Nursing and Midwifery Board of Australia v Macrae (Review and Regulation) [2018] VCAT 1707

The Tribunal finds the following allegations proven against the respondent, Dianne Jean Macrae and finds that they each constitute professional misconduct as defined in 5(a) of the Health Practitioner Regulation National Law (Victoria) Act 2009 (National Law), namely unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience (professional misconduct):

Allegation 1: Initiation of intravenous fluids (Patient A)

On 11 October 2011, while working as a nurse and midwife employed by the Djerriwarrh Health Services (Bacchus Marsh Hospital), Mrs Dianne Jean Macrae engaged in professional misconduct in that she failed to provide clinically appropriate nursing and midwifery care to Patient A by initiating intravenous fluids in preparation for the placement of an epidural without prior medical consultation.

Allegation 2: Inappropriately arranging epidural (Patient A)

On 11 October 2011, while working as a nurse and midwife employed by the Bacchus Marsh Hospital, Mrs Macrae engaged in professional misconduct in that she failed to provide clinically appropriate nursing and midwifery care to Patient A, by arranging an epidural to be placed without obtaining a reassuring CTG trace or otherwise assuring herself of fetal wellbeing or obtaining advice from an appropriate medical practitioner that it was safe to do so.

Allegation 3: Inadequate or Inappropriate Monitoring (Patient A)

On 11 October 2011, while working as a nurse and midwife employed by the Bacchus Marsh Hospital, Mrs Macrae engaged in professional misconduct in that she failed to provide clinically appropriate nursing and midwifery care to Patient A, by inappropriately monitoring Patient A's wellbeing and fetal wellbeing.

Allegation 4: Failing to recognise and respond effectively in an emergency or urgent situation (Patient A)

On 11 October 2011, while working as a nurse and midwife employed by the Bacchus Marsh Hospital, Mrs Macrae engaged in professional misconduct in that she failed to provide clinically appropriate nursing and midwifery care to Patient A, by failing to recognise and respond effectively in an emergency or urgent situation by: failing to identify any reversible cause of the fetal bradycardia and initiate appropriate action; and failing to arrange an urgent medical review in the context of prolonged fetal bradycardia.

Allegation 5: Failure to make adequate records (Patient A)

On 11 October 2011, while working as a nurse and midwife employed by the Bacchus Marsh Hospital, Mrs Macrae engaged in professional misconduct in that she failed to provide clinically appropriate nursing and midwifery care to Patient A, by failing to formulate documentation in accordance with legal and professional guidelines, including: illegibility; failure to identify entries as nursing entries, or to print her name and designation; failing to record all salient features of FHR revealed by CTG monitoring or by auscultation; use of unacceptable terminology such as a down arrow symbol to indicate reduced FHR; failing to document discussions with Patient A prior to clinical interventions; failing to document discussions with medical officers or decisions about medical management; and failing to document who took over care for Patient A when the caesarean section was undertaken.

Allegation 6: Failing to recognise and respond effectively in an emergency or urgent situation (Patient B)

On 13 October 2011, while working as a nurse and midwife employed by the Bacchus Marsh Hospital, Mrs Macrae engaged in professional misconduct in that she failed to provide clinically appropriate nursing and midwifery care to Patient B, by her failure to recognise and respond effectively in an emergency or urgent situation by: failing to identify any reversible cause of the fetal tachycardia and initiate appropriate action after Patient B's admission to hospital including vaginal examination and artificial rupture of membranes to assess liquor colour and odour; failing to take action to closely monitor fetal wellbeing in the context of identified fetal tachycardia including (i) application of fetal scalp electrode and (ii) continued close monitoring of fetal heart pattern and close review of previous CTG traces; failing to consult with a medical officer and agree on an interim management plan as soon as decelerations and reduced variability were noted; and failing to arrange for urgent medical review after reduced variability had been present for forty and/or ninety minutes.

Allegation 7: Failure to make adequate records (Patient B)

On 13 October 2011, while working as a nurse and midwife employed by the Bacchus Marsh Hospital, Mrs Macrae engaged in professional misconduct in that she failed to provide clinically appropriate nursing and midwifery care to Patient B, by her failure to formulate documentation in accordance with legal and professional guidelines, including: illegibility and failures in other standard documentation requirements; failing to record all salient features of FHR revealed by CTG monitoring or by auscultation; use of unacceptable terminology such as the use of a down arrow symbol to indicate reduced FHR; failing to document discussions with Patient B prior to clinical interventions; and failing to document discussions with medical officers or decisions about medical management.

Allegation 8: Failing to recognise and respond effectively in an emergency or urgent situation (Patient C)

On 13 February 2013, while working as a nurse and midwife employed by the Bacchus Marsh Hospital, Mrs Macrae engaged in professional misconduct in that she failed to provide clinically appropriate nursing and midwifery care to Patient C, by her failure to recognise and respond effectively in an emergency or urgent situation by: failing to identify any reversible cause of the reduced variability and decelerations and initiate appropriate action; failing to take action to closely monitor fetal wellbeing in the context of identified fetal tachycardia; and failing to arrange for urgent medical review in the context of decelerations, reduced variability and heavy brown meconium stained liquor upon artificial rupture of membranes (ARM).

Allegation 9: Failure to make adequate records (Patient C)

On 13 February 2013, while working as a nurse and midwife employed by the Bacchus Marsh Hospital, Mrs Macrae engaged in professional misconduct in that she failed to provide clinically appropriate nursing and midwifery care to Patient C, by her failure to formulate documentation in accordance with legal and professional guidelines, including: illegibility and failures in other standard documentation requirements; failing to record all salient features of FHR revealed by CTG monitoring or by auscultation; use of unacceptable terminology such as the use of the word "happier" to describe a CTG trace; failing to document discussions with Patient C prior to interventions; and failing to document a clinical plan.

Allegation 10: Inadequate response to adverse events

Between October 2011 and February 2013, while working as a nurse and midwife employed by the Bacchus Marsh Hospital, Mrs Macrae engaged in professional misconduct in that she failed to: undertake formal reflective practice activity to identify gaps in her skills, knowledge or abilities; focus her CPD activity on the factors drawn to her attention in the clinical reviews of the cases of Patient A and Patient B; and inform her employer or alter her scope of practice when her next fetal surveillance and monitoring assessment in May 2012 suggested that her knowledge of fetal surveillance was equivalent to a junior, "supervised practitioner".

1. The respondent is reprimanded.
2. The Tribunal accepts and records the offered undertaking from the respondent that she will never again apply for registration as a nurse and midwife.

NOTE: ORDERS UNDER THE OPEN COURTS ACT 2013 ARE IN FORCE

On 3 May 2018, the Tribunal made the following orders:

1. Any report of the whole or part of these proceedings or information derived from this proceeding that might enable the patients, the subject of these proceedings, their families, the notifiers and the Board's witnesses to be identified must not be published or otherwise disclosed.
2. This order applies throughout Australia on the basis that the Tribunal's reasons for decision for final orders are published on AustLII and that website may be accessed throughout Australia. The privacy of the patients, their families and that of the notifiers would be breached if persons living outside Victoria know or come to know their identity.
3. This order operates until the later of the death of all of the relevant patients and their immediate family members.

We made findings and orders at the hearing on 18 October 2018 and advised the parties we would provide our reasons in writing. These are our reasons.

