Health Care Complaints Commission v Sheldrick

ve Tribunal Act 2013 (NSW) prohibiting the disclosure or publication of the names of the Patients in the schedule to the complaint, or their partners.

Background

1. The practitioner is registered as a midwife. From 2000 to 2010, she practiced as a midwife at Port Macquarie Base Hospital, Mackay Base Hospital and in a hospital in Canada. In 2013, the Respondent completed a Graduate Certificate in Midwifery at Flinders University.
2. In 2007, the practitioner began to take on private patients and from 2010 to 2014, she was solely in private practice as a midwife. In that role, from 2010 to 2013, she assisted 48 women during pregnancy and child birth, 43 of them as homebirths.
3. In April 2012, Patient B and her partner engaged the practitioner for a planned homebirth, with an estimated due date between 24 and 29 September 2012. The practitioner provided antenatal and intrapartum care to Patient B in her home between 30 April 2012 and 9 October 2012.
4. At 33 weeks, the practitioner determined that the fetal presentation was breech. Baby B remained in the breech presentation until 8 October 2012 when Patient B went into labour.
5. On 8 October 2012, Patient B phoned the practitioner at 7 am and reported that her membranes had ruptured at 4.30 am and that there was some meconium present. The midwife went to Patient B's home at 9.30 am, and attended her through a slow labour characterised by irregular contractions. At 7am the next day, 9 October 2012, the practitioner noticed another amount of meconium. The practitioner suggested that the Patient and Mr B discuss hospital and make a decision by 8.30 am. At 8.30 am, Patient B said she wanted to go to hospital.
6. Patient B was transferred to Manning Base Hospital ("MB Hospital") lying on the back seat of the practitioner's car, unrestrained by a seatbelt at approximately 9.00 am on 9 October 2012. Baby B was delivered at 7.50 pm and passed away from meconium aspiration at approximately 9.00 pm on 9 October 2012.
7. A coronial inquest was held into the death of Baby B and finalised on 7 August 2014. On 19 February 2015, the Deputy State Coroner for NSW, Magistrate Hugh Dillon, made a complaint to the Commission about the Respondent's care of Patient B and Baby B.
8. Patient A planned a homebirth of her second child with the practitioner, having had a previous homebirth with the practitioner for her first child. Between 22 February 2014 and 27 June 2014, the practitioner documented six antenatal home visits with Patient A. The practitioner's estimated due date was 11 August 2014. Antenatal screening, including a morphology scan, was not attended.
9. On 1 July 2014, at approximately 2:44 am, Patient A contacted the practitioner and requested her assistance. Ms Sheldrick attended Patient A's home and took a set of observations at 3.15 am, then left at 3.40 am to collect her equipment, including a birthing pool. The practitioner arrived back at Patient A's home at approximately 4.30 am. Patient A commenced established labour on 1 July 2014 at approximately 4.30 am.
10. At 9:20 am, the practitioner recognised that Baby A's presentation was breech. The midwife called an ambulance at 9.29 am and reported that the there was a breech birth with the baby "stuck" and that the cord was compressed. Patient A was shortly thereafter transferred to Port Macquarie Base Hospital ("PMB Hospital") by ambulance. Baby A was stillborn at approximately 10.02 am on 1 July 2014.
11. After birth, Baby A was diagnosed as having hydrocephalus secondary to holoprosencephaly.
12. On 5 August 2014, a complaint was received by the HCCC from PMB Hospital about the respondent's care in relation to Patient A and Baby A.
13. On 21 August 2014, following a section 150 hearing on 18 August 2014, the Nursing and Midwifery Council imposed conditions on the registration of the midwife including that she not take on any new private midwifery clients. She has not practised as a midwife since that time.

