Health Ombudsman v Blyth

[2025] QCAT 161

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Blyth [2025] QCAT 161

PARTIES:

DIRECTOR OF PROCEEDINGS ON BEHALF OF THE HEALTH OMBUDSMAN

(applicant)

v

ROSEMARY BLYTH

(respondent)

APPLICATION NO/S:

OCR046-24

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

15 April 2025 (decision)

6 June 2025 (reasons)

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judicial Member Rinaudo AM
Assisted by:
Ms F Banwell
Mrs A Rigney
Mr S Simpson

ORDERS:

THE TRIBUNAL ORDERS THAT:

1.     The non-publication order made by the Deputy President on 28 March 2024 is affirmed.

IT IS THE DECISION OF THE TRIBUNAL THAT:

1. Pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld) (‘HO Act’), the respondent has behaved in a way that constitutes professional misconduct.

2. Pursuant to s 107(3)(a) of the HO Act, the respondent is reprimanded.

3. Pursuant to s 107(3) of the HO Act, the respondent is disqualified from applying for registration as a nurse or midwife for a period of two (2) years from the date of this order.

4.     There be no order as to costs.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – OTHER HEALTH CARE PROFESSIONALS – where the respondent was a registered midwife – where the respondent was involved in the delivery of a baby who was diagnosed with severe hypoxic encephalopathy and pronounced deceased approximately three days after she was born – where the respondent ceased practising as a result of this event – where the respondent wholly admits or accepts her conduct – where the parties reach an agreed position on facts, characterisation and sanction – where the Tribunal is satisfied the respondent has demonstrated significant remorse and insight – whether the Tribunal should depart from the position agreed between the parties 

Health Ombudsman Act 2013 (Qld)
Health Practitioner Regulation National Law (Queensland)
Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Briginshaw v Briginshaw [1938] HCA 34; (1983) 60 CLR 336
Health Care Complaints Commission v Brown [2021] NSWCATOD 57
Health Care Complaints Commission v Tran [2020] NSWCATOD 32
Nursing and Midwifery Board of Australia v Fankhauser [2013] QCAT 395

APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

Background

1. The respondent obtained a Bachelor of Nursing from Griffith University in 1999 and a Masters of Midwifery from Griffith University in 2002.

2. In January 2018, the respondent was a registered midwife with the Nursing and Midwifery Board of Australia.  She was endorsed as qualified to prescribe Schedule 2, 3, 4 and 8 medicines required for midwifery practice in accordance with relevant state and territory legislation.  The respondent was a director and practising midwife at My Own Midwife GC at Ashmore on the Gold Coast (‘MOM’).

3. The respondent surrendered her registration in November 2021, effective from 14 December 2021.

4. In September 2021, the Deputy State Coroner published reasons in respect of findings in relation to the death of a child at birth.  The Coroner described the background as follows:

   (a)The infant (‘Patient B’) was born at 40 weeks and one day gestation at 3:40am on 10 January 2018 at the residence of her mother (‘Patient A’) and father.  Two midwives, Stephanie Oliver and Rosemary Blyth, assisted with the labour and delivery.

   (b)Patient B was born unresponsive with the cord around her neck.  She had Apgar scores of zero at one, five and ten minutes.  The midwives commenced CPR with cylinder oxygen and a Neopuff ventilator.  They called 000.

   (c)Queensland Ambulance Service paramedics attended, intubated and ventilated Patient B and transported her to the Gold Coast University Hospital (‘GCUH’), where she was admitted to the Neonatal Intensive Care Unit.  She was diagnosed with severe hypoxic encephalopathy (brain damage due to lack of oxygen).  She was pronounced deceased at 6:40pm on 13 January 2018.

5. As a result of the findings published in the Coroner’s report and receipt of a health service complaint, the Office of the Health Ombudsman commenced an investigation on 12 October 2021. Following investigation, the applicant referred this matter to the Tribunal for hearing and determination pursuant to ss 103(1)(a) and 104 of the Health Ombudsman Act 2013 (Qld) (‘HO Act’).

6. The allegations against the respondent are as follows:

   (a)The respondent failed to provide antenatal care to Patient A at the standard expected of a registered midwife between 4 and 9 January 2018 (‘allegation 1’);

   (b)The respondent failed to provide intrapartum care to Patient A at the standard expected of a registered midwife on the night of 9-10 January 2018 (‘allegation 2’);

   (c)The respondent knowingly and dishonestly altered and/or fabricated parts of Patient A’s Labour Progression Notes (‘MOM records’) or, alternatively, was complicit in the dishonest alteration and/or fabrication of the MOM records, and knowingly provided false information to the Coroner (‘allegation 3’).

7. The background facts giving rise to the proceedings are set out in some considerable detail in the Statement of Agreed Facts (‘SAF’), particularly paragraphs 11 to 43 (inclusive).

8. The Tribunal is satisfied that it has jurisdiction to proceed with the matter pursuant to sections 9(2)(a) and 10(1)(b) of the QCAT Act and sections 96(1)(a) and 107 of the HO Act.

9. The Tribunal proceeds having regard to section 4(1) of the HO Act that the main principle for administering the Act is that the health and safety of the public are paramount. The applicant bears the onus of proof to the civil standard that is on the balance of probabilities with a degree of satisfaction varying according to the gravity of the facts to be proven; that is, the standard articulated in Briginshaw v Briginshaw [1938] HCA 34; (1983) 60 CLR 336.

