The provision of a “second set” of clinical notes to the Health Care Complaints Commission, which were intentionally false and misleading to the knowledge of a midwife who had attended after a home birth, was held to be professional misconduct by the NSW Nursing & Midwifery Tribunal.

In HCCC v Khalsa [2013] NSWMT 20, the various complaints related to the care and management of a baby born at a home. Arriving after the delivery, the clinical care concerns raised were in relation to the neonatal condition and the failure to properly care for the child and to recommend medical treatment.

The parties submissions on the second set of notes issue are summarised at [131] – [132]:

  1. The midwife’s written submissions stated that the midwife admitted that the Labour Notes were misleading in so far as they would indicate, or give the reader the impression, that they were written contemporaneously on or about 3 and 4 January 2011, when in fact they were written some time later, taken from her rough notes and her memory. However, it was submitted, she did not construct them for the purpose of misleading or providing a false account and she did not have any intention to mislead. It was submitted that the details contained within the Labour Notes were an accurate record of what occurred on 3 and 4 January 2011 in respect of the post partum care of the baby. The midwife’s written submissions also stated that, “It is accepted by Ms Khalsa that providing records to the HCCC knowing they are false and misleading insofar as they indicate they were written on or about 3 and 4 January is unethical or improper conduct.” Similarly, in oral submissions, it was submitted that , “In relation to the provision of the second set of notes, Ms Khalsa admits that that is unsatisfactory professional conduct, and it was improper and unethical.”

 

  1. The HCCC submitted that the Labour Notes purported to be contemporaneous clinical records of events of 3 and 4 January 2011. It submitted that those notes were not contemporaneous records made by the midwife; the midwife knew this was the case and therefore the notes were plainly misleading. The HCCC submitted that the midwife had admitted in evidence that there was no discussion about a possible transfer to hospital of the baby at 21:00 hours on 3 January and accordingly the reference in the Labour Notes to such a discussion was false and misleading. It submitted that the midwife had accepted in evidence that the timeframe for events set out in the Labour Notes was not accurate and that accordingly such timeframe for events was inaccurate and misleading. It submitted that the Tribunal should not accept that the midwife’s creation of the Labour Notes was an honest attempt by her to recall what happened on 3 and 4 January 2011. Rather, the HCCC submitted that the tribunal should find that the midwife’s aim was not to prepare a record to the best of her recollection, but rather to avoid criticism and give the HCCC the document that they would expect.

The Tribunal did not accept  the midwife’s evidence that she was doing her best to record what she actually believed happened when she completed the second set of notes. It held that that the midwife intentionally made false entries in the second set of notes.

Protective orders were later made.