The Complaint

1. The Tribunal has before it three complaints against the practitioner. Complaints 1 and 2 are of unsatisfactory professional conduct; Complaint 3 is that the matters in 1 and 2 both individually and cumulatively amount to professional misconduct. The particulars of each complaint are attached to this decision as an appendix.
2. Complaint 1 concerns Patient A and comprises nine particulars covering the period from when Patient A's labour commenced to the hospital transfer around 5 hours later.
3. The practitioner conceded particular 5 (failure to contact the hospital or ambulance service on becoming aware she was delivering a premature baby), and particular 9 (failure to be familiar with the Australian College of Midwives, National Midwifery Guidelines for Consultation and Referral) (the "ACM Guidelines"). The Tribunal is independently satisfied that these particulars are proved and that they each represent conduct significantly below the professional standard.
4. Complaint 2 concerns Patient B and comprises 18 particulars covering antenatal care and records, the decision to plan a breech birth at home, and a series of clinical decisions undertaken in the more than 24 hour period of labour at home.
5. The practitioner conceded particular 1 (failure to establish a single estimated date of birth for Baby B), particular 2 (failure to review Patient B's 12 week blood and urine screening and 18 week morphology ultrasound), particular 4 (failure to adequately document discussion, advice and recommendations and the decision-making process regarding planned place of birth with breech presentation), particular 6 (failure to refer to a medical practitioner prior to labour), particular 9(a) (failure to obtain informed consent for a homebirth in the absence of referral to a medical practitioner), particular 10(b) (failure to discuss place of birth during labour, although the practitioner contends that this discussion took place earlier); particular 11 (failure undertake a more comprehensive assessment and recommend transfer to hospital when meconium detected the first time on 8 October 2012), particular 12 (failure to conduct and record observations to the standard schedule), particular 13 (failure to advise Patient B that an immediate transfer to hospital was required on 9 October 2012 by virtue of the additional risk factors including second meconium presence and prolonged ruptured membranes), particular 16 (failure to consult with a medical practitioner on 9 October in the above circumstances), particular 17 (failure to arrange for an ambulance for transfer and transfer in a private car without a seatbelt on), particular 18 (failure to provide comprehensive notes on handover to hospital) and particular 19 (unaware of existence of the ACM Guidelines). Particular 15 was dropped from the amended complaint. The Tribunal is independently satisfied that these particulars are established and that they cumulatively amount to conduct significantly below the professional standard.

Relevant Law

1. The Tribunal is required to make findings for each particular if they are not conceded in writing: s 165H National Law. The Tribunal must be independently satisfied that the complaints are made out to the civil standard in Briginshaw before then proceeding to determine the appropriate protective orders.
2. The professional members of the Tribunal are entitled to apply their own specialist experience to the evidence in forming opinions about whether there has been a departure from the relevant standard of conduct, with appropriate attention to the expert evidence if there is a genuine difference of view: HCCC v Fraser [2014] NSWCATOD 29 at [238].
3. 'Unsatisfactory professional conduct' is defined in s 139B of the National Law as including: (a) Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. (b) A contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention. … (l) Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.
4. 'Professional misconduct' is defined in section 139E of the National Law as: (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.
5. In making a finding of professional misconduct, the Tribunal must determine whether "when the respondent's contraventions are considered as a whole, they are of a sufficiently serious nature to justify suspension or deregistration": HCCC v Perroux [2011] NSWDC 99 at [18]. This level of seriousness requires more than "mere incompetence", and can include a deliberate departure from accepted standards, indifference to them, or serious negligence: HCCC v BXD (No 1) [2015] NSWCATOD 134 at [37], quoting Kirby J in Pillai v Messiter (No 2) (1989) 16 NSWLR 197 at 200.

