Key points as Dr Upton phone reviewed in Peggie v NHS Fife

He did not do a forensic assessment of the notes and did not personally check Dr Upton’s laptop or phone.

There was a dispute over the version history of the notes and therefore Ms Peggie’s legal team instructed digital forensic expert Jim Borthwick, from KJB Consultancy, to conduct an independent review.

Here are the key points from the tribunal hearing on Friday, July 25.

Altered notes

In a very technical hearing, perhaps the most revealing piece of information came from Mr Borthwick’s investigation.

The Herald exclusively viewed the evidence bundle relating to these emails to make sense of the concerns.

That revealed that Dr Upton had kept a log from October 2023 on her meetings with Ms Peggie.

The biggest detail here was revealed in December 2023 though.

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Dr Upton had entered a note on December 18 where the medic described Ms Peggie as failing to acknowledge their presence and said there was a “hospitality” from the nurse.

The next log was on Christmas Day logging the changing room incident between Ms Peggie and Dr Upton. 

A day later, on Boxing Day, an edit is made to the December 18 2023 note.

Dr Upton has added the patient safety concern relating to Ms Peggie refusing to engage with her about an unseen patient.

In his evidence, Mr Borthwick said Dr Upton’s notes were “not contemporaneous”.

“There appears to have been changes at different dates and times, so it has been edited,” he said.

No forensic IT assessment

Barrister Charlotte Elves, acting on behalf of Ms Peggie, put it to Mr Donaldson that his retrieval of notes from Dr Upton used only the “sixth” best option.

She said he should have conducted an in-person run through, where Mr Donaldson could personally look through Dr Upton’s computer.

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If this was not possible, other solutions would have been to sit next to Dr Upton to supervise her going through the notes, or accessing the files remotely.

She also said the Teams call should have been recorded.

Mr Donaldson said: “My assistance was requested and I gave it in good faith with the outcome being we wanted to get these notes off her account and produced in a way people can understand.”

He said he did not believe that Dr Upton had attempted to mislead him over the notes, but said he could not say whether it was impossible for the documents to have been “manipulated”.

Borthwick did not look to undermine Upton 

In her cross-examination of Mr Borthwick, Jane Russell KC, acting on behalf of NHS Fife, said it was important to point out that he was instructed to investigate by Ms Peggie’s solicitor.

She then asked whether Mr Borthwick had been tasked with ‘undermining’ the phone evidence from Dr Upton. 

Mr Borthwick replied: “We weren’t looking to undermine anything. We were just asked to retrieve notes.”

Ms Elves interrupted during this exchange. The barrister said she was “astonished” by the question from Ms Russell as it implied that Mr Borthwick was asked to lie, which would amount to “professional misconduct” of both the independent expert and Ms Peggie’s legal team.