homebirth as private practitioner involving pre-term pregnancy
planned homebirth as private practitioner involving breech presentation
failure to fully inform patients of risks of homebirth in these circumstances
Source
Original judgment source is linked above.
Catchwords
Midwiferyhomebirth as private practitioner involving pre-term pregnancyplanned homebirth as private practitioner involving breech presentationfailure to fully inform patients of risks of homebirth in these circumstancesfailure to appropriately recommend medical care and transfer to hospitalfailure to recognise and respond to compounding and escalating risks in prolonged breech labour during homebirth
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) s 64Health Practitioner Regulation National Law 2009 (NSW) ('The National Law') s 139Bs 139Ecl 13(1) Sch 5D
Cases Cited: Briginshaw v Briginshaw [1938] HCA 34, (1983) 60 CLR 336HCCC v BXD (No 1) [2015] NSWCATOD 134HCCC v Fraser [2014] NSWCATOD 29HCCC v Perroux [2011] NSWDC 99Pillai v Messiter (No 2) (1989) 16 NSWLR 197Qasim v HCCC [2015] NSWCA 282
Texts Cited: Australian College of Midwives, National Midwifery Guidelines for Consultation and Referral, 2nd ed (2008)Australian College of Midwives, National Midwifery Guidelines for Consultation and Referral, 3rd ed (2013)Nursing and Midwifery Board of Australia, Code of Ethics for Midwives in Australia (2008)
Judgment (14 paragraphs)
[1]
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.
[2]
Background
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
After birth, Baby A was diagnosed as having hydrocephalus secondary to holoprosencephaly.
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.
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.
[3]
The Complaint
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.
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.
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.
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.
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.
[4]
Relevant Law
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.
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].
'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.
'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.
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.
[5]
The Hearing and Evidence
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).
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.
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.
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.
[6]
Findings and Reasons
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.
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.
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.
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).
There was no real contest that the established professional criteria for a safe homebirth were not present in either case.
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.
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.
[7]
Patient B
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.
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].
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.
[8]
Antenatal care
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.
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.
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.
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.
The practitioner's account was contradicted by the evidence of Patient B and Mr B.
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.
[9]
Homebirth
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.
The ACM Guidelines 2nd ed indicate prolonged rupture of membranes as B: Consult; and presence of meconium as A/C Discuss or transfer care.
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.
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.
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.
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.
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.
[10]
Patient A
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.
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.
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.
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".
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).
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."
[11]
Costs
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.
[12]
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).
[13]
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.
[14]
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
At the commencement of the hearing, the practitioner conceded that her conduct concerning Patient B was unsatisfactory professional conduct.
While the Tribunal has a discretion to make a costs order in respect to proceedings before it, that discretion is not unfettered and is to be guided by the relevant legal principles. Costs are for the purpose of indemnifying or compensating the person in whose favour a costs order was to be made, not for the purpose of punishing the person against whom it is made. That being so, ordinarily costs should follow the event unless there are reasons to conclude otherwise: Qasim v HCCC [2015] NSWCA 282 [85]
The HCCC submitted that the Tribunal should prefer the evidence of Ms Rudner to Professor Fenwick for these reasons, and we accept that submission.
Further, in both her written report and oral evidence, Professor Fenwick's opinion that the practitioner's conduct was either not below standard or was below standard but did not invite criticism was based on the stated view that Patient A had given informed consent to a pre-term homebirth. This in turn was based on her acceptance that there had been a detailed discussion of the risks, and that the "disclaimer" signed by Patient A and her partner "must have" followed such discussion. The Tribunal finds, as will be detailed below, that an appropriately detailed discussion of the specific risks of a pre-term homebirth did not take place, and that there was not informed consent from Patient A. Therefore, much of Professor Fenwick's opinion must be disregarded.
It was nonetheless very helpful to the Tribunal to hear from both experts, in order to explore the differences between their views, to have them comment upon each other's expert opinion, and to better understand the basis of their views. The Tribunal is grateful for the assistance of both experts and does rely upon the view of Professor Fenwick when it is in accord with Ms Rudner and/or with the views of the professional members of the Tribunal.
