NURSES AND MIDWIVES TRIBUNAL

REASONS FOR DECISION

What the Tribunal decided

1. The Tribunal was comfortably satisfied that the subject-matter of the two complaints in this matter was proved and that Ms De Laile was guilty of professional misconduct.

2. As a consequence of the findings of fact it made, and its finding that Ms De Laile’s conduct amounted to professional misconduct, the Tribunal ordered that Ms De Laile’s name be removed from the Register of Midwives for New South Wales and that at least one year elapse before she may apply to this tribunal or any successor tribunal for a review of the deregistration Tribunal’s order.

3. The Tribunal made a suppression order in relation to Patients A and B, their partners and their children.

4. As there was no application for costs the Tribunal made no order as to costs.

The Complaint

5. The Amended Complaint in this matter set out two complaints against Ms De Laile. The first of these was that she was guilty of unsatisfactory professional conduct and the second was that she was guilty of professional misconduct in that, in both cases, she demonstrated that the knowledge, skill or judgment she possessed, or the care she exercised, in the practice of midwifery was significantly below the standard reasonably expected of a registered midwife of an equivalent level of training or experience and/or she had engaged in improper or unethical conduct related to the practice of midwifery.

6. The particulars were the same for both complaints; however they related to two separate incidents. The first of these was about Patient A giving birth to twins. The second was about Patient B giving birth to a single child. The particulars are:

Patient A
On 30 April 2007, at 37 weeks gestation, Patient A, her partner and their daughter came to live with the practitioner at her home in Nimbin to await the birth of twins.

1. The practitioner inappropriately accepted the primary antenatal care of Patient A from 37 weeks gestation when:

(a) Patient A had a high-risk pregnancy in that she was carrying twins;

(b) Patient A had a history of supraventricular tachycardia (SVT);

(d) The practitioner lived in an isolated location at least 40 minutes from LBH.

2. Until Patient A was at least 39 weeks gestation, the practitioner inappropriately planned a home delivery for Patient A when this was outside the scope of her practice as it was a multiple and complicated pregnancy.

3. The practitioner supported and assisted Patient A to discharge herself from LBH on 13 May 2007, at 39+ weeks gestation following an episode of SVT, against medical advice.

4. On 27 May 2007 the practitioner did not contact LBH for advice until approximately 1640 hours and did not bring the second twin in to the hospital until 1745 hours in circumstances where:

(a) The second twin was born at 1230 hours;

(b) The foetal heart rate of the second twin had decelerated to approximately 60 beats per minute for about 15 minutes after the first twin was born;

(d) The second twin was given oxygen, was “bagged” and was resuscitated for approximately 35 minutes after birth;

(e) By 1600 hours the practitioner knew that the second twin had had a protracted period of decreased heart rate and therefore hypoxia during the second stage of his labour and he had no cough reflex, was not able to attach and feed and needed suctioning periodically, and that he needed to go to hospital; and/or

(f) Another midwife was present and could care for Patient A and the first twin.

5. The practitioner failed to maintain appropriate professional boundaries between herself and Patient A.

Patient B

The practitioner was the primary provider of antenatal care to Patient B from 27 March 2007 at 23 – 24 weeks gestation. Patient B and her partner arranged for the practitioner to attend as their homebirth midwife for the delivery of their first child due in July 2007. Patient B also booked into the birth suite at LBH in the event that she needed to be transferred there during labour.

At approximately 1.30am on 18 July 2007 Patient B went into spontaneous labour at home. The practitioner attended Patient B at her home from about 10.30am.

6. The practitioner failed to perform adequate foetal heart monitoring during Patient B’s labour.

7. The practitioner took and/or recorded Patient B’s vital signs only twice during the 13 ½ hours of her labour for which the practitioner was present.

8. The practitioner failed to arrange the transfer of Patient B to hospital and/or to obtain medical assistance in circumstances where:

(a) The progress of labour was slow;

(b) The variability of the foetal heart rate was less than 5 beats per minute and/or there was deceleration of the foetal heart rate after contractions;

(d) The patient requested to be transferred.

9. The practitioner failed to have present additional midwifery support.

10. The practitioner failed to call an ambulance for Patient B and her baby immediately following the delivery.

11. The practitioner left Patient B unattended at home for 2 hours post-delivery when she had oedema and had retained the placenta.

The onus and standard of proof

7. The Tribunal is required to find the subject-matter of a complaint to have been proved before it may take action in relation to it. The Tribunal must be comfortably satisfied on the balance of probabilities that the subject-matter of the complaint has been proved. The responsibility for proving the subject-matter of a complaint lies with the party alleging it – in this case the HCCC.

The source of the evidence

8. In this case Ms Furness tendered three folders of evidence that were marked Complainant’s Exhibits 1 to 4. Dr Kidd tendered a number of documents during the course of the hearing. These documents were marked Respondent’s Exhibits 1 to 3. These documents are listed in the Attachment to these reasons for decision.

9. The following were called by the HCCC to give evidence to the Tribunal, Debra Duffy RN RM, Patient A’s partner, Patient A, Tracey Hunting RN RM, Laurel Franks RN RM, Patient B’s partner, Amber Webster, Jenifer Richardson RN RM, Jennifer Gamble RN RM.

10. Ms De Laile gave evidence on her own behalf and she called Andrea Albertini RN RM who evidence by telephone.

The evidence

11. Jillian De Laile was first registered as a nurse and midwife in New South Wales on 22 January 1980. In 2007 she was conducting an independent midwifery practice in and around the Nimbin area.

The evidence in relation to Patient A

12. Patient A grew up near where Ms De Laile lived and went to school with Ms De Laile’s children. She visited Ms De Laile’s home 3 or 4 times. Patient A became pregnant with her first child in 2004 when she was 19 years of age and wanted to have a home birth. By that time she had moved to Brisbane but could not afford a home birth there. She then went down and stayed with Ms De Laile for her first child’s birth. Ms De Laile delivered that child.

13. In 2006 Patient A became pregnant again. She and her partner were in Brisbane at that time in a unit, which they continued to rent until early 2010. As a result of an ultrasound conducted in Brisbane on 15 February 2007, they became aware that Patient A was pregnant with twins. At that time Patient A was approximately 27 weeks pregnant, and was given an estimated date of delivery of 15 May 2007.

14. Patient A says that she and her partner had contemplated home birth since the beginning of this pregnancy and continued to do so after the multiple pregnancies were identified. They made preliminary inquiries of at least one midwife practicing in the Brisbane area. However, they were unable to locate a midwife who was willing to provide home birth services. After discovering they were having twins, and after they were unable to obtain the services of a midwife in Brisbane in order to have a home birth with twins there, Patient A and her partner began looking at options in Lismore and Nimbin.

15. At the opening of the case, Ms Furness, counsel for the HCCC, tendered correspondence between the parties which identified the agreed facts. In summary, Ms De Laile admitted to 16 of the 22 factual allegations in the particulars of each complaint relating to Patient A and 12 of the 16 factual allegations in the particulars of each complaint relating to Patient B. This meant that the Tribunal had to determine six factual allegations relating to the care of Patient A and four factual allegations in relation to the care of Patient B.

16. The first three factual matters in contention in relation to Patient A were linked. They were whether or not Ms De Laile accepted primary antenatal care for Patient A from the time Patient A was 37 weeks pregnant, that Patient A was not booked into Lismore Base Hospital and that until Patient A was at least 39 weeks pregnant Ms De Laile planned a home delivery.

17. It was Patient A’s evidence that she had a number of conversations both over the telephone and face-to-face with Ms De Laile from the time she was 28 weeks pregnant until she was 36 weeks pregnant . In Patient A’s view these discussions resulted in a verbal agreement that she would have a home birth in Ms De Laile’s home on the basis that she continued to be healthy and that Ms De Laile and another midwife together with a doula would attend. Patient A and her partner came to Ms De Laile’s house at that time and stayed there. They were there by 30 April 2007 by which time Patient A was 37 weeks pregnant.

18. While Patient A had known Ms De Laile for some time, it was her evidence that it was only in relation to her being pregnant and having the babies and postnatal follow up that she saw Ms De Laile. Patient A said that they weren’t close friends but were in a friendly relationship.

