DECISION NO IN THE MATTER of the Health Practitioners

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                                                 DECISION NO:                         334/10/144P


                            IN THE MATTER            of         the        Health           Practitioners

                                                     Competence Assurance Act 2003



                            AND



                            IN THE MATTER            of a charge laid by a Professional

                                                     Conduct Committee pursuant to

                                                     section 91 of the Act against

                                                     MS            MARY              ELIZABETH

                                                     CASEY, midwife of Christchurch



BEFORE THE HEALTH PRACTITIONERS DISCIPLINARY TRIBUNAL

HEARING held in Christchurch on 16-20 August 2010

TRIBUNAL:              Mr Bruce A Corkill QC (Chairperson)

                       Ms Jacqueline Gunn, Ms Robyn Maude, Ms Ann Yates, Mr
                       Quentin Hix, (Members)

                       Ms Gay Fraser (Executive Officer)

                       Ms Katherine O’Brien (Stenographer)

APPEARANCES:           Mr Matthew McClelland and Ms Jo Hughson, for the Professional

                       Conduct Committee

                       Mr Marcus Elliott, Counsel for Ms M E Casey
                                              2

Introduction:

1.    Ms Casey is a registered midwife.

2.    On 23 February 2010, the Professional Conduct Committee (PCC) laid six charges

      against Ms Casey, which related to her role when acting as a midwife. The charges

      are explained more fully below.

Legal Principles – Burden and Standard of Proof:

3.    The burden of proof for each charge was on the PCC.

4.    As to standard of proof, the appropriate standard is the civil standard, that is proof to

      the satisfaction of the Tribunal on the balance of probabilities, rather than the criminal

      standard. The degree of satisfaction called for will vary according to the gravity of the

      allegations. The greater the gravity of the allegations the higher the standard of proof.

5.    In the decision of Z v Complaints Assessment Committee [2009] 1 NZLR 1, the

      majority of the Supreme Court stated that in civil proceedings in New Zealand

      (including disciplinary proceedings) there is a civil standard, the balance of

      probabilities, which is applied flexibly according to the seriousness of matters to be

      proved and the consequences of proving them.           The Court endorsed the classic

      passage of Dixon J in Brigginshaw v Brigginshaw (1938) 60 CLR 336, 361-362 to the

      effect that the affirmative of an allegation must be made out to the reasonable

      satisfaction of the fact finder. Reasonable satisfaction is not a state of mind that is

      attained or established independently of the nature and consequence of the fact or

      facts to be proved. The seriousness of an allegation made, the inherent unlikelihood

      of an occurrence of a given description, or the gravity of the consequences flowing

      from a particular finding are considerations which must affect the answer to the

      question whether the issue has been proved to the reasonable satisfaction of the

      Tribunal.
                                              3

Professional Misconduct:

6.    Section 100 of the HPCA Act defines the grounds on which a health practitioner may

      be disciplined. The Tribunal has now had ample opportunity to consider the test for

      professional misconduct under the section, and the approach to it is well settled –

      examples of the correct approach are found in Nuttall (8/Med04/03); Aladdin

      (12/Den05/04 and 13/Den04/02D) and Dale (20/Nur05/09D).

7.    The section provides that malpractice and/or negligence and/or conduct likely to bring

      discredit to the profession can constitute professional misconduct.

8.    “Malpractice” is defined in the Collins English Dictionary (2nd ed) as:

             “The immoral, illegal or unethical conduct or neglect of professional duties.
             Any instance of improper professional conduct.”

9.    In the new shorter Oxford English Dictionary (1993 edition) the word is defined as:

             “Law. Improper treatment or culpable neglect of a patient by a physician or of a
             client by a lawyer … 2 gen criminal or illegal action: wrongdoing, misconduct.”

10.   Malpractice, although often equated with negligence, is perhaps better considered a

      broader concept, capable of encompassing neglect, but also of extending to

      trespassory conduct in the process of caring for patients in relation to consent,

      breaches of patient confidence and fiduciary obligations, and other forms of conduct

      reaching the necessary level of gravity, such as assaulting a patient, swearing at or

      threatening a patient, a deliberate failure to obey an instruction or sexual misconduct.

      (see para 23.65, “Medical Law in New Zealand”, 2006).

11.   Negligence and malpractice were discussed by Gendall J in Collie v Nursing Council

      of New Zealand [2000] NZAR 74. His Honour said:

             “Negligence or malpractice may or may not be sufficient to constitute
             professional misconduct and the guide must be standards applicable by
             competent, ethical and responsible practitioners and there must be behaviour
             which falls seriously short of that which is to be considered acceptable and not
             mere inadvertent error, or oversight or for that matter carelessness.”

12.   Similarly, it is for the Tribunal to decide whether the conduct, if established, would be
                                              4

      likely to bring discredit on the medical profession. In the same case Gendall J stated:

             “To discredit is to bring harm to the repute or reputation of the profession. The
             standard must be an objective standard for the question to be asked by the
             Council whether reasonable members of the public, informed and with the
             knowledge of all the factual circumstances, could reasonably conclude that the
             reputation and good standard of the nursing profession was lowered by the
             behaviour of the nurse concerned.”

13.   There are two steps involved in assessing what constitutes professional misconduct:

      13.1   The first step involves an objective analysis of whether or not the health

             practitioner’s acts or omissions can be reasonably regarded by the Tribunal as

             constituting:

             •       malpractice; or

             •       negligence; or

             •       otherwise meets the standard of having brought, or was likely to bring

                     discredit to the practitioner’s profession;

      13.2   The second step requires the Tribunal to be satisfied that the health

             practitioner’s acts or omissions require a disciplinary sanction for the purposes

             of protecting the public and/or warrant maintaining professional standards

             and/or punishing the health practitioner.

14.   This approach to the assessment of professional misconduct under the statute is well

      established under previous decisions of the Tribunal, and in authorities such as

      McKenzie v MPDT & Anor [2004] NZAR 47.

Appropriate Standard:

15.   In many previous cases of the Tribunal, it has been noted that the appropriate standard

      of assessment is as set out in B v Medical Council of New Zealand noted at ([2005] 3

      NZLR 810), as follows:

             “The structure of the disciplinary process as set up by the Act, which relies in
             large part upon judgment by a practitioner’s peers, emphasises that the best
             guide to what is acceptable professional conduct is the standards applied by
             competent, ethical and responsible practitioners. But the inclusion of lay
                                               5

             representatives in the disciplinary process and the right of appeal to this Court
             indicates that usual professional practice, while significant, may not always be
             determinative: the reasonableness of the standards applied must ultimately be
             for the Court to determine, taking into account all the circumstances including
             not only usual practice but also patient interests and community expectations,
             including the expectation that professional standards are not to be permitted
             to lag. The disciplinary process in part is one of setting standards.”

16.   Evidence of appropriate standards in this case was given in the form of the

      Competencies for entry to the register of Midwives as promulgated by the Midwifery

      Council of New Zealand, and in the provision of the Code of Ethics and Standards as

      promulgated by the New Zealand College of Midwives.

17.   It is convenient to set out the relevant extracts that were referred to at the hearing:

      17.1   Extracts from the Competencies of the Midwifery Council are:

             Competency 1:
             “The midwife works in partnership with a woman throughout the maternity
             experience.

             Explanation:
             “… the midwife acts as a professional companion to promote each woman’s
             right to empowerment to make informed choices about her pregnancy, birth
             experience and early parenthood …

             Performance criteria
             The midwife:

             1.5     recognises and respects the woman’s ethnic, social and cultural
                     context.

             1.8     promotes the understanding that childbirth is a physiological process
                     and a significant life event;

             1.10    provides up to date information and supports the woman with informed
                     decision making;

             1.12     maintains confidentiality and privacy; and

             1.13    formulates and documents the care plan and partnership with the
                     woman.

             Competency 2:
             The midwife applies comprehensive theoretical and scientific knowledge with
             the affective and technical skills needed to provide effective and safe midwifery
             care.
                              6

Performance criteria:
The midwife:

2.1    provides and is responsible for midwifery care of the woman and her
       family/whanau during pregnancy, labour, birth and the post natal
       period;

2.2    confirms pregnancy if necessary, orders and interprets relevant
       investigative and diagnostic tests, carries out necessary screening
       procedures and systematically collects comprehensive information
       concerning the woman’s health and wellbeing;

2.3    assesses the health and wellbeing of the woman and her baby
       throughout pregnancy, recognising any condition which necessitates
       consultation with or referral to another midwife medical practitioner
       or other health professional;

2.15   shares decision making with the woman and documents those
       decisions;

2.16   provides accurate and timely written progress notes and relevant
       documented evidence of all decisions made in midwifery care offered
       and provided;

2.18   collaborates and cooperates with other health professionals,
       community groups and agencies when necessary; and

2.19   provides the woman with clear information about accessing community
       support agencies that are available to her during pregnancy and to
       her, the baby, and family/whanau when the midwifery partnership is
       concluded.

Competency 3:
The midwife promotes practices that enhance the health of the woman and her
family/whanau and which encourage their participation in her healthcare.”

Performance Criteria:
The midwife:

3.3    promotes self determination for the woman and her family/whanau;

3.5    demonstrates an understanding of the needs of the women and their
       families in relation to infertility, complicated pregnancy, unexpected
       outcomes, abortion, adoption, loss and grief, and applies this
       understanding to the care of women and their families as required;

3.6    uses and refers to appropriate community agencies and support
       networks.
                                       7

       Competency 4:
       The midwife upholds professional midwifery standards and uses professional
       judgment as a reflective and critical practitioner when providing midwifery
       care.

       Performance criteria:
       The midwife:

       4.5     assesses practice in relation to current legislation, the midwifery scope
               of practice and competencies for entry to the Register of Midwives, and
               the New Zealand College of Midwives’ “Handbook for Practice” and
               “Code of Ethics”.”

17.2   In the Code of Ethics of the College of Midwives, similar principles are also

       referred to; in particular:

       Responsibilities to the woman
       (d)   Midwives uphold each woman’s right to free, informed choice and
             consent throughout her childbirth experience.

       (e)     Midwives respond to the social, psychological, physical, emotional,
               spiritual and cultural needs of women seeking midwifery care,
               whatever their circumstances, and facilitate opportunities for their
               expression.

       (j)     Midwives have a responsibility to ensure that no action or omission on
               their part places the woman at risk.

       Responsibilities to colleagues and the profession
       (e)   Midwives have a responsibility to uphold their professional standards
             and avoid compromise just for reasons of personal or institutional
             expedience.”

17.3   The Standards of Midwifery Practice, promulgated by the College of

       Midwives, provide the benchmark for the midwife’s practice and the

       appropriate use of midwifery’s body of knowledge. They identify a series of

       actions that are essential to the development and maintenance of the midwifery

       partnership with women. These include:

       Standard One:

       The midwife works in partnership with the woman.

       Criteria
       The midwife:
                              8

•     facilitates open interactive communication and negotiates choices and
      decisions.

Standard Two:

The midwife upholds each woman’s right to free and informed choice and
consent throughout the childbirth experience.

Criteria
The midwife:

•      shares relevant information including birth options and is satisfied
      that the woman understands the implications of her choices.

•      facilitates the decision making process without coercion

•      develops a plan for midwifery care together with the woman

•     respects the decisions made by the woman, even when these decisions
      are contrary her own belief

•      documents decisions and her midwifery actions

Standard Three:

The midwife collates and documents comprehensive assessments of the
woman and/or baby’s health and wellbeing.

Criteria
The midwife:

•      collects information which includes:

      •        physical, psychological, emotional wellbeing …
      •        physical, social and cultural environments

•     documents her assessments and uses them as the basis for ongoing
      midwifery practice

Standard Four:

The midwife maintains purposeful, ongoing, updated records and makes
them available to the woman and other relevant persons.

Criteria
The midwife:

•     reviews and updates records of each professional contact with the
      woman
                                                     9

                  •       ensures confidentiality of information and stores records in line with
                          current legislation”

                  Standard Five:

                  Midwifery care is planned with the woman.

                  Criteria
                  The midwife:

                  •        provides access to a variety of other information sources

                  Standard Six:

                  Midwifery actions are prioritised and implemented appropriately with no
                  midwifery action or omission placing the woman at risk.

                  Criteria
                  The midwife:

                  •       plans midwifery actions on the basis of current and reliable knowledge
                          and in accordance with Acts, Regulations and relevant policies

                  Standard Seven:

                  The midwife is accountable to the woman, to herself, to the midwifery
                  profession and to the wider community for her practice.

                  Criteria
                  The midwife:

                  •        clearly documents her decisions and professional actions

                  •       in situations where another dimension of care is needed, ensures
                          negotiation takes place with other care providers to clarify who has the
                          responsibility for the care.

18.       These principles are specifically referred to in the charges. The Tribunal has regarded

          them as helpful indicators of proper practice and ethical standards, and as such

          important when exercising judgment as to whether in the particular circumstances

          there has been professional misconduct.1




1
    This is the approach mandated for such documents in Staite v Psychologist Board (1998) 18 FRNZ 18, per
    Young J.
                                              10

The Hearing:

19.   The Tribunal was informed at the commencement of the hearing that there was a

       summary of facts that had been agreed (ASF).

20.   The ASF, it was agreed, would be read together with certain paragraphs referred to

       therein from the brief of the PCC expert witness, Ms C S Stanbridge, and together

       with documents contained in five bundles of documents.

21.   The hearing proceeded on the basis of the above evidence, except in the case of

       Charge 5, where it was necessary to consider oral evidence.           That evidence is

       summarised when considering that charge below.

22.   The sequence of the hearing, therefore, was as follows:

      22.1     The ASF was read to the Tribunal.

      22.2     Oral evidence was led for the purposes of Charge 5.

      22.3     Closing submissions were made in respect of Charge 5.

      22.4     The Tribunal retired, and over the course of hours equivalent to one day in

               sitting time, the multiple charges and particulars were considered; a conclusion

               on liability was announced at the end of that process.

      22.5     Penalty submissions were then received; again, the Tribunal deliberated over a

               period of some hours, and announced its conclusions, indicating that reasons in

               writing would follow.

23.   Although the case was able to proceed in a relatively economic way by the provision

       of a substantial ASF, because of the number of particulars and the complexity of the

       factual issues, the Tribunal proceeded carefully through each step of the process, and

       the hearing spanned five days.

Issues with regard to the charges
24.   The Tribunal, in the course of the hearing, dealt with the following issues relating to

       the charges:
                                                     11

          24.1       At the commencement of the hearing, Ms Casey filed admissions in respect of

                     all but three particulars of Charge 6; and admitted each charge on the basis that

                     the established particulars considered cumulatively amounted to professional

                     misconduct. Accordingly, Counsel for the PCC at the commencement of the

                     hearing sought leave to withdraw the only disputed particulars, 11, 12 and 14

                     of Charge 6.      The Tribunal granted leave for those particulars to be

                     withdrawn.2

          24.2       In the course of the hearing, because particulars 1 and 2 duplicated particulars

                     7 and 8 of Charge 6 they were withdrawn by leave.3

          24.3       In the course of the hearing, Counsel for Ms Casey stated in respect of those

                     allegations which related to the making of notes retrospectively, Ms Casey

                     admitted such particulars on the basis that Ms Casey “... did it to make the

                     notes complete based on what I believe took place, accepting that delay can

                     engender inaccuracy, but I didn’t do it putting something that I know didn’t

                     happen, I didn’t fabricate”.4

                     Subsequently, the Tribunal having considered evidence in detail, was

                     concerned that some notes it was required to consider appeared to obtain

                     information which was in direct contradiction to information contained in the

                     ASF.5 A question arose as to whether the Tribunal should consider whether

                     this was deliberate.

                     After taking time to consider this issue, Counsel for Ms Casey submitted that

                     the charges admitted by Ms Casey did not include an allegation of fabrication;



2
    T4/21-34.
3
    T100/26.
4
    T99/2-4.
5
    T113/4-/114-4.
                                                    12

                 he submitted the summary of facts was admitted for the purpose of resolving

                 the charges in conjunction with withdrawal of charges, and that this process

                 had involved a level of pragmatism. He submitted it would not at that point be

                 fair to generate what would be a fresh charge or particular. In other words, it

                 would require another particular if fabrication of retrospective notes was to be

                 considered by the Tribunal.

                 Counsel for the PCC submitted that having regard to the nature of the

                 particulars involved, it was open to the Tribunal to find that the notes were

                 fabricated.6

                 After hearing Counsel, the Tribunal retired and considered these issues. It then

                 ruled:

                 Counsel for Ms Casey made it clear that the admissions placed before the

                 Tribunal did not go to an admission of fabrication.

                 For the Tribunal to be required to consider fabrication would involve a

                 separate and further particular.

                 At that stage of the proceeding (20 August 2010) it would not be fair and

                 reasonable to introduce a fresh particular based on fabrication; the Tribunal

                 was not prepared to do so.

                 The effect of the foregoing was that the admitted particulars which referred to

                 the making of notes retrospectively would be dealt with on the basis that

                 fabrication was not an element.

          24.4   In some charges there was significant overlap in the content of the particulars;

                 and in each instance the final particular required the Tribunal to consider




6
    T124-124.
                                            13

             breaches of the New Zealand College of Midwives Philosophy and Code of

             Ethics, Standards of Practice, and Competencies for Entry to the Register,

             which overlapped with consideration of individual previous particulars in each

             case. It was necessary to recognise such overlap in order to avoid any double

             jeopardy. In its consideration of each charge, the Tribunal recognised this

             issue.

Charge 1: Ms S:

25.   The charge stated:

      “That during the period February – September 2007 when acting in the role of
      midwife for her sixteen year old client Ms S of Christchurch (“Ms S”), Ms Casey
      failed to act at all times in the best interests of her client and/or her Baby Y in that
      she:

      1.     Promoted, arranged and progressed the adoption of Ms S’s baby to
             prospective adoptive parents Mrs R (“Mrs R”) and Mr E of Auckland (“the
             prospective adoptive parents”) and remained actively involved in the adoption
             process throughout Ms S’s pregnancy and in the post partum period; and/or

      2.     Failed to inform Ms S of the mandatory statutory pathways for adoption under
             the Adoption Act 1955 and/or the role of Child Youth and Family (“CYF”) in
             the adoption process; and/or

      3.     Made derogatory and/or misleading and/or unprofessional statements about
             the CYF Adoption Service to Ms S and/or her mother, Ms I of Christchurch
             and/or the prospective adoptive parents when she knew or ought to have
             known that such comments would undermine the credibility of that Service for
             Ms S and/or Ms I and/or the prospective adoptive parents; and/or

      4.     Advised Ms S and/or the prospective adoptive parents to limit to the minimum
             their involvement with the Adoption Services, such advice being to the
             detriment of Ms S and/or the prospective adoptive parents; and/or

      5.     Advised Ms S and/or Mrs R not to disclose to the hospital staff that it was
             proposed to adopt the baby out and/or the details of the adoption plan; and/or

      6.     Advised Ms S and/or Mrs I to provide false and/or misleading information to
             the Adoption Services; and/or

      7.     Failed to make adequate and/or accurate and complete documentation in her
             clinical midwifery notes or otherwise; and/or

      8.     Made notes or entries in her clinical midwifery notes retrospectively and/or in
             response to the complaint made by Ms S; and/or
                                            14


      9.     Acted in breach and/or failed to adhere to the New Zealand College of
             Midwives philosophy and Code of Ethics, the New Zealand College of
             Midwives Standards of Practice (including Standards 1, 2, 4, 5, 6 and 7) and
             the Competencies for Entry to the Register of Midwives (Competencies 1 – 4).

      10.    The conduct alleged in Charge 1 amounts to professional misconduct pursuant
             to section 100(1)(a) or (b) of the Act and Particulars 1 – 9 either separately or
             cumulatively, are particulars of that misconduct.”

26.   The ASF recorded in respect of this charge:

             “Ms Casey accepts the factual basis for each of the nine particulars of Charge
             1 as set out below and in the expert opinion of Ms Chris Stanbridge as per
             paras 66-69 and 182-208 of her brief of evidence, as summarised below and
             that the particulars of the charge when considered cumulatively amount to
             professional misconduct.

             1.     “At the time of the relevant events Ms Ms S (“Ms S”) was sixteen years
                    of age.

             2.     Ms S was given Ms Casey’s name as a possible midwife by Family Life
                    International, an organisation that is pro-adoption.

             3.      Ms S and her mother first saw Ms Casey when Ms S was 11 weeks
                    pregnant. Ms Casey told Ms S that if she was not interested in keeping
                    the baby there were other options. She mentioned abortion and
                    adoption.

             4.      Ms S talked to Ms Casey about adoption a few times, including at the
                    second consultation which Ms S attended with her mother. Ms S had
                    the impression Ms Casey was experienced with adoption because Ms
                    Casey told her about other adoptions she had been involved in.

