication “Clinical Examination and Record Keeping Good Practice Guidelines” as regards the standards for record keeping. This may inform any consideration of whether or not a contractor has complied with obligations under a contract to keep appropriate records but I have not found it of any assistance in determining the issues which I have had to address…

The comment from those guidelines included [in] NHS England’s submissions… that “If it is not in the record, it did not happen” is oft repeated but, while that may be a helpful way to encourage practitioners to make full records, I cannot accept it as a principle on which to decide whether events did or did not occur….

NHS England argues that it has established a prima facie case that the records do not contain evidence of a full examination. That may be so, but I have not found any prima facie evidence that examination, assessment or treatment planning was not carried out. No information has been produced which suggests that the patient disputes the conduct of an examination and assessment and the development of a plan for treatment in any case…

In Miller & Another v Health Service Commissioner for England [2018] EWCA Civ 144, the Court of Appeal considered a decision made by the Health Service Commissioner for England in relation to a complaint about medical treatment. Gloster  LJ referred in her judgment to “an unfortunate use of language” on behalf of the Commissioner’s Director:

…when he said “if it is not written down it didn’t happen unless there is other corroborating evidence”. I do not accept that this was an erroneous use of language. It reflected the practice of and language used by officials in the documents to which this court was taken, i.e. unless the doctor had notes something in the clinical records, poor practice is assumed… that is an inappropriate way to conduct an investigation

Each case turns on its own facts, but where the regulator’s case does not go beyond “if it is not written down it didn’t happen” that mantra cannot necessarily give rise to a prima facie case against a registrant.

Sarah Przybylska

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