19. Ms De Laile denied that she accepted the primary antenatal care of Patient A from 37 weeks gestation. In her oral evidence, she stated that Patient A and her partner contacted her unexpectedly in the week leading up to 30 April 2007 when they were visiting relatives in the area. Ms De Laile told the Tribunal that they asked her if they could stay with her for the birth of the twins, and she agreed that they could. Ms De Laile said that prior to this point she had assumed that her services were not required by Patient A and her partner, and that the birth would be in Brisbane.

20. However, it is the view of the Tribunal that, on the basis of her own evidence, Ms De Laile accepted primary midwife responsibility for Patient A’s care from 30 April 2007. In her evidence, accepted responsibility as primary midwife for Patient A, and said that a hospital birth was planned. She also said that she would provide ante- and post-natal care for Patient A and her family at her home particularly in light of the demands associated with a twin birth. This evidence was consistent with Ms De Laile’s client notes marked ‘Antenatal Visits’ which state ‘[Patient A and partner] have arrived to stay on the property and await the birth of their babies. Discussed the plan of action – will transfer to LBH in labour and come home ASAP and I will do post-natal care, they’ll stay two-four weeks after the birth’.

21. The real issue at this stage was whether Ms De Laile had agreed to a home birth. At that time Patient A and her partner intended to have a home birth but Partner A’s partner acknowledged that Ms De Laile had informed them of the risks of having a twin birth at home. Ms De Laile’s evidence was that at this time she hoped to convince Patient A and her partner to have the birth of the twins take place in hospital.

22. When it was put to Ms De Laile that Patient A’s expectation of home births was based on discussions with her and that it was more than just Patient A wanting it to happen, Ms De Laile answered:

Look, it is a grey area. In my mind I didn’t – I was unhappy about taking the twin birth on. It was just – sort of happened spontaneously that they turned up and in between working and so on I went out of my way to talk to them about I would prefer not to do the birth at home because of, you know, the aforementioned things and talked to them about going into the hospital. It was a grey area. You know, I was not happy about it. They were there at my home wanting to have a baby at home.

23. This answer showed that Ms De Laile’s position on the issue was at least equivocal.

24. During the night of 12 May 2007 Patient A had an episode of supraventricular tachycardia (SVT) at Ms De Laile’s home and Ms De Laile took her to Nimbin Hospital whence she was transferred by ambulance to Lismore Base Hospital (LBH). Ms De Laile came to LBH to be with Patient A.

25. Patient A was initially admitted to the Accident and Emergency Unit at LBH where her condition was stabilised. She was then transferred to the Women’s Care Ward for observation and to await review by the Obstetrics Team when they commenced duty on the morning of 13 May 2007. Patient A wanted to leave the hospital. Ms De Laile told the Tribunal that she advised Patient A to await the arrival of the Obstetrics Team. When Patient A refused to wait, Ms De Laile went to the Nurses’ Station and spoke to Debra Duffy RN RM, the midwife on duty, and requested ‘discharge against medical advice forms’ for Patient A to complete.

26. Ms Duffy then took these forms to Patient A personally and spoke to her directly, advising that the Obstetrics Team wanted to review her before discharge and that she would be leaving hospital contrary to medical advice if she left prior to that. Ms Duffy said Patient A then signed the forms without any threat or coercion from Ms De Laile, and then left with Ms De Laile.

27. Ms Duffy told the Tribunal that she gave Ms De Laile the forms for booking Patient A into LBH for the birth as she left. Ms De Laile agreed that these forms were obtained at that time. Patient A’s SVT attack and the events of the morning of 13 May 2007 are returned to below.

28. On 14 May, 2007 Ms De Laile made an entry in her antenatal visit notes in these terms: ‘had a long talk to parents re SVT episode and my concerns re this. Feel we are too far from hospital and want them to go to [Patient A’s mother] and wait there and come back here later after birth. [Patient A] very distressed, says she wants to stay here. Some problems with mum but will contact her and see. Gave them paperwork for booking into LBH as discussed yest[erday]. They hadn’t! Babes fine and FHR x 2 – same 140s.’ In substance, these observations were confirmed in Patient A’s evidence and that of her partner before the Tribunal. Patient A’s partner said in his oral evidence to the Tribunal ‘eventually we agreed to have the babies in hospital but it was up to my wife to decide. She wasn’t comfortable in hospital’.

29. Patient A did not book into LBH. Her evidence was that she didn’t realise that she had to send the forms in beforehand. She thought she could bring the forms in when she went to hospital. She filled them in and left them in the car. Patient A told the Tribunal that she did not want to make contact with LBH earlier as she feared being pressured to have a caesarean birth. Ms De Laile did not book Patient A into LBH or check that she had done so herself after 14 May 2007.

30. The Tribunal notes that twins at 37 weeks gestation are at ‘full term’. That point was reached on or about 30 April 2007. As at 27 May 2007 Patient A was at approximately 40 weeks gestation. In these circumstances, the Tribunal considers it reasonable to expect birth at any time. Ms De Laile therefore cannot reasonably be heard to say that birth at this point was ‘unexpected.’

31. At approximately 0800 hours on the morning of 27 May 2007 Patient A’s partner contacted Ms De Laile and told her that Patient A was in labour having mild contractions which were irregular, but approximately 8 to 10 minutes apart. This had been happening for a while. At 0830 hours, Ms De Laile went to check Patient A and sat and talked to her for a while and noted that the contractions seemed to be 4 to 5 minutes apart and regular. At 0845 hours, Ms De Laile conducted a vaginal examination on Patient A and found her to be 7 to 8 cm dilated. Ms De Laile notes state that things were happening much faster than expected, that she rang a second midwife for assistance, and noted that “it looks like we would not make it to Lismore. [Patient A] does not want to move. Explained situation to partner. He rang [the doula] to redirect her to my place, called her mum to say its happening more quickly than expected and we’ll stay here.”

32. The Tribunal notes from this evidence that at the time Patient A contacted the doula Patient A was expecting to be transferred to her mother’s house in Lismore, as this is where she had directed the doula to meet her. The Tribunal also notes that Ms De Laile did not call a second midwife until 0845 hours. The Tribunal draws a distinction between the point at which it became unreasonable to transfer Patient A to Lismore by private car, and the calling of an ambulance. It notes that Ms De Laile did not call an ambulance at any time from when she was advised that labour had commenced until she noted “we’ll stay here” at approximately 8:45 am.

33. The Tribunal notes that when being cross-examined by Ms De Laile’s counsel, Patient A was asked whether or not it was her decision or Ms De Laile’s decision to stay at Ms De Laile’s house after labour had commenced. Patient A answered that it was Ms De Laile’s decision but that she (Patient A) was happy with it.

34. Both peer reviewers told the tribunal that it would have been expected practice for a midwife to call an ambulance in these circumstances. Ms Richardson reported that an ambulance ought to have been called “once Ms De Laile knew Patient A was in established labour”. Dr Gamble stated her opinion that an ambulance ought to have been called at this point and transfer to hospital arranged.

35. Patient A’s first twin was born at 1129 hours in good condition (with an Apgar of 10:10). There no subsequent issues with the condition of the first twin.

36. In her oral evidence to the Tribunal Ms Richardson was asked if an ambulance ought to have been called immediately following the birth of the first twin. She stated the opinion that it ought to have been because the second twin had to be considered. She also gave the opinion that it was practical to do so in these particular circumstances because there was no reason to believe the second’s twin’s birth would be precipitous

37. At 1145 hours Ms De Laile noted that the second twin’s heart rate was 80 beats per minute (BPM). At 1200 hours Ms De Laile noted that Patient A’s liquor was “tinged with mec[onium], slight yellow”. At 12:10pm she noted that the foetal heart rate was less that 60 BPM and “not recovering” and at 1220 hours the foetal heart rate was noted to be still less than 60 BPM and it was still below 60 BPM at 1228 hours when the second twin was born.

