Duthie v The Nursing and Midwifery Council [2012] EWHC 3021 (Admin)

[2012] EWHC 3021 (Admin)

Case No CO/3137/2011

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 31/10/2012

Before

MR JUSTICE IRWIN

Between

JULIA ANN DUTHIEAppellant

THE NURSING AND MIDWIFERY COUNCILRespondent

Ms Barbara Hewson (instructed by Maxwell Gillott Solicitors) for Appellant

Mr Andrew Hurst (instructed by The Nursing and Midwifery Council) for Respondent

Hearing Hearing dates: 1 – 2 May 2012

Judgment

Introduction

[1]The Appellant is a midwife who is appealing the decision of the Respondent’s Conduct and Competence Committee of 16 March 2011, wherein the Committee found the Appellant’s fitness to practice impaired by reason of misconduct, and struck her off the register.

[2]The matter in issue is the Appellant’s conduct during her care of a woman known in these proceedings as Mrs A, before and during her labour at the beginning of September 2007. Baby L was stillborn at home on 3 September 2007. Mother and baby were transferred to hospital as an emergency in the evening of 3 September, but resuscitation failed to revive baby L. The most important point is whether the Appellant effectively dissuaded the parents from going into hospital earlier.

[3]This appeal is mounted pursuant to Regulation 38 of the Nursing and Midwifery Order 2001.

Procedural Background

(c) Procedural Background

[4]An Investigating Committee of the Nursing and Midwifery Council considered the circumstances of this case from late 2007. The Appellant was suspended by her local supervising midwife very shortly after the critical events, and was made the subject of an Interim Suspension Order on 27 November 2007, which was renewed through to 22 April 2009, when the order was varied to an Interim Conditional Practice Order.

[5]On 4 November 2009, the Appellant was informed by letter that the Investigating Committee had referred to the Conduct and Competence Committee an allegation that her fitness to practice was impaired. The single overall charge was that the Appellant failed to provide an appropriate standard of care for Mrs A and her baby. Particulars, or “limbs”, of the allegation were specified, and numbered 1 to 10. These were the subject of considerable subsequent amendment both before and during the eventual hearings. It is not necessary to recite all of the original charges, but two are germane to an argument advanced by the Appellant. Charges 3 and 4 read as follows:

“3. On or before 3 September 2007, having been informed by Mrs A that in the absence of a second midwife with experience of breach vaginal deliveries she wished to be delivered in hospital, failed to inform Patient A that the second midwife whom you had engaged to assist in the delivery of baby B, namely Fiona Shaw, did not have experience of vaginal breach deliveries; 4. Your actions as set out in charge 3 above were dishonest.”

[6]The original charges were subsequently amended. The original charge 3 remained as charge 5, but the original charge 4 alleging dishonesty in failing to inform Mrs A about the experience of the second midwife, was withdrawn. There was thus no subsisting allegation of dishonesty amongst the amended charges.

[7]Charge 13 was a late amendment during the hearing, permitted as a response to the evidence of the Appellant.

The Substantive Hearing

[8]Substantive hearings in the matter began on 17 August 2010. After nine days of hearing in that month, there followed seven further days of hearing in November 2010 with two concluding days in February and March 2011.

[9]The Panel announced their decision on the facts at the hearing on 12 November 2010. Their conclusions were subsequently set down in a letter to the Appellant of 16th March 2011. The Panel found some charges proved and some not capable of proof. Charges 1a, 4, 6a – g, 7, 8, and 9 were proved. The remainder were not proved.

[10]The Panel spelled out their reasoning and some of their findings in the same letter. Their conclusions were explicitly reliant on the Panel’s acceptance of the credibility of Mr and Mrs A. Their key conclusions read as follows:

“The Panel have concluded that the oral evidence of Mrs A, which the Panel received via a video link, and of Mr A in person, should be preferred where the oral evidence given by the Registrant and the documentary records produced by her are in direct conflict with the evidence of Mrs A and Mr A. In the Panel’s judgment, both Mrs and Mr A were credible and consistent witnesses, who were clearly providing the Panel with a truthful and accurate account of events. In the Panel’s judgement, this assessment of the weight to be attached to the evidence of Mrs A and Mr A clearly outweighs the limited weight which the Panel considers should be given to the written references and the evidence of Professor Lewis who has only known the Registrant since December 2009, during which (sic) he has met her three times and has had monthly telephone contact. ………………… Limb 1 and Limb 6 The Panel will deal with both of these limbs of the charge together, as they involve consideration of similar issues. …………. The Panel agree with Professor Page that there was no requirement for the Registrant in the ante-natal period to explain the particular risks, as they had been originally outlined to her by Mrs A herself. In the Panel’s judgment however, the Registrant as the lead midwife responsible for Mrs A’s care was under a duty to react appropriately to Mrs A’s clear expressions of preference for giving birth by caesarean section in hospital and this, the Panel have concluded for the reasons which follow, she failed to do. In the course of her evidence, Professor Page was asked by the Chair whether she accepted that hospital was the proper place to have this baby her unequivocal response was “absolutely”

. She also accepted in her evidence that the baby should have been delivered by caesarean section. The Panel has noted the evidence of Professor Page that it would not have been appropriate for the Registrant to have coerced or persuaded Mrs A to give birth in hospital, but the Panel have no doubt that no coercion or persuasion would have been required had the Registrant responded appropriately to either of the occasions on 2 or 3 September when Mrs A indicated clearly to her that she wanted to go to hospital to give birth by caesarean section. The Panel accept the evidence of Mrs A relating to the telephone conversation which took place between the Registrant and Mrs A on the morning of 2 September in which Mrs A told the Registrant that she had “got a really bad feeling” and wanted “to go into hospital for a caesarean right now” (day 5, 62E et seq.). In so far as the notes in this telephone conversation produced by the Registrant are inconsistent with Mrs A’s account of what was said in that conversation, the Panel finds as a fact that these notes are not a true and accurate record by the Registrant of what was said. ” “The Registrant replied [to the telephone conversation summarised] that she would come round to Mrs A’s home to check her out and check the baby first. When she arrived Mrs A’s house shortly thereafter, Mrs A told us, and we accept, that the Registrant told Mrs A that it was “just a funny feeling she had had” and that Mrs A “did not need to go into hospital”. Manifestly, these words were intended to influence Mrs A to change her mind and stay at home. ” “Mrs A told us that she then reiterated that she wanted to go into hospital immediately, whereupon the Registrant advised her to phone Mary Cronk. Professor Page in her evidence said at one stage that no criticism could be levelled against the Registrant for helping Mrs A to obtain information from Mary Cronk to assist her in making her decision. In the Panel’s judgment, however, the Registrant’s reassuring words on arrival of Mrs A’s home were designed to deflect Mrs A from implementing her decision to go into hospital for a caesarean. ……………… The second occasion when Mrs A told the Registrant that she wanted to go into hospital for a caesarean was on 3 September at about 0700 – 0730. The Panel accept Mrs A’s evidence (which is confirmed by Mr A) which she said explicitly and clearly to the Registrant “we want to go in now. It is time for a caesarean section.” The Registrant, who was sitting on the living room floor at the time, made absolutely no response, except to sigh and then ask, “Is that really what you want?” Mr A recalls that the tension in the room was then broken when a squirrel tapped on the window of the room causing them to laugh, further conversation followed in which the Registrant reassured Mr and Mrs A yet again that everything was OK and that all was normal. As a result of those reassurances, Mr and Mrs A decided to continue with the labour at home. The Panel have considered the lack of any reference to this occasion in the labour notes for 3 September. The Panel finds as a fact that the labour notes are not a true and accurate record of what in fact happened on this occasion. In the light of the above findings the Panel find that Limb 1a (i) – (iv) and Limb 6a-g (of the charge approved”

Limb 1 and Limb 6

[11]Limb 1(a) was the failure adequately to explain the particular risks of this home birth. Limb 6 was the agreement to and the attempt at delivering Mrs A at home, notwithstanding the risks. Given their findings as explained in the letter, specifically that there was no obligation on the Appellant to explain these risks again to Mrs A (because she had had them fully explained), or to use “persuasion or coercion” to get her to go to hospital, these conclusions do not come within the ambit of Limb 1, and it is conceded that this part of the Panel’s determination is unsustainable in law. No like concession is made in respect of Limb 6.

[12]The real adverse conclusion was that the Appellant dissuaded Mrs A from going to hospital, at those moments when she said she had changed her mind and did want to go in. Such a conclusion was completely dependent on the evidence, and thus the credibility, of Mr and Mrs A.

[13]The other Limbs of the charge were: (4) failing to inform Carol Axon, the supervising midwife, that Mrs A was reluctant to undergo vaginal examination; (7) failing to inform Carol Axon, and Fiona Shaw the midwife who assisted the Appellant at the birth, of the large foetal weight estimated in a scan on 24 August 2007; (8) failing to inform the Ambulance Service that Mrs A was in labour and may need transfer to hospital and (9) by the failure set out in Limb 8, failing to conform to the support plan prepared by Carol Axon.

Factual Background

[14]It is needful in this case to look in detail at the contemporaneous records, in chronological order. The evidence given by both parents, and indeed by the Appellant, can best be judged against that backdrop. I have done so very closely in the course of this judgment, before reaching my conclusions.

[15]Mrs A is a counsellor living and working in Devon. She was born on 3 February 1972. In 2002 she was diagnosed as having a bicornuate uterus. This is a condition where the uterus has an internal septum and the condition carries a risk of complications of delivery.

The First Birth

[16]Mrs A became pregnant in the early part of 2004. In view of the bicornuate uterus, she was accepted for shared care between her GP and Miss R H Sturley, Consultant Obstetrician at the Royal Devon and Exeter Hospital (“RD&E”). Mrs A was reviewed in the ante-natal clinic in the RD&E at 20 weeks pregnant Miss Sturley wrote to her GP on 8 September 2004 as follows:

“At the moment she is still keen to consider a home birth and there is no medical contraindication at present. She is well aware that if she develops any unexpected complications that she may be advised to deliver in hospital. I have also explained that there is a virtually 50% chance of being transferred in labour – even without any ante-natal complications. I think she is happy to keep an open mind.”

[17]Mrs A was reviewed again in mid January 2005. She was then a little over 39 weeks pregnant. The baby was in breech presentation. There had been an attempt to turn the baby which had failed. The Obstetric Registrar wrote on 19 January:

“She is currently seeing a chiropractor who is attempting what I understand to be a Webster’s technique to manipulate the pelvis to try and turn the baby. [Mrs A] understands the risks of breech delivery versus caesarean section and is quite keen to try for a normal vaginal delivery if she goes into labour. We have agreed to this as she understands the risks involved. We will see her back in this clinic next week for a review.”

[18]Mrs A was reviewed on 25 January 2005. Her baby was then lying in the oblique position and as Miss Sturley wrote on the following day:

“The situation is an unstable lie.”

Miss Sturley recommended admission to hospital for observation on the grounds there was a risk of spontaneous labour, rupture of membranes and cord prolapse at home.

[19]Miss Sturley’s letter continued as follows:

“I have explained this could be a life threatening situation for the baby. I have asked them to consider a repeat ECV which may help to achieve a vaginal delivery although it was uncomfortable on the previous occasion. Elective caesarean section would be the safest way to deliver the baby but is associated with its own risks of bleeding, infection and thrombosis for the mother. These risks are reduced for a planned caesarean compared to an emergency procedure. Vaginal breech delivery is associated with increased risks of foetal distress, difficulty with delivery of the head which could lead to brain damage and also an increased chance of emergency caesarean section (at least 50%). After a long discussion and they had departed from the clinic to think about all these issues, I noticed the letters at the beginning of the notes suggesting a bicornuate uterus although this was not proved on hysteroscopy and laparoscopy in 1999. Any abnormality of the uterus could be the reason for the baby taking up the breech position. If she decides not to come into hospital and remains undelivered I will review her next week…..”

[20]On 28 January 2005 Mrs A saw both Miss Sturley and the community midwife. The consultant emphasised the unstable lie and the risks of spontaneous labour. An ultrasound scan showed that the baby had normal growth but was in a flexed breech position.

[21]The discussion with the community midwife was fully noted. Mrs A’s baby was very active but as noted by the midwife was lying in a “slightly oblique breech position”. There was a long discussion wherein the midwife emphasised her concerns about the unstable lie and the risks of staying at home. The midwife’s note went on:

“Will go to Honiton to look around as may go there post- natally. Strongly recommend [Mrs A] to make a decision to go to hospital sooner rather than later – feels disappointed not able to have planned home birth but is coming to terms with idea of elective LSCS [Lower Segment Caesarean Section].”

A patient alert was issued in respect of Mrs A to the effect that she must have an ambulance if her waters broke or if going into labour.

[22]Mrs A was admitted to the RD&E Maternity Department on 31 January 2005 at the request of Miss Sturley. The options discussed with her on admission were to proceed to an elective caesarean section or to “sit and wait”. Mrs A chose to “await events at present time”. The note went on to record that Mrs A had been made aware of the risks involved with her unstable lie.

[23]On the following morning, the case was reviewed. The baby was still in an oblique breech position. Mrs A was “still undecided re LSCS. Not happy in hospital.” The obstetrician noted “re discussed issues re delay and a problem of home birth”.

[24]At 2.00pm in the afternoon of 1 February Mrs A took the decision to go for caesarean section. Following discussion within the department, the decision was taken to perform an elective LSCS the following morning. Mrs A requested that her husband should be permitted to stay overnight “as she feels very anxious and would not be able to settle”. Mrs A was aware that that was not normal policy but the hospital decided to accommodate the family in that way.

