Louise Marten v Nursing and Midwifery Council

JurisdictionEngland & Wales
JudgeMr Justice Wyn Williams
Judgment Date13 April 2016
Neutral Citation[2016] EWHC 2183 (Admin)
CourtQueen's Bench Division (Administrative Court)
Date13 April 2016
Docket NumberCO/5747/2015

[2016] EWHC 2183 (Admin)




Royal Courts of Justice


London WC2A 2LL


Mr Justice Wyn Williams


Louise Marten
Nursing and Midwifery Council

Ms E Gargitter (instructed by the Royal College of Nursing) appeared on behalf of the Appellant

Mr J Edenborough (instructed by the Nursing and Midwifery Council) appeared on behalf of the Respondent

Mr Justice Wyn Williams

On 18 February 2013, the appellant was employed as a registered nurse in a paediatric intensive care unit at the Evelina London Children's Hospital. One of the patients for whom she was working on that day was a young boy, referred to throughout as Patient A, who was suffering from a serious illness. Throughout the day from time to time it was part of the appellant's duties to measure his heart rate and then record the measurement in an observation chart. On 18 February, the appellant was working the day shift. That means she was working between 7.30 am and 8.00 pm. Shortly before she went off her shift, as was the custom, she handed over to a nurse on the night shift. That nurse checked the observation chart and noted that the appellant had recorded the patient's heart rate throughout the day recording readings in the range 65 to 85 beats per minute. At that point the nurse on the night shift thought nothing of it.


Some time later she took her first measurement of the patient's heart rate. She found that this was 105 beats per minute and at that time the patient was asleep. The nurse thought that to be unusual. She thought it was unusual that the patient's heart rate should be higher when he was asleep than during the day when he may have been active and she thought it unusual that the rate had increased quite as sharply as apparently it had. Accordingly, she decided to make various checks. It suffices that I say that by the end of making a number of checks that nurse was concerned about the accuracy of the readings which the appellant had recorded on the observation chart. She reported her concerns and an investigation ensued.


In April of this year, a hearing began before the Conduct and Competence Committee of the Nursing and Midwifery Council to consider a number of charges which had been brought against the appellant as a consequence of the investigation to which I have just referred. Insofar as is relevant to this appeal the charges were as follows. 3.1. The appellant made inaccurate records, in that she recorded in the observation chart a heart rate of 65 — 85 bpm. A second charge was: 4. Your actions as alleged in charge 3.1 were dishonest in that you knew that the observations recorded were not correct.


Those allegations were contested by the appellant with vigour. She was represented by counsel, Ms Gargitter, and the thrust of her defence throughout was quite straightforward. She denied making any inaccurate records. Her case was that every record which she had made in the observation chart on 18 February 2013 was as a consequence of a measurement. She could not recall in respect of each entry how that measurement had been taken, whether by reading a monitor, by stethoscope or by some other means but she was sure in her mind that each of the records was a consequence of a legitimate measurement.


Accordingly, the battle lines were clearly drawn between the parties. The Council were alleging that these records were not accurate and not measured. The appellant was alleging that she had measured all the heart rate records which appeared in the observation charts. At the outset of the hearing, or at least very soon after it had begun, counsel for the appellant apparently sought some clarification of the basis upon which the Council were alleging the two charges and sought further elucidation of how it was going to be said and why it was going to be said that the appellant had acted dishonestly. As a consequence, from the outset (by which I mean from the point in time when the presenting officer opened the case against the appellant) the case against her was explained on the basis that the inaccurate records had been made at a time when, probably towards the end of her shift, the appellant was able to sit down and, in effect, write a series of bogus records in order to cover up the fact that she had not been monitoring the patient as she should have been throughout the course of the day. That was the basis upon which she understood the factual allegation of recording inaccurate records was being made and that was to be the basis for the further finding of dishonesty.


The hearing lasted a number of days, a number of witnesses were called and I simply record by way of explanation that the hearing lasted for a number of days because the panel were concerned not just with the allegations which I have so far described. Confining myself to those allegations, however, it seems that evidence about them was given to the panel by the nurse who had taken over on the night shift, by a nurse consultant who had been instructed to look at all the relevant documentation and, in effect, provide an opinion as to what had gone on on the 18th and, of course, the appellant herself gave evidence. It was those three persons together with relevant documentation which provided the evidence upon which the panel was to reach a conclusion.


The panel concluded that both charges were proved. That is the panel concluded that on 18 February 2013 the appellant had made inaccurate records by recording in the observation chart heart rates of 65 to 85 bpm and, secondly, when she had done so she was acting dishonestly because she knew that the observations recorded were not correct.


In this appeal brought to this court under the relevant statutory provisions, the appellant does not appeal against the finding that she made inaccurate records in the observation chart. Her appeal is confined to the finding that she was acting dishonestly when she did so. That is important, in my judgment, because it inevitably follows that the starting point for consideration of this appeal is the finding that the appellant made inaccurate records in the observation chart during the course of 18 February 2013.


I ask myself the rhetorical question: what does such a finding inevitably encompass in the context of this case? First, and perhaps foremost, it inevitably means that the panel rejected the appellant's evidence and her case that she had measured all the records which appeared in the chart. It seems to me that is beyond doubt and an inevitable consequence of the finding of guilt in respect of charge 3.1. Secondly, in my judgment, it means that the records made by the appellant were not based upon measurements as she alleged but were, putting it as neutrally as possible at this stage, assessments made by her. Third, on any view, she had deliberately recorded what is to be found in the records. By that I mean that these were not accidental slips of the pen. On any view, it was inherent in the findings made by the panel that she had written into the record measurements quite deliberately and it is against that background and against that context that the panel was enjoined to consider the issue of dishonesty.


Before dealing with that issue head on, let me digress for a moment. The presenting officer had sought to persuade the panel that the appellant had made the records in question effectively by sitting down at a point in time, writing them all out at that point in time to make it look as if she had been monitoring the patient throughout the day. There was no direct evidence to support that hypothesis on the part of the presenting officer, nor could there have been in the context of this case. No-one was suggesting that someone had been keeping observation upon the appellant as she was going about her duties in the course of the day just to see what it was that she was doing. No-one was suggesting that direct evidence was available for assessment by the panel. What, in effect, the presenting officer was doing was inviting the panel to draw an inference or reach a conclusion as to the most likely circumstances in which it was that the appellant had made these inaccurate entries.


The appellant herself, at least by evidence, had nothing to contribute in respect of this suggestion for the obvious reason that she was denying absolutely that she had made any inaccurate records. To repeat, her case was that she simply wrote down what she had measured. So, to repeat, the hypothesis put before the panel by the presenting officer was one which he was asking them to accept by way of drawing inferences or reaching conclusions from the primary facts which they found proved.


So it is in this context that I ask myself the rhetorical question: what was the case which the appellant had to meet? On dishonesty the case was as set out in charge 4: that she made inaccurate records because she knew that the records she made were not correct. That was the core of the allegation which she had to meet and that was what was set out in the charge itself. The circumstances in which she made the records were obviously circumstances which were likely to be investigated if that was fruitful, as no doubt it was in a case like this. But, to repeat, the circumstances in which the making of the records occurred was not the kernel of what was alleged. Rather, the allegation at the heart of it was that the appellant made records which she knew were not correct.


I have laboured this point in order to test one of the main strands of the argument put...

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