conduct and competence committee substantive hearing...conduct and competence committee substantive...

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Conduct and Competence Committee Substantive Hearing

9 - 19 January 2017 and

6 – 17 February 2017 and

17 – 28 July 2017 and

18 – 29 September 2017

Nursing and Midwifery Council, 2 Stratford Place, London, E20 1 EJ

Name of Registrant Nurse: Ms Lisa Jane Granville NMC PIN: 86A1145E Part(s) of the register: RN1, Registered Nurse (sub part 1) – Adult (19

(March 1989) RM, Registered Midwife (4 November 1991) Area of Registered Address: Guernsey Type of Case: Misconduct Panel Members: Alexander Coleman (Chair - Lay member) James Peacock (Lay member) Julie Tindale (Registrant member) Legal Assessor: Ian Ashford-Thom Panel Secretary: Vicki Watts Ms Granville: Ms Granville was represented throughout the

hearing by Mr Elton, Counsel instructed on behalf of Clifford Johnston & Co, Solicitors. Ms Granville attended the hearing on some of the days during the hearing.

Nursing and Midwifery Council: Represented by Katherine Higgins, Counsel

instructed by NMC Regulatory Legal Team Facts proved by admission: 2 (In its entirety), 3 (in relation to Baby A), 7.1

and 7.2

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No case to answer: 4.1, 5 (in respect of Patient H) and 7.4 Facts proved: 1.1, 1.2, 3 (in relation to Baby B), 4.2, 5, 6, 7.3,

7.3.1, 7.3.2, 7.5 Facts not proved: 7.6, 7.7 Fitness to practise: Impaired Sanction: Striking off order Interim Order: Interim Suspension Order – 18 Months

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Charges as read: That you, a registered midwife, whilst employed as a Band 7 Risk Management Midwife

by the Health and Social Services Department of the States of Guernsey (“HSSD”) at

the Princess Elizabeth Hospital (“the Hospital”):

1. In respect of the investigation/ risk management following the death of Baby B on

1 September 2012:

1.1 In an incident details report completed by you on 9 September 2012, did

not identify and/or cause to be investigated, the inadequate standard of

midwifery care delivered to Baby B on 1 September 2012.

PROVED

1.2 At a meeting in October 2012 of the Obstetric and Gynaecology Clinical

Risk Management Committee did not identify and/or cause to be

investigated, the inadequate standard of midwifery care delivered to Baby

B on 1 September 2012.

PROVED 2 In respect of the investigation/ risk management following the death of Baby A on

30 January 2014:

2.1 In a conversation with Helen Pearce on 31 January 2014, did not correctly

identify inadequate midwifery care, in that you did not state that there were

concerns with the:

2.1.1 Conduct of the administration of Syntocinon to Patient A

PROVED BY ADMISSION 2.1.2 Management of the cardiotocograph (“CTG”) trace

PROVED BY ADMISION

2.2 In a LSA supervisory investigation decision tool completed by you on 31

January 2014, did not identify inadequate midwifery practice in respect of

the:

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PROVED BY ADMISSION

2.2.2 Management of the CTG trace

PROVED BY ADMISSION

2.3 At a meeting of the Obstetrics and Gynaecology Clinical Governance

Committee on 24 February 2014, did not identify and/or raise concerns

about the inadequate standard of midwifery care delivered to Baby A on

29 and/or 30 January 2014

PROVED BY ADMISSION 2.4 Between 30 January 2014 and 1 May 2014, did not raise the following

concerns regarding midwifery care delivered to Baby A:


PROVED BY ADMISSION 2.4.2 Management of the CTG trace

PROVED BY ADMISSION

3. In relation to Baby A and/or Baby B, your consideration of/investigation into an

unexpected death was inadequate.

PROVED BY ADMISSION (In part in relation to Baby A)

4. Your inadequate consideration of and/or investigation into the unexpected death

of Baby B led to a missed opportunity to remedy deficiencies in care and/or

inappropriate working practices on the Ward in relation, but not limited, to:

4.1 Conduct of the administration of Sytocinon

NO CASE TO ANSWER 4.2 Management of the CTG trace

PROVED

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5. In addition to concerns relating to Baby A and B, did not adequately identify

and/or did not have an adequate system of risk management in place to

adequately identify, that concerns in midwifery practice were present in the care

delivered to one or more of the women in Schedule A.

PROVED

6. In relation to Charge 4 above, failed to ensure the completion of a Local

Supervisory Investigations in relation to one or more of the registrants in

Schedule B:

6. (As amended) Failed to ensure the completion of a Local Supervisory

Investigations in relation to one or more of the registrants in Schedule B:

PROVED

7. In relation, but not limited, to charges 5 and/or 6 above, did not adequately

identify that and/or did not adequately raise concerns about midwifery practice

where:

7.1 Verbal orders were inappropriately accepted by midwives to allow the

administration of medication to take place, notably syntocinon;

PROVED BY ADMISSION 7.2 Syntocinon was administered inappropriately, in particular, without a

consultant obstetrician review of the patient to directly instruct its use;

PROVED BY ADMISSION 7.3 Cardiotocograph (“CTG”) traces were:

7.3.1 Misinterpreted by midwives;

PROVED 7.3.2 Not escalated, when found to be suspicious and/or pathological, to

a consultant obstetrician

PROVED

7.4 Storage of maternity records was inadequate;

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NO CASE TO ANSWER

7.5 Midwifery guidance was not clear and/or was outdated;

PROVED

7.6 Use of Patient Group Directives was misunderstood and/or were not

appropriately authorised and/or ratified;

NOT PROVED

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7.7 There were incidents of the inappropriate use of aqua blisters and/or polar

massage in the absence of appropriate guidance and/or training and/or

ratification and/or evidence to justify use

NOT PROVED

AND in light of the above, your fitness to practice is impaired by reason of your

misconduct.

Schedule A Patient B

Patient C

Patient D

Patient E

Patient F

Patient G

Patient H

Patient J

Patient K

Patient L

Patient M

Patient N

Patient Q

Patient R

Schedule B Midwife A

Midwife B

Midwife C

Midwife D

Midwife E

Midwife F

Midwife G

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Midwife H

Midwife I

Midwife J

Midwife K

Midwife L

Midwife M

Midwife N

Midwife O

Midwife P

Midwife Q

Midwife R

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Ms Granville,

This was a multi-registrant hearing relating to you, Midwife B, and Midwife C. Separate

determinations were produced for each registrant.

Your response to the charges –10 January 2017

Mr Elton informed the panel on your behalf that you admitted the following charges:

• Charge 2 (In its entirety),

• Charge 3 (In relation to Baby A),

• Charge 7.1; and

• Charge 7.2

In accordance with Rule 24(5) of the Nursing and Midwifery Council (Fitness to

Practise) Rules 2004 (as amended) (“the Rules”), the panel found proved the charges

indicated above, by virtue of your admissions.

Decision and Reasons on application pursuant to Rule 31 – 16 January 2017 (Day 5)

The panel heard an application made by Mr Elton, on your behalf, under Rule 31(1) of

the Nursing and Midwifery Council (Fitness to Practise) Rules 2004 (the Rules) in

relation to admissibility of evidence.

Mr Elton submitted that the panel should not be provided with the outcomes of the

investigations of the Supervisors of Midwives (SoM) into the care of patients in

Schedule A to charge 5 or the SoMs investigations into midwives’ practice in Schedule

B of charge 6. Mr Elton referred the panel to the ruling of Mr Justice Holman in the case

of Enemuwe v NMC [2015] EWHC 2081 (Admin). Mr Elton submitted that it was a

matter for the panel to decide the facts and for it to reach its own conclusions based on

the admissible evidence during this hearing. Mr Elton submitted that on general

principles relevance of fairness, such evidence should not be admitted.

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Ms Higgins, on behalf of the NMC, submitted that the reports of the investigations of the

SoMs, including the outcomes of those investigations, should be admitted into evidence

and that it was fair and relevant to do so.

The panel heard and accepted the legal assessor’s advice. The legal assessor advised

that there was a clear distinction between the subject matter of the SoMs’ investigations

and their outcomes. The former category was legally admissible but the latter was not

as it was not relevant for the panel to know what, if any, actions the SoMs decided to

take as a result of their investigations. The legal assessor also referred the panel to

Rule 31 of the Rules, which states:

31.—(1) Upon receiving the advice of the legal assessor, and subject only to the

requirements of relevance and fairness, a Practice Committee considering an

allegation may admit oral, documentary or other evidence, whether or not such

evidence would be admissible in civil proceedings (in the appropriate Court in

that part of the United Kingdom in which the hearing takes place).

The panel considered whether admitting evidence as to the outcomes of the SoMs

investigations would comply with requirements of relevance and fairness, as required by

Rule 31.

In reaching its decision, the panel had regard to the judgment in the case of Enemuwe v

Nursing and Midwifery Council [2015] EWHC 2081 (Admin), particularly where Holman

J states:

’37. But in the course of Mr Rich’s submissions on this point, there is a significant

passage at internal p 57 of the transcript of the hearing ... He said as follows: “Sir, I will

keep this brief. The thing that is in issue here is whether [Ms2] is a proper person in

these proceedings to give opinion evidence against the registrant on the basis of what

her perception of the case is. The key issue is that she was the investigating officer of

the Trust who made the findings of fact with relation to these allegations. It is normal

practice of course that the findings of fact made effectively by another panel or another

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person are generally not admissible in these proceedings and are not put before the

panel – as indeed her findings are not put before this particular panel” [My emphasis]’

’38. In my view, that was an entirely accurate summary by Mr Rich of the position,

namely that in this sort of situation where there has been a prior investigation and prior

findings by a local disciplinary or investigatory person or body, the findings of that

person or body are not, and should not be, normally admissible in proceedings before

the NMC, not put before the Committee, although Miss Marsh says that the Committee

does sometimes receive a redacted version of such a report or findings.’

’79. At the risk of repetition, it is my view that the position was correctly summarised by

Mr Rich in a passage I have already quoted, namely that normally the findings of fact

made at some earlier investigation by another panel or another person are not

admissible in proceedings before this Committee.

The panel was mindful of the emphatic and unequivocal terms of Holman J’s conclusion

that findings of fact made at some earlier investigation by another person are not

normally admissible in proceedings before this committee.

The panel was satisfied that whatever courses of action the SoMs may, or may not,

have decided to take as a result of their investigations could have no relevance to the

issue which this panel has to decide; namely, whether you were under a duty to identify

and investigate the concerns relating to the patients in Schedule A and the midwives in

Schedule B. It followed from this conclusion that it would also be unfair to admit such

evidence.

The panel accordingly decided that the outcomes of those investigations should not be

admitted into evidence and should be excluded from its consideration. The panel,

however, accepted the distinction drawn by the legal assessor, and concluded that it

would be relevant and fair to admit evidence of the subject-matter and content of the

SoMs investigations into the care of patients in Schedule A and into the practice of

midwives in Schedule B.

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Decision and reasons on application to amend charge 6

Ms Granville,

At the conclusion of the NMC’s case, Ms Higgins made an application to amend the

wording of charge 6.

From

6. In relation to Charge 4 above, failed to ensure the completion of a Local

Supervisory Investigations in relation to one or more of the registrants in

Schedule B:

To

6. Failed to ensure the completion of a Local Supervisory Investigations in relation

to one or more of the registrants in Schedule B:

Ms Higgins referred the panel to the case of PSA v NMC (Ms Winifred Nompumelelo

Jozi) [2015] EWHC 764 (Admin).

Ms Higgins submitted that Charge 6 is linked to Charge 4 and that Charge 4 is focused

on the missed opportunities created by the failure to investigate the death of Baby B as

set out in Charge 1. She submitted that the link between Charge 6 and 4 adds nothing

to Charge 6 but rather makes it unnecessarily complex.

Ms Higgins submitted that the alleged wrongdoing in relation to Charge 6 has been

clearly set out in the evidence put before the panel and more importantly has

consistently been the evidence relied upon by the NMC and communicated as such to

you.

Ms Higgins submitted that the link between charges 6 and 4 was most likely added in

order to set out that the failure to complete LSA investigations led to missed

opportunities. She submitted that such a link is unnecessary and unduly attaches

allegation 6 to allegation 4 when there is no factual correlation between the two

allegations.

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Ms Higgins submitted that she did not concede that allegation 6 would fail if not

amended or that allegation 6 would fail if allegation 4 fails. She submitted that the

NMC does concede that the allegation as it stands is currently overly complex in

drawing in a separate allegation. The NMC does not rely on allegation 4 to prove

allegation 6 and therefore the link that has been put there seems irrelevant and

unnecessary.

In conclusion, Ms Higgins submitted that, neither the nature of the allegation or the

evidence relied upon is altered and therefore there is no unfairness or prejudice to you

by making the proposed amendment.

Mr Elton opposed the application. He submitted that these charges were drafted very

deliberately and have been clearly drafted with some care. He submitted that the

allegation was not generic and that the proposed amendment would cast the allegation

much more widely in that you were responsible for the non-completion of Local

Supervisory Investigations of all those listed in Schedule B.

Mr Elton submitted that the proposed amendment was a substantive change in the case

you are facing and that the object of the charge is seeking to hold you responsible for

the acts and omissions of all SoMs. Mr Elton submitted that he has conducted his

cross-examination of the NMC witnesses on the basis of the charges and that you

would be prejudiced if the amendment were permitted.

The panel accepted the advice of the legal assessor and took into account Rule 28 of

the Rules which states:

28 (1) At any stage before making its findings of fact …

(i) … the Conduct and Competence Committee, may amend

(a) the charge set out in the notice of hearing …

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unless, having regard to the merits of the case and the fairness of the

proceedings, the required amendment cannot be made without injustice.

The panel was satisfied that the proposed amendment did not widen the charge, but

rather clarified it. The panel was also satisfied that it did not alter the material thrust of

the charge.