[25]Following that decision, Mrs A drew up a highly detailed birth plan for the caesarean section. Stipulations included “music of our choice played during the birth” and atmosphere of peace and quiet, no talking unless necessary and “please keep voices low and quiet”. The plan requested staff “please do not explain procedures and progress unless we ask you for these details”. Mrs A was planning to use relaxation techniques in conjunction with music. The plan stipulated that Mr A could “wipe my brow with a cool cloth” and “use water to moisten my mouth”. There were detailed plans for what actions would follow after the birth, including such things as the prohibition on injecting Vitamin K if the baby could not take it orally and a stipulation that only Mr and Mrs A’s towel should be used to clean the baby.

[26]At around 11.00 on the morning of 2 February the obstetric SHO on call saw Mr and Mrs A. The doctor noted that Mr and Mrs A were:

“very anxious about decision made insisting on following their birth plan. Labour plan discussed explained that no requirement possible for LSCS; [Mr and Mrs A] are happy with explanation still not comfortable with decision. Confirmation of consent re-signed.”

[27]Shortly following this discussion Mrs A was transferred to the Delivery Suite for what was described as “EM/ELLSCS [emergency/elective caesarean section] for an unstable lie”. At 12.28 Mr and Mrs A’s daughter was born by breech extraction “with difficulty”. Post partum notes confirm that the caesarean section had to be performed by the SHO. The baby’s presentation was breech with a right leg flexed and a left leg extended. There was a left nuchal arm, that is to say an arm behind the neck. The legs had to be flexed and manipulated to be delivered, the right arm was delivered with the help of a special rotation manoeuvre. The left arm was “more difficult to deliver – extended rotation performed to dislodge arm then swept down and out”.

[28]The note went on to record how the uterus contracted down and the head was stuck. There was no further descent and the baby was at risk from the delay. The consultant was called. Muscle relaxant had to be given to loosen the grip of the uterus. This permitted the consultant to insert a hand in front of the baby’s head and manually deliver the baby. The uterus was visualised in the course of the operation and it was confirmed to be bicornuate. The baby’s head had been “up in left compartment”.

[29]In my judgment, the detailed evidence concerning Mrs A’s first pregnancy and delivery gives rise to the following conclusions. Mrs A had a very firm preference for a home delivery. She was highly prescriptive about the manner in which she wanted birth to be achieved. Mr and Mrs A accepted advice to proceed by way of caesarean section, but only at the last minute and in the face of marked risks which had been repeatedly anticipated and explained. The outcome was a caesarean section where complications developed requiring senior intervention and attended by considerable risks for the baby. Fortunately, their daughter survived fit and healthy.

The Second Pregnancy and Birth

[30]Mrs A became pregnant once more at the end of 2006. She booked with the midwife rather late towards the end of February 2007. The previous history was noted as was the following from Mrs A:

“Would really like a VBAC [vaginal birth after caesarean] was a planned home birth last time really keen not to stay in hospital for any length of time. Would like to talk re implications of bicornuate uterus on this pregnancy.”

Mrs A’s GP also referred her at this period to Miss Sturley once more. By 17 April 2007 it was noted on scanning that the baby in this pregnancy was in extended breech position on this day Mrs A repeated that she would wish for a vaginal delivery. The note by Dr Iyengar reads:

“Would like VBAC at home – not recommended. Explained about VBAC – best chance of normal delivery if goes into labour spontaneously. [less than] 70% chance of successful VBAC [greater than] 1% risk of scar dehiscence.”

The plan was to review the pregnancy at 36 weeks by means of a growth scan and it was noted that Mrs A “will take decision then”.

[31]A further note follows on the same day. It had been explained to Mrs A that 38 – 42 weeks is considered term, with the implication that the caesarean section should be planned soon after 38 weeks. However, she wished to go to 40 weeks pregnant and so a planned caesarean was booked for 29 August 2007. When writing to the GP on the following day, Dr Iyengar emphasised that home birth could not be recommended due to the risks involved, particularly in the light of Mrs A’s obstetric history.

[32]On 19 June 2007, about 5 weeks before the 36 week scan, Mrs A made contact by telephone with the Appellant. The Appellant made manuscript notes of this conversation but also made fuller typed notes. As I have indicated above, the Committee found in general terms that some or all of the typed versions of notes prepared by the Appellant, and some of her manuscript notes, were unreliable and self-serving. It is therefore necessary consider these notes and to mark any relevant differences between the manuscript and the typed versions.

[33]In respect of this initial conversation, the manuscript notes record the history, including that of a bicornuate womb and the previous caesarean section. Mrs A “ideally would like a home birth”. Mrs A informed the Appellant of the planned scan at 36 weeks. Mrs A informed the Appellant that her womb contained a septum “just at top – saw on scan”. The note goes on to read:

“? Too much oxytocin. Not straightforward delivery. After body out uterus contracted clamped around head. Anaesthetist gave uterus “whack” to get head out.”

[34]The typed note contradicts nothing in the manuscript record. The typed note does read in part as follows:

“Mrs A does not want to have a repeat caesarean even if baby is still lying breech when she goes into labour. [M’s] delivery was not straightforward. After her body was out Mrs A’s uterus clamped around baby’s head. The anaesthetist gave her uterus a ‘whack’ to get her baby’s head out. Mrs A said that M nearly died at her birth and does not want risk this baby being in the same situation. Mrs A also reacts very strongly to anaesthetics and epidurals and has massive blood pressure drops and excessive numbness which could be life-threatening. Mrs A and her husband M have done a lot of reading and research around breech birth, this is Mrs A’s second pregnancy with a breech baby and because she has a bicornuate uterus, baby is less likely to turn cephalic. Mrs A has read about the risks of caesareans compared to the risks of vaginal breech birth. Mrs A owns and has read the book ‘Breech Birth by Benna Waites’ which is very thoroughly referenced. Mrs A is certain that this baby does not want to have a caesarean section this is in clear contrast to her daughter who, both her and her husband could sense, wanted the support of a caesarean. ………………… Mrs A has been told by staff at Exeter Hospital that if her baby remains breech her only option is to have a caesarean, as neither the hospital midwives nor the community midwives are experienced in vaginal breech births. I told Mrs A that I am also not experienced in breech births, although I have attended training and update days. We discussed the risks of breech births as being considerably higher than cephalic the dangers of head entrapment and cord compression that could lead to brain damage.”

[35]On 22 June 2007, Mrs A telephoned the Appellant once more. Once again there are manuscript and typed versions of this discussion. The manuscript note simply records that Mrs A would like to meet the Appellant, that the baby is currently breech in the same position as her first child and the Appellant made suggestions that might help the baby to turn. The typed note includes the following passage not present in the manuscript:

“We again discussed the risks of breech birth and I advised Mrs A to give birth in hospital if baby was still breech when she went into labour, so that emergency equipment and the theatre would be close at hand in case difficulties arose. Mrs A was again very clear saying that she knows that this baby does not want to have a caesarean.”

[36]Mr and Mrs A met the Appellant for initial consultation on 4 July. No manuscript note of this discussion has been disclosed. The relevant passages of the typed note read as follows:

“Mrs A does not want to have repeat caesarean, if baby is still lying breech when she goes into labour she would like to have a vaginal breech birth. Mrs A has been told by the hospital that her only choice is to have a repeat caesarean and that there is no support for her to have a vaginal breech birth either in hospital or at home. Mrs A and her husband Mark are both aware that I am not experienced in breech births. I have attended study days on breech birth and am trained in manoeuvres using a model doll and pelvis, but am not experienced in attended the births of breech babies. I recommended giving birth in hospital so that emergency facilities would be close at hand. I reminded them that breech babies compared to cephalic presentation are more likely to have difficulties during birth or to die and are much more likely to require resuscitation. Mrs A said that she has discussed with Mr A on several occasions that should difficulties arise that put both her and baby’s life at risk, then her life must be given the priority. That was not a concern to her during her last pregnancy, but this time, for some reason, it is extremely important to her and is influencing her decision-making. I had heard via other women that Exeter Hospital was no longer supporting vaginal breech births, so I recommended Mrs A to contact Torbay Hospital where they would be more likely to support her choice to give birth vaginally. I also said that since Torbay Hospital has a better reputation for supporting women’s choice they are more likely to have midwives who are experienced in breech births. I have transferred several women into Torbay Hospital and have found the staff there to be generally very supportive of women’s’ choices. Mrs A appeared happy to make contact with them. I told Mr and Mrs A that if Mrs A was giving birth in hospital I would be able to be there as their supporter and advocate but a hospital midwife would be their main carer. I have no insurance or honorary contract so I cannot work as a midwife in the hospital. ……………… Mr and Mrs A are currently exploring their options. They are both very clear that they do not want an elective repeat caesarean especially in view of their past experience.”

[37]On 25 July Mrs A confirmed on the telephone that she wished the Appellant to be her midwife. The manuscript note of this discussion in its salient part reads as follows:

“Spoke to midwife at clinic …………..starting to wonder if baby is now [cephalic] EFT +++ [emotional freedom technique] – finding it amazing. First birth taken out of hands completely – had lost a lot of confidence. – enjoying doing it. After EFT a couple of hours often crying – realised it’s the healing process ………will have second midwife if still breech. Booking Mon 6 August.”

[38]The typed note relating to this conversation has no change to the manuscript note of any significance.

[39]On 31 July Mrs A attended the RDE for her 36 week scan. She saw the midwife and Dr Iyengar, the obstetric registrar. Dr Iyengar’s note reads as follows:

“Long discussion – requested VBAC [with] breech presentation – aware ↑ risk. Agrees for EL [ective] LSCS. Would like it after due date. Aware that ↑ chance of labour after EDD – may need delivery at night. Last LSCS – unpleasant experience – as needed to call consultant in due to head getting stuck during delivery. Plan – EL [ective] LSCS booked for 29.08.07.”

Plan – EL [ective] LSCS booked for 29.08.07.”

[40]Dr Iyengar wrote to the Appellant’s GP immediately following this discussion. Dr Iyengar described Mrs A as “having a very bad experience during her last caesarean”. She notes the use of muscle relaxant after the uterus closed over the head. Mrs A was described as:

“quite anxious and would like to avoid a similar panic situation as that which happened during her last caesarean. I explained to her that this is very rare and most breech babies are born by caesarean section quite straightforwardly.”

[41]The letter goes on to read:

“We did try to book her in for an elective section when there would be a consultant on labour ward but the only day we could find that was suitable to her was 29 August. We have booked her in for an elective section then and she is quite happy to carry on with the plan.”

It may be relevant to note that Mrs A only agreed a date for an elective caesarean which would permit a full 40 week pregnancy.

[42]Subsequently, both in an email and in her evidence, Mrs A complained about the way matters were handled at the RD&E on this date. In an email of 25 November 2007, in the course of a message which was condemnatory of the NHS care which had been offered and supportive of the Appellant, Mrs A complained about the wait she had had for a scan on this occasion and the attitude of midwifery staff as being dismissive. I quote from the email later in this judgment.

[43]In the course of her evidence Mrs A gave a full account of this morning in the hospital. Apart from her dissatisfaction as to the delay and as to the manner of the midwives, she said this:

“I had to go back….for a consultation, which turned out to be with a registrar and not Rachel Sturley, which was a bit of a shock, and a disappointment. I said could I discuss all the options available to me, and she said ‘well your baby is breech. Here is the diary. Let us pick a date.’ I said ‘OK. I would like to discuss a vaginal birth in hospital’ and she did not answer me. She pulled a face ………….. she said ‘Pff’ and I personally took that to mean no that was not an available option, but I did actually have to make that assumption myself. I was not actually told it specifically.”

After that Mrs A described how she wished to discuss to “go through what the caesarean will entail” because of the previous birth. Mrs A describes Dr Iyengar’s response as telling her not to worry and disappearing to see Miss Sturley. Mrs A asked if she could speak to Rachel Sturley and was told she could not. Dr Iyengar then came back and told Mrs A that there would be a consultant present with her during her caesarean. The conversation then went on, according to Mrs A:

“’Is there anyone to talk to about a vaginal birth here?’ She did not look at me. There was just no response, and I took that to be a clear no. Then she got called out …….she left the room.”

At that point a date was fixed and Mrs A left the hospital.

[44]It is relevant to emphasise that, so far as the hospital was concerned, although Mrs A may have been reluctant, she had agreed to have an elective caesarean section.

[45]A week later, on 6 August 2007 Mrs A went through her booking appointment with the Appellant, as her independent midwife. The manuscript notes made by the Appellant on this occasion are full. As I understand it it has never been suggested that these are a fabrication. Consistent with subsequent events, the opening part of the narrative section of these notes shows that Mrs A had decided not to undergo a caesarean section. A relevant passage reads as follows:

“O6/08/07 Mrs A’s baby is lying in the breech position, probably due to her bicornuate uterus. Mrs A had a caesarean for the birth of her first child and prefers not to have a repeat caesarean this time. Mrs A has been told that there is no support available for breech birth at Exeter Hospital or via the community midwives. She has been told her only option is to have a repeat caesarean; hence she has booked my services.”

[46]The note goes on to record a discussion about whether Torbay Hospital would be more supportive of a hospital breech birth, a discussion of the risk of scar dehiscence and a discussion about the risk of the baby being stuck once more in the course of the birth. The Appellant records herself as advising that “the risk of this ……is extremely small once baby is full term – that is after 37 weeks gestation”. The note also records the Appellant informing Mrs A once again that she was not experienced in breech birth but she was properly instructed in what to do. The note records that the Appellant “will do my best to find a second midwife who has experience of attending breech births”. The Appellant recorded a warning of possible reasons for transfer to hospital and the fact that babies born breech are more likely to require resuscitation. Mrs A was cross-examined about this conversation as recorded in the notes. She agreed that the conversation had taken place and therefore that the Appellant had warned her, at least broadly in these terms. The warning given here by the Appellant is broadly consistent with those issued by the hospital staff.