38. The second twin required resuscitation from birth, and was administered oxygen to the nose and mouth through the process known as “bagging” to assist breathing. At 1 minute of age the second twin was recorded as having a heart rate of greater than 80 BPM and an Apgar of 2. At 5 minutes of age bagging and resuscitation were continuing and the second twin was recorded as demonstrating “no respiratory effort, no tone, and no reflexes: apgar of 3”. Active resuscitation continued for a further 30 minutes. At 1305 hours the second twin was reported as having spontaneous respiration at a rate of 50 breaths per minutes and an Apgar of 7 to 8.

39. Peer reviewer Gamble gave the opinion that, in these circumstances, an ambulance ought to have been called at least before the second twin was five minutes of age. (If it had not been called earlier.) Peer reviewer Richardson was of the opinion an ambulance should have been called at earlier times including between the birth of the first or second twin. The Tribunal notes that the Australian College of Midwives’ National Midwifery Guidelines for Consultation and Referral (January 2004) (Guidelines), include, at 9.2.1, the guideline that a midwife ought to transfer responsibility to a medical specialist if a child has an apgar lower than 7 at 5 minutes of age.

40. At 1445 hours, Ms De Laile notes state that the second twin was warm, pink, with a heart rate of 124 bpm and 50-60 breathes per minute and “a little bit rattly.” The baby was suctioned and slight bloody mucous was removed. Ms De Laile also noted that at that time twin two “was positioned head down as so much mucous was draining and baby was suctioned as needed.”

41. At 1600 hours Ms De Laile noted that the second twin had had “a protracted period of reduced heart rate and therefore hypoxia during the second stage of his labour. At 1600 hours he has no cough reflex and was not able to attach and feed. He needed suctioning periodically.” It was at this point the Ms De Laile records that she made the decision to transfer the second twin to hospital and that because the family did not want to be separated, all wanted to go to the hospital.

42. Ms De Laile claims that between 1640 and 1645 hours she contacted LBH and spoke to a midwife in the special care nursery and explained what had happened in the second twin’s birth and following his birth. Ms Tracey Hunting RN RM gave evidence that she received this call in the neonatal special care nursery at LBH at 1650 hours, and encouraged Ms De Laile to bring the baby to hospital immediately.

43. Ms De Laile arrived at LBH at 1745 hours with Patient A and her twins and transferred their care to the hospital. Patient A and the first twin were admitted to the maternity unit, and the second twin was admitted to the special care nursery. The second twin required evacuation to a tertiary hospital in Brisbane three days following his admission to LBH. The Tribunal notes that twin two died some months later.

The Tribunal’s consideration of the evidence and its findings in relation to Patient A

44. In relation to particular 1 of the complaints, the Tribunal notes that the factual elements of that particular are agreed between the parties. The factual allegations set out at 1(a), (b), (c), and (d) were agreed between the parties at the opening of the hearing before the Tribunal, and the factual allegation contained in the opening line of the particular that Ms De Laile accepted primary antenatal care of Patient A from 37 weeks was conceded by Ms De Laile under cross examination and did not appear to ever be in genuine dispute. The Tribunal was also comfortably satisfied by the evidence as to these factual matters.

45. The issue for the Tribunal to determine in relation to this particular is whether or not it was ‘inappropriate’ for Ms De Laile to accept primary antenatal care for Patient A in these circumstances.

46. The Guidelines indicate that if, at booking, a patient presents with cardiovascular disease described as ‘haemodynamic consequences’ then transfer of the patient’s care to a medical specialist is required (Guideline 6.1.3). Additionally, multiple pregnancy is a reason for such a transfer to occur (Guideline 7.1.24). In this case, the evidence is that Ms De Laile discussed the potential risks of home birth of a woman pregnant with twins with a background of SVT with a general practitioner in Nimbin resulting in the conclusion that hospital birth was the “preferred safest option”, Ms De Laile did not transfer the primary care of Patient A to either that practitioner or a medical specialist. There is therefore a significant discrepancy between expected professional practice and what Ms De Laile did.

47. Both peer reviewers called by the HCCC gave evidence that the failure to transfer primary care of Patient A to a medical specialist in accordance with the Guidelines fell significantly below the standard expected of a registered midwife and invited their strong criticism. The Tribunal concurs in that opinion.

48. Ms De Laile gave evidence to the Tribunal to the effect that she did not transfer primary care of Patient A to a medical specialist as Patient A and her partner did not want this to occur. The evidence elicited from Patient A and her partner on this issue in the course of the hearing did not convince the Tribunal on this point, and very regrettably, the terms upon which Ms De Laile agreed to provide midwifery services to Patient A were never set out in writing. However, even if that were the case, the Tribunal is of the view that Ms De Laile had a clear professional responsibility not to provide primary midwifery services to Patient A on that basis. The Tribunal notes that had primary care of Patient A been transferred to a medical specialist Ms De Laile would still have been free to continue provide midwifery services to Patient A with the agreement of the medical specialist.

49. In relation to particular two, Ms De Laile gave evidence to the Tribunal that she agreed to provide ante-natal and post-natal midwifery support to Patient A, but planned Patient A’s transfer to LBH for the birth of babies after the onset of the labour. That evidence was supported by an entry in Ms De Laile’s Antenatal Visit notes dated 30 April 2007.

50. As already noted, Patient A’s evidence to the Tribunal, was that it was her expectation when she moved in to stay with Ms De Laile at 37 weeks gestation was to have a home birth. Patient A told the Tribunal that she had a conversation with Ms De Laile by telephone at approximately 28 weeks gestation where she formed the view that Ms De Laile was open to a home birth, or to assist in a home birth, if everything progressed well but nothing was concrete at that point. However, it was also clear from Patient A’s evidence that there was no clear written or verbal agreement for Ms De Laile to provide home delivery services to Patient A at this point.

51. At 36 to 37 weeks gestation Patient A and her family moved in with Ms De Laile. Patent A gave evidence to the Tribunal that at this point she and her partner planned a home birth. She was asked what was her understanding of the role Ms De Laile would play in the home birth of your twins at the time she and her partner arrived at Ms De Laile’s house. She replied:

My understanding was that, you know, I was deciding to have a home birth with twins and that we discussed the risks associated with that and that she was supporting me in the informed decisions that I was making and if I was to change my mind at any point I’m sure she would have supported that; whatever I decided.

52. In response to this evidence Ms De Laile told the Tribunal that she understood why Patient A and her partner may have thought that there would be a home birth, but it was her intention always to persuade them that a hospital birth was necessary.

53. The Tribunal also had before it a letter from Susan Cookson RM dated 26 August 2007 which was included among documents provided to the Nurses and Midwives Board by Ms De Laile in relation to her suspension as a midwife. That letter states:

I was contacted by Jillian in mid April 2007 and was asked to be a second midwife to a twins delivery due mid- late May. I agreed I would be available to support Jillian in this birth and we briefly discussed the position and size of the twins and the mother’s relevant history.

54. The Tribunal considered Ms De Laile’s oral evidence and her documentary records. However it considered that Ms De Laile’s equivocal evidence during cross-examination about the question of a home birth being a “grey area” and that together with Patient A’s evidence and Ms Cookson’s letter comfortably satisfied the Tribunal that the reality was that a home birth was planned for Patient A from the point Patient A moved in with Ms De Laile up to 39 weeks gestation. The fact that Ms De Laile did not call an ambulance in the 45 minute period between being advised of Patient A being in labour and calling the second midwife to her place and then deciding that the births were to happen at her place also encourages the Tribunal in its finding.

55. This planning of a home delivery was inappropriate because it was outside her scope of practice because it involved multiple births and a pregnancy that could be complicated by Patient A’s known SVT.

56. Both peer reviewers gave evidence that this conduct fell significantly below the standard expected of a registered midwife and invited their criticism. Ms Richardson was strongly critical and Dr Gamble was moderately critical. The Tribunal was comfortably satisfied that Ms De Laile’s conduct fell significantly below the standard expected of her in this regard.

57. In relation to particular 3, the Tribunal was comfortably satisfied by the evidence set out above that Ms De Laile supported and assisted Patient A to discharge herself from LBH at 38 or more weeks gestation following an episode of SVT, knowing that the obstetrics team wished to review Patient A before she left the hospital.