The panel did not accept Mr Elton’s submission that, should the amendment be granted,

he would thereby have been deprived of an opportunity to cross-examine witnesses; in

the panel’s view, the alleged breach of a duty within charge 6 to ensure the completion

of Local Supervisory Investigations is clearly set out in the charge as it now stands.

The panel therefore concluded that such an amendment, as applied for, was in the

interests of justice. The panel was satisfied that there would be no prejudice to you and

no injustice would be caused to either party by the proposed amendment being allowed.

It was therefore appropriate to allow the amendment, as applied for, to ensure clarity.

Decision on Interim Order (upon adjournment):

Prior to adjourning this hearing at this stage, the panel is required to consider under

Rule 32 (5) whether it is necessary to impose an interim order to cover the adjournment

period.

The panel may only make an interim order if it is satisfied that it is necessary for the

protection of the public, is otherwise in the public interest or in the registrant’s own

interests. The panel may make an interim conditions of practice order or an interim

suspension order for a maximum of 18 months.

Ms Higgins made no application for an interim order and Mr Elton, on your behalf made

no contrary submissions.

The panel has decided not to impose an interim order.

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This hearing will resume, on 17 July 2017

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Resumed Hearing 17 July 2017 (Day 21)

Submissions on application of no case to answer by Ms Granville:

Ms Granville,

The panel had the benefit of detailed written submissions from Mr Elton on your behalf

(Exhibit 30) and a detailed written response from Ms Higgins on behalf of the NMC

(Exhibit 31).

At the close of the NMC’s case Mr Elton made an application under Rule 24(7) of the

Nursing and Midwifery Council (Fitness to Practise) Rules Order of Council 2004 (as

amended) (‘the Rules’). He submitted that there was no case to answer in respect of

charges 4.1, 5 (in relation to Patient H), Charge 6 and Charge 7.4.

Charge 4




4.3 Conduct of the administration of Sytocinon

4.4 Management of the CTG trace

Mr Elton submitted that the Baby B incident did not involve Syntocinon and was

confirmed by Ms Paterson in oral evidence. He submitted there is either no evidence or

insufficient evidence that the Baby B incident could be termed as a “missed opportunity”

for future patient care, in so far as the conduct of the administration Syntocinon is

concerned.

Charge 5


and/or did not have an adequate system of risk management in place to

adequately identify, that concerns in midwifery practice were present in the care

delivered to one or more of the women in Schedule A.

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Mr Elton referred the panel to the Agreed Facts in which it is agreed that Patient H

delivered on 1 July 2014. He submitted that as you been suspended on a without

prejudice basis from your Risk Management Midwife role and SoM role on 23 May 2014

there is no case for you to answer in relation to Patient H.

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Charge 6

6. Failed to ensure the completion of a Local Supervisory Investigations in relation

to one or more of the registrants in Schedule B:

As with charge 5, Mr Elton submitted that in relation to Midwives Q and R you cannot be

accountable as per the Agreed Facts document as they were the Midwives responsible

for Patient H and it has already been established that you were suspended from the

Hospital on the date Patient H delivered (1 July 2014).

Mr Elton submitted that the evidence from the NMC witnesses has been clear that the

functions of (i) supervision and (ii) management within the Maternity Department were

separate. The conduct of a Local Supervisory Investigation related to the statutory

function of the SoM. He submitted that there is either no evidence or insufficient

evidence that could allow the panel to find on the balance of probabilities that you are to

be held accountable for all of the outstanding Local Supervisory Investigations.

Mr Elton submitted there was no hierarchy within the supervision and even if the NMC

were to assert that an increased duty was attributable to you on account of your Risk

Management Midwifery role, then that would be confounded by the fact that another of

the SoMs was your line manager.

Mr Elton submitted that your duty could not be taken to extend beyond your supervisees

(Midwives C, E, I, J and P).

Accordingly, Mr Elton submitted that there is no case for you to answer in relation to

Midwives A,B,D,F ,G,H,K,L,M,N,O,Q and R.

Charge 7.4



where:

7.8 7.4 Storage of maternity records was inadequate;

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Mr Elton submitted that during Ms Porch’s evidence, the NMC confirmed its intention to

offer no evidence in relation to this charge. Ms Porch in October 2014 assisted in the

review of supervision of midwifery at the Hospital by Mott MacDonald on behalf of the

NMC. She raised criticisms relating to the storage of maternity records. However, given

that you had been suspended from your employment as from 23 May 2014, you could

not be held responsible for any such failings. .

He submitted there is no evidence to support charge 7.4 and, accordingly, no case to

answer in relation to Charge 7.4.

NMC response to application of no case to answer

Ms Higgins conceded Mr Elton’s application of no case to answer in relation to charge

4.1, 5 and 7.4.

In relation to charge 6, Ms Higgins submitted that you have been practising as a midwife

since 1991, qualified as a SoM in 1998 and practiced as a SoM until your suspension in

May 2014. The requirement of a SoM was set out by Ms 1 in her evidence. In which

she sets out that in accordance with the NMC Midwives Rules and Standards 2012 Rule

8.5: ‘A supervisor of midwives must be capable of meeting the competencies set out in

Standards for the practice of supervisors of midwives (NMC 2006)’.

Ms Higgins submitted that Ms 1 was tasked with assessing your competence as a SoM.

One of the central themes considered was your ability to identify the need for and

undertake LSA investigations. The evidence of Ms 1 is supported and corroborated by

Shirley Smith who was tasked with feeding back Ms 1’s report to you. Ms Higgins

submitted that Ms Smith’s evidence and insight is relevant to any assessment as to your

failures to ensure your duties as a SoM were appropriately discharged. As a SoM you

would have been expected to undertake a systematic approach to reviewing records.

The LSA reviews provide evidence that safety concerns had not been correctly

identified or acted upon.

Ms Higgins submitted that the role of a SoM is to ensure and promote safe and

appropriate practice. It is incumbent on a SoM to lead by example, to identify any

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failures in practice and to ensure that any failures are appropriately dealt with through

LSA investigations in order to ensure practice is improved. It is relevant to add that as

Risk Management Midwife you would or should have had considerable exposure to a

wide variety of cases. As a SoM it was incumbent on you when reviewing any case that

if you felt there was an issue which needed to be addressed through supervisory

investigation that you either dealt with it directly or ensured the appropriate SoM did so.

Ms Higgins submitted that the NMC does not accept the submission that you held no

responsibility for midwives for whom you were not the direct supervisor. In your role as

a Band 7 SoM you should have been proactively ensuring that the supervision of all

midwives was adequate. She submitted that the Ward was a small unit, averaging 2.5

births a day. And as a Band 7 SoM your awareness as to the on goings on the ward

should have been high.

Ms Higgins conceded that as set out in the agreed facts Patient H gave birth after you

had been suspended. As set out in the evidence Midwives Q and R in schedule B are

only relevant to the care provided to Patient H and were not involved in the care

provided to any other patients from which Local Supervisory Investigations stemmed.

As such the NMC do not seek to challenge the submissions that there is no case to

answer in relation to Midwives Q and R within schedule B. However, she submitted

there was a case for you to answer in relation to the remaining Midwives within

Schedule B (A,B,D,F,G,H,K,L,M,N and O).

Rule 24(7) states:

24 (7) Except where all the facts have been admitted and found proved under

paragraph (5), at the close of the Council’s case, and—

(i) either upon the application of the registrant, or

(ii) of its own volition,

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the Committee may hear submissions from the parties as to whether sufficient

evidence has been presented to find the facts proved and shall make a

determination as to whether the registrant has a case to answer.

The panel heard and accepted the advice of the legal assessor. He referred the panel to

Rule 24(7) of the Rules. He also referred the panel to the case of R. v Galbraith [1981] 1

W.L.R. 1039, which sets out the test to be applied in considering whether or not there is

a case to answer.

Decision and reasons on application of no case to answer in respect of charges 4.1, 5 and 7.4 Charge 4.1

The panel was satisfied that the case of Baby B would not have alerted you to

deficiencies in care or inappropriate working practises in relation to Syntocinon, as

Syntocinon was not administered to Patient B.

Charge 5

The panel accepted that as Patient H gave birth after the date on which you had been

suspended, you could not have identified any concerns in her case.

Charge 7.4

The panel accepted that you could not be held responsible for any concerns identified

by Ms 2 relating to storage of maternity records, as you had been suspended from duty

several months before Ms 2’s inspection.

Accordingly, the panel agreed with the NMC’s concessions in respect of these charges

and concluded that you have no case to answer in respect of them.

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Decision and reasons on application of no case to answer on remaining charge 6:

Charge 6

The panel in its consideration of whether there was a case to answer in relation to

charge 6 considered the evidence it had heard in relation to the responsibilities of a

SoM. The panel considered that you had been a qualified SoM since 1998.

The panel considered that there is evidence before it that your responsibilities as a SoM

could not be isolated from your other responsibilities involved in your role as a Band 7

Risk Management Midwife.

The panel was therefore of the view that there was sufficient evidence to support charge

6 at this stage, and, as such, it was not prepared to accede to an application of no case

to answer in relation to Midwives within Schedule B (A,B,D,F G,H,K,L,M,N and O).

Midwife A (Lisa Granville)

Background presented by the NMC

This case concerns three registrants, all registered midwives and all employed by the

Health and Social Services Department (HSSD) of Guernsey at the Princess Elizabeth

Hospital (the Hospital) on the Maternity Suite known as the Loveridge Ward (the Ward).

The Hospital is situated within the Bailiwick of Guernsey, which is a Crown

Dependency. As such, it is governed by a directly elected legislature independent of the

United Kingdom. However, the NMC has jurisdiction as a regulator of nurses and

midwives practising in Guernsey.

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The Ward itself contains a 12 bed antenatal/postnatal ward, 4 delivery rooms, a 2 bed

transitional care unit and a 3 bed neonatal unit.

Midwives on the Ward were allocated to provide one to one care for a woman before,

during and after labour. The nature of the one to one care system involved a midwife

taking on responsibility for both the care personally delivered and the management of

the patient’s condition. The midwife’s role therefore included the need to escalate the

condition of the patient allocated to her to a Consultant Obstetrician as required, in

order to ensure that any abnormalities in the patient’s condition were dealt with in a

timely and appropriate manner.

The structure in place at the Hospital was such that it did not have junior or middle

grade doctors working within the Maternity Service. Therefore when a midwife referred

a patient for medical intervention this was directly to one of four Consultant

Obstetricians.

A Midwife Shift Coordinator would also be on the ward, not allocated to individual

patients, their purpose was to allocate tasks and also to act in a supporting and advisory

role for the midwives present.

36 midwives in total were employed at the Hospital who, at the relevant time, were

supervised in their practice by four locally based Supervisor of Midwives (“SoM”). Both

you and Midwife B were SoMs.

In May 2014, Ms 3, a midwife on the Ward, started to contact the Local Supervising

Authority for Midwives (“LSA”) in order to register her concerns regarding midwifery

practices. The LSA is the statutory body responsible for the supervision of all midwives

practising within its boundaries. It is responsible for ensuring that the Midwifery Rules

and Standards and the NMC code are met.

Ms 3 raised concerns as a result of a neonatal death in January 2014 of Baby A. Ms 3

was concerned as to deficiencies in the care provided on the night shift of 29 – 30

January 2014 by the midwives during Patient A’s labour. Ms 3’s concerns related in

particular to what she considered amounted to inadequate management of the

cardiotocograph (“CTG”) trace obtained during fetal heart monitoring, and the

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unauthorised use of medication, specifically Syntocinon. Ms 3 was further concerned

by what she considered were inadequacies in the subsequent investigation by the

Hospital into this neo natal death.

Ms 3’s concerns regarding the management of the CTG trace related to alleged failure

on the part of the midwives to identify characteristics of the CTG trace in order to

correctly classify it as normal, suspicious or pathological. Ms 3 was further concerned

that, where signs giving rise to abnormal classifications of the CTG had been present

and recognised as such by the midwives, this had not been escalated to a Consultant

Obstetrician. Midwives were therefore acting outside the scope of their practice by

continuing to lead the decision making in respect of patient care.

Syntocinon is a synthetic form of the naturally occurring hormone oxytocin. It is a drug

used to augment labour by making contractions both stronger and more regular.

Syntocinon is a form of medication which can only be administered after a written

prescription has been given by a suitably qualified medical practitioner, i.e. in the case

of this hospital, a Consultant Obstetrician. There are specific risks associated with the

administration of syntocinon which differ according to the stages of labour, but become

more acute when stage 2 of labour has been reached, and there was a clear

requirement for an Obstetrician to attend and review a patient to make a clinical

decision as to whether syntocinon should be administered before this was done.

There were a number of HSSD guidelines in place at the Hospital at the relevant time,

including “Clinical Guideline for Fetal Monitoring During Intrapartum Period” setting out

how to categorise a fetal heart rate trace from a CTG and the consequential actions to

be taken. Of particular relevance is that part of the policy which sets out that if a CTG

trace presents as suspicious and the patient is receiving syntocinon the patient should

be reviewed by an Obstetrician. In addition, there were national guidelines which

applied in the NHS’s National Institute for Health and Clinical Excellence’s guideline on

intrapartum care (“the NICE Guidelines”).

Ms 3 raised further concerns regarding the use of syntocinon by midwives without

written prescriptions or, in some cases, any authorisation from a Consultant Obstetrician

The culture was such that syntocinon would be routinely administered to a patient, and

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its rate increased, by a midwife acting on a verbal order over the telephone by a

Consultant Obstetrician. Further concerns were raised that Syntocinon was being

administered in the absence of any form of Consultant Obstetrician involvement at all.

Following the concerns raised by Ms 3, the LSA Midwifery Officer (“LSAMO”), Ms 1,

ordered an initial audit of patient records to take place on 2 June 2014. The audit,

containing a sample group of ten records, was completed by a SoM named Kathy

Palmer. Ms Palmer, discovered evidence to support the concerns being raised by Ms 3,

particularly in respect of the unauthorised use of syntocinon.