[47]A part of the manuscript midwifery notes was completed by Mrs A herself. These notes are made under pro-forma printed headings. In the course of the case I was told they were completed “early on” in the relationship between Mrs A and the Appellant, but the evidence of the Appellant herself was that they were completed in late August. Under the printed heading “Previous Birth Experiences”, Mrs A describes the lead up to the caesarean section for her previous child. She went on to write:

“This pregnancy has shown me that I did experience loss of not having a natural birth yet at the time I definitely made the most of our birthing and it was overall amazing.”

Under the overall heading “Birth Expectations” and in answer to the question “what are your reasons for wanting a home birth?” Mrs A wrote:

“Safety, relaxed atmosphere, safe environment, home comforts, less disruption. No pressure. Family around. Choices as and when. Birth totally free of other ‘stuff’. Gentleness.”

In answer to the question “have you had any opposition to your decision to give birth at home?” Mrs A answered “yes. Obstetric opposition in bundles.” Finally in answer to the question “why have you chosen an independent midwife?” Mrs A answered “for continuity, better and safer, objective non-judgmental care.”

[48]Under the overall heading of “Birth Plan”, in response to the question “who else do you want for labour companions”, Mrs A answered “husband – take me through hypno-birthing techniques love, food! Answering my every need and being there. Second midwife – supporting Julia and with breech experience would be great.” In answer to the question “what specific wishes do you have for the labour and birth?” Mrs A wrote “- calm relaxed atmosphere – to choose what I want and when I want it – my daughter to have access to me if she need – monitoring as and when for baby – music? Pool, freedom for movement – baby straight on skin on skin, breast, gentle atmosphere – piece of placenta bottled as soon as possible”.

[49]Mrs A also wrote a birth plan for a caesarean section involving many of the same elements. In the course of this she stipulated that the Appellant should be present.

[50]On 9 August, following up the Appellant’s suggestion, Mrs A called Torbay hospital. She was called back by Carol Axon who, in the summer of 2007, was Matron and Clinical Manager for the Labour Ward, Antenatal and Post Natal wards at Torbay District General Hospital. Mrs Axon was a senior midwife. According to her own evidence given subsequently to the Committee, she had seen hundreds of breech births and had delivered 7 breech births vaginally herself whilst working in Basingstoke. These deliveries were all done in a hospital setting with consultant backup.

[51]Following Mrs A’s contact with Torbay Hospital, Mrs Axon was approached by Heather Parker, the head of midwifery at Torbay Hospital. Mrs A had asked Heather Parker whether the Torbay Hospital would be able to facilitate a vaginal breech birth. Mrs Axon was tasked to contact Mrs A to discuss the matter and arrange a meeting with a consultant obstetrician. On 9 August Mrs A arranged to see the consultant on 13 August.

[52]On 13 August Mr A telephoned Torbay Hospital to cancel the appointment with the consultant. The only sensible inference from this is that Mrs A had decided against going into any hospital, even the more “sympathetic” Torbay Hospital. After the cancellation, Mrs Axon emailed another midwife, Maria Patterson, at the RD&E. The email is revealing about what Mrs A was stating at this stage:

“Just to let you know that [Mrs A] (38 weeks pregnant) contacted Heather Parker last Thursday to discuss whether we would be able to facilitate a vaginal breech birth here for her, as she is very unhappy about the way her care is being handled at Exeter. Mrs A states she has been told she has to have C/S. She also has a bicornuate uterus and had an EMC/S last time. [Mrs A] lives in Exeter and asked whether she could be transferred here if there is an emergency during her labour at home. Heather informed her that if it was an emergency, the ambulance would take her to the RD&E. I contacted [Mrs A] last Thursday, offering to arrange a meeting between one of our consultants and myself for today at 10.00am which she agreed to. However, her husband cancelled this meeting this morning. Mrs A has employed Julia Duthie, an independent midwife to provide midwifery care. Julia is supervised by one of our SOM’s but she is on two weeks A/L at the moment. I have left a message for Julia to contact me for Supervisory Support …….I have no idea what experience Julia has with breech births or what she has discussed/advised with [Mrs A]. I thought you should know as [Mrs A] is likely to pitch up with you in an emergency. I also did not know whether you were aware that she had employed an independent midwife.”

[53]On the following day the Appellant contacted a very senior independent midwife Mary Cronk, and received advice about breech births. The advice included “if breech if not smooth progression once got going then LSCS.” This is only meaningful in the context of intended home birth. Mrs Cronk indicated that she would be available to give advice on the telephone during the period around the estimated date of delivery. In addition to contacting Mrs Cronk, it is agreed that the Appellant had at this stage begun the search for a second independent midwife with experience of breech delivery.

[54]On 14 August the Appellant also carried out her second antenatal visit to Mrs A. There are full manuscript notes of this discussion but no typed note. Mrs A informed the Appellant that she had decided not to visit Torbay Hospital “as she wanted to try for a home birth and if she needed to transfer in labour she is happy to go to Exeter Hospital……..an ambulance would not transfer her to Torbay Hospital and she doesn’t want to put baby at risk by transferring in by car”. The Appellant informed Mrs A that she had not found a midwife with breech birth experience and also told her of the telephone support offered by Mary Cronk. Finally, Mrs Axon emailed the Appellant on the afternoon of 14 August asking her to make contact:

“…….so we can discuss how I may be able to support you. I live in Honiton so maybe able to offer support to you during Mrs A’s labour/birth if she has a home birth.”

[55]On Thursday 16 August Mrs Axon contacted Val Beale, the head of the supervisory system for midwives at South West NHS (“the LSA Midwifery Officer”). This was to inform Ms Beale of the background, of the fact that Mrs A had been taken on as a patient by the Appellant, of the Appellant’s lack of experience of breech birth and of her attempts – thus far unsuccessful – to obtain a second midwife with breech experience. The message records that Mrs A has agreed to go to the RD&E if there are any problems in labour. The message went on:

“We discussed her record keeping and documenting ensuring her discussion with Mrs A about her lack of experience is in the notes. I also told her she should consider whether she should be giving care without experience as if the outcome is poor she would be questioned about agreeing to give care without this. I have given Julia my home and mobile phone number for supervisory support if she needs it during labour/birth as I have delivered several breech babies. I did however state that I was not offering to be at the birth because of my experience. [Emphasis added]. I have also offered to go over breech births scenarios with her and we are going to meet next Wednesday at Torbay. I will write a supervisory plan of care to give her on Wednesday to ensure all the points are covered and ask her to discuss this with [Mrs A]. I am extremely concerned that Julia has agreed to give care without any experience but feel I have done everything possible as a supervisor.”

[56]A number of conclusions follow from this note. Firstly, Mrs Axon was not offering to be present, at least at the time of writing this. Secondly, Mrs Axon was fully aware of the intention to proceed with home birth. Thirdly, so was Ms Beale aware. Neither Mrs Axon, nor indeed Ms Beale, said to the Appellant:

“you must not go ahead”, or even, to borrow the wording of Limb 6 of the charge “agreeing to or attempting to deliver the baby at home despite the various risk factors”

. Admittedly, at this stage one risk factor, the large size of the foetus, was as yet unknown. However as will emerge, that did become known, and yet even then no one advised the Appellant in clear terms that she should not offer care to Mrs A.

[57]Later that evening Ms Beale emailed to say that she would arrange to see the Appellant on the ensuing Monday.

[58]On the 21st August, Mrs A paid her third antenatal visit to the Appellant. The Appellant made manuscript notes only of this visit. These were put to Mrs A and are not challenged as a true record of the discussion. According to the notes, Mrs A informed the Appellant that she had made ready the birthing room at her home and had decided to use a birthing pool for labour. The foetus was still not in a head down position. The Appellant records herself as warning Mrs A that “if [Mrs A’s] membranes rupture while baby is transverse there is a risk of the cord prolapsing and she should call 999 straight away and get into hospital”. The notes record a discussion of the risks of scar rupture and advice given by Mary Cronk as to these risks. The notes record a further discussion of the risks of head entrapment in Mrs A’s circumstances. This of course had been the course of events at the birth of Mrs A’s daughter.

[59]Also on the 21st August the RD&E received the news from Mrs Axon that Mrs A had approached Torbay Hospital “to request a vaginal breech birth”. The entry was made in the notes by another senior midwife Mrs Maria Patterson, who noted the considerable list of risk factors attending such a process and recorded the “need to be aware as [Mrs A] may be transferred in an emergency”. Mrs Patterson left a message on Mrs A’s home answer phone offering a meeting “in my role as supervisor of midwives”. On the following day, Mrs Patterson wrote to Mrs A again offering a meeting offering to discuss a birth plan “should you be transferred to the RD&E in labour” and stressing that she was keen to offer support.

[60]On the evening of the 22nd August Mrs A telephoned the Appellant, prompted by the message from Maria Patterson. There are both manuscript and typed notes of this discussion. The manuscript notes record the contact and the fact that the RD&E were offering support. The note continues “[Mrs A] wondering what points to bring up. She will ask for a really good scan of her septum…she will ask for midwifery cover in the event that I don’t get to her in time…query for a second midwife”.

[61]The Appellant’s typed note adds some significant passages to the manuscript:

“[Mrs A] rejected the suggestion of asking for a vaginal breech birth within the hospital, she has lost trust in the hospital system and does not believe that they wouldn’t take over and not allow her to do what her body and baby are telling her to do. My presence as an advocate within the hospital and the positive hospital experiences I relayed to [Mrs A] are insufficient to help her consider this option. [Mrs A] feels very judged by Exeter Hospital, and the fact that the hospital will only accept me as a supporter and not as a midwife adds to [Mrs A’s] belief that she will be vulnerable in hospital and that not even I would be able to protect her if they decide to “take over”. [Mrs A’s] past history has left her with profound issues of lack of trust.”

On the following day, 23rd August, Maria Patterson made her home visit. Her notes read in part as follows:

“[Mr and Mrs A] have since felt that they will not be able to receive appropriate support or care in the RD&E. As a result they have decided to opt for a home birth with an independent midwife. I have asked [Mrs A] what her preference was prior to this appointment and enquired as to what would help facilitate [Mrs A’s] choice in the RD&E. [Mrs A] would prefer to stay at home with care provided by Julia Duthie. However [Mrs A] will be happy to transfer to the RD&E if any deviation from the norm – i.e. bleeding, cord prolapse, delay, failure to progress, foetal distress, ruptured uterus. I have advised that Julia Duthie contact an Exeter SOM [Supervisor of Midwives] to provide support as a second midwife if needed. Julia has not experienced a breech birth and currently has no second midwife available.”

The note goes on to record Mrs A’s request that if she goes to hospital her husband and daughter can be accommodated and the note goes on as follows:

“PLAN: Julia Duthie independent midwife to continue as lead. Home birth plans to continue. Transfer into Exeter if any deviation – Julia to then act as a support. If transfers to Exeter – try to facilitate [husband and daughter] to stay. Discuss care with Rachel Sturley plan of care. [Mrs A] requesting a scan to review uterus septum size and location. Concerns re lie → transfer in if [spontaneous rupture of membranes] and risk of cord prolapse.”

[62]It is perhaps worth pausing to comment at this point in the sequence of events. There can be no doubt that by this time, Mr and Mrs A had been fully advised of the risks of a home birth in their circumstances. There had been a significant warning by the Appellant, and Mrs A knew of the trenchant warnings by others. There can be no doubt of the desire of Mr and Mrs A at this point to proceed by way of home birth despite the advice they had been given. NHS obstetricians and senior midwives knew of the planned course of action. There can be no doubt that Mrs Patterson had, however reluctantly, accepted the plan outlined in her note. With the exception of the size of the foetus, all of the risk factors leading the medical professionals to recommend a caesarean section and birth in hospital had already been established.

[63]On the following morning Carol Axon sent to the Appellant by email a “Supervisory Plan of Support”. A few minutes later, Carol Axon sent the same supervisory plan of care to Maria Patterson. In her covering email Mrs Axon wrote “[Mrs A] has agreed that she will come into the RD&E if there is a problem in labour/birth and Julia will come as her birth support. I have recommended that Julia contact you out of courtesy to let you know what is happening. Val Beale (LSA Midwifery Officer) is also aware…”. Also on the same morning, Maria Patterson and the Appellant discussed the case and Maria Patterson confirmed that she would arrange a scan for Mrs A promptly. She did that during the course of the same day.

[64]This plan is germane to charges 4, 8 and 9. The central part of the plan reads as follows:

“Plan for labour and birth 1. Julia to inform Carol Axon (SOM) when attending. 2. Julia to contact Ambulance Service to advise of potential need for transfer as high risk home birth 3. To advice (sic) intermittent auscultation every 15 minutes in established labour and at least every 5 minutes during the second stage (NICE 2001). A change in the fetal heart rate can be an indicator to scar rupture. 4. To assess pain over the scar at regular intervals as this can be an indicator of scar rupture. [Mrs A] to touch and feel scar area prior to labour to be able to assess any sensation changes in labour. 5. Regular vaginal examinations (minimum 4 hourly) to ensure progress in established labour. Slow progress can be an indicator of potential problems at the birth. 6. Ensure steady descent of the presenting part once cervix fully dilated. This can indicate a potential problem with the birth. If there are any concerns with the above, [Mrs A] should be recommended to transfer to the [RD&E] for obstetric support. Documentation and communication: 1. The above should be discussed with [Mrs A] and a record of the discussions including potential risks and outcomes to be documented in the notes 2. Julia to record in [Mrs A’s] notes her discussion regarding her lack of experience of breech births 3. Julia to contact the RD&E Community Matron (Maria Patterson) to inform her of [Mrs A’s] plans for labour and birth. Support at the labour/birth for Julia 1. A second independent midwife will be present at the birth. It is hoped that an independent midwife with experience of breech births may be present but not guaranteed. 2. Mary Cronk (independent midwife with breech birth experience) has agreed to be available for telephone advice 3. Julia to contact the delivery suite at the RD&E and ask for Obstetric support if needed during the labour/birth 4. Carol Axon (SOM) to be available for Supervisory support.”

