Darren Snow, instructed by Paula Porter and James Wilkinson, of Thompsons Solicitors, on behalf of the Royal College of Midwives, represented senior midwife CM before the Nursing & Midwifery Council in a 2-week hearing. The case culminated with a 12-month caution order with a finding of no dishonesty and impairment only on public interest grounds.
The case concerned the events surrounding the tragic stillbirth of a baby in May 2017. The NMC presented a case alleging a series of clinical failures in a consultation days before the stillbirth and subsequent dishonest acts to cover up those failures – allegations included that in a subsequent home visit with the family the midwife sought to mispresent what occurred in the consultation and in evidence later provided to her employer’s internal investigation the midwife had been deliberately dishonest in an attempt to cover up her failures. In the initial stages of the proceedings the NMC were also bringing charges that the Midwife’s clinical failures in the consultation either caused or contributed to the death of the baby.
Prior to the hearing, following scrutiny of expert evidence, the NMC withdrew charges in respect of the midwifes actions allegedly causing or contributing to the death. What followed were fitness to practice proceedings focused upon clinical failures in the consultation and allegations by the NMC of a prolonged and intentional attempt by the midwife to cover up and mislead her employer’s internal investigation. If proved the charges would have been career ending.
The midwife, with a 25-year career, strong supporting testimonials from clinical colleagues, and no history of any previous problems admitted from the outset certain clinical failures with the consultation with the pregnant mother. By the time the hearing commenced in July 2019 the midwife had been off work for 6 months during internal disciplinary proceedings and upon return to work in October 2018 completed a 12-week supervised clinical training programme with her employer. By July 2019 she had been back in unrestricted midwifery practice for 6 months with strong references and performance appraisals.
At the close of the NMC case and following Darren’s submission of no case to answer on a charge focused upon the Midwife’s conduct at a home visit the Panel rejected the NMC case that the midwife had used that meeting to cover up her failures or that her conduct as found at that visit would amount to misconduct or impairment. During the NMC case, several NMC witnesses agreed in cross examination that their experiences of CM were of an honest, hardworking and committed midwife.
At the end of the defence case the Panel rejected the NMC case that there was dishonesty in the midwife’s dealings with her employer’s internal investigation. The allegations by the NMC that certain documents had been fabricated by her were also rejected.
The panel acknowledged that the midwife had demonstrated remorse and insight into her practice. The evidence had revealed a flawed internal investigation by the Trust and a poorly managed process when the midwife made her statement to the trust about the consultation, some 5 months after the event. Her account was an honest one albeit in parts inaccurate.
The Panel found a number of clinical failures by the midwife but on the basis of evidence presented on her behalf they concluded that by the time of the hearing in July 2019 she had remediated all of the shortcomings in her clinical practice and shown significant insight. In the absence of any dishonesty the panel concluded that there was, in the circumstances, no impairment on public protection grounds. The panel found impairment solely upon public interest grounds on a very limited basis. On the basis of the factual findings and rejection of dishonesty charges combined with the evidence at the impairment stage of positive engagement with retraining, outstanding professional references plus evidence of good clinical practice, the NMC conceded that the appropriate sanction was now a 12-month caution order. At the outset of the proceedings the expectation, had all charges been proved, was strike off from the midwifery register and the ending of a 25-year career. The Panel in imposing a 12-month caution order expressed the view that the case fell towards the lower end of the spectrum of impairment and that there was a low risk of repetition. In the circumstances the midwife was allowed to return to work without restriction.
In feedback to instructing solicitors the midwife expressed the following, which is a strong reminder of the emotional impact professional disciplinary proceedings have upon Registrants:
“I just wanted to say a huge thank you for all your hard work and support during this traumatic experience. I really appreciated that you were able to be there and support me on the day I was giving my evidence. It has been the most difficult period of my life and I am now looking forward to putting it behind me and moving on. Darren was fantastic over the last two weeks and he seemed to be able to identify what was needed at each stage and argued the points brilliantly. I am not sure that this outcome would have been achievable without him on my side.”
Charter Chambers is one of the leading sets for defending nurses and midwives before the Nursing & Midwifery Council. We are recognised in the Legal 500 as a leading chambers in this field and several of our members are recognised as leading practitioners in healthcare disciplinary work. We work very closely with our professional clients to ensure the highest levels of representation and case preparation reflecting our commitment to this challenging and sensitive work.
For further information on our healthcare professional disciplinary work and team members or to discuss how we can help you contact our senior clerk James Hall.