58. In her oral evidence Ms De Laile agreed that she did support and assist Patient A to leave the hospital, but did so because she considered it inevitable that Patient A would discharge herself whether she assisted or not. The evidence of both Patient A and Debra Duffy RN RM further proves the particular that Ms De Laile did support and assist Patient A to leave the hospital. However, in the view of the Tribunal, the evidence was equivocal on whether Ms De Laile acted as she did simply because she considered it inevitable that Patient A would discharge herself whether she assisted or not.

59. Patient A gives some support to Ms De Laile’s contention. In her examination Ms Furness asked Patient A if at or about 6 o’clock on the morning she had any discussion with a nurse at the hospital. Patient A answered, and the questioning continued, as follows:

A. Well, I’m pretty sure that when I was going to sign myself out the nurse came in and asked me to make sure that I wanted to sign out. Just asked me, like, are you happy with signing this form if you want to leave and showing me that I was doing it without medical advice. What – like what it said on the form and she was basically just checking that I wanted to sign myself out but she didn’t say, like, that there was a doctor coming to talk to me. She was just making sure that it was what I wanted and not what Jillian wanted.

Q. You then signed the form as you’ve already given evidence?

A. Yes.

Q. Did Ms De Laile tell you that there was a doctor who wished to review you that morning before you left?

A. I don’t – not that I can remember but the doctor that came in the night when I had my heart thing he did mention that he would come and visit me in the morning.

Q. You left before he visited you?

A. Yes.

Q. You knew when you left that he wanted to visit you?

A. Yeah.

Q. It was your choice to leave, notwithstanding he hadn’t visited you?

A. Yeah.

60. Debra Duffy RN RM noted in the nursing notes relating to Patient A’s admission to LBH for her SVT at 0300 hours on 13 May 2007 that “[ Ms De Laile] wanting to take [Patient A] home doesn’t want to deal with obstetric team in the morning evidence.[Patient A] was just going along with [Ms De Laile’s] ideas.” Ms Furness questioned her about this matter as follows.

Q. You’ve expressed the opinion in this entry that the home birth midwife in attendance wanting to take [Patient A] home doesn’t want to deal with obstetric team in the morning. Do you see that?

A. Yes.

Q. I am asking you what it was that you saw or heard that enabled you to form the opinion that the attending midwife wanted to take Jemima home and didn’t want to deal with the obstetric team. So what was it that you saw or what was it that you heard that made you say in these medical records what you’ve said?

A. Well she – the home birth midwife came to the desk and said she wants to take [Patient A] home. She said they’re not – you know, she didn’t want to stay till the medical staff arrived in the morning.

Q. Then you say “[Patient A] just going along with her ideas”. Do you see that?

A. Yes.

Q. Now that’s an opinion you formed isn’t it?

A. Yes.

Q. What was it that you saw or heard that enabled you to form that opinion?

A. Well, just being in the room with them [Patient A] wasn’t doing much talking, she was letting – the midwife was doing most of the talking and taking over. She was just lying on the bed and didn’t actually voice any concerns or anything, was just lying there.

Q. So when you say she, you’re talking about the patient?

A. Jemima, yes.

Q. The patient was--

A. Was just lying on the bed, wasn’t really talking at all and [Ms De Laile] was doing all the talking for her.

61. The Tribunal accepted Ms Duffy’s evidence on this matter. She was able to explain her contemporaneous notes clearly and unequivocally. While Ms De Laile may well have understood that Patient A intended to leave hospital at 0600 hours on 13 May 2007, the Tribunal is satisfied that she gave the impression to others that she supported this approach and did nothing to encourage Patient A to wait for the obstetric team. She was the one with the means of transporting Patient A home (to Ms De Laile’s place). She knew that Patient A had SVT and had just had a SVT attack late in pregnancy. She also knew that Patient A had not yet booked herself into LBH, yet she did not any positive action to put in place arrangements to ensure that Patient A could have a hospital birth at LBH.

62. In her first review, Ms Richardson said it was her professional opinion that Ms De Laile, at this point, should have resiled from the case, and advised Patient A that she stay as an inpatient at LBH and follow the advice of the obstetrics team. In her supplementary report, Ms Richardson stated that Ms De Laile’s conduct in this regard was significantly below the standard expected of her, and that this departure from the standard invited her strong criticism. On this question Dr Gamble noted in her written review that it was a midwife’s professional responsibility “to support women in the choices they make – it does not fall below the standard expected at all – quite the contrary.” However, in her oral evidence to the Tribunal Dr Gamble said that by 18 May 2007 Ms De Laile should have attempted to transfer Patient A into obstetric care and then “managed subsequent decisions of the woman including, of course, her right to choose”. Aware that there was no documentation of any such efforts, Dr Gamble considered that Ms De Laile’s conduct fell below the relevant standard and, in terms of the National Midwifery Guideline, significantly below the standard.

63. The Tribunal was comfortably satisfied that that Ms De Laile supported and assisted Patient A to discharge herself from LBH early in the morning of 13 May 2007 and that she did so knowing that Patient A had signed a form acknowledging that she was discharging herself contrary to medical advice. The Tribunal is comfortably satisfied, particularly in the light of the opinions of the peer reviewers, that Ms De Laile’s conduct in relation to this issue fell significantly below the standard to be expected of her, and invited strong criticism.

64. These findings mean that the next two factual matters that were in contention in relation to Patient A, namely that Patient A’s discharge from LBH was contrary to medical advice and that Ms De Laile supported and assisted Patient A to discharge herself, were proved to the Tribunal’s comfortable satisfaction.

65. In relation to particular 4, the Tribunal notes that all of the factual allegations encompassed by that particular were admitted by Ms De Laile, either at the opening of the case or under cross-examination. The final factual matter in contention relation to Patient A was that the foetal heart of the second twin had decelerated to approximately 60 beats per minute for about 15 minutes after the first twin was born. This was proved not only by the written evidence in this matter but by Ms De Laile’s acknowledgment of that fact in cross-examination. Having reviewed the evidence before it, the Tribunal is also comfortably satisfied that these matters were proved.

66. Both peer reviewers gave evidence to the Tribunal that Ms De Laile’s failure to contact LBH for advice and bring the second twin to hospital fell significantly below the standard required of a midwife and that strong criticism was warranted. The Tribunal is also comfortably satisfied that this is the case. The Tribunal notes that the Guidelines state at 9.2.1 that an Apgar lower than 7 at 5 minutes requires transfer of care to a medical specialist. The Tribunal also notes that abnormal heart rate or pattern, abnormal cry and persistent abnormal respiratory rate that are dealt with in the Guidelines at paragraphs 9.2.12, 9.2.13 and 9.2.14 respectively each require at least consultation with a medical practitioner if not transfer of care to a medical specialist.

67. Particular 5 of the complaints in relation to Patient A was withdrawn, with consent, during the course of the hearing.

The evidence in relation to Patient B

68. In relation to Patient B, 13 of 17 factual matters were agreed between the parties. These factual matters were amply proven by the written evidence.

69. Ms De Laile was the primary provider of antenatal care to Patient B from 27 March 2007. Patient B and her partner had arranged for Ms De Laile to attend as their homebirth midwife for the delivery of their first child due in July 2007. Patient B had booked into the birth suite at LBH in the event that she needed to be transferred during labour. Although Patient A lived at some distance from LBH, the HCCC’s position was that she was an appropriate candidate for a home birth.

70. There was a difference of view between the parties as to why no second midwife had been arranged. Patient B’s partner said that on their understanding Ms De Laile’s usual second midwife wasn’t going to be attending the birth of their child. She was pregnant. Patient B’s partner said:

[W]e were concerned about this and we[re] talking to [Ms De Laile] and said we really wanted another midwife to be present and we had another midwife by the name Max, I forget her last name and [Ms De Laile] did write that down in her diary and one of the appointments that we had just before 18 July, the birth date. [Ms De Laile] had offered to have two medical students, a daughter of a friend of hers and her friend attend but Angel was very adamant about not having, basically her birth not being a viewing spectacle for medical students.