Ms Sheldrick made three written statements, and also gave oral evidence. Her credibility was not challenged and we accept her as a witness of truth. There were some factual matters in dispute, and both complaints involved incomplete clinical records on key points. Where contemporaneous records, or witness accounts closer in time to events differed from the practitioner's later account or her oral evidence, these more contemporaneous accounts or records were generally preferred. Where there was no evidence to contradict the practitioner's account, either as to the particular event or to her usual practice, we accepted her evidence.
The patients were not called to give oral evidence. The HCCC materials included written statements from Patient A and her partner ("Mr A") both dated 17 November 2014. There was also a supplementary statement of Patient A dated 21 July 2016, tendered by the Respondent without objection. However the HCCC submitted that Patient A's 2016 statement should be regarded as tainted. This issue was the subject of written submissions by both parties. The Tribunal regarded this as a question of weight, addressed below.
The HCCC materials included written statements from Patient B dated 25 October 2012 and her partner ("Mr B") dated 18 June 2015, as well as transcript of Patient B's oral testimony from the previous coronial inquest concerning Baby B. Where Patient B and Mr B's evidence was at odds with the practitioner's account, the evidence of Patient B and Mr B is preferred.
In short, it was simply not safe for either Patient A or B to undertake a homebirth in their known circumstances. We find that the practitioner did not have a proper appreciation of how unsafe each situation was, nor did she ensure that the risks were clearly and effectively communicated to the patients, or make appropriate efforts to transfer care, or strongly recommend transfer of care, to a hospital setting where the required specialist medical assistance was available. From this fundamental error, in both cases, all of the proven particulars follow.
The decision addresses Patient B first, so as to deal with matters chronologically. The Tribunal is more critical of the practitioner in relation to Patient A, as these events occurred two years after Patient B and yet the proven conduct reflects an even lower standard of practice on the part of the midwife. The oral evidence of the practitioner was that she "thought she could handle" the situation with Patient B at the time, having undertaken two breech homebirths previously with no adverse outcome (one planned and one "a surprise"), in contrast to Patient A where she acknowledged that she thought she was absolutely "out of her depth" at the time.
Mr B's statement reads,
[At the time breech was detected] Macca did not advise us that we should change our plan about having a homebirth. Macca said words to the effect of, "birth can still be as hands off as possible." Macca also said words to the effect of, "I have delivered breech babies before and one was a surprise to me." …
Macca did not highlight any particular risks of birthing a baby in a breech position at home. She talked about general risks of breech births including that it can be a difficult vaginal birth as it can take some time and more difficult to get out. She did not recommend [Patient B] and I have the baby in hospital or that we see an Obstetrician or have an ultrasound. I also do not believe Macca recommended we try and have an Obstetrician turn the baby…
Counsel for the respondent asked her what she said to Patient B about the risks of breech and she replied: slow progress, and the possibility of needing to do manoeuvres. When the Tribunal asked the practitioner to outline her understanding of the risks of breech birth at home she also mentioned meconium and the possibility of needing assistance. The practitioner was slow to specify any risks of a breech birth that were particular to the homebirth environment, and spoke of them at all times in a highly generalised way. This lends weight to Patient B and Mr B's accounts, even though given some time after the event.
Weighing this evidence, we find that the while the practitioner may have mentioned an ultrasound she did not recommend one, and she certainly did not recommend one in terms directed to safety and risk in the context of a planned homebirth.
Ms Rudner was strongly critical of this failure. In her report she states,
There is a growing international awareness of the need for skilled attendants at vaginal breech births as some women will choose to birth their breech babies vaginally and there will continue to be undiagnosed breech presentations at birth. Dr Andrew Bisits of The Royal Hospital for Women who promotes vaginal breech birth outlines his world renowned and evidence based approach to vaginal breech birth as follows:
• a cautious approach
• universal pre and early labour ultrasound
• continuous monitoring in labour
• immediate availability of rapid caesarean section
• anaesthetist and paediatrician at birth
• truly experienced practitioner
• meticulous attention to labour progress
Ms Sheldrick should have discussed the contemporary evidence and recommendations surrounding breech presentation at term and safe strategies to support planning a vaginal breech birth to allow [Patient B] to make an informed decision about her planned place of birth.