1. This case is about the professional conduct of Mrs Dianne Jean Macrae in 2011 and 2013 in relation to three patients while she was working as a nurse and midwife employed by the Djerriwarrh Health Services (Bacchus Marsh Hospital) and was the Associate Nurse Unit Manager in the Women's Unit at the hospital.
2. Mrs Macrae no longer works as a nurse and midwife. She surrendered her registration to the Nursing and Midwifery Board of Australia on 13 July 2017. The outcome of these proceedings is that she will never work again as a nurse and midwife. She has agreed to this outcome.
3. Following an investigation, in May 2018 the Board referred 11 allegations to the Tribunal relating to the standard of the care Mrs Macrae provided to three patients at Bacchus Marsh Hospital; the adequacy of her clinical records relating to those patients; the adequacy of her clinical skills in assessing maternal and fetal wellbeing and in recognising clinical risks; the adequacy of her response in an emergency or urgent situation; and the adequacy of her response to adverse events.
4. The allegations are set out in full below. Because orders under the Open Courts Act 2013 are in force to protect the privacy of patients and notifiers, we refer to those patients in these reasons as Patients A, B and C.
5. In summary, the alleged conduct was:
   • initiating intravenous fluids and arranging an epidural without prior medical consultation: patient A
   • inadequate or inappropriate monitoring of patient and fetal well-being: patient A
   • failing to recognise and respond effectively in an emergency or urgent situation: patient A, patient B and patient C
   • failure to make adequate records: patient A, patient B and patient C
   • inadequate response to adverse events, in particular Mrs Macrae's failure to respond adequately to a 2011 clinical review of cases attended by her which identified substandard fetal surveillance in each case, and a 2012 fetal surveillance and monitoring assessment which concluded that her knowledge of fetal surveillance was equivalent to a junior 'supervised practitioner'.
6. Before the case came on for hearing, Mrs Macrae admitted the factual allegations; admitted that the conduct in each case constituted unprofessional conduct that when considered together amounted to professional misconduct; and agreed with a jointly proposed order that she be reprimanded. The parties provided to us an agreed statement of facts; joint proposed findings and determinations; and written and oral submissions.
7. We did not accept the proposed findings as to the seriousness of the conduct and the proposed determination of a reprimand.
8. We were not satisfied that the conduct in allegations 1-10 was appropriately characterised as unprofessional conduct. In our view, the conduct in each of allegations 1-10 met the requirements of the more serious professional misconduct under paragraph (a) of the definition of professional misconduct in the National Law, namely:

unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience.

1. We were also not satisfied that the proposed determination, of a reprimand and no other orders, was appropriate.
2. Decisions about determinations are made with protection of the public at the forefront, taking account of factors such as insight and remorse, any mitigating factors, the nature and gravity of the conduct, any risk of a repeat of the conduct and the need to deter other practitioners from engaging in the same conduct. In our view, a reprimand, while serious, would not sufficiently address those factors.
3. An agreement between a regulator and the respondent, while it is to be given weight, cannot supplant the Tribunal's duty and responsibility to determine the level of conduct alleged and the appropriate sanction.
4. Where the Tribunal is persuaded that a penalty proposed by the parties is appropriate, it is, we agree, highly desirable practice to accept the proposal and there is an important public policy benefit in doing so.
5. But we were not persuaded that the characterisation and penalty proposed were appropriate in this case.
6. In addition to the proposed reprimand, we accepted an undertaking from Mrs Macrae that she would never again apply for registration as a nurse and midwife.
7. We made our findings in this case mindful of the principles in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.
8. Our detailed reasons follow.

The scope of these proceedings and the role of the Tribunal

1. The high perinatal mortality rate at the Bacchus Marsh Hospital during a particular period has been widely reported, as have been the steps taken to address identified issues. There have been several independent reports, including a 2015 report by Professor Euan Wallace in evidence before us identifying a series of avoidable deaths and other adverse patient outcomes.[1] There have been coronial inquiries.
2. Here, the outcome for the patients in each of the three cases, was that their babies died. The distress, grief and anger at the loss of their babies is clear from the statements of the parents provided to the Board and in the materials before us.
3. We are not conducting an inquiry, however, into the reasons why the three babies died. We emphasise that the Board does not allege that Mrs Macrae's actions or inactions caused the death of the three babies.
4. Our role in these proceedings is to consider the allegations the Board has made; decide whether they are proven; decide how the conduct proven should be characterised; and decide what should be the professional consequences - the orders by way of determinations, also called penalty.
5. In deciding what determinations are appropriate, we must consider the nature and gravity of the conduct, including the risk to patients that the conduct poses. We were satisfied here that the conduct posed a serious risk to patients in the care of a midwife.
6. We acknowledge that Professor Wallace's report into perinatal deaths at Bacchus Marsh Hospital made findings about the working conditions for staff at the hospital, including that provision for midwifery education was inadequate and that the lack of out of hours/emergency paediatric cover for neonatal resuscitation and care was a likely contributor to poorer than expected outcomes.
7. Professor Wallace also found that misuse and /or misinterpretation of fetal surveillance by cardiotocography (CTG) was widespread.
8. Mrs Macrae was not the only registered health practitioner involved in the care of patients at the hospital, nor the only health practitioner who worked at the Bacchus Marsh Hospital who has been investigated by their professional Board.
9. Our findings and determinations, however, concern Mrs Macrae's own professional responsibilities and competence as a nurse and midwife, which are independent of working conditions, and her inadequate response to identified deficiencies in her professional skills despite adverse events.

1. On the basis of Mrs Macrae's admissions and the agreed statement of facts set out below, we were satisfied that the factual allegations in allegations 1-10 were proved. We made findings to that effect.
2. Allegations 1-10 were allegations of specific failings. A further allegation, Allegation 11, was expressed as further or alternative to allegations 1-10 in that Mrs Macrae engaged in one or more instances of unprofessional conduct that, when considered together, amount to conduct that is substantially below the standard reasonably expected of a midwife and nurse of equivalent training and experience.
3. In our view, however, the conduct in each of allegations 1-10 constituted professional misconduct. That being so, allegation 11 was otiose.
4. We set out the proven allegations in full**.**

Allegation 1: Initiation of intravenous fluids (Patient A)

1. On 11 October 2011, while working as a nurse and midwife employed by the Djerriwarrh Health Services (Bacchus Marsh Hospital), Mrs Dianne Jean Macrae:

1.1 engaged in professional misconduct as defined in s 5(a) of the Health Practitioner Regulation National Law (Victoria) Act 2009 (National Law) -

in that she failed to provide clinically appropriate nursing and midwifery care to Patient A by initiating intravenous fluids in preparation for the placement of an epidural without prior medical consultation.

(a) At all relevant times, Mrs Macrae was a registered nurse and registered midwife and working as Associate Nurse Unit Manager in the Women's Unit at Bacchus Marsh Hospital.

(b) On 11 October 2011 at 20:00 and 21:00, Mrs Macrae initiated intravenous fluids and administered 2 x 1000 ml Hartmann's solution without direction from a medical practitioner.

(i) Competency 2, Element 2.3 and Competency 5, Element 5.5, of the National Competency Standards for the Midwife, Nursing and Midwifery Board of Australia (2010);

(ii) Competency 2, Element 2.5 of the National Competency Standards for the Registered Nurse, Nursing and Midwifery Board of Australia (2010);

(iii) Conduct Statement 2, Paragraph 1 of the Code of Professional Conduct for Midwives in Australia (2008);

(iv) Conduct Statement 2, Paragraph 1 of the Code of Professional Conduct for Nurses in Australia (2008);

Allegation 2: Inappropriately arranging epidural (Patient A)

1. On 11 October 2011, while working as a nurse and midwife employed by the Bacchus Marsh Hospital, Mrs Macrae:

2.1 engaged in professional misconduct as defined in s 5(a) of the National Law -

in that she failed to provide clinically appropriate nursing and midwifery care to Patient A, by arranging an epidural to be placed without obtaining a reassuring CTG trace or otherwise assuring herself of fetal wellbeing or obtaining advice from an appropriate medical practitioner that it was safe to do so.

(a) The Applicant refers and repeats the particular (a) to paragraph 1.

(b) On 11 October 2011 at about 20:30 Mrs Macrae arranged for an epidural to be placed in Patient A for provision of labour analgesia;

(c) At that time, Mrs Macrae had not obtained a reassuring CTG trace or otherwise assured herself of foetal wellbeing or obtained advice from an appropriate medical practitioner that it was safe to do so.