Over the course of August 2014, the LSA continued its investigation into midwifery

services at the Hospital. Two significant audits took place during this month. The audit

process revealed a significant culture that had developed whereby midwives would act

outside the scope of their practice. As well as issues concerning the use of syntocinon,

which were considered to be widespread, a culture was discovered whereby

communications between Consultant Obstetricians and midwives were discouraged or

avoided because of their difficult nature. Midwives were considered to be better at their

roles if they delivered care without troubling a Consultant Obstetrician, an attitude

particularly prevalent during the course of the night shift. Risk management was

assessed by the LSA as inadequate on the basis that substandard midwifery care was

not identified and was therefore neither challenged, reviewed nor remediated.

Following the LSA audit a number of individual cases were identified where the

standard of care was such that they were considered to require a LSA SoM led

investigation, so that individual conduct could be considered in greater detail. These

investigations were led by LSAMO Shirley Smith. The outcome was that a number of

Local Action Plans and LSA Practice programmes were imposed on individual midwives

to attempt to remediate the wide ranging concerns.

In view of the substantial concerns identified, the NMC commissioned a Management

Consultancy, Mott McDonald to conduct a LSA extraordinary review. The review was

designed to focus specifically on the issue as to whether or not adequate supervision of

midwives was taking place at the Hospital.

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This review was conducted by a team of LSA midwives between 1 and 3 October 2014.

Over the course of the review, the team uncovered significant difficulties in the

supervision of midwives. There was significant criticism of the risk management

structure, for example they concluded that the Obstetrics and Gynaecological Clinical

Governance Committee meetings were failing to achieve their purpose, which was to

examine adverse incidents with sufficient scrutiny to allow best practice to be identified

and maintained, and inadequate practice to be managed and changed.

The review team encountered a description of the culture at the Hospital known as the

“Guernsey Way”. This epithet was used by members of staff at the Hospital to justify

midwifery practices in particular and maternity care in general that were not compliant

with the NMC Code of Conduct Rules and Guidance and National Guidelines. There

was widespread acknowledgement of the use of verbal orders for the use of syntocinon

and a lack of escalation by midwives to Consultant Obstetricians. There was an

acknowledgement by members of staff, including midwives, of a system of care falling

outside the midwifery scope of practice that was not only allowed to continue

unchallenged, but actively participated in and therefore perpetuated.

The concerns raised by Ms 3 regarding Baby A led to an analysis of the initial

assessment of the investigation completed by you on 31 January 2014. As a result of

your assessment you reached the conclusion, which you reported to Ms 1 as LSAMO,

that there had been no major issues in the midwifery care delivered, save for some

record keeping issues which could be dealt with locally. As such no further action was

taken by Ms 1. In the subsequent review completed by Ms 8 on 12 May 2014, she

disagreed with your assessment and found that there were in fact a number of grave

concerns in respect of the midwifery care provided by Midwife B and Midwife C.

As a result both the LSA and HSSD started investigations. In June 2014 the LSA

investigation into the care given to Baby A took place. This was led by Ms 8 and ran in

conjunction to the HSSD’s investigation run by Ms 7 and Ms 11. You were interviewed

by Ms 1 on behalf of the LSA with Ms 7 and Ms 11 present.

During the course of the Baby A investigations concerns were raised that similar failures

had occurred in the care of Baby B, delivered on 1 September 2012. Baby B had also

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died. At the time, you had conducted a review of the case and concluded that the

midwifery care had been of an acceptable standard. As a result of the subsequent

concerns that arose during Baby A’s investigation, Ms 5, a Band 6 Midwife, was asked

to review Baby B’s case. She provided a report of her findings dated 20 June 2014 on a

recognised format designed for analysing such incidents. In addition, an investigation

into the death of Baby B was carried out on behalf of HSSD by Mr 12 an ENT

Consultant and Ms 11, the Head of Governance Support and Compliance between

October 2014 – February 2015.

Your conclusion in 2012 that the midwifery care in the case of Baby B had been

acceptable was contradicted by Ms 5 in her review in June 2014 and a subsequent

report authored by Mr 12 and Ms 11. Both Ms 5 and Ms 11 noted that the CTG trace of

Baby B had not been managed correctly by the midwife concerned, and that Baby B’s

condition had not been escalated to a Consultant Obstetrician when it should have

been, which meant that the midwife had been working outside the scope of her practice.

Determination on facts Ms Granville, In reaching its determination on facts, the panel had regard to all the evidence adduced,

including the oral evidence and the exhibited documents. It was provided by detailed

written submissions from Mr Elton on your behalf and Ms Higgins on behalf of the NMC.

The panel accepted the advice of the legal assessor.

The burden of proof rests entirely upon the NMC. You do not have to prove or disprove

anything. The standard of proof is the civil standard, namely the balance of probabilities.

This means that, for a fact to be found proved, the NMC must satisfy the panel that what

is alleged to have happened is more likely than not to have occurred.

The panel heard evidence on behalf of the NMC from the following witnesses who held

the positions (as listed below) at the relevant time:

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• Ms 1 - Local Supervising Midwifery Officer (LSAMO);

• Ms 2 - Lead Reviewer of the NMC instructed by the Local Supervising Authority

(LSA);

• Ms 5 - Current Head of Midwifery HSSD;

• Ms 6 - LSAMO

• Ms 7 - Service Manager for Child Services at HSSD ;

• Ms 8 - LSA Midwife

• Ms 9 - LSA Midwife

• Ms 10 - Academic Lead at HSSD;

• Ms 11 - Head of Quality Improvement at HSSD;

• Ms 13 – Band 7 Midwife

• Ms 14 - Community Midwife Manager at Jersey General Hospital;

The panel considered that the above mentioned NMC witnesses generally were credible

and reliable and gave their evidence in a fair, clear and helpful manner and sought to

assist the panel.

Patient A and Person A The panel heard evidence from Patient A and her husband Person A via video link from

Singapore. The panel considered that they gave evidence about events that were

obviously very difficult for them to revisit and which the panel fully acknowledge was a

traumatic time for them. The panel found that that they were reflective, dignified and

composed when talking about what was clearly a very stressful time in their lives. The

panel found that they were being sincere in their efforts to assist the panel and that they

gave their evidence to the best of their recollections and perceptions. To the extent to

which the panel found that there were gaps in their recollections, this was entirely

understandable.

Ms 3: Band 7 Midwife and Ward Manager of Loveridge Ward. On 6 May 2014, Ms 3 came forward as a whistleblower. She contacted the LSA in order

to register concerns she had about the case of Baby A. Ms 3 alleged that there had

been deficiencies in the midwifery care provided in this case during the night shift of 29-

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30 January 2014. Also that there had been a subsequent failure by the Hospital to

investigate the case adequately. Ms 3 was particularly critical of what she felt was

inadequate management of the cardiotocograph (“CTG”) trace during the fetal heart rate

monitoring, and the unauthorised use of Syntocinon. The panel found Ms 3 to be a

candid and credible witness who demonstrated sound knowledge of midwifery practice.

The panel appreciated how difficult it must have been for Ms 3 to come forward as a

whistle-blower and to give evidence which was critical of the practices of midwives who

had been her colleagues. The panel noted that in her evidence Ms 3 acknowledged

where her recollection had been affected by the passage of time. The panel also noted

that Ms 3’s evidence had been consistent over the course of time. The panel did not

accept the proposition put to her by Miss Hamilton that she had been motivated by ill-

will towards Midwife B. Nor did the panel accept that Ms 3’s credibility as a witness had

been undermined by her initial inability to recollect that she had made her own referral

(in addition to an NMC referral) of Midwife B to the NMC or to recognise immediately

her authorship of the document involved. The panel accepted that this was attributable

to a genuine lapse in recollection owing to the passage of time.

Dr. 1: Consultant Obstetrician and Gynaecologist. Dr. 1 gave his evidence by video link from Guernsey as he was unable to attend the

hearing in person. The panel considered that Dr. 1’s evidence was vague at times and

that there appeared to be gaps in his recollection of events. The panel considered that

Dr. 1 in his evidence tended at times to be defensive. He also tended to understate the

extent of his knowledge at the time of the reluctance of midwives to escalate cases to

the Obstetricians during night shifts, or, of the prevalence of the practice of midwives on

night shifts administering Syntocinon on their own initiative without following proper

procedures. Overall, at times, the panel found certain aspects of Dr. 1’s evidence

unconvincing.

The panel also noted your evidence. The panel considered that whilst you were doing

your best to assist the panel, at times, you came across as defensive and your

frustration was evident by the way in which you gave some of your answers.

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However, the panel bore in mind throughout its deliberations the fact, which is not in

issue, that you are a person of good character. The panel gave you due credit for this in

assessing the credibility of your evidence. The panel also accepted that, as a person of

good character, it is inherently less likely that you would have behaved in a manner

which would be viewed as reprehensible.

At the commencement of the hearing in January 2017, you made admissions to the

following charges:

• Charge 2 (In its entirety),

• Charge 3 (in relation to Baby A),

• Charge 7.1; and

• Charge 7.2.

The panel has already found that there is no case for you to answer in relation to

charges 4.1, 5 (in respect of Patient H in Schedule A) and 7.4.

The panel went onto determine the remaining charges,

That you, a registered midwife, whilst employed as a Band 7 Risk Management Midwife

by the Health and Social Services Department of the States of Guernsey (“HSSD”) at

the Princess Elizabeth Hospital (“the Hospital”):

Charge 1

1. In respect of the investigation/risk management following the death of Baby B on

1 September 2012:

a. In an incident details report completed by you on 9 September 2012, did not

identify and/or cause to be investigated, the inadequate standard of midwifery

care delivered to Baby B on 1 September 2012

PROVED

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Following the birth of Baby B on 1 September 2012, you completed an incident details

report, which was started by you on 5 September 2012. You graded the “Initial

Severity” of the incident as “3 Moderate”, using the guidance the model matrix in the

Maternity Clinical Risk Management Strategy scoring of “1 Negligible” – “5

Catastrophic”. You subsequently upgraded the “Severity” (your evidence was that this

was also entered on 5 September) to “4 Major”, as it was clear by 5 September that

Baby B, who was then receiving palliative care, had suffered major injury. Under the

heading “Incident Description”, you wrote, “Baby born by C/S [Caesarean Section] for

failure to progress in labour. Apgars 5@1, 4@5. Paed [Paediatrician] present as CTG

had been suspicious at end of labour”.

You told the panel that the trigger for Baby B’s case being referred to you was his low

Apgar scores.

Baby B died on 7 September 2012.

On 9 September 2012, you completed the incident details report, following a review of

Baby B’s antenatal care from his records carried out by you on that date. You noted that

Baby B had been admitted early in the morning on 1 September with a history of

contractions, “… CTG normal on admission. Progressed well over the morning

commenced pushing at 1120 no progress at 1225, CTG now suspicious, OBs

[Obstetrician] called to attend. …

“The baby subsequently died on 7/9/12.

“There are no obvious explanations for the babys conditon [sic] from the AN [antenatal]

care, labour and delivery.”

It is clear from your job description, and you accepted in your evidence, that the

responsibilities of the Risk Management Midwife included the following:

“They will be responsible for grading all clinical incidents and ensuring they are logged

into the HSSD system for collating clinical incident statistics. They will also ensure

timely and effective investigation of incidents by the appropriate members of staff.

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“They will lead on serious clinical incident investigations and provide support for

managers and supervisors of midwives involved in investigations.”

It is also clear that your role as the Risk Management Midwife was pivotal to the

implementation of the HSSD's Maternity Clinical Risk Management Strategy (issued

September 2010) which included the following:

“2.0 STRATEGY The objectives of the Maternity Clinical Risk Management Strategy are to:

• Recognise that the nature of the provision of healthcare to women and their

babies does incur risk

• Promote a culture within the service that values risk management, which is ‘fair

blame and ‘just’ and supports staff with the opportunity to learn from previous

experience

• Ensure that all staff adopt a proactive approach to risk management through the

completion of the incident forms

• Ensure that lessons learned are disseminated to staff effectively in order to

promote learning in an open culture

• Establish a risk management department within the maternity service that is

robust and effective through the response to incident reporting as well as

demonstrating a proactive approach to risk management through regular risk

assessment

• Embrace a culture of continuous improvement to achieve a centre of excellence

in maternity care, through the adoption of the Clinical Negligence Scheme for

Trusts (CNST) Standards, specifically utilising Maternity Standards as

benchmarks

• Manage risk within the maternity services emerging from various sources such

as the identification and reporting process, complaints, claims and other

sources.”

Responsibilities

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The following have responsibilities in line with the Maternity Risk management Strategy:

“Risk Management Midwife” The Risk Management Midwife is responsible for co-ordinating clinical risk and reports

to the Head of Midwifery in overseeing clinical risk management throughout maternity

services. The Risk Management Midwife reviews incident forms and grades all clinical

incidents. The Risk Management Midwife conducts investigations and formulates

reports, referring to Midwifery Managers, Supervisors of Midwives and Obstetricians as

necessary, working closely with them following an adverse incident. The Risk

Management Midwife is responsible for the communication of recommendations to staff,

and ensuring that complaints and incidents are investigated and acted upon in a timely

manner in line with agreed policies and procedures. Co-ordinates and prepares monthly

clinical Risk Management Meetings and sits on SUI Panel meetings regarding maternity

cases. In addition is responsible for the coordination of CNST Strategy within maternity.

Works alongside the Maternity Services Manager and Obstetric Risk Lead to ensure

that policies and guidelines are up to date and in line with current evidence.”

In late June 2014, Ms 5 carried out a review of Baby B’s case from the records. Her

conclusions were in stark contrast to those expressed by you in your incident details

report. She identified a list of ten concerns regarding the standard of midwifery care

provided to Baby B’s mother during her labour. They included concerns that no action

had been taken by the midwife involved, Midwife E, to refer the case to an obstetrician

until 12.40, despite the CTG fulfilling the criteria for classification as “suspicious” on a

number of occasions from 08.50 onwards. Ms 5 also raised concerns that the CTG

monitoring had been intermittent, whereas it should have been continuous.