Documentation does not reflect the comprehensive recommendations, advice, discussions, counselling and informed decision making that should have occurred regarding the ongoing care and planned place of birth pertinent to the breech presentation which was noted from 8 August 2012. There is no documentation to indicate that the appropriate and safest place of birth when planning a vaginal breech birth was discussed, or that a referral to a medical practitioner and an ECV was recommended at any stage.
The Australian College of Midwives National Guidelines for Consultation and Referral (ACM Guidelines) guide midwives to refer care to a medical practitioner for an external cephalic version (ECV) for a breech presentation at 35 weeks and for a malpresentation/non cephalic at term (7.1.17).
On balance, this particular is proved, as is the failure to obtain informed consent to homebirth in light of the above (particular 9(b)-(d)); because neither the practitioner nor Patient B had the full range of information to make a risk assessment, or the assistance of other medical professionals in making this assessment, and Patient B was not made aware of the implications of such lack.
Ms Rudner was strongly critical of this failure. The Tribunal finds that the practitioner did not, at any stage, comprehend or communicate to Patient B, that there were a number of compounding risk factors including breech, meconium-stained liquor and a prolonged period since the rupture of membranes, with a Group B Strep status unknown. Particular 10 is established to the required standard.
Particular 14 is that at 8.30 am on 9 October 2012 following the patient's request to go to hospital, the practitioner failed to immediately arrange it. The delay was more prolonged in the original complaint but was later amended to reflect the practitioner's evidence of timing. The practitioner also phoned the hospital to arrange the transfer before leaving the home with the patient. The Tribunal finds that this delay did not fall below the standard required.
In her oral evidence, the practitioner stated that she "bought in" to the patient and Mr A's belief that the due date was wrong and that the gestation was 36 weeks. The patient's view that the due date was wrong was based solely on the fact that she was now in labour; ie an understandable desire to believe that she was not in premature labour. It was not an appropriate professional judgment to simply accept that new date based on the patient's belief. The clinical judgment of the due date should have been restated, and a cautious approach in this setting would have been to make all further clinical decisions based upon that due date. This did not occur; despite the fact that in oral evidence the practitioner stated that she still believed gestation to be "less than 36 weeks" at the time the disclaimer was signed.
In her 2014 statement, Patient A sets out her recall of what was said around 4.30 am, as, "I said to Macca [the midwife] 'I don't want to go to hospital'. [Mr A] supported me in my decision. I have been shown a document with my signature confirming that my decision was at 4.30 am."
The document states,
…we were aware of the parameters of [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 [baby's] wellness and our own.
Patient A goes on to say,
The things I took into consideration were that we are only 3 minutes drive from Port Macquarie Base Hospital. Also I knew Macca had oxygen available if there were any respiratory concerns, and I knew how much difference skin to skin contact can make with respect to the baby's heart rate and body temperature.(emphasis added)
In his 2014 statement, Mr A sets out his recall of what was said around 4.30 am as follows,
Macca said, 'Do you want to stay here?' meaning have the baby at home. I thought it was possible we could legitimately be 37 weeks into labour. But if our initial dates were right and we were only 34 weeks into labour, we knew we were outside of the timeframes for a home birth.
For labour to progress well, a woman needs to be comfortable. If she gets stressed the muscles tighten which makes labour more difficult. It was a very easy decision for us to stay at home because that was where we felt more comfortable.