             5.      Ms Casey told Ms S that once her baby was born, if she wanted to she
                    could “sign the papers” and hand the baby over then and there, and
                    then two weeks' later she would hear from someone else and sign more
                    papers. Ms S told Ms Casey she was not keen on just giving the baby
                    over straight away. She told Ms S not to mention anything to anyone at
                    all that she may be considering (or had chosen) adoption.

             6.      In one of the conversations Ms S had with Ms Casey about adoption
                    Ms Casey mentioned Adoption Services and CYFS. Ms Casey told Ms S
                    that she would only need to see them once before the baby was handed
                    over and that this would not need to happen until right near the end,
                    before the birth. Ms Casey told Ms S that CYFS would try to persuade
                    her to keep the baby if she contacted them too early.

             7.     Mrs S recalled that during this appointment it was her advice that she
                    and Ms S should keep away from CYFS Adoption Services because
                    “they’re dreadful. They treat you poorly and give you no choices”. Ms
                             15

      Casey told them that it would be better if Ms S adopted through her.
      She advised them that if they went through CYFS, normally it is a
      difficult process but she had her way of “short-cutting” the process
      which worked well.

8.    Ms S went to see Ms Casey for all her antenatal visits, at the Linwood
      Medical Centre in Christchurch.

9.    One day when she saw Ms Casey (March 2007) with her mother
      Ms Casey told Ms S she had a couple who were looking to adopt a
      child. Ms Casey gave Ms S and her mother their profile. The couple
      were called “Mr E and Mrs R” and the profile said they lived in
      Auckland. The couple had a CYFS caseworker and had been approved
      by CYFS.

10.    After Ms Casey had given her the profile, Ms S and her boyfriend
      looked through it. They were happy with the couple but they had some
      concerns that the couple lived in Auckland. The only thing Ms S was
      worried about was that if her baby went to live in Auckland she might
      not be able to have much contact once he or she had been adopted.

11.   Ms S told Ms Casey she was interested in this couple and Ms Casey
      suggested that Ms S let her give them her number so they could contact
      her and ‘get the ball rolling’. Ms S agreed and shortly after, the
      woman, Mrs R, rang Ms S.

12.    When Ms S told Ms Casey that she and her boyfriend were happy with
      the profile and had spoken to the woman Mrs R, Ms Casey said to Ms S
      "Okay, let's build it up more and get them down here" to Christchurch.

13.   This was the only profile Ms Casey showed Ms S and which she had
      read before she told Ms Casey she and her boyfriend wanted to go with
      Mr E and Mrs R. She had not seen any other profiles or made any
      other enquiries about other couples who might want to adopt her baby.

14.    From early on Ms S felt like Ms Casey was putting pressure on her to
      go for this couple, Mrs R and Mr E. Ms S was only early pregnant at
      that time was still getting her head around the idea of adopting.

15.    When Ms Casey was told that Ms S and her boyfriend wished to
      proceed with Mrs R and Mr E Ms Casey told them not to contact
      CYFS/Adoption Services or involve them until just before Ms S was due
      to give birth. Ms Casey told them that when they did contact CYFS
      they should only give a mobile number and to say that they could not
      remember the name of the midwife who was involved.

16.   Ms Casey advised Ms S and her mother that Mrs R and Mr E would
      need to go to CYFS a couple of times and they would need to get
      approval to adopt Ms S’s baby. Ms Casey advised them to tell
      Adoption Services as little as possible and not contact them or let them
      come to their home. Ms Casey advised that if they did have involvement
                             16

      with CYFS then they would be put through a lot of compulsory
      counselling CYFS would try and talk Ms S out of adopting the baby
      out; that they would take Ms S’ baby into care during the first ten days
      of its life until the adoptive parents could take the baby. Ms S was
      ‘freaked out’ by this and decided she would follow Ms Casey’s advice.

17.   Mrs R and Mr E travelled to Christchurch and met Ms S and her
      boyfriend in early June 2007. Ms S and her boyfriend also went up to
      Auckland for a weekend and saw Mrs R and Mr E. She wanted to find
      out where the baby would be living and more about the couple.

18.   Ms S was in contact with Mrs R by text and telephone from the time
      when Mrs R first rang her in March 2007 right through until after baby
      Y was born on 3 September 2007. Ms S and her boyfriend were
      basically happy with them and they talked to them about things like
      clothes and a name for the baby. Ms Casey told Ms S quite often that
      she was also in contact with Mrs R. Ms Casey was also in contact with
      Ms S’s mother throughout Ms S’s pregnancy and on occasions would
      call Ms[Mrs] I at night when she could not get hold of Ms S.

19.   Ms Casey was in frequent email contact with Mrs R and Mr E in
      Auckland. Copies of this email correspondence are annexed to the
      affidavit of Mr E filed in these proceedings. The content of these emails
      are referred to in full and are relied on in their entirety for the
      purposes of this Agreed Summary of Facts.

20.    In summary Ms Casey was involved in the process throughout Ms S’s
      pregnancy. She had found Mrs R and Mr E. She had asked Ms S
      whether she could give her number to Mrs R and Mr E so they could
      contact Ms S. Ms Casey told Ms S she would get the adoption papers
      sorted for her. It was Ms Casey who had advised Ms S that she would
      only need one interview with staff at CYFS Adoption Services, but
      otherwise she and her boyfriend were to work with her. Ms Casey knew
      all about the contacts Ms S was having with Mrs R and Mr E in
      Auckland and she gave Ms S advice about what to do along the way
      including when to get a lawyer and matters of that nature. Ms S
      understood Ms Casey to be experienced with adoptions and believed
      there was no need for her to talk to anyone else.

21.    Around the time Ms S was due to go to hospital to have the baby, Ms
      Casey told her and her mother not to tell anyone at the hospital about
      the adoption which had been planned with Mrs R and Mr E. Ms Casey
      told Ms S that the staff would put pressure on her and they would insist
      that she get counselling for three or four weeks to see if she was
      making the right decision. Mrs I recalls that Ms Casey said her
      daughter should leave the hospital as soon as possible after the birth.
      Ms Casey told Mrs I that if the hospital knew that Ms S was adopting
      the baby out, the staff would send a social worker in and encourage Ms
      S to try and keep the baby. Because of that advice, the whole time Ms S
      was in hospital neither she nor her mother mentioned anything about
      the adoption to anyone.
                             17


22.   What Ms S knew about adoption mainly came from what Ms Casey told
      her about it. Ms S did not receive any information from anyone else
      about adoption until late August 2007 when she spoke to CYFS
      Adoption Services in Christchurch for the first time. This was about ten
      days before Baby Y was born. Alice Faber, a social worker, visited Ms
      S at her mother’s house where she was living at the time, to talk to her
      about adoption.

23.   By then CYFS Adoption Services knew that Ms S was adopting her
      baby out and that she had chosen a couple in Auckland. Ms Faber gave
      Ms S some information about “legal things about adoption” and
      offered counselling which Ms S declined.

24.   After this visit from Ms Faber, Ms S also went to CYFS Adoption
      Services' offices and had a look at a few more profiles but none of them
      suited and so Ms S told them that she was happy to go with Mrs R and
      Mr E.

25.    Ms S gave birth to Baby Y by caesarean section at Christchurch
      Women’s Hospital on x September 2007. Ms S knew that Mrs R was in
      Christchurch for the birth. She had come down about a week before
      and she and Ms S had been shopping to get things for the baby
      including at the Baby Factory in Riccarton Mall. Mrs R spent about
      $600 on the baby.

26.   After Ms S gave birth to Baby Y, Mrs R came into the hospital and saw
      her and the baby a few times. She also met Ms Casey and some of Ms
      S’s friends and family in the hospital.

27.    When Ms S was discharged from hospital she and baby Y went to her
      father’s farm in xx for a week or so. Mrs R and Mr E visited them in xx.
       There was conversation about how much contact Ms S would get to
      have with Baby Y after she had been taken to Auckland and rough
      agreement reached with Mrs R and Mr E about this. Mrs R and Mr E
      told Ms S to tell her lawyer. Ms S had a lawyer by that time because Ms
      Casey and Mrs R and Mr E had told her she would need one to get the
      papers ready for the adoption.

28.   Ms Casey had previously told Mrs I that she and her daughter should
      go through Mrs R and Mr E's lawyer, a Michael Kirkland, of Saunders
      & Co. in Christchurch. Ms Casey told Mrs I that Mr Kirkland was
      experienced with adoptions and that he would allocate Ms S a lawyer.
      Mrs I was of the understanding her daughter would have to sign an
      agreement and Ms Casey told her that Mrs R and Mr E would be
      responsible for paying for the agreement.

29.   Ms Casey knew what Ms S’s living arrangements were going to be for
      her and Baby Y (including Baby Y’s foster care) post-natally. She and
      Ms S had discussed these issues when they had discussed a birth plan
                             18

      (in August 2007). Ms Casey visited Ms S six or seven times after Baby
      Y was born.

30.    On the day the adoption was meant to happen Ms S went to her
      lawyer's office with her mother. They had a telephone call with Mrs R
      and Mr E who were at their lawyers in Christchurch. Ms S and her
      mother had concerns about the documents which Mrs R and Mr E's
      lawyer had sent them to sign. They were worried that they did not
      protect Ms S regarding the on-going contacts she wanted to have with
      Baby Y once she had been adopted. Ms S and her mother wanted
      something more formal like an access agreement but Mrs R and Mr E
      refused.

31.   In the end the adoption fell through. Mrs R and Mr E went back to
      Auckland. Ms S was not coping very well and felt tired and stressed.
      Baby Y went to stay with a foster carer whom Ms S and her mother had
      arranged through Family Life International.

32.   Ms S and her mother were then in contact with CYFS Adoption
      Services in Christchurch after that. They saw other profiles. Eventually
      Ms S and her boyfriend decided on another couple in Christchurch who
      adopted baby Y in October 2007.

33.    By that time Ms S had very negative feelings about Ms Casey. Ms
      Casey had been ringing the couple who had adopted baby Y asking
      personal questions about Ms S and wanting to visit baby Y. Ms S told
      the couple she did not want them to tell Ms Casey anything about her
      and where she was. Ms S also told Adoption Services she wanted
      information about her to be kept confidential from Ms Casey. Ms S
      wanted nothing more to do with Ms Casey.

34.    Mr Peter McGurk is the Team Leader of Adoption Services of CYFS
      for the Southern Region. CYFS Adoption Services regarded the
      adoption proposal as having been “brokered” by Ms Casey who was
      the midwife responsible for the care of the expectant parent, 16 year
      old Ms S. On the information CYFS had gathered, Mr McGurk was
      concerned that Ms Casey had breached some professional boundaries
      to her role as a Registered Midwife. It was on that basis he made a
      complaint about Ms Casey to the Midwifery Council.

35.   Adoption Services regarded the process followed by Ms S and the Xs
      as risky for the individuals involved.

37.   Adoption Services’ practice is to offer a range of approved applicant
      profiles to an expectant parent who has decided to place a child for
      adoption to ensure that the birth family have a real choice and can
      choose a family that most closely fits the criteria they want. In
      Mr McGurk’s opinion what happened in this situation worked to
      reduce the choice of family that Ms S had available to her.
                             19

38.    Ms Casey's decision to put the adoptive applicant couple directly in
      touch with Ms S at a relatively early stage of her pregnancy (March
      2007), in CYFS view ignored the very real possibility that an expectant
      parent can change their mind about an adoption, as was the case here.
       Where parties develop a relationship throughout a pregnancy, there
      are undoubtedly expectations and even a sense of obligation that can
      develop.

39.    In this situation Mr McGurk considers that both parties would have
      benefited from individual support. Instead, on the information he had,
      they were left to get on with their adoption proposal themselves,
      without any professional facilitation or safeguards put in place to
      protect them throughout. In Mr McGurk’s view this left both parties
      very vulnerable.

40.    The birth family and the adoptive applicants reported to CYF that
      Ms Casey advised both of them not to involve CYF in their adoption
      proposal, at least not until the very end when one meeting would be
      required to formalise the adoption. The birth family reported to
      Adoption Services staff that Ms Casey also told them not to tell anyone
      about their adoption plan including Hospital staff, with the implication
      from their point of view, that this should be kept secret. When the baby
      concerned was approximately two weeks old, the relationship between
      Ms S and her family, and MrE and Mrs R broke down over future plans
      for contact arrangements.

41.    Adoption Services' experience is that it is desirable to facilitate some
      careful discussion between the parties about mutually agreed contact
      for the future before any consent to adoption is signed. In this case the
      parties did not have access to any facilitative support at this time with
      the result that when communication became difficult, the relationship
      broke down. This indicates that important information regarding future
      contact arrangements was not comprehensively considered prior to the
      baby’s birth as would be the norm in any CYF facilitated process.
      From CYF's perspective the right support and discussion should have
      been available to the parties at this time.

42.    Ms Casey's involvement in Mr McGurk’s view raised issues of privacy,
      lack of support, uninformed decision-making, and of duress.
      Subsequent events showed that the parties had not been supported to
      come to a shared agreement for ongoing contact – which had the result
      of derailing the proposal that the parties had put in place. At a time of
      heightened emotion, the risk of miscommunication and
      misunderstanding is increased. Careful and independent facilitation
      around the issues involved in ongoing contact was not available to the
      parties in the process that was set up. Mr McGurk believes this was a
      significant disadvantage to them.

43.   CYF Service’s Birthparent Manual instructions set out the best
      practice standards for Adoption Social Work counselling with
      expectant parents. There are a range of considerations that are
                              20

       relevant for an expectant parent to arrive at informed and sustainable
       decision-making.

44.    In Pursuing an Adoption with Child, Youth and Family, at 2.1,
       reference is made to the importance of being willing to tell other
       people about the adoption plan. In Mr McGurk’s view by advising her
       client to lie to hospital staff about her adoption plan, Ms Casey
       reinforced the perception that there was something illicit in the
       arrangement that was being made – which therefore had to be kept
       hidden through deception. In Mr McGurk’s opinion this behaviour did
       not support Ms S or her family to be honest and to represent their
       adoption plan in a positive way as a legitimate decision to have made.
       It risked building up the sort of shame and guilt that birth mothers
       report was associated with adoptions of the past.

45.     In Ms Stanbridge’s opinion, for the reasons she has given in her
       statement of evidence at paras 182- 207 a reasonable midwifery
       professional would regard the above actions on Ms Casey’s part
       relating to her involvement in the adoption proposal between Ms S and
       the Auckland couple, as a flagrant breach of ethics, standards of care
       and the Competencies and a significant falling short of acceptable
       professional standards.

Ms Casey’s midwifery notes:
46.    In her statement of evidence at paras 43-51 Ms Stanbridge refers to the
      relevant Competencies and Standards which set the professional
      expectations and standards for a registered midwife in relation to note-
      taking and documentation.

47.    Ms Stanbridge has reviewed Ms Casey’s midwifery notes for Ms S. In
       Ms Stanbridge’s opinion Ms Casey’s documentation does not meet the
       standard expected of registered midwives working in this country.

48.    The apparent inconsistencies in the dates of visits in Ms S’s clinical
       midwifery records, and the other matters she has referred to in Ms
       Stanbridge’s view raise concerns about the accuracy of Ms Casey’s
       records for Ms S and call into question whether the records are in fact
       contemporaneous. Ms Casey now accepts they are not all
       contemporaneous.

49.     The Competencies (One and Two) and Standards (Two to Five, and
       Seven) are clear about the need for the midwife to document accurately
       at each contact with the woman all decisions made and midwifery care
       offered and provided. The expectation is that this includes assessments,
       information shared, plans and their action, and outcomes. The
       documentation is expected to be legible, and signed and dated at each
       entry.

50.     Ms Casey admits her documentation is confusing and dating is
       inconsistent.
                                                  21

                  51.    Apart from hospital notes, Ms Casey’s entries in her midwifery records
                         are not signed.

                  52.    Apart from her labour care Ms Casey’s notes for Ms S do not give a
                         clear record of her care. Ms Casey admits she has failed to accurately
                         document appropriate care.

                  54.     Ms Casey accepts there are incidences of clearly inaccurate or
                         inconsistent recording of events.

                  55.    In summary, Ms Casey admits her clinical midwifery records for Ms S
                         are inadequate and/or inaccurate and/or incomplete and they are in
                         breach of the NZCOM philosophy, and Code of Ethics, the NZCOM
                         Standards of Practice (including Standards 1,2,4,5,6 and 7) and the
                         Competencies for Entry to the Register of Midwives (Competencies 1-
                         4).

                  56.    Further, Ms Casey admits she has written notes retrospectively to
                         answer the complaint. In Ms Stanbridge’s view this would be regarded
                         by the midwifery profession and/or a reasonable midwife as a breach
                         of ethics and standards of care and a significant falling short of
                         acceptable professional standards.”

Particular 1: promoted, arranged and progressed the adoption, and remained actively
involved in the process throughout the mother’s pregnancy and post partum period:

27.       This particular is clearly established by:

          27.1    Paragraphs 9-20 of the ASF.

          27.2    The content of a series of emails between Ms Casey and the prospective

                  adoptive parents.7

28.       Ms Stanbridge outlined the following professional issues:

          28.1    She stated that the steps taken by Ms Casey were not within the scope of

                  practice for a midwife.

          28.2    A midwife was expected to understand the needs of women and their families

                  in relation to adoption, and apply that understanding.




7
    Bundle 175-192.
                                             22

      28.3   Competency 3 expects a midwife to ensure the woman has information about,

             and to use, and refer the woman to, appropriate community agencies and

             support networks and other health professionals and agencies as appropriate.

      28.4   Competency 4 expects a midwife to recognise strengths and limitations and

             skill, knowledge and experience, and share or seek counsel, consult with, or

             refer to a relevant resource.

      28.5   Standard 2 expects a midwife to facilitate decision making without coercion

             and to respect the decisions made by a woman, even if those decisions are

             contrary to the midwife’s own beliefs.

      28.6   Standard 6 expects a midwife to work collaboratively with other professionals,

             and to consult and refer as appropriate. It clearly identifies the need to refer

             when she has reached the limit of her expertise.

      28.7   Standard 7 says the midwife is accountable for her practice, and clearly

             documents her decisions and professional actions.        In this standard, the

             midwife, in situations where another dimension of care is needed, ensures

             negotiation takes place with other care providers to clarify who has the

             responsibility for care.

29.   The Tribunal concludes that Ms Casey acted beyond her scope of practice, and in

      breach of the competencies and standards just described.

30.   The particular is established.

Particular 2: failed to inform the mother of the mandatory statutory pathways for
adoption under the Adoption Act 1955 and/or the role of Child Youth and Family in the
adoption process:

31.   The facts on which this particular is based are at paragraphs 6, 7, 16 and 20 of the

      ASF.

32.   It is apparent from this evidence that the problem which arose is not that Ms S was not

      informed at all about CYFS, but that the role of CYFS was significantly minimalised.
                                                   23

33.       The Tribunal is not satisfied that particular 2 is established; the problem which

          occurred is captured in other particulars in the charge.

Particular 3: made derogatory and/or misleading and/or unprofessional statements
about the CYFS Adoption Service to the mother, her mother, and the prospective
adoptive parents, when she knew or ought to have known that such comments would
undermine the credibility of that service for those persons:

34.       The Tribunal is satisfied that the facts which support this particular are clearly

          established by paragraphs 6, 7, 16 and 20 of the ASF; and the emails referred to

          previously. Examples written by Ms Casey to the prospective parents include:

          34.1    “By law I will inform CYFS when the baby is about to arrive so they cannot

                  play any nasty tricks in time”

          34.2    “Do not trust CYFS they are capable of anything”

          34.3    “Let CYFS think you agree with everything”

          34.4    “Give those nasty people a big headache”8

35.       This particular is established.

Particular 4: advised the mother and/or the prospective adoptive parents to limit to the
minimum their involvement with the Adoption Services, such advice being to the
detriment of the mother and/or prospective adoptive parents:

36.       This particular is clearly established by the information in paragraphs 6, 15, 16 and 20

          of the ASF, and the emails already referred to.

Particular 5: advised the mother and/or the prospective adoptive parents not to disclose
to the hospital staff that it was proposed to adopt the baby out and/or the details of the
adoption plan:

37.       This particular is clearly established by the facts contained at paragraph 21 of the

          ASF, and the emails already referred to.

38.       This was a serious breach, because the consequence was that for the whole time that

          the mother was in hospital, neither she nor her mother mentioned anything about the



8
    Bundle pp177, 185 & 190.
                                                      24

          adoption to anyone, which was an invidious position for the mother to have been

          placed in.

Particular 6: advised the mother and/or her mother to provide false and/or misleading
information to Adoption Services:

39.       The facts on which this particular is based are contained in paragraphs 15 and 16 of

          the ASF. As ASF paragraph 16 notes, the mother was “freaked out” by the “advice”,

          which she therefore followed. It was stated in one of the emails that:

                  “... I did advise Ms S and her mother to keep their cards close to their chest as
                  if too many people get involved they all have their opinion and it can really
                  upset the apple cart especially when emotions run high.”