(i) Competency 1, Element, 1.2 ((Observations of Labouring Women - Djerriwarrh Health Services" (2007) and "Fetal Monitoring - Djerriwarrh Health Service" (2003 -2011)), Competency 2, Element 2.3, Competency 5, Element 5.2, Competency 6, Element 6.2 and Competency 8, Element 8.1 of the National Competency Standards for the Midwife, Nursing and Midwifery Board of Australia (2010);

(ii) Competency 2, Element 2.5 and Competency 9, Element 9.2 of the National Competency Standards for the Registered Nurse, Nursing and Midwifery Board of Australia (2010);

(iii) Conduct Statement 2, Paragraph 1 of the Code of Professional Conduct for Midwives in Australia (2008);

(iv) Conduct Statement 2, Paragraph 1 of the Code of Professional Conduct for Nurses in Australia (2008);

Allegation 3: Inadequate or Inappropriate Monitoring (Patient A)

1. On 11 October 2011, while working as a nurse and midwife employed by the Bacchus Marsh Hospital, Mrs Macrae:

3.1 engaged in professional misconduct as defined in s 5(a) of the National Law -

in that she failed to provide clinically appropriate nursing and midwifery care to Patient A, by inappropriately monitoring Patient A's wellbeing and fetal wellbeing.

(a) The Applicant refers and repeats particular (a) to paragraph 1.

(b) Patient A was admitted to Bacchus Marsh Hospital on 11 October 2011 at about 20:30.

(c) The Djerriwarrh Health Services Observations of the Labouring Woman (2007) guideline required CTG monitoring on admission for a period of 20 minutes when a woman is in established labour.

(d) On 11 October 2011 Mrs Macrae did not undertake an assessment of fetal wellbeing via an admission CTG;

(e) On 11 October 2011 at 21:30 where Mrs Macrae identified the fetal heart rate (FHR) as abnormal, she elected to change the machine rather than maintain close and continuous observation of all relevant FHR pattern features;

(f) On 11 October 2011 at 21:30-22:10, Mrs Macrae did not make an assessment of Patient A's CTG for features other than FHR, including accelerations, decelerations, variability, rising or falling baseline.

(i) the 2007 Guideline referred to in particular (c) to paragraph 3 above;

(ii) Competency 5, Element 5.2 and 5.3 of the National Competency Standards for the Midwife, Nursing and Midwifery Board of Australia (2010);

(iii) Competency 5, Element 5.1, of the National Competency Standards for the Registered Nurse, Nursing and Midwifery Board of Australia (2010);

(iv) Conduct Statement 2, Paragraph 1 of the Code of Professional Conduct for Midwives in Australia (2008);

(v) Conduct Statement 2, Paragraph 1 of the Code of Professional Conduct for Nurses in Australia (2008);

Allegation 4: Failing to recognise and respond effectively in an emergency or urgent situation (Patient A)

1. On 11 October 2011, while working as a nurse and midwife employed by the Bacchus Marsh Hospital, Mrs Macrae:

4.1 engaged in professional misconduct as defined in s 5(a) of the National Law -

in that she failed to provide clinically appropriate nursing and midwifery care to Patient A, by failing to recognise and respond effectively in an emergency or urgent situation by:

· Failing to identify any reversible cause of the fetal bradycardia and initiate appropriate action

· Failing to arrange an urgent medical review in the context of prolonged fetal bradycardia

(a) The Applicant refers and repeats particular (a) to paragraph 1.

(b) On 11 October 2011, Mrs Macrae failed to refer Patient A's maternity care to a medical practitioner or other appropriate health practitioner; and identify any reversible cause of the fetal bradycardia and initiate appropriate action in circumstance where:

(i) the fetal heart rate reduced from 135bpm to 95bpm over a five minute period between 20:55 and 21:00;

(ii) she had noted reduced fetal heart rate from as early as, or before, 21:30 where the bpm was 95bpm;

(iii) having dropped below 100bpm the fetal heart rate then remained between 80 to 105bpm for approximately one hour;

(iv) she had noted the fetal heart rate to be between 85 and 115bpm for a period of 40 minutes (see page 9 of Tait Report).

(b) Mrs Macrae did not take steps to arrange urgent medical review until 22:00.

(i) undertake observations or assessments to identify causes of maternal hypotension associated to posture, hypovolaemia, antepartum haemorrhage and associated side effects of an epidural,

(ii) undertake a vaginal examination to exclude causes such as cord prolapse or malpresentation.

(iii) consider fetal scalp electrode (FSE) to exclude maternal pulse being picked up instead of fetal heart rate.

(i) Competency 1, Element 1.2 ("Intrapartum fetal surveillance -Clinical Guidelines RANZCOG 2006." (2006) which states that prolonged bradycardia ( 5 minutes) is very likely to be associated with significant fetal compromise and require immediate management, which may include urgent delivery; and "Fetal Monitoring - Djerriwarrh Health Service" (2003 -2011)), Competency 5, Elements 5.2 and 5.3, Competency 6, Element 6.2 and Competency 8, Element 8.1 of the National Competency Standards for the Midwife, Nursing and Midwifery Board of Australia (2010);

(ii) Competency 5, Element 5.1, Competency 6, Element 6.1, Competency 7, Element 7.4 and Competency 9. Element 9.2 of the National Competency Standards for the Registered Nurse;

(iii) Conduct Statement 2, Paragraph 1 of the Code of Professional Conduct for Midwives in Australia (2008);

(iv) Conduct Statement 2, Paragraph 1 and 2 of the Code of Professional Conduct for Nurses in Australia (2008);

Allegation 5: Failure to make adequate records (Patient A)

1. On 11 October 2011, while working as a nurse and midwife employed by the Bacchus Marsh Hospital, Mrs Macrae:

5.1 engaged in professional misconduct as defined in s 5(a) of the National Law -

in that she failed to provide clinically appropriate nursing and midwifery care to Patient A, by failing to formulate documentation in accordance with legal and professional guidelines, including:

· Illegibility, failure to identify entries as nursing entries, or to print her name and designation

· Failing to record all salient features of FHR revealed by CTG monitoring or by auscultation

· Use of unacceptable terminology such as a down arrow symbol to indicate reduced FHR

· Failing to document discussions with Ms Patient A prior to clinical interventions

· Failing to document discussions with medical officers or decisions about medical management

· Failing to document who took over care for Patient A when the caesarean section was undertaken

(a) The Applicant refers and repeats particular (a) paragraph 1.

(b) On 11 October 2011, Mrs Macrae did not make a record of discussions she had with other members of the treating team, including:

(i) her notification to Dr Strangio at or around 21:30 about his availability for delivery, particularly her information to Dr Strangio and Dr Strangio's response;

(ii) her notification to Dr Basu about her concerns regarding the presence of meconium stained liquor at or around 21:40 and any response from Dr Basu;

(iii) her notification to Dr Basu about fetal heart rate readings at or around 22:00 and any response from Dr Basu;

(iv) whether, following her notification to Dr Basu, maternity care and responsibility continued with Mrs Macrae or was referred to Dr Basu.

(ii) Patient A's heart rate on the partogram after 20:45 or in such a way as to be intelligible to another practitioner;

(iii) Patient A's blood pressure or temperature on the partogram after 20:45;

(iv) Fetal heart rate on the partogram in such a way as to be intelligible to another practitioner;

(i) Competency 1, Elements 1.2 (Fetal Monitoring - Djerriwarrh Health Service (2003 -2011) and Emergency Caesarean Section - Djerriwarrh Health Services (2011)), 1.3, Competency 6, Element 6.2 and Competency 8, 8.1 of the National Competency Standards for the Midwife, Nursing and Midwifery Board of Australia (2010);

(ii) Competency 6, Element 6.3, Competency 7, Element 7.4 and Competency 9, Element 9.2 of the National Competency Standards for the Registered Nurse (2008);

(iii) Conduct Statement 2, Paragraphs 1 and 2 of the Code of Professional Conduct for Midwives in Australia (2008);

(iv) Conduct Statement 2, Paragraphs 1 and 2 and Conduct Statement 6, Paragraphs 1 and 2 of the Code of Professional Conduct for Nurses in Australia (2008);

Allegation 6: Failing to recognise and respond effectively in an emergency or urgent situation (Patient B)

1. On 13 October 2011, while working as a nurse and midwife employed by the Bacchus Marsh Hospital, Mrs Macrae:

6.1 engaged in professional misconduct as defined in s 5(a) of the National Law -

in that she failed to provide clinically appropriate nursing and midwifery care to Patient B, by her failure to recognise and respond effectively in an emergency or urgent situation by:

· Failing to identify any reversible cause of the fetal tachycardia and initiate appropriate action after Patient B's admission to hospital including vaginal examination and artificial rupture of membranes to assess liquor colour and odour

· Failing to take action to closely monitor fetal wellbeing in the context of identified fetal tachycardia including:

• (i) application of fetal scalp electrode

(ii) continued close monitoring of fetal heart pattern and close review of previous CTG traces

· Failing to consult with a medical officer and agree on an interim management plan as soon as decelerations and reduced variability were noted

· Failing to arrange for urgent medical review after reduced variability had been present for forty and/or ninety minutes

(a) The Applicant refers and repeats the particular (a) to paragraph 1.