The Hearing and Evidence

1. The HCCC tendered two peer expert reports from Ms Robyn Rudner concerning Patient A and B, and oral evidence was also taken from her in the presence of Professor Jennifer Fenwick (who appeared by phone).
2. Professor Fenwick was originally commissioned by the HCCC to provide a peer expert report concerning Patient A, and her oral evidence was also taken in the presence of Ms Rudner. The HCCC did not commission a report from Professor Fenwick concerning Patient B and did not rely upon her written report, which was disclosed to the Respondent and relied upon instead by her. The Tribunal determined that Professor Fenwick's oral evidence ought be confined to the events related to Patient A.
3. The HCCC submitted that it did not rely upon Professor Fenwick's report nor seek further assistance from her for two reasons. These were: firstly, that her report stated that the ACM Guidelines were "guidelines only" which Ms Sheldrick "may choose" to guide her practice. Thus, her opinion was at odds with the HCCC's position on the significance and role of the professional guidelines and documents in establishing the professional standards that are the subject of the proceedings. The Tribunal notes s 41 of the National Law specifically indicates that registration standards, codes, and guidelines approved by a National Board are admissible as evidence of what constitutes appropriate professional conduct or practice for the health profession. Moreover, we find that the codes, ethics and guidance documents before us from the Australian College of Midwives and Nursing and Midwifery Board of Australia, collectively reflect well established standards of safe practice in the profession.
4. Secondly, in oral evidence, Professor Fenwick stated that the practitioner's conduct under various particulars "would not have changed the outcome". The HCCC submitted that this demonstrated that Professor Fenwick was applying the wrong standard in assessing the practitioner's conduct. We must determine whether the practitioner's conduct demonstrates the knowledge, skill or judgment possessed, or care exercised, by her is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. The Tribunal is not required, nor capable on the evidence, of determining causation in relation to the still-birth of Baby A or the death of Baby B. The questions before us relate to whether the conduct of the practitioner was appropriate in at the time and in the known circumstances, not whether the conduct was the cause of any outcome.

Findings and Reasons

1. The Tribunal accepts the view of the expert peer reviewers, reflecting much of the professional standards documentation from the Australian College of Midwives and the Nursing and Midwifery Board of Australia, that homebirth is a safe birthing option available to healthy low-risk women with uncomplicated pregnancies and births.
2. The Nursing and Midwifery Board of Australia's Safety and Quality Framework for Privately Practising Midwives Attending Homebirths (2011) ("the Safety and Quality Framework") states that: Women with a singleton pregnancy, cephalic presentation, at term and free from any significant pre existing medical or pregnancy complications are those identified in the ACM guidelines as clearly meeting criteria for midwifery-led care.
3. Patient A was not a term (37 - 42 week) pregnancy. The practitioner attended the homebirth believing her to be less than 34 weeks pregnant, and wavered in her evidence as to when, and if, she came to believe that the pregnancy was 36 weeks.
4. Patient B was not a cephalic (head down) presentation: she was a breech presentation from 33 weeks and remained breech when labour commenced at 41+ weeks. There were additional complications as labour proceeded, including prodromal prolonged latent phase/prolonged active labour, two shows of meconium-stained liquor, a high presenting part, and prolonged ruptured membranes (Group B Streptococcus unknown).
5. There was no real contest that the established professional criteria for a safe homebirth were not present in either case.
6. The Quality and Safety Framework continues: When PPMs [privately practising midwives] are the primary carers for women who fall outside of these criteria, the consultation and referral pathways must be documented and followed. Clearly articulated and documented plans of escalation and collaboration are integral to provision of safe high quality care … PPMs are required to document advice provided to women in their care about midwifery scope of practice, risks and escalation processes. In addition they will enlist the services of another registered maternity care professional to provide a second opinion in situations where the woman chooses not to follow clinical advice about the need for interventions or transfer.
7. The practitioner's documentation in both cases was poor, and did not contain evidence of appropriately detailed discussion with the patients of risks, nor of referral or escalation processes. The practitioner's position was that a discussion of risks did nonetheless occur and that both patients made an informed choice to continue with homebirth. In oral evidence, the practitioner conceded that she had never at any stage had an "emergency plan" or any clear escalation process in either case. Nor did she consult with any other maternity care professional about the need for intervention or transfer in either case.