The report into the investigation into the death of Baby B completed by Ms 11 and Mr 12

dated 2 February 2015 also concluded that there were wide-ranging concerns as to the

practice of individual clinicians involved in the delivery of Baby B, including Midwife E.

With regard to the midwifery care, the main areas of concern were as follows:

“Concern Identified: Inadequate monitoring during the late stages of labour and

delivery

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“Discussion: The Investigation identified several shortcomings in the level of

monitoring of the unborn baby provided by the Midwife in attendance from 0815am on

1.9.12.

a) The use of a CTG to monitor the baby was intermittent and haphazard and once

“one reassuring feature” had been identified the CTG should have been

continuous from that point until it was either consistently reassuring again or

delivery.”

In the LSA report completed in January 2015 by Ms 8 as a result of her supervisory

investigation into the standard of care provided by Midwife E in the case of Baby B, the

following concerns were expressed:

“Midwife [E] took over care at 08:15 and commenced intermittent monitoring. Midwife

[E] auscultated a low fetal heart of 109 at 08:45 and commenced a CTG to assess fetal

wellbeing. The fetal heart baseline was low at 100-110, however Midwife [E]

discontinued the CTG. Midwife [E] classifies the CTG 1 hour later as suspicious.

Midwife [E] continues to monitor the fetal heart intermittently and further reduced fetal

heart rate recordings are documented. Midwife [E] does not however appear to take

appropriate action on these deviations from the normal.

“At 12.20 a late fetal heart rate deceleration is recorded by Midwife [E] and this triggers

referral to the coordinator Midwife L. Midwife L refers to the Consultant Mr H.”

You stated that the incident details report completed by you was a “snapshot” of the risk

management undertaken and that at the time of completion of the report you were

focusing on the grading of the incident when it occurred whilst on the labour ward. You

also stated that the incident report form did not reflect the extent of your investigation

into Baby B’s case. You told the panel that you had also created a folder of documents

relating to Baby B’s case, where you had kept notes of actions you had taken, including

referring the CTG for review by a Consultant Obstetrician, and discussing the case with

colleagues. You no longer had access to this folder, but you were able to produce a two

page handwritten note where you had summarised the notes in Baby B’s labour care

record. You told the panel that this note represented a fraction of the work you had done

on this case.

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Your evidence was that Baby B’s case did not require further investigation into the

standard of midwifery care, as it was not deemed to be a Serious Untoward Incident

(“SUI”) by the guidance in force at that time. You told the panel that you had addressed

the issues arising from Baby B’s CTG by meeting with Midwife E and providing

supervision and support in her reflection on the case and noting her action in

undertaking a GTG retraining package. You told the panel that you would have

expected the Paediatric Department, rather than the Maternity Department, to have

initiated a SUI investigation, as Baby B died seven days after his birth whilst in their

care and after their resuscitation attempts had failed.

The panel found no merit in any of the points raised by you in response to this charge.

The panel did not accept that the significance of the incident details report should be

downplayed as a “snapshot”. Nor did the panel accept that your duty to identify

inadequate standards of midwifery care within the incident details report was diluted in

any way as a result of any further documents which you may have kept in a folder in the

course of your investigation. The incident details report was clearly a document of

crucial importance. Your responsibility for grading clinical incidents was a key

requirement of your role as the Risk Management Midwife. The incident details report

was the vehicle for initially identifying inadequate standards of midwifery care and/or

causing them to be further investigated and appropriate action taken where necessary.

The panel had no doubt that Baby B’s case should have been classified by you as a

SUI, applying the guidance applicable at the time. The definition in the Maternity Clinical

Risk Management Strategy, which was in force from September 2010, stated, “There is

no single definition of a SUI but, in general terms, it is an accident or incident that is out

of the ordinary or unexpected, where a service user … suffers serious injury, major

permanent harm or unexpected death …”. This accords with Ms 11’s evidence, in

examination-in-chief she stated:

“Q. What is the purpose of an SUI?

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“A. … an SUI stands for “Serious Untoward Incident”, and it’s usually where an incident

has occurred that has caused severe harm to someone or a service user, or is a severe

organisational threat. In our risk management policy, we talk about what should be done

when this type of incident occurs, and a Serious Untoward Incident needs to be

reported up through the Governance structure, up to the Board, because this is

something that happened within the organisation that actually could lead to sort of

negligence cases and things like that. So, it’s where there’s been severe harm, and it’s

about finding out what’s happened in that case.

…

“Q. In the context of an unexplained baby death, what would your expectations be

regarding the requirement for an SUI or indeed not having one?

“A. In an unexpected baby death, I would expect there to be an SUI investigation

without question, because this was a sudden death of a service user, a sudden

unexplained death of a service user.”

By the time you carried out your review of Baby B’s case on 9 September 2012, you

were aware (and recorded on the form) that the baby had died on 7 September 2012.

The model matrix classification of “Incident leading to death”, was, “5 Catastrophic”.

Despite this clear guidance, you failed on 9 September 2012 to revise the severity of the

incident upwards from “4 Major” to “5 Catastrophic”.

You also failed, as a result of your review, to record on the form that the CTG had been

classified as “suspicious” long before 12.25, when an Obstetrician was eventually

called. Your references on the form to “1225, CTG now suspicious, OBs called to

attend” gave the misleading impression not only that the CTG had only become

suspicious at that late stage, but also that an Obstetrician had been called promptly

once the CTG had become suspicious.

There is no doubt that your review of Baby B’s notes and the CTG should have led you

to conclude that the CTG had repeatedly been suspicious from 08.50 onwards. During

cross-examination by Ms Higgins, you accepted that the CTG had been suspicious for

at least 50% of the time between 08.50 and 12.25 as a result of an abnormally low fetal

heart rate.

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Furthermore, it is clear from the handwritten note summarising Baby B’s notes which

you made at the time that you did in fact then realise that the CTG was suspicious, as

you noted, “08.50 – CTG – suspicious”. Despite the fact that you made this handwritten

note, you failed to mention this highly material fact in your analysis in the incident details

form. Your handwritten note is a reference to a note on a “Dr Bravado” sticker written in

retrospect between 09.50 – 09.55 recording Midwife E’s interpretation of the CTG at

08.50. The abnormally low fetal heart rate is recorded as a non-reassuring feature and

the box headed “Suspicious CTG” has been ticked.

You also failed to record in the incident details report that, despite the fact that the CTG

was suspicious at 08.50, Midwife E had discontinued the CTG at 09.20. Midwife E

recorded in the notes, “09.20 CTG discontinued low baseline of 100 – 110, but all other

features reassuring”. As you accepted in your evidence, the definition of a suspicious

CTG in the HSSD Guidelines for Fetal Monitoring was, “A CTG where one feature

classified as non-reassuring and the remainder features classified as reassuring.”

As you accepted during cross-examination by Ms Higgins, the CTG should never have

been discontinued at that stage. The NICE Guidelines clearly advised that intermittent

fetal heart monitoring by CTG should be changed to continuous monitoring once

abnormal fetal heart rate (less than 110 beats per minute) had been detected.

Despite this, you failed to note in the incident details report that the CTG had been

discontinued, and only recommenced and used intermittently, when it should have been

used continuously from 08.50 onwards.

The panel did not accept your contention that you had addressed the issues arising

from Baby B’s CTG by meeting with Midwife E and providing supervision and support in

her reflection and retraining. On your behalf, Mr Elton relied on the oral evidence of Ms

5 on 9 February 2017 when she stated in answer to his question:

“Q: Just in relation to Baby B, the inadequacies in the midwifery care in relation to Baby

B: they could appropriately be dealt with through supervision, is that right?

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A: Yes, they could.”

However, that answer must be put in the context of the questions and answers which

followed:

“Q: If they were to be addressed through supervision does that mean it wouldn’t be

necessary to record that in an incident details form on the Safeguard system?

“A: The incident form should acknowledge any supervision investigation that’s been

undertaken any actions that arose. So, I would expect the incident form to be updated

with relevant supervisory (Inaudible).

“Q: When it comes to the obstetrics and gynaecology clinical risk management

meetings, they were separate to the supervision process, weren’t they?

“A: Yes, although a supervisory midwife sat on the clinical governance committee

meetings.

“Q: If the midwife involved in the Baby B incident was (Inaudible) inadequacies being

identified (Inaudible) addressed through supervision, would it have been necessary to

raise that in the course of the obstetrics and gynaecology clinical risk management

meeting?

“A: Without going into any specifics regarding the individual midwife, there should be an

acknowledgement or understanding by the committee that there are midwifery practice

issues and that they are being dealt with through supervision.”

Moreover, the panel was satisfied that the purpose of an SUI investigation was far more

wide-ranging than merely to identify and address deficiencies in Midwife E’s practice.

The purpose extended to investigating whether there had been systemic failings, and if

so, to ensuring that the maternity department as a whole learned the lessons required.

Your case that you would have expected the Paediatric Department, rather than the

maternity department, to have initiated a SUI investigation was also rejected by the

panel. When you reviewed Baby B’s case on 9 September 2012, you had evidence in

the form of the notes and the CTG which on their face revealed deficiencies in the

midwifery care provided. Your concluding words in the incident details report were, as

already noted, “There are no obvious explanations for the babys conditon [sic] from the

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AN [antenatal] care, labour and delivery.” This was self-evidently an inadequate

conclusion. If it appeared to you that there were no obvious explanations from the

antenatal care, it should have been abundantly clear that further investigation was

required to ascertain whether there were such explanations.

The panel therefore concluded that you failed to identify in the incident details report the

evidence of inadequate standards of midwifery care which were, or should have been,

apparent to you from Baby B’s notes and the CTG record. The panel had no doubt that

the incident details form should have been the catalyst for a SUI investigation, but your

failure to complete it appropriately pointed to the opposite outcome. Accordingly, charge 1.1 is proved.

Charge 1.2

1.2 At a meeting in October 2012 of the Obstetric and Gynaecology Clinical

Risk Management Committee did not identify and/or cause to be

investigated, the inadequate standard of midwifery care delivered to Baby

B on 1 September 2012.

PROVED In considering this charge, the panel had sight of the Minutes of the Obstetric and

Gynaecology Clinical Risk Management Committee meeting held on 15 October 2012.

During the meeting, you reported to the committee in the following terms:

“[Baby B’s case reference] – Apgar score ˂6 @ 5 minutes – LG has done a full

review of this case and has also asked [one of the Consultant Obstetricians who is

listed as attending the meeting] to review it from an Obstetric point of view. LG said that

the case was managed well and there were no issues with the antenatal care. She has

also reported the case to MBRACE. The case was also discussed at the recent

Perinatal Meeting. LG has requested a copy of the post mortem from CC, FH [a

Consultant Obstetrician involved in Baby B’s delivery, also listed as attending the

meeting] said that post mortem had not revealed any abnormalities but they are

awaiting endocrine results.”

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The job description for the Risk Management Midwife also included the following:

“They will be responsible for holding regular risk management meetings ensuring all

appropriate personnel attend and for raising the profile of clinical risk management,

within an open and fair culture. They will provide feedback to staff from incidents,

ensuring that any lessons learnt are disseminated appropriately.”

It is clear from the above that you failed to inform the meeting that, in the course of your

“full review” of the case, you had identified the fact that the CTG trace had been

suspicious at 08.50, yet the case had not been escalated by Midwife E until 12.40. Nor

did you inform the meeting of the further concerns relating to the CTG, including the fact

that it was discontinued in breach of the NICE Guidelines at 09.20 and that when

intermittently reinstated it was repeatedly suspicious in the intervening period.

It is submitted on your behalf that at the date of this meeting Baby B’s case was plainly

being investigated. You had referred it to an Obstetrician for a review from the obstetric

point of view, you had reported the case to MBRACE, (Mothers and Babies Reducing

Risk Through Audits and Confidential Enquiries across the UK) you were chasing the

post mortem, which an Obstetrician had considered, and the endocrine results were still

outstanding. Accordingly, Mr Elton has submitted that, “In the absence of having all the

information available to her, it may again have been considered premature for [you] to

have provided an in-depth critique of the midwifery care here”.

The panel did not accept this submission. The involvement of others in the case, and

the other ongoing matters to which you referred at the meeting, did not absolve you of

your duty to identify the concerns with midwifery care of which you were, or should have

been, aware as a result of your review of Baby B’s notes and the CTG. Those notes and

the CTG were in themselves sufficient to enable Ms 5 at her subsequent review in June

2014 to identify a list of ten concerns, which included concerns relating to the CTG and

Midwife E’s failure to react appropriately to the CTG. It is not alleged in the charge, nor

is it suggested, that you were then under a duty to provide an “in-depth critique” of the

case at that stage. Your duty was to acquaint those attending the meeting in broad

terms with the fact that there were clearly concerns arising from the records you had

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reviewed as to the standard of midwifery care provided. Your assurance at the meeting

that, having “done a full review”, the case “was managed well and there were no issues

with the antenatal care” was the opposite of the reality of the case and could only have

misled those attending into forming a reassuring but misleading impression.

The panel considered that it was your responsibility as the Risk Management Midwife to

ensure that the clinical risk committee was informed of the inadequate standards of

midwifery care which you had, or should have, identified from your review of the case

and to make those attending aware that the midwifery care required further

investigation, so as to enable the inadequate standard of midwifery care delivered to

Baby B on 1 September 2012 to be identified. Accordingly, charge 1.2 is proved.