Documentation and communication:

Support at the labour/birth for Julia

[65]Later on the 24th August, Mrs A was scanned in the RD & E Hospital. The notes made by Myles Taylor record the following findings: “Breech plus bicornuate uterus LARGE BABY 4.7Kg. Advised strongly against planned vaginal delivery. Advised strongly against having home birth. Patient is aware that baby is larger and that the risks of scar rupture are greater. Risks of unsuccessful vaginal delivery are greater. ….plan – patient will go away and think about options”.

[66]On the same day, Mr Taylor wrote in strong terms to Mrs A’s general practitioner. The letter reads in part as follows:

“I understand that pregnancy has proceeded in an uncomplicated manner and [Mrs A] plans to have a home delivery despite the baby being breech and having a previous caesarean section. The scan today shows a large baby with estimated weight of 4.7Kg. The foetal head is in the left horn and the feet in the right horn of the bicornuate uterus….I have advised [Mrs A] strongly against a planned vaginal delivery and also against having a home birth. [Mrs A] is aware that the baby is large. This is new information as clinical examination to date has not suspected this. The risks of having a scar rupture are therefore greater and the chances of achieving a vaginal delivery are less. I have also counselled [Mrs A] that the risk of perinatal mortality must be substantially raised. I have therefore encouraged [Mrs A] to rethink and said that she can change her mind at any stage and that there should not be any feeling of ‘loss of face’ in this situation. The preferred option of having an elective caesarean section within the next few days is therefore open to [Mrs A] and we look forward to hearing what her decision is.”

[67]The strength of the advice given by Mr Taylor is not in doubt. In the course of her evidence Mrs A recalled that Mr Taylor asked her the rather loaded question “would you rather cross the M1 blindfold or use a footbridge?”

[68]After Mr and Mrs A had seen Mr Taylor, Maria Patterson showed them around the delivery suite in the hospital. Mrs A was also shown Carol Axon’s Supervisory Plan. Mrs Patterson made a retrospective note concerning this meeting, written into the notes on the 29th August. When she gave evidence about these events, Mrs Patterson was asked whether it was not her responsibility to re-enforce the advice given to Mr and Mrs A by Mr Taylor, advice of course informed by the new knowledge of the additional risk factor namely the large size of the foetus. Mrs Patterson’s evidence reads as follows:

“Q: Was it not your responsibility as the midwife, hearing the medical advice about this abnormal situation, to re-enforce that advice as strongly as possible to this couple? A: I felt at no point. There was a lengthy discussion. Mr and Mrs A were clear and they were not at all confused by what had been said. They fully understood it and I do not believe further clarity was needed. We were all present at the meeting. I participated in the discussion, and I felt that when the antenatal session had closed, all avenues had been explored and they were clear about options. [Emphasis added]. Q: Do you understand the importance of teamwork when a professional team is caring for a woman? A: Yes I do. Q: Was it not your responsibility as part of the team to ensure that this couple went away with Mr Taylor’s warning ringing loudly in their ears? A: I would say that they did. Q: I’m going to suggest to you that you gave them a mixed message, Mrs Patterson, because you then took them around the labour ward, and you then started to talk about a trial of vaginal birth, did you not? A: I think again, this was about choice. I think they had very much heard the recommendation for the elective caesarean section, and I knew at that point that Mrs A was not keen on elective caesarean section, and if anything, for her to approach the hospital, she would rather have a trial of having a vaginal birth. She was clear at that appointment that she was not keen on the elective caesarean section route….”

At 1:45 that day, Mrs Patterson emailed a number of clinicians involved in the case confirming that Mrs A had attended for the scan and was still breech, confirming the now known estimated foetal weight and confirming that Mrs A was still planning a home birth.

[69]Later that afternoon there was a telephone call between Mrs A and the Appellant. Both manuscript and typed versions of the Appellant’s notes exist. The manuscript note records the fact of the scan and the weight in this case estimated in Imperial measure as “about 10 and a half pounds”. The manuscript records Mrs A’s reaction to Mr Taylor’s advice:

“He wasn’t horrible – very forward with his complete rejection of a home birth. (had been warned by Maria). Meeting with Maria very positive – helped with support.”

[70]The typed note of the same discussion after dealing with the “forward rejection” of a home birth carries on:

“He gave very graphic descriptions of difficult vaginal breech deliveries, which confirmed to [Mrs A] that she would not feel safe giving birth in hospital.”

The typed note continues for more than two further A4 pages. Mrs A told the Appellant of the “crossing the M1” analogy. And the note continues:

“The consultant had not given [Mrs A] any information to back up the increased risk. We again discussed the risks of scar rupture including death of mother and baby, haemorrhage and hysterectomy. [Mrs A] was not willing to have an elective caesarean due to [her daughter] getting stuck and nearly dying at her caesarean. She also reiterated “I know that [baby L] does not want a caesarean”

. We discussed the risk of vaginal birth and the recommendation of caesarean section in view of baby’s size. Large babies are more prone to morbidity when delivered vaginally as opposed to caesarean. [Mrs A] concerned because [her daughter’s] head got stuck at her caesarean and she nearly died and this baby will have a larger head, which could also get stuck at a caesarean. We also discussed the possibility of a large baby getting stuck during a vaginal birth and the dangers to the baby if this happens in a home setting. I recommend that she and [Mr A] read over the section on babies’ weight in her book on breech birth by Benna Waites. I suggested that [Mrs A] speak to Mary Cronk to find out what her experience is of vaginal breech birth of large babies; [Mrs A] has previously been in touch with Mary and she plans to do this. I had heard Mary talk in positive terms about vaginal birth of large babies, as their large bottoms make space for their large heads. I advised [Mrs A] to give birth in hospital where there’d be emergency facilities close at hand. We discussed that even though she lived very close to the hospital there could still be scenarios where the extra time it would take to get her to theatre in an emergency could lead to the baby’s and/or her death or injury. [Mrs A] is very clear that she has fully considered the option to give birth in hospital and is declining this. She said she did not trust the hospital staff not to take over her labour, especially as I would only be there as her supporter not as her primary midwife. [Mrs A] is certain that she has considered all the risks and is still choosing to continue with a home birth…she will also be making birth plans – both home and hospital versions. [Mrs A] said that Maria [Patterson] gave her a copy of the plan of support that Carol Axon wrote. She said that she felt the recommended frequency of monitoring to be excessive. I told [Mrs A] this is the frequency of monitoring that is recommended in the NICE guidelines. I reminded her of the importance of frequently checking baby’s heart rate especially in view of her previous caesarean. Slowing of baby’s heart rate can be a first sign of pending uterine scar rupture. Listening to baby’s heart rate is a very useful way of checking for distress, if this isn’t discovered early on then baby could be damaged or die before an intervention such as a caesarean could be performed. [Mrs A] said she might decline auscultation if the frequency becomes too intrusive. She feels that during the first stage she will come to a place of knowing that the birth will be OK and may therefore not want me to listen every five minutes during the second stage. [Mrs A] has become quite used to touching and feeling her scar area and is familiar with the sensations there. She will let me know of any change in sensation or pain in her scar area. She does not wish to have routine questioning during her labour about the sensation of her scar, as any question will interfere with her hypnobirthing. [Mrs A] will accept regular checks of her pulse and baby’s heart rate as long as she doesn’t find this intrusive. I agreed to do these checks wordlessly. [Mrs A] does not want vaginal examinations. Her history has left her very vulnerable in this area. She reiterated that she would have kicked anyone who came near her to do a vaginal examination in her last labour. We discussed that this recommendation is in order to assess progress as delay in progress is a sign that vaginal breech delivery may not be easy and is an indication for caesarean section. I have spoken to Mary Cronk about vaginal examinations – she does not use these as a routine means of assessing progress in a breech labour. I will check progress by monitoring [Mrs A’s] contractions…. [Mrs A] reminded me that it is extremely important to her that should any emergency event occur where both her and baby are at risk then it is imperative that her life is saved even if it means baby dying. [Mrs A] has discussed this many times with her husband and he is in agreement to support her in this. This is particularly important to [Mrs A] because her experience of being adopted was so traumatic that the thought of her daughter…having to grow up without a mother is unbearable.”

[71]As with much of the material in this case, it is instructive to consider the tone of the contributors as well as the content. In my view it is noteworthy that all of the passages in which the Appellant records herself as issuing continuing warnings to Mrs A of the risks of home birth appear only in the typed version. This is a central point in the submissions made by the Nursing and Midwifery Council. Nevertheless, it is also interesting to note that the tone and content of the entries recording the determination of Mr and Mrs A, now undoubtedly in full knowledge of the risks to be anticipated with a home birth, confirming their intention to proceed at home. These notes chime very closely with the response of Mr and Mrs A to the warnings by Mr Taylor as recorded and recalled by Maria Patterson.

[72]Following the discussion with Mrs A, the Appellant herself made contact the same afternoon with Maria Patterson. They exchanged contact details.

[73]Mrs A’s estimated date of delivery [EDD] arrived on 27th August. The RD&E Hospital had in fact arranged an appointment for an elective caesarean section on the following day 28th August. At 10:30 on the 28th a midwife from the RD & E rang Mrs A, as they had been expecting her at 10:30 to be admitted for the procedure. Mrs A informed her that she planned to have a home birth. In the face of this, the midwife made contact with Maria Patterson. It appears to be as a result of this sequence that Mrs Patterson placed in the notes the retrospective note of events as to the afternoon of 24th August.

[74]On 29th August, Maria Patterson contacted Mrs A at home by telephone. Mrs A declined the offer of a further antenatal appointment but agreed to later contact to discuss matters if the pregnancy went beyond the dates any farther. Mrs A told Mrs Patterson that she herself had discussed matters with Mary Cronk and “feels reassured re baby’s size as a large presenting part will assist dilatation”. Mrs Patterson recorded that she sought to reassure Mrs A that if she required support the team would be available in the hospital or a “Supervisor of Midwives will attend at home to advise.”

[75]On 29th and 30th August there were email exchanges between the Appellant and Carol Axon clarifying details in the Supervisory Plan of Support which had been formulated by Mrs Axon.

[76]On the evening of 31st August, there was a telephone call between the Appellant and Mrs A. Mrs A had noticed some tightenings from the night before. At this stage she was not sure if she was going into labour or not. On the following morning, there was further contact and Mrs A advised the Appellant that she had been in and out of sleep during the night. Mrs A felt that the baby was now definitely lying in a longitudinal position. There were further tightenings and vague findings during the rest of the 2nd of September.

[77]The Appellant made a manuscript note dated 2nd September which summarises the contractions which had happened. The note goes on to read as follows:

“[Mrs A] has been considering the possibility of needing a caesarean in view of the stop/start nature of her contractions. I advised [Mrs A] to speak to Mary Cronk for her advice in this situation. [Mrs A] is concerned about letting [her husband] down if she does end up having another caesarean. She also has fears about being vulnerable in front of others during the birth. [Mrs A] phoned Mary Cronk who reassured her that her uterus is limbering up ready for the birth and that concerns about stop/start labours are only once the labour is fully established and dilatation is happening e.g. labour stopping when 6cm dilated. I advised [Mrs A] to have as much rest/sleep today as possible.”

[78]It is of interest that neither in this note, nor in the notes of the precursor phone call earlier the same day, is there mention of Mrs A considering a caesarean section, or of her worry that if she did so, she would be “letting down” her husband.

[79]By 10:30 on the 2nd Mrs A had got to the point of contracting more regularly and asked the Appellant to come to the home. There are no typed notes after this point in time. The Appellant recorded in the summary of labour that commencement of labour was 23:35 on the 2nd September. There are conventional manuscript labour notes through the night which record the contractions and the frequency of contractions, record the foetal heart rate between 132 and 148 beats per minute with variability all through to around 11 o’clock on the morning of 3rd September. An entry was made by the Appellant at 11:25am recording a foetal heart rate at 148 beats per minute with accelerations but no decelerations from that point. The findings continued through the afternoon on a number of occasions recording no decelerations in the foetal heart.

[80]The Appellant had arranged for the second midwife, Fiona Shaw, to attend in support of the labour. Ms Shaw had arrived by the morning of the 3rd September but gone away again for a period leaving at around 10 o’clock in the morning, given the perceived progress. The notes record midwife Shaw as returning to the house at 15:20. It is the NMC’s case that the Appellant failed to inform midwife Shaw of the large size of the baby and indeed that was the evidence of Ms Shaw herself.

[81]It should be recalled that the large weight of the baby appears both in the manuscript and typed attendance notes made by the Appellant on the afternoon of 24th August, during and after the telephone call from Mrs A. These notes were held by the Appellant at her home. In the manuscript antenatal notes – the notes which would have been available for inspection by midwife Shaw – there is no note of the telephone discussion of 24th August. The ante-natal notes do contain a note dated 28th August which refers back to the scan “last week”, i.e. on 24th August. The note records that Mr Taylor did the scan and Mr Taylor “graphically described the things that could go wrong and gave his personal opinions”. However the entry makes no reference to the large size of the foetus disclosed by this scan, and emphasised by Mr Taylor as one of the risk factors supporting his view. It therefore seems unlikely that midwife Shaw could have learned of the size of the baby from the notes present at the home of Mr and Mrs A.