(b) Patient B presented at BMH at 12:30 on 13 October 2011 and was assessed as being in labour and 9cms dilated with the presenting part at spines;

(c) Mrs Macrae was the attending midwife, responsible for the midwifery care of Patient B;

(d) CTG monitoring was commenced upon admission at 12:33, which showed decelerations and reduced variability and fetal tachycardia;

(e) At or about 12:45 Mrs Macrae assessed the admission CTG as demonstrating decelerations and reduced variability, but took no, or no adequate, action to investigate fetal wellbeing.

(f) Mrs Macrae did not urgently refer Patient B to a medical practitioner in circumstances where:

(i) at 12:45 CTG was abnormal, with features of decelerations and reduced variability;

(ii) at 13:15 CTG was abnormal, with features of reduced variability and neither decelerations or accelerations present;

(iii) at 14:00 CTG was abnormal, with features of continued reduced variability since commencement of CTG at approximately 12:33.

(i) Competency 1, Element 1.2 ("Intrapartum fetal surveillance -Clinical Guidelines RANZCOG 2006." (2006), Fetal Monitoring - Djerriwarrh Health Service" (2003 -2011)), Competency 2, Element 2.3, Competency 5, Elements 5.2, 5.3, Competency 6, Element 6.2 and Competency 8, Element 8.1 of the National Competency Standards for the Midwife, Nursing and Midwifery Board of Australia (2010);

(ii) Competency 2, Element 2.2 and 2.5, Competency 7, Element 7.4, Competency 9, Element 9.2 of the National Competency Standards for the Registered Nurse, Nursing and Midwifery Board of Australia (2010);

(iii) Conduct Statement 2, Paragraph 1 of the Code of Professional Conduct for Midwives in Australia (2008);

(iv) Conduct Statement 2, Paragraph 1 and 2 of the Code of Professional Conduct for Nurses in Australia (2008);

Allegation 7: Failure to make adequate records (Patient B)

1. On 13 October 2011, while working as a nurse and midwife employed by the Bacchus Marsh Hospital, Mrs Macrae:

7.1 engaged in professional misconduct as defined in s 5(a) of the National Law -

in that she failed to provide clinically appropriate nursing and midwifery care to Patient B, by her failure to formulate documentation in accordance with legal and professional guidelines, including:

· Illegibility and failures in other standard documentation requirements

· Failing to record all salient features of FHR revealed by CTG monitoring or by auscultation

· Use of unacceptable terminology such as the use of a down arrow symbol to indicate reduced FHR

· Failing to document discussions with Patient B prior to clinical interventions

· Failing to document discussions with medical officers or decisions about medical management

(i) Competency 1, Element 1.2 (Fetal Monitoring - Djerriwarrh Health Service (2003 -2011), 1.3, Competency 6, Element 6.2 and Competency 8, Element 8.1 of the National Competency Standards for the Midwife, Nursing and Midwifery Board of Australia (2010);

(ii) Competency 6, Element 6.3, Competency 7, Element 7.4 and Competency 9, Element 9.2 of the National Competency Standards for the Midwife (2010);

(iii) Conduct Statement 2, Paragraphs 1 and 2 of the Code of Professional Conduct for Midwives in Australia (2008);

(iv) Conduct Statement 2, Paragraph 1 and 2, and Conduct Statement 6, Paragraph 1 and 2 of the Code of Professional Conduct for Nurses in Australia (2008);

Allegation 8: Failing to recognise and respond effectively in an emergency or urgent situation (Patient C)

1. On 13 February 2013, while working as a nurse and midwife employed by the Bacchus Marsh Hospital, Mrs Macrae

8.1 engaged in professional misconduct as defined in s 5(a) of the National Law-

in that she failed to provide clinically appropriate nursing and midwifery care to Patient C, by her failure to recognise and respond effectively in an emergency or urgent situation by:

· Failing to identify any reversible cause of the reduced variability and decelerations and initiate appropriate action

· Failing to take action to closely monitor fetal wellbeing in the context of identified fetal tachycardia

· Failing to arrange for urgent medical review in the context of decelerations, reduced variability and heavy brown meconium stained liquor upon artificial rupture of membranes (ARM).

(a) On 13 February 2013 at 21:30 she failed to assess a CTG trace as abnormal in circumstances where she was responsible for Patient C's care and the CTG trace was abnormal, with features of late decelerations as early as 21:00.

(b) On 13 February 2013 between 20:44 and 23:00 she failed to identify a CTG trace as abnormal in circumstances where she was responsible for Patient C's care, a continuous CTG was in place and the CTG trace was abnormal.

(c) The clinical records note fetal heart rate above 160bpm at 22:09, 22:19, 22:39 and 23:19 on 13 February 2013 and 00:19 on 14 February 2013, but Mrs Macrae failed to take action to closely monitor fetal wellbeing in the context of identified fetal tachycardia, including by the:

(ii) continued close monitoring of fetal heart pattern and close review of previous CTG traces

(d) Mrs Macrae failed to identify any reversible cause of the reduced variability and decelerations and initiate appropriate action by:

(i) ascertaining the mother's maternal diabetes mellitus status

(ii) ensuring maternal hydration to exclude dehydration as a cause

(iii) application of FSE to more closely monitor fetal wellbeing

(iv) repositioning the mother on to the left lateral position, to help with uterine perfusion, to exclude or to identify and manage hypotension

(v) cessation of any oxytocics and administration of tocolytic (smooth muscle relaxants) agents to calm the overstimulated uterus in the event that the trace was caused by uterine hyperstimulation

(i) Competency 1, Element 1.2 (Intrapartum fetal surveillance -Clinical Guidelines RANZCOG 2006." (2006); "Fetal Monitoring - Djerriwarrh Health Service" (2003 -2011); Djerriwarrh Health Service "Progress Notes Documentation - Djerriwarrh Health Services (2012)), Competency 2, Element 2.3, Competency 5, Elements 5.2, 5.3, Competency 6, Element 6.2 and Competency 8, Element 8.1 of the National Competency Standards for the Midwife, Nursing and Midwifery Board of Australia (2010);

(ii) Competency 2, Element 2.5, Competency 5, Elements 5.1, Competency 6, Element 6.1, Competency 7, Element 7.4 of the National Competency Standards for the Midwife, Nursing and Midwifery Board of Australia (2010);

(iii) Conduct Statement 2, Paragraph 1 of the Code of Professional Conduct for Midwives in Australia (2008);

(iv) Conduct Statement 2, Paragraph 1 and 2 of the Code of Professional Conduct for Nurses in Australia (2008);

Allegation 9: Failure to make adequate records (Patient C)

1. On 13 February 2013, while working as a nurse and midwife employed by the Bacchus Marsh Hospital, Mrs Macrae

9.1 engaged in professional misconduct as defined in s 5(a) of the National Law -

in that she failed to provide clinically appropriate nursing and midwifery care to Patient C, by her failure to formulate documentation in accordance with legal and professional guidelines, including:

