MARTEN v NURSING & MIDWIFERY COUNCIL (2016)

A conduct and competence committee of the Nursing and Midwifery Council had been entitled to make a finding of dishonesty against a nurse who had inaccurately recorded a patient’s heart rate knowing that it was wrong.
The appellant nurse appealed against a finding of dishonesty made by a committee of the respondent Nursing and Midwifery Council.

The nurse had worked in a paediatric intensive care unit. A colleague relieving her from the day shift checked the charts and noted that the nurse had recorded a patient’s heart as having a range of 65-85 beats per minute. She later took that patient’s heart rate while he was sleeping and found it to be 105 beats per minute. After raising concern about the previous reading’s accuracy, an investigation occurred. Two charges were brought against the nurse, namely making inaccurate records and doing so dishonestly. At a hearing conducted by a panel of the conduct and competence committee, the nurse asserted that the heart rate she had recorded was based on a measurement. The NMC’s case was that the nurse had made inaccurate records at the end of her shift and that bogus records were made as she had not examined the patient throughout the day as she should have. The panel setting out the test for dishonesty and referencing Ghosh, concluded that both charges were proved as the nurse had made inaccurate records and that she had been dishonest because she knew that they were wrong. It considered the circumstances in which the records were made and found that they were not based on actual measurements but on a visual assessment of the patient.

HELD: (1) The circumstances in which the nurse had made the recordings were not at the heart of the allegations made against her. The crucial question was whether she knew that the observations recorded were not accurate. Whether the allegations had been made all at once or from time to time was of little importance. There was nothing wrong with the panel concluding the likely circumstance in which the entries were made without first giving the nurse an opportunity to comment. (2) The court had to consider whether it was satisfied that the panel had been wrong to conclude that the nurse had acted dishonestly. The question for the panel was two-fold in light of Ghosh, namely (1) whether the nurse’s actions would be regarded as dishonest by the standards of reasonable and ordinary people; (2) was the panel wrong to conclude that the nurse realised that her actions would be regarded as dishonest by the standards of reasonable and ordinary people. In relation to the first question, the panel had had regard to the fact that it was clear from the evidence that the nurse’s colleagues would rely on the records as being an accurate recording of heart rate; no one would think it was a best estimate. Given the importance of accurate recording, it was obvious that a reasonable and objective person would consider the nurse’s actions dishonest. In relation to the second question, given the nurse’s acknowledgement of the accuracy attached to the records, the panel had been entitled to conclude that the nurse had to have known that her actions were dishonest. (3) The panel did not address whether the nurse had not been dishonest and had ill-advisably relied on her own judgment, but that was irrelevant. The allegations had been based on the nurse making records that she knew to be incorrect, and the panel found that she had done so. A reasonable person would have regarded the nurse’s conduct as dishonest.

Appeal dismissed
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