40.       This particular is established.

Particular 7: failed to make adequate and/or accurate and complete documentation in
her clinical midwifery notes:

41.       Ms Stanbridge carried out a very thorough review of Ms Casey’s notes, which made it

          clear that (apart from her labour care) the notes for Ms S do not give a clear record of

          care; that there was uncertainty about the accuracy and timing of some aspects of the

          care given; and that there were examples of clearly inaccurate and inconsistent

          recording of events.9

42.       The Tribunal has reviewed Ms Stanbridge’s expert evidence in detail on this point,

          and is satisfied that she has reached a correct conclusion.10

43.       Ms Stanbridge stated, and the Tribunal agrees, that Competencies 1 and 2 and

          Standards 2-5, and 7 are clear about the need for the midwife to document accurately

          each contact with the woman, all decisions made and midwifery care offered and

          provided. The expectation is that this includes assessments, information, cares, plans,




9
     Stanbridge paras 249-251.
10
     In particular, it agrees with the analysis undertaken by Ms Stanbridge at the following paragraphs of her
     brief: 215-219; 235-239; 241-243.
                                                 25

         and outcomes. The documentation is expected to be legible, signed and dated at each

         entry.

44.      These standards were not maintained, and the particular is established.

Particular 8: made notes or entries in her clinical midwifery notes retrospectively
and/or in response to the complaint made by the mother:

45.      Ms Casey admitted this particular.

46.      Because of the ruling already referred to the effect that the Tribunal did not have

         before it the issue of deliberate fabrication, the Tribunal makes no findings to that

         effect.

47.      In this instance, there was clear evidence of retrospective recreation of running

         notes;11 and postnatal running notes.12 This is evident from internal inconsistencies

         within each of those documents, such as entries having been made out of

         chronological sequence. However, the problem goes further than that with regard to

         this charge because there are entries that are in direct contradiction to the content of

         the ASF. A clear example is the recorded statement that:

                   “I will protect, guide, care for but the adoption process is out of my league.
                   To discuss [with] family, prospective parents/friends/FLI/pregnancy
                   counselling/CYFS for profiles of couples. Will have to have lawyer and CYFS
                   involved.” (14/2)

                   “Have contacted midwives in NZ re potential babies as CYFS not helping.”
                   (14/3)

                   “Have chosen couple and have had contact with them v/happy has foster care
                   organised for 10/7. Prospective parents to discuss with CYFS/lawyer.” (30/5)

48.      The evidence from the ASF is that Ms S did not receive any information from anyone

         else about adoption until late August 2007 when she spoke to CYFS for the first time.




11
     Bundle pp11 & 12.
12
     Bundle p15.
                                              26

49.   It in fact it appears that the foster care was not organised until after the birth, and that

      it was organised urgently.

50.   The Tribunal’s conclusion is that these notes were clearly made retrospectively, and

      were seriously inaccurate and misleading, having regard to the discrepancies

      described.

51.   This constitutes a breach of Competencies 1 and 2, and Standards 3 and 4.

52.   The particular is established.

Particular 9: acted in breach and/or failed to adhere to the New Zealand College of
Midwives Philosophy and Code of Ethics, Standards of Practice and Competencies for
entry to the Register of Midwives:

53.   As already indicated, in respect of each of the above particulars, there have indeed

      been breaches of these requirements.

Conclusions on charge:

54.   In summary, the Tribunal is satisfied that each of the particulars is established,

      although there is some overlap which has been taken into account.

55.   The Tribunal is satisfied that considered cumulatively, the conduct amounts to

      negligence, malpractice, and the bringing of discredit to the profession.

56.   The Tribunal is satisfied that discipline is warranted in respect of the charge, because

      the conduct involved issues of conflict of interest, incompetence, lack of integrity, and

      has caused very considerable adverse consequences, emotional and financial, for all

      parties involved. The note taking breaches were, in and of themselves, also very

      serious, and warranted discipline.

57.   The charge is established as one of professional misconduct.

Charge 2: Ms N

58.   The charge stated:

      “Charge 2 – Ms N

      11.    That during the period August – September 2005 when acting in the role of
                                             27

             midwife for her client Ms N of Christchurch following the birth of her Baby L
             Ms Casey failed to act at all times in the best interests of her client in that she:

      12.    Failed to make adequate and/or accurate and/or complete documentation in
             her clinical midwifery notes and/or Baby L’s Plunket book; and/or

      13.    Made notes or entries in clinical midwifery notes retrospectively and/or in
             response to the complaint made by Ms N; and/or

      14.    Failed to provide appropriate and/or adequate breast feeding advice,
             instructions or care in a timely manner; and/or

      15.    Failed to examine and/or provide appropriate care for Ms N’s breasts and
             nipples in a timely fashion; and/or

      16.    Acted in breach and/or failed to adhere to the New Zealand College of
             Midwives philosophy and Code of Ethics, the New Zealand College of
             Midwives Standards of Practice (including Standards 1, 2, 4, 5, 6 and 7) and
             the Competencies for Entry to the Register of Midwives (Competencies 1 – 4).

      17.    The conduct alleged in Charge 2 amounts to professional misconduct pursuant
             to section 100(1)(a) or (b) of the Act and particulars 1 - 5 either separately or
             cumulatively, are particulars of that professional misconduct.”

59.   The ASF recorded, in respect of this charge:

             “Ms Casey accepts the factual basis for each of the five particulars of Charge
             2 as set out below and in the expert opinion of Ms Chris Stanbridge as per
             paras 254 – 299 of her brief of evidence, as summarised below and accepts
             that the particulars of the charge when considered cumulatively amount to
             professional misconduct.

             57.    Ms N (Ms N) is a qualified primary school teacher. She is married to
                    Mr T and they have two daughters, Baby L and Baby I.

             58.    Charge 2 relates to the post natal care provided by Ms Casey after
                    Baby L was born on x August 2005. Ms N believes that Ms Casey
                    looked after her antenatal, labour and birth care well.

             59.    Baby L was born at Christchurch Women’s Hospital and she and her
                    mother were transferred to St George’s hospital and she was
                    discharged from there on x August 2005 when Baby L was three days
                    old.

             60.    Ms Casey’s first home visit was on 28 August 2005 when she checked
                    Baby L and also checked how Ms N’s breast feeding was proceeding
                    and generally how she was. Mr T was present at most of Ms Casey’s
                    post natal visits.

             61.    The only time that Ms Casey checked Ms N’s nipples was when she
                    found her crying on the couch with a bleeding, cracked nipple. This
                                           28

                    was x August 2005.

             62.    Ms Casey recommended that Ms N use a nipple shield. She advised Ms
                    N that she should not express milk from her sore breast as she said it
                    would upset her milk supply.

             63.    As Ms Chris Stanbridge, midwife expert called by the PCC comments
                    at para 280, there are two entries for 8 September 2005, one being at
                    6.00 pm followed by one at 4.00 pm. These contain contradictory
                    information and assessment of Ms N including “tearful/anxious” at
                    6.00 pm but “gaining confidence” at 4.00 pm and “using shield” at
                    4.00 pm but “not to use shields routinely” at 6.00 pm, and at 6.00 pm
                    “nipples x 1 cracked swab taken using shield” but at 4.00 pm “nipples
                    better/swab taken”. The 4.00 pm record accords with Ms N’s
                    recollection of what occurred at that consultation. The 6.00 pm record
                    is not accurate (as above). In addition Ms Casey did not mention at
                    any time to Ms N that she should see a lactation consultant. It was
                    only after Ms Casey completed her post natal visits that Ms N went to
                    see her doctor who told her to stop feeding off her painful breast
                    immediately. It was only after seeing her doctor that she went to see a
                    lactation consultant.

             64.    As detailed in Ms Stanbridge’s evidence (paras 272 – 288) Ms Casey’s
                    notes are inaccurate as to the number and frequency of post natal visits
                    and what occurred and there are inconsistencies in the detail of
                    Ms Casey’s notes and the Plunket book.

             65.    In Ms Stanbridge’s opinion (para 288) Ms Casey’s note taking does not
                    meet the expectation of midwives in relation to Competencies and
                    Standards related to documentation. She further notes:

                    “If notes have been added to retrospectively (and not annotated as
                    such) or fabricated to address issues raised in a complaint, then
                    Ms Casey has, in my opinion, made a gross breach of ethics and
                    standards of care and has fallen significantly short of expected
                    professional standards”.

             66.    Ms Stanbridge (para 299) concludes that Ms Casey has not provided
                    Ms N with timely advice or appropriate care for her breast feeding and
                    in particular for her damaged nipple. This amounts to a breach of or
                    failure to adhere to the NZCOM philosophy and Code of Ethics and the
                    NZCOM Standards and the Competencies.”

Particular 1: failed to make adequate, accurate or complete documentation in clinical
midwifery notes or baby’s Plunket book:

60.   Ms Stanbridge carried out a thorough review of Ms Casey’s notes which concluded

      that there appears to be incomplete documentation, uncertainty about the accuracy of

      the notes, and inconsistency within some of the documentation; further, Ms Casey had
                                                 29

          not signed nor named the notes. The Tribunal accepts the advice based on the

          analysis carried out by Ms Stanbridge.13

61.       From the analysis, the Tribunal has to conclude that it is difficult to determine what

          Ms Casey did postnatally, and what the situation was for the patient.

62.       The Tribunal accepts Ms Stanbridge’s opinion that the note taking does not meet the

          expectations of midwives in relation to competencies and standards relating to

          documentation.14

63.       This particular is established.

Particular 2: made notes or entries in clinical midwifery notes retrospectively and/or in
response to complaint:

64.       Ms Casey admitted this particular.15

65.       Because of the ruling already referred to, to the effect that the Tribunal did not have

          before it the issue of deliberate fabrication, the Tribunal makes no findings to that

          effect.

66.       There was clear evidence of the retrospective recreation of notes.16

67.       ASF paragraph 63 records the inconsistency of the notes relating to the two entries for

          8 September 2005; it is apparent that there was only one visit on that day. There is

          also a reference in the notes to referral to a lactation consultant; Ms Casey now

          accepts that was not the case.

68.       The Tribunal concludes that there was an inept attempt to create further notes after the

          event, and that this was wholly inappropriate.

69.       This constitutes a breach of Competencies 1 and 2, and Standards 3 and 4.

70.       This particular is established.


13
     Stanbridge paras 272, 273, 278, 279-281.
14
     Stanbridge paras 288 & 61-64.
15
     T99/2-5.
16
     Bundle pp30 & 31.
                                                 30

Particular 3: failed to provide appropriate or adequate breastfeeding advice,
instructions or care in a timely manner:

71.      ASF paragraph 61 records that the only time Ms Casey checked Ms N’s nipples was

         when she found her crying on the couch with a bleeding cracked nipple, on xx August

         2005. This was four days after the birth, and three days after the first visit.

72.      The next visit was not until 8 September, eight days later.

73.      The next visit was seven days later on 15 September; the final visit was on

         29 September, two weeks later.17

74.      In short, there were five postnatal home visits over approximately four weeks, to a

         patient who had significant breastfeeding and nipple damage.               It appears that

         Ms Casey advised Ms N to “take care with position and latching” and stated “needs

         time for nipples to heal” but did not appear to go beyond querying the need for

         lactation consultation input.

75.      The main problem in this instance was the physical injury (encapsulated in the next

         particular), but an aspect of the problem was a failure to provide proper breastfeeding

         advice.

76.      This particular is established.

Particular 4: failed to examine and/or provide appropriate care for breasts and nipples
in a timely fashion:

77.      From the chronology just discussed, the factual basis for this particular is established.

78.      It is a matter of acute concern that Ms Casey only examined the patient’s nipples once,

         on xx August.




17
     Bundle pp 30 & 31.
                                                 31

79.       The Tribunal finds:

          79.1    The patient should have been seen more frequently, since the patient had raised

                  blocked nipples, and was tearful.

          79.2    There should have been daily and possibly more regular contact and follow-up.

          79.3    Follow-up should have included observation of latching and feeding to ensure

                  no further damage to the nipple.

          79.4    Treatment should have included, as Ms Stanbridge advised, other suggestions

                  such as “resting” the nipple by expressing rather than latching the baby;

                  advising expressing prior to latching; trying different positions of the baby for

                  latching; and possibly the temporary use of a breast shield.18

          79.5    A further possibility of treatment for a damaged nipple could have involved the

                  principles of moist wound healing, ie; the use of a recommended lanolin based

                  ointment.

80.       Ms Stanbridge advised that these established breaches amounted to a breach of

          Standards 1 to 5, 6 and 7; and Competencies 1 to 4. The Tribunal accepts this

          opinion.

81.       The particular is established.

Particular 5: acted in breach and/or failed to adhere to New Zealand College of
Midwives Philosophy and Code of Ethics, Standards of Practice and Competencies for
Entry to the Register of Midwives:

82.       As already indicated, in respect of the above particulars, there have indeed been

          breaches of these requirements.

Conclusions on charge:

83.       In summary, the Tribunal is satisfied that each of the particulars are established,




18
     Stanbridge para 294.
                                            32

      although there is some overlap which has been taken into account.

84.   The Tribunal is satisfied that considered cumulatively the conduct amounts to serious

      negligence.

85.   The Tribunal is satisfied that discipline is warranted, there being issues of serious

      neglect and care and serious incompetence.

86.   The charge is established as one of professional misconduct.

Charge 3: Ms N:

87.   The charge stated:

       “Charge 3 – Ms N

      18.    That during the period 24 October 2006 – December 2006 when acting in the
             role of midwife for her client Ms N of Christchurch Ms Casey failed to act at
             all times in the best interests of her client in that she:

      19. Failed to make or make adequate and/or accurate and/or complete
            documentation in her clinical midwifery notes; and/or

      20. Made notes or entries in her clinical midwifery notes retrospectively and/or in
           response to the complaint made by Ms N; and/or

      21. During labour which commenced on x October 2006 failed to assess or
           adequately assess the maternal and/or foetal wellbeing and/or the state and
           progress of labour; and/or

      22. Failed to provide adequate and/or appropriate midwifery advice to Ms N in the
            course of her labour; and/or

      23. Failed to provide adequate and/or appropriate care to Ms N in the course of her
            labour; and/or

      24. Failed to provide adequate and/or appropriate support to Ms N in the course of
            her labour; and/or

      25. Failed to appropriately and/or adequately respond to Ms N’s request and
            requirement for professional midwifery assistance and input in the course of
            her labour; and/or

      26. Failed to communicate or adequately communicate with Ms N; and/or

      27. Acted in breach and/or failed to adhere to the New Zealand College of Midwives
            philosophy and Code of Ethics, the New Zealand College of Midwives
            Standards of Practice (including Standards 1, 2, 4, 5, 6 and 7) and the
            Competencies for Entry to the Register of Midwives (Competencies 1 – 4).
                                            33

      28.    The conduct alleged in Charge 3 amounts to professional misconduct pursuant
             to section 100(1)(a) or (b) of the Act and particulars 1 - 9 either separately or
             cumulatively, are particulars of that professional misconduct.”

88.   The ASF recorded in respect of this charge:

             “Ms Casey accepts the factual basis for each of the nine particulars of Charge
             2 as set out below and in the expert opinion of Ms Chris Stanbridge as per
             paras 300 – 442 of her brief of evidence, as summarised below and accepts
             that the particulars of the charge when considered cumulatively amount to
             professional misconduct.

             67.    Despite Ms N’s concerns about Ms Casey’s post natal care after the
                    birth of baby L, she and Mr T nonetheless chose her to be the midwife
                    for their second pregnancy because they were happy with the antenatal
                    care that Ms Casey had previously provided. From their experience of
                    Ms Casey with baby L post natally they worked on the basis that Ms
                    Casey’s post natal visits would be “token” and for that reason Ms N
                    arranged a lactation consultant towards the end of her pregnancy.

             68.    Ms N and Mr T relied throughout on Ms Casey’s professional
                    judgment and expertise and anticipated a pain controlled and safe
                    delivery at Christchurch Women’s Hospital.        Throughout the
                    pregnancy Ms N made it very clear that she wanted a birth like baby
                    L’s where there was no pain and that she wanted epidural “all the
                    way”.

             69.    At about 1.40 am on x October 2006 Ms N went into labour, she was
                    38 weeks pregnant. Her contractions started quickly and they were
                    two minutes apart from the outset. Mr T rang Ms Casey at about 2.30
                    am. Mr T told Ms Casey what was happening and that Ms N’s
                    contractions were two minutes apart (they had been timing them). Ms
                    Casey said that that was “OK” but to tell Ms N to “take a couple of
                    Panadol and go back to bed with a hottie”. She said to call her back
                    “when the contractions are a minute long”.

             70.    Ms N’s contractions continued two minutes apart but were never
                    longer than 40 seconds throughout her entire labour. She was
                    “vomiting and poo-ing” a lot and was not handling the pain very well.
                     Between about 5.30 am and 6.30 am Mr T rang Ms Casey again and
                    explained that Ms N was asking for drugs. Ms Casey said that Ms N
                    should have more Panadol and that they should wait until the
                    contractions were one minute in length before they contacted her
                    again. By this stage Mr T felt that Ms Casey did not like being rung in
                    the middle of the night.

             71.    Ms N was becoming very tired and was in a lot of pain. “It was
                    horrible”.

             72.    At about 7.30 am Ms Casey rang and asked Mr T how things were. He
                    told her and Ms Casey said that they should drive to Christchurch
                              34

      Women’s and meet her there at 8.00 am. By this time Baby L was
      having breakfast and Ms N was standing at the kitchen bench in
      considerable pain. She was exhausted, and the last thing she wanted to
      do was sit in a car in peak hour traffic in labour.

73.   At 7.40 am while at the kitchen bench Ms N’s waters broke and she sat
      on the lavatory just off the laundry. It was cold and Mr T was
      beseeching her to “get off the loo”. He kept saying that Ms Casey
      wanted them to drive to Christchurch Women’s Hospital, but she could
      not face it.

74.   Ms N’s aunt arrived and they helped her onto the laundry floor. By
      this time Ms N was extremely frightened and she insisted that her
      husband ring the ambulance. She feared that the baby was going to
      deliver at home and that something might happen if she did not get to
      hospital quickly.

75.   The ambulance arrived about four minutes later and within a minute
      Ms N gave birth to a baby girl (Baby I), delivered on the laundry floor.

76.   Mr T rang Ms Casey to inform her and she told him that Ms N could
      either stay at home or go to St George’s. However the ambulance
      driver wanted to have Baby I checked out because she was very cold,
      and insisted that they go to Christchurch Women’s Hospital.

77.   They arrived at the delivery room at about 9.00 am and were met by
      Ms Casey, who said straightaway “I knew you would be quick”.
      Ms Casey checked Baby I and Ms N and gave her some stitches and
      then left the hospital. Ms N had to locate a nurse to discharge them
      and arrange a transfer to St George’s.

78.   For Ms N and Mr T the entire experience was horrific and very scary,
      and they are thankful that Baby I was born safely.

79.   Ms Casey has recorded a post natal visit for 4 December 2006 noting
      that Ms N and Mr T had no concerns or questions and that Ms N had
      stated that she was happy with everything. This is not accurate. Ms
      Casey was well aware of how angry Ms N was that she had delivered
      at home on her own. At some point Ms N and Mr T tried to broach the
      subject with Ms Casey; she simply brushed things off and trivialised
      their concerns, telling them about women in Saudi Arabia having
      babies in jeeps. At one point Ms Casey said “If I was at fault, which I
      don’t think I am, I would have had a better idea of the situation if I’d
      spoken to Ms N”. However at no time in her conversations with Mr T
      did she suggest that she should speak to Ms N. The labour and birth of
      Baby I still haunts Ms N.

80.   For the reasons    set out in her expert opinion (para 405 – 424) in
      Ms Stanbridge’s    opinion the antenatal documentation is absolutely
      minimal and in      her opinion the documentation is insufficient to
      demonstrate that   Ms Casey was providing appropriate midwifery care
                                            35

                     and falls below acceptable standards. Ms Stanbridge records (para
                     423):

                            “There is insufficient evidence of her gaining comprehensive
                            assessments of Ms N’s health, of working in partnership with
                            Ms N, that she provided Ms N with information to make
                            informed decisions, that she planned care with Ms N, that she
                            provided robust care, or worked within the Code of Ethics,
                            Competencies 1-3 or Standards 1-5 and 7-9”.

             81.     Ms Stanbridge also notes that Ms Casey has no record of what she
                     heard of the conversations or on what she based her decision to advise
                     them. She notes that Ms Casey retrospectively states that she would
                     have advised admission if she had known of the frequency and length of
                     the contractions but this is the sort of information it is expected the
                     midwife would elicit from the woman or whoever is ringing on her
                     behalf. In para 429 Ms Stanbridge sets out the type of inquiries that
                     Ms Casey should have made which would then (para 430) give her the
                     basis on which to make decisions about whether it was appropriate for
                     her to attend at the home or to meet them at hospital.