71. Ms De Laile in her oral evidence to the Tribunal said that she had been urging Patient B and her partner to get adequate support, but this support seemed to be people who were not midwives. When asked by her counsel about her then usual second midwife, Ms Albertini, she responded:

Well I understand at that time that Andrea Albertini wasn’t coming with me because they had not [s]hown any interest in her being at the birth at all previously. I didn’t know why. Actually I mentioned it to them on one of the antenatal visits and the one sentence they kept repeating is “We want to choose who we have at the birth” and they mentioned about having – you know, having other midwives and as I think I said on Friday I tried to contact other midwives and they were unavailable. I mean there’s just simply not many midwives around who work in the home birth field. So they knew that.

72. In any event there was no second midwife arranged or called to the birth. A person who was a first time doula came as well as other friends of Patient B.

73. At approximately 0130 hours on 18 July 2007, Patient B went into labour at home. She was having contractions and at 0130 hours had had a “mucous show”. Ms De Laile was rung at about 0645 hours and advised of these matters and that the contractions were seven to 10 minutes apart and were lasting for 30 to 60 seconds. She was rung at 0800 hours and advised that the contractions were then four to five minutes apart and regular. Ms De Laile changed her plan to carry out some arranged teaching went home and collected her equipment and went to Patient B’s house near Nimbin arriving there at about 1030hours.

74. Ms De Laile recorded Patient B’s vital signs only twice during her labour. Ms De Laile was with Patient B for approximately 13 of the 23 hours of her labour.

75. She did not arrange to transfer Patient B to hospital during her labour and did not obtain medical assistance for Patient B during her labour.

76. The progress of the labour was slow. It was Ms De Laile’s position that this was so because the baby was in a posterior position.

77. The first contested allegation against Ms De Laile, which was particular 6, was that she failed to perform adequate foetal heart monitoring during Patient B’s labour. In her statement to the police on 29 September 2007, Ms De Laile said that she was listening to the foetal heart rate around half hourly before 1600 hours. It was around 140 beats per minute. Two hours later it was 140-144. It was 140-144 at 2100 hours. In her statement received at the HCCC 30 Nov 2007, Ms De Laile said that after meconium became apparent - her evidence was that that, for her, this was 2130 hours - she checked the foetal heart rate every 15 minutes. She also stated that she listened every 15 minutes or less when Patient B went into the second stage of her labour.

78. From the written evidence tendered to it, the Tribunal considered that Patient B went into the second stage of her labour at 2030 to 2100 hours. Ms De Laile acknowledged in her oral evidence to the Tribunal that Patient A was in the second stage by 2100hours and that the child was born at 2328 hours. At that time her contractions were two to three minutes apart. Ms De Laile’s written notes of the labour, written substantially soon after the birth and added to in the days after the birth, and possibly subsequently, show the foetal heart rate being recorded as monitored only 5 times between 2100 hours and 2315 hours, a period of 2¼ hours. On this matter Ms De Laile said in her oral evidence to the Tribunal:

I took the foetal heart many, many times. I’ve recorded some of them and particularly when my notes stopped when I went to the hospital and I wrote it in hindsight I simply didn’t put in the number of times but I know I took it very frequently, less than 15 minutely, for the duration of the second stage. I do know that.

79. When asked by her counsel at the hearing how many times, from her memory, she took the foetal heart rate between 2100 hours and the birth of the child, Ms De Laile said:

From my memory I took it about 10 minutely and after I saw – I took it 15 minutely and after I saw the meconium I was taking it very frequently, five to 10 minutely. So that would have to be between 25 and 30 times.

80. She also said that she took the foetal heart rate more frequently when she was certain of the existence of meconium which was at 2130 hours.

81. The problem for the Tribunal was that Ms De Laile’s statements in 2007 are at odds with her oral evidence to the Tribunal in 2010 at a time when she was well aware of the allegation against her in particular 6 and the views of the peer reviewers. The Tribunal does not accept her latest version of when she took the foetal heart rates because of its inconsistency with her 2007 statements and with her close to contemporaneous records. Those records do not record anywhere near the number of monitorings of the foetal heart rate she claimed in her oral evidence that she had taken.

82. Returning to the facts that were either agreed or contested, Ms De Laile denied that the foetal heart rate was less than five beats per minute, claiming that the variability was 5-10. During the course of the taking of evidence on these matters, Ms Furness advised that the HCCC di8d not press the issue of deceleration of the foetal heart rate. Ms De Laile accepted that there was meconium stained liquor, but that this was at 2130 hours and not earlier.

83. Ms De Laile denied that Patient B requested to transfer to hospital, but agreed that she failed to call an ambulance for Patient B and her baby immediately following delivery.

84. Ms De Laile denied leaving Patient B unattended for two hours post delivery claiming that the period was only 1½ hours.

85. Ms De Laile agreed that Patient B had oedema but that this was significant only post delivery. She agreed that Patient B retained the placenta.

86. Ms De Laile noted slight meconium from Patient B’s vagina at 2100 hours and noted more meconium being passed at 2130 hours.

87. The labour which had commenced at about 0130 hours was continuing slowly. At 2220 hours Patient A’s contractions were two minutes apart. At 2315 hours the baby’s head was in view and at 2328 the baby was born. Ms De Laile stimulated the baby but it was quite floppy and blue. He did not cough and there was no respiratory effort. Ms De Laile gave him oxygen through the “bagging” process for six to seven minutes. At 2340 hours she stopped the bagging and suctioned the baby’s mouth At 2345 hours Ms De Laile put the baby on Patient A’s belly and bagged him occasionally until at 2348 hours. At that time he was dusky and quite cool and Ms De Laile took him to the fire. Then at 2352 hours, she grabbed the oxygen bottle and other gear and got Patient A’s partner to drive her and the baby to Nimbin Hospital leaving Patient A with her support people none of whom had any training as a health professional or any relevant experience. It was between 1¾ and 2 hours before she returned to where Patient A and her partner lived and where Patient A was. When Ms De Laile returned, Patient A was still retaining the placenta in her uterus.

The Tribunal’s consideration of the evidence and its findings in relation to Patient B

88. As already noted, the Tribunal did not accept Ms De Laile’s evidence of how often she monitored the foetal heart rate. The Tribunal is aware that the proper practice at the second stage of labour is to monitor the foetal heart rate after every contraction. In this case that would have meant every two to three minutes. In her report, Dr Gamble gave her opinion that the foetal heart rate should have been assessed “between every contraction or at least 5 minutely in the second stage or when [Patient B] was pushing”.

89. Peer reviewer Richardson noted a key element of the foetal heart rate monitoring and why it is important for it to be monitored regularly. The evidence of Ms De Laile was that the foetal heart rate was 140-144 beats per minute for substantial periods of her monitoring. Ms Richardson noted that a variability of less than four beats per minute is “frequently an ominous sign of foetal distress”. She considered the foetal heart rate monitoring inadequate. She went on to state;

A midwife [of] RM De Laile’s experience could reasonably have been expected to understand the importance of close surveillance at this time of labour and her responsibility in terms of recording her findings.

The whole purpose of Foetal Heart Rate monitoring is to detect changes in the foetal wellbeing and to act promptly to avoid any foetal compromise. However it is impossible to detect changes if there are extended periods of no monitoring.

RM De Laile did not respond to the reduced variability of the foetal heart rate or monitor in a safe manner.

This departure was significantly below the standard of what could reasonably be expected of a midwife of an equivalent level of training or experience and invites my strong criticism.

90. Dr Gamble’s view of how often foetal heart rate should be monitored is set out above. The Tribunal understood her oral evidence to mean that the foetal heart rate was not monitored often enough for it to be helpful in the assessment of variability “which is a key indicator of foetal wellbeing”. In her oral evidence to the Tribunal she said: “I think she should’ve listened to the foetal heart rate more frequently as I’ve expressed and I think it falls significantly below the standard and evokes my strong criticism”.

91. The Tribunal was comfortably satisfied that Ms De Laile did not perform adequate foetal heart monitoring during Patient B’s labour. It strongly agreed with both peer reviewers’ assessment of the degree of Ms De Laile’s failure to meet the appropriate standard of a midwife of her experience in this regard.