Discussion and sanction

1. In an amended submission on behalf of the respondent filed 10 April 2025, the respondent:

   (a)admits the relevant conduct (and accepts the allegations set out in the amended referral) and facts outlined in the SAF;

   (b)admits that the conduct detailed in allegations 1, 2 and 3 of the amended referral amounts to professional misconduct within the meaning of the Health Practitioner Regulation National Law (Queensland) (‘National Law’); and

   (c)agrees that the sanction being sought by the applicant is appropriate.

2. The respondent accepts allegation 1.

3. The respondent noted that, without resiling from these admissions, the following matters were relevant:

   (a)Patient A refused to attend the hospital when this recommendation was made by the respondent on 15 October 2017 and 4 January 2018.

   (b)When Patient A did attend the GCUH on 7 January 2018:

   (i)      the obstetric resident, Dr Anna Walch, discussed with Patient A the recommendation for an induction of labour (‘IOL’) and hospital birth as she was experiencing reduced movements in conjunction with her advanced maternal age and increased risk of stillbirth.  Patient A declined.

   (ii)      the respondent agreed with the recommendation of Dr Walch for an IOL.  The Respondent explained to Patient A that just because her cardiotocography (‘CTG’) and scan were normal these did not predict what might happen in the future.  The respondent explained that while most women who do have an IOL because of reduced movements have healthy babies, it is the ones that do not have good outcomes that they worry about.

   (iii)     Dr Walch discussed again with Patient A that the recommendation was for a hospital birth and continuous foetal monitoring during labour.  Patient A declined.  Dr Walch indicates that Patient A “declined to be induced and she asked to be discharged home”.

4. It was submitted on behalf of the respondent that, in hindsight, whilst she acknowledges that she should have refused to facilitate the home birth when the hospital made the recommendation for a hospital birth, her intention was to support the wishes of the mother who maintained refusal for a hospital birth.  The respondent acknowledges this amounts to a failure to provide antenatal care to the standard expected.

5. Allegation 2 is admitted.

6. Allegation 3 is also admitted with the respondent admitting that she made poor choices which were not reflective of her thinking rationally and in accordance with her usual honest character.

7. The respondent made the following submissions:

   (a)she attributes her actions to panic;

   (b)such actions are not consistent with her long unblemished history of providing care as a midwife nor her usual ethics and good character;

   (c)she is extremely remorseful about the outcome which has deeply impacted her.  The impact on her is such that she had ceased practising as a midwife, despite her love of helping people deliver babies;

   (d)she has suffered reputational and financial hardship as a result of these events;

   (e)she is a person of good character, honest, trustworthy, compassionate, transparent, and integrous as described by her character referees.  The Tribunal accepts this submission.

8. The Tribunal is satisfied that the sanction proposed by the applicant and accepted by the respondent is appropriate in the circumstances.  

9. The Tribunal is satisfied that the respondent has demonstrated significant remorse and insight as demonstrated by her agreement to the SAF, acceptance of the allegations, characterisation and sanction.

10. The Tribunal is satisfied that the respondent is sufficiently insightful to reassure the Tribunal that the risk posed in the future is significantly reduced.

11. The Tribunal acknowledges that the primary purpose of proceedings of this type is to maintain public confidence in the midwifery profession and its regulation especially given the sensitive nature of private midwifery.  It is acknowledged that nurses and midwives must be able to be trusted in their clinical care, maintenance of clinical records and dealing with regulatory, judicial and any other authoritative body.

12. The Tribunal is satisfied that the comparative cases provided by the applicant show that the proposed sanction is well within range.  It should be noted that the respondent submitted that the Tribunal would be aided particularly with respect to the decisions of Nursing and Midwifery Board of Australia v Fankhauser [2013] QCAT 395, Health Care Complaints Commission v Tran [2020] NSWCATOD 32, and Health Care Complaints Commission v Brown [2021] NSWCATOD 57 which have similar facts to the current case with respect to involving clinical care and the alteration of records.

13. Deterrence, both general and specific, will always play a part in respect of consideration as to the appropriate sanction.  In this case the Tribunal is satisfied that issues of deterrence, having regard to the nature of the proceedings, have adequately been considered by the sanction proposed.

Orders

1. In the circumstances, the Tribunal makes the following orders:

2. Pursuant to s 107(2)(b)(iii) of the HO Act, the respondent has behaved in a way that constitutes professional misconduct.

3. Pursuant to s 107(3)(a) of the HO Act, the respondent is reprimanded.

4. Pursuant to s 107(4)(a) of the HO Act, the respondent is disqualified from applying for registration as a registered nurse or midwife for a period of two (2) years from the date of the Tribunal’s order;

5. There is no order as to costs, each party bears their own costs of an incidental to these proceedings.  

Non-publication order

1. An application has been made for a non-publication order.  The applicant states that on 28 March 2024, the Tribunal made a non-publication order prohibiting the publication of information that could identify or lead to the identification of Patient A or any member of her family, Patient B’s father or any member of his family, and any other patient of the respondent.

2. The applicant submits that the non-publication order should continue pursuant to s 66(2)(d) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) to continue to protect the privacy of these parties.  The respondent agrees that it is appropriate for the non-publication order to continue.

3. In those circumstances, the Tribunal affirms the non-publication order pursuant to s 66(2)(d) of the QCAT Act.