Pursuant to section 77(2) of the Health Professions Registration Act 2005 the Tribunal makes the following determinations:

1. The Respondent is reprimanded.
2. The following conditions are placed on the respondent's registration as a nurse and midwife:
   • (a) If and when the respondent returns to practice as an independent or privately practising midwife, she is to notify the Board;
   • (b) The respondent shall not return to practice as an independent or privately practising midwife unless she has undertaken in the preceding 6 months the Australian College of Midwives Practice Review course; and
   • (c) The respondent shall only return to practice as an independent or privately practising midwife with a second midwife present. During the first 24 months of such return to practice, the second midwife must have currency of Practice as an independent midwife.

1. This referral arises from conduct, which took place in July 2008 when Ms Sayers was involved as an independent midwife in the home delivery of a baby boy. During a difficult breech extraction, the baby's head became trapped for a period of 10 minutes before full delivery. The baby was resuscitated at the scene and taken to hospital, where nine days later due to his extremely poor prognosis, intensive care was withdrawn and he died.
2. A coronial inquiry took place at which the coroner concluded that the baby's death was preventable and the midwifery care provided by Ms Sayers contributed to his death.
3. On 16 August 2012 the applicant determined to refer the matter to the Professional Standards Panel pursuant to section 61 of the Health Professions Registration Act 2005. The notifier sought review of this decision and on 4 December 2012 the Investigation Review Panel met and recommended that the applicant refer the matter to this Tribunal under section 60(5)(e) of the Act. On 21 February 2013 the applicant determined to refer the matter to this Tribunal
4. On 25 September 2013 the matter proceeded to a compulsory conference. As a result of that compulsory conference, the parties filed a Statement of Agreed Facts. We have read the extensive materials relating to this matter contained in the Tribunal books. We are satisfied that the following Statement of Agreed Facts comprehensively summarises the evidence in this case

1. Respondent's registration and working background

[1] The Respondent is currently registered with the Australian Health Practitioner Regulation Authority as a Division 1 Nurse and as a Midwife.

[2] The Respondent currently works in a casual position as a midwife at Ballarat Health Services.

[3] At the time of the facts of this matter the Respondent was working as an independent midwife.

[4] On 26 November 2011, PM was referred to the Royal Women's Hospital ("RWH") by her General Practitioner following a positive pregnancy test. The RWH provided antenatal care throughout PM's pregnancy.

[5] On 3 December 2007, PM self-referred to the Royal Women's Hospital's Women's Social Support Service on 3 December 2007 for ongoing support with her first pregnancy. PM was anxious about becoming a parent given her past history of depression.

[6] At approximately 24 weeks gestation, PM engaged the Respondent as an independent midwife to assist PM to have a home birth.

[7] The Respondent did not record terms of this engagement with PM, and did not devise, implement and document a birth plan at this time. There is no documentary record of the Respondent's engagement by PM which took appropriate account of PM's particular circumstances.

[8] PM continued to receive antenatal care from the RWH.

[9] At approximately 34 weeks gestation PM had an ultrasound that showed her baby was in breech position.

[10] On 8 July 2008, PM had an External Cephalic Version, which was unsuccessful in turning her baby.

[11] Following this procedure, PM's treating practitioners at the RWH recommended that PM undergo a caesarean section and PM booked an elective caesarean at the RWH for 41 weeks.

[12] PM was upset about the prospect of having a caesarean and saw it as a personal failure. PM's intention was to make all efforts to have the baby turn so that she could have a vaginal delivery.

[13] Between 8 and 12 July 2008, the Respondent informed PM that she was not willing to assist her with a homebirth of a breech baby, but would support her in a hospital setting to have a vaginal birth. She told PM that she had never delivered a breech baby and that such a birth at home would be outside her scope of practice.

[14] After that advice from the Respondent, PM's understanding of the new birth plan, was to "labour at home, as late as was safe and comfortable, with the midwife in attendance and then to transfer to the hospital (probably the Royal Women's Hospital) for the final stage of birth".

[15] The Respondent did not devise, implement and document a clear birth plan that took into account the baby's breech position at this time.

[16] The Respondent did not record any details of discussions between herself and PM where the risks of a vaginal birth delivery of a breech baby were explained.

[17] The Respondent did not document her discussions between herself and PM during which she advised that a vaginal breech birth was outside the scope of her professional competencies and experience.

[18] The National Midwifery Guidelines for Consultation and Referral Guidelines (2004) states that where a breech presentation is present during pregnancy, primary care should be transferred from the midwife to a medical practitioner. Where the midwife continues to provide support, this must be done in collaboration with the medical practitioner Areas of discussion and involvement must be agreed upon and clearly documented.

[19] The Respondent did not make contact with the RWH or PM's treating clinicians to discuss PM's intention to have a vaginal breech delivery in hospital at any time. The hospital and treating clinicians had understood that, unless the baby turned, PM would deliver her baby by caesarean section.

[20] On 12 July 2008, PM went into spontaneous labour at 37 + 5 weeks gestation and at approximately 4.00pm, PM's membranes ruptured.

