Health Practitioners Disciplinary Tribunal, 742/Mid15/326D, (23 December 2016)
The Director of Proceedings laid a charge against a midwife, Ms Y, in the Health Practitioners Disciplinary Tribunal alleging that Ms Y entered into, and carried on, a sexual and/or intimate relationship with the partner of her pregnant client when she was providing midwifery services to her client as a Lead Maternity Carer (LMC). The charge also alleged that Ms Y failed to terminate her professional relationship as LMC to her client while carrying on the relationship with her client’s partner.
Ms Y and her husband had been reasonably close friends with Ms Y’s client and her partner, sharing social and personal occasions together. During the pregnancy, the two couples became closer friends and socialised together regularly. The intimate relationship between Ms Y and her client’s partner began when they met out shopping; they had a beer together and engaged in kissing and mutual fondling. This happened on further occasions over a five-month period, and included unprotected sexual intercourse at Ms Y’s home. Ms Y’s client became suspicious and confronted her partner about the relationship, but he denied any impropriety. Ms Y and her client’s partner also engaged in many text communications, some of which were of a sexual nature. The client became increasingly suspicious of the relationship, and during the final two months of her pregnancy did not know whom to talk to about her concerns. On confronting her partner again, he denied any impropriety. Ms Y’s client contemplated changing midwives, and recalled being in such a high state of anxiety that when she went into labour she contemplated not calling Ms Y, as she did not wish to see her. However, Ms Y was present throughout the birth, which proceeded without complication. Ms Y discharged her client from her care, and sexual texts between Ms Y and her client’s partner continued during that period. Ms Y’s client stated that the discovery of the sexual relationship between her partner and Ms Y had a devastating emotional impact on her and on her family. In addition, the client and her infant underwent STD testing, which was distressing.
The matter proceeded by way of an agreed summary of facts, with Ms Y accepting the charge. The Tribunal had no hesitation accepting that Ms Y displayed a significant and on-going lack of professional judgement in a core aspect of midwifery care, which strikes at the very heart of midwifery philosophy. The Tribunal noted the vulnerability of Ms Y’s client, both physically and emotionally, in the environment of her pregnancy and delivery of her baby. The Tribunal found that the significant breach of trust in this intimate and personal relationship amounted to malpractice, brought discredit to the midwifery profession, and constituted professional misconduct.
The Tribunal censured Ms Y and imposed the following conditions on her practice: a prohibition on providing midwifery care to a friend or family member except in an emergency, for a period of 18 months; continuation of her professional mentoring arrangement for a period of 18 months, with regular reporting to the Midwifery Council; personal counselling at a minimum of monthly intervals for a period of 12 months; a limit on the number of LMC clients to 36 per annum (given that stress was a causative factor said to be behind her offending), for a period of 24 months.
The Tribunal accepted that the misconduct would have warranted a suspension from practice for 6–12 months, but determined that Ms Y’s voluntary withdrawal from practice for five months to work on rehabilitative steps was sufficient to outweigh the need for a suspension order in this case. The Tribunal also ordered Ms Y to contribute $11,400 (30%) to the total cost of proceedings, to be divided proportionately between the Director and the Tribunal.
In its original decision, the Tribunal declined to grant Ms Y permanent name suppression, also noting that, had it granted Ms Y name suppression, it would have imposed a fine of $10,000 in all the circumstances. In any event, Ms Y successfully appealed the Tribunal’s decision not to grant name suppression, together with the Tribunal’s finding of a fact (Y v Director of Proceedings [2016] NZHC 2054). The Tribunal then amended that part of its decision in line with the High Court’s directions.
View the Tribunal's decision here. (PDF 158kb)
Last reviewed February 2019