[82]After midwife Shaw returned in the middle of the afternoon, matters developed in the labour. The manuscript notes made at the time record at 15:45 that Mrs A was “worrying that she can’t do and feeling tearful”. At 16:10 Mrs A was beginning to have the urge to push and by 16:15 was pushing with all contractions for a short period. At 17:05 what was thought to be the baby’s buttock had become just visible during pushing and by 17:25 the notes record that there was “an intact bag of membranes distending the perineum”. Subsequently it emerged that the presenting part was a foot, inside the sac. The entry at 17:30 was the last note made contemporaneously. Ensuing notes were made at and after 23:15 in retrospect and in hospital.

[83]There is no need to analyse the late events of the delivery too closely. The left leg was delivered first, but still in the membranous sac. Buttocks and both legs were delivered by 17:50 and a few minutes later the baby was born past the umbilicus. The cord was visible and pulsing. The baby’s body was pink. However, by 17:55 the baby’s heart rate was no longer detectable. By 17:58 the baby had descended further but no arms were visible and on examination the arms were extended above the head. The Appellant could not reach the elbows to hook the arms down. At 18:00 midwife Shaw dialled 999 for an ambulance to be on standby. Further manoeuvres were carried out but repeated efforts to free the arms by the Appellant and by midwife Shaw were fully effective. One arm was delivered by around 18:15 but the baby was floppy. The ambulance had arrived some minutes before, and thus in less than a quarter of an hour from the summons. However, matters had gone beyond the point where they could transfer the mother and half-born child.

[84]The hospital midwives arrived at 18:20 as the Appellant and midwife Shaw continued to try to deliver the head. An episiotomy was performed at 18:30 and the baby was finally delivered at 18:38. Resuscitation was commenced immediately by the hospital midwives but the baby was not breathing, there was no heart rate and the baby was floppy and unresponsive. The baby was transferred as an emergency to hospital with continuing resuscitation, but by 19:35 efforts at resuscitation were abandoned and it was accepted that the baby had died. The baby was indeed large, his weight being recorded in hospital at 4.9 Kilos or nearly 11 Pounds.

[85]Hospital midwife Maslin recorded the following:

“The call at 18:05 was the first knowledge I as the labour ward co-ordinator had that [Mrs A] was in labour although she appeared to have been labouring for most of the day.”

[86]Mrs A was transferred to the hospital very soon after the baby. She and her husband were of course in the hospital when efforts at resuscitation were finally abandoned. Mrs A remained in hospital overnight, as she herself needed some treatment. She was then discharged home.

The aftermath

[87]In order to consider the evidence subsequently given to the Panel by Mr and Mrs A, it is relevant to look at the contemporaneous documents of the period after the stillbirth insofar as they reveal the attitudes they were expressing at the time.

[88]On the morning of 6th September, the RD&E midwife supervisor Maria Patterson visited Mr and Mrs A at home. The Appellant was not present, and there is no basis for concern that she influenced what they had to say. Her note of their conversation is worth recording fully:

“Long discussion with [Mr and Mrs A] regarding birth. [Mr and Mrs A] are comforted by the fact that [Baby L] died at home and was stillborn – therefore no trauma. [Mr and Mrs A] do not regret their decision to opt for a homebirth – however do have concerns regarding the 36 week appointment at the RD & E where they felt they were given no options….I have taken notes today and feedback to the RD & E team about how we can make our service more family friendly.”

[89]Within a day or so of the critical events, the Appellant was suspended from practice as a midwife. This action was instigated by Ms Beale. Mr and Mrs A were in text communication with the Appellant from the very early period after the stillbirth and were aware from the beginning of the Appellant’s professional difficulties. On 12th September Mrs A texted to the Appellant saying “Hi Julia – we are thinking of u 4 your meeting. love….x”. On 20th October Mrs A texted to the Appellant “Hi Julia can u txt me Fiona’s numbr? As we r staying with friends nr Stroud so mite b abl 2 c hr x hpe alls wel with u x”. On 23rd October Mrs A sent a friendly text message to the Appellant asking for homeopathic remedies and signed off “love [Mrs A] x”.

[90]Although not a fully contemporaneous document, the evidence of Fiona Shaw formulated in a statement of 17th October 2007 bears on the same issue: the continuing attitudes of Mr and Mrs A. In her statement Ms Shaw sets out how she was engaged in the role of helping at the birth how she arrived at the house in the early morning of 3rd September how she left later that morning and returned at around 3 o’clock in the afternoon. It does not appear from her statement that she had much contact with Mr and Mrs A before this point. It is however fair to say that according to midwife Shaw’s account there was no indication at any stage that Mr and Mrs A wanted to transfer to hospital at any stage in the whole process. There was never any suggestion that midwife Shaw should be disciplined as a result of the events with which we are concerned.

[91]Two or three points set out by midwife Shaw in this statement are particularly worthy of note. Fiona Shaw stayed behind with Mrs A and travelled with her in the second ambulance to hospital. She records Mrs A as saying:

“…she was in emotional shock, but feeling mentally quite focused. She said she was scared about being in hospital because she would have to meet the hospital staff who had not supported her decision to have a homebirth.”

[92]Later the same evening Fiona Shaw spent time with Mr and Mrs A. She records the matter as follows:

“…going through events, feeling etc. [Mrs A] said that she still felt OK with her decision to birth at home, despite outcome, because she knew she wouldn’t have been able to have an undisturbed, natural breech birth in hospital; and she believed that was what the baby wanted. [Mr A] also in agreement.”

This response was of course made at a moment of terrible crisis, but it is a rather striking record of the attitudes of Mr and Mrs A after the death of the baby. There is no hint of any complaint by Mrs A about the actions of the Appellant. There is no suggestion that Mrs A was dissuaded from coming into hospital for a Caesarean section. The same picture emerges from midwife Shaw in her amplified statement of 27th July 2008. In the course of that statement, Ms Shaw makes it clear that she knew by 4th September 2007 firstly, that the Appellant had been suspended and secondly that she herself had a conversation with Valerie Beale about the case on that day and was told that she, Fiona Shaw, would not be suspended. It follows that Fiona Shaw’s two statements were both given at a time when she had been reassured that she was not under consideration for suspension or indeed criticism.

[93]There was continuing text traffic between the Appellant and Mr and Mrs A during November 2007. It is clear from the texts that the parents were fully aware of the continuing professional disciplinary action in relation to the Appellant. On 24th November 2007 the Appellant texted Mr and Mrs A including the following:

“Wish me luck for Tuesday! If you felt able to email me a couple of lines saying you are happy with my midwifery care that could be useful, but don’t worry if you’re not up to it yet. Lots of love Julia”

. The response was an email from Mrs A on the following day in these terms:

“Hi Julia, will b sending u an email this eve. Also one 2 r MP – do u no v beales official title? Love [Mrs A].”

Further exchanges over that evening included this from Mrs A: “We wil b thinking of u – we’r with u al the way. x”.

[94]Mrs A did indeed email her Member of Parliament during that evening. The text of the email is worth quoting: “Dear Ben Bradshaw It was really good to talk with you a few weeks ago regarding the stillbirth of our beloved son [L]. Thank you for keeping us informed of your correspondence with the NHS Trust. Something has come up which we’d like your support and help with regarding our independent midwife Julia Duthie. We employed Julia as our midwife as a direct result of the dreadful NHS care we received during my pregnancy. Julia was professional, consistent, proficient, thorough and compassionate in her midwifery care – everything one would expect from their midwife. She took detailed notes and monitored [Mrs A] well. The care we received from Julia far surpassed that of the care we received from the majority of NHS midwives we encountered. However, following the stillbirth of [Baby L] Julia was ILLEGALLY suspended for eight weeks by Val Beale, Local Supervising Authority Midwifery Officer which was later acknowledged by the NHS who offered to pay her costs. Despite this Val Beale referred Julia to the Nursing and Midwives Council (NMC) and the hearing is taking place on Tuesday 27th November…it would be helpful for you to express an interest in this hearing and shine a light on this process as there is a gross miscarriage of justice occurring whereby Julia is being scapegoated. However those responsible for the negligence we experienced from the NHS, including our consultant and various midwives appear to be protected by the system which failed us so dismally. Please see attached email, a recent email we sent to Julia in support of her case”.

[95]The second email attached to that addressed to the MP is in very similar terms, fully supportive of the Appellant and rehearsing no kind of complaint. The email sent to the Appellant’s lawyer of 25th November recites a number of complaints about NHS treatment at the hands of midwives but concludes as follows:

“…the limited support, information and discussion we received from the NHS during the first 39.5 weeks of our pregnancy. For us, this is where the problems lie in this case and this is just a few of the examples. We fail to understand why Julia Duthie, a proficient and efficient professional, has been targeted while the mistakes and lack of care from NHS midwives involved have been glassed over. Please note Julia Duthie is a competent, caring and professional midwife who supports pregnant and birthing women positively and respectfully – in a way the NHS seem utterly incapable of doing. Yours faithfully [Mr and Mrs A]”

Yours faithfully

[96]Mr and Mrs A continued in a positive frame of mind towards the Appellant at least until Christmas 2007 when, as [Mrs A] confirmed in evidence, they gave the Appellant a Christmas present and told her “you are one of the most beautiful people that I’ve ever met.” As I shall recite later in this judgment, the gift and message post-dated the newspaper article which Mrs A gave as the cause of her change of mind towards the Appellant.

[97]So far, I have analysed events on the basis of the contemporaneous documents, or the evidence of witnesses other than the Appellant, or Mr and Mrs A. I now turn to their evidence, to consider how it is or is not consistent.

The oral evidence of Mr and Mrs A

[98]Both Mr and Mrs A gave evidence towards the Panel. In Mrs A’s case, the evidence was given via a video link. This mode of giving evidence was permitted by the Panel in the face of opposition from counsel on behalf of the Appellant. The Appellant has submitted that Mrs A did not fit within any of the specified categories of witness in respect of whom the Panel had power to order such arrangements (see the Nursing and Midwifery Council’s Fitness to Practice Rules 2004 (SI20041761) as amended, regulation 23). This submission may well be right, but I make no conclusion upon it. The evidence of Mrs A was extensive and fully tested in cross-examination. In my judgment there is no basis for concluding that the Panel’s decision was “wrong” by reference to this procedural step.

[99]I begin by summarising the evidence of Mrs A. It is critical to the case for the Appellant that there were widespread and important conflicts between her evidence and the contemporaneous notes in the case, not merely and not principally with the notes made by the Appellant, but with notes made by other midwives and doctors.

[100]In chief, Mrs A described her delivery with her older child as a “straight forward caesarean”. In my judgment, this is not an accurate description of the emergency caesarean section with complications as described in the notes made at the time, or indeed as described by Mrs A herself on a number of occasions when considering how to approach her second birth.

[101]Mrs A’s evidence in relation to the later delivery was that she had all along intended to have a caesarean: “For me, I was thinking that I would have a caesarean but I wanted a midwife that I knew with me during that” – day 4 page 33G” “I was not really up for having the baby at home. I actually considered having a caesarean….[the Appellant] started to instil some confidence in me about..a home natural birth.” – day 4 page 34C/E

[102]Another key point in Mrs A’s evidence was that it was an absolute precondition for a home birth, that there should be present a midwife with experience of breech delivery:

“Yes, there was absolutely no way we were going ahead at home unless we had somebody with breech experience, preferably expertise, present and so we made that very clear to [the Appellant]. That was discussed at every phone call and every time we met her. It was absolutely that was just the way it was. There could be no way that anyone could interpret that differently, so, yes.”

[103]Another key point in Mrs A’s evidence was that she was reassured as to the breech-experienced second midwife by the Supervisory Plan produced by Carol Axon. Acknowledging that she was aware the Appellant was having difficulty in locating a second midwife with experience of breech delivery, Mrs A said this: “I believe, as far as I know, Julia Duthie discussed [whether we should proceed with home delivery if there was not a second midwife with breech experience] with Carol Axon as well. The reason that I believe that to be true is that after Maria Patterson’s final visit to our house, Julia visited, so that would be week 40, between week 40 and 41 of my pregnancy, and we discussed the fact that Ms Duthie was still trying to find a breech expert to be present with her, and that as we got closer to my due date and as time went on, more and more breech experienced midwives were becoming available, so she was very hopeful about that. Then I had gone through the birth plan with Maria Patterson, and as far as I knew everyone had gone through it with each other. My husband and I discussed it with Ms Duthie and we understood that, if she could not find anybody when I went into labour, she would be able to contact Carol Axon, and Carol would be available to come out to my home and assess the situation, whatever the presenting situation was, whether she was going to say it was fine, or whether she was going to say I need to be admitted. However it was, she would be available to do that. Then we all laughed, Ms Duthie, my husband and myself with relief that, whatever happened, we would definitely have somebody present with breech experience to advise…” – day 4 page 38 a-c It was clear from Mrs A’s evidence that the Appellant had informed her she was unable to find a second breech-experienced midwife to attend. The evidence from Carol Axon was there was never any offer by her to attend in person and that was not the content of the Supervisory Plan. I have already made reference to that earlier in this Judgment.

[104]Mrs A was taken, in chief and in cross-examination, to the advice given by Mr Myles Taylor on 24th August 2007, following the scan which revealed the large size of the foetus. Mrs A acknowledged the strength of the advice given by Mr Taylor as to why home delivery was inappropriate, as was an attempt at vaginal delivery. This was the occasion when Mr Taylor deployed the metaphor of crossing the motorway blindfold. Mrs A’s account was that following this discussion with Mr Taylor, and in the course of the tour of the birthing suite in the hospital conducted by Maria Patterson, Ms Patterson reassured her as to the risks, in effect undermining the thrust of the advice given by Mr Taylor. Mrs A said this:

“I said to her “that is an extreme consultant opinion. What is a midwife’s opinion on this?” and she said to me “Generally speaking, the idea is that you only grow a baby as big as you can birth”

. She also said that, because I live so close to the hospital and the ambulance is only a few minutes away that in the first stage of labour, it would be likely that I would know something was not going to happen, and at first stage, I would have plenty of time to get into hospital, so it would be quite feasible to start at home and come in for caesarean at any point. I thought, OK, that actually that sounds feasible, and that was where we were at then. That was it, so from that point, pretty much after seeing Myles Taylor, because he was so vulgar, I thought, yes, I will start at home and I will come in as I need to. Then Maria took us for a tour around the birthing suite.”