Patient B

1. The practitioner conceded unsatisfactory professional conduct in relation to Complaint 2/Patient B. In her oral evidence, the Tribunal asked the practitioner what aspects of conduct she believed were below the standard expected of her as a midwife, and she indicated that it was her failures to: 1. Document discussions and recommendations made during antenatal care and labour; 2. Have another midwife present during a planned breech homebirth; 3. Transfer Patient B to medical care at 36 weeks when the presentation of the fetus remained breech.
2. The ACM Guidelines have a very clear pathway of consultation and referral for midwives faced with various circumstances (A: Discuss with a colleague; B: Consult with a medical or other health care provider; and C: Refer to secondary or tertiary care). The 2nd edition in force at the time of, indicates that midwives should refer care of a breech presentation at 36 weeks: [at point 7.1.25].
3. Appendix A to the Guidelines includes a very careful discussion of the role of a midwife providing care for a woman who chooses care outside of the guidelines, including in the 2nd and 3rd editions: 1. Advise the woman on the recommended guideline and rationale and evidence behind it; 2. Consult with another professional 3. Share the advice of the consultation with the woman and 4. Document the process in an accompanying care plan. If a resolution isn't reached and the midwife continues to provide care, she should continue to make recommendations for safe care.

Antenatal care

1. The practitioner denied that she failed to discuss or recommend routine antenatal screens with Patient B (particular 3), although she did concede that she failed to document this. The practitioner's oral evidence was that she always offered these standard tests and discussed their benefits. There was no evidence to contradict Ms Sheldrick's account.
2. The HCCC submitted that the lack of documentation alone should be taken as proof that it did not occur. Counsel for the Respondent rightly pointed out that the HCCC bears the onus of proof. Given that the practitioner failed to document a number of clinical events and decisions, the Tribunal could not accept that a mere absence of record was sufficient to establish on the balance of probabilities that something she attested was her standard practice did not occur. Particular 3 was not established.
3. The practitioner denied that she failed to provide Patient B with recommendations and safe strategies to support planning a vaginal breech birth and allow her to make an informed decision about the place of birth (particular 5). The practitioner denied that she failure to discuss and recommend that Patient B undergo an ultrasound following the diagnosis of the breech presentation.
4. The practitioner's evidence was that from 8 August 2012 when she first identified the breech presentation she had "many discussions" with Patient B including the option of external cephalic version and ultrasound (on 8 August 2012, 23 August 2012 and 30 August 2012) and that on 30 August 2012 they spoke about the "option" of going to hospital. There were no contemporaneous clinical records of any of these discussions. The practitioner did not provide any detailed account of how the "option" of hospital birth was addressed.
5. The practitioner's account was contradicted by the evidence of Patient B and Mr B.
6. Patient B did not address this issue in her written statement from 2012. In her oral testimony at the coronial inquest in 2014 Patient B said that the midwife "did mention" external cephalic version "but it was very brief and not detailed. It was never recommended. I don't recall there being mention or discussion of an ultrasound on more than one occasion…". Patient B also emphatically stated that the practitioner did not recommend hospital as a safer place for breech birth.