             82.     In Ms Stanbridge’s opinion (para 433) a second call from the woman
                     or her family would generally be a time for the midwife to consider
                     meeting with the woman as that would provide an opportunity to
                     complete a set of observations on the woman while assessing her
                     contractions, palpation, liquor check, foetal heart and how the woman
                     is coping.

             83.     As Ms Stanbridge points out (para 440) it is the midwife’s role to
                     provide guidance and options for the woman to be able to make
                     informed choices for herself and to use her knowledge and skills to
                     provide safe midwifery care, to support and facilitate childbirth and to
                     document her findings and care.”

Particular 1: failed to make adequate/accurate/complete documentation in clinical
midwifery notes:

89.   As is summarised at ASF paragraph 80, Ms Stanbridge carried out an analysis of

      Ms Casey’s antenatal and postnatal documentation, and concluded that the

      documentation was insufficient to demonstrate Ms Casey was providing appropriate

      midwifery care.    There was insufficient evidence of her gaining comprehensive

      assessments of Ms N’s health, of working in partnership with Ms N, that she provided

      Ms N with information to make informed decisions, that she planned care with Ms N,

      or that she provided robust care.
                                                36

90.       The Tribunal has examined the evidence given by Ms Stanbridge in that regard19 and

          agrees with the conclusion she has reached.

91.       It also agrees with her that there has been a breach of Competencies 1 to 3, and

          Standards 1 to 5 and 7 to 9.

92.       This particular is established.

Particular 2: made notes or entries in her clinical midwifery notes retrospectively
and/or in response to the complaint made by Ms N:

93.       Ms Casey admitted this particular.

94.       Because of the ruling already referred to, to the effect that the Tribunal did not have

          before it the issue of deliberate fabrication, the Tribunal makes no findings to that

          effect.

95.       Ms Stanbridge has examined the notes carefully.         Of particular concern are the

          postnatal notes, that the mother had no concerns, and that she was “happy with

          everything”, which was not the case. It was Ms N’s evidence that Ms Casey knew

          how angry she was with the delivery having occurred at home on her own. The

          Tribunal agrees with Ms Stanbridge’s analysis.20

96.       The Tribunal considers there is clear evidence of retrospective recreation of notes; and

          concludes that there was an inept attempt to create further notes after the event, and

          that this was wholly inappropriate.

97.       This constitutes a breach of Competencies 1 and 2, and Standards 3 and 4.

98.       This particular is established.

Particulars 3-7: during labour failed to assess or adequately assess maternal/foetal
wellbeing/state and progress of labour;
failed to provide adequate or appropriate midwifery advice in the course of labour;
failed to provide adequate or appropriate care to the mother in the course of her
labour;


19
     Stanbridge paras 405-422.
20
     Paras 327-245, and 367.
                                                37

failed to provide adequate/appropriate support in the course of labour;
failed to appropriately/adequately respond to mother’s request and requirement for
professional midwifery assistance and input in the course of labour:

99.      It is convenient to take these five particulars together, since they all deal with what

          occurred in the course of labour, and overlap.

100.     The factual basis for the particulars is established by ASF paragraphs 68-75.

101.     The Tribunal also agrees with the factual analysis which supports the conclusions in

          the ASF carried out by Ms Stanbridge.21

102.     It is clear Ms N wanted a pain free birth, and an epidural. She made this clear

          throughout the pregnancy. She wanted an epidural “all the way”.

103.     Her contractions started at 1.40am; and after 50 minutes of contractions, two minutes

          apart, Ms Casey was advised of the position at 2.30am. Ms Casey told Mr T (Ms N’s

          partner) to ring back when contractions were a minute long.

104.     In the second phone call, between about 5.30am and 7.30am, Ms Casey was told that

          Ms N was asking for drugs; it was clear she was not handling the pain very well. The

          contractions were two minutes apart, but never longer than 40 seconds.

105.     The Tribunal finds that she was clearly in labour, and had been since 1.40am. By

          5.30am, she had been in labour for four and a half hours.

106.     Ms Casey’s insistence of contractions of one minute long was erroneous. It raises

          concerns as to her knowledge and competence, and how a proper assessment could be

          made over the phone.

107.     A third phone call at 7.30am brought the response that Ms N and Mr T should meet

          Ms Casey at Christchurch Women’s Hospital at 8.00am. The birth occurred a short

          time later.




21
     Paras 377-380; 425-442.
                                               38

108.   The Tribunal is satisfied that each of the particulars 3 to 7 are factually established.

109.   Particular 7, the failure to respond to a request for professional midwifery assistance

       and input during labour, is the most serious. The response by a midwife is a core

       requirement to provide professional help. In the circumstances of this case, Ms Casey

       should have responded immediately when asked to do so.

110.   The Tribunal accepts Ms Stanbridge’s opinion that it is the midwife’s role to provide

       guidance and options for a woman to be able to make informed choices for herself. It

       is part of the midwife’s role to work in partnership with the woman, to use her

       knowledge and skills to provide safe midwifery care, to support and facilitate

       childbirth, and to document her findings and care.          This is encompassed in the

       philosophy, the Code of Ethics, Competencies 1 to 4, and Standards 1 to 7.

111.   The Tribunal is satisfied that each of particulars 3 to 7 are established.

Particular 8: failed to communicate or adequately communicate with Ms N:

112.   A number of paragraphs in the ASF establish this particular – the pre-emptory

       responses (ASF paragraph 69 and 70); the trivialisation of Ms N’s concerns in the

       postnatal period (ASF paragraph 79); the failure to illicit proper information being

       labour (ASF paragraph 81); and the recording, incorrectly, that the mother was “happy

       with everything”.

113.   In summary, there were multiple and significant communication breaches.

114.   Ms N’s labour should have been a pleasurable and straightforward experience; but

       regrettably she and Mr T were left with a damaging and haunting experience.

115.   This particular is established.

Particular 9: acted in breach and/or failed to adhere to New Zealand College of
Midwives Philosophy and Code of Ethics, Standards of Practice and Competencies for
Entry into the Register of Midwives:

116.   As already indicated, in respect of the above particulars, there have indeed been

       breaches of these requirements.
                                              39

Conclusions on charge 3:

117.   In summary, the Tribunal is satisfied that each of the particulars are established,

       although there is overlap which has been taken into account.

118.   The Tribunal is satisfied that considered cumulatively the conduct amounts to

       malpractice and the bringing of discredit to the profession.

119.   The Tribunal is satisfied that discipline is warranted, for the following reasons:

       119.1 There was a callous disregard for the concerns raised from the phone calls

              received when Ms N was in labour, notwithstanding good information

              presented by Mr T.

       119.2 The mother and baby were placed in jeopardy.

       119.3 Distress was caused.

       119.4 Serious issues as to competency arise.

120.   The charge is established as one of professional misconduct.

Charge 4: Ms O:

121.   The charge stated:

       “Charge 4 – Ms O

       29.    That during the period March – May 2008 when acting in the role of midwife
              for her client Ms O Ms Casey failed to act at all times in the best interests of
              her client in that she:

       30.    Failed to properly or adequately inform and/or provide appropriate or
              adequate advice during the antenatal period; and/or

       31.    Failed to provide appropriate advice, support and care during Ms O’s labour
              (i.e. from 6.30 pm on 30 April 2008) and/or the birth of Baby Z on x May
              2008; and/or

       32.    Failed to provide appropriate and/or adequate breast feeding advice,
              instruction or care; and/or

       33.    Failed to provide Ms O (and her Baby Z) with appropriate advice, support and
              care in the post partum and/or post natal period; and/or

       34.    Failed to treat her client Ms O with appropriate respect, empathy and
              sensitivity; and/or
                                              40

        35.    Failed to make adequate and/or accurate and/or complete documentation in
               her clinical midwifery notes.

       36.     Acted in breach and/or failed to adhere to the New Zealand College of
               Midwives philosophy and Code of Ethics, the New Zealand College of
               Midwives Standards of Practice (including Standards 1, 2, 4, 5, 6 and 7) and
               the Competencies for Entry to the Register of Midwives (Competencies 1 – 4).

        37.    The conduct alleged in Charge 4 amounts to professional misconduct pursuant
               to section 100(1)(a) or (b) of the Act and particulars 1 - 7 either separately or
               cumulatively, are particulars of that professional misconduct.”

122.    The ASF recorded in respect of this charge:

               “Ms Casey accepts the factual basis for each of the seven particulars of
               Charge 4 as set out below and in the expert opinion of Ms Chris Stanbridge as
               per paras 443 - 645 of her brief of evidence, as summarised below and accepts
               that the particulars of the charge when considered cumulatively amount to
               professional misconduct.

               84.    Ms O was 21 when her daughter baby Z was born on 1 May 2008.

               85.    On 6 March 2008 Ms O and her partner Mr P returned to Christchurch
                      from Auckland. Ms O found Ms Casey in the Yellow Pages and she
                      first went to see her at the Linwood Medical Centre on 20 March 2008.
                      Between 20 March and 24 April 2008 Ms O saw Ms Casey (sometimes
                      with Mr P) a total of five times. On average each of the appointments
                      would be no more than 5 – 10 minutes where the heartbeat, blood
                      pressure and position of head would be checked. The only notes that
                      Ms Casey made were in Ms O’s pregnancy diary.

               86.    There was no discussion about birthing options and there was no
                      specific birth care plan. Ms Casey just “ticked the boxes”. Ms O
                      advised that she wanted an epidural if there was sufficient time. She
                      also asked Ms Casey if she could give birth standing up, but she was
                      told that this was not allowed.

               87.    Ms O wanted to go to xxx Hospital for aftercare but Ms Casey told her
                      that she would not want to go there and arranged for her to go to zz.
                      Ms O’s mother, Ms M, lives a few minutes from xxx Hospital. Ms M
                      believes that this decision was taken out of her hands by Ms Casey.

               88.    The only birth plan was that Ms Casey said that unexpected things
                      happen during a pregnancy and birth so the plan was to leave it open.
                      She said that because Ms O was young and it was her first pregnancy
                      she would probably go over nine months. No other contingencies or
                      plans were discussed, the cultural, spiritual, physical and social
                      dimensions were not discussed. At the appointment on x April 2008 Ms
                      Casey indicated that if the baby was not born by x May Ms O would be
                      induced at Christchurch Women’s Hospital. Ms O’s midwife in
                      Auckland told her that the midwife in Christchurch would sit down with
                            41

      them and give them birthing options and all other information they
      needed to know further into the pregnancy. This did not happen. Ms O
      felt that she should have been comfortable talking things through with
      Ms Casey but this was not the case. She could not relate to Ms Casey
      as a woman or a confidante. Mr P felt that Ms Casey “talked down” to
      them, “like Ms O was a piece of trash”.

89.   At 6.30 pm on Wednesday x April 2008 Ms O’s waters broke in the
      supermarket and contractions started shortly afterwards. Ms O
      advised Ms Casey of this. Ms Casey said that if nothing had happened
      by Friday morning she would be induced. Ms O expected her to say
      come into hospital and she would see her there.

90.   Mr P started recording the contractions and because she was
      concerned, Ms O rang her mother who advised her to ring Ms Casey
      again. Mr P did this and Ms Casey told him to tell Ms O to take a
      couple of Panadol and to go to bed, and that it would be at least
      another 12 hours. She said “Look! Mr P, she is not going to have this
      baby yet. She is going to take one or two days”. Mr P felt she was
      getting “pissed off” because he kept ringing her. By this time Ms O
      was in pain and the contractions were becoming worse and the timing
      shorter. She wanted an epidural.

91.   Mr P had also rung Mrs M several times and explained that the
      contractions were two minutes apart and that Ms O had lost a lot of
      blood. Mrs M became very concerned and spoke with her other
      daughter A, who too was worried and rang Health Line. A said that
      Health Line had told her that Ms O should be in hospital. Mrs O
      agreed to ring Ms Casey, which she did at about 9.30 pm on 30 April.
      Mrs M told Ms Casey that she thought her daughter should be in
      hospital. Ms Casey was very annoyed that she had rung and said
      “Look! I have been talking to Ms O and the blood was a ‘show’ and
      she needn’t go in for another 15 – 16 hours”. Ms Casey gave Mrs M
      the impression that she was a naughty child who did not know what she
      was talking about.

92.   After that discussion Mrs M rang Mr P and told him to take Ms O to
      hospital as soon as possible. Ms O expected Ms Casey to come over
      but she did not. She had never been to Ms O’s home. Ms Casey
      continued to say that all was normal but Ms O was very scared and
      upset and knew the baby was coming.

93.   On either the third or fourth call Ms Casey listened to Ms O’s
      contractions over the phone and said they sounded like they were
      progressing. Mr P told her that they were going to go to the hospital
      irrespective of what she advised. When they got to Christchurch
      Women’s Hospital Ms Casey was there and examined Ms O and said
      she was fully dilated and it was time to push. Ms O said she wanted an
      epidural but Ms Casey said “No it’s time to have a baby”.

94.   Up to this point Mr P was angry, terrified, scared and did not know
                              42

       what to do. At about 12.15 am Ms Casey pushed the alarm button as
       the baby was caught by the shoulder and several nurses assisted Ms O
       to give birth. By this time Ms O was angry, scared and felt isolated
       and powerless, not knowing anything and feeling that she was not
       getting support from Ms Casey. She could not understand why Ms
       Casey had not come to visit her at home when the contractions had
       started.

95.    Ms Casey did not tell Ms O how to breast feed, she gave her no
       instructions whatsoever.

96.    Ms O was very sore and could not stand up. She could not pick Baby Z
       up without a lot of pain and had to feed her not knowing what she was
       doing. Ms Casey said that she would see her in the morning before she
       was transferred to after care at St George’s but she did not.

97.    Ms O was discharged from St George’s on Saturday x May 2008 and
       was still on crutches with an elastic band around her hip. Ms Casey
       visited on 5 May but again did not discuss or show Ms O the correct
       procedure for breast feeding. Because Ms O’s nipples were very sore
       she had been using cabbage leaves to stop them sticking to her bra. Ms
       Casey told Ms O that that was of no use, she had “never heard of such
       a thing”. When Ms O asked her how to stop her nipples sticking Ms
       Casey said they would be fine.

98.    Ms O asked if she could see the physiotherapist but Ms Casey said that
       she would be fine in a couple of days and would not need to. Ms O did
       not heal and needed the services of an osteopath. She continued to
       have problems breast feeding and decided not to continue feeding Baby
       Z. Mrs O was so worried that after speaking with her cousin she
       arranged for a lactation consultant to come and see her daughter.

99.    Ms Casey never showed Ms O how to use a hand pump or what the
       correct “latch” position to breast feed was. Mr P felt that Ms Casey
       was not answering their questions and was more interested in Ms O’s
       cats than her daughter.

100.   After meeting with the lactation consultant Mr P rang Ms Casey and
       told her that they did not wish her to be their midwife any more. Ms
       Casey said she had a lot more tricks up her sleeve. Mr P told her that
       they needed more support from her during the birth and breast feeding.
        Ms O remains upset and affected by Ms Casey’s actions and attitude.

101.   In Ms Stanbridge’s opinion (para 570 – 571) Ms Casey did not appear
       to have provided Ms O with the opportunity to work in partnership, nor
       make informed decisions and that she failed to properly or adequately
       inform or advise during the antenatal period.

102.   It is Ms Stanbridge’s opinion that any reports of a woman bleeding
       during labour needs to be investigated to determine whether it is blood
       stained mucus which is a very normal “show”, or more fluid.
                              43

       Ms Casey has not made any record of a conversation along these lines
       and if there was no such conversation there should have been, but if
       there was a conversation then it should have been recorded.
       Ms Stanbridge also believes that repeated calls from a woman and her
       family over a short number of hours is inevitably a signal the woman
       or family are worried and this would generally warrant a visit from the
       midwife.

103.   In Ms Stanbridge’s view (para 581) based on the evidence of Ms O and
       Mrs M and Mr P, Ms Casey has not heard their concerns, nor
       apparently assessed what was occurring for Ms O accurately, she has
       not been responsive to her calls and has given what appears to be
       standard advice she gives to women who ring for guidance when in
       labour at night. On the evidence of Ms O and her family (para 583)
       they have been left with a sense of lack of safety and an unsatisfying
       outcome. It is Ms Stanbridge’s view (para 582) that the Standards and
       Competencies expect the midwife to gather information from the
       woman and other sources, to use this information to adjust the care
       plan and partnership with the woman and to be available to support
       and advise the woman, to attend to in labour as she needs, to ensure
       her and her baby’s safety and to be accountable to the woman. Ms
       Casey’s documentation should reflect all these discussions, actions and
       outcomes. It does not.

104.   Ms O was in pain after birth but Ms Casey did not support her to seek
       further assistance with her difficulty with walking, nor did she check
       later that the pain had been resolved.

105.   Ms Stanbridge observes (para 603) that Ms Casey presents three sets
       of post natal notes plus some commentary in the Well Child book about
       ways of managing Ms O’s damaged and painful nipples. However there
       does not appear to have been a discussion about how to manage the
       situation and what options were available to Ms O. It is not clear
       whether the plans had been made in partnership with Ms O and the
       plans in Ms Stanbridge’s view appear to be inconsistent and jumbled.
       Most importantly there is no clear plan left with Ms O to guide her
       through until the next visit. Failure in this regard amounts to a falling
       short of expected standards in Ms Stanbridge’s opinion (para 606).

106.   From the evidence it is clear that Ms O and her family felt undermined
       and disempowered by their maternity experience. As Ms Stanbridge
       notes (para 621) the onus is on the midwife to establish and maintain a
       health enhancing relationship with the woman and Ms Casey did not
       achieve this. She did not support the family, meet their needs or
       communicate with them in a way which made them feel respected. In
       Ms Stanbridge’s view she does not appear to have provided an
       empathetic or sensitive approach to the care and they are left feeling
       admonished, belittled, dismissed, powerless, scared and angry. Ms
       Stanbridge concludes that it appears Ms Casey failed to treat her client
       with appropriate respect, empathy and sensitivity.
                                             44

              107.    Between paras 623 – 644 Ms Stanbridge analyses Ms Casey’s notes
                      and highlights inconsistencies and where the notes are insufficient in
                      various respects.”

Particular 1: failed to properly or adequately inform and/or provide appropriate
and adequate advice antenataly:

123.   ASF paragraphs 85, 86 and 88 provide the factual basis for this particular.

124.   Ms Stanbridge stated that Ms O and her partner believe they had insufficient

       information to make informed choices.22 They did not appear to have had open

       interactive communication facilitated by Ms Casey, nor any negotiation of choices and

       decisions as required by Standard 1 and Competency 1. Standard 2 expects the

       midwife to uphold each woman’s right to free and informed choice and consent

       throughout the childbirth process. She is expected to facilitate the decision making

       process by sharing information and being satisfied the woman understands the

       implications of her choices.     The development of the midwifery care plans are

       expected to be done in partnership with the woman. Competency 1 also expects such

       care, and expects the midwifery relationship to enhance the health and wellbeing of

       the woman, her baby and her family. The midwife is the professional companion who

       promotes each woman’s right to empowerment. Ms Stanbridge considered that

       Ms Casey did not appear to have provided care that encompassed these aspects of the

       competencies and standards.

125.   The complete absence of any real plan is apparent; the Tribunal agrees with the

       opinion provided by Ms Stanbridge, and finds this particular established.

Particular 2: failed to provide appropriate advice, support and care during the
mother’s labour (from 6.30pm) and/or the birth of the baby:

126.   The factual basis for this particular is contained in ASF paragraphs 89-93. Ms O and

       her partner made multiple phone calls to Ms Casey, and relevant information was
                                                  45

          conveyed. Ms Casey did not engage appropriately. The advice to stay at home was,

          on the basis of the information conveyed, inappropriate. That is, there was a failure to

          respond to a report of contractions two minutes apart, and a significant loss of blood.

127.      Fortunately, the instincts of the mother and her family resulted in them attending the

          hospital, contrary to the advice given by Ms Casey. The mother knew the baby was

          coming, and she was right. She was fully dilated by the time she arrived at the

          hospital.

128.      Ms O and her family, naturally, became very concerned.

129.      During the labour, there was an obstetric emergency, namely shoulder dystocia, which

          has a high morbidity and mortality rate. Ms Casey was not to know that such an event

          would occur, but the fact that it did illustrate one of the reasons why mothers attend

          hospital, so as to ensure that a safe and pleasurable birth can occur.

130.      Ms O had a labour with her baby in the posteria position, which meant it would have

          been a very painful labour. Her request for an epidural antenatally, and to attend

          hospital was not at all unreasonable – noting, however, that Ms Stanbridge stated that

          it would have been appropriate not to have organised an epidural when Ms O was

          fully dilated.23

131.      Ms Stanbridge stated that Ms Casey had not heard the concerns of the mother and

          family, nor apparently assessed what was occurring for her accurately. She had not

          been responsive to calls and had given what appeared to be the “standard” advice she

          gave to women who rang for guidance when in labour at night.               This did not

          adequately meet the mother’s needs as expressed by Ms O. Ms Stanbridge stated, and




22
     Stanbridge brief paras 566, -569.
23
     Stanbridge brief para 579.
                                                   46

          the Tribunal agrees, that Ms Casey failed to care for Ms O appropriately when she was

          in labour at home as would have been expected by Competencies 1 to 4, and

          Standards 1 to 3, and 5 to 7.24

132.      This particular is established.

Particular 3: failed to provide appropriate/adequate breast feeding advice, instruction
or care:

133.      The factual basis for this particular is established by ASF paragraphs 95, 97, 99 and

          100.