I wasn't worried or concerned about having the baby at home if it was early. We told Macca that we wanted to stay home for the birth.(emphasis added)
In her s 150 hearing on 18 August 2014, the practitioner stated that, although she hadn't written it down, what was discussed was,
…that they were given the option that this baby might need some respiratory assistance. This baby might need higher care. They knew what equipment I had and I guess I let the pressure come back onto me that, "I've got the oxygen. We're 3 minutes from hospital. The Ambulance is there." But they did make that decision based on me giving them option, not options but telling them this baby might need respiratory assistance.(emphasis added)
In her first statement of 6 July 2016, the practitioner simply says "At approximately 0430 hours I informed the parents of the risks associated with pre-term birth and despite my warning, the parents were committed to continue with the homebirth which they knew to be outside scope of [my] practice."
In a second statement on 21 July 2016, Patient A recalls the discussion at 4.30 am as herself saying words to the effect, "I know I'm early and it's not in your contract but I don't want to go to hospital". She restates that her understanding was that "care was outside Macca's scope of practice" but reiterates that she believed herself to be "closer to 36 weeks than an earlier gestation" and that "Macca had oxygen for the baby if needed". Patient A adds, "Macca did recommend that I should go to hospital" and says she was aware of "possible increased risk to the baby" at the time of signing the disclaimer.
The HCCC submitted that Patient A's 2016 statement should be disregarded on the basis that she was provided, and asked to respond to, the practitioner's statement of 6 July 2016 and Ms Rudner's expert report, which coloured her evidence. Also, the HCCC submitted that Patient A's views were influenced by her on-going friendship with the practitioner. Counsel for the Respondent submitted that these were matters properly raised by cross examination of Patient A and, as she had not been called, her evidence should stand as uncontradicted. The Tribunal accepts Patient A's evidence as a truthful account; albeit one coloured by her loyalty to the practitioner.
The varying evidence of Patient A and Mr A was that they believed the gestation to be under or around 36 weeks, or nearly 37 weeks. Examining both their accounts, and the practitioner's accounts, there was never at any stage a discussion of the risks faced by homebirth of a < 34 week fetus as opposed to one at, or close to, 37 weeks.
In oral evidence, the Tribunal asked the practitioner to address the relative benefits and risks of giving oxygen to a baby born at 33 week gestation as opposed to at 37 weeks, and she was unable to do so beyond saying that both are risky. The Tribunal asked if the practitioner had ever administered oxygen to a newborn in a homebirth, or had undertaken any CPD in respiratory assistance, and she said that she had not.
In a supplementary statement of 13 July 2016, the practitioner for the first time provides an account of the discussion that took place at 4.30 am, as follows:
Me: We don't know the gestation of your baby. The baby may require respiratory assistance after the birth. Home may not be the best place to give birth to your baby, you should go to hospital.(emphasis added)
Patient A: We are only 3 minutes from the hospital. I want to stay at home.
This is the fullest account of the discussion which preceded the disclaimer. The practitioner's contemporaneous record, and later accounts, have her returning to the house at 4.30 am, conducting an examination at 4.30 am, recording that the patient wished to remain at home at 4.30 am, and presenting the patient and Mr A with a handwritten disclaimer which was also then signed at 4.30 am. The Tribunal finds that such discussion as did occur was extremely brief.
At its highest, the practitioner's account of events does not meet the standard of an appropriate level of discussion of risks or recommendation of transfer required by the circumstances. The words used by the practitioner were mild and vague, and did not address the gravity of a very pre-term delivery at home without specialist medical care. The discussion was a brief exchange of a couple of sentences at most, followed by a written disclaimer of a similar nature. This was manifestly insufficient. In short, the greater the deviation from normal practice or events the more specific the discussion of risk should be; the more dangerous the situation, the more emphatic the recommendation required.
In oral evidence, the practitioner repeatedly said that she had indicated to Patient A and Mr A that the situation was "outside her scope of practice". The Tribunal asked her whether anything else was said, or any stronger form of words used by her at the time, and she replied in the negative. The Tribunal asked whether, in her view, a patient would understand the form of words "scope of practice" to indicate that a situation was in fact very unsafe, and the practitioner said that she thought it was clear from the disclaimer and her earlier consent documentation that this was so. In fact neither document makes any reference to risk, or accepted guidance for safe homebirth, in defining the scope of practice.