Charge 2

2 In respect of the investigation/ risk management following the death of Baby A on

30 January 2014:

2.1 In a conversation with Helen Pearce on 31 January 2014, did not correctly

identify inadequate midwifery care, in that you did not state that there were

concerns with the:


2.1.2 Management of the cardiotocograph (“CTG”) trace

PROVED BY ADMISSION

2.2 In a LSA supervisory investigation decision tool completed by you on 31

January 2014, did not identify inadequate midwifery practice in respect of

the:



PROVED BY ADMISSION

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2.3 At a meeting of the Obstetrics and Gynaecology Clinical Governance

Committee on 24 February 2014, did not identify and/or raise concerns

about the inadequate standard of midwifery care delivered to Baby A on

29 and/or 30 January 2014

PROVED BY ADMISSION 2.4 Between 30 January 2014 and 1 May 2014, did not raise the following

concerns regarding midwifery care delivered to Baby A:



PROVED BY ADMISSION

Charge 3

8. In relation to Baby A and/or Baby B, your consideration of/investigation into an

unexpected death was inadequate.

PROVED BY ADMISSION (in part in relation to Baby A) PROVED (in part in relation to Baby B)

At the outset of this hearing you made admission to the first part of this charge in

relation to Baby A.

In determining the remainder of the charge so far as it relates to Baby B, the panel

considered that the charge relates to your role as the Risk Management Midwife, which

was a corporate role and included amongst other things, considering adverse incidents

and completing assessments as to whether investigations were required. Your

responsibilities in this role as set out in your job description have already been

considered by the panel in its reasons under charge 1.1 and 1.2.

The panel considered that this charge also relates to your role as a SoM, a role that

required you to identify, investigate and report where appropriate to the Local

Supervising Authority for Midwives (“the LSA”) Midwifery Officer (“LSAMO”) inadequate

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standards in the midwifery practices of midwives supervised by you as their SoM. The

duties of a SoM are unequivocally set out in the NMC Midwives Rules and Standards

which were operational at the time of the events. Further they were summarised in the

oral evidence of Ms 1.

Mr Elton on your behalf submitted that the absence of an SUI did not “connote” a failure

on your part and that you consulted with Ms 15, the Patient Safety Advisor. Mr Elton

further submitted that the case received ongoing attention from the multidisciplinary

team. He submitted that the LSAMO in post at the time was informed of Baby B’s case.

He submitted that you did not at the time of Baby B’s case have available to you the

Toolkit which you completed in the case of Baby A, a Toolkit which was designed to

indicate whether concerns relating to a midwife’s practice merited referral to the LSA or

whether, on the other hand, the concerns could be addressed locally. He further

submitted that the accepted practice at the time of Baby B’s case was that the

Guernsey SoMs would not be the ones to complete the Toolkits. Mr Elton submitted

that from a practice point of view, Midwife E’s shortcomings were capable of being

addressed through supervision.

Ms Higgins submitted that the unexpected death of Baby B should have been the

subject of an SUI, as set out in the HSSD policy for the Management of Serious

Incident, in which it is highlighted that the National Framework for reporting and learning

for serious incident requiring investigated defined an unexpected death as a serious

incident. Miss Higgins submitted it was your responsibility to identify and grade clinical

incidents and highlight inadequate care in order to provide correct information to Ms 15,

the Patient Safety Advisor.

In considering charge this charge, the panel took into account the unequivocal evidence

of Ms 11 in her report of 2 February 2014 that, following the death of Baby B, the

investigations which followed in 2012 were inadequate:

“One of the major un-addressed observations of the Investigating Team prior to the

investigation however was the fact that local governance structures and processes had

not flagged this death as a SUI requiring further investigation back in 2012. The

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investigating Team felt that it was unlikely that this SUI would have ever been

investigated but for the LSA’s intervention and review of local services in 2014.”

…

“Despite the obvious progress made in these areas, the Investigating team felt this SUI

still demanded investigation to a high level to identify any shortcomings in the care

provided by individual clinicians, identify any ongoing organisational and system

shortcomings, demonstrate that the organisation is capable of investigating such

concerns to a satisfactory level, and, not least, to satisfy the very real needs of the

parents to understand the circumstances surrounding the death of their baby and for

them to be satisfied that the death has been thoroughly investigated and lessons related

to any shortcomings in care learned.”

The panel accepted Ms 11’s evidence.

The panel was satisfied that, both in your roles as the Risk Management Midwife and

the SoM responsible for supervising Midwife E, you were under a duty to ensure that

your consideration of, and investigation into, the unexpected death of Baby B were

adequate.

The panel also took into account the criticisms in Ms 11’s report of your review of Baby

B’s case which led to the conclusion expressed by you in the incident details report

which you completed at the time:

In Ms 11’s report it is stated:

“Concerns Identified: The 2012 review of this case was insufficiently thorough and

lacked structure, depth, reflection, conclusions and actions

i) “Whilst this may ultimately have been the correct conclusion, the 2014

Investigation Team does not consider that the depth and duration of this

review was sufficient given the unexpected nature of Baby [B] need for

resuscitation afterbirth and his known death (at the time of making the entry

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and that the conclusions should more appropriately have been that further

investigation and assessment was required [sic].

m) … “Despite the fact that this was an unexplained and unexpected

Neonatal Death, no consideration was given regarding the need for a more

detailed investigation”.

n) “The only clinician in attendance at the CRM (O&G) Meeting who had

been involved in the case was the Obstetrician Dr. FH. The minutes record

an extremely brief discussion about the case under the heading Incident

Reports for September and stated that “LG has done a full review” (not

factually correct) and “also asked (Obstetrician) CN to review it from an

Obstetric point of view” (no record of this ever being done). This meeting

alluded to the fact that the final PM report was still awaited but no

recommendations or actions were made or recorded and there was no plan to

follow it up in any way”.

The panel accepted that the concerns expressed by Ms 11 in her evidence were well-

founded.

The panel also took into account the LSA Supervisory Investigation Report into Midwife

E completed by Ms 8 dated 29 January 2015, in particular the summary of

recommendations to the LSA as follows:

“Summary

“Due to poor systems of supervision and risk management in Guernsey this case has

taken two years to be investigated, which is poor practice. Midwife E has been

practising as a midwife during these two years and there have been no concerns raised

regarding her practice.

“In order to make an appropriate recommendation it was considered crucial to review

the standard of Midwife E‘s current practice. Supervisor of Midwives Heath conducted

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an audit of three sets of notes of women for whom Midwife E has provided care in

labour.”

The panel found that the investigation you conducted in your role as SoM and as Risk

Management Midwife was superficial.

As a SoM you should have made recommendations for a proper investigation to be

undertaken by a colleague. The fact that the specific tool kit which you used on Baby

was not yet available should not have prevented you in initiating a proper investigation.

At this stage, you had been a SoM since 1998 and were in consequence experienced.

Further, as the Risk Management Midwife, you provided inadequate information in the

incident report form regarding the unexpected death of Baby B as the panel found under

charges 1.1 and 1.2.

The panel had particular regard to the Maternity Clinical Risk Management Strategy

model matrix and noted that when you reviewed the incident form on 9 September

2012, you were aware that Baby B had died on 7 September 2012. Yet although you

updated the form on 9 September 2012 you did not amend the category of seriousness

which remained “Major”. Having regard to the model matrix scores, the panel had no

doubt that the category should have been upgraded to category 5 “Catastrophic” as per

the Maternity Clinical Risk Management Strategy as this categorisation would have

reflected the true severity of the incident and led to an SUI investigation.

The panel determined that you failed to appreciate the seriousness of Midwife E’s

deficiencies which is supported by the eventual requirement of an LSA investigation.

You did not share any of the lessons to be learned, or escalate any concerns to the

management structure. Further, you should have carried out an in-depth interview with

Midwife E and the results of that meeting should have been, at the very least, discussed

with another SoM or the LSAMO. The mere reporting of Baby B’s death to the LSAMO

in itself was inadequate without further investigation.

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The inadequacies of the midwifery care should have been referred to Ms 15, the Patient

Safety Advisor. Your case is that you did inform Ms 15. However, there is no evidence

before the panel that you mentioned anything more to Ms 15 than you did to the

attendant members at the risk management committee on 15 October 2012.

The panel concluded on the evidence before it that you were not managing risk

adequately and that your consideration of/investigation into the unexpected death of

Baby B was inadequate. Accordingly, charge 3 is proved in relation to Baby B. Charge 4




4.1 Conduct of the administration of Syntocinon

NO CASE TO ANSWER 4.2 Management of the CTG trace

PROVED

The panel has already found as a fact that your consideration of and investigation into

the unexpected death of Baby B was inadequate.

The issue raised by charge 4.2. is whether that failure led to a missed opportunity to

remedy deficiencies in care and/or inappropriate working practices on the ward in

particular in relation to management by midwives of the CTG trace.

The panel noted that, while the charge is expressed as “not limited” to management of

the CTG trace, Ms Higgins in her submissions focused on this aspect and did not

contend that there was sufficient evidence to justify extending the ambit of this charge to

other aspects of midwifery practice. The panel agreed that this was the case.

Ms Higgins submitted that one of the features of Baby B’s case was a failure by the

midwife involved to escalate a suspicious CTG to a Consultant Obstetrician. She further

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submitted that there is an abundance of evidence of the existence of a culture within the

ward not to escalate suspicious CTGs to consultants. Baby B’s case, because it was not

properly considered or investigated, represented a missed opportunity to identify and

remedy this unsafe culture.

Mr Elton on your behalf submitted that this charge is cast too widely to be capable of

proof. It is a step too far to suggest that if you had reacted differently to the Baby B

incident the inadequate practice in the Baby A incident in January 2014 would not have

occurred. Mr Elton submitted that there was evidence of training in the management of

CTG trace provided to midwives. You were not the manager responsible for training,

and had no reason to believe that the provisions in place for such training were other

than adequate. Furthermore, you did take steps to improve practice in this area

following Baby B’s case, by ensuring that a CTG machine was kept in theatre (Baby B’s

CTG had been discontinued in theatre because there was no machine available) and by

introducing the SBAR (Situation Background Actions and Recommendations) sticker in

2013, which is designed to promote communication between midwives and “fresh eyes”

reviews of CTG traces. Mr Elton further submitted that there were a number of other

individuals involved in considering the Baby B incident, and it would be wrong to single

you out as the individual responsible for any missed opportunity.

In approaching the wording of the charge “a missed opportunity”. The panel gave these

English words their normal and everyday meaning.

The panel had regard to your job description and to your role in promoting the

objectives set out in the Maternity Clinical Risk Management Strategy, as already

referred to in its reasons under charges 1.1 and 1.2. The panel also noted that your job

description included the following:

“The Risk Management Midwife will identify trends through the incident reporting

system, analyse these and inform the multidisciplinary team of the outcomes.

…

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“They will liaise with the multi-disciplinary team to develop and promote midwifery

practice and liaise regularly with the HSSD clinical risk manager, ensuring midwifery risk

management works in conjunction with HSSD policies and procedures.”

The panel examined the evidence relied on by the NMC in support of the submission

that in the period of years following the Baby B incident prior to the full investigation of

the Baby A incident in 2014 there existed a culture among the midwives on the ward of

failing to escalate suspicious CTGs to the consultants.

The panel considered the responses given by Midwife C in her interview with Ms 14 on

10 June 2014:

“KP: So in your normal practice moving away from this situation what would you

normally do if you’ve got a suspicious CTG

“AM: I will inform the co-ordinator and now will?????

“KP: But at that stage is it common, does everybody just inform the co-ordinator

“AM: The protocol say that we need to inform the co-coordinator and she needs to call

the consultant because she knows what’s happening on the ward so will want to many

calls so the consultant will do the 1 call and inform him for all the cases and what

happening on the ward.”

The panel noted that the responses given by Midwife C in her interview with Kathy

Palmer were consistent with the frank admissions made by her in the course of her oral

evidence at this hearing.

The panel also had regard to the interview of Midwife B with Ms 14 on 10 June 2014 in

which she stated:

“TR: It’s about suspicious CTG calling obstetrician but we don’t call obstetrician for first

or second suspicious CTG not unless it’s getting severe CTG because they won’t do

anything.”

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The panel had particular regard to the report of Ms 7 and Ms 11 dated 14 August 2014,

in which the following information obtained from Midwife B and Midwife C is detailed

regarding the culture and working practices within the maternity unit:

“Culture and Working Practices within the Maternity Unit: “Midwife B reported in interview that there was a culture of midwives not calling

obstetricians in at night and midwives taking on more responsibility because of this.

She reports that if the obstetricians feel they have been called out unnecessarily then

they will complain to HK [Head of Midwifery] about it. HK refutes this, saying in the past

there was one obstetrician who did make it difficult for midwives to contact him, but he

has retired now and she has not had any concerns expressed to her in the past two

years. Midwife C states in interview it is not as easy to call a doctor in from home as it

is when they are based in the hospital. Midwife B was obviously influenced by the fact

the midwives have to call a doctor from home, hence commencing the syntocinon

without prescription.”

The panel also considered the statement of Ms 1, in which she stated the following

“Management of CTG Analysis of the records audited demonstrated concerns not only in respect of the

accuracy with which CTG traces were being interpreted by the midwives, but also the

extent of an appropriate response on their part. In a continuation of the overall culture

in which there appeared to be discouragement for midwives to seek advice from

consultant obstetricians, there were examples within the records audited of situations

when an adverse CTG trace was obtained but, contrary to both HSSD policy and NICE

guidelines, escalation to a consultant obstetrician was not taking place.

…

“Staff in general reported a culture in which they did not feel able to raise concerns or

criticise systems. The perception was that it was an authoritarian culture, dominated by

management and the working practices of the consultant obstetricians. Staff advised us

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during the course of the audit process that they did not feel empowered or valued and

did not trust either managers or their SoMs.”

The panel noted that the information obtained from staff by Ms 1 was supported by Ms 6

who stated:

“…Where there were concerns about a trace it was evident that the normal practice

was for midwives to escalate these to the coordinator, another midwife, rather than a

consultant obstetrician…”

The panel also took into account the fact that a failure or reluctance to escalate

suspicious CTGs to consultants was a factor which featured in the cases of Patient C on

29 November 2013, Baby A in January 2014 and Patient B on 12 March 2014.

In conclusion, on the balance of probabilities, the panel accepted that there was

existence of a culture within the ward not to escalate suspicious CTGs to consultants.

