Lavis v Nursing and Midwifery Council

On an appeal from a professional disciplinary panel, the appellant must show that the panel was wrong. The appellate court should respect the panel’s advantage in assessing live evidence and specialist matters, while ensuring that material legal errors and inadequate reasoning are corrected.

A finding of dishonesty in relation to inaccurate professional records requires careful application of the Ghosh test. The objective and subjective stages must remain distinct. The decision-maker should consider the possible explanations for each entry and determine dishonesty separately for each allegation. Inaccurate or misleading records do not, without more, establish dishonesty.

A registered midwife appealed under article 38 of the Nursing and Midwifery Order 2001 against a Conduct and Competence Committee determination. The panel had found several failures in the care and monitoring of a patient in labour, including inaccurate recording, and suspended the appellant from practice for four months.

The appeal challenged factual findings concerning the appellant’s records and the panel’s finding that four inaccurate entries had been dishonest. The court upheld the panel’s factual conclusions but considered whether its approach to dishonesty was legally and analytically sound.

1. The appeal was allowed in part. The challenges to the factual findings relating to charges 1(g)(ii), (iii), (vi) and (vii) failed. The finding on charge 1(g)(viii), concerning dishonesty, was unsustainable and was remitted for reconsideration.

2. Under CPR 52.11(3), the appellant had to demonstrate that the panel was wrong. It was unnecessary to show that the panel was plainly or clearly wrong. Nevertheless, an appellate court should be slow to interfere with findings based on live evidence because the first-instance tribunal observes the witnesses and is better placed to assess credibility and reliability. That deference also applies to a specialist professional panel.

3. The panel’s reasons were sufficient on the principal factual disputes. A tribunal need not address every submission or evidential detail, provided its reasons enable the parties and an appellate court to understand the essential reasoning. The panel’s erroneous statement that records might be accurate was immaterial because it had in substance treated the relevant fetal-heart monitoring as appropriate.

4. The panel had applied the two-stage test in R v Ghosh, but improperly imported a subjective concept into the objective stage by treating inaccurate entries as deliberately misleading and dishonest. It also failed adequately to consider explanations such as carelessness, distraction, habit, shorthand, automatic recording of usual practice, or innocent or negligent mistake.

5. The subjective stage required consideration of whether the appellant realised that her conduct was dishonest by the ordinary standards of reasonable and honest people. The issue had to be considered separately for each entry. A conclusion that a person lied about one matter did not establish dishonesty about another. The panel’s later statement at the impairment stage that the records were intended to conceal clinical failings could not cure the inadequate fact-finding reasoning.

6. The panel had properly taken the appellant’s positive testimonials into account. Under article 38(3) of the Nursing and Midwifery Order 2001, the appeal was remitted to a panel to reconsider dishonesty in accordance with these conclusions.

• High Court (Administrative Court): The appeal against the factual findings was dismissed, but the appeal against the dishonesty finding on charge 1(g)(viii) was allowed in part and the issue was remitted to a panel for reconsideration. [2014] EWHC 4083 (Admin)