[105]There is no note by Mrs Patterson of any discussion in terms such as those suggested by Mrs A. Indeed, Maria Patterson rejected the suggestion that she would give such reassurance with the effect of undermining the advice given immediately beforehand by the consultant. Her evidence was that she was clear his advice was correct. She of course was fully aware that the large size of the foetus added to the risks of the delivery. There is a direct conflict here between the evidence of Mrs A and Maria Patterson.

[106]The next key point in Mrs A’s evidence was that she was actively reassured by the Appellant and by Mary Cronk, the senior independent midwife with experience of breech delivery, as to the risks described by Mr Taylor. Mrs A stated that the conversation with the Appellant after her consultation with Mr Taylor arose as follows: “…because I think ultimately I always wanted to go in for a caesarean section. I had envisaged that right from the beginning of the pregnancy that I would end up having a caesarean. That was what I had envisaged. I discussed that with [the Appellant] a lot, and I think that would have just been part of our normal discussions about going in for a caesarean, and what that entails” – day 4 page 46 E/G

[107]Mrs A’s account of the Appellant’s response to the meeting with Myles Taylor was as follows:

“…because Ms Duthie and Mary Cronk have told me that having a baby at home was safer than having one in hospital, and after my meeting with Myles Taylor, who actually I felt did not really explain the risks in an informative, coherent way, it felt like, if I was to describe it, this pool of NHS mess that I had been pushed and prodded, and “Go over here. They will give you advice. Go over here”

. Then I walked out of those doors into the arms of Julia Duthie, who just looked or came across as completely relaxed, supportive. “We do not need to do anything. You can just sit here and have your baby, and it will all be really lovely and relaxed. They are just completely fear-based. They take you down roads you do not want to go down”. She basically said to me and to my husband that, with her being present, it was the safest way to go, and we took that onboard.” – day 4 page 45 C/E

[108]Mrs A’s account was that in the early morning of Sunday 2nd September, after a period over the previous day or two of what she described as “chronic pre-labour pains”, that she was feeling poorly. She spoke to her husband and told him “I have to go into hospital now and have a caesarean immediately” and he said “Whoah where has this come from?” and I said “I just know I have to do that. I have to do it”. As a result they phoned the Appellant who said she would come to assess the situation. Mrs A said that they could meet at the hospital but according to Mrs A’s account the Appellant diverted her and said she would come to the house. When she came to the house, Mrs A suggested that the Appellant had said “you do not need to go in”. At the Appellant’s suggestion, Mrs A rang Mary Cronk who, she said, reassured her about the nature of the pains she had been having and told her there was plenty of time.

[109]Mrs Cronk gave evidence to the Panel about this episode. It seems fair to say she had no detailed recollection of this telephone call, but she did confirm that she told Mrs A it was not unusual to have some intermittent contractions, irregular in rhythm and rate, when there had been a previous caesarean section. Mrs Cronk said she tried to give general advice rather than case specific advice. She said she would have referred Mrs A back to her own midwife. She did not know that the Appellant was present when Mrs A made the telephone call.

[110]Mrs A’s account was that it was that which prevented her from going to hospital during the day on the Sunday. About 10 o’clock in the evening of the Sunday, Mrs A’s waters broke. According to Mrs A, when her waters broke, she and her husband had a discussion to the effect that if the baby had not been born by the morning they would go to hospital for caesarean section. She said she laboured throughout the Sunday night into the Monday morning and by about 7am was exhausted. Then she said this:

“We looked at each other, and we said “now is the time isn’t it?” and yes, it is the time, so that was pretty good, because thought, right, we are going in to have our baby. We felt very positive about that decision, and excited. Julia Duthie was sitting on my living room floor, and we turned round to her, and then said “we want to go in for a caesarean section now” and she just sighed. She did not make any response apart from sighing.”

After describing how the Appellant was passive and did nothing to help their departure Mrs A’s evidence went on:

“We got to the door of my living room, and then there was a noise at the window, which made us all turn round. I think my daughter was jumping up and down, and we all turned round and there was a squirrel at the window, sort of tapping away, whatever it was doing. We all turned round, and it just made us burst into laughter and it completely defused the whole tension and my upset of Julia not responding. We laughed, and then when I turned round again Ms Duthie was standing up, and she had her arms wide open, and she said “See. See. Let’s just see how the baby is doing before we make any decisions about going into hospital.”

Mrs A then permitted the Appellant to check the baby’s heartbeat following which she describes the Appellant as saying:

“You do not need to go to hospital. Everything is absolutely fine. There is no need. This is completely normal. You can just sit down and rest.”

[111]Mrs A described a further occasion later on the Sunday, when on her account labour had ‘eased off again’ and she was really worried and uncomfortable. On Mrs A’s account she said directly that she should go in for a caesarean section and was told as directly by the Appellant that she did not need to. Mrs A located this as mid morning towards lunchtime.

[112]After the emergency trip to hospital and the acknowledgment that the baby had been stillborn, Mrs A was taken to theatre for a necessary but minor procedure and was present thereafter with her husband and her stillborn child in the bereavement suite. By that stage, the Appellant had already been suspended by Valerie Beale. Mrs A described her own reaction to the suspension “a shock to me, because I at that point could not imagine the reasons for her being suspended”. In my judgment this was a significant comment.

[113]Mrs A was then asked, with reference to the text and email messages she sent, as to why she was supportive of the Appellant to the extent revealed by those messages. In effect the question to Mrs A was built up as a series of propositions derived from her account in evidence: she was all along given advice in the strongest terms to go to hospital and have a caesarean section; her own intention always had been to have a caesarean section, even if labour began at home; on three occasions she had come to the point of deciding to go to hospital then and there; on each occasion she was dissuaded from doing so, on her account, by her independent midwife. Complications had then arisen in the course of the vaginal delivery at home which would not have arisen had there been a caesarean section. As a result of those complications her baby had died. Neither midwife present at her home had been able to resolve the complications. Mrs A’s case was all along that without the presence of a midwife experienced in breech delivery attempted vaginal delivery at home would be something she would not contemplate, and an added element in the story was that on Mrs A’s account she had all along believed that Fiona Shaw was experienced in breech delivery until a discussion with midwife Shaw in the ambulance on the way to hospital which revealed to her that the second midwife did not have that experience. With all those elements present in the story, the critical question to Mrs A was why had she supported the Appellant so enthusiastically after the terrible outcome?

[114]Essentially, Mrs A’s response was to say that she supported the Appellant not because she had genuinely wanted a home birth, but because the Appellant was insistent in asking for support. She and her husband had come to the view that they should ‘do what she wants and then she will be off our backs’.

[115]In the course of extensive cross-examination, Mrs A was taken to the notes made by other doctors and midwives. It is not necessary to repeat the content of those notes, which I have deliberately set out extensively earlier in this judgment. There is a very wide ranging conflict between Mrs A’s account of her own intentions throughout and what was written down by all of the doctors concerned. Mrs A had no substantial explanation for any of the conflicts. She could not explain what was written. She was all along intending to go to hospital for a caesarean section.

[116]Mrs A was also cross-examined fully about the manuscript notes of the labour made by the Appellant: that is to say the notes made contemporaneously with the labour, for much of the time with a second midwife present; notes which will have been evident to Mr and Mrs A as being compiled at the time and in respect of which there was no suggestion of revision or fabrication after the event. These notes cover the critical period when Mrs A suggested there were three times when she decided to go to hospital but was dissuaded by the Appellant. There is no mention of any such occurrence in the notes. When asked about that Mrs A stated she could not account for the fact.

[117]Mrs A was also taken to the content of the ‘Axon Plan’. At the end of her evidence she was asked by a Panel member to confirm that she had seen this plan and to say what she thought of it. She confirmed that she had and that she thought the plan was “very good”. It will be recalled that this plan had been gone through by Mrs A before the labour and she had agreed it. Counsel for the Appellant took her to the plan and specifically to the sub-heading ‘Support at the Labour/Birth for Julia: 1. A second independent midwife will be present at the birth. It is hoped that an independent midwife with experience of breech births may be present but not guaranteed’. Mrs A was asked in effect if this did not mean she was clearly aware that the second midwife might very likely not be experienced in breech birth. Her answer was: “But our plan, between myself and Ms Duthie and my husband, and I think Maria Patterson was aware of this, was that there would be a second midwife present with breech experience, and it was indisputable. That is simply the way that it was and it’s most certainly how my husband and I believed it to be, and it was also contracted between us and Ms Duthie that, if she couldn’t find somebody, she would tell us, and she didn’t tell us when she couldn’t find somebody and so, by not telling us, she took away that choice ours anyway and made it her own”.

[118]As I have already made clear, Mrs A’s case was that she only discovered that Fiona Shaw did not have experience with breech deliveries when she asked the direct question of midwife Shaw in the ambulance on the way to hospital. This is a problematic account in any event, since her evidence is that she had understood Fiona Shaw had such experience. It is not easy to see why she should then ask this question at such a moment. According to the evidence of Mrs A, when Fiona Shaw was asked the question “she looked extremely sad and said ‘No I don’t have any experience, none.’ and I was absolutely devastated and, when I got to the hospital and my husband joined me in the room I said to him ‘I feel as though I’ve just been voyeured’”. Mrs A said she retailed this to her husband and he “just looked absolutely devastated, as if he’d just been hit by a brick; he looked broken…”.

[119]This account is directly at odds with the statements of Fiona Shaw, neither of which record a conversation consistent with this. The Appellant put to Mrs A that this was also inconsistent with her discussion with Maria Patterson in the days after her discharge, wherein she is said to have told Mrs Patterson that she had no regrets about the decision to give birth at home. When this was put to Mrs A, she firstly said that she did not recall saying that and then explained her response to Maria Patterson by stating that she had been through intense trauma and intense grief.

[120]On this specific issue, the panel concluded that the evidence was equivocal as to whether this fact was mentioned to Mr and Mrs A.

[121]The evidence from Mr A was taken before that of his wife. He was taken to the birth plans which had been prepared. His evidence was that the intention was either to have a home vaginal delivery, or if the delivery was in hospital, it should be by caesarean section. He expressed this point as “recognising that a caesarean was a likely outcome”. This is not the same position as his wife advanced, of wanting a caesarean from the beginning. As to a second midwife with breech experience, his initial evidence was that he was aware the Appellant had been having difficulties finding someone, but “there was an expectation it would work out”. He then said that having a breech-experienced midwife was “part of the contract” and that to proceed at home without such a midwife was “ridiculous” and “playing with fire”. He stated that he assumed Fiona Shaw was “an expert” in breech birth, although he did not know who she was.

[122]In cross-examination on this issue, Mr A said that “when it emerged that [the Appellant’s] supervisor [meaning Carol Axon] would be available...we considered we had a breech expert on tap effectively”. He was taken to the Supervisory Plan, which was explicit that a second midwife with breech experience could not be guaranteed, but he said it was his understanding that if there were “concerns” then Mrs Axon “would come out”.

[123]Mr A’s account of the conversation with Mr Taylor confirmed the contents, and Mr A understood that in the view of Mr Taylor it was an “open and shut” case that there should be a caesarean in hospital. He then described the tour round the delivery suite in the RD&E with Maria Patterson, who seemed to him to be supportive of “starting a labour”. He confirmed that he and his wife were reluctant to be in hospital for the birth, and therefore confirmed the difference between his account and that of his wife, that there was a desire for a caesarean section from the beginning. On Mr A’s account, it was the discussion with Mary Cronk which reassured Mr and Mrs A that in a breech delivery, a big baby is a “good thing”.

[124]However, on his account also he and his wife changed their mind over the weekend and by Sunday morning his wife called the Appellant, who was “disappointed” but went along with the decision. Then he said the Appellant, having come to the house, listened to the baby’s heartbeat and said “there is no reason to go into hospital. Everything is fine.”

[125]Mr A confirmed that his wife had said, after the event, that she had been concerned she would be letting Mr A down if she went into hospital for a caesarean section.

[126]Through the night of Sunday 2nd September into Monday 3rd, Mr A’s evidence was that the labour was progressing well until dawn, and then it “stalled”. During the previous hours, he also said he and his wife had discussed things and decided that if the baby was not born by the morning, they would go to hospital. At about 7am the moment had come. Mr A thought there was a booking for a caesarean section at the RD&E on the morning of Monday 3rd September. They had told the Appellant they were going and they were “halfway towards the door” and “standing up” when the squirrel tapped on the window. That changed the atmosphere. He said that the Appellant checked the baby’s heart rate, and then reassured them that the length of the first stage of labour was not that important. That he said meant they settled down and did not go to hospital.

[127]Mr A was cross-examined by reference to the labour notes relating to the period during the night and early morning of Sunday into Monday, the period when he suggested the labour had stalled, and he and his wife had decided to go to hospital. It was put to him that his account was at odds with the notes, which suggested steady progress. He had no comment on this.

[128]Later that morning, Mr A said there was a further episode when his wife woke up from sleep and was concerned that the labour was “stalling” and wanted to go to hospital. The Appellant made the same points as before, which meant they did not go in.