[21] At approximately 5.41pm, PM called the Respondent and informed her that her waters had broken.

[22] The Respondent should have attended upon PM as soon as possible after becoming aware that her waters had broken.

[23] At approximately 8.15pm, PM called the Respondent and informed her that she had started experiencing contractions. The Respondent asked PM to call her when PM wanted her to attend.

[24] At approximately 9.34pm, PM's husband called the Respondent and informed her that PM's contractions were regular. The Respondent instructed PM's husband to text her when they would like her to attend.

[25] At approximately 10.24pm, the Respondent called PM's husband who informed her that labour was progressing. The Respondent asked if she could attend.

[26] At no time during these conversations did the Respondent advise PM or her husband that she should attend to assess PM.

[27] At no time did the Respondent make contact with the RWH or PM's treating clinicians to advise of the impending birth.

[28] At no time did the Respondent advise PM to make contact with the RWH or PM treating clinicians to advise them of the impending birth.

[29] The Respondent arrived at PM's residence at approximately 11.10pm.

[30] Upon arriving at PM's residence at 11.10pm, the Respondent assessed PM as being fully dilated and pushing. PM was positioned on the toilet.

[31] The Respondent established that the baby remained in breech position and that the breech was advancing.

[32] At approximately 11.23pm the Respondent called an ambulance to attend so that PM could be transferred to hospital. The ambulance arrived at approximately 11.40pm.

[33] At this stage, the Respondent expressed uncertainty as to whether it was safer to stay at home or to transfer PM to the hospital and risk giving birth en route.

[34] The ambulance officers present informed the Respondent that they would revert the care of PM to the Respondent.

[35] The Respondent asked PM whether she wanted to stay at home or be transferred to hospital in the ambulance. PM stated she wanted to stay at home due to the position she would be required to take during the journey.

[36] The Respondent did not ensure that PM fully understood the risks associated with attempting a vaginal birth delivery at home and did not remind PM that she had told her she would assist with a vaginal birth in the hospital setting only or the reasons why she had previously made that decision.

[37] PM was a patient with strong views about the desirability of vaginal delivery. However she relied on the Respondent for advice about what was in her and her baby's best interests.

[38] The Respondent then made the decision to continue to manage the labour of PM at home. In making that decision she considered what she thought were PM's best interests, but did not consider all possible outcomes for PM or her own professional or clinical responsibilities.

[39] Between 11.50pm and 12.37pm, the Respondent monitored PM's labour and the heart rate of the foetus.

[40] At approximately 12.40, the baby was birthed to the head. The birth was completed approximately 10 minutes later, but the baby did not have a heart rate.

[41] Resuscitation, oxygen ventilation and intubation occurred immediately and the baby was transferred to the Mercy Hospital [for Women]. PM was stabilised and also taken via ambulance to the Mercy Hospital.

[42] On arrival at the Mercy Hospital, there were no NICU beds available, and the baby was transferred to Monash Medical Centre.

[43] On 22 July 2008, intensive care support was withdrawn and the baby passed away with his parents present.

1. There is nothing commendable about Ms Sayers' midwifery care during this delivery. At every step of the way, her conduct fell short of the conduct expected of an independent midwife. Her failure to attend at the home of the patient when the patient's waters broke is inexplicable. Her lack of understanding of the needs and risks associated with a breech birth was palpable. The failure to make a proper assessment of the risks and take a thorough and appropriate history and complete an appropriate treatment plan is incomprehensible. Her failure to have a second midwife present is puzzling. Essentially the delivery in this case provides a worst-case example of midwifery practice. The devastating death of the baby was avoidable
2. In these circumstances we have no hesitation in reaching the following findings under section 77(1) of the Health Professions Registration Act 2005 as recommended to us by the parties

[1] Between March 2008 and 13 July 2008 Ms Sayers' performance of her duties as an independent midwife for Patient PM was unsatisfactory in that she failed to devise, implement and document a birth plan which took appropriate account of Patient PM's particular circumstances.

[2] Between March 2008 and 13 July 2008 Ms Sayers' performance of her duties as an independent midwife for Patient PM was unsatisfactory in that she failed to ensure Patient PM fully understood the risks associated with vaginal birth where the baby is in a breech position.

[3] On 12 and 13 July 2008 Ms Sayers engaged in professional misconduct in that she failed to provide clinically appropriate midwifery care to Patient PM by her

(a) Failure to attend upon Patien PM in a timely manner after being advised that her waters had broken; and

(b) Upon attending, failure to effect Patient PM's immediate transfer to hospital.

[4] Between 8 July and 13 July 2008 Ms Sayers engaged in unprofessional conduct in that she failed to advise Patient PM of the need for, and importance of, transfer of Patient PM's primary care to the hospital after her baby's breech presentation was confirmed.