The panel had regard to your evidence in which you referred to the in-house CTG

training provided to midwives.

However, the panel referred to the evidence of Ms 6 who indicated in her evidence:

“…During the course of the investigations it was apparent that CTG training had often

been cancelled and that there was a paucity of organised CTG training…”

The panel accepted that you were not the manager directly responsible for training.

However, in your role as the Risk Management Midwife it was incumbent on you to

identify from your consideration of and investigation into incidents deficiencies, in

midwifery practice and to liaise with others to ensure that the necessary lessons were

learned. The panel has not been referred to any evidence that such CTG training as

may have been provided was specifically designed to designed to remedy the culture of

midwives failing to refer suspicious CTGs to consultants. The absence of such evidence

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is unsurprising in view of the fact that you had not identified this culture and informed

those responsible for providing training of the need for such training.

The panel also accepted that, while your actions in ensuring that a CTG machine was

available in theatre and introducing SBAR stickers were improvements in practice,

these steps did not specifically address the underlying problem of the unsafe culture, a

problem which you had failed to identify.

With regard to the culpability of others, the panel did not consider that any such

culpability could provide an adequate excuse for your failure to discharge your

responsibilities as the Risk Management Midwife, a role which the panel has found was

of pivotal importance.

The panel considered Mr Elton’s submission that it is a step too far to suggest that if you

had reacted differently to the Baby B incident the inadequate practice in the Baby A

incident in January 2014 would not have occurred. However, this is not what is alleged

in the charge. The allegation is that Baby B’s case, had it been considered and

investigated properly, would have presented you with the opportunity to remedy a poor

practice which was widespread on the ward.

The panel concluded that your inadequate consideration of and/or investigation into the

unexpected death of Baby B led to a missed opportunity to remedy deficiencies in care

and/or inappropriate working practices on the Ward in relation to the management of the

CTG trace. Accordingly, charge 4.2 is proved. Charge 5


and/or did not have an adequate system of risk management in place to adequately

identify, that concerns in midwifery practice were present in the care delivered to

one or more of the women in Schedule A.

PROVED

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Schedule A

Patient B

Patient C

Patient D

Patient E

Patient F

Patient G

[Patient H – no case to answer in respect of this Patient,

whose birth post-dated your employment with the Trust]

Patient J

Patient K

Patient L

Patient M

Patient N

Patient Q

Patient R

The Patients set out in Schedule A were identified during the course of the various

investigations which took place as a result of the case of Baby A.

On 2 June 2014 Ms 14, on the instruction of Ms 1 attended the Ward and undertook an

audit of 10 sets of patient records. The purpose of the review was to specifically focus

on the administration of syntocinon. The findings of the review of these records were

that 8 out of the 10 women audited were provided with sub optimal midwifery care.

These 8 patients were Patients B,F,G,J,K,L,M and N.

In August 2014, the LSA conducted further audits of Patient records, which identified 8

cases of inadequate midwifery care, 3 of which (Patients G, B and F) had been

identified in Ms 14 audit. A further 5 patients were added, Patients C, D, Q, E and R.

You told the panel that you were unable to respond in any detail in respect of any of

these individual cases, as you were unable to say whether they had been reported to

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you or whether you had reviewed them, as none of them “rang any bells”. You told the

panel that you had done what could reasonably be expected of you to have such a

system in place, including totally “revamping” the monthly Risk Management meetings.

You emphasised that you were only allocated 7.5 hours a week in your role as the Risk

Management Midwife.

Ms Higgins submitted that your failure as the Risk Management Midwife to identify any

of these cases of concern is evidence from which it can be inferred, on the balance of

probabilities, that you had no adequate system in place for managing risk to midwifery

patients.

Mr Elton, in his extensive written submissions in respect of this charge, submitted in

essence that there was no evidence to show, on the balance of probabilities, that any of

these cases were reported to you, or that you knew, or ought to have known, of any of

them. He underlined the limited number of hours per week allocated to you for

discharging your responsibilities as the Risk Management Midwife. He pointed out that

the charge refers to an “adequate” system, and emphasised that this does not connote

a standard of perfection.

In addition to the extracts from the job description of Risk Management Midwife already

quoted, the panel noted the following:

“They will work closely with the Head of Midwifery, ensuring a systematic risk

management Strategy is in place, which aims to improve patient safety and reduce

adverse outcomes…”

The concerns identified in 8 out of 10 cases reviewed in the first audit all related to the

administering of Syntocinon. Patients F, G, L, M and N all received Syntocinon in the

second stage of labour without being reviewed by a consultant. Patients F, G, L and N

had no prescription but there was a verbal order while Patient M had a prescription for

induction not augmentation at second stage and no verbal order. Patients J, K and B all

received Syntocinon in first stage without being reviewed by a consultant. Although not

as great a risk as Syntocinon in second stage the lack of review by a consultant was a

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cause for concern and NICE Guidelines Patient J had no prescription for the Syntocinon

but there was a verbal order, Patient K had no prescription but there was a verbal order

and Patient B had a prescription for induction not augmentation and there was no verbal

order.

With regard to the concerns identified in the further cases identified in the LSA’s August

2014 audits, you accepted in your evidence that SoM investigations are initiated when

there is concern as to the standard of care given to patients. This supports the evidence

of Ms 1 that audit of those cases raised such a concern.

The panel took into account the fact that, by your own admission, you were aware that

midwives were accepting verbal orders for Syntocinon in the first stage of labour, and

that this was unacceptable practice. Given that this was within your knowledge, your

duty as the Risk Management Midwife to have an adequate system in place for

identifying such cases should have been clear to you.

Further, as you accepted in your evidence, verbal orders for Syntocinon in the second

stage of labour was in clear breach of both HSSD policy and the NICE guidelines

without a review by a Consultant.

There is no evidence that you had in place any system, let alone an adequate one, for

random auditing of patient’s records. The only evidence of auditing was in your role as a

SoM and limited to the 5 midwives under your personal supervision.

The panel note your assertion that you had a limited amount of time in your role as a

risk management midwife. However, given how widespread the unacceptable use of

Syntocinon was on the ward the panel consider even a very random audit carried out by

you would have identified the appropriate concerns.

Given the prevalence of cases that were found in the audits to have raised concerns,

including the scale of 8 out of the 10 cases relating to the administration of Syntocinon,

the panel was satisfied that it is more likely than not that, had you had such a system in

place, you would have detected at least one, and probably more, of these cases.

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The panel had regard to the statement of Ms 1 in which she stated:

“Of additional concern to me were the findings made as part of the LSA audits that had

taken place. As previously described, the audit noted the records considered

demonstrated serious concerns about midwifery practice which had not been previously

raised through the supervision process at the Hospital. Midwife A admitted that she had

not raised issues concerning verbal orders and had not been proactive in challenging

midwifery practice that appeared to be in place at the behest of the medical staff. This

was of concern and called into question the quality and accuracy of Midwife A’s

previous assessments made of records. “Whilst Midwife A stated that she had a

systematic approach to review records, the LSA review of the records in August 2014

provided evidence that the safety of midwifery practice had not been accurately

identified. The failure on Midwife A’s part to identify poor midwifery practice and unsafe

midwifery systems and midwives acting outside the scope of their practice meant that

the public were not adequately protected for unsafe care.”

The panel agreed with this analysis.

Having regard to all of the above, the panel was satisfied on the balance of probabilities

that you did not have an adequate system of risk management in place to adequately

identify that concerns in midwifery practice were present in the care delivered to one or

more of the women in Schedule A. Accordingly, charge 5 is proved.

Charge 6

7. As amended) Failed to ensure the completion of a Local Supervisory

Investigations in relation to one or more of the registrants in Schedule B: PROVED

Schedule B

Midwife A

Midwife B

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Midwife C

Midwife D

Midwife E

Midwife F

Midwife G

Midwife H

Midwife I

Midwife J

Midwife K

Midwife L

Midwife M

Midwife N

Midwife O

Midwife P

[Midwife Q]

[Midwife R] The panel found no case to answer in respect of Midwives Q and R

All of the midwives within Schedule B are midwives that were involved in the care

provided to Patients G, B, C, D, Q, E, R and F of Schedule A.

Following Ms 1’s audit, the LSA deemed it necessary for a team of SoMs to conduct

Local Supervisory Investigations into the practices of all the midwives in Schedule B

in order to provide effective supervision and ensure safe practice.

In your evidence, you told the panel that you were unable to respond in any detail to

the individual cases in Schedule B, as you were never interviewed in respect of any

of them, nor had you any recollection of any of the incidents coming to your attention

at the time.

You pointed out, and the panel accepted, that your role as a SoM supervising

midwives was separate to your role as the Risk Management Midwife. However, the

panel considered that it would be artificial to ignore the fact that concerns in a

midwife’s practice of which you were, or ought to have been, aware as a result of

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discharging your responsibilities as the Risk Management Midwife might also

(depending on their character) raise issues calling for your attention as a SoM.

Accordingly, your failure to identify concerns in the care delivered to one or more of

the patients in Schedule A to charge 5 was likely to be relevant to the issue of

whether you should have completed Local Supervisory Investigations into one or

more of the midwives who had delivered that care as listed in Schedule B.

In considering your role as a SoM, the panel had regard to the criteria applied by Ms

1 in the course of her assessment of your competence to fulfil this role:

“I assessed Midwife A’s competence as an SoM against the LSAMO Forum UK

policy for statutory supervision titled “Review of the ability of a Supervisor of

Midwives to undertake the role”. Within this policy, the following specific elements of

the SoM role emerged as potential examples of where a SoM may not be

demonstrating competence within the role;

• Undertake an investigation of suspected poor practice

• Met the LSA standards for supervision

• Provide adequate support for midwives

• Meet Rule 8 of the Midwives Rules and Standards

• Meet the NMC standards for the standards for the preparation and

practice of the

Supervisor of Midwives NMC (2006)

“Such guidance is readily available to all SoMs upon the LSAMO Forum UK website

and as a SoM, it is information that it is reasonable to expect Midwife A to be fully

aware of.”

At one point, you appeared to suggest that any failure on your part to undertake

supervisory investigations was justifiable in view of your duty of confidentiality to your

supervisees. However, in cross-examination you readily, and very properly in the

panel’s judgment, accepted that your duty as a SoM to protect patient safety

overrode any concerns as to confidentiality.

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In your evidence, you also submitted that one of the reasons why Ms 1 highlighted 8

cases requiring Local Supervisory Investigations was because she was using the

LSA’s Supervisory Investigation Decision Tool. However, it is clear that you were

instructed in the use of this tool in November 2013. In view of the fact that the

concerns in 6 out of these 8 cases post-dated November 2013, the panel found little,

if any, merit in this submission. In reaching this conclusion, the panel had regard to

the evidence of Ms 1:

“In respect of Midwife A’s conduct, I noted that she had attended the LSA’s

masterclass of investigation in November 2013, was an experienced SoM, and as the

maternity risk manager at the Hospital, had consistent experience of reviewing

patient records and assessing standards of midwifery care.”

The panel also had regard to the notes of the meeting between you and Ms 1 on

17June 2014:

“HP: How do you usually involve supervisors in the review of serious incidents?

“LG: I suppose it depends what it is I suppose the….we haven’t had an SUI for quite

a long time….we’ve had investigations…supervisory investigations but we haven’t

had SUI an SUI for quite a while but I suppose before midwifery if we had an SUI

then we would maybe call an extra meeting extraordinary meeting with midwifery

managers, supervisors, obstetricians and paediatricians if you know required and

we’d sit down as a group and discuss it.

“HP: And why didn’t that happen?

“LG: Well you know the process has changed now we used to investigate our own

incidents but now it’s in line with supervision as well we don’t investigate our own

areas

“HP: Okay so how did the supervisors get involved with reviewing serious incidents

now in the new process?

“LG: Well I don’t think they’re actually involved in the process but as supervisors you

know it was discussed at our supervisors’ meetings and certainly if there were any

midwifery issues as supervisors would all be involved in you know some stage either

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again because there’s only a few of us so there’s one that usually maybe leading it

then there’s one that supporting the midwife then may ethers one that’s putting

programme together…that’s happened in the past…we’ve all had to have our own

individual roles.

“HP: Was this discussed at supervisor meeting?

“LG: No.”

On your behalf, Mr Elton submitted that that there was no evidence to show that any

of the cases in Schedule B were brought to your attention at the time, or that you

ought reasonably to have been aware of them. In any event, Mr Elton submitted, any

duty on your part to identify any of the midwives concerned should not extend

beyond the supervisees, 5 in number, for whom you bore personal responsibility as

their SoM.

However, you accepted in your evidence that as a SoM you had an overarching

supervisory responsibility going beyond those whom you personally supervised. The

panel had no doubt that this was the case. Had unsafe practices on the part of any

of the midwives which called for LSA investigation come to your attention, whether in

your role as a SoM or as the Risk Management Midwife, it would be bizarre to

suggest that you would have been entitled to turn a blind eye to those unsafe

practices, merely because the midwife concerned was not one of your supervisees.

The panel noted that the 5 midwives for whom you were the SoM were Midwife C, E,

F, I and J. The panel concluded that, had you identified bad practice and applied the

LSA tool in respect of the midwifery care provided to one or more of Patients G, C

and F you would have come to the same conclusion as the LSA, namely that the

completion of LSA Supervisory Investigations was required to ensure safe practice.

In this regard, the panel also noted your assertion in your witness statement that you

did carry out random audits in respect the work of your supervisees. In the light of

your failure to detect any of the concerns identified by Ms 1, the panel could only

infer that some or all such audits must have been carried out without due diligence.