[129]Mr A was also questioned about the aftermath, his feelings about what had happened, and his actions. He said that in the immediate aftermath of the birth he “held [the Appellant] responsible. I thought she had made mistakes”. When he discussed matters, however, he moved away from that position, because he felt “supported”, presumably by her. He was jointly responsible with his wife for the text of the emails which were sent. They were sent because “nobody was looking at what had happened in the NHS.”

[130]His view of the Appellant changed because of the news article in the local paper following the preliminary hearing. It was pointed out to him by friends and he felt there was a “lot of stuff that just did not ring true for us”. It is clear that the central point was a reference to Mrs A’s past history, which according to Mr A as well as his wife, they assumed had been brought out by the Appellant. However, Mr A gave no explanation as to the sequence, and why he and his wife had been friendly to the Appellant as late as Christmas 2007, some weeks after the offending article was published.

The Appellant’s Evidence

[131]The Appellant is an experienced midwife, with a number of years experience in the NHS, before she went into private practice in 1990. At the time of these events, she was attending eight to 14 clients a year, giving them domiciliary care. If a client went into hospital, the Appellant would attend as a companion and supporter, but would not have clinical responsibility in hospital. She was subject to a Supervisor of Midwives, who would review her practice once a year. She underwent annual training. She had seen five or six breech births, but a doctor was in charge of delivery. She had undergone specific training in vaginal breech delivery, with Mary Cronk and another expert, who had extensive experience of breech births before medical policy changed to lay the modern emphasis on delivery by caesarean section.

[132]The Appellant described her practice with clients. She stated that, apart from this case, none had ever refused her advice to go into hospital. She normally left the bound or book-form ante-natal notes at the client’s home until the baby had been born, after which she retained them. Her practice was to make manuscript notes of telephone calls, keeping a pad by each of the three telephones in her home. Then, her practice was to type up fuller notes of the conversation.

[133]The Appellant described her early contact with Mrs A. She stated that her impression was Mrs A was unhappy with having been given no choice by the NHS but a repeat caesarean section, and that she was looking for more choice. The Appellant’s account of their first telephone conversation was to the effect that Mrs A should consider Torbay Hospital for hospital delivery, because of the risks to the baby if breech, and because of the “woman-centred” approach of that hospital.

[134]At their first meeting, the Appellant confirmed she told Mr and Mrs A she had no experience of managing a breech birth herself. Her preference would be for delivery in hospital, but if the delivery was to be at home, then she would want a midwife with her who did have experience of breech birth. That meeting was in early July.

[135]The Appellant did not hear from Mrs and Mrs A for some weeks. Then she was telephoned at 10.30 pm on 25 July and told by Mrs A that she wanted the Appellant to be her midwife.

[136]At the first ante-natal booking, the Appellant said that she had a meeting of over two hours, making notes in the bound ante-natal book as she went along. The risks of this birth, the Appellant’s lack of experience and the desire to have an experienced second midwife were all discussed. The Appellant knew Mrs A was concerned about a caesarean section, because of her earlier experience at the birth of her daughter. The Appellant described in evidence how Mrs A told her she had been raped when much younger, which affected her approach to vaginal examinations, and the fact that she had been adopted, which gave rise to issues about separation.

[137]The ante-natal notes would have been left with the client after this visit. The Appellant stated that the parts of the book concerning Mrs A’s previous birth experiences and her background were not filled in by Mrs A for some time after this, indeed she thought between 21st and 28th August.

[138]The Appellant said she always thought that if there was a labour at home, intended to culminate in a home birth, but there arose a need for transfer to hospital, that hospital would be the RD&E rather than Torbay, since the RD&E was only a mile and a half from the home. She made extensive efforts to find another midwife with breech birth experience, contacting more than 20 independent midwives without success. Her case was that there were midwives with experience of breech birth working within the NHS locally, but support from one of them was never on offer. The Appellant said she knew of another case where an independent midwife had been offered such support in the context of a breech birth at home, only to find that the support of NHS midwives was subsequently withdrawn. The implication was NHS could have offered the key support to the Appellant, but there may have been a decision not to do so.

[139]At the second ante-natal appointment, on 14 August, the Appellant stated she had been informed that Mr and Mrs A had decided against going into Torbay Hospital. The Appellant was disappointed by this, she said, because the high risk meant that the birth was better in hospital. She had by then heard from Carol Axon and at this meeting her understanding was that Carol Axon might be able to help as the second midwife, which was a considerable relief to herself and to Mr and Mrs A. It was later that it became clear Mrs Axon was not offering to come to the house.

[140]The Appellant spoke to Mrs Axon after this meeting to tell her that Mr and Mrs A would not be keeping their appointment at Torbay. On her account, the Appellant was then told of the risks which would have been described to the parents by Dr Pandher and Mrs Axon, had the appointment been kept.

[141]The Appellant gave evidence as to the phone call she received from Carol Axon, where she said it was made clear, contrary to the Appellant’s earlier understanding, that Mrs Axon was not proposing to attend the birth. Her support would be on the telephone. The Appellant was disappointed with this. Her case is that she told Mr and Mrs A. However she did go to see Mrs Axon and refreshed the training she had previously had about dealing with breech birth. The Appellant told Mrs Axon of the efforts she had made to find a second midwife with breech birth experience, so far without success. She discussed with Mrs Axon the client’s reluctance to have vaginal examinations, connected with her experience of rape. The Appellant had in fact been taught by Mary Cronk to “keep her hands off the breech”.

[142]On 22 August there was a further telephone call with Mrs A, who seemed very anxious to the Appellant, very concerned about the hospital “taking over”. However on the following day, 23 August, Maria Patterson from RD&E spoke to the Appellant on the telephone, having been to see Mrs A at home on the previous day, and in effect had been able to reassure Mrs A somewhat.

[143]Then came the important events of the 24 August. Mrs A had telephoned the Appellant after her meeting with Mr Taylor, “very angry” with the way the scan had been dealt with.

[144]I have analysed above the different notes of this conversation. The Respondent’s case is that the second note is “an insertion”. The Appellant’s account of events draws on both notes.

[145]The scan itself had been very useful, and Mrs A told the Appellant that the baby was large. The Appellant recalled having heard that a large baby might be positive in a breech birth because there would be a large presenting part, and recommended Mrs A to contact Mary Cronk for advice. However her evidence was that she also realised the size of the baby was an added risk and “it would be much better to give birth in hospital, even if she was still declining a caesarean.” The Appellant stated that she said that to Mrs A at the same time as advising her to contact Mary Cronk.

[146]The Appellant’s evidence was that Mrs A was concerned about labouring in hospital and felt safer with the prospect of labouring at home, with the possibility of going into hospital if something happened at home. Her view was that Mrs A was quite decided about not initially going to hospital. She had cancelled her appointment with Torbay, she was concerned at the hospital “taking over”, she wanted to practise hypno-birthing and felt that would be disrupted by hospital conditions. Right from her first phone call to the Appellant, following study of literature about home breech births, including material written by Mary Cronk, the Appellant understood Mr and Mrs A wanted to proceed by vaginal breech at a home birth. This was still her reaction after seeing Mr Taylor.

[147]On the same morning, Carol Axon’s Supervisory Plan had arrived with the Appellant. She was taken aback to find that Mrs A had already seen it and discussed it with Mrs Patterson. The Appellant was taken aback, since it had never happened to her before that a supervisor had communicated with a patient direct, rather than speaking to her. However she discussed the plan with Mrs A. The client was concerned at the level of monitoring suggested in the plan and had other concerns, particularly as to vaginal examinations and monitoring for scar dehiscence. It was also in the course of this conversation that Mrs A told the Appellant that in the case of any emergency, and if both she and her baby were at risk, it was imperative that her life should be saved ahead of her baby’s life, since she did not want to think of her daughter being without a mother.

[148]The Appellant also discussed this plan with Mrs Axon. She had not done so for some days after seeing it, essentially because she was put out at the way it had been introduced to the client but not yet to her. She was cross-examined quite extensively about the plan. She thought there were a number of “loopholes” in the plan. She accepted her obligation as the midwife with responsibility for this high risk birth in the community to assess as accurately as possible the progress of the labour. It was put to her that this could really only be accurately be done by way of vaginal examinations, and yet this mother was reluctant to have such examinations. The appellant’s agreed that vaginal examinations were the only way of accurately assessing progress before the cervix was fully dilated. However after full dilatation, there were other methods, as she had been taught by Mary Cronk and Jane Evans in the course on breech births. She gave evidence of four complementary methods which she had been taught.

[149]The plan did not provide as a necessity or pre-condition for the presence of a second midwife with experience of breech birth. It was something to be hoped for. She was aware of such midwives in practice within the NHS, but the plan did not provide for them to help. There was never an offer of help from such a quarter.

[150]The Appellant accepted in cross-examination that the plan was in substance sensible, but it was not “complete or accurate” and she would have wished that Mrs Axon and she had compiled it together.

[151]In discussing the plan with Mrs Axon, the Appellant stated she made it very clear that this mother, because of the history, was refusing vaginal examinations. This was in direct conflict with the evidence which had been given by Carol Axon.

[152]Mrs Axon’s evidence to the Panel was that the Appellant had told her she thought Mrs A would in the event agree to vaginal examinations. The evidence of Maria Patterson when compiling the “ALERT/INFORMATION” she prepared for the RD&E obstetric department was that she noted “Ms A has agreed to….vaginal examination if labour establishes”. The notes the Appellant prepared when actually at the house, as opposed to her notes of telephone discussions, are less trenchant as to Ms A’s position. The relevant passage reads:

“Vaginal examinations discussed [Mrs A] not sure how she’ll feel about this, she may decline but be willing to examine herself & describe her findings to me”

. All these were put to the Appellant in cross-examination. Her response was to assert how clear it was Mrs A would not agree to such examinations, her body language was “giving me a very clear ‘No’ “. It was put squarely to the Appellant that this refusal did not happen. Her response was equally clear that it had happened and that she had reported the refusal to Mrs Axon.

[153]By 31 August, the Appellant had not found any other independent midwife with experience of breech birth. She made a large number of contacts on that day and ended with contact with Fiona Shaw, retaining her to assist at the birth. She knew midwife Shaw by reputation, although she also knew she did not have experience of breech birth.

[154]The Appellant had contact with Mrs A on the morning of 1 September. She was not in labour but had periodic aches. Nothing else of note happened on that day.

[155]On the morning of Sunday 2 September, the Appellant agreed there was a significant conversation. The Appellant was asked to ring Mrs A. When she did, she was told that there had been a few contractions overnight. Mrs A wanted to know if this was what had been meant by Mary Cronk when she had advised going into hospital if there was no progress with contractions. Mrs A did ask if she should go and have a caesarean. The Appellant’s account was that she would support her in that, but she would come and examine her, which she did. The Appellant firmly denied that Mrs A had positively requested a caesarean section. Once she saw Mrs A, her view was that there was no established labour and therefore no failure to progress. In other words, the situation identified to Mrs A by Mary Cronk as requiring immediate transfer to hospital had not arisen. The Appellant stated that she had said to Mr and Mrs A “we can still have a beautiful caesarean”, as a response to Mrs A’s concerns about hospital. It was at this point that Mrs A said “[Baby L] wants to have a home birth”.

[156]The Appellant described how Mrs A made the phone call to Mrs Cronk that morning, and how Mrs Cronk gave essentially the same advice. After speaking to Mrs A, the Appellant took over the call to Mrs Cronk. At the end of the conversation, it was clear that there was no definite advice from Mary Cronk to go into hospital immediately. In the light of that, Mrs A decided to carry on with home birth.

[157]The Appellant described her feelings in the course of these events. After the telephone call from Mrs A, she stated that she warned Fiona Shaw she might well not be needed, “because [Mrs A] is agreeing to a caesarean now”. The Appellant said she was relieved when it looked as though there would be a caesarean, and had “some disappointment” when matters reverted.

[158]When the Appellant was cross-examined on this part of her account, it was put to her strongly that her obligation at this point was firmly to persuade Mrs A to go to hospital, and that in steering Mrs A towards speaking to Mary Cronk, she was in effect countering the advice of the doctors, and introducing a counterweight, likely to have the effect of diverting the impulse to go in for a caesarean. The Appellant’s response was that Mrs A had been in direct contact with Mary Cronk before, that it was Mary Cronk’s training on breech birth she herself had attended, and her understanding was that the concern in Mrs A’s mind arose from the specific advice Mary Cronk had given on the previous occasion. They “discussed” going to hospital and the upshot was the call to Mary Cronk, following which Mrs A decided to continue with home birth.

[159]This is a crucial moment in the story. The safety of the Panel’s findings on the central issue of fact turns on acceptance of the full extent of Mr and Mrs A’s account of these events.

[160]The Appellant returned to her client’s house that Sunday evening, and remained at the home until the transfer to hospital the following afternoon. She made notes throughout the night of progress, which was satisfactory. The Appellant was taken through these notes both in chief and in cross examination. There is no mention in the notes of any request to go to hospital, and the Appellant’s evidence was there was no such request. According to the Appellant, Mrs A never mentioned hospital or caesarean sections during this period. There were a couple of times when Mrs A expressed her doubt if she could “do it”, meaning achieve the birth, and the Appellant reassured her. She said in her evidence this is quite usual as a response from a woman during labour. But on her account, there was never a suggestion or request that they should go to hospital. In her evidence she confirmed that, and confirmed that her contemporaneous hand-written labour notes were full and accurate.

[161]The Appellant did recall the episode when attention focussed on a squirrel. However on her account Fiona Shaw was in the room at the time, and was able to hear the conversation. There was no tension in the room and no suggestion that they should attend hospital, or change to a caesarean section. Nor was there any other such suggestion of going in during the day, until the emergency developed and the hospital was contacted.

