Director of Proceedings v McMillan [2020] NZHRRT 18, (28 May 2020)
The Director filed proceedings by consent against registered midwife Vicki Anne McMillan (“the defendant”), in the Human Rights Review Tribunal, regarding the care she provided to her client (“Mrs H”) during the birth of Mrs H’s second child.
The defendant was an independent midwife and the Lead Maternity Carer (“LMC”) for Mrs H from approximately 21+5 weeks’ gestation. Contrary to accepted midwifery guidelines, throughout Mrs H’s antenatal care, the defendant measured fetal growth using only abdominal palpation and anatomical landmarks, and did not measure fundal-symphysis height. During her routine antenatal appointments with Mrs H, there is no record that the defendant discussed with Mrs H the realities of birthing at a primary maternity facility in a rural hospital, including the limits of pain relief options available, and the difficulties with transfer to a secondary or tertiary hospital should that be necessary.
Early in the morning of 7 April 2015, at 38+6 weeks’ gestation, Mrs H began experiencing contractions. Mrs H met the defendant at Lakes District Hospital (“LDH”) at 10.30am. The defendant undertook abdominal palpation and a vaginal examination (“VE”), and recorded that Mrs H was 6–7cm dilated, her cervix was fully effaced, and the baby was at station –2 to –3 (still high in the birth canal). By 11.30am, Mrs H’s contractions were becoming stronger and occurring every three minutes. However, by 1.20pm, Mrs H’s contractions had spaced out and were occurring every 10–15 minutes. At 2.15pm, the defendant performed a second VE and recorded that Mrs H was still 6–7cm dilated, and the baby was still at station –2 to –3, meaning that Mrs H’s labour had not progressed since the previous examination almost four hours earlier. Contrary to accepted guidelines, the defendant did not recommend to Mrs H that, as her labour was not progressing normally, a consultation with a specialist was warranted. Instead, a plan was made for Mrs H to go home and return to LDH when she was having contractions every three minutes.
Mrs H returned to LDH at 6.00pm. The defendant recorded that Mrs H’s contractions were now more regular and painful, with contractions every three to six minutes. At 6.34pm, the defendant conducted a VE and recorded that Mrs H was only 8–9cm dilated and the baby was at station –2. Again the defendant did not recommend to Mrs H that, as her labour was not progressing normally, consultation with a specialist was warranted. In addition, during Mrs H’s labour, and contrary to recommended guidelines, the defendant did not monitor the fetal heart rate (“FHR”) every 15–30 minutes during the active first stage of Mrs H’s labour, or at any time during the second stage of labour (when the recommendation is to monitor the FHR every five minutes, or after each contraction).
At 8.10pm, the defendant conducted another VE and recorded that Mrs H was 9cm dilated. At 9.55pm, the defendant began pushing spontaneously with contractions, and a second midwife attended to assist with the delivery. At 10.15pm, the baby’s head was birthed, but retracted against the perineum (known as “turtling”), a sign of shoulder dystocia that is considered an obstetric emergency. Mrs H was placed in the McRobert’s position (a position used to assist with birthing when shoulder dystocia is present), and advised to push as hard as she could. The defendant also noted the umbilical cord around the baby’s neck and slipped it over the baby’s head. The defendant did not direct the core midwife to apply suprapubic pressure, or advise her of the position of the baby, or assist her to apply the suprapubic pressure. When the baby still was not able to be delivered, the second midwife left the room to obtain medical assistance, and the defendant advised Mrs H to move onto her hands and knees and applied traction to the baby’s head. Mrs H’s baby was born at 10.20pm. The second midwife took Mrs H’s baby to the resuscitaire, where ventilation was commenced by Emergency Department (“ED”) medical staff.
The defendant provided post-birth care to Mrs H, which included an assessment that Mrs H had a second or third degree perineal tear that the defendant could not repair herself. As a result, Mrs H was required to transfer to Dunedin Hospital for suturing. Shortly before 3.00am, Mrs H was advised by an ED doctor that her baby may have been starved of oxygen at birth and needed to be transferred to Dunedin Hospital when she was stable. At 7.06am, Mrs H’s baby was transferred to Dunedin Hospital by helicopter. At an unrecorded time, Mrs H was transferred to Dunedin Hospital by ambulance. A family friend travelled with Mrs H. The defendant did not accompany Mrs H, or organise for appropriate clinical oversight of Mrs H during the journey, despite Mrs H having suffered a significant perineal tear and post-partum bleeding. The defendant did not document Mrs H’s transfer to Dunedin Hospital, did not undertake or document any formal handover of Mrs H’s care to obstetric staff at Dunedin Hospital, or provide staff at Dunedin Hospital with any of Mrs H’s clinical notes. When she arrived at Dunedin Hospital, Mrs H was diagnosed with a fourth degree perineal tear.
The defendant accepted that her failures in care amounted to breaches of the Code of Health and Disability Services Consumers’ Rights (“the Code”), and the matter proceeded by way of an agreed summary of facts. In particular, and among other accepted failures, the defendant accepted that she failed to measure fundal-symphysis height, and instead used abdominal palpation alone to assess fetal size; failed to inform Mrs H adequately of circumstances that might require a transfer to a larger hospital and what issues might arise if transfer was required during labour; failed to recognise that Mrs H’s labour was not progressing normally between 2.15pm and 6.34pm; failed to recommend consultation with a specialist at 2.15pm and 6.34pm, and to discuss the possibility to transfer to a larger hospital; failed to monitor the FHR every 15–30 minutes during the active phase of the first stage of labour, and at all during the second stage of labour; sent Mrs H home for four hours while she was in active labour, knowing that Mrs H would be without midwifery support and the FHR would not be monitored during that time; failed to provide essential information to enable Mrs H to make informed choices about her ongoing care and the delivery of her baby; and did not make arrangements for Mrs H to be transferred to Dunedin Hospital by an appropriate clinical practitioner.
The Tribunal was satisfied that the defendant failed in the care that she provided to Mrs H, and issued a declaration that the defendant breached Rights 4(1), 6(1), and 7(1) of the Code. In addition, the defendant gave a voluntary undertaking that she would not seek to renew her annual practising certificate or to practise midwifery in New Zealand again.
The Tribunal’s full decision can be found at:
https://www.justice.govt.nz/assets/2020-nzhrrt-18-director-of-proceedings-v-mcmillan.pdf