Ms Sheldrick's oral evidence was that she believed the situation at the time to be "very, very unsafe" and that a transfer to hospital was inevitable. We find nothing that was said or done by the practitioner at the time conveyed that belief in terms which would be comprehended by a patient.
We find, based on the practitioner's own account, that she led Patient A to believe that she was equipped to provide respiratory care in circumstances where this was beyond the realm of her expertise, and that this, rather than any informed consideration of risk, generated a false sense of security for Patient A and Mr A in proceeding with the homebirth.
The Tribunal finds that the practitioner did not make a recommendation of immediate transfer, discuss the specific risks of a homebirth involving a pre-term pregnancy, or the specific medical care available in the hospital environment. In these circumstances, we find that the "disclaimer" signed by Patient A and Mr A did not document an informed decision, but rather was an ill-judged attempt to deflect the practitioner's own professional responsibilities.
The remaining contested particulars concern a failure to remove Patient A from warm water immersion when breech birth was imminent (particular 6), failure to provide adequate information to the ambulance service (particular 7) and failure to provide adequate handover at the hospital (particular 8). Despite some concessions on aspects of these particulars, the Tribunal is not independently satisfied that these three particulars are proved to the required standard.
The expert evidence was divided on the question of water birth in pre-term labour because the evidence base is so scant. While both experts concurred that water immersion is not appropriate for breech birth, the breech presentation was only apparent at around 9 am. Professor Fenwick attested that moving the Patient suddenly could exacerbate the risk through triggering the moro reflex, and Ms Rudner agreed. The practitioner's uncontradicted evidence was that, in any event, Patient A was standing in the pool at the time, and so was not immersed. Therefore we find that this particular is not established.
Once the breech presentation was clear, the practitioner called the ambulance service. The transcript of the phone call indicates a standard series of questions being put by the operator. While the practitioner did not indicate that the pregnancy was pre-term she did state that the birth was breech and the cord was compressed, and in oral evidence she stood by this as the information which was relevant to the emergency. Professor Fenwick was not critical of the conduct and Ms Rudner was not strongly critical. The Tribunal does not find that the conduct fell below the required standard.
At the hospital, the practitioner provided a brief oral handover and handed over a two page document of antenatal records, but did not provide her more detailed notes. Professor Fenwick was not critical of the conduct and Ms Rudner was not strongly critical. In her oral evidence, the practitioner focused upon the emergency nature of the situation in providing information orally and succinctly, and the professional members agreed that this was appropriate in the circumstances (in contrast to particular 18 of complaint 2 where there was no presenting emergency, the practitioner could have sought the patient's permission for transfer of notes, and the detailed notes could have assisted with understanding what had occurred over a much longer period). The Tribunal does not find that the conduct fell below the required standard.
The Tribunal finds that the conduct in both Complaint 1 and Complaint 2 is of such grave seriousness that each instance must be considered as professional misconduct.
In both cases, the midwife proceeded with a homebirth in very unsafe circumstances, did not convey to the patients and their partners the scope or gravity of the risks they faced, did not consult with any other midwives or obstetricians who may have either a) provided advice to the midwife or b) provided advice to the patients; and did not recommend transfer to hospital and medical care in terms that reflected such risk. Characterising these homebirths as a patient's choice misrepresents the patient's knowledge base in making that (uninformed, or not sufficiently informed) decision, and misunderstands the role of the professional in explaining risk and recommending safe practice.
The collected competency and ethics documents of the Midwifery profession make it clear that a midwife must recognise and act within her/his own knowledge base and the guidelines and standards set by the profession, and that s/he should refer to specialist medical care when the needs of a woman or her baby fall outside of this scope. Beyond her failure to be well aware of, and to adhere to, such professional guidance, the practitioner's proven and admitted conduct in these complaints demonstrated that she was either unaware of her own limitations, or unprepared to take appropriate action as a result.
Health Care Complaints Commission v Sheldrick - [2016] NSWCATOD 105 - NSWCATOD 2016 case summary — Zoe