92. As already noted, it was an agreed fact that Ms De Laile recorded Patient B’s vital signs only twice during her labour. Her labour extended over a period of at least 13 ½ hours. This was particular 7 in this matter and if was clearly proven by the written and oral evidence before the Tribunal. Consequently, the Tribunal was comfortably satisfied that it was proved.

93. Ms Richardson considered that as the labour was “quite long” and Patient A was having her first birth, “more frequent monitoring of her vital signs would have been appropriate”. She did not refer to this matter as one of the aspects of Ms De Laile’s conduct that fell significantly below the standard to be expected of her.

94. Dr Gamble did not put her mind directly to this issue, but in her written report dated 24 September 2008 expressed the view that Ms De Laile’s care during Patient B’s labour until 2130 hours was acceptable.

95. The Tribunal however considers this failure to monitor Patient B’s vital signs as conduct significantly below the standard required of a midwife of Ms De Laile’s experience. Patient B’s vital signs were checked only twice in a labour that lasted at least 13½ hours. The reason why more constant monitoring of the mother’s vital signs is an essential element of midwifery practice is exemplified by the fact that when Patient B was admitted to LBH she had a temperature of 38.4 degrees which, as Ms Richardson noted, “would be considered as elevated” and Patient B was commenced on intravenous antibiotics. Taking observations of vital signs regularly means there is a continual check of the mother’s condition to see that it is stable and to be able to take immediate action if there are changes. Changes in respiration is one of the earliest indicators of a mother’s deteriorating condition. Other examples of observations providing evidence of concerning developments include an increase in temperature. This can indicate sepsis in the mother leading to her being unable to cope physically with the labour. An increase in blood pressure can indicate hypertension while an increase in blood pressure in the presence of oedema can indicate compromise in the mother. An increase in blood pressure with a rise in pulse rate can indicate ante-partum haemorrhage.

96. Particular 8 was that Ms De Laile failed to arrange the transfer of Patient B to hospital and/or to obtain medical assistance in circumstances where:

(a) The progress of labour was slow;

(b) The variability of the foetal heart rate was less than 5 beats per minute and/or there was deceleration of the foetal heart rate after contractions;

(d) The patient requested to be transferred.

97. It was an agreed fact and one clearly proven by the evidence that Patient B’s labour was slow. As already noted, the deceleration issue was not pressed. While the Tribunal was comfortably satisfied about the lack of adequate foetal heart monitoring and its consequences, the Tribunal did not consider that the variability of foetal heart rate could be so accurately monitored by the equipment that homebirth midwives would normally take with them to a home birth for it to be comfortably satisfied in this case that the variability in the foetal heart rate was less than five beats a minute. The Tribunal appreciates that Ms De Laile gave evidence to the effect that the foetal heart rate was between 140 and 144 beats per minute over a substantial period. It was also claimed on her behalf that the variability was between 5 and 10.

98. While the Tribunal was not comfortably satisfied as to particular 8(b), the real issue in Ms De Laile’s conduct was whether or not she should have called an ambulance at various stages of Patient A’s labour. It was an agreed fact that there was meconium stained liquor at least at 2130 hours, and the Tribunal was comfortably satisfied by the written and oral evidence of meconium being present at that time.

99. While Ms De Laile denied that Patient B requested to transfer to hospital, her written notes of the labour state that at 2000 hours, Patient B was asking to go to hospital. Ms De Laile’s was taken to that entry in her notes during her oral evidence. The exchange was as follows:

Q. You record there “[Patient A] asked about hospital”?

A. Yes.

Q. No reference there to her not having asked you is there?

A. She muttered hospital. She was obviously asking about going to hospital and then the doula translated it to me so I wasn’t putting all that in. I abbreviated it to “Angel asked about going to hospital”.

Q. What did you do in response to the information relayed to you that Angel wanted to go to hospital?

A. I walked over to where they were. I was in a different section of the room. I walked over and, in fact, I nodded at the time. She was having contractions quite frequently and was quite distressed by them and I started to say something to the effect of “This is a fairly normal occurrence that you would like this. It’s an intense time”. I said something – words to that effect and women often feel like that.

I started to say it but she started crying out with another contraction so I backed off and her partner, Benna, was there so I continued talking to him and I called him aside and moved away from her because it’s not appropriate just to talk over the top of a contracting woman. So I talked to him about it much more than I talked to Angel about it because she was caught up with her contractions. She couldn’t have a conversation. You don’t just stop in the middle of labour and discuss something. If the contractions are happening it occurs your full attention and I talked to – I talked to Benna about it and that was the discussion that we would have. I talked to him about it and then the discussion about “We’ll see how we go. We could try a few different things to see whether we can get this baby turning. Yes, she is getting tired. Yes, it is slowing down a bit” and later, after I’d had the discussion with him and I walked over to the kitchen, I was talking to him, I walked back over to Angel again and talked to her because I asked her to move into a different – I examined her and then said we’d have an examination and I’d try a different position and see what – put it on a time limit. If nothing happened we’d transfer to hospital and it was in between that time I wrote those transfer notes.

100. The Tribunal was comfortably satisfied by Ms De Laile’s notes and her oral evidence that Patient B did make the request to transfer to hospital. The real question was whether a midwife should respond by calling an ambulance in the circumstances in which the request was made in this case. In her written report, Dr Gamble noted that asking to go to hospital is not unusual for women having a home birth just as it is not unusual women having a hospital birth to ask for an epidural or a caesarean section. However, Ms Richardson stated in her report that it would have been appropriate to have arranged a transfer when Patient B requested it. She went on to explain that any experienced midwife would not have expected the second stage of this labour to be quick and that she took into account that Patient B was already tired, the foetus was in a posterior position and there had already been a long delay at the end of the first stage of labour.

101. The Tribunal was not inclined to the view that a midwife should call an ambulance on the basis only of a request made by a mother suffering significant labour pains. The Tribunal notes that a well documented birth plan should cover this contingency so that both midwife and patient understand the nature of the request being made during strong labour when no adverse physical events are present. However, a patient’s request to be transferred to hospital should be considered seriously once it is made and, in this case, should have been discussed with the Patient B even though she was having contractions. Such a request also opens up the idea of the labour being discussed with other health professionals as envisaged by the Guidelines and of the hospital being contacted and put on notice of a possible transfer.

102. In this case there were other reasons for calling an ambulance. These were referred to by Ms Richardson, which brings the Tribunal back to the clear and agreed fact that meconium stained liquor was present at 2130 hours and the question of the other occasions when an ambulance should have been called..

103. Particular 9 will be returned to. A key question for the Tribunal is that of if and when Ms de Laile should have called an ambulance to transport Patient B to hospital. As already noted, she had a booking at LBH in case it was needed. There was no evidence of any reluctance on her part to go to hospital if that course of action was indicated. From the Tribunal’s perspective, there were four occasions on which the question of transfer to hospital arose. First when the labour had been arrested for some time and Patient B was becoming very tired, second at approximately 2000 hours when Patient A requested transfer, third when meconium was confirmed at 2130 hours and fourthly within five minutes of the birth of Patient B’s baby.

104. Ms Richardson noted from Ms De Laile’s labour record that, Patient B’s cervix was nine centimetres dilated from 1530 hours to 1930 hours or even up to 2030 hours and commented that this was a long period for the progress of the labour to be arrested. Ms Richardson appeared to address Ms De Laile’s view that the labour was slow because the foetus was in a posterior position. Ms Richardson noted that four to five hours was more than enough time for foetus to rotate and descend appropriately. Ms Richardson also noted that Ms De Laile had recorded Patient B as being very tired and as having difficulty staying awake. Ms Richardson seemed surprised that Ms De Laile did not recognise the possibility that Patient B was suffering from maternal exhaustion. She went on to express the opinion that a prudent midwife would have transferred Patient B before the emergency developed. In her view, this departure was significantly below the standard of what could reasonably be expected of a midwife of an equivalent level of training or experience to Ms De Laile and invited her strong criticism.

105. The Tribunal accepts and agrees with Ms Richardson’s opinions about what should have been done and that Ms De Laile’s conduct fell significantly below the required standard.