· Illegibility and failures in other standard documentation requirements

· Failing to record all salient features of FHR revealed by CTG monitoring or by auscultation

· Use of unacceptable terminology such as the use of the word "happier" to describe a CTG trace

· Failing to document discussions with Patient C prior to interventions

· Failing to document a clinical plan

(i) Competency 1, Elements 1.2 (Progress Notes Documentation - Djerriwarrh Health Services (2012)) and 1.3, Competency 6, Element 6.2 and Competency 8, Element 8.1 of the National Competency Standards for the Midwife, Nursing and Midwifery Board of Australia (2010);

(ii) Competency 6, Element 6.3, Competency 7, Element 7.4, Competency 9, Element 9.2 of the National Competency Standards for the Registered Nurse (2010);

(iii) Conduct Statement 2, Paragraphs 1 and 2 of the Code of Professional Conduct for Midwives in Australia (2008);

(iv) Conduct Statement 2, Paragraph 1 and 2 and Conduct Statement 6, Paragraph 1 and 2 of the Code of Professional Conduct for Nurses in Australia (2008);

Allegation 10: Inadequate response to adverse events

1. Between October 2011 and February 2013, while working as a nurse and midwife employed by the Bacchus Marsh Hospital, Mrs Macrae

10.1 engaged in professional misconduct as defined in s 5(a) of the National Law -

· Undertake formal reflective practice activity to identify gaps in her skills, knowledge or abilities.

· Focus her CPD activity on the factors drawn to her attention in the clinical reviews of the cases of Patient A and Patient B.

· Inform her employer or alter her scope of practice when her next fetal surveillance and monitoring assessment in May 2012 suggested that her knowledge of fetal surveillance was equivalent to a junior, "supervised practitioner".

(a) The Applicant refers to and repeats the particulars to allegation (1)(a) above.

(b) In October 2011, Mrs Macrae was the midwife responsible for the care of Patient A and Patient B;

(c) On 19 October 2001, a clinical review was conducted by Djerriwarrh Health Services into each case which was attended by Mrs Macrae;

(d) the review identified substandard fetal surveillance by the attending midwives (which included Mrs Macrae) in each of those cases. In particular, the review identified that up skilling of CTG interpretation by staff was a necessary and agreed action to be undertaken after each case. Further the review identified as a necessary and agreed action to education staff that if fetal viability was in doubt this should be confirmed prior to further management/intervention.

(e) The Applicant refers to and repeats the particulars to allegation 3, 4, 6 and 7 above.

(f) In May 2012, Mrs Macrae participated in a fetal surveillance and monitoring assessment which concluded that her knowledge of fetal surveillance was equivalent to a junior "supervised practitioner";

(i) Undertake formal reflective practice activity to identify gaps in her skills, knowledge or abilities.

(ii) Analyse strengths and limitations in her own skill, knowledge and experience and address those limitations.

(iii) Focus her CPD activity on the factors drawn to her attention in the clinical reviews of the cases of Patient A and Patient B.

(h) In February 2013, Mrs Macrae was the midwife responsible for the care of Patient C.

(i) Mrs Macrae had not materially improved her fetal surveillance and monitoring skills by that time;

(j) A further clinical review in Patient C's case on 12 March 2013 concluded that there was a need for improvement in CTG interpretation and escalation of care by midwives to medical officers.

(i) Competency 2, Element 2.1 of the National Competency Standards for the Midwife, Nursing and Midwifery Board of Australia (2010);

(ii) Competency 2, Element 2.5 and 2.6 of the National Competency Standards for the Registered Nurse, Nursing and Midwifery Board of Australia (2010);

(iii) Conduct Statement 1, Paragraph 1 and Conduct Statement 10, Paragraph 3 of the Code of Professional Conduct for Midwifes in Australia (2008);

1.1 At all relevant times the respondent (Ms Macrae) was employed by the Djerriwarrh Health Services (Bacchus Marsh Hospital) and registered as a nurse and as a midwife under the Health Practitioner Regulation National Law (Victoria) Act 2009 (National Law).

1.2 Attached to this Agreed Statement is a Notice of Allegations, which contains 11 allegations against Ms Macrae (Notice).

1.3 The time period covered by the Notice of Allegations is October 2011 to February 2013. Throughout that period, Ms Macrae held the position of Associate Nurse Unit Manager (ANUM) at Bacchus Marsh Hospital. [Position Description at Tab 24][2]

1.4 At all relevant times, Ms Macrae's conduct as a registered nurse and midwife was governed by the:

(a) National Competency Standards for the Midwife, Nursing and Midwifery Board of Australia (2010);

(b) National Competency Standards for the Registered Nurse, Nursing and Midwifery Board of Australia (2010);

(c) Code of Professional Conduct for Midwives in Australia (2008);

(d) Code of Professional Conduct for Nurses in Australia (2008).

1.5 Ms Macrae was born in 1955 and is currently 62 years of age. She completed her general nurse training at the Wangaratta Base Hospital in 1976.

1.6 She was first registered as a nurse in 1976 and then as a midwife in 1978.

1.7 She commenced at the Bacchus Marsh Hospital in the maternity unit in 1980; from 2000 to 2006 she also worked in theatre, anaesthetics and recovery. She ceased working at Bacchus Marsh Hospital in May 2016.

1.8 She had also held concurrent employment at the Melton Private Hospital in both general and midwifery nursing between 1985 and 1995, and Sunbury Private Hospital between 1996 and 2000.

1.9 Ms Macrae has retired and is no longer employed. She does not intend to return to practice as a nurse or midwife.

1.10 She surrendered her registration on 13 July 2017 (the circumstances of which are set out below).

1.11 During the period 2006 to 2013 (which encompassed the events identified in the Notice of Allegations) Djerriwarrh Health Services (DjHS) experienced almost a doubling in the number of births at Bacchus Marsh.[3] External reviews identified that the perinatal mortality rate was significantly higher than the State average and much higher than would be expected for a low risk unit.

1.12 During the relevant period, Ms Macrae says her experience at Bacchus Marsh Hospital was that the hospital was understaffed and had an insufficient budget.

1.13 Ms Macrae says she worked frequent overtime, often missed meals and would often arrive home with a thumping headache, having had no meal breaks, tea breaks or even toilet breaks during the day. While working as ANUM, Ms Macrae was expected to both provide hands on care and manage in a supervisory role the care of the patients in the labour ward and the post-natal ward.

1.14 Ms Macrae says there was no adequate continuing professional development program for midwives and no adequate system to maintain midwives' competency in CTG interpretation. In this context, she did not meet her own obligation to upgrade and maintain an appropriate level of clinical practice and professional development.

1.15 The Department of Health and Human Services commissioned an external review of the maternity services at DjHS by Professor Euan Wallace, Head of the Department of Obstetrics and Gynaecology at Monash University. Among other things, Professor Wallace made the following findings:

'Misuse and/or misinterpretation of fetal surveillance by cardiotocography is a recurrent feature of the perinatal deaths reviewed. This suggests that the workforce is inadequately skilled in fetal surveillance.

'...there is inadequate staffing infrastructure supporting midwifery education.

'The lack of out-of-hours/emergency paediatric cover for neonatal resuscitation and care is a likely contributor to poorer than expected outcomes.

'The clinical governance framework has not enabled the health service to monitor and respond to adverse clinical outcomes in a timely manner.'[4]

1.16 In October 2015, Dr John Ballard was appointed as the administrator of DjHS. Since then, the Victorian Government has announced he has overseen changes including the appointment of a new Director of Obstetrics and Consultant Director of Medical Services, a new 24-hour on-call specialist paediatric service, medical equipment upgrades and more education and training for staff.[5]

The Investigation and Other Regulatory Action

1.17 The allegations in the Notice arise out of separate complaints made by three maternity patients of Bacchus Marsh Hospital: Patient A, Patient B and Patient C.

1.18 On 4 February 2016, the Nursing and Midwifery Board of Australia (Board) decided to take action under Division 8 of the National Law and commence an investigation into Ms Macrae's performance in respect of Patient A under s 160(1) of the National Law (it subsequently also decided to commence an investigation into the cases of Patient B and Patient C).