Homebirth

1. Particular 10 is that from 7 am on 8 October 2012, when she received the phone call, and up until the hospital transfer at 9 am the next day, the practitioner inappropriately failed to discuss the significance and risks of the additional factor of meconium, and address the possibility of reconsidering the place of birth as a result.
2. The ACM Guidelines 2nd ed indicate prolonged rupture of membranes as B: Consult; and presence of meconium as A/C Discuss or transfer care.
3. Mr B's evidence is that at about 6 or 7 am on 9 October 2012 Ms Sheldrick was still "encouraging" them to go on at home and that she did not indicate any risks or any need to transfer to hospital.
4. From the practitioner's own evidence, it is clear that at 7 am on 9 October 2016, she still considered that the homebirth setting was safe, although she differs from Mr B in saying that she did suggest transfer at that time.
5. In her written and oral evidence, the practitioner referred to meconium as "not uncommon" with a "breech presentation", and did not distinguish between meconium appearing when the breech is moving through the maternal pelvis during birth (which was characterised by the professional members of the Tribunal as a routine and mechanical consequence of breech birth), and meconium appearing when the presenting part is high and has not yet entered the maternal pelvis. The presence of meconium in a breech presentation when the breech has not yet entered the maternal pelvis may be an indicator of fetal distress. There was no evidence of discussion about the additional risk associated with the presence of meconium i.e. meconium aspiration syndrome.
6. In her second statement dated 13 July 2017, the practitioner gives her account of a discussion regarding transfer to hospital at 7 am on 9 October 2012 as follows, Me: I think it is time for you to transfer to hospital. You are well, your baby is well but you are tired and you are 5cms. In hospital they can offer you pain relief. This doesn't mean they won't support your birth option. Patient B: Yes I'm tired. I can't continue because I'm tired.
7. Regardless of the difference in recollection between Mr B and the practitioner, it is clear that Ms Sheldrick was focused only upon fatigue and pain relief, and that she did not address the meconium or prolonged ruptured membranes (Group B Strep status unknown) and breech presentation as factors necessitating transfer.

Patient A

1. There was uncertainty about the due date of Baby A from the outset. No dating scan had been undertaken and the date of the last menstrual period could not reliably be used for dating purposes. In those circumstances the midwife had calculated a due date of 11 August 2014 based on the information available. This was the best information to hand (although the view of Ms Rudner was that the most accurate estimated due date was in fact 27 July 2014) such that on 1 July the estimated gestation was 34 weeks. The practitioner's clinical notes reflected a number of other dates. The practitioner's evidence at the hearing was that at the time Patient A contacted her on 1 July 2014, her belief was that the pregnancy was 33 weeks. These reasons therefore address her clinical decision-making as concerning a < 34 week gestation, even though this is not objectively verifiable.
2. Ms Rudner, in her Peer Expert Report, states, The ACM Guidelines state that care of the women in preterm labour should be led by a medical practitioner regardless of the planned place of birth. Preterm labour and birth at home is not safe.
3. Both the 2nd and 3rd edition of the ACM Guidelines indicate that preterm labour of under 37 weeks is a "C": refer to medical care.
4. Ms Rudner concludes that, "it was Ms Sheldrick's responsibility to clearly inform [Patient A and Mr A] that labour was preterm, less than 37 completed weeks, and to recommend immediate transfer to hospital for an escalation in care to include obstetric and paediatric expertise".
5. The Tribunal finds that the practitioner failed to recommend immediate hospital transfer for Patient A at 4.30 am, in circumstances where Patient A's labour was preterm (particular 1), and we find that she inappropriately continued to provide care (particular 2) without informing Patient A that she could not provide care in these circumstances (particular 3). Rather, she obtained a "disclaimer letter" stating that Patient A and Mr A took "full responsibility" for continuing outside of the "parameters of [the midwife's] care, term being 37-42 weeks" without an appropriate discussion of the significance of the pre-term labour, including estimated gestation of approximately 33 weeks, appropriate place of birth, safety, scope of practice and need for hospital care (particular 4).
6. In the midwife's contemporaneous clinical record, there is no indication that she made a recommendation of transfer or that she discussed the specific risks of pre-term homebirth. The notes for 4.30 am on 1 July 2014 simply state, "[Patient A and Mr A] want to stay at home as sure dates are incorrect."

Costs

1. The HCCC was successful in its case. Several particulars were not found proved, but the actual number of particulars found proved versus not proved is insignificant given that fundamental breaches of professional standards in two very serious matters were established. The particulars not proved were of lesser importance overall and did not disproportionately occupy the proceedings. The HCCC has acted with efficiency and in the public interest, and they are entitled to their costs of Stage 1 of these proceedings.

