Newsletters Professional Discipline 25th Feb 2021

Medical notes: a presumption of accuracy?

The status of medical records is a key consideration in many regulatory cases. It may often be critical. Indeed, it may sometimes be the only bulwark against a patient’s vehement recollection – years after the event – that a particular symptom was present on a given day, or some specific advice was not given by the registrant.

Two recent decisions touch on this issue and reinforce the status of such notes.

In Daniel Failes v Oxford University Hospitals NHS Trust [2020] EWHC 3333 (QB) the court drew assistance from the decision in Synclair v East Lancashire Hospitals NHS Trust [2015] EWCA Civ 1283:

Clinical records are made pursuant to a clear professional duty, serious failure in which could put at risk a practitioner’s registration. Moreover, they are not compiled simply as a historical record, they fulfil an essential and ongoing purpose in informing the care and treatment of a patient. Contemporaneous records are for these reasons alone inherently likely to be accurate.”

It also cited HXC v Hind [2020] EWHC (QB) where the court considered that the “logical corollary” of the teaching rule, “if it is not recorded, it did not happen”, must be “if it is there; it did happen”. It added:

The court can and often will take a starting point, but no more than a starting point, that a contemporaneous entry made by a medical professional is likely to be a correct and accurate record of what was said and done at a consultation/examination.”

In Failes the court adopted just such a starting point in its consideration of key entries in a laminectomy chart – namely “I took as a starting point a presumption that they accurately recorded the belief of the relevant nurse after some form of investigation or assessment”.

In a similar vein, in Ismail v Joyce [2020] EWHC 3453 (QB) the court also had to consider the conflict between witness evidence and the GP’s record. In doing so, it noted the inherent unreliability of witness memory years after the event. This is a point stressed increasingly over the years – for example, Mostyn J in Lachaux v Lachaux [2017] EWHC 385 (Fam):

Witnesses, especially those who are emotional, who think they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter, the imagination becomes more active. For that reason, a witness, however honest, rarely persuades a judge that his personal recollection is preferable to that which was taken down in writing immediately after the incident occurred. Therefore, contemporary documents are always of the upmost importance.”

In this context, medical records – as a contemporaneous record produced before any suggestion of any complaint – are often likely to be very significant. Of course, they cannot be determinative. As Ismail commented:

it does not necessarily follow that just because the complaint of a particular symptom does not feature in the record of a consultation, it was not, in fact, mentioned by the patient. Sometimes a doctor will obtain an extensive history and make a very detailed record. Sometimes, because of pressure of work or for whatever other reason, a doctor may take a less extensive history and will make a somewhat briefer note.”

There is unlikely to be a better substitute for full and robust contemporaneous notes. Whilst this may appear a counsel of perfection, the benefit of such notes may well be felt as much by the doctor as the patient in question.


Christopher Geering



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