1.19 This was one of a number of investigations by AHPRA arising out of a high number of perinatal deaths occurring at the Bacchus Marsh Hospital. There have been a number of independent reports into the Service, perhaps most notably the "Report of an Investigation into Perinatal Outcomes" by Professor Wallace, dated 31 May 2015, which have identified a series of avoidable deaths and other adverse patient outcomes.

1.20 On 3 March 2016, after receiving submissions on behalf of Ms Macrae, the Immediate Action Committee (IAC) of the Board decided to impose conditions on Ms Macrae's registration requiring her to practice only with supervision pursuant to s 156 of the National Law. The IAC also decided to require Ms Macrae to undergo a performance assessment. [Tab 31]. Although a performance assessment was twice scheduled, Ms Macrae did not participate in the assessment because she advised that she was unwell [Tab 33].

1.21 On 9 September 2016, the Board was asked by Ms Macrae to accept an undertaking from her not to practice "until such time as she is able to indicate that she is fit to do so". Ms Macrae informed the Board that she was "unfit for work and work-related activities". On 17 November 2016, the Board accepted that Ms Macrae had an impairment as defined in the National Law and accepted Ms Macrae's proffered undertaking [Tab 30]. The conditions imposed on 3 March 2016 were removed from the public register.

1.22 On 23 May 2017, Ms Macrae submitted an application for renewal of her registration as a nurse and midwife. The renewal form said that she did not have an impairment.

1.23 On 15 June 2017, the Board proposed to refuse to renew Ms Macrae's registration under section 112(2)(a) of the National Law.

1.24 On 13 July 2017, Ms Macrae surrendered her registration and formally withdrew her application for renewal. As a consequence, on 17 August 2017, the Board accepted her surrender of registration. Ms Macrae has not subsequently sought to be registered under the National Law.

2.1 Patient A was a gravida 1 para 0 woman. Her antenatal course was unremarkable. Her estimated date of confinement (EDC) was 7 October 2011, and she presented as per an arranged booking to Bacchus Marsh Hospital on 11 October 2011 and was admitted at about 20:30.

2.2 Patient A ultimately proceeded to an emergency lower uterine segment caesarean section. A male baby (named baby of Patient A) was delivered at 2258 hours, birthweight 3790g. There was no foetal respiration or cardiac output and the Apgar scores were zero at one minute and zero at five minutes. Extensive resuscitation was unsuccessful.

2.3 Ms Macrae was the ANUM in charge of the shift and was the attending midwife and responsible for the midwifery care of Patient A.

2.4 At 20:00 and 21:00, Ms Macrae initiated intravenous fluids and administered 2 x 1000 ml of Hartmann's solution. Ms Macrae did so without direction from a medical practitioner.

2.5 At about 20:30 Ms Macrae arranged for an epidural to be placed for the provision of labour analgesia. At that time, Ms Macrae had not obtained a reassuring CTG trace or obtained advice from an appropriate medical practitioner that it was safe to do so.

CTG Monitoring & Response to Emergency or Urgent Situation

2.6 The DjHS Observations of the Labouring Woman (2007) guideline required CTG monitoring on admission for a period of 20 minutes when a woman is in established labour [Tab 17]. Ms Macrae did not undertake an assessment of fetal wellbeing via an admission CTG, in breach of the guideline.

2.7 CTG monitoring was subsequently commenced by Ms Macrae:

(a) the fetal heart rate reduced from 135bpm to 95bpm over a five-minute period between 20:55 and 21:00

(b) Ms Macrae noted reduced and therefore abnormal fetal heart rate from as early as, or before, 21:30 where the bpm was 95bpm;

(c) Except for a small number of peaks during accelerations, the fetal heart rate remained below 110bpm for the duration of the CTG monitoring;

(d) Ms Macrae noted a fetal heart rate to be between 80 and 108bpm between 21:30 and 22:10.

2.8 The above circumstances demonstrated prolonged fetal bradycardia and as an emergency or urgent situation. Ms Macrae did not:

(a) take steps to arrange urgent medical review until 22:00;

(b) maintain a close and continuous observation of all relevant FHR pattern features having identified the fetal heart rate as abnormal at 21:30, but instead elected to change the machine;

(c) assess the CTG for features other than FHR, including accelerations, decelerations, variability, rising or falling baseline;

(d) undertake observations or assessments to identify causes of maternal hypotension associated to posture, hypovolaemia, antepartum haemorrhage and associated side effects of an epidural;

(e) undertake a vaginal examination to exclude causes such as cord prolapse or malpresentation;

(f) consider fetal scalp electrode (FSE) to exclude maternal pulse being picked up instead of fetal heart rate;

(g) identify any reversible cause of the fetal bradycardia and initiate appropriate action.

2.9 Ms Macrae's clinical notes appear at page 95 at Tab-34 of the Applicant's Material.

2.10 Ms Macrae's notes did not record the following discussions she had with other members of the treating team:

(a) her notification to Dr Strangio, medical practitioner, at or around 21:30 about his availability for delivery, particularly what she said to Dr Strangio and what Dr Strangio said in response;

(b) her notification to Dr Basu, medical practitioner, about her concerns regarding the presence of meconium stained liquor at or around 21:40 and any response from Dr Basu;

(c) her notification to Dr Basu about fetal heart rate readings at or around 22:00 and any response from Dr Basu;

(d) whether, following her notification to Dr Basu, maternity care and responsibility continued with Ms Macrae or was referred to Dr Basu.

(a) Patient A heart rate on the partogram after 20:45 or in such a way as to be intelligible to another practitioner;

(b) Patient A blood pressure or temperature on the partogram after 20:45;

(c) fetal heart rate on the partogram in such a way as to be intelligible to another practitioner.

2.12 Patient B was a gravida 1 para 0 woman. She presented to Bacchus Marsh Hospital at 1230 hours on 13 October 2011 and was assessed as being in labour and 9 cms dilated with baby's head at spines.

2.13 Ms Macrae was the ANUM in charge of the shift and was the attending midwife and responsible for the midwifery care of Patient B.

2.14 CTG monitoring was commenced, which showed decelerations and reduced variability and fetal tachycardia (as set out below). At 1600 hours her membranes were ruptured artificially and old meconium stained liquor was noted. A medical practitioner was notified. After a failed attempt at forceps delivery, Patient B underwent a caesarean section at about 1700 hours. Patient B's daughter was stillborn.

Failing to recognise and respond effectively in an emergency or urgent situation

2.15 At about 12:33, CTG monitoring was commenced upon admission, which showed decelerations and reduced variability and fetal tachycardia. At about 12:45, Ms Macrae assessed the CTG as demonstrating decelerations and reduced variability and fetal tachycardia.

2.16 At about 13:15 the CTG was abnormal, with features of reduced variability and neither decelerations or accelerations present.

2.17 At about 14:00 the CTG was abnormal, with features of continued reduced variability since commencement at about 12:33.

2.18 A medical officer should have been consulted by Ms Macrae as soon as decelerations and reduced variability were noted. Urgent/emergency medical review was required after reduced variability had been present for forty minutes and thereafter.

(a) did not refer Patient B to a medical practitioner at any time, before then handing over to pm nursing staff about 14:35;

(b) did not consult with a medical officer and agree on an interim management plan as soon as declarations and reduced variability were noted;

(c) did not identify any reversible cause of fetal tachycardia and initiate appropriate action including vaginal examination and artificial rupture of membranes to assess liquor colour and odour;

(d) did not take action to closely monitor fetal wellbeing in the context of identified fetal tachycardia, in particular:

1. application of FSE;
2. continued close monitoring of fetal heart patterns and a close review of previous CTG traces.

2.20 Ms Macrae's clinical notes appear at page 337 at Tab-42 of the Applicant's Material.

(a) are illegible in part;

(b) do not record all salient features of FHR revealed by CTG monitoring or by auscultation;

(c) use the use of a down arrow symbol to indicate reduced FHR, which is not accepted terminology;

(d) do not document discussions with Patient B prior to clinical interventions;

(e) do not document discussions with medical officers or decisions about medical management.

