Director of Proceedings v McMillan [2020] NZHRRT 19, (28 May 2020)
The Director filed proceedings by consent against registered midwife Vicki Anne McMillan (“the defendant”), in the Human Rights Review Tribunal, regarding the care she provided to her client (“Ms S”) during the birth of Ms S’s first child.
The defendant was an independent midwife and the Lead Maternity Carer (“LMC”) for Ms S from approximately 19+5 weeks’ gestation. Ms S’s estimated due date (“EDD”) was 24 December 2015 based on her last menstrual period (“LMP”), but 21 December 2015 based on an ultrasound scan. At the booking visit on 1 August 2015, the defendant documented the EDD as 21 December 2015. In subsequent clinical notes, the defendant documented the EDD as various dates between 21 and 26 December 2015. The defendant did not establish an agreed or consistent EDD with Ms S, and did not record the EDD or gestational age consistently throughout Ms S’s pregnancy, even within records of the same date.
At the booking visit on 1 August 2015, the defendant advised Ms S that she could have her baby at her own home in Queenstown, as Ms S wanted. The defendant did not discuss the risks of having a home birth in Queenstown, including that the nearest hospital, Lakes District Hospital (“LDH”), did not have obstetric staff and that should the aggrieved person require secondary care she would have to transfer to Southland Hospital and that Southland Hospital was 2.5 hours away by road. In addition, and contrary to accepted midwifery practice and guidelines, the defendant did not recommend to Ms S that consultation with a specialist was warranted, due to the fact that Ms S had previously had surgery on her cervix, and had a history of urinary tract infections (“UTIs”). Further, at the booking appointment and throughout the defendant’s antenatal care of Ms S, the defendant measured fetal growth using only abdominal palpation and anatomical landmarks, and did not measure fundal-symphysis height.
On 21 December 2015, when Ms S was 40 weeks pregnant (by scan), the defendant recorded that there was no sign of the baby coming and made a plan to continue weekly visits. Contrary to accepted midwifery guidelines, the defendant failed to recommend to Ms S, or discuss with her at all, that now that she had reached her EDD, timely consultation with a specialist was warranted, in order to plan for induction by 42 weeks. The defendant and Ms S met on 28 December 2015, when Ms S was 41 weeks pregnant (by scan), and on 31 December 2015, when Ms S was 41+3 weeks pregnant (by scan). On both occasions, the defendant failed to recommend to Ms S, or discuss with her at all, that due to the fact that she had passed her EDD, timely consultation with a specialist was warranted, for planned induction by 42 weeks.
On 4 January 2016, when Ms S was 42 weeks pregnant (by scan), she began experiencing contractions. Ms S sent texts and telephoned the defendant throughout the evening and night to update her on the contractions, and to ask for support. The defendant did not make any record of these overnight communications, or her advice to Ms S.
At 6.00am on 5 January 2016, the defendant’s back-up midwife assessed Ms S at her home. The midwife recorded that Ms S’s contractions were occurring at a rate of 2 every 10 minutes and lasting 60 seconds. Ms S’s blood pressure was elevated. The backup midwife undertook a vaginal examination (“VE”) and noted that the baby’s head was at station –1, and the cervix was 6 or 7cm dilated. The backup midwife advised the defendant of Ms S’s progress and then left Ms S’s home.
At 7.15am, the defendant arrived at Ms S’s home and recorded that Ms S was having regular strong contractions. The defendant did not record the onset of Ms S’s labour or when labour was officially established. Contrary to recommended practice, the defendant did not follow up on Ms S’s elevated blood pressure, or monitor Ms S’s temperature and blood pressure four hourly during established labour.
At 10.00am, the defendant undertook a VE of Ms S, recording that she was 8–9cm dilated and fully effaced, but that her contractions had spaced out. Ms S was given paracetamol and advised to sleep. The defendant recorded that she was “away to do a visit or two”. The defendant left Ms S unattended at home in established, late first stage labour. Contrary to accepted midwifery practice the defendant did not monitor the FHR between 10am and 12pm. The defendant returned to Ms S’s house at 11.45am, when Ms S contacted her.
At 1.45pm, the defendant performed another VE, which gave the defendant the impression that Ms S was “nearly there” as she was 9.5cm dilated albeit with an anterior lip, which the defendant tried to push away but which was too painful for Ms S. The defendant’s plan was to have patience, and for Ms S to lie on her left side and wait for the anterior lip to go away. Contrary to accepted midwifery practice, the defendant did not recommend to Ms S, or discuss with her at all that consultation with a specialist was warranted in light of the fact that her labour was now considered prolonged.