134.      Competencies 1 to 3, and Standards 1 to 7 provide guidance on meeting a woman’s

          needs in relation to managing changes in planned situations. They include supporting,

          educating and guiding the woman, and if need be seeking additional care or advice for

          her.

135.      The Tribunal is satisfied that this particular is established.

Particular 4: failed to provide mother and baby with appropriate advice, support and
care in the post partum/postnatal period:

136.      The factual basis for this particular is established by ASF paragraphs 96-100, and in

          further analysis undertaken by Ms Stanbridge, which supports the information in the

          ASF.25 A particular problem was that Ms O had to deal with the consequences of the

          McRobert’s manoeuvre as utilised during labour, compounded by the prior pulling of

          a muscle. These factors should have alerted Ms Casey to the need to give particular

          attention to her patient, postnatally, and ensure (for example) she obtained adequate

          analgesia.

137.      In such a situation it is important that the woman understands what is happening, and

          how she can best help herself. Physiotherapy, chiropractic or osteopathy may all offer



24
     Stanbridge brief para 581.
25
     Stanbridge paras 584, 585, & 591.
                                                  47

          assistance, and should be considered.26

138.      In not doing so, there is a breach of Competencies 1 and 2, and Standards 1 to 3, 5 and

          7.27 The Tribunal is satisfied that this particular is established.

Particular 5: failed to treat the mother with appropriate respect, empathy and
sensitivity:

139.      The factual basis for this particular is established by the following paragraphs of the

          ASF:

          86, 87: the overriding of Ms O’s wishes.

          90: disrespectful phone calls.

          91: talking down to the patient, giving her an impression that she was a “naughty child

               who did not know what she was talking about”.

          93: not listening.

          94: not providing support during the birth.

          97: a rude response, when Ms O was using cabbage leaves.

140.      Ms Stanbridge stated that Competency 1 places an onus on a midwife to create a

          functional relationship. This centres the woman as the focus of care, and includes the

          midwife having the ability to communicate effectively with the woman and her

          family.     Standards 1 and 2 expect the midwife to facilitate open interactive

          communication and negotiate choices and decisions so she can develop plans of care

          together with the woman.

141.      The Tribunal accepts this opinion. The particular is established.

Particular 6: failed to make adequate/accurate/ complete documentation in clinical
midwifery notes:

142.      Ms Stanbridge has carried out a detailed examination of documentary issues, which



26
     Stanbridge brief 585.
27
     Stanbridge brief 591.
                                                       48

           the Tribunal has carefully considered, and agrees with.28

143.       Ms Stanbridge advised that although, in some instances, the documentation was

           adequate, there were other instances where it was difficult to follow, repetitive and

           insufficient.

144.       As already stated in this decision, competences 1 and 2 require a midwife to

           systematically gather comprehensive information concerning the woman’s health and

           wellbeing, and to document this; Standard 4 expects a midwife to maintain purposeful

           ongoing and updated records. Standard 3 also addresses the need for comprehensive

           history taking, and collecting information as appropriate from a number of sources.29

145.       These obligations were not met, and the particular is established.

Particular 7: acted in breach and/or failed to adhere to the New Zealand College of
Midwives Philosophy and Code of Ethics, Standards of Practice and Competencies for
Entry to the Register of Midwives:

146.       As already indicated, in respect of each of the above particulars, there have indeed

           been breaches of these requirements.

Conclusions on charge:

147.       In summary, the Tribunal is satisfied that each of the particulars are established,

           although there is some overlap which has been taken into account.

148.       The Tribunal considers that there was significant professional neglect in this instance.

           The condition of the mother, when in labour (including the fact she was discharging

           blood) when she was facing the birth of her first baby, the suffering by her of back

           ache; a fast labour with the baby in OP position, all resulted in her being quite

           frightened. Ms Casey failed to carry out midwifery services adequately; there was a

           combination of failures across a range of aspects of care. In the Tribunal’s view these



28
     Stanbridge brief paras 623-625; 628-637; 639, 641-642.
29
     Stanbridge brief paras 45-47.
                                                49

       factors amounted to serious negligence, and malpractice and the bringing of discredit

       to the profession.

149.   Discipline is warranted, there being significant issues as to competence and lack of

       knowledge.

150.   This charge is established as one of professional misconduct.

Charge 5: Ms U:

151.   The charge stated:

       “Charge 5 – Ms U

       38.    That during the period August – September 2007 when acting in the role of
              midwife for her client Ms U (formerly Ms U) Ms Casey failed to act at all
              times in the best interests of her client in that she:

       39. From when Mrs U commenced labour on 28 August 2007 failed to carry out
             adequate and/or appropriate assessments prior to her arrival at Christchurch
             Women’s Hospital; and/or

       40. During the course of Ms U’s labour failed to respond or respond adequately to
            Ms U’s requirements and/or requests for her professional assistance and
            input; and/or

       41. During Ms U’s labour and the birth failed to treat her with appropriate respect,
            empathy and sensitivity; and/or

       42. Failed to appreciate and respond or adequately respond to Ms U’s needs during
             the post natal period; and/or

       43. Failed to communicate or adequately communicate with Ms U; and/or

       44. Failed to make adequate and/or accurate and/or complete documentation in her
             clinical midwifery notes; and/or

       45. Acted in breach and/or failed to adhere to the New Zealand College of Midwives
             philosophy and Code of Ethics, the New Zealand College of Midwives
             Standards of Practice (including Standards 1, 2, 4, 5, 6 and 7) and the
             Competencies for Entry to the Register of Midwives (Competencies 1 – 4).

       46.    The conduct alleged in Charge 5 amounts to professional misconduct pursuant
              to section 100(1)(a) or (b) of the Act and particulars 1 - 7 either separately or
              cumulatively, are particulars of that professional misconduct.”

152.   The ASF for this charge is as follows:
                              50

“Ms Casey accepts the factual basis for each of the seven particulars of
Charge 5 as set out below and in the expert opinion of Ms Chris Stanbridge as
per paras 646 - 831 of her brief of evidence, as summarised below and that the
particulars of the charge when considered cumulatively amount to
professional misconduct.

108.   Ms U gave birth to a baby girl Baby K, at 12.07 am on x August 2007
       at Christchurch Women’s Hospital. Ms Casey was her midwife.

109.    Ms U’s waters broke at about 6.00 am on x August. Her contractions
       began at about 7.00 pm. After this both Mrs U and Mr U rang Ms
       Casey several times from their home prior to 9.26 pm. They told her
       that Ms U’s waters had broken earlier in the morning and that she was
       having contractions. Ms Casey told Mr U that she was not due to have
       her baby, that he should run the bath and get her to have a bath and to
       give her a call in the morning. When Mr U told her that the
       contractions were strong and in a later call that they were getting
       stronger, Ms Casey simply said “Just give her a bath. It will calm her
       down and I will see you at hospital in the morning”. Ms U and Mr U
       felt bewildered, as if Ms Casey was ignoring what they were telling
       her. She never offered to come and see Ms U. They continued to tell
       Ms Casey that the contractions were getting stronger and that they
       wanted to go to the hospital, but Ms Casey kept insisting that she go to
       bed and get some rest. In the end they decided irrespective of what Ms
       Casey said that they should go to Christchurch Women’s Hospital. Ms
       U knew that the baby was coming as she kept wanting to go to the toilet
       and she was in labour nearly four weeks too early.

110.    On the way in to the hospital from xx (where they live) Mr U attempted
       to telephone Ms Casey ringing her land line, but there was no answer,
       and then her cell phone, but again there was no answer. Mr U rang a
       number that was on Ms Casey’s answer phone and paged her but then
       his cell phone battery ran out.

111.   At about 10.30 pm Ms U, her mother Mrs C and Mr U arrived at
       Christchurch Women’s Hospital. Ms Casey arrived a short while later.
       Ms Casey appeared to be very cross and the three of them felt there
       was considerable tension. They felt that Ms Casey was annoyed that
       Ms U had chosen to attend the hospital that evening. They felt Ms
       Casey was not at all sensitive to Ms U’s needs at the time and that her
       demeanour affected Ms U’s progress.

112.    Ms Casey examined Ms U and told her she was only 3 ½ cm dilated
       and that she “was going to be in for a long hard night my girl”. Ms U
       felt that the way Ms Casey said this she was in effect saying that she
       deserved a long hard night. There was no understanding or
       compassion on Ms Casey’s part.

115.   When Ms Casey left the room Ms U went to the toilet, Mrs C
       accompanied her. Ms U felt her baby coming and the emergency
                              51

       buzzer was rung. A midwife came and took over delivering the baby,
       literally scooping her out as she came out.

116.    Ms Casey returned and said something like “Fancy going from 3 ½ cm
       to having baby K in the toilet”. Ms U said that she knew she was going
       to have Baby K earlier and Ms Casey said “It’s all over now, at least
       you two are OK”. Ms Casey offered no encouragement or support and
       said “Right, time to get the placenta out”. Ms U was in shock and
       shaking.

117.   As a result Ms U developed very strong feelings against Ms Casey
       whom she considered dismissed everything that she said.

118.    Post natally Ms U had to remind Ms Casey to do her baby’s PKU, she
       incorrectly recorded Baby K’s weight and then changed this
       retrospectively, she dismissed Ms U’s concerns about spots on Baby
       K’s hip, discounting them as being irrelevant, and Ms U felt that Ms
       Casey was cold with Baby K “treating her like a piece of meat”. Ms U
       felt Ms Casey made her feel little, like she was nothing, like she was a
       failure.

119.    Ms Stanbridge (para 752) believes that if there had been repeated calls
       to Ms Casey it would have been prudent for her to have offered to meet
       with Ms U as repeated calls in a short number of hours is inevitably a
       signal the woman or her family is worried, and generally warrants a
       visit. Such a visit (para 756) allows the midwife to assess the situation
       and determine the woman’s needs, the woman may seek reassurance
       and it offers the midwife an opportunity to fully physically assess the
       wellbeing of both the woman and the baby. Ms Stanbridge is of the
       opinion (para 757) that if Ms Casey failed to respond to their need for
       assessment and reassurance in a timely manner prior to their arrival at
       Christchurch Women’s Hospital she did not meet the profession’s
       expectations and her conduct fell below acceptable professional
       standards.

120.   On the basis that Ms Casey repeatedly expected Ms U to remain still
       on the bed when she was making it clear she wanted to be upright or
       mobile, Ms Stanbridge (para 766) states that she could not be
       considered to have been placing Ms U at the centre of the focus of her
       care, noting that supporting a woman in labour is one of the significant
       parts of midwifery care and the expectation is that this will include
       working with the woman for her to be as comfortable as she can be
       with her contractions and labour. In fact, being upright and mobile
       enhances labour and is generally more comfortable for the woman.

122.    Ms Stanbridge considers Ms Casey’s documentation at paras 797 –
       831 and concludes that her documentation is in part difficult to follow,
       some entries are confusing and unclear and the dating is inconsistent
       and inaccurate, In her view (para 829) Ms Casey’s documentation
       falls short of what is generally considered acceptable.”
                                                 52

153.     The Tribunal was also required to receive oral evidence, and resolve factual issues.

         These were initially expressed by Counsel as being assertions that Ms Casey:

         153.1 carried out a speculum examination during a contraction.

         153.2 required Ms U to lie flat on the bed for an hour.30

154.     As an aspect of the first issue, it was also necessary for the Tribunal to consider an

         issue as to the extent of discussion which proceeded the speculum examination.

155.     The Tribunal heard evidence on these issues from:

         155.1 Ms U.

         155.2 Her husband, Mr U.

         155.3 Her mother, Mrs C.

         155.4 The expert witness, Ms Stanbridge.

         155.5 Ms Casey.

         155.6 The relevant evidence of each will be summarised below. Before doing so, the

                  Tribunal makes findings in respect of the background to the factual issues.

Background factors:

156.     First, the chronology can be briefly summarised as follows:

         156.1 Ms U’s waters broke at about 6.00am on x August 2007.

         156.2 Her contractions began at about 7.00pm.

         156.3 After this both Ms U and Mr U rang Ms Casey several times from their home,

                  prior to 9.26pm.

         156.4 In these conversations, Ms Casey was told that Ms U’s waters had broken

                  earlier in the morning, and that she was having contractions. Ms Casey told

                  Mr U that his partner was not due to have her baby. When Mr U told her that




30
     T14/15-19.
                                                  53

                  the contractions were strong and in a later call that they were getting stronger,

                  Ms Casey simply said “Just give her a bath. It will calm her down and I will

                  see you at hospital in the morning.”

          156.5 Ms U and Mr U felt bewildered, as if Ms Casey was ignoring what they were

                  telling her. In the end they decided irrespective of what Ms Casey said that

                  they should go to Christchurch Women’s Hospital. Ms U knew that the baby

                  was coming as she wanted to go to the toilet.

          156.6 On the way to the hospital from xx (where they live) Mr U attempted to

                  telephone Ms Casey on her landline, but there was no answer; and then on her

                  cell phone but again there was no answer; Mr U rang a number that was on Ms

                  Casey’s answer phone and paged her but then his cell phone battery ran out.

          156.7 At about 10.30pm Ms U, her mother Mrs C and Mr U arrived at Christchurch

                  Women’s Hospital. Ms Casey arrived a short while later. Ms Casey appeared

                  to be very cross and the three of them felt there was considerable tension.

                  They felt Ms Casey was annoyed that Ms U had chosen to attend the hospital

                  that evening, and that she was not at all sensitive to Ms U’s needs at the time.

157.      The notes made by Ms Casey when she arrived state:

          157.1 That Ms U was at 36.5 weeks, of an expected term of 40 weeks.

          157.2 That she was “G5P1” – ie; she had had five previous pregnancies, with one

                  live born child.

          157.3 That she was “SGA” – ie; the baby palpated as being smaller than that which

                  would be expected for that gestational age.

          157.4 That Ms U had had a previous post partum haemorrhage.31




31
     Pearce-Liu bundle, p74.
                                                54




158.     From this information it was clear that Ms U was a high risk patient; Ms Casey

         recognised her as that.32

159.     Relevant to the issue of risk was the rupturing of the membranes at 6.00am that day,

         with contractions commencing at 7.00pm.

160.     After completing a note relating to the phone calls she had taken earlier that evening,

         Ms Casey took baseline signs – ie; temperature, blood pressure and pulse. She carried

         out an abdominal palpation, and noted the fundal height to be at 34 weeks.

161.     The baby was in a longitudinal lie, with cephalic presentation, and in the right occipito

         transfer position.

162.     Ms Casey then commenced CTG monitoring at 23.01, which remained in place until

         approximately midnight.

163.     In the notes, Ms Casey recorded that the baseline foetal heart rate was 140 beats per

         minute, and was re-active; and she also recorded mild/moderate/inco-ordinate

         contractions, and that Ms U had been “encouraged to ambulate” – ie; after the CTG

         belts were removed at about midnight.

164.     She inserted an IV line, and took blood samples.

165.     All the information contained in the notes appears to have been written at the same

         time, under the time of 22.45. The next entry was for 00.08, which was the time of

         delivery. The notes to that point were retrospective.

166.     Then Ms Casey recorded: “Urgent bell answered. 00.08 in toilet urge to push normal

         delivery live baby girl. Apgars 10/10 ...”.

167.     The notes do not describe who was in attendance at the actual birth, but elsewhere in




32
     T91/10.
                                                         55

          the notes there is a record that another midwife “caught” the baby, in the toilet. As it

          was put in the ASF:

                   “When Ms Casey left the room Ms U went to the toilet, Mrs C accompanied
                   her. Ms U felt her baby coming and the emergency buzzer was rung. A
                   midwife came and took over delivering the baby literally scooping her out as
                   she came out.”33

168.      It is convenient to summarise the evidence given on the three factual issues the

          Tribunal was required to resolve with regard to each issue raised.

Was Ms U required to lie flat:

169.      The evidence relating to the assertion that Ms U was required to lie flat for an hour

          was:

          169.1 Ms U said that Ms Casey told her to lie still so that her baby could be

                   monitored using a cardiotocograph (CTG) machine. She said she was made to

                   lie still for a long period of time, she thought an hour or more. She said that

                   she suffered from back pain, and was in a lot of pain having contractions while

                   being made to lie down on her back. She thought it was cruel that she was

                   made to lie down for such a long time. She said that she kept saying that she

                   wanted to sit up but every time she did that, Ms Casey would say she could not

                   do so.34 In her oral evidence she confirmed that her body was flat, and she

                   remembered this, because she suffered from back ache and wanted to get up.

                   When it was put to her that the bed was inclined, at least when the CTG belts

                   were put on and during the first period when they were on, she said she

                   recalled being flat.35




33
     ASF115; and Ms U’s email of 6 October 2008, Bundle p1.
34
     U brief para 24; email, bundle p1; statement to ICIL investigator, exhibit 9, p6.
35
     T20/19-27.
                                                   56




          169.2 Mr U said he was adamant that Ms Casey continually insisted that his wife lay

                   down and be still. She said things like “you need to lie down still while you

                   have the monitor on”. At no time did she say that Ms U could sit up.36 He

                   said that when Ms Casey arrived, Ms U was sitting on the bed as she felt she

                   had to sit; she did not want to lie down as she felt uncomfortable. In his oral

                   evidence he said that he recalled the back of the bed being up at an angle, so

                   that the pillow was actually already fluffed up when they entered the room.

                   His wife was pushing back on the raised up part of the bed. He thought it was

                   sitting at about a 35 degree angle.37

          169.3 Mrs C stated that soon after Ms U arrived at the hospital room, Ms Casey

                   insisted she lie down so that she could be hooked up to the foetal heart rate

                   monitor. At no time did she say Ms U could sit up. Ms U asked to do so

                   several times because she was in a lot of pain (especially back pain), and also

                   felt this might help labour. Mrs C said that every time her daughter asked to

                   sit up, Ms Casey told her she could not and that she must lie down so the baby

                   could be monitored.38 In her oral evidence, Mrs C stated that Ms U didn’t

                   have a raised back (of the bed) but she had raised legs, that is, her legs were

                   drawn up. The back of the bed was tilted a “tiny bit”. She was not in a sitting

                   position.39

          169.4 Ms Casey’s evidence was that when she carried out the abdominal palpation,

                   the position of the bed would have been flat, so that she could obtain a good



36
     U brief para 9, ICIL statement p4.
37
     T32/12-20.
38
     C brief para 7; ICIL statement, pp 3 and 5.
39
     T38/10-26.
                                                   57

                   idea of “what the fundal height was”, where the baby was laying, if it was head

                   down and so on. She said she then tilted the bed up a little bit, because if the

                   patient had been sitting upright it could be difficult to place the CTG. She said

                   she would not leave a patient in labour lying flat on her back for more than a

                   few seconds.    She denied Ms U had to lie for extended periods on this

                   occasion.40 She explained that patients need to be able to move around, and

                   move from side to side, they can sit up; she said they can even move around

                   the bed and still be connected to the monitor, or they can sit in a lazyboy.

          169.5 Ms Stanbridge stated that research did not support the use of a routine CTG on

                   admission. She said the research suggested that if there were recognised risk

                   factors, it would be appropriate to assess a baby’s heart rate with a CTG trace.

                   She was aware that some midwives routinely perform a CTG on admission,

                   but that should only take about 20-30 minutes; if it was normal, the mother

                   should be taken off the CTG but if anything untoward presented, it could be

                   recommenced. She confirmed that 20-30 minutes would be a standard period

                   of assessment, if the trace at that time was normal.41

170.      The Tribunal finds that Ms Casey wanted to run the CTG for a lengthy period; it is

          surprising that it was considered necessary to prolong the monitoring for an hour,

          given the results that were evident within the first 30 minutes. As Ms Stanbridge

          stated, the CTG showed a healthy responsive foetal heart rate, and that Ms U was

          contracting about three times each 10 minutes across the period.42 It was a normal

          trace, and did not need to be conducted for a full hour.

171.      Because Ms Casey wished to maintain the CTG trace, as is evident from the consistent


40
     T57/33-26.
41
     T42/12-25.
42
     Stanbridge brief, para 660.
                                                 58

          evidence not only of Ms U, but also her husband and mother, she was required to lie

          on the bed on her back, when she did not want to. She had a bad back, and as all three

          witnesses confirmed, asked repeatedly to get up. This was the consistent evidence of

          the witnesses in their written evidence; and they were unshaken on this point in cross

          examination.

172.     By contrast, Ms Casey’s evidence was not given on the basis of recollection, but on

          the basis of what she recalled as being her usual practice. The Tribunal considers that

          Ms U, Mr U and Mrs C’s evidence on this point is to be preferred, since they had

          vivid and consistent and reliable recollections of what occurred.