2.22 Patient C was a gravida 1 para 0 woman. Her estimated date of confinement was 12 February 2013. She saw both midwives and medical practitioner at various antenatal appointments. She was diagnosed with "borderline gestational diabetes" and was referred to a dietician.

2.23 At around 1300 hours on 13 February 2013, Patient C called Bacchus Marsh Hospital maternity unit and reported reduced foetal movements. At about 1900 hours, she was advised to attend hospital and was admitted in early labour at 40+2 weeks at 2030 hours.

2.24 Ms Macrae was the ANUM in charge of the shift and was the attending midwife and responsible for the midwifery care of Patient C.

2.25 Patient C baby (baby of Patient C) was delivered by ventouse at 01:00am on 14 February 2013. She was transferred to the Royal Women's Hospital and subsequently died on 2 March 2013.

2.26 A CTG trace was in place and abnormal during the period 20:45 and 23:00, with features of late decelerations as early as 21:00 and reduced variability, suggestive of a change in the placental ability to adequately meet the fetal needs.

2.27 The CTG trace was also abnormal in that it demonstrated fetal tachycardia by a FHR above 160bpm at:

(a) 22:09;

(b) 22:19;

(c) 22:39;

(d) 23:19;

(e) 00:19.

(a) failed to assess the CTG as abnormal;

(b) did not take action to closely monitor fetal wellbeing in the context of tachycardia by, in particular:

1. the application of a FSE;

2. continued close monitoring of fetal heart patter and close review of previous CTG traces;

(c) did not identify any reversible cause of the reduced variability and decelerations and initiate appropriate action by:

1. ascertaining the mother's maternal diabetes mellitus status;
2. ensuring maternal hydration to exclude dehydration as a cause;
3. application of FSE to more closely monitor fetal wellbeing;
4. repositioning the mother on to the left lateral position, to help with uterine perfusion, to exclude or to identify and manage hypotension.

2.29 Ms Macrae's clinical notes appear at 91 of Tab 51 of the Applicant's Material.

(a) are illegible in part;

(b) do not record all salient features of FHR revealed by CTG monitoring or by auscultation;

(c) use the word "happier" to describe a CTG trace, which is not accepted terminology

(d) do not document discussions with Patient C prior to clinical interventions (vaginal examination and artificial rupture of membranes);

(e) do not document a clinical plan.

2.31 The cases of both Patient A and Patient B, each in October 2011, involved Ms McCrae's inadequate: escalation of care, interpretation of CTG, and response to an urgent situation. Each culminated in an adverse outcome, being the death of the baby.

2.32 On 19 October 2011, a clinical review was conducted by Djerriwarrh Health Services into the cases of Patient A and Patient B. [Tab 39]

2.33 In substance, the review identified substandard fetal surveillance by the attending midwives (which included Ms Macrae) in each of those cases. It concluded that upskilling of CTG interpretation by staff was necessary and that it was also necessary to educate staff that if fetal viability was in doubt this should be confirmed prior to further management or intervention.

2.34 In May 2012, Ms Macrae participated in a fetal surveillance and monitoring assessment which concluded that her knowledge of fetal surveillance was equivalent to a junior "supervised practitioner". [Page 7, Tab 34]

(a) undertake formal reflective practice activity to identify gaps in her skills, knowledge or abilities;

(b) analyse strengths and limitations in her own skill, knowledge and experience and address those limitations;

(c) focus her CPD activity on the factors drawn to her attention in the clinical reviews of the cases of Patient A and Patient B.

2.36 In February 2013, Ms Macrae was the midwife responsible for the care of Patient C.

2.37 Ms Macrae had not materially improved her fetal surveillance and monitoring skills by that time.

2.38 Patient C case also involved inadequate interpretation of CTG by Ms Macrae. It also involved an adverse event, being the death of the baby.

2.39 A further clinical review in Patient C's case on 12 March 2013 concluded that there was, still, a need for improvement in CTG interpretation and escalation of care by midwives to medical officers [Tab 54].

1. As noted in the overview section of these reasons, the Board and Mrs Macrae jointly submitted that the conduct in allegations 1-10 should be characterised as unprofessional conduct within the definition in the National Law:

Professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner's professional peers.

1. We considered that the conduct in each of the allegations constituted the more serious professional misconduct within the definition in s 5 (a) of the National Law:

unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience.

1. When we considered each of the factual allegations and their particulars, we were of the view that the conduct in each case was substantially below the required standard, and that 'unprofessional conduct' was not an appropriate characterisation of it.
2. When hearing and deciding cases involving registered health practitioners, the Tribunal sits as a three-person panel. Two of the members are specialist members in that they are members of the same health profession as the respondent in the case. As conceded by the parties, this means that the Tribunal has both the responsibility and the expertise to evaluate the evidence and characterise the conduct.
3. Our view as to characterisation of the conduct was supported by the content of the expert report of Ms Claudia Tait dated 13 June 2017 in evidence.
4. Ms Tait is a Registered Nurse and Registered Midwife with 19 years midwifery experience working as a Clinical Midwifery Educator, Clinical Midwifery Specialist and Antenatal Childbirth Education Co-ordinator. She reviewed the clinical records for the three patients and the background and training of Mrs Macrae.
5. In forming her opinions, Ms Tait took into account documents including the Board's competency standards relating to midwifery care and Djerriwarrh Health Services policies on foetal[6] monitoring, foetal distress when using electronic monitoring, foetal scalp electrodes, emergency caesarean section, observations of labouring women and progress notes documentation.
6. Although she was asked to give her opinion on the extent to which conduct departed from professional standards, Ms Tait was not specifically directed to the differences in the definitions of unprofessional conduct and professional misconduct in the National Law. She concludes in each case that the relevant conduct 'departed from the standards reasonably expected of a registered nurse and midwife of an equivalent level of training and experience' but does not use the word 'substantially' until her conclusion.
7. Counsel for the Board acknowledged that the report was ambiguous as to the degree to which, in Ms Tait's opinion, the conduct fell below the required standard. However, when we considered the identified ways in which the conduct fell short, in Ms Tait's opinion; and what she would have expected of a registered nurse and midwife of Mrs Macrae's training and experience; together with the proven particulars to each allegation, we were comfortably satisfied that the conduct in each case met the requirements of professional misconduct.

Determinations under the National Law: principles and application

1. The applicable principles are well-established.[7] The primary purpose of determinations is to protect the public not to punish the practitioner. That primary purpose, together with protection of the reputation of the nursing and midwifery professions in the eyes of the public, is achieved by ensuring that proper ethical and professional standards are maintained.
2. As the Tribunal observed in Honey v Medical Practitioners Board of Victoria [2007] VCAT 526, [14]:

It is of prime importance in assessing the appropriate sanction that we bear in mind that the purpose of the determination is not to punish ... Our aim must be to protect the public, and we achieve that aim by imposing sanctions aimed at regulating professional performance of the particular individual under consideration and also by way of general deterrence to the profession as a whole.