[162]In neither statement of Fiona Shaw does she recount any request by Mr and Mrs A to attend hospital or switch to a caesarean section. The Respondent’s argument is that midwife Shaw was not present at the relevant time, since the suggestions of going to hospital came in the morning, and she was not present until the afternoon. However the absence of any reference in midwife Shaw’s written evidence to the desire to go in, may not be wholly without significance.

[163]In the course of cross-examination, the Appellant was taken to task as to why she had not warned the RD&E to let them know that Mrs A was in labour, given the risks associated with this delivery. This step was provided for in the Supervisory Plan. The Appellant agreed, “on reflection”, that that would have been a good idea. However, once the birth began to go wrong, it would have been too late to transfer Mrs A into hospital.

[164]The Appellant’s case as to the aftermath of the stillbirth is that she kept in touch with Mr and Mrs A to give them support, and she acknowledges in effect that she was hoping they would support her position. They were supportive up to December, even after their shock at the report of the Interim Orders hearing.

[165]The Appellant’s account of the origin of the report in the local press was quite clear: the Case Presenter read out part of the witness statement of midwife Shaw which revealed that Mrs A had been raped. The Presenter also read out part of the Appellant’s note of her discussion with Carol Axon, where she had told Mrs Axon that Mrs A had said she would have “kicked” anyone who came near her for a vaginal examination. The Appellant was aware how upset Mr and Mrs A were about these details being made public. They had a discussion about this, and the Appellant had set out what was accurate in the report and what was not. She had been careful not to put the history of rape in the notes, and she had not introduced this material to the Interim Orders hearing. All of that had already happened before the meeting she had with the couple in mid-December, where they were affectionate with her, and gave her a rose quartz crystal heart. According to the Appellant, Mrs A told her as she presented this:

“I have had this in my pocket for the last two weeks to fill it up with my love.”

The Evidence of Professor Page

[166]In addition to character evidence, the Appellant called an expert witness to comment on many aspects of this story. Lesley Page is a Professor of Midwifery, with a distinguished academic curriculum vitae, a great deal of practical experience and considerable experience of management and clinical governance within the NHS. She submitted a detailed written report, based on a close reading of the documents, and she gave oral evidence.

[167]Professor Page’s view was that this was an unusual and difficult case. The baby was very high risk. At the relevant time there were very few professionals with real experience of managing breech birth, and vagina breech birth had become very rare. Yet there was official recommendation that women should be given a genuine choice as to the type of birth they desired.

[168]The witness was of the view that the Appellant had undergone more training than many midwives with respect to breech birth, although of course she had not experienced such a birth.

[169]Professor Page made one or two points which find their echo in the Panel’s conclusions on the central issues in the case. Once the risks have been explained to a woman who had refused medical and midwifery advice:

“there is a point at which many midwives will accept that advice has been refused, and will continue to provide care without constant reminders of the risks faced. There is a midwife psychology basis for this, in order to labour the mother needs to feel confidence and the midwife must provide some positive reinforcement. 170. Professor Page also points out that the NMC guidance (“NMC Circular 8-2006, 13 March 2006 – Midwives and Home Birth”) means the midwife must in the end respect the decision of the woman who makes the choice against advice. She appended this guidance to her report and the most relevant passages read: “It is a midwife’s duty to make all options and choices clear and to respect the choices a woman makes if she is legally competent to make that choice. The midwife should document the advice she has given to the woman in the maternity record…. ………… ………… Whilst an employed midwife has a contractual duty to their employer, she also has a professional duty to provide midwifery care for women. A midwife would be professionally accountable for any decision to leave a woman in labour at home unattended, thus placing her at risk at a time when competent midwifery care is essential. …………….. Should a conflict arise between service provision and a woman’s choice for place of birth, a midwife has a duty of care to attend her. This is no different to a woman who has walked into a maternity unit to receive hospital care. Withdrawal of a home birth service is no less significant to women than withdrawal of services for a hospital birth.”

[170]No doubt the Panel had these passages in mind when the formulated their remarks in relation to Limb 1 of the charge. It is this consideration which leads to the huge importance in this case of reliance on the evidence of Mr and Mrs A when stating that they changed their mind about going into hospital.

My Approach

[171]Regulation 38 of the Nursing and Midwifery Order 2001 permits the Court on appeal to dismiss the appeal, allow the appeal and quash the decision, substitute a different decision or remit the case to the Panel. The test is whether the decision was wrong: see CPR 52.11 (3)(a) and (b); Azzam v GMC

[2008] EWHC 2711

; Chauhan v GMC

[2010] EWHC 2093

. The Court will pay considerable respect to the findings of a specialist tribunal, particularly on matters where specialist knowledge is of real value. As was emphasised in both Cheatle v GMC

[2009] EWHC 645

and in Chauhan (supra), there will be a reluctance to condemn findings as wrong where the finding depended on assessment of the credibility of a witness, whom the Panel heard and saw and whom the High Court will not have seen. I bear those strictures carefully in mind. However, I note that caution or reluctance before interference is not to be misstated as a bar to interference. Particularly in a case such as this, which is rich in contemporaneous written evidence, it may be necessary to interfere, if the conclusions of a Panel cannot be supported even after careful analysis.

Conclusions

[172]The essential route by which this Panel reached their conclusions can be not unfairly characterised as the following series of steps: they found that the Appellant altered and expanded her notes, dishonestly, after the event, in an attempt to protect herself. They found this to damage her credibility. They found that conclusion supported the credibility of Mr and Mrs A. They accepted the evidence of Mr and Mrs A, where it was conflict with the notes made or the evidence given by the Appellant.

[173]In my judgment there was a flaw in that approach. The finding that the Appellant altered or manufactured notes can of course properly undermine her credibility, but it is a slender basis in this case for supporting the credibility of Mr and Mrs A. The important problem, which in my judgment was never properly addressed by the Panel, was the conflict between their evidence and the contemporaneous records, specifically the records created by other professionals than the Appellant, and those records created by the Appellant which were unchallenged.

[174]I begin with the Appellant’s notes. In my judgment there is no reason to interfere with the conclusion that the Appellant altered and added to her notes after the event, in an attempt to bolster her position. That she had at least to some degree warned Mr and Mrs A of the risks, for example on 6 August, and knew others had warned them in stark terms, is beyond doubt. However the stark contrast between the tone and content of the manuscript notes and the typed notes, often of the same conversation, supports the Panel’s conclusion on the point. I regret to say it is the natural inference from the evidence.

[175]I have set out an analysis of the Appellant’s notes earlier in this judgment. The fact is that there is a limited record of clear, unequivocal warnings of the specific high risks associated with this birth at home in any manuscript note, whether in the midwifery notes held at the house, or in the manuscript records of telephone conversations. Such warnings do exist, in graphic terms and with considerable repetition, in the typed telephone notes.

[176]The Appellant has argued that this extended hearing was procedurally flawed and unfair to the Appellant on this issue, because firstly, the existing charge of dishonesty was withdrawn before the hearing (although it is clear that the Panel chairman had forgotten that or become confused about it); secondly, no fresh or additional charge was laid accusing the Appellant of altering her notes and thirdly, because the Appellant was taken unawares by the suggestion she had manufactured or altered her notes, meaning that she was at a disadvantage in defending herself on the point. An illustration of the suggested disadvantage is that she was not able to call Fiona Shaw in person to support her on this issue.

[177]It is perfectly correct that the only charge alleging dishonesty was withdrawn. It was not this alleged dishonesty in any event. It could not properly have covered this allegation. It is regrettable that the Panel chairman thought at one stage late in the proceedings that the charge still lay, but in my judgment that is not material. He was properly advised about that and it seems to me this point carries no force. Nor do I accept that the approach of the Panel to the live suggestion of false notes was “tainted” by the Panel’s knowledge that there had been a different allegation of dishonesty which had been withdrawn. Whether these points are characterised as suggested unfairness at common law or breaches of

ECHR Article 6

is immaterial. In my view there is no substance to them.

[178]The suggestion that these passages in the typed notes were self-serving was in my judgment made perfectly clear. The term forgery was not used to the Appellant, but the substance of the suggestion was obvious. The Appellant denied any such thing. Her explanation of the typed notes is that they were simply fuller records than she could make when writing as she spoke on the telephone. She said her intention in writing the manuscript notes was to get down “the most important elements” of the conversation. She offered no other explanation of the absence of any repeated warning from the manuscript notes, when repeated explicit warnings are found in the typed notes. Given that was her account, I am not persuaded she was prevented from doing herself justice in answering the suggestion. If a decision had been taken as a result of this suggestion that it was necessary after, all, to call Fiona Shaw in person, then an application could have been made, and it is very likely to have been acceded to. No such application was made. I reject the argument based on the supposed inability to call Fiona Shaw in person, both because there was time to consider whether the timetable should be rearranged to facilitate that, and because her evidence could bear only peripherally on the question of the fabricated notes, the great volume of which predated Ms Shaw’s involvement.

[179]It may often arise in the course of a hearing that the natural inference is that a document or documents are not genuine, but have been altered or created to serve the case of a party. No Panel can be precluded from such a finding where that is the proper inference, simply because there is no extant formal charge of fabrication, any more than they can be prevented from concluding that a piece of oral evidence given is misleading or a lie. To take any other course would be to hobble the whole process.

[180]The Appellant had not disclosed the typed notes to Val Beale during her investigations. She said this was because “It wasn’t what Ms Beale was questioning me about”. This is a very weak explanation.

[181]Undoubtedly, the pattern of distinction between the manuscript notes and the typed notes, in the absence of a satisfactory explanation, can reasonably be said to justify this finding. For all these reasons, it seems to me it was perfectly proper for this matter to be gone into, and for the Panel to reach this conclusion of fact. This part of their conclusions was not “wrong”.

[182]There is a separate question which arises, however. It is absolutely clear from the conduct of this hearing that the Presenter knew from the outset that she intended to make the suggestion that some of the Appellant’s notes were manufactured after the event. In my judgment, if the case was to be advanced in that way, it would have been proper to lay charges encapsulating that. The fact that no such charges were laid may be relevant to what comes hereafter.

[183]The next consideration is the use the Panel made of this conclusion. It is a familiar problem, which juries in criminal trials must be directed about in situations such as this, that people sometimes lie for reasons other than guilt. The well known direction approved in Lucas

[1981] QB 720

encapsulates the point. The tribunal of fact must consider, amongst other points, whether it may not be the case that the lie was told in order mistakenly to bolster a true defence. It seems to me that was an obvious consideration here. It was far from a necessary inference that the notes were manufactured because the Appellant had dissuaded Mrs A from going into hospital. And certainly it seems to me an illogical leap to move, in one step, from a conclusion these notes were manufactured to acceptance of the credibility of Mr and Mrs A.

[184]There is a very great problem, in my judgment, with the credibility of Mr and Mrs A. In particular, the evidence of Mrs A as to her willingness, or even as she would have it, desire, to have a caesarean section from early on, is in strong contrast with the content of almost all the un-impeached contemporaneous records in the case. One feature which emerges from all the evidence is the degree to which Mrs A and her husband asserted their own desires and their own position, at every point along the way. I can find no evidence that the Panel grappled with these difficulties. I do not mean to imply an obligation on the part of such a Panel to write a full reasoned judgment, or an essay justifying their conclusion. However the conclusions here simply do not seem consistent with the reliable contemporaneous material, coming into being both before and after the tragic stillbirth of Baby L. It is with that in mind that I have set out so extensively the material which the Panel had to consider.

[185]In such circumstances, it will be wise for a Panel to make their reasoning clear enough to render the unexpected conclusion explicable. Mere reference to the demeanour of the witnesses is unlikely to carry the matter home. The Panel’s explanation of their reasons here was inadequate. Employing all due deference, I am unable to reconcile an acceptance of Mrs A having given “clear expressions of preference for giving birth by caesarean section in hospital” with the unchallenged records at the time, and with her reaction for months after the event. On that issue therefore I conclude that the Panel’s finding was wrong.

[186]It is conceded that the finding on Limb 1 is flawed. My conclusion is that the finding on Limb 6 was equally flawed, for the reasons I have given. Whether the Panel were correct to “re-formulate” the charge affecting this issue is academic.

[187]In my judgment, there is no basis for saying the Panel’s conclusions of fact on the other limbs of the charge were wrong. They were entitled to prefer the evidence of Carol Axon to that of the Appellant as to the communication of Mrs A’s reluctance to undergo vaginal examinations, and thus their conclusion on Limb 4 was perfectly proper. How serious a failure of care this represents is debatable.

[188]The Panel was also entitled to conclude that Carol Axon and Fiona Shaw were not apprised of the weight of the baby, following the scan on 24 August. Thus Limb 7 was properly made out. It seems very unlikely that knowledge of the weight of the baby would have made any difference, given the fact that Mr Taylor and Maria Patterson knew of it and gave advice based on the fact, which was rejected by Mr and Mrs A.

[189]The Appellant conceded she had not informed the Ambulance Service that Mrs A was in labour, and that was a stipulation of the Supervisory Plan. It follows that Limbs 8 and 9 were properly made out. The last two can have made no difference, on the facts of this case, to the outcome.

[190]There is therefore a question as to whether the conclusions of fact which stand, and which are encompassed within the charges laid, amount to a failure to provide an appropriate standard of care for Mrs A and her baby. If they do, a question will arise as to the appropriate sanction. There is also the question as to what may be the implications or consequences of the sustained finding in relation to the Appellant’s notes, which was not the subject of a charge, and, since the alteration of the notes must have taken place after the event, cannot have affected the care given to Mrs A and her baby.

[191]Both parties have tried to anticipate some of these issues, in their submissions. However, given the nature of my conclusions, I consider it is proper for the parties to be able to make representations as to the Order I should properly make and as to how the matter should proceed from here in the knowledge of this judgment. I will therefore ensure that when the matter is formally handed down that can be done.