106. In her written report Dr Gamble noted that Ms De Laile suspected meconium was present at 2100 hours and confirmed this at 2130 hours. Dr Gamble then continued:

Although meconium liquor is only a sign of possible distress, the fact that the liquor had initially been clear and the suspected meconium at 21:10 and subsequently confirmed at 21:30 suggests that the meconium may have been increasing. Meconium increasing over this time may be indicative of a fetus becoming increasingly distressed and at this stage transfer to hospital would have provided additional means of assessing fetal wellbeing. It would have also provided the ability to act more swiftly than is possible at home should problems with the wellbeing of the fetus been identified and enabled resuscitation procedures for the baby born through meconium to be enacted.

107. Dr Gamble was questioned about this in her oral examination as follows:

Q. I will use your headings if I may, Dr Gamble; turning firstly to the issue of transfer for meconium stained liquor. Can I ask you first to what extent you believe, in your opinion, that the practitioner departed from the standards you have identified?

A. I think she fell below the standard but not significantly below the standard. Do you want me to context that? Like the context would be expectation of imminent birth. Like if the meconium happened four hours before or six hours before I would give a different response.

Q. So the reason you say it’s not significant is because of the closeness of this observing of the meconium to the birth, is that right?

A. Yes.

Q. The observing of the meconium half an hour before your 21.30 does that alter your view?

A. No.

Q. So it falls below the standard but not significantly so in your view?

A. Yes.

108. In her written report, Ms Richardson states that “in view of the meconium, the continued slow progress, the lack of foetal heart rate variability, together with maternal exhaustion and the distance from medical assistance”, she did not consider that Ms De Laile acted appropriately “in this instance”.

109. The view of the Tribunal is that because of the other factors indicating the need to call an ambulance, including Patient B’s request, an ambulance should have been called for Patient B at this stage.

110. Particular 10 also deals with failure to transfer to hospital. It alleges that Ms De Laile failed to call an ambulance for Patient B and her baby immediately following the delivery. Ms De Laile admitted this and it was manifestly demonstrated by the evidence before the Tribunal. It was Dr Gamble’s opinion that Patient B’s baby was inadequately resuscitated and she sets this matter out in detail in her written report. She then goes on to state:

In my opinion the ambulance should have been called when [Patient B’s baby] did not respond promptly and fully to resuscitative measures including bag and mask ventilation that should have been commenced in less than a minute after birth. Within 5 minutes after birth the decision to transfer to hospital should have been made and a call placed to the ambulance service and hospital (support people could have made both these phone calls).

111. In her oral evidence to the Tribunal, Dr Gamble expressed the following opinions to the Tribunal about Ms De Laile’s conduct as alleged in particulars 10, 11 and 9 in that order:

Q. Turning then to the transfer of baby within five minutes of birth, what’s your opinion in relation to that?

A. It falls significantly below the standard and evokes my strong criticism.

Q. Strong did you say?

A. Strong.

Q. Leaving the mother unattended?

A. Evokes my strong criticism. It fell significantly below the standard.

Q. Transferring the baby in the front of the car?

A. Falls significantly below the standard, evokes my strong criticism.

Q. The absence of another registered midwife during the birth?

A. In a context of home birth it falls below the standard but does not evoke my strong criticism.

112. The Tribunal accepts and agrees with Dr Gamble’s opinion about Ms De Laile’s failure to arrange for the transfer of Patient B and her baby to hospital within five minutes of the birth of the baby. The baby’s Apgar at five minutes was only four. The Guidelines indicate that there should be transfer to the care of a medical practitioner if the baby’s Apgar is below seven at five minutes. They also indicate that there should be at least consultation with if not transfer to a medical practitioner if the baby had an abnormal heart rate or pattern or a persistent abnormal respiratory rate and/or pattern. The evidence showed both of these problems in the baby before five minutes of life.

113. As to particular 9, the failure to have another midwife present during Patient B’s labour, the Tribunal notes Dr Gamble’s opinion that that conduct was below standard but did not evoke her strong criticism. Her opinion contrasted with Ms Richardson’s opinion that that failure was significantly below the expected standard and invited her strong criticism. It was clear from the way Patient B’s labour unfolded that a second midwife would have been helpful during the labour and essential after the birth of the baby. The need to avoid the risk of harm is the reason for having a second midwife. During a lengthy labour they are able to relieve the leading midwife, assist them during the labour and delivery stage and then attend either the mother or the baby after the birth. In this case the lack of a second midwife meant that when Ms De Laile went with the baby to Nimbin Hospital she left Patient B unattended for at least 1¾ hours with the placenta still inside her and no one with any relevant experience or expertise to assist her.

114. The factual allegations in particulars 9 and 11 were both proved to the comfortable satisfaction of the Tribunal. The Tribunal also considered that the conduct proved was significantly below the standard reasonably expected of a midwife of an equivalent level of both training and experience as Ms De Laile.

The Tribunal’s findings in relation to complaints one and two and protective orders

115. The Tribunal was comfortably satisfied as to the subject-matter of all the particulars pressed in this case, except for particular 8(b) had been proved. The Tribunal was comfortably satisfied as to the rest of particular 8 had been proved in that Ms De Laile did not call or arrange for an ambulance to be called at any time during Patient B’s labour. It found also that that labour was slow that there was meconium-stained liquor visible later in the labour and Patient B did request to be transferred to hospital.

116. In the1989 NSW Court of Appeal case Pillai v Messiter [No 2], both Kirby P and Samuels JA discussed the meaning of the term misconduct in a professional misconduct in a case involving a medical practitioner.[1] Kirby P stated that:

Departures from elementary and generally accepted standards, of which a medical practitioner scarcely be heard to say that he or she was ignorant could amount to professional misconduct. But the statutory test is not met by mere professional incompetence or by deficiencies in the practice of the profession. Something more is required. It includes a deliberate departure from accepted standards or such serious negligence as, although not deliberate, to portray indifference and an abuse of the privileges which accompany registration as a medical practitioner.[2]

Samuels JA said:

It was not disputed that acts or omissions in the course of professional practise if so grossly negligent as to attract the strong reprobation of professional brethren of good repute and competence might amount to misconduct in a professional sense, although wholly lacking moral obliquity.... It is necessary, however, for professional reprobation to be established by evidence of an appropriately qualified person or persons.[3]

117. Later in his judgment Kirby P confirmed that indifference to basic rules and inattention to the rudimentary obligations of professional practice could amount to misconduct. While moral turpitude was not required, it was still necessary to prove misconduct that goes beyond mere carelessness.[4] There was no suggestion of moral turpitude in this matter.

118. Taking up the issue of departures from elementary and generally accepted procedures, Ms Furness submitted on behalf of the HCCC that it could scarcely be said that a midwife didn’t know that in the case of a high risk pregnancy the patient should be in hospital and in the case of the second pregnancy given the condition of the baby on birth there should have been an immediate transfer to the hospital. The Tribunal accepts Ms De Laile’s evidence that she has attended at a number of homebirths of twins. However, it takes the view that her failure in this case to activate what she claimed as her intention that Patient A’s expected twins be born in hospital showed either a serious failure to act prudently at the relevant time or a preparedness to allow a homebirth to take place in circumstances in which well established midwifery practice required the transfer of Patient A’s care to a medical specialist, at the time Ms De Laile was advised Patient A was in labour at the latest. In this regard, the Tribunal recalls that Patient A had had an episode of SVT only a matter of 14 days before her labour began.

119. The Tribunal also accepts Ms Furness’ submission that established midwifery practice indicated that Patient B’s baby, with Patient B, should have been transferred to hospital very soon after birth.

120. The Tribunal accepts the thrust of Ms Furness’ submission to the effect that Ms De Laile’s conduct was intentional not inadvertent. Ms De Laile made intentional decisions which meant that she did not seek to give effect to matters that she said were agreed and did not call for ambulances or take action to transfer care to medical specialists when such action was clearly indicated. When advised that Patient A was in labour, she did not make arrangements to transfer her to hospital to give effect to what she said was her plan to have a hospital birth for Patient A’s twins. Instead she allowed Patient A’s labour to progress until 0845 hours when she rang the second midwife and then made the decision “we’ll stay here” so that home births for the twins were the likely outcome. Ms De Laile didn’t call an ambulance after Patient A’s first twin was born nor did she do so after the second twin was born nor, indeed, did she contact LBH until 1650 hours almost 4½ hours after the second twin was born, despite the fact that he was clearly in need of medical support beyond what could be supplied by a midwife, particularly in a homebirth situation.