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The panel also concluded that, had you carried out random audits in respect of one

or more of the patients in Schedule A, you would have detected in the case of one or

more of the midwives responsible for delivering care to those patients the concerns

later identified by Helen Pearce.

The panel again had regard to the sheer scale of the number of midwives identified

in Schedule B as requiring Local Supervisory Investigations. As you accepted, this

was a small maternity unit, with an annual average equating to less than 2 births a

day.

In the light of these considerations, the panel was satisfied, on the balance of

probabilities that you failed to ensure the completion of a Local Supervisory

Investigations in relation to one or more of the registrants in Schedule B.

Accordingly, charge 6 is proved.

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Charge 7



where:

7.1 Verbal orders were inappropriately accepted by midwives to allow the

administration of medication to take place, notably syntocinon;

PROVED BY ADMISSION 7.2 Syntocinon was administered inappropriately, in particular, without a

consultant obstetrician review of the patient to directly instruct its use;

PROVED BY ADMISSION

7.3 Cardiotocograph (“CTG”) traces were:

7.3.1 Misinterpreted by midwives;

PROVED

Ms Higgins submitted that there is clear evidence that CTGs were being misinterpreted

by midwives and were not being escalated as appropriate. Ms Higgins referred to the

cases of Baby A, Baby B, Patient C and Patient B. She also referred to the findings of

Ms 1 and Ms 6 in their investigations and interviews.

Mr Elton made the following submissions first, that you were unaware of these concerns

but that the evidence shows that there were adequate systems in place for identifying

them. You would have expected these concerns to have been raised with you by one of

the other SoMs or by Band 7 Managers. CTGs would also be audited by self-

assessment, during investigations and by the multi-disciplinary team at various forums.

You had no reason to believe that the midwives were other than skilled and competent

in the interpretation of CTGs, particularly as relevant training was being provided, and

because of the introduction in 2007/8 of Dr C Bravado stickers and “fresh eyes”

assessments and the introduction of SBAR forms in 2013.

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Whilst the panel accepted that others had a role to play in drawing such concerns to

your attention, the panel did not accept that this consideration entitled you, in your

pivotal role as the Risk Management Midwife, to adopt an essentially passive role in

expecting others to bring concerns to your attention, when you should have been

personally pro-active in looking for and addressing such concerns.

The panel considered on the balance of probabilities that the cases of Baby A, Baby B

Patient C and Patient B provided the clearest possible examples of cases in which such

concerns had not been identified by you. All of these cases had serious outcomes.

Furthermore, the panel took into account the sheer scale of the number of concerns

identified in the review of Ms 1 and the interviews carried out by Ms 6.

The statement of Ms 1 dated 17 December 2015 includes the following:

“Analysis of the records audited demonstrated concerns not only in respect of the

accuracy with which CTG traces were being interpreted by the midwives, but also the

extent of an appropriate response on their part”.

That review identified no less than 53 cases which indicated a culture of inadequate

practice, which included mismanagements of CTG traces.

The panel also accepted the evidence of Ms 6:

4.5 Fetal Heart Monitoring

There were some concerns regarding the interpretation and classification of the

cardiotocographs CTG’s. Where there were concerns about a tracing, it was evident

that the normal practice was for midwives to escalate these to the coordinator rather

than an obstetrician. It is good practice for midwives to inform the co-ordinator of any

concerns and the coordinator may contact an Obstetrician, however all midwives should

be enabled to contact an Obstetrician directly should they have concerns about a CTG

tracing.

In the light of the submission in your defence that you would have expected one of the

other SoMs to have brought such concerns to your attention, the panel was satisfied

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that it must follow, by parity of reasoning, that you yourself should have identified such

concerns in your role as SoM.

On the evidence the panel was satisfied, on the balance of probabilities, that you should

have identified these concerns, as a result of random audits carried out by you and/or

otherwise, and that you should have duly addressed them.

The panel determined that in your role as Risk Management Midwife and as a SoM you

had a responsibility to directly oversee the care being provided on the ward, which was

central to both of your roles.

The panel concluded that you did not adequately identify or adequately raise concerns

about midwifery practice in relation to CTG’s being misinterpreted by midwives.

Accordingly, charge 7.3.1 is proved.

Charge 7.3.2

7.3.2 Not escalated, when found to be suspicious and/or pathological, to

a consultant obstetrician

PROVED

In determining this charge, the panel had regard to the evidence of Midwife C during her

interview with Ms 14 on 10 June 2014 and in which she states:

KP: So in your normal practice moving away from this situation what would you do

normally?

AM: I will inform the coordinator and now will

KP: But at that stage is it common, does everybody just inform the coordinator

AM: the protocol say that we need to inform the co-ordinator and she needs to call the

consultant because she knows what’s happening on the ward so will want to many calls

so the consultant she will do the 1 call and inform him for all cases and what happening

on the ward

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During Midwife B’s interview with Ms 14 on 10 June 2014, in answer to questions put to

her, she stated the following:

TR: It’s about suspicious CTG calling obstetrician but we don’t call obstetrician for first

or second suspicious CTG not unless it’s getting severe CTG because they wouldn’t do

anything.

In your role as Risk Management Midwife and SoM would have heavily involved the

scrutiny and review of relevant documentation, the panel was satisfied that you had a

duty to identify and raise concerns regarding midwifery practice. The evidence before

the panel demonstrated that you failed to discharge these duties and did not adequately

identity or adequately raise concerns regarding midwifery practice where CTG’s were

not escalated when found to be suspicious and/or pathological to a consultant

obstetrician.

The panel decided that this charge raised similar issues to those arising in Charge

7.3.1, and that similar reasoning led to the same conclusion.

The panel concluded that, as the Risk Management Midwife and SoM, you had an

overarching responsibility to review and scrutinise concerns identified about midwifery

practice, which you failed to do. Accordingly, charge 7.3.2 is proved.

Charge 7.4

7.4 Storage of maternity records was inadequate;

NO CASE TO ANSWER Charge 7.5

7.5 Midwifery guidance was not clear and/or was outdated;

PROVED

In determining this charge, the panel had regard to the Management Supervision Notes

dated 18 April 2012 which states:

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“Jacqui agreed post holder (Midwife A) would not have the capacity (7.5hrs) to fulfil the

entire job description, therefore would concentrate on processing the clinical incident

forms, arrange the RM meetings and lead on the process for updating clinical

guidelines”.

The panel had regard to your evidence in which you agreed that you were heavily

involved in the updating and management of guidelines. You accepted that guidelines

were a key responsibility and that your role included being maternity representative on

the HSSD clinical guidelines committee. You accepted that the N Drive was where

maternity guidelines were kept. You accepted during your oral evidence to this panel

that that guideline required updating every three years.

The panel had regard to the investigation of Ms 6 during which she noted that many of

the guidelines required updating and that some contained conflicting information.

“Guidelines were available on the intranet but it was noted that many of these were in

need of updating. There were also some guidelines that contained conflicting

information. The hypertension guideline had a lack of clarity which made it difficult to

identify the correct procedure expected of the midwives…The team were informed that

there were difficulties in getting agreement for guidelines and therefore they often took a

lengthy of time to become ratified…”

Having reviewed the guidelines, the panel noted that there were some that were out of

date and some that contained unclear guidance. Further, the panel noted your

submission that there were problems in getting guidelines approved by the relevant

committee and that, as a result of these difficulties, it was agreed that the maternity

department could ratify their own guidelines. In the panel’s view this was a clear

indication that there should not have been any issues with delay in having to rely on

other departments outside of maternity and that it was your responsibility as part of your

job description to ensure midwifery guidance was clear and not outdated which you

failed to do. Accordingly, charge 7.5 is proved.

Charge 7.6

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7.6 Use of Patient Group Directives was misunderstood and/or were not

appropriately authorised and/or ratified;

NOT PROVED

In determining this charge, the panel had regard to your job description and could not

see anywhere within it that you were responsible for Patient Group Directives.

On the basis of the evidence before it, the panel was not satisfied that the NMC had

established, on the balance of probabilities, that you had a duty to ensure that the

actions set out in charge 7.6 were undertaken. Accordingly, charge 7.6 is not proved.

Charge 7.7

7.7 There were incidents of the inappropriate use of aqua blisters and/or polar

massage in the absence of appropriate guidance and/or training and/or

ratification and/or evidence to justify use

NOT PROVED

In determining this charge, the panel noted there was no contemporaneous evidence

that practices in aqua blisters or polar massage were ongoing at the time when you took

up the post of Risk Management Midwife in 2010. The panel considered that it has

heard evidence that Midwife B practised aquablisters in the 1990’s when she first began

practising in Guernsey and that this technique was presented to Ms 4 as Head of

Midwifery at that time.

The panel was not satisfied that the NMC had adduced sufficient evidence in support of

this charge. Further, the panel considered that although the use of aqua blisters had

been practiced on one occasion in the 1990’s, this did not constitute current practice.

Accordingly, charge 7.7 is not proved. Submissions on misconduct and impairment:

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Having announced its findings on all the facts, the panel then moved onto consider

whether the facts found proved amounted to misconduct and, if so, whether your fitness

to practise is currently impaired.

The NMC has defined fitness to practise as a registrant’s suitability to remain on the

register unrestricted.

The panel was provided with a bundle of documents marked as exhibit 44. The panel

gave careful consideration to the additional documentary material.

Miss Higgins reminded the panel that there is no burden of proof at this stage and the

decision on misconduct is for the panel’s independent judgement. Miss Higgins referred

the panel to the case of Roylance v General Medical Council (no. 2) [2000] 1 AC 311

which defines misconduct as a word of general effect, involving some act or omission

which falls short of what would be proper in the circumstances. She reminded the panel

that, in order to constitute misconduct, any departure from proper standards must be

serious.

Miss Higgins invited the panel to take the view that your actions amounted to serious

breaches of The Code: Standards of conduct, performance and ethics for nurses and

midwives 2008 (“the Code”) and the Midwives Rules and Standards. She directed the

panel to specific paragraphs and identified where, in the NMC’s view, your actions

amounted to misconduct.

Miss Higgins submitted that your actions fell seriously short of what was proper. Miss

Higgins therefore submitted that your conduct in relation to the charges found proved,

collectively, amounts to serious and significant breaches of the standards expected of a

registered midwife, and therefore amounts to misconduct.

Miss Higgins then moved on to the issue of impairment, and invited the panel to

conclude that your fitness to practise is impaired. She referred the panel to the case of

Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2)

Grant [2011] EWHC 927 (Admin), particularly paragraph 76 of Mrs Justice Cox’s

judgement, wherein she endorsed the questions formulated by Dame Janet Smith in her

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Fifth Shipman Report. Miss Higgins submitted that limbs (a,b and c) in paragraph 76 of

Mrs Justice Cox’s judgement in the case of Grant are engaged in this case. Miss

Higgins invited the panel to consider your level of insight and remediation.

Mr Elton on your behalf provided the panel with written submissions and made further

oral submissions on the basis of that document.

Mr Elton submitted that you were not working in isolation and referred to the

Governance Team, other SoMs, other midwives and the medical specialist group. Mr

Elton further submitted that you had markedly reduced time for discharging your risk

management role, nevertheless she carried out some audits and introduced some

improvements including monitoring equipment for the theatre.

Mr Elton submitted that it was not fair to blame you to any great extent for the delay in

the SUI report for Baby A. As regards the lack of SUI report for Baby B, Mr Elton

suggested that this was not your decision in isolation, as the Patient Safety Advisor and

Head of Midwifery were also involved. In addition, Mr Elton submitted that it was not as

if that there was a wholesale failure by you to recognise that there was practice issues

requiring attention for Midwife E. Mr Elton informed the panel that you had previous

good character had demonstrated remorse and insight and your reflective essay was

well researched and considered.

The panel heard and accepted the advice of the legal assessor.

The panel adopted a two-stage process in its consideration, as advised. First, the panel

must determine whether the facts found proved amount to misconduct. Secondly, only if

the facts found proved amount to misconduct, the panel must decide whether, in all the

circumstances, your fitness to practise is currently impaired as a result of that

misconduct.

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Decision on misconduct:

When determining whether the facts found proved amount to misconduct the panel had

regard to the terms of The code: Standards of conduct, performance and ethics for

nurses and midwives 2008 (the Code).

The panel, in reaching its decision, had regard to the public interest and accepted that

there was no burden or standard of proof at this stage and exercised its own

independent professional judgement.

The panel was of the view that your actions did fall significantly short of the standards

expected of a registered midwife, and that her actions amounted to a breach of the

NMC Code. Specifically:

From the preamble

The people in your care must be able to trust you with their health and wellbeing

To justify that trust, you must:

• work with others to protect and promote the health and wellbeing of those in your

care...

• provide a high standard of practice and care at all times

• …uphold the reputation of your profession.

As a professional, you are personally accountable for actions and omissions in your

practice, and must always be able to justify your decisions.

Paragraph:

32. You must act without delay if you believe that you, a colleague or anyone else may

be putting someone at risk.

33. You must inform someone in authority if you experience problems that prevent you

working within this code or other nationally agreed standards.

61. You must uphold the reputation of your profession at all times.

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The panel appreciated that breaches of the Code do not automatically result in a finding

of misconduct. However, the panel was of the view that the charges found proved were,

individually and collectively, sufficiently serious to amount to misconduct.

The panel considered that you had a pivotal role whilst working at the Hospital, both as

Risk Management Midwife and as SoM. As a SoM you were a role model for other

midwives and as a Risk Management Midwife had unique access to the Head of

Midwifery and to Senior Staff at HSSD who had responsibilities for risk management.

With regards to Baby B, the panel considered that you failed to identify or cause to be

identified the inadequacies in midwifery practice. The information you provided to the

Clinical Risk Management Obstetrics and Gynaecology Committee meeting was

insufficient. Further, the result of that flawed consideration was that a Serious Untoward

Investigation was not initiated and no effective remediation was put in place for Midwife

E. The panel also considered that this was a missed opportunity for you to recognise,

acknowledge and confront an ingrained culture of midwifery failures in areas of

escalation.