1. With that protective focus in mind, the Tribunal considers a range of factors including any need to deter the individual practitioner from repeating the conduct. Called specific deterrence, this involves an assessment of any ongoing risk posed by the practitioner such as:
   • whether they have demonstrated insight into the seriousness of the conduct and how and why it occurred;
   • whether they have shown genuine remorse and have taken independent steps to reduce the risk of repetition; and
   • whether they have any past disciplinary history, which in turn may suggest that stronger penalties may be required to deter them in future.[8]
2. The Tribunal will also consider how serious the conduct is and whether there is a need to signal to other members of the profession that adverse consequences will follow such conduct, and so deter them from the same conduct. This is called general deterrence.
3. Determinations in other cases of similar or analogous conduct will provide useful guidance. Consistency and proportionality are important. But every case is different, with its own combination of facts and relevant factors, including the degree of seriousness of the conduct, the length of time the practitioner engaged in the conduct, the number of patients impacted by the conduct, and the circumstances involved.
4. As submitted on her behalf, Mrs Macrae has demonstrated insight and remorse by accepting responsibility for her conduct and admitting the allegations. Her doing so meant that the patients and notifiers were saved from the ordeal of giving evidence in these proceedings.
5. It was clear on the evidence before us, including statements of colleagues and friends, that Mrs Macrae is devastated by these proceedings and the way her career has ended. One friend described her as 'in a very dark place ....and a shell of the person she used to be'.
6. As also submitted on her behalf, Mrs Macrae has been a midwife since 1978 and these are the only disciplinary proceedings in her history. They are, however, very serious matters and represent failures in the care of three patients over a three-year period.
7. We were asked to take into account performance assessments of Mrs Macrae over the period 1995 to 2015. As submitted, those performance appraisals were consistently positive. She is described as a valuable contributor and asset to the service, as having considerable talent and skills and exceeding performance requirements. The glowing terms in which she is praised continue through the period 2011 to 2015.
8. The weight of those performance assessments was reduced considerably in the context of systemic substandard CTG skills across the midwife workforce, identified by Professor Wallace; the outcomes of the 2011 clinical review discussed below, and the low level of Mrs Macrae's fetal surveillance and monitoring skills as assessed in 2012.
9. Similarly, the character references provided from those who have worked with Mrs Macrae consistently describe a caring and skilled midwife who was respected by all her colleagues and patients. Several referees note that she was trusted by her patients and often asked to attend a second birth. Several of them also write of the difficult working conditions at the hospital in the period 2011-2013, which we discuss further below.
10. We regret to say that the evidence before us of Mrs Macrae's level of skill in and understanding of fundamental aspects of the care of birthing women and their babies is not consistent with that aspect of the testimonials.
11. We were also asked to view the conduct in the context of the working conditions at the hospital and the systemic failures at all levels.
12. Counsel on her behalf submitted that while Mrs Macrae does not shirk responsibility for her own failings, including that she was clearly not appropriately skilled in the interpretation of CTGs during the relevant period, she asked that the Tribunal assess her culpability with a number of issues in mind including that her conduct was not borne of laziness or disinterest, rather it was a product of being stretched too thin at her job.
13. Counsel for Mrs Macrae referred to the long working hours, lack of breaks, unexpectedly high and growing patient numbers, old and inadequate CTG machines and no centralised CTG monitoring system, difficulties and delays in obtaining the attendance of doctors including paediatricians. In short, she submitted, the system that was the Bacchus Marsh Hospital maternity unit at the time, was broken and since knowledge of the infant mortality rate came to light, after the events the subject of this proceeding, major changes and improvements have occurred.
14. Her Counsel described Mrs Macrae as being in "the eye of the storm," as having no option but to "roll up her sleeves and get on with the job" and that "she did the best she could".
15. We recognise that working conditions were difficult and that independent reports found failures at all levels. But, ultimately, a midwife's professional obligations and responsibilities to the patients in her or his care are paramount.
16. Poor working conditions do not excuse incompetence or dangerous practice.
17. Patients are entitled to assume that if they come through the doors of a hospital to give birth, they and their babies will receive safe and competent care.
18. And if midwives are unable to safely or competently care for patients because of conditions outside their control and have done all they can to bring the deficiencies to the attention of those responsible, they will need to make their own decision about whether they remain in that workplace. This case illustrates the risks not only to patients but also to professionals who work in such an environment.
19. Dangerous conditions should be reported, documented and publicised. They should never be normalised, as Mrs Macrae appears to have done.
20. Moreover, Mrs Macrae held the position of ANUM, which had added management and leadership responsibilities and accountabilities. She ought to have demonstrated a higher level of learning and practice.[9]
21. We found that Mrs Macrae's 'best' was substantially below the standard reasonably expected of someone of her level of training and experience but she did not seem to realise it or place enough importance on addressing it.
22. As set out in the particulars to allegation 10, a 2011 clinical review of cases including those of Patients A and B, identified substandard fetal surveillance by the attending midwives (including Mrs Macrae). In May 2012, Mrs Macrae's fetal surveillance and monitoring skills were assessed as being equivalent to a junior 'supervised practitioner'. She failed to reflect on the gaps in her skills, knowledge or abilities, focus her CPD activity on identified factors or change her scope of practice. In February 2013, Mrs Macrae was the midwife responsible for Patient C and had not materially improved her fetal surveillance and monitoring skills by that time.
23. We also observe here that the CTG machines used by Mrs Macrae in attending Patients A, B and C were in fact giving her sufficient information to know that urgent action needed to be taken. Her failure was in not understanding the information she was being given and recognising the need to respond to it as a matter of urgency.
24. On all the evidence before us, we have concluded that her patients would have been better served if Mrs Macrae had not attended them, had recognised in time her shortcomings, and had not returned to the care of patients in labour until her shortcomings were addressed, whatever it took to do so. This is particularly so in the case of Patient C.
25. A separate area of concern relates to Mrs Macrae's failure to make adequate records in each of the three cases. Allegations 5, 7, & 9 outline a failure to formulate documentation in accordance with legal and professional guidelines including:
    • Illegibility, failure to identify entries as nursing entries, or print her name or designation
    • Failing to record all salient features of the FHR (fetal heart rate) revealed by CTG monitoring or by auscultation
    • Use of unacceptable terminology, such as a down symbol to indicate FHR
    • Failing to document discussions with the patients
    • Failing to document discussions with medical officers or decisions about medical management.
26. Inadequate records significantly limit the ability of other practitioners to provide continuity of care, including in emergencies. Poor documentation contributes to delays in recognising, managing, and providing urgent care to deteriorating patients.
27. As we discussed with Counsel for the Board and for Mrs Macrae at the hearing, we considered that the nature and gravity of the conduct, the need for both specific and general deterrence, and protection of the standards and reputation of the nursing and midwifery professions required more than a reprimand, serious as that is for a practitioner.
28. Because Mrs Macrae had surrendered her registration, the options of suspension or cancellation of registration, which would otherwise have been open to us, were not available. Disqualification from applying for registration is available.
29. We noted that although she had stated she did not intend to return to practice, there was no formal prohibition in place to that effect. We discussed an undertaking to the Tribunal that she would never again apply for registration as a nurse and midwife. Breach of an undertaking given to and recorded by the Tribunal is a serious matter. We give her credit for instructing her Counsel to offer the undertaking, which we have accepted and recorded in our orders.

[1] Report of an Investigation into Perinatal Outcomes at Djerriwarrh Health Services by Professor Euan M Wallace on behalf of Department of Health and Human Services 31 May 2015. Professor Wallace investigated 11 perinatal deaths at Bacchus Marsh Hospital in 2013 and 2014.

[2] References to tab numbers in this document are a reference to the Applicant's List of Evidence filed with VCAT on 14 June 2018.

[3] Wallace, E. M. (2015) Report of an Investigation into Perinatal Outcomes at Djerriwarrh

1. [5] Media Release of 21 October 2016, the Hon Jill Hennessy MP, Minister for Health, 'Putting Safety First With Bacchus Marsh Hospital Revamp', available at https://www.premier.vic.gov.au/putting-safety-first-with-bacchus-marsh-hospital-revamp/.

[6] The spelling varies in the evidence - foetal or fetal are used in different documents. We have adopted the spelling used in the documents we are referring to.

[7] See for example Ha v Pharmacy Board of Victoria [2002] VSC 322, [97]; Medical Board of Australia v Janz [2011] VCAT 1026, [358]-[373]

[8] See for example Medical Practitioners Board of Victoria v Grolaux (No 2) [2009] VCAT 978 in relation to assessment of insight.

[9] The specific duties & responsibilities of the ANUM position were in the Tribunal Book at tab 24 and included for example: Upgrade & maintain an advanced level of clinical practice & professional development, as per (ANMC) Australian Nursing & Midwifery National Competency Standards for Midwives. Promote & conduct clinical learning opportunities for staff, and act as a resource person or support person. Delegate and supervise midwives and students according to their abilities and within their scope of practice.