121. In relation to Patient B, Ms De Laile did not take action to ensure that a second midwife was available when she was aware of the distance from LBH, the hospital Patient B was booked into should the need for hospitalisation arise, the intended location of the homebirth was. She did not call for an ambulance in relation to Patient B and her baby at any of the times the peer reviewers said that it was appropriate to do so.

122. In the light of its consideration of the evidence and its findings set out above, it is clear that the Tribunal does not accept Dr Kidd’s submissions that the particulars alleged against Ms De Laile were not proved.

123. The Tribunal accepted Ms Furness’ submission that the lack of judgment on the part of Ms De Laile clearly shown by these complaints was not only unsatisfactory professional conduct but such conduct that was of a sufficiently serious nature to justify the removal of Ms De Laile’s name from the Register of Midwives and thus to warrant a finding of professional misconduct. Dr Kidd submitted on behalf of Ms De Laile that her conduct, if the allegations against her were proved, did not rise above the level of unsatisfactory professional conduct. Given its findings as to Ms De Laile’s conduct set out above and given the opinions of the peer reviewers in relation to it, the Tribunal rejected that submission which seemed to be based on an inaccurate understanding of the current law as to what must be proved for a finding of professional misconduct to be made.

124. Ms De Laile’s conduct in relation to the confinements of Patients A and B demonstrated a series of serious misjudgments which two experienced midwives considered that her conduct was, in most instances in relation to which they commented, significantly below the standard reasonably expected of a midwife of an equivalent level of training or experience as Ms De Laile. Also, in relation to most of those instances they expressed their strong criticism. The Tribunal notes one of these experienced midwives had considerable experience as a homebirth midwife.

125. In her statement to the Tribunal dated 12 February 2010 Ms De Laile said; “I am aware that there are not standards or rules that apply to me as an independent midwife and I work by best practice”. In her evidence in chief, Ms De Laile said that she had been aware of the Guidelines since 2004, that she had studied them and was aware that they were guidelines for practice.

126. Ms De Laile said that she referred to the Guidelines as much as possible and when asked what she meant by that she said:

Well, there are some situations where the parents want me to be the midwife in circumstances where it may not entirely fit with the guidelines. I explain it to them in those circumstances if there’s any deviation from it or, you know, refer them to medical assistance – their GP or whatever. I work with GPs. In fact, every client I have goes to a GP as well. So as much as possible I adhere to the guidelines.

127. Ms Furness took up this matter in her cross-examination of Ms De Laile. She asked Ms De Laile about her statement that no standards and rules apply to her and asked her questions in which the following exchange occurred:

Now is it the case that at February 2010 you were or were not aware of the January 2004 guidelines?

A. No, I was aware of them but I haven’t said guidelines there. I was aware there are guidelines but I mean there are not – there’s no law or regulations as such that apply specifically to independent midwives.

Q. You accept, don’t you, that the guidelines operate as standards which apply to you as an independent midwife don’t you?

A. Well I haven’t interpreted it as that. In my mind they were guidelines.

Q. So are you suggesting, Ms De Laile, that these guidelines are not standards or rules that apply to you as an independent midwife? Is that what you’re suggesting?

A. I would suggest that they were guidelines rather than rules. Sometimes there are, you know, circumstances that--

Q. You need to listen to my question, Ms De Laile. Are you suggesting to this tribunal that the National Midwifery Guidelines for Consultation and Referral are not standards or rules which apply to you?

A. It’s perhaps unfortunate wording.

Q. No, just answer the question. Do you suggest--

A. I interpret them as guidelines.

Q. No, Ms De Laile, just close that document for the moment if you wouldn’t mind. Do you give evidence to this tribunal that the National Midwifery Guidelines for Consultation and Referral are standards or rules that apply to you as an independent midwife? Are they or are they not, in your mind?

A. In my mind they are guidelines.

Q. No, are they standards or rules that apply to you? Is the answer yes or no?

A. They are guidelines setting out standards.

Q. So they apply to you or they don’t apply to you?

A. No, they do apply to me.

128. In her evidence, Dr Gamble agreed that the Guidelines were designed to inform and guide midwives in relation to their decision-making.

129. Ms De Laile has been suspended as a midwife since 4 October 2007, but has been able to work as a registered nurse. Ms Furness submitted on behalf of the HCCC that the conduct proven in relation to Ms De Laile necessitated, for the protection of the public, that her name removed from the Register of Midwives. However, because of the length of Ms De Laile’s suspension, Ms Furness did not suggest that any further time be provided before Ms De Laile could apply for re-registration. The Tribunal understood that Ms Furness’ submission was that the order that Ms De Laile be deregistered as a midwife could allow for her to apply for re-registration immediately if she wished to. However, as Ms Furness intimated, Ms De Laile would have to satisfy another panel of the Tribunal that she was fit to resume practice and that the health and safety of the public would be protected if she were allowed to resume practice.

130. Dr Kidd appeared to adopt Ms Furness’ submission as to the order the Tribunal should make if it found that Ms De Laile’s conduct amounted to professional misconduct.

131. The Tribunal did not consider it safe in the public interest to accede to submissions that Ms De Laile, while deregistered as a midwife could be allowed to make an application for re-registration immediately if she so wished.

132. The evidence before the Tribunal, particularly that of Ms De Laile, showed not only her serious lack of judgment in relation to the incidents that were the subject of the complaints in this matter, but also Ms De Laile’s lack of current insight into the content of the practice that is expected of her as an independent, homebirth midwife. In addition she showed a lack of insight into what standards of practise applied to her as a midwife, and which apply to all midwives in whatever context they practice.

133. The Tribunal considered it necessary for the protection of the public’s health and safety for a further period to elapse so that Ms De Laile could gain insight into these matters. The Tribunal considered that it was also necessary in order to maintain public confidence in the midwifery profession, particularly homebirth midwives, as well as necessary to confirm for other midwives who meet the required standards that the standards must be met by all practitioners that Ms De Laile be deregistered as a midwife and that a period of one year elapse before Ms De Laile may apply to the Tribunal or any successor tribunal to be re-registered.

134. The Tribunal made its orders accordingly.

Comments

135. During the course of the hearing, it became apparent to the Tribunal that Ms De Laile’s notes had been amended by additional material being added subsequent to the initial writing up which, in the case of Patient B at least, was not contemporaneous with the events recorded but was done within 24 hours after them. The Tribunal acknowledges that such notes taken by independent midwives are taken by self-employed people who are not bound by the laws and policies that apply to hospital based or public sector based midwives. Nevertheless, the Tribunal considers it wise for such midwifes to make it clear when they made their notes, particularly when they are in progress note form. When such notes are added to the additions should be acknowledged as such. There are accepted ways of doing this in a hospital context which could inform appropriate practice for midwives.

136. The Tribunal also draws attention to the comments it made in its 2007 decision , HCCC v Evans, in which it offered guidance to midwives, particularly those offering home birthing services.[5] While the Tribunal acknowledges that the events that led to the Complaint in this matter occurred before that decision was handed down, at least two of the issues referred to in that guidance, if applied by the midwife in this case, would have prevented some of the difficulties she faced subsequently. The first was the need for a detailed written agreement and the clarifying of transfer issues. The second was the need to record all significant events and observations as contemporaneously as possible on charts designed for the purpose.[6]

Dated: 24 May 2010

______________________

Nick O’Neill

Chairperson

______________________

Pamela Mulholland

Nurse and Midwife Member

______________________

Karen Draddy

Nurse and Midwife Member

_____________________

Phillip French

Lay Member

Patient A On 30 April 2007, at 37 weeks gestation, Patient A, her partner and their daughter came to live with the practitioner at her home in Nimbin to await the birth of twins.

Patient A
On 30 April 2007, at 37 weeks gestation, Patient A, her partner and their daughter came to live with the practitioner at her home in Nimbin to await the birth of twins.