Penny Ann Lavis v Nursing & Midwifery Council (2014) EWHC 4083 (Admin)
Ms Lavis had worked as a nurse and midwife for many years without previous incident when she was assigned to assist Patient A with the birth of her first baby. The birth did not go smoothly and tragically the baby died a few days later. As a consequence Ms Lavis faced wide ranging charges including both clinical issues and concerns that she dishonesty made inaccurate entries in the patient’s notes. Ms Lavis disputed many of the criticisms levelled at her. Nonetheless, a number of charges were found proved, including the dishonesty allegations, and Ms Lavis was found impaired and suspended for four months.
Her appeal was wide-ranging. She challenged a number of the panel’s factual determinations. Save for the charges relating to dishonesty, these points of appeal failed. As the court noted, “evaluating evidence is an essentially impressionistic exercise, in respect of which the fact-finding tribunal… has a significant advantage over the appellate court.” The panel were entitled to form the view that Patient A’s evidence was more reliable and credible than Ms Lavis’.
The appeal did, however, raise significant concerns over the panel’s approach to the issue of dishonesty. The panel was advised to apply the two stage Ghosh test. In considering the objective limb it decided:
“the reasonable and honesty 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”.
It then considered the subjective limb and found:
“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.”
As the court noted, the term “deliberately misleading” had no place in the objective element of the test. It distorted the issue. Moreover, it was not necessarily the case that false records invariably must lead to a finding of dishonesty, as the panel appeared to reason. The panel had rejected Ms Lavis’ account, but that did not necessarily mean that the NMC’s case was right. The court may consider the truth to be in between the two accounts, and need not wholly accept either side’s position.
The court considered,
“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’”.
At the impairment stage the panel noted that Ms Lavis’ clinical failings were “compounded… by dishonest record keeping which the panel considers was undertaken in order to conceal those failings.” This reasoning dealt with the issue of the Appellant’s state of mind, but this was an issue which should have been determined at the factual stage. It was not appropriate to seek to maintain those factual findings by reference to this impairment reasoning.
Clearly, the panel’s approach to the issue was deeply confused. It would have done better to have followed the approach laid down in Uddin v GMC (2012) EWHC 2669 (Admin), which observed that the real issue in cases such as this was (i) whether the conduct took place, (ii) and with what state of mind. In the case of a false record entry, was it an innocent mistaken, made negligently, or was it in fact a dishonest thing to do?
Moreover, the panel had considered the dishonesty charges altogether. It should have given each separate allegation individual attention and separate reasoning. Citing the case of R v Lucas (1981) QB 720, just because someone lies in relation to point A, it does not mean he is therefore lying about point B. In those circumstances, the appeal was allowed in part and the case remitted back.
Commentary
The case provides further criticism of panels blindly being advised to follow the Ghosh test. In criminal courts and regulatory hearings alike frequently this is not a helpful approach.
It is also worth highlighting the fact that a rejection of a registrant’s version of events should not inexorably lead to the conclusion that the NMC has proved its case. As Coleridge J had already noted in Re A (Removal Outside Jurisdiction: Habitual Residence) (2011) EWCA Civ 265:
“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.”
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