Orders: 1. A non publication order under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting disclosure or publication of the names of the Patients in the schedule to the complaint, or their partners; 2. A finding that Complaint 1 and Complaint 2 of unprofessional conduct are made out to the required standard; 3. A finding that the complaints, both individually and cumulatively, amount to professional misconduct per Complaint 3; 4. The parties to communicate with the registry to set a hearing date for the Stage 2 determination. 5. Costs in favour of the Commission pursuant to cl 13(1) of Sch 5D of the National Law as agreed or as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW).

APPENDIX PARTICULARS OF COMPLAINT ONE 1. On 1 July 2014 at approximately 4:30 am, the practitioner failed to recommend immediate hospital transfer for Patient A in circumstances where Patient A's labour was preterm. 2. On 1 July 2014 at approximately 4:30 am, the practitioner inappropriately continued to provide home midwifery care to Patient A in circumstances where Patient A's labour was preterm. 3. On 1 July 2014 at approximately 4:30 am, the practitioner failed to inform Patient A that as her labour was preterm, she could no longer provide midwifery care. 4. On 1 July 2014 at approximately 4:30 am, the practitioner obtained a signed letter from Patient A and her husband that said "…we were aware of the parameters of her [the practitioner's] care, term being 37 - 42 weeks. As labour commenced prior to this with dates uncertain, we take full responsibility for the choice to remain at home, believing in our babies (sic) wellness and our own" in circumstances where: (a) there was no discussion between the practitioner and Patient A regarding the significance of preterm of labour including: i. clarifying estimated gestation of approximately 33 weeks; ii. the most appropriate place for the birth; iii. safety considerations; iv. the practitioner's scope of practice; (b) the practitioner did not advise or recommend hospital transfer. 5. On 1 July 2014 at approximately 4:30 am, the practitioner, after becoming aware that she may be delivering a premature baby at home, failed to: (a) contact the PMB Hospital for midwifery support and guidance; (b) contact the Ambulance Service. 6. On 1 July 2014 at approximately 9:20 am, the practitioner failed to remove Patient A from warm water immersion in circumstances where a breech birth was imminent. 7. On 1 July 2014 at approximately 9:30 am, the practitioner failed to provide adequate information in relation to herself and Patient A to the Ambulance Service in that she failed to adequately: (a) identify herself; (b) indicate her role; (c) indicate her location; (d) outline Patient A's risk factors; (e) outline a recent history of events during Patient A's labour; (f) outline details of the current emergency situation in relation to Patient A; (g) indicate what assistance was required. 8. On 1 July 2014 at approximately 9:49 am, the practitioner failed to give an adequate handover to the midwifery or obstetric staff at the PMB Hospital in that she failed to provide: (a) comprehensive antenatal records for Patient A; (b) comprehensive intrapartum records for Patient A. 9. Between 22 February 2014 and 1 July 2014, the practitioner was unfamiliar with the National Midwifery Guidelines for consultation and referral. PARTICULARS OF COMPLAINT TWO 1. Between 30 April 2012 and 7 October 2012, the practitioner failed to establish a single estimated date of birth for Baby B. 2. Between 30 April 2012 and 7 October 2012, the practitioner failed to review Patient B's: (a) 12 week blood screenings for infection and anaemia; (b) 12 week urine screenings for infection; (c) 18 week morphology ultrasound. 3. The practitioner inappropriately failed to discuss or recommend any of the following routine antenatal screenings to Patient B: (a) 28 week blood test to detect gestational diabetes and anaemia; (b) 35 week screening to prevent early onset neonatal group B streptococcus infection. 4. Between 30 April 2012 and 7 October 2012, the practitioner failed to adequately document records for Patient B in that she did not document: (a) discussions with Patient B; (b) advice or recommendations provided to Patient B; (c) choices and decisions made by Patient B; (d) counselling provided to Patient B; (e) the decision-making process regarding the ongoing care and planned place of birth following diagnosis of the breech presentation. 