173.     The Tribunal considers that it would have been appropriate to:

         173.1 Monitor for 20-30 minutes.

         173.2 Offer the patient other options, such as lying on her side, sitting in a chair,

                  standing up; and/or running an intermittent CTG.

174.     The Tribunal concludes that Ms U was required to lie on her back, when she

         had a bad back and was suffering back pain, did not want to, and made repeated

         requests which were not acknowledged appropriately.

175.     As is acknowledged in the ASF, this all occurred in a situation where there was

          considerable tension, and where there was no understanding or compassion on

          Ms Casey’s part.43

Discussion as to speculum examination:

176.     The issue with regard to discussion concerning an intended speculum examination

          was :




43
     Agreed summary of facts, paras 111 & 112.
                                                   59

         176.1 Ms U was asked whether she recalled Ms Casey stating that she wanted to

                    carry out a speculum examination. Ms U said that was incorrect; she said that

                    nothing was ever said.44 She was asked if she recalled Ms Casey asking her if

                    she had had a pap smear, and she described the procedure as being similar,

                    although uncomfortable. Ms U stated this conversation did not occur.45

         176.2 Mr U was asked whether he recalled his wife being told by Ms Casey that she

                    would like to undertake a speculum examination, with the reason being given

                    that her membranes had ruptured approximately 17 hours prior. He did not

                    recall such a conversation.    He did not think it was possible that it was

                    discussed, and he had forgotten this.46 He was also adamant that there had not

                    been a conversation about a process that would be similar to a pap smear and

                    which might be uncomfortable.47

         176.3 Mrs C was also adamant that Ms Casey had not told Ms U about the fact she

                    would undertake a speculum examination, and that this was because she had

                    ruptured membranes for about 17 hours at that point.48

         176.4 Ms Casey said that Ms U knew that she was going to check her cervix and take

                    a swab, describing it to her as being like having a pap smear. She said she

                    tried to re-assure her that it may be a little bit uncomfortable, but as she had

                    had a baby before it was very straight forward to do.49 She said she discussed

                    with Ms U what she was going to do, or what she

                    recommended needed to be done, and the reasons why. She told her it would




44
     T19/22-29.
45
     T21/17-19.
46
     T29/23-30.
47
     T30/31-31/4.
48
     T35/34-36/5.
49
     T56/29-31.
                                                 60

                 be a good idea to obtain a high vaginal swab because of the ruptured

                 membranes. She said Ms U was “happy” for her to go ahead; that she showed

                 no objection. She said Ms U was not “particularly chatty, but she gave no

                 indication that she wasn’t happy for the procedures to be carried out”.50

177.     A difficulty with regard to this issue is that no note of such a discussion is recorded in

         the midwifery notes. Thus, there is doubt as to the extent of any discussion to the

         undertaking of the speculum insertion. Further, Ms Casey’s evidence was given on a

         generalised basis, and on the basis of her recollection of her usual practice. Against

         that has to be considered the very specific recollection of three family members who

         have a vivid recall of what occurred.

178.     The Tribunal accepts that it is inherently unlikely that Ms Casey would have said

         nothing at all, and in all likelihood she may well have told them that she was going to

         check the cervix; but the Tribunal is not satisfied that she gave sufficient detail as to

         the intended procedure to enable Ms U (and those supporting her) to have any proper

         comprehension as to what the speculum examination would involve. The procedure

         was not adequately explained – hence their surprise when it occurred. An appropriate

         consent for the speculum examination was accordingly not obtained.

179.     It was submitted that the procedure could have not been carried out without some

         advance warning, because it inevitably involved a degree of co-operation by the

         patient. As to this:

         179.1 Mrs C had a clear recollection that her daughter’s legs were drawn up.

         179.2 Ms Casey would have guided her legs and ankles into the correct position.

         179.3 But that does not mean there was a proper explanation of the intended

                 procedure.


50
     T80/7-16.
                                                  61

The speculum procedure:

180.      Turning to the examination itself, the evidence from PCC witnesses was:

          180.1 Ms U stated that the internal examination occurred whilst she was having “full

                   force contractions”. She said she felt she was being violated and punished.51

                   It was put to her that, by reference to the CTG trace, it was clear the speculum

                   examination had occurred between contractions, not at the time of a

                   contraction.52 She did not accept this, standing by what she had said. She said

                   that when the examination occurred, she “cringed” and reacted vocally.53 She

                   said she was too traumatised, after the event, to complain.54

          180.2 Mr U confirmed he believed his wife was having a contraction at the time the

                   instrument was inserted, that she cringed, and he thought screamed when this

                   occurred.55 He agreed that the examination took place while the CTG belts

                   were on. It was suggested he was not in the best position to know whether his

                   wife was having a contraction; he stated that at times she had been holding his

                   arm, and squeezed it, and from her expressions of that day and in the evening,

                   he knew when she was having a contraction.56 He thought something was

                   wrong, as he had never seen this happen before.          He said that after the

                   insertion, Ms Casey told Ms U “you are only 3.5 centimetres dilated” and “you

                   are in for a long hard night my girl”. He said she was not very compassionate

                   when she said this.57

          180.3 Mrs C said she was sure an instrument had been inserted while her daughter



51
     Exhibit 9, ICIL statement p6.
52
     T21/7-12.
53
     T22/16.
54
     T22/22.
55
     Brief para 9.
56
     T31/7-10.
57
     U brief para 9.
                                                   62

                     was having contractions. She recalls seeing her daughter looked horrified, and

                     she was very upset at what occurred.58 She had been present at nine births, and

                     she knew that her daughter was having a contraction. She saw the look on her

                     daughter’s face, and she looked “really shocked”.59

181.      Ms Casey stated that she noted on the trace when Ms U changed her position. She

          wrote on the trace “position change” at approximately 23:08 (marked as “1” on

          exhibit 10). At a position which was approximately 23:15 (marked as “2” on exhibit

          10) she said that this was the point when she lowered the bed so as to undertake the

          speculum examination. She said “you’re talking to them all the time you’re just

          saying I’m doing this, you know, I’m going to lower the bed because I need you a wee

          bit flatter to do the speculum”.        She said that she would have undertaken the

          examination at 23:14.

182.      This was followed by a digital examination. On the trace was written:

          “PV 3cm clear liquor”

183.      It was Ms Casey’s evidence that this entry indicated when the speculum examination,

          which was followed by a digital examination, occurred.

184.      There is no entry in the notes indicating that a speculum examination occurred, or

          when.

185.      There is a reference to the digital examination in the clinical notes in these terms:

          “PV 50% effaced 3CM dilated

          Pink Liquor”

186.      No time was given for this entry.

187.      What the Tribunal therefore had to evaluate was the clear evidence of Ms U and her



58
     Brief para 8.
59
     T36/32-37/5.
                                                   63

         husband and mother to the effect that the speculum insertion occurred during a

         contraction; and the contrary evidence of Ms Casey which rested on two propositions:

         187.1 That she would never do such a thing.

         187.2 That the writing on the trace of the result of a digital examination (between the

                 times of 23:15 and 23:17) allowed one to conclude that the speculum

                 examination must have immediately preceded it; and that such coincided with

                 an indication on the trace of movement by the mother at approximately

                 23:15.60 Based on this reconstruction, she said it is evident the insertion did

                 not occur during a contraction.

188.     In order to assess this evidence, it is necessary to have an accurate appreciation as to

         what information is available from a CTG trace. Ms Stanbridge advised the Tribunal

         that the baseline of the foetal trace picked out changes of pressure in the abdomen.61

         The trace will show signs of change of pressure with the uterus contracting and

         tightening and rising; but it would also show movement, such as where the abdomen

         rises and falls with respiration; or if the patient was distressed and moved during

         examination then that could show up as a peak also.62

189.     She thought that a “peak” shown at 23:18 (which Ms Casey thought was a loss of

         contact)63 could be a contraction, due to its similarity with later changes of pressure

         shown on the CTG.

190.     The Tribunal also received evidence as to the manner in which the speculum

         instrument was inserted. Ms Casey was asked to demonstrate her technique in this

         regard, with reference to a speculum instrument. The instrument shown to the



60
     T70/19; T76/22; T87/32.
61
     T43/17; T44/20.
62
     T43; 44.
63
     T71/21.
                                                64

         Tribunal was accepted by Ms Casey and Ms Stanbridge as being similar to the

         instrument typically used at the time of Ms U’s labour.64

191.     Ms Casey demonstrated a technique whereby the instrument was inserted with the

         blades of the speculum in the horizontal plane.         She stated the ratchet of the

         instrument remained vertical both for its insertion and withdrawal and was at the top

         side.65 Ms Casey said she had seen others “twist” the instrument sideways for both

         entry and withdrawal, but that was not how she undertook the procedure. She thought

         that, hopefully, the way she did it would be the better way, in terms of pain or

         discomfort for the patient.66

192.     Ms Stanbridge explained that the speculum should be inserted sideways, and once

         inserted, rotated to the anterior position; the instrument would then be opened for the

         taking of the swab, and collapsed and rotated sideways for removal.67 She said that

         using the instrument in this way was more comfortable for the patient, particularly at

         the perineum. She said that her understanding as to why it should be done in this way

         was because it was more comfortable; but she could not express a view about the

         relative discomfort when comparing the two methods.68 She said she had not heard of

         other practitioners carrying out the procedure in the way demonstrated by Ms Casey.

193.     As a preliminary point, then, the Tribunal considered the question of whether the

         insertion and withdrawal technique was relevant to Ms U’s adverse reaction to the

         examination. Did the technique used contribute to the pain? On the evidence of

         Ms Stanbridge, the rotating method should have been more comfortable. However,

         there is no evidence that the abrupt reaction of the patient at the time of the insertion


64
     T117/21-27; T118/20.
65
     T116/20-22.
66
     T116/32-117/4.
67
     T118/30-33.
68
     T119/1-18.
                                                65

       was a reaction to the technique adopted, rather than being a reaction to its insertion at

       the time of a contraction.

194.   The key question, then, remained: was the insertion indeed at the time of a contraction

       as Ms U supported by her family members stated.

195.   On this point the Tribunal finds:

       195.1 As from 23:01, having regard to the CTG trace record, Ms U was having

              regular contractions, approximately three each 10 minutes.

       195.2 However the markings of the tocograph cannot establish categorically whether

              a given movement is maternal or foetal, or uterine activity, or a combination.

              The tocograph transducer is, as Ms Stanbridge advised, a measure of pressure

              in the maternal abdomen.

       195.3 As already noted, Ms Casey was attempting to interpret the CTG as solely

              demonstrating maternal movements, rather than contractions; the Tribunal

              does not consider that it is possible on retrospective assessment in this case to

              conclude the trace shows contractions only.

       195.4 At 23:09, there were two breaks in contact, shown by icons which it appears

              were produced when there was a break in contact; and by two breaks in the

              FHR reading. It was at that time that an annotation of “position change” was

              also recorded, although the Tribunal cannot be confident as to the accuracy of

              the placement of that notation.

       195.5 At the same time as the break in contact, there are three peaks in the baseline,

              which show an alteration in pressure; consistent with a contraction, movement,

              or both.

       195.6 The evidence of Ms U and her family members is that she reacted visibly; she

              was already in pain, but she felt acute pain, and has a distinct recollection of

              the speculum insertion coinciding with a “full force contraction”. She has a
                                                 66

                 vivid recollection of this occurring, and has had such a recollection since the

                 event.

         195.7 Given the extent of pain which she has described, confirmed by others, it is

                 natural to expect that there would have been movement on her part, which

                 would have shown on the abdominal transducer and shown as a rise in

                 pressure.

         195.8 The Tribunal finds, therefore, that there was a combination of contraction and

                 movement, and is satisfied that the speculum examination occurred at that

                 time.

         195.9 Ms Casey’s evidence is that she would then have removed the equipment she

                 was using from the end of the bed; removed her gloves placing them in a bin;

                 washed her hands, and then moved to the CTG machine to write on the trace.69

         195.10 Ms Casey’s reconstruction of events, since she did not write a

                 contemporaneous and timed entry in the notes relating to the speculum

                 examination, rests on the accuracy of placement of a diagonal entry she placed

                 on the trace itself for the digital examination, which followed the speculum

                 examination, at about 23:15.

         195.11 Having regard to such assistance as it can obtain from the CTG, and the very

                 clear evidence of Ms U supported by family members which the Tribunal

                 accepts as accurate, the Tribunal is satisfied that the speculum

                 examination was conducted during a contraction. There is not only the clear

                 evidence from Ms U herself, and her family members, but also the evidence on

                 the trace of movement (ie reaction) and loss of contact. These factors persuade




69
     T60/28-33; T85/20-34.
                                                 67

                  the Tribunal that the insertion occurred at 23:11, and that the entry referred to

                  in the previous subparagraph does not lead to a contrary conclusion.

196.     Counsel for Ms Casey submitted that, in weighing up the reliability of Ms U’s

         evidence, the Tribunal should take into account the fact that there was no

         contemporaneous complaint.        As already recorded, Ms U found the examination

         traumatic – she went as far as saying that she felt violated. Her discomfort was

         exacerbated by the technique which was adopted, together with the fact that she was

         lying on her back when she had ongoing back pain; and all in all the overall

         circumstances of the delivery and birth were understandably traumatic for her. It is

         often the case that persons who suffer significant trauma are unable to make a formal

         complaint, until they have recovered from the event sufficiently as to be able to talk in

         detail about it. The Tribunal concludes that this is what happened here, with Ms U

         not being able to take the matter further until a year later when she wrote an email of

         complaint on Sunday, 5 October 2008. Significantly, she began that email stating:

                  “I am sitting here trying to find the right words to express how concerned I am
                  of Mary Casey being a midwife; this letter has taken me over a year to write
                  ...”70

197.     The Tribunal does not think the time which Ms U took to write the email has led to

         any unreliability in her evidence, or that of her family members.

198.     The conclusions reached with regard to these factual issues are relevant to its

         consideration of particulars 2, 3, 5 and 7.

199.     The Tribunal now considers individual particulars in respect of this charge on the

         basis of the factual findings, and on the basis of the information contained in the ASF.




70
     Bundle p1.
                                                      68

Particular 1: failed to carry out adequate and/or appropriate assessments prior to
arrival:

200.      This particular requires consideration of the material at ASF paragraphs 109-110.71

201.      Ms Casey had been informed that the patient’s membranes had been ruptured; that

          contractions had commenced; that the baby was premature; and that the patient was

          high risk.

202.      When called several times by her patient and husband, she should have attended Ms U

          and assessed her.

203.      The Tribunal accepts Ms Stanbridge’s evidence that in failing to do so she did not

          meet the profession’s expectations as described in Competencies 1 and 2, and

          Standards 1 to 3 and 5.

204.      The first particular is established.

Particular 2: during labour failed to respond or respond adequately to Ms U’s
requirements and/or requests for professional assistance and input:

205.      Prior to admission, as already discussed, Ms U’s needs and requirements were not met

          by her failure to respond.

206.      At the hospital, however, by reason of the findings already made, there was also a

          failure to respond adequately to the patient’s requirements and/or requests.

207.      The Tribunal accepts Ms Stanbridge’s opinion that by not using her skills to “be with

          the woman”, and respond to Ms U’s wishes, she did not respect and support Ms U’s

          self determination of her own wellbeing, did not use her midwifery skills to facilitate

          the physiological processes of childbirth, and did not facilitate or respect open

          interactive communication and negate choices and decisions. There was thereby a

          failure to meet the requirements of the midwife in relation to Competencies 1, 2 and 3,




71
     And paras contained in Ms Stanbridge’s evidence brought in by the ASF, her paras 747-767.
                                                 69

          and Standards 1, 2, 5 and 6.72 This particular is established.

Particular 3: during labour and birth failed to treat Ms U with appropriate respect,
empathy and sensitivity:

208.      The factual basis of this particular is established by the assertions contained in ASF

          paragraphs 111, 112, 116, 117 and 118.

209.      The Tribunal concludes that the patient was required to lie on her back when she

          plainly did not want to do so, and that this was quite uncaring.

210.      The Tribunal accepts the opinion of Ms Stanbridge that having regard to the totality of

          these matters, Competencies 1, 2 and Standards 1, 2 and 5 and the Code of Ethics

          which require patients to be treated with appropriate respect, empathy, and sensitivity,

          were not met.73

211.      This particular is established.

Particular 4: failed to appreciate and respond or adequately respond to Ms U’s needs
during the postnatal period:

212.      This particular is established by the information in ASF paragraph 118 Ms U had to

          remind Ms Casey to undertake the baby’s PKU, incorrectly recorded the baby’s

          weight and changed this retrospectively, dismissed concerns the mother raised about

          spots on Baby K’s hip as being irrelevant, and treated Baby K “... like a piece of

          meat”. In short, she belittled Ms U.

213.      The Tribunal accepts Ms Stanbridge’s evidence that this lack of supported care was

          contrary to the Code of Ethics, Competency 1 and Standards 1-3, where partnership

          sharing of knowledge and the midwifery relationship is expected to enhance the health




72
     Stanbridge para 767.
73
     Stanbridge para 776.
                                                  70

           and wellbeing of the woman with the onus on the midwife to create a functional

           relationship.74

214.       This particular is established.

Particular 5: failed to communicate or adequately communicate with Ms U:
215.       The factual findings already made – requiring Ms U to lie on her back, and not giving

           anything like an adequate explanation of the speculum procedure to be carried out –

           establish this particular.

216.       So also do the following matters contained in ASF at paragraphs:

           109: poor communication

           110: no answering of telephone calls made, including to a landline, after 9.37pm.

           111: considerable tension and insensitivity in the birthing room.

           112: no understanding or compassion on the midwife’s part.

           117, 118: dismissive concerns postnatally.

217.       This particular involves also a lack of supportive care, with reference to the same

           components of the Code of Ethics Competencies and Standards as does the previous

           particular.

218.       This particular is established.

Particular 6: failed to make adequate and/or accurate and/or complete documentation
in her clinical midwifery notes:

219.       Ms Stanbridge examined a number of significant inconsistencies in the clinical notes.

           The Tribunal has examined each of the issues raised by Ms Stanbridge.               With

           reference to her brief, the Tribunal accepts the evidence of inaccuracies and

           inconsistencies as outlined by Ms Stanbridge at paragraphs 801, 804-818; 822-828.

220.       She then expressed the opinion that:

                    “... Ms Casey’s documentation barely meets the standard expected of midwives

74
     Stanbridge para 796.
                                               71

              and it falls short of what is generally considered acceptable.”

221.   The Tribunal has examined the originals of Ms Casey’s clinical notes, which has

       allowed it to conclude that Ms Stanbridge’s opinion is correct. Not only are there

       internal inconsistencies in the information contained in the notes, but different pens

       have been used, raising doubt as to when particular aspects of the notes have been

       prepared.

222.   Ms Stanbridge advised that Competencies 1 and 2, and Standards 2-5 and 7 are clear

       about the need for the midwife to document accurately each contact with the woman,

       all decisions made and midwifery care offered and provided. The expectation is that

       this includes assessments, information sharing, plans and their action, and outcomes.

       Documentation should be legible, and signed and dated at each entry.

223.   The Tribunal accepts this opinion, and is satisfied that the particular is established.

Particular 7: acted in breach and/or failed to adhere the Code of Ethics, Standards and
Competencies:

224.   As already indicated, in respect of each of the above particulars, there have indeed

       been such breaches.

Conclusions on charge 4:

225.   In summary, the Tribunal is satisfied that each of the particulars are established,

       although there is some overlap which has been taken into account.

226.   The Tribunal is satisfied that considered cumulatively, the conduct amounts to

       negligence, malpractice and brings significant discredit to the profession.