With regards to Baby A, the panel considered that by your own admission conceded

that she failed to adequately investigate the care provided to Patient A and Baby A.

The panel considered that the charges faced by you demonstrate opportunities she had

to investigate and that she failed to do so.

In considering charges 5 and 6, the panel have found proved that you did not have any

adequate systems of risk management in place to identify concerns in midwifery

practice in relation to numerous patients.

The panel do not accept the assertion that you did not have sufficient time to carry out

the role as a Risk Management Midwife. Whilst the panel acknowledge that you had

7.5hours dedicated to this role the panel noted that the Head of Midwifery had directed

that you restrict your role as Risk Management Midwife on processing the incident

forms, arranging the risk management meetings and leading on the process for

updating clinical guidelines. The panel understood this against a background of the

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overall comparatively small size and activity of the Hospital maternity services with an

average of less than 650 deliveries per year.

The panel further considered that the instance of unacceptable Midwifery practice was

so wide spread at the Hospital that any adequate system of risk management would

have identified such unacceptable practices. Further, you failed to ensure the

completion of Local Supervisory Investigations in relation to numerous Midwives.

The panel determined that your failures and omissions were serious within the context

of your roles as Risk Management Midwife and SoM.

The panel determined that the charges found proved both individually and collectively

amounted to serious misconduct.

The panel therefore determined that your actions and omissions did fall seriously short

of the conduct and standards expected of a registered midwife and therefore amount to

misconduct.

Decision on impairment:

The panel next went on to decide if as a result of this misconduct your fitness to practise

is currently impaired.

The panel was mindful of the need to consider not only whether you continue to present

a risk to members of the public, but also whether the need to uphold and declare proper

professional standards, to maintain public confidence in the profession and the in NMC

as regulator would be undermined if a finding of impairment were not made in the

particular circumstances of your case.

In determining whether your fitness to practise is currently impaired the panel

considered the judgement of Mrs Justice Cox in the case of Grant. In paragraph 74, she

said;

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74. In determining whether a practitioner’s fitness to practise is impaired by

reason of misconduct, the relevant panel should generally consider not

only whether the practitioner continues to present a risk to members of the

public in his or her current role, but also whether the need to uphold

proper professional standards and public confidence in the profession

would be undermined if a finding of impairment were not made in the

particular circumstances.

Mrs Justice Cox went on to approve the following questions when considering current

impairment, in Paragraph 76:

“Do our findings of fact in respect of the doctor’s misconduct, deficient

professional performance, adverse health, conviction, caution or

determination show that his/her fitness to practise is impaired in the sense

that s/he:

a. has in the past acted and/or is liable in the future to act so as to put a

patient or patients at unwarranted risk of harm; and/or

b. has in the past brought and/or is liable in the future to bring the medical

profession into disrepute; and/or

c. has in the past breached and/or is liable in the future to breach one of the

fundamental tenets of the medical profession; and/or

d . …”.

The panel considered that your actions engaged limbs (a, b and c) in Grant. The panel

concluded that she has in the past acted so as to put patients at risk of potential harm.

The panel had regard to the fact that patients and the public place trust in the midwifery

profession, and that midwives are expected to act in a way which justifies that trust. It is

fundamental to maintaining that trust that midwives make it a priority to deliver the best

possible care to their patients. The panel considered that these were fundamental

tenets of the profession which you had breached. Further, the panel considered that

your actions were also of such a nature as to bring the profession into disrepute.

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As regards the risk of repetition and insight, the panel had regard to the approach to be

adopted as set out in the case of Cohen v GMC [2007] EWHC 645 (Admin), namely: -

Is the misconduct found proved capable of remediation?

Has it been remedied?

What is the risk of repetition?

The panel considered that your ability to recognise clinical failures are remediable.

However, the panel considered you have not completed any LSA or other equivalent

learning programme so as to address the deficiencies in her clinical knowledge. The

panel heard submissions on your behalf that she is no longer working as a midwife or

indeed within the health care sector. The panel is therefore not satisfied that the

misconduct has been remediated.

As regards insight, the panel had regard to the various training documentation and

reflective essay about that training completed by you. However the panel considered

that the training does not address your failures as a Risk Management Midwife and as a

SoM. In addition, the panel concluded that your insight is limited and does not

demonstrate appropriate awareness of the detrimental affect her misconduct has had

on the need to uphold and declare proper professional standards, and the need to

maintain public confidence in the profession and the NMC as its regulator.

In the panel’s judgement, the absence of evidence of a full and developed insight and

reflection, together with the absence of sufficient remediation leads to a conclusion that

there is a risk of repetition. Such repetition would have a consequential risk of harm to

patients bring the profession into disrepute and involve further breaches of the

fundamental tenets of the profession.

The panel find that your fitness to practise is currently impaired on the grounds of public

protection.

The panel then went on to consider whether the need to uphold and declare proper

professional standards, to maintain public confidence in the profession and the NMC as

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its regulator would be undermined if, in the particular circumstances of this case, a

finding of impairment was not made.

The panel has had regard to all of the circumstances of the serious misconduct it has

found. The departures from acceptable midwifery practice were significant. It considers

that the need to uphold and declare proper professional standards, to maintain public

confidence in the profession and the NMC as its regulator would be undermined if a

finding of impairment was not made in these particular circumstances.

The panel also finds that your fitness to practise is currently impaired on the grounds of

public interest.

Decision on sanction

Having considered the findings in this case, the panel has decided to make a striking-off

order. The effect of this order is that your name will be removed from the register. You

will not be able to apply for restoration until a period of five years has elapsed.

In reaching this decision the panel has had regard to all the evidence that has been

adduced in this case together with the submissions of Miss Higgins, on behalf of the

NMC and Mr Elton on your behalf.

Miss Higgins made no specific submissions in relation to the type of sanction the panel

should impose. She outlined the aggravating features in this case and said that Mr

Elton on your behalf would highlight the mitigating features. She referred the panel to

the former Indicative Sanctions Guidance (ISG) which applies in this case. Miss Higgins

emphasised the need for any sanction to be proportionate and the need to protect the

public and maintain confidence in the profession and the NMC as a regulator.

Mr Elton invited the panel to impose a conditions of practice order. He submitted that

such an order would be sufficient to protect the public and satisfy the public interest. He

submitted that you should be given the opportunity to prove that she is a safe and

competent practitioner. He submitted that although you are not currently practicing as a

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midwife, any conditions could be formulated in such a way that if you were to return to

midwifery practice they would then apply.

Mr Elton submitted that the seriousness of the case does not require removal from the

Register. He further submitted that if the panel was minded to impose a more restrictive

order than that of a conditions of practice order, it should consider imposing a short

suspension order which would be adequate to address the public interest concerns and

would give you the opportunity to provide any reviewing panel with a further reflective

piece considering this panel’s findings.

The panel heard and accepted the advice of the legal assessor.

The panel has borne in mind that any sanction imposed must be appropriate and

proportionate, and, although not intended to be punitive in its effect, may have such

consequences. The panel has had careful regard to the ISG. The panel was mindful of

its duty to protect the public and satisfy the public interest. This includes: the protection

of patients; maintenance of public confidence in the profession and in the NMC as its

regulator and the need to declare and uphold proper standards of conduct and

behaviour.

The panel recognised that the decision on sanction is a matter for its own independent

judgement.

The panel first considered the aggravating and mitigating factors.

The panel determined that the aggravating factors are:

• You were a senior Band 7 Risk Management Midwife and SoM.

• The length of time of the misconduct.

• Part of the failure as a Risk Management Midwife was in the context of

inadequate investigations following the deaths of Baby A and Baby B.

• You have demonstrated limited insight.

The panel determined that the mitigating factors are:

• No previous adverse regulatory findings.

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• You have engaged in the NMC proceedings and has attended this hearing and

given evidence.

The panel first considered whether to take no further action but determined that the

misconduct was serious and to take no further action would be wholly insufficient to

address the public interest.

The panel next considered whether to make a caution order but considered that the

misconduct was far serious and a caution order even at the maximum length would not

address the public interest issues in this case.

The panel next considered whether placing conditions of practice on your registration

would be an appropriate and proportionate response. Whilst the panel recognise that

there were some areas in her practice where she could remediate, however, the panel

considered this would be insufficient to satisfy the public interest.

The panel next considered a suspension order and had regard to paragraph 67 of the

ISG. In considering the seriousness of your misconduct, the panel took into account her

various roles in 2012 – 2014 namely as a Band 7 Risk Management Midwife and as a

SoM.

As a SoM, you were a senior midwife and a role model for junior midwives at the

Hospital. Your duty was to protect the public, mothers and babies by empowering

midwives to practise safely and effectively. Given your failures to recognise the need to

instigate LSA investigations in respect of numerous midwives you failed in that duty.

As a Risk Management Midwife, you occupied a pivotal role in the corporate

governance structure at the Hospital in minimising risks to patients. You sat as the Risk

Management Midwife on the Obstetrics and Gynaecology Clinical Risk Management

Committee which assessed risks to patients. In the case of Baby A you provided

information to that committee which was misleading. As a consequence of this the

committee was unable to carry out its function and an opportunity was lost to address

and confront the unacceptable midwifery practices at the Hospital.

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In addition, your failure to appropriately investigate the death of Baby B meant that

Midwife E was left to practice without any appropriate input from the LSA and an SUI

was not conducted in a timely manner.

Moreover, it has been proved that you did not have an adequate risk management

process in place which would have detected the widespread and entrenched

inappropriate midwifery practices. In consequence, the Obstetrics and Gynaecology

Clinical Risk Management Committee could not carry out its function systematically as a

multidisciplinary forum to protect patients from risk of harm.

Further, the panel considered that your insight is limited and that she demonstrates little

understanding of the detrimental affect her misconduct has had on the wider public

interest considerations:– namely the need to declare and uphold proper professional

standards; and the need to maintain public confidence in the profession and in the NMC

as its regulator.

In the roles you occupied at the relevant time the panel considered that her

performance was unacceptable and as a result the seriousness of your misconduct is

significant.

For the reasons indicated above, the panel considers that a suspension order is

insufficient to address the public interest in this case.

The panel therefore went on to consider the sanction of a striking-off order. In respect of

the ISG, the panel has concluded that all of the following paragraphs are applicable in

the particular circumstances of this case:

71 A striking-off order results in the removal of the nurse or midwife’s name from the

register, thus preventing them from working as a registered nurse or midwife.

They may not apply for restoration until a period of five years has elapsed since

the striking-off order was made. An application for restoration will not be granted

unless a panel of the CCC or HC is satisfied that the applicant meets the

requirements for admission to the register and in addition, is a fit and proper

person to practise as a nurse or midwife.

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71.1 Is striking-off the only sanction which will be sufficient to protect the

public interest?

71.2 Is the seriousness of the case incompatible with ongoing registration

71.3 Can public confidence in the professions and the NMC be sustained if

the nurse or midwife is not removed from the register?

72 This sanction is likely to be appropriate when the behaviour is fundamentally

incompatible with being a registered professional, which may involve any of the

following (this list is not exhaustive):

72.1 Serious departure from the relevant professional standards as set out in

key standards, guidance and advice including (but not limited to):

72.1.1 The code: Standards of conduct, performance and ethics for nurses

and midwives

72.7 Persistent lack of insight into seriousness of actions or consequences

The panel considered that your actions and omissions were serious and significant and

involved multiple departures from the standards expected of a registered midwife.

Your failures and omissions exposed numerous patients to risk as well as negating and

undermining Risk Management structures. The panel determined, for the reasons set

out above, that there is a continuing risk to patients, mothers and babies.

In conclusion, your misconduct is fundamentally incompatible with remaining on the

register. The panel consider that a striking off order is the only sanction that will

adequately satisfy the public interest, namely the protection of patients; maintenance of

public confidence in the profession and in the NMC as its regulator and the need to

declare and uphold proper standards of conduct and behaviour.

The panel has considered the principle of proportionality and acknowledge the adverse

impact the loss of your registration may have on you. However, in this case the wider

public interest outweighs your interests.

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The panel has determined to make a striking-off order.

Determination on interim order

The striking off order will take effect 28 days from the date when notice of it is deemed

to have been served upon you.

The panel considered whether it was appropriate to impose an interim order to cover

the appeal period before the substantive order takes effect, or to cover any time

required for an appeal of the substantive decision in this case to be heard.

Article 31 of the Order outlines the criteria for the imposition of an interim order. The

panel may make an interim order on one or more of three grounds:

• Where it is satisfied that it is necessary for the protection of members of the

public;

• Where it is satisfied that such an order is otherwise in the public interest;

• Where it is satisfied that such an order is in the interests of the registrant.

The panel may make an interim conditions of practice order or an interim suspension

order for a maximum period of 18 months.

Miss Higgins made an application for the imposition of an interim suspension order for a

period of 18 months on the grounds that it was necessary for public protection and that

it was otherwise in the public interest. She submitted that an interim suspension order

was appropriate and proportionate, in light of the panel’s determinations thus far. She

further submitted that an 18 month interim order was necessary to allow for any appeal

process.

Mr Elton on your behalf made no submission.

In reaching its decision, the panel had regard to the submissions made by Miss Higgins

and it accepted the advice of the legal assessor.

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For all the reasons set out in the panel’s determination thus far, and in all the

circumstances of this case, the panel decided to impose an interim suspension order on

the grounds that it was necessary for public protection and that it was otherwise in the

public interest. To do otherwise would be inconsistent with the panel previous

determination.

The panel determined that the order should run for a period of 18 months to allow for

any appeal process. The panel considered this to be an appropriate and proportionate

period.

If at the end of the appeal period of 28 days you have not lodged an appeal, the interim

order will lapse and will be replaced by the substantive order. On the other hand, if she

does lodge an appeal, the interim order will continue to run until the conclusion of the

appeal.

That concludes these proceedings.

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