At 2.45pm, Ms S was not coping well and a plan was made to re-check her cervix, transfer her to LDH, and then arrange for an ambulance transfer to Southland Hospital. At 3.00pm, following another VE, the decision was made to transfer Ms S to LDH for a CTG and assessment with another midwife, and then to transfer to Southland Hospital. At 3.30pm, Ms S arrived at LDH and the defendant commenced a CTG, which subsequently was documented as being reassuring. The defendant took Ms S’s observations and recorded Ms S’s blood pressure, which was still elevated. CTG monitoring ceased at 4.30pm. The defendant did not monitor the FHR after 4.30pm. At 6.00pm, Ms S and the defendant left LDH in an ambulance. The defendant recorded “no concerns with FHR on the way down”. Contrary to accepted midwifery practice, the defendant did not record the FHR during the transfer to Southland Hospital.
Ms S was admitted to Southland Hospital and seen by the on-call obstetric registrar at approximately 8.47pm. The defendant advised the registrar that Ms S was “at term”, rather than two weeks past her EDD. Contrary to accepted midwifery practice, the defendant did not provide obstetric staff at Southland Hospital with Ms S’s maternity notes, instead giving the on-call obstetric registrar one page of progress notes. The defendant then returned to Queenstown in the ambulance and faxed a copy of the maternity notes to Southland Hospital in the early hours of the morning of 6 January 2015.
At 12.51am on 6 January 2016, Ms S gave birth to Baby N. Baby N was delivered making no respiratory effort and with poor Apgar scores. Resuscitation was commenced, and subsequently Baby N was diagnosed with stage 2 hypoxic ischaemic encephalopathy. At 1.38am the obstetric registrar found Ms S’s maternity notes on a desk in the midwifery station and was advised by one of the core midwives that they had just been faxed in. The obstetric registrar recorded that the additional LMC notes and scans showed that Ms S was 42+2 weeks’ gestation based on an EDD of 21 December 2015. This was the first time the obstetric registrar had become aware of this information.
Sometime after the defendant faxed a copy of Ms S’s maternity notes to Southland Hospital, the defendant made multiple amendments to the maternity notes, including adding BP and FHR readings, and altering the EDD in the client profile summary. The defendant did not mark these alterations as having been made retrospectively or identify them as not being part of the original clinical record. Notes made of the 31 December 2015 appointment were recorded retrospectively on separate sheets of paper to Ms S’s midwifery book, and were not an accurate record of what occurred during that appointment.
The defendant accepted that her failures in care amounted to breaches of the Code of Health and Disability Services Consumers’ Rights (“the Code”), and the matter proceeded by way of an agreed summary of facts. In particular, the defendant accepted that she: failed to discuss and record a care plan with Ms S; failed to advise Ms S that consultation with a specialist was warranted, on the basis that previously Ms S had had surgery on her cervix and a history of UTIs; failed to measure fundal-symphysis height, and instead used abdominal palpation alone to assess fetal size; failed to discuss the risks of having a homebirth in Queenstown; failed to establish an agreed or consistent EDD; failed to formulate an appropriate plan for post-dates care, by failing to recommend to Ms S that timely consultation with a specialist was warranted for planned induction by 42 weeks; failed to monitor the FHR every 15–30 minutes during the active phase of the first stage of labour; left Ms S unattended at her home for one hour and twenty-five minutes while she was in established late first stage labour; failed to act on clear indicators that labour was not progressing normally and did not recommend to Ms S that consultation with a specialist was warranted; failed to provide adequate handover of Ms S to maternity services at Southland Hospital; failed to complete adequate clinical notes; made multiple retrospective alterations and additions to the clinical notes without acknowledging those alterations and admissions as not being part of the original notes; and failed to provide Ms S with the information that a reasonable consumer in her circumstances would expect to receive in order for her to make informed choices about her pregnancy and labour. The defendant gave an undertaking that she would not seek to renew her annual practising certificate or to practise midwifery again in New Zealand.
The Tribunal was satisfied that the defendant had breached Rights 4(1), (2), (5), 6(1), and 7(1) of the Code, and issued a declaration to that effect.
The Tribunal’s full decision can be found at:
https://www.justice.govt.nz/assets/2020-nzhrrt-19-director-of-proceedings-v-mcmillan.pdf