227.   It considers discipline is warranted because:

       227.1 There were a range of very significant breaches.

       227.2 Those breaches affected each stage of care.

       227.3 The established breaches are central to core midwifery care.

228.   Accordingly, the charge is established as one of professional misconduct.
                                             72

Charge 6: Ms A:

229.   The charge stated:

       “Charge 6 – Ms A

       47.    That during the period October – November 2005 when acting in the role of
              midwife for her client Ms A of Christchurch, Ms Casey failed to act at all times
              in the best interests of her client in that she:

       48.    Failed to make adequate and/or accurate and/or complete documentation in
              her clinical midwifery notes; and/or

       49.    Made notes or entries in her clinical midwifery notes retrospectively and/or in
              response to the complaint made by Ms A; and/or

       50.    Failed to treat her client Ms A with appropriate respect, empathy and
              sensitivity; and/or

       51.    Prior to birth misled Ms A by stating that Dr Philipson had advised against
              her having a water birth when he had not; and/or

       52.    Failed to properly or adequately inform and/or provide appropriate or
              adequate advice during the antenatal period; and/or

       53.    Failed to provide appropriate and/or adequate breastfeeding advice,
              instruction or care; and/or

       54.    Failed to make adequate and/or accurate and/or complete documentation in
              her midwifery notes; and/or

       55.    Made notes or entries in her clinical midwifery notes (including
              correspondence) retrospectively and/or in response to the complaint made by
              Ms A; and/or

       56.    Failed to provide adequate and/or appropriate care and support to Ms A in
              the course of her labour; and/or

       57.    After the birth of Baby M on x October 2005 requested that he be seen by a
              paediatrician, Dr Caseley, without first discussing this with or obtaining the
              consent of Ms A; and/or

       58.    In the post natal period failed to support and/or assist Ms A who she knew
              and/or believed to be severely depressed; and/or

       59.    Failed to take the appropriate steps to ensure that Ms A’s severe depression
              was appropriately managed and/or addressed; and/or

       60.    Breached Ms A’s privacy and/or confidentiality by informing the Father of her
              Church (xxx) that her baby M was an IVF baby and/or that there were
              embryos in storage, without Ms A’s consent or permission; and/or
                                              73

       61.    Misrepresented to the Professional Conduct Committee that her letter to Mr
              Bashford dated 28 October 2005 with the additional note “Anxiety/depression
              (declined help)” had been faxed to Mr Bashford on or about 20 October 2005;
              and/or

       62.    Acted in breach and/or failed to adhere to the New Zealand College of
              Midwives philosophy and Code of Ethics, the New Zealand College of
              Midwives Standards of Practice (including Standards 1, 2, 4, 5, 6 and 7) and
              the Competencies for Entry to the Register of Midwives (Competencies 1 – 4).

       63.    The conduct alleged in Charge 6 amounts to professional misconduct pursuant
              to section 100(1)(a) or (b) of the Act and particulars 1 - 15 either separately or
              cumulatively, are particulars of that professional misconduct.”

230.   The agreed summary of facts recorded in this charge:

              “Ms Casey accepts the factual basis for each of the nine particulars of Charge
              6 as set out below and in the expert opinion of Ms Chris Stanbridge as per
              paras 832 - 1097 of her brief of evidence, as summarised below and accepts
              that the particulars of the charge when considered cumulatively amount to
              professional misconduct.

              123.   Ms A is a, with her first language being b. She became pregnant in
                     early 2005. This was an assisted (IVF) pregnancy. Originally her
                     LMC was Sonia Gray, but as Ms Gray was moving from the area and
                     on the recommendation of a friend, she contacted Ms Casey.

              124.   Ms Casey met with Ms A about four times prior to the birth of Baby M
                     on x October 2005. The only discussion about a birth plan was when
                     Ms A asked Ms Casey if she could have a water birth, to which Ms
                     Casey retorted “Are you crazy”. Ms Casey said that water births were
                     bad, and not an option for her, and when Ms A insisted she said that
                     she would ring the fertility centre. She said IVF babies are special and
                     so it is important to be careful. This frightened Ms A.

              125.   The only discussion about breast feeding was when Ms Casey asked if
                     Ms A would like to breast feed the baby and she said yes. There was no
                     discussion about pain relief and all Ms A knew about the birth itself
                     came from what she had been told at antenatal classes and from a
                     pregnancy book.

              126.   There is a reference in Ms Casey’s notes that Ms A told her she would
                     like to see Mr Bashford prior to delivery. This is not correct and Ms A
                     knew nothing about Mr Bashford until he attended the delivery.

              127.   Ms Casey was not respectful towards Ms A and at times she was very
                     rude to her. She told her that her home was a dump.

              128.   In the morning of x October 2005 Ms A started to feel some
                     contractions and she telephoned Ms Casey and left a message for her,
                     but she never heard back from her. She telephoned Ms Casey again,
                              74

       who said that she was not at that time in labour and that she should
       rest, saying “First babies take a long time to come”.

129.   The following morning at about 2.00 am (x October 2005) Ms A’s
       waters broke. At about 3.00 am she rang Ms Casey and left a message
       but heard nothing further. She rang again at 4.00 am as she was in
       pain and having contractions. Ms Casey told Ms A never to ring her at
       night and that she had a long time to go as first babies take much
       longer. At this time Ms A was in pain, lying on the floor and vomiting,
       and very scared. Ms Casey told her to go to bed with a hot water bottle
       and milk and to take Panadol.

130.   Ms Casey came to Ms A’s home at about 7.00 am and said that she
       needed to go to hospital. Ms Casey told Ms A she was acting as a
       back-up midwife for another midwife that day and that because of that
       she had a number of other women in labour as well. She said she did
       not have a back-up.

131.   Because Ms Casey was looking after other women in hospital that
       morning she did not provide her full support or attention to Ms A
       during her labour. She was not there for Ms A and would leave her for
       long periods unattended. .

132.   Quite early on Ms A had an epidural, but by the afternoon that had
       worn off. By late afternoon they could see the top of the baby’s head
       and Ms Casey told Ms A that she would need to ring the specialist, Mr
       Bashford. She phoned Mr Bashford four or five times and left
       messages for him and said that she could do nothing further until he
       arrived. Mr Bashford took about one hour to arrive and Ms Casey and
       he argued with each other, with him saying “You didn’t tell me it was
       this situation”. Baby M was delivered by Mr Bashford using forceps.

133.   Ms Casey asked for Baby M to be seen by a paediatrician, Dr Caseley,
       but did not first discuss this with Ms A and she never consented to this.

134.   Ms Casey never told Ms A how to breast feed or how to bath or change
       the baby. While in hospital she was assisted by a lactation consultant.

135.   In the post natal period Ms Casey would visit whenever it suited her,
       often without warning and at any time of the day. Ms A never felt that
       Ms Casey gave her any privacy or showed any respect for her or her
       home.

136.   Baby M did not feed well and cried a lot and it was only after a friend
       told Ms A about formula and after she then discussed this with Ms
       Casey, that Baby M slept properly. Ms Casey had never mentioned to
       Ms A that she could use formula at home and when asked about this
       she said that she preferred to have the baby on breast milk.

137.   About two weeks after Baby M was born Ms A telephoned Ms Casey
       and told her that he was still crying and that she was very tired,
                              75

       wanting to know what to do as she felt desperate. Ms Casey shouted
       down the phone, told her to go to sleep and let her baby sleep.

138.   Ms A is a member of the xxx Church. After Baby M was born Ms
       Casey spoke to the Father of Ms A’s Church about the fact that Baby M
       was IVF. This was a private matter for Ms A and her husband and
       nobody knew about it. The Father told Ms A that Ms Casey was
       “talking too much” and that he was very surprised when she had told
       him about Ms A and how Baby M was an IVF baby. Ms A believes that
       Ms Casey had no right to speak to the Father about this private matter
       and considers this to be another example of how Ms Casey never
       respected Ms A’s privacy or showed any respect for her or her home.

139.   Some time after Baby M was born Ms A asked Ms Casey why she did
       not want to proceed with a water birth. Ms Casey told her that
       Dr Philipson from the fertility centre had said that it would be crazy
       for her to have a water birth. When Ms A asked Dr Philipson about
       this, he said that he knew nothing about her wish for a water birth and
       that he had never been phoned by Ms Casey.

140.   At para 866 of her statement Ms Stanbridge notes:

             “Having reviewed the records I have observed there is a definite
             similarity between the notes Ms Casey claims she made
             contemporaneously and the concerns raised by Ms A in her
             complaint about her care. I have also observed that the format of
             Ms Casey’s notes for Ms A are quite different to other notes of
             Ms Casey’s that I have read when preparing this statement; and I
             also noted the change in tense in the notes. in addition I have
             observed what in my opinion are unprofessional comments
             having been entered in Ms A’s notes by Ms Casey and several
             instances of inaccurate dating”.

141.   Ms Stanbridge records at para 868 that if the notes had been written
       retrospectively that would be totally inappropriate and unacceptable
       and amounts in her opinion to a significant falling short of professional
       standards.

142.   Ms Stanbridge also identifies deficiencies in Ms A’s midwifery notes
       and notes (para 893) that on the basis of Ms A’s evidence and what is
       recorded in those notes Ms Casey has failed to respond adequately or
       failed to record accurately if she did respond, and/or failed to provide
       appropriate care and support to Ms A in the course of her early labour.

143.   Ms A does not consider that she was adequately informed by Ms Casey
       about breast feeding antenatally, nor supported by her with her feeding
       either in hospital or at home. It is Ms Stanbridge’s view that if Ms A’s
       evidence were to be accepted then (para 999):

             “It appears Ms Casey’s care of Ms A with regard to breast
             feeding was inadequate, and it certainly does not appear to have
                              76

            met Ms A’s needs. If Ms Casey conducted herself in the manner
            described by Ms A then in my opinion her conduct in relation to
            the provision of appropriate and/or adequate breast feeding
            advice departed from accepted professional standards”.

144.   At para 1048 Ms Stanbridge notes that if Ms Casey did not have
       Ms A’s consent to disclose the information to the Father of the Church
       then:

       “Such actions on the part of Ms Casey would be seen as unprofessional
       and unacceptable. Such actions would amount to a breach of Ms A’s
       privacy and the right to confidentiality which is a serious matter for
       any registered health professional”.

145.   At para 1052 Ms Stanbridge expresses the following view:

            “If Ms Casey spoke with Ms A’s pastor about any issues without
            Ms A’s express consent or permission, particularly about such a
            sensitive issue as assisted conception, this would be seen as a
            significant breach of Ethics, Competencies and Standards and a
            significant falling short of accepted professional standards”.

146.   The partnership between the woman and her midwife is the basis of the
       maternity relationship and is identified as being of prime importance in
       the Competencies NZCOM Ethics, NZCOM Standards and section 88.
       Ms Stanbridge (para 1075) considers the discussion and subsequent
       events relating to Ms A’s wish to have a water birth as being an
       instance of Ms Casey not respecting Ms A’s wish to discuss various
       aspects of her care or has not facilitated open interactive
       communication. In Ms Stanbridge’s opinion (para 1077) irrespective
       of Ms Casey’s personal beliefs about water birth, she was obliged to
       provide Ms A with accurate and current information and even if she
       were not comfortable with assisting a woman to birth in the water she
       is expected by Standard Two to “respect the decisions made by the
       woman, even when these decisions are contrary to her own belief.

147.   It is also Ms Stanbridge’s view that if she had indicated to Ms A that
       she had discussed the matter with Dr Philipson when she had not, such
       conduct amounts to a breach of the Code of Ethics, is dishonest and
       amounts to a failure to meet an acceptable professional standard.

148.   In her statement Ms A has described how she did not feel Ms Casey
       gave her any privacy or showed her any respect, how she shouted at
       her when she felt desperate, how she felt Ms Casey discriminated
       against her, that she put her down during labour and when she
       attended Ms A at her house and how Ms Casey told her off for ringing
       during the night. Ms Stanbridge considers that such conduct (para
       1097) would be seen as unacceptable, a departure from expected
       standards and against the basis of midwifery and LMC care which
       expect the midwife to establish a relationship with the woman which is
                                              77

              respectful, in partnership, supportive and to be able to communicate with
                     dignity.”

231.   As already recorded, Particulars 1, 2, 11, 12 and 14 were withdrawn by leave.

Particular 3: failed to treat her client with appropriate respect, empathy and sensitivity:

232.   The following paragraphs of the ASF established the factual basis for this particular:

       124: the retort “are you crazy”

       126: engaging an obstetrician without consent

       127: calling the patient’s home a “dump”

       128: not returning calls

       135: attending the patient’s home without notice

       137: shouting on the phone

       138: not respecting the patient’s privacy, or respect for her or her home

       139: lying as regards ringing the doctor from the Fertility Centre.

233.   Ms Stanbridge advised that the NZCOM Code of Ethics sees the midwife’s

       responsibility as including working in partnership with the women; accepting the right

       of each woman to control her pregnancy and birthing experience; and responding to

       social, psychological, physical, emotional, spiritual and cultural needs of the women,

       whatever their circumstances and facilitating opportunities for their expressions.

       Competency 1 explains the onus is on the midwife to create a functional partnership.

       It also expects the midwife to centre the focus of care on the women. In the first

       standard the midwife facilitates open interactive communication and negotiates

       choices and decisions. The onus is on the midwife to achieve this. Standard 7

       provides that the midwife is accountable to the women, to herself, to the midwifery

       profession and to the wider community for her practice.

234.   It is clear from the evidence relied on for the purposes of this particular, that there

       were breaches of these obligations, and the particular is established.
                                                  78

Particular 4: prior to birth, misled the mother by stating that Dr Philipson had advised
against her having a water birth when he had not:

235.      The factual basis for this particular is established by ASF paragraphs 124, 139 and

          147.

236.      The obligations referred to with regard to particular 3 are also relevant.

237.      This particular is established.


Particular 5: failed to properly/adequately inform and/or provide appropriate/adequate
advice during the antenatal period:

238.      The factual basis for this particular is established by ASF paragraphs 125, 126 and

          128. In particular, the mother was not informed by Ms Casey as to what to expect,

          during her labour, at birth; the reference in Ms Casey’s notes to the effect that Ms A

          told her she would like to see Mr Bashford prior to delivery is not correct, and if Mr

          Bashford was contacted, then that was a unilateral decision made by Ms Casey; and

          the communications at the commencement of labour were inappropriate.              This

          particular is established. Ms Stanbridge advised that there was a failure to provide

          appropriate care and support to Ms A in the course of her early labour, and the

          Tribunal accepts this advice.75

239.      This particular is established.

Particular 6: failed to provide appropriate/adequate breast feeding advice, instruction
or care:

240.      The factual basis for this particular is established by the following paragraphs of the

          ASF:

          125: brief discussion as to breast feeding in the antenatal period.




75
     Stanbridge para 893.
                                                   79

          134: Ms Casey never told Ms A how to breast feed or how to bath or change the baby.

          136: she never mentioned the possible use of formula.

          137: when the mother was having difficulties, Ms Casey was rude to her, and told her

                to go to sleep and the let her baby sleep.

          143: the mother clearly did not feel that she was adequately supported or informed.

241.      The particular is established.

Particular 7: failed to make adequate/accurate/complete documentation in her
midwifery notes:

242.      Ms Stanbridge gave evidence that she had examined Ms Casey’s notes, and that there

          seem to be repeated inconsistencies, even within the notes stated to be made

          contemporaneously. An example is given as to the various times contained in the

          notes for the rupture of membranes. There is also variation as to the times that Ms A

          was visited by Ms Casey in the clinical record on the one hand, and the running notes

          on the other, for 27 October.76

243.      The basis for this particular is established.

Particular 8: made notes for entries in her clinical midwifery notes (including
correspondence) retrospectively and/or in response to the complaint by the mother:

244.      Ms Stanbridge gave evidence that she had reviewed the records. She observed there

          was a definite similarity between the notes Ms Casey claimed to have made

          contemporaneously, and the concerns raised by Ms A in her complaint about her care.

          She also observed that the format of Ms Casey’s notes for this patient was quite

          different to other notes that she had read; and also noted a changing tense in the notes.

          She observed, further, unprofessional comments having been entered; and several

          instances of inaccurate dating.77



76
     Casey briefs para 1113 & 1114.
77
     Stanbridge para 866.
                                              80

245.   Ms Stanbridge advised, and the Tribunal accepts, that notes written retrospectively are

       totally inappropriate and unacceptable, and this amounts to a significant falling short

       of professional standards.

246.   This particular is established.

Particular 9: failed to provide appropriate/adequate care and support to mother in the
course of her labour:

247.   The following paragraphs of the ASF provide a factual basis for this particular:

       128: upon receiving advice of contractions, she was dismissive to the mother.

       129: when attempts were made to contact her the following morning at 3.00am, the

             mother left a message for Ms Casey, but that was not responded to. At 4.00am,

             the mother was told not to ring her at night.

       131: the mother was left for long periods unattended.

248.   This particular is established.

Particular 10: after the birth, requested that the baby be seen by a paediatrician,
without first discussing this or obtaining the consent of the mother:

249.   The factual basis for this established by ASF paragraph 133.

250.   Ms Stanbridge advised that such was inappropriate and falling short of acceptable

       standards, as a midwife is expected to plan care with the woman. The Tribunal

       accepts this advice. And on an issue such as this, consent must also be obtained.

251.   The particular is established.

Particular 13: breached mother’s privacy and/or confidentiality by informing the
Father of her church that her baby was an IVF baby and/or there were embryos in
storage, without the mother’s consent:

252.   The facts for this particular are established by ASF paragraph 138.

253.   Competency 1 states that a midwife must maintain confidentiality and privacy; the

       ethics are also clear, Ms Stanbridge stated, that a midwife holds information and

       confidence in order to protect a right to privacy, as the Privacy Act 1994 provides.

       Confidential information should only be shared with others, if there is informed
                                              81

       consent, or a danger to the mother or baby’s life. Standard 4 also requires a midwife

       to ensure confidentiality of information.

254.   The Tribunal accepts this opinion. The particular is established.

Particular 15: acted in breach and/or failed to adhere to the New Zealand College of
Midwives Philosophy and Code of Ethics, Standards of Practice and Competencies for
Entry to the Register of Midwives:

255.   As already indicated in respect of a number of the above particulars, there have indeed

       been breaches of these requirements.

256.   This particular is established.

Conclusions on charge:

257.   In summary the Tribunal is satisfied that each of the particulars are established,

       although there is some overlap which has been taken into account.

258.   The Tribunal is satisfied that considered cumulatively the conduct amounts to

       negligence, malpractice, and the bringing of discredit to the profession.

259.   Discipline is warranted because there were significant issues of communication,

       respect, lack of availability, the giving of inaccurate advice and incompetence.

260.   This charge is established as one of professional misconduct.

Summary of charges:

261.   The Tribunal was satisfied that all six charges were established, as charges of

       professional misconduct.

262.   Accordingly, having announced this conclusion at the hearing on 20 August 2010, it

       received submissions as to penalty.

Penalty submissions:

263.   For the PCC it was submitted:

       263.1 The findings against Ms Casey are very serious.

       263.2 That Ms Casey’s name should be removed from the Register for the following

              reasons:
                                            82

              263.2.1    The number of complaints over an extended period, and the fact

                         that the complaints were repetitive, despite the fact that Ms Casey

                         was undertaking a remedial competence programme when later

                         complaints occurred.

              263.2.2    All the complaints involved an absence of midwifery partnership, a

                         core principle of midwifery.

              263.2.3    There was little or no evidence that Ms Casey had insight into

                         practice deficiencies, despite a long period of supervision.

              263.2.4    Ms Casey’s response throughout the process had been to deny

                         responsibility, and not to accept the validity of complaints.

              263.2.5    Because, at the heart of the Tribunal’s findings was a conclusion

                         that there could be no trust in Ms Casey as a midwife, which is an

                         essential element of any midwifery partnership.

              263.2.6    Ms Casey could not be considered capable of rehabilitation.

              263.2.7    Ms Casey had undergone two competence reviews, yet those had

                         not adequately addressed the issues.

264.   It was also submitted that, in addition, Ms Casey should be censured and a fine

       imposed.

265.   For Ms Casey it was submitted:

              265.1.1    As regards the particulars relating to adoption breaches, Ms

                         Casey’s actions had to be considered in the following context:

              265.1.2    It is not unlawful for people to make independent arrangements for

                         the adoption of a child, subject to compliance with the Adoption

                         Act.

              265.1.3    Ms S and her family wanted an adoption to take place; and in fact

                         an adoption was undertaken.
                                                83

                  265.1.4    Support was available to the mother from her family.

                  265.1.5    The mother had information from Family Life International.

                  265.1.6    The proposed adoptive parents were CYFS approved and had a

                             CYFS counsellor.

                  265.1.7    Ms S approved of this couple.

                  265.1.8    Other steps were taken by Ms Casey, which were consistent with

                             proper adoption process.

                  265.1.9    Ms Casey’s actions were not driven by self interest, or the prospect

                             of any personal gain.

                  265.1.10   Reference was made to the Tribunal decision of N;78 there,

                             conditions on practice and a censure were imposed.

          265.2 There were common themes throughout charges 2 to 6 namely:

                  265.2.1    Ms Casey’s actions when confronted with possible labour

                             overnight.

                  265.2.2    Advice given, or not given, relating to breast feeding.

                  265.2.3    Failures to provide “appropriate/adequate care, advice and

                             support”.

                  265.2.4    General failures to communicate “adequately” and to treat clients

                             with “appropriate respect, empathy and sensitivity”.

                  265.2.5    Some additional issues in one case involving a possible water birth

                             and breach of privacy.

266.      The conduct which had been admitted reflected that substantial improvement of

          Ms Casey’s practice would be required.




78
     213/Mid08/106P.
                                              84

Ms Casey invited the Tribunal to take into account:

       266.1 She believed she was acting in her clients’ best interests.

       266.2 Each midwife has a personal style; Ms Casey’s style was “direct and no

              nonsense”.

       266.3 Inevitably there would be situations where a practitioner does not connect with

              certain clients because of personal style.