5. On 8 August 2012 following the diagnosis of Patient B's breech presentation and up until 7 October 2012, the practitioner failed to: (a) provide Patient B with recommendations and safe strategies to support planning a vaginal breech birth; (b) allow Patient B to make an informed decision about the place of birth. 6. The practitioner inappropriately failed to refer Patient B to a medical practitioner at any time prior to hospital transfer: (a) when the breech presentation persisted on 22 August 2012 for an External Cephalic Version ("ECV"); (b) for malpresentation at term on 8 October 2012 at approximately 4:30 am. 7. On 8 August 2012 following the diagnosis of Patient B's breech presentation and up until 7 October 2012, the practitioner inappropriately failed to recommend that Patient B undergo an ultrasound. 8. On 8 August 2012 following the diagnosis of Patient B's breech presentation and up until 7 October 2012, the practitioner failed to recommend an ECV. 9. The practitioner failed to obtain informed consent from Patient B for a home birth in that between 22 August 2012 and 7 October 2012 she failed to: (a) refer Patient B to a medical practitioner; (b) recommend Patient B have an ultrasound; (c) recommended Patient B have an ECV; (d) discuss alternatives to home birth. 10. On 8 October 2012 at approximately 7:00 am and up until Patient B was transferred to hospital, the practitioner inappropriately failed to discuss with Patient B: (a) the significance of the breech presentation together with the meconium stained liquor; (b) the potential risks to Patient B and her baby; (c) the possibility of reconsidering the place of birth. 11. On 8 October 2012 at approximately 9:30 am when the presence of meconium stained liquor was confirmed, the practitioner ought to have: (a) undertaken a more comprehensive assessment of Patient B and conducted: i. an abdominal palpation to assess fundal height, lie, presentation and whether the presenting part was engaged in the pelvis; ii. [deleted] (b) recommended that Patient B be transferred to hospital for closer fetal monitoring and support for the breech vaginal birth. 12. Between 8 October 2012 at approximately 9:30 am and 9 October 2012 at approximately 9:00 am, the practitioner failed to: (a) conduct appropriate maternal observations in that she failed to monitor Patient B's: i. contractions every 30 minutes; ii. pulse hourly; iii. blood pressure 4 hourly; iv. [removed]; (b) monitor the fetal heart rate every 15 minutes; (c) adequately document the following in relation to Patient B: i. care provided; ii. clinical observations; iii. advice; iv. recommendations; v. discussions. 13. On 9 October 2012 at approximately 4:25 am, the practitioner ought to have advised Patient B that an immediate transfer to hospital was appropriate in the following circumstances: (a) presence of meconium; (b) membranes ruptured over 24 hours ago; (c) slow progress of labour; (d) breech presentation; (e) irregular contractions; (f) [deleted]; (g) [deleted]. 14. On 9 October 2012 at approximately 8:30 am, following Patient B's request to be transferred to hospital, the practitioner failed to arrange for Patient B to be immediately transferred to hospital. 15. [deleted] 16. The practitioner failed to consult with a medical practitioner to discuss ongoing care in relation to Patient B prior to the hospital transfer at approximately 9:00 am on 9 October 2012 despite the following circumstances: (a) the presence of meconium stained liquor on 8 October 2012 and 9 October 2012; (b) slow progress of labour, that is, less than 2 cm dilation in four hours; (c) membranes ruptured over 24 hours ago. 17. The practitioner failed to arrange for an ambulance to transfer Patient B to hospital at 9:00 am on 9 October 2012 and inappropriately transferred Patient B to hospital: (a) by private car; (b) without Patient B wearing a seatbelt. 18. At 10:00 am on 9 October 2012 after arrival at hospital the practitioner inappropriately failed to provide the hospital with complete antenatal and intrapartum midwifery notes for Patient B. 19. Between 30 April 2012 and 9 October 2012, the practitioner was unaware of the existence of the National Midwifery Guidelines for Referral and Consultation.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 August 2016