1. We turn then to a discussion of the appropriate determination in this case.

1. The parties jointly submitted that we should make the following determinations.

In light of the Agreed Statement of Facts and Findings, the parties invite the Tribunal to make the following determinations under section 77(2) of the Health Professions Registration Act 2005:

[1] Ms Sayers be reprimanded pursuant to section 77(4)(c) of the Health Professions Registration Act 2005;

[2] A condition be imposed on Ms Sayers' registration as a nurse and midwife that she not practise as a privately practising midwife for a period of 2 years after the decision of VCAT; and

[3] A condition be imposed on Ms Sayers' registration that, prior to returning to practice as a privately practising midwife, Ms Sayers must submit satisfactory evidence to the Board detailing how she incorporates the most current National Midwifery Guidelines for Consultation and Referral ("the Guidelines") into her practice as a midwife. If the evidence does not satisfy the Board that Ms Sayers has appropriately incorporated the Guidelines into her practice, Ms Sayers be required to undertake further education or mentorship in this area as considered appropriate by the Board at the relevant time.

1. The compulsory conferencing of disciplinary proceedings now occurs in many jurisdictions across Australia in a wide range of vocations. Conferencing enables the expeditious resolution of disputes through a narrowing of the issues. It frequently results in notifiers and other vulnerable witnesses being relieved from the stress and inconvenience of giving evidence before the tribunal. It enables regulatory authorities and practitioners to engage in constructive discussions, which are educative and therapeutic rather than adversarial.
2. The process in this tribunal is that an independent Member of the Tribunal assists the parties in their endeavours during the conference. The Member may provide their insights and suggestions for dispute resolution but will not make any binding determinations on the parties. The decision as to which allegations the Board proceeds with is a matter for the Board. The decision as to which allegations a practitioner will accept is a matter for the practitioner. Frequently the parties will arrive at a Statement of Agreed Facts and Submissions on determination.
3. The decision as to appropriate determination, remains a matter for the tribunal. Accordingly, where a disciplinary matter has been referred to a compulsory conference, it will not conclude at that stage. A differently constituted tribunal will bring an independent mind(s) to the matter. The reconstituted tribunal is of course, greatly assisted by submissions made by the parties based on the evidence, comparable cases and other relevant material. However, it is statutorily bound to reach its own conclusions.
4. Apart from proposed determination (1), which we considered appropriate to reflect our strong condemnation of the conduct of Ms Sayers, we declined to make the determinations sought and advised the parties accordingly.
5. We declined to do so for the following reasons
6. The primary considerations in disciplinary proceedings are the protection of the public and the upholding of the reputation of the profession - in this case the profession of nursing and midwifery. Specific and general deterrence are also relevant considerations. Punishment however is not.
7. Ms Sayers continued to practice as an independent midwife for several years after this tragedy until 2011 when her personal circumstances changed and she moved to country Victoria. There were no further problems with her practice during this time. Ms Sayers has not practised as an independent midwife since 2011.
8. We consider that if Ms Sayers were to be precluded from practice as an independent midwife, that the time for that to have occurred should have been much closer to the time of the conduct.
9. It is now nearly 6 years down the track. There is nothing to be achieved by a further period of suspension from practice as an independent midwife in addition to the self-imposed period.
10. We consider the profession is best served by practising Midwifes being actively and safely engaged in their profession. The longer a midwife is out of practice as an independent midwife, the greater the risk to the public.
11. We consider that preventing Ms Sayers from returning to independent practice for an additional two years would amount to punishment. That is not our role. Although we understand that Ms Sayers does not intend to return to practice as an independent midwife in the foreseeable future, such that she "would not object" to a period of time in which she was precluded from acting as an independent midwife, this is not a relevant consideration for us to take into account. We need to make a determination appropriate to all of the circumstances of the case, rather than one, which is convenient to Ms Sayers.
12. A suspension will not serve the purposes of specific and general deterrence in this case. We accept that the tragic outcome and the coronial inquiry followed by these proceedings has had a salutary effect on Ms Sayers. We accept that she experiences strong remorse for her conduct and that she will make every endeavour not to repeat the conduct. We consider that general deterrence is better achieved through the determinations we propose to make
13. We also rejected the proposed determination #3 because we did not consider it provided sufficient certainty for either Ms Sayers or the Board. It is important if Ms Sayers is to provide evidence of satisfactory practice that both she and the Board have a mutual understanding of what constitutes sufficient evidence of expected standards. The public are best protected and the reputation of the profession upheld when midwives demonstrate their competency through clearly identified paths.
14. Accordingly, we will place the following conditions on Ms Sayers' registration, which we note that parties agree will best ensure a safe return to independent practice by Ms Sayers if and when that time comes:
    • (a) If and when Ms Sayers returns to practice as an independent or privately practising midwife, she is to notify the Board
    • (b) Ms Sayers shall not return to practice as an independent or privately practising midwife unless she has undertaken within the preceding 6 months the Australian College of Midwives Practice Review course
    • (c) Ms Sayers shall only return to practice as an independent or privately practising midwife with a second midwife present. During the first 24 months of such return to practice, the second midwife must have currency of Practice as an independent midwife