       266.4 Ms Stanbridge had noted, in relation to one patient that Ms Casey “was

              generous to home visit antenataly as the funding paid for antenatal care does

              not provide for home visits during pregnancy”.

267.   There were also issues relating to failures to maintain notes properly.

268.   Counsel then went on to outline Ms Casey’s background circumstances; and to note

       that an interim suspension order was made on 21 January 2010, the effect of which

       was that Ms Casey was required to satisfy certain conditions before being entitled to

       return to practice.

269.   A bundle of references was placed before the Tribunal, indicating positive statements

       from patients, colleagues, and family members.          Evidence was also led from an

       obstetrician, who also spoke well of Ms Casey.

270.   It was confirmed that Ms Casey had decided she no longer wished to practise as a

       midwife.

271.   It was acknowledged the Tribunal would need to consider penalties individually.

       Counsel submitted that the “totality principle” should apply: it would be necessary to

       ensure that the aggregate penalty was not out of proportion to the gravity of the

       misconduct.

272.   Counsel submitted, in particular, that regard should be had to the “common themes”

       referred to, and invited the Tribunal to make orders which were rehabilitatory in

       nature, and directed towards the conduct in question.
                                                85

273.   The Tribunal was also asked to take into account Ms Casey’s financial circumstances;

       and particulars of her assets and liabilities were placed before the Tribunal for that

       purpose.

274.   Written apologies were tendered to the Tribunal, addressed to the Tribunal and to the

       individual complainants.

Penalty principles:

275.   In determining the appropriate penalties, the Tribunal recognised the following

       functions of disciplinary proceedings:

       275.1 Protecting the public – this object is reinforced by section 3 of the HPCA Act;

       275.2 to maintain professional standards – this object is emphasised in Taylor v

              General Medical Council [1990] 2 All ER 263; Ziderman v General Dental

              Council [1976] 2 All ER 344 and Dentice v The Valuers Registration Board

              [1992] 1 NZLR 720;

       275.3 to punish the practitioner in question, as referred to in Dentice v The Valuers

              Registration Board and Patel v Complaints Assessment Committee (CIV-2007-

              404-1818, 13 August 2007, Lang J);

       275.4 where appropriate, to rehabilitate the practitioner, as referred to in J v Director

              of Proceedings (CIV-2006-404-2188, 17 October 2006, Baragwanath J), and

              Patel (supra).

276.   The Tribunal is required to balance relevant aggravating and mitigating factors, in

       fixing a reasonable and proportionate penalty.

277.   In A v PCC (5 September 2008, Keane J, CIV-2008-404-2927), the Court discussed

       carefully the range of sanctions available to the Tribunal, particularly cancellation and
                                                         86

          suspension.79 The Court stated that four points could expressly be derived from the

          authorities, and implicitly a fifth:

                   “[81] First, the primary purpose of cancelling or suspending registration is to
                         protect the public, but that “inevitably imports some punitive element”.
                          Secondly, to cancel is more punitive than to suspend and the choice
                         between the two terms on what is proportionate. Thirdly, to suspend
                         implies the conclusion that cancellation would have been
                         disproportionate. Fourthly, suspension is most apt where there is
                         “some condition affecting the practitioner’s fitness to practise which
                         may or may not be amenable to cure”. Fifthly, and perhaps only
                         implicitly, suspension ought not to be imposed simply to punish.

                   [82]     Finally, the Tribunal cannot ignore the rehabilitation of the
                            practitioner: B v B (HC Auckland, HC4/92, 6 April 1993) Blanchard J.
                            Moreover, as was said in Giele the General Medical Council [2005]
                            EWHC 2143, though “… the maintenance of public confidence … must
                            outweigh the interest of the individual doctor”, that is not absolute –
                            “the existence of the public interest in not ending the career of a
                            competent doctor will play a part”.”

278.      In numerous cases, the need to consider and explain why lesser options have not been

          adopted is emphasised. But the Tribunal has to proceed on the basis of what is

          appropriate having regard to the public interest, and the need to maintain public

          confidence in the profession.80 Randerson J put the matter in this way:

                   “[30] The consequences of removal from a professional register are
                         ordinarily severe and the task of the Tribunal is to balance the nature
                         and gravity of the offences and their bearing on the dentist’s fitness to
                         practise against the need for removal and its consequences to the
                         individual: Dad v General Dental Council [2002] 1 WLR 1538. As the
                         Privy Council further observed at 1543:

                            Such consequences can properly be regarded as inevitable where the
                            nature or gravity of the offence indicates that a dentist is unfit to
                            practise, that rehabilitation is unlikely and that he must be suspended or
                            have his name erased from the register. In cases of that kind greater
                            weight must be given to the public interest and to the need to maintain
                            public confidence in the profession than to the consequences of the
                            imposition of the penalty to the individual.



79
     Paras 77-82.
80
     Patel, supra, para 30 per Lang J; L v The Director of Proceedings, Woodhouse J, 25 March 2009, CIV-2008-404-2268
     [47-48].
                                                     87

                  [31]    I respectfully adopt the observations of the Privy Counsel and would
                          add that it is incumbent on the Tribunal to consider carefully the
                          alternatives available to it short of removal and to explain why the
                          lesser options have not been adopted in the circumstances of the case.
                          As well, while absolute consistency is something of a pipe dream, and
                          cases are necessarily fact dependent, some regard must be had to
                          maintaining reasonable consistency with other cases. That is necessary
                          to maintain the credibility of the Tribunal as well as the confidence of
                          the profession and the public at large.”81

The imposition of penalty when there are multiple charges:

279.     The Tribunal is required by the statute to impose penalties on individual charges.

280.     In some cases where a range of conduct has to be considered that may well be

          appropriate to lay multiple charges; in others the possibility of a composite charge, on

          the basis of the principles identified in Duncan v MPDT82, may be appropriate. An

          advantage of a composite charge, containing multiple particulars and subparticulars, is

          that it allows the Tribunal to consider penalty on a global basis.

281.     The Tribunal recognises however, that whether it is appropriate to lay a composite

          charge is a matter for prosecutorial discretion, there being a range of factors that may

          have to be taken into account such as:

         281.1 Whether an application for severance is likely and perhaps appropriate.

         281.2 Whether a separate penalty is required for each charge.

282.     These comments are made not because the Tribunal is critical in any way for the way

          in which the charges were presented in this instance, but for the benefit of PCCs

          generally and the Director of Proceedings, when considering this issue in future cases.

Interim suspension order – 21 January 2010:

283.     The PCC placed before the Tribunal a copy of an interim suspension order made on

          21 January 2010 by the Midwifery Council. It recorded that Ms Casey had been the



81
     Patel v The Dentists Disciplinary Tribunal HC AK AP77/02, 8 October 2002.
82
     [1986] 1 NZLR 513.
                                             88

       subject of two competence reviews conducted by the Midwifery Council under section

       36 of the Act.

284.   In summary:

       284.1 In a review carried out in November 2006, the Midwifery Council found it had

              reason to believe Ms Casey failed to meet the required standards of

              competence reasonably expected of a midwife. She was required to complete a

              competence programme.

       284.2 In August 2008, following receipt of further complaints, the Midwifery

              Council formed the view that Ms Casey posed a risk of serious harm to the

              public by practising below the required standard of competence. On 19 August

              2008, it imposed conditions on her scope of practice, restricting her case load

              to not more than three births per month and increasing the frequency and focus

              of meetings with her mentor.

       284.3 In September/October 2008, the Midwifery Council found it had reason to

              believe Ms Casey failed to meet the required standard of competence

              reasonably to be expected of a midwife registered in the midwifery scope of

              practice.   On 25 February 2009, it required Ms Casey to complete a

              competence programme to be followed by a clinical assessment.

       284.4 In July 2009, it agreed to Ms Casey’s proposal to cease work as a self

              employed midwife, and take up employment as a core midwife at a hospital.

       284.5 On 4 December 2009, the Midwifery Council received a final report from the

              hospital. On the basis of that information, and other complaints, it formed the

              view there was reasonable grounds to believe Ms Casey may continue to pose

              a risk of serious harm to the public by continuing to practise below the

              required standard of competence.

       284.6 Accordingly, Ms Casey was advised that the Midwifery Council was
                                              89

              considering an interim suspension order.

       284.7 Further information was provided by the hospital, and submissions were

              received from Ms Casey.

       284.8 Pursuant to section 39 of the Act, Ms Casey was suspended until the later of:

              284.8.1     The completion of a review, indicated in a letter of 21 January

                          2010.

              284.8.2     The attainment of a pass in any examination or assessment that

                          may be specified by the Council, as a result of that review.

Penalty: discussion:

285.   It is clear Ms Casey has been able to provide midwifery services in a dedicated way

       over many years to clients who have appreciated her strengths.

286.   It was acknowledged for her that at times she can be forthright and single minded in

       her interactions and care. While such an approach may appeal to some clients, it can

       also lead to inadequate communication and care. Some of the charges, unfortunately,

       provide clear examples of this in the form of abrupt disrespectful and uncaring

       communications in conduct; and of providing seriously inadequate care.

287.   In such situations, Ms Casey let herself down badly.

288.   In assessing penalty the Tribunal has to weigh therefore, the many positive factors

       against the significant negative factors which were the focus of the six charges.

289.   In weighing the positive statements made on behalf of Ms Casey, against the specifics

       of the six charges, the Tribunal must conclude that the events described in those

       charges cannot be regarded as isolated and atypical aberrations, so that a rehabilitative

       approach to penalty would be justified.

290.   There are three particular aspects arising from the charges which require comment:

       290.1 Patterns of behaviour: the six charges, as Counsel for Ms Casey

              acknowledged, raised significant issues as to her standard of practice as a
                                              90

              midwife, by reason of the quality of care and the way in which it was

              delivered; and in respect of adequate communication and standard and content

              of her midwifery notes.

       290.2 Lack of insight: lack of insight was demonstrated by the matters referred to in

              the Midwifery Council notice of 21 January 2010; as well as the denial of the

              charges until shortly before the hearing; those denials relating both to the

              factual accuracy of the chronology in each instance; and as to whether there

              were legitimate concerns being raised. In the end, both were conceded (apart

              from charge 5) through the ASF, and by reason of the admissions. Whilst

              Ms Casey is to be commended for the pragmatic and realistic approach she

              took at the hearing, unfortunately the history of the proceeding to that point,

              including when the investigations were undertaken by the PCC, raises concerns

              as to her willingness to accept her practising shortfalls.

291.   The Tribunal does not overlook the five apologies which were tendered at the

       conclusion of the hearing to each of the patients involved. The Tribunal does not

       wish to be dismissive in any way about those, because they were sincerely and

       genuinely provided, and should be considered in that light. The Tribunal’s concern,

       however, is that they came so late.

292.   In short, the Tribunal’s primary focus when considering penalty in respect of each

       charge must be on:

       292.1 The health and safety of members of the public.

       292.2 The maintenance of professional standards.

293.   The fact that Ms Casey has decided to withdraw voluntarily as a midwife cannot be a

       determinative factor. Any practitioner who gives such an indication to the Tribunal is

       not bound by such an indication, and could later decide that she may return to her

       profession. The Tribunal also notes section 142 of the Act, which makes it clear that
                                                91

       a disciplinary proceeding must be resolved, even where a practitioner indicates that he

       or she wishes to cease to practise.

294.   There was an implied suggestion in some of the references that Ms Casey had been

       “targeted” by the laying of six disciplinary charges. The Tribunal considers that it was

       entirely appropriate for the PCC to lay six charges. That has enabled the Tribunal to

       obtain a clear picture of the extent of professional misconduct which occurred. It is

       unclear why, after apparently a relatively long period of successful practice,

       significant problems arose in the period 2005 to 2008. The Tribunal notes that

       following a competence review and competence programme (in 2006 and 2007)

       further complaints were received in 2008; and in that context, pending completion of

       the competence review, the Midwifery Council formed the view that Ms Casey posed

       a risk of serious harm to the public by practising below the required standard of

       competence, and on 19 August 2008 imposed conditions on her scope of practice

       restricting her case load to no more than three births per month (as well as other

       requirements). The Tribunal concludes that an excessive case load may have been a

       contributory factor to the problems which arose during the period under review.

295.   A final preliminary point, before turning to consider penalties on the individual

       charges, is that the Tribunal recognises the significant and traumatic effect which the

       disciplinary process has caused for Ms Casey. Unfortunately that is part and parcel of

       the process, and such trauma cannot deter the Tribunal from imposing penalties that

       fairly reflect the functions of discipline, when applied to the proved charges,

       especially if they are of a serious nature, as here.

296.   The six charges are considered in order of seriousness of penalty outcomes.

Charge 4: Ms O:
297.   The Tribunal regarded this charge as very serious:

       297.1 This was the mother’s first baby.
                                              92

       297.2 She was young.

       297.3 There was no plan.

       297.4 The mother’s wishes were disregarded.

       297.5 Ms Casey did not come when she was called.

       297.6 She treated Ms O in a diminishing and demeaning way.

       297.7 There was significant pelvic pain after labour, when insufficient postnatal care

              was given.

       297.8 The note keeping was also poor.

298.   Here, the breaches were across the board; significant distress was caused, and there

       was a comprehensive failure to maintain appropriate standards. Having regard to the

       significant breaches over a wide range of areas of practice, the Tribunal concluded the

       breaches were so fundamental that cancellation was the only responsible outcome. In

       such a case, suspension might be considered, but the difficulty with this penalty is that

       at the end of the period of suspension, the practitioner is able to resume practice,

       albeit subject to any conditions on practice which might then apply. But the full range

       of checks and balances which would accompany any application for re-registration,

       should the practitioner decide to continue, are not available under a suspension option.

       Here, the extent of the breaches are so significant, that the only proper outcome is

       cancellation.   If an application for re-registration was made, then the Midwifery

       Council will be well able to determine whether such an application can properly be

       considered in light of any relevant circumstances which arise at that time.

299.   Accordingly, on this charge, the appropriate orders are cancellation and censure.

Charge 5: Ms U:
300.   Here there was a comprehensive failure of the provision of midwifery services, before,

       during and after the birth of Ms U’s child.

301.   The Tribunal has already referred to the significant findings it made on the disputed
                                                 93

       evidence. Regrettably, a speculum procedure was undertaken during a full force

       contraction, which the Tribunal accepts was very painful and traumatic for the mother.

302.   It appears that, at the time, Ms Casey was cross at having been called and that may

       have affected the care given.

303.   It is an aggravating feature; and as Ms Casey herself acknowledged, a serious matter.

304.   As well, there were a range of other breaches, including the demonstration of poor

       communication skills.

305.   In respect of the proved conduct on this charge, suspension would not recognise the

       seriousness of the misconduct, having regard to the reasoning already outlined in the

       discussion of principles relating to penalty.

306.   The only appropriate outcome is cancellation and censure.

Charge 1: Ms S:

307.   As per the findings warranting discipline, Ms Casey:

       307.1 Worked outside her scope of practice.

       307.2 Actively kept Ms S and her family from pursuing other options.

       307.3 Spoke disparagingly about CYFS.

       307.4 Convinced the mother that she should mislead hospital staff, which prevented

              her obtaining appropriate care and advice.

       307.5 Created a situation where the consequences to the parties were very significant.

       307.6 Completed inadequate documentation.

       307.7 Effectively isolated the parties.

308.   Had this charge been the only charge before it, it would have been borderline for an

       order of cancellation. Given however, the pattern of behaviour factors and lack of

       insight factors referred to above, the Tribunal considers that the appropriate penalty is

       cancellation and censure.
                                               94

Charge 6: Ms A:

309.   Ms Casey did not respond when Ms A was in labour and in pain. Her messages were

       not returned. She was not available. This was quite disrespectful and inappropriate.

310.   She ruled out the possibility of a water birth, which was a matter of choice for the

       mother that should at least have been explored properly.

311.   This charge also raised privacy and informed consent issues, and involved the

       provision of inadequate advice.

312.   Again, there are a wide range of breaches, many of which relate to inadequate

       communication.

313.   Had this been the only charge before the Tribunal, there would have been an order of

       suspension. However, given the pattern of behaviour factors and lack of insight

       factors already referred to, the appropriate penalty is cancellation and censure.

Charge 3: Ms N:
314.   For the reasons given above (relating to whether discipline is warranted), there are a

       number of areas of concern in this case.

315.   There was no proper telephone assessment; the mother wanted an epidural and pain

       free birth. Her physical symptoms indicated she was not handling pain well.

316.   The most significant breach is particular 7, failing to respond, which is a basic

       obligation for a responsible midwife.

317.   Had this been the only charge before the Tribunal, there would have been an order of

       suspension; but given the pattern of behaviour factors and lack of insight factors

       already referred to, the appropriate penalty is one cancellation and censure.

Charge 2: Ms N:
318.   There was serious neglect in postnatal care, including serious incompetence. Had this

       been the only charge before the Tribunal, the Tribunal could have considered the

       imposition of conditions, but given the pattern of behaviour and lack of insight factors
                                                  95

         already mentioned, the appropriate penalty is cancellation and censure.

Section 102, HPCA Act:

319.     Also discussed at the hearing was the possibility of conditions as a precondition for re-

         registration, as provided for under section 102.          Given, however, the extensive

         involvement of the Midwifery Council via two competence reviews, two competence

         programmes, and a suspension (because the previous procedures had not achieved the

         outcomes the Midwifery Council was looking for), the Tribunal considered it would

         not be appropriate for it to attempt to define particular pre-requirements for

         registration, were such to be sought. The Midwifery Council has a close knowledge

         of Ms Casey’s practising circumstances, and it will be best placed to deal with any

         pre-requisites for re-registration, should that possibility arise.

Financial outcomes:
320.     Because of the extensive cost liability which it is necessary to consider, the Tribunal

         was not minded to impose a fine.

321.     The PCC costs were estimated at $135,000.00 plus GST, and the Tribunal’s costs at

         $59,000.00 plus GST.

322.     Details of Ms Casey’s financial circumstances were provided and considered. In the

         course of his submissions, Counsel for Ms Casey stated that she would pay costs at

         $1,000.00 per month. The payment of those will be a matter for discussion between

         Ms Casey and the Midwifery Council.

323.     The starting point, as indicated in Cooray v Preliminary Proceedings Committee,83 is

         50%.

324.     An increase may be considered if there are aggravating factors, or a decrease if there

         are mitigating factors.     Here credit must be given for the way in which a fully


83
     Doogue J, 14 September 1995, AP23/94.
                                              96

       defended hearing was able to be avoided; to some extent that is met by the costs

       indicated above being less than what they would have been had the matter proceeded.

       The case was set down for two weeks. Had it proceeded on a fully defended basis, the

       time taken for evidence would have fallen within a two week timeframe, but the

       Tribunal would have been involved in further attendances for adjudication, of perhaps

       another two or three days. These costs have been avoided.

325.   Although credit is to be given for the hearing being able to be dealt with within a more

       limited timeframe, it has to be recognised that the PCC was required to fully brief its

       witnesses; and Tribunal members themselves were required to prepare for a fully

       defended hearing by considering in advance of the hearing all the briefs and

       documents which had been filed by the PCC and for Ms Casey. The costs were

       greater than they would have been if a decision to admit had been made earlier.

326.   Taking all these factors into account, some discount from 50%, the normal starting

       point, is appropriate; the Tribunal has also taken into account Ms Casey’s financial

       circumstances. It fixes a percentage of a little under 45%.

327.   Ms Casey is accordingly ordered to pay:

       327.1 $25,000.00 in respect of Tribunal’s costs.

       327.2 $60,000.00 in respect of PCC costs.

328.   These costs are apportioned equally across each of the six charges.

Name suppression issues:

329.   Ms Casey also sought an order for non publication of name, on a permanent basis.

       Submissions with regard to this issue were heard at the same time as penalty

       submissions; and the Tribunal’s conclusion on this issue was considered together with

       all penalty matters, so that an overall assessment of all outcomes to the six charges

       could be made.

330.   The submissions received, and the Tribunal’s conclusions on the application for a
                                                                   97

           permanent order of non publication of name, are set out in a separate decision

           328/Mid10/144P which was delivered soon after the hearing.

331.       The Tribunal does not set out the issues relating to the application for non publication

           of name, but records that the application was dismissed; and it was directed that an

           earlier interim order of non publication of name should be discharged. That decision

           should be read together with this decision.

Conclusion:

332.       Each of the six charges are established, as charges of professional misconduct.

333.       In each case, there is an order of cancellation of Ms Casey’s registration, and censure:

           the Tribunal must express its strong disapproval for the conduct which occurred.

334.       Ms Casey is ordered to pay:

           334.1 $25,000.00 in respect of the Tribunal’s costs and disbursements;

           334.2 $60,000.00 in respect of the PCC’s costs and disbursements;

           334.3 both amounts are apportioned equally across the six charges.

335.       The interim order of non publication of Ms Casey’s name and identifying details84 is

           discharged.




DATED at Wellington this 22nd day of October 2010




................................................................
B A Corkill QC
Chairperson
Health Practitioners Disciplinary Tribunal


84
     297/Mid10/144P.

				
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