Duthie v The Nursing and Midwifery Council

On an appeal from a professional disciplinary tribunal, the statutory question is whether the tribunal’s decision was wrong. The High Court must respect specialist findings, particularly findings based on witnesses whom the tribunal heard, but that caution is not a bar to intervention. A tribunal must engage with significant, reliable contemporaneous records and explain conclusions which appear inconsistent with them. A finding that documents were altered may damage the author’s credibility, but it does not, without more, establish the credibility of another witness or prove the substantive allegation. A tribunal may infer that documents were fabricated even without a formal charge alleging fabrication, although fairness ordinarily requires the allegation to be clearly put and, where it is to be relied upon, appropriately charged.

Julia Ann Duthie, an independent midwife, appealed under regulation 38 of the Nursing and Midwifery Order 2001 against the decision of the Nursing and Midwifery Council’s Conduct and Competence Committee. The Committee found that her fitness to practise was impaired by misconduct and directed that she be struck off the register.

The case concerned the care of Mrs A during a high-risk breech pregnancy and home labour. The Committee found some allegations proved, including that Duthie had failed to provide appropriate care and had dissuaded Mrs A from going to hospital. It also found failures concerning vaginal examinations, communication of the baby’s estimated weight, and notification of the ambulance service. The central issue was whether the Committee’s factual conclusions were wrong in light of the contemporaneous records and the evidence.

1. Appeal standard. Under regulation 38 of the Nursing and Midwifery Order 2001, read with CPR 52.11(3), the court had to determine whether the Committee’s decision was wrong. It was required to show considerable respect to a specialist tribunal, especially on credibility findings, but that did not create a bar to intervention. The approach in Azzam v GMC, [2008] EWHC 2711, Chauhan v GMC, [2010] EWHC 2093, and Cheatle v GMC, [2009] EWHC 645, was applied.
2. The Committee was entitled to conclude that Duthie had altered or expanded typed notes after the events in an attempt to bolster her position. That conclusion was supported by the marked contrast between the manuscript and typed records and the absence of a satisfactory explanation. However, the Committee made an illogical leap in treating that conclusion as support for the credibility of Mr and Mrs A. The reasoning failed to grapple with important conflicts between their evidence and reliable contemporaneous records created by other professionals and with unchallenged records created by Duthie. A finding of dishonesty or fabrication does not necessarily establish the truth of the opposing account. The caution identified in Lucas, [1981] QB 720, was material.
3. The Committee’s finding that Duthie had dissuaded Mrs A from going to hospital was therefore wrong. The related finding concerning the failure to explain risks was conceded to be unsustainable. The findings on Limbs 1 and 6 could not stand.
4. The Committee was entitled to make the findings on the remaining limbs. It could prefer Carol Axon’s evidence concerning Mrs A’s reluctance to undergo vaginal examinations. It could find that Duthie had not informed Axon and Fiona Shaw of the baby’s estimated weight. Duthie accepted that she had not informed the ambulance service that Mrs A was in labour, contrary to the supervisory plan. Limbs 4, 7, 8 and 9 were therefore properly made out, although the failures concerning the ambulance service could not have affected the outcome on the facts.
5. Although the Committee could consider whether documents had been fabricated without a formal charge alleging fabrication, it would ordinarily have been proper to formulate charges if that case was to be advanced. The court invited submissions on the consequential order and on how the matter should proceed in light of the judgment.

• Conduct and Competence Committee of the Nursing and Midwifery Council: on 16 March 2011 found some allegations proved, found fitness to practise impaired by misconduct, and struck the appellant off the register.
• High Court (Administrative Court): on appeal under regulation 38 of the Nursing and Midwifery Order 2001, held the findings on Limbs 1 and 6 wrong, upheld the findings on Limbs 4, 7, 8 and 9, and reserved consequential orders.