Oglesby v Nursing and Midwifery Board of Australia - [2014] QCAT 701

CITATION:

Oglesby v Nursing & Midwifery Board of Australia [2014] QCAT 701

PARTIES:	Natasha Oglesby (Applicant/Appellant)
v
Nursing & Midwifery Board of Australia (Respondent)

APPLICATION NUMBER:

OCR177-14

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

2, 3 December 2014

HEARD AT:

Brisbane

DECISION OF:

Judge Alexander Horneman-Wren SC, Deputy President
Assisted by:
Paul Murdoch
Mary Sidebotham
Jocelyn Toohill

DELIVERED ON:

8 December 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. That the following conditions be imposed upon the practitioner’s registration:

a. The practitioner is prohibited from performing or attempting to perform any artificial rupture of the membranes of any woman to induce labour in that woman other than in a hospital.

b. The practitioner is prohibited from providing midwifery care or services to any woman planning a vaginal birth after caesarean section outside of a hospital.

2. No order as to costs.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES –DISCIPLINARY PROCEEDINGS – where registrant in private practice performed homebirths – where complications arose in a homebirth by way of vaginal birth after caesarean section – where complications arose in another homebirth and registrant performed an artificial rupture of membranes to induce labour in a home setting –whether immediate action was necessary to protect public health and safety – whether conditions imposed on registrant were appropriate in the circumstances – whether registrant posed a serious risk to persons – where registrant did pose a serious risk and immediate action necessary – where conditions imposed were necessary – whether homebirth was precluded in the circumstances – whether the registrant failed to communicate with a hospital when provided with records or notations from a hospital about which a reasonable registrant would make further enquiries

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

D Crews instructed by Fowler Lawyers

RESPONDENT:

C Wilson instructed by Lander & Rogers Lawyers

REASONS FOR DECISION

The Proceedings

Ms Natasha Oglesby is a Registered Midwife. She holds a Bachelor’s degree in nursing and a Master’s degree in Midwifery. She was first registered as a midwife in 2005. A notation to her registration reflects that she has an expanded scope of practice as an eligible midwife competent to provide pregnancy, labour, birth and postnatal care, and is qualified to provide the associated services and undertake diagnostic investigations required for midwifery practice in accordance with the relevant State and Territory legislation.
On 26 February 2014 the Nursing and Midwifery Board of Australia, acting through the Queensland Immediate Action Committee decided to take immediate action in relation to Ms Oglesby in the form of imposing conditions on her registration. The conditions imposed were:
(1)The practitioner must only work in a position approved of in writing by the Board.
(2)The practitioner will only practice midwifery under the direct supervision of a registered midwife, (the supervisor), who is senior to her in terms of either position or experience.
(3)If the practitioner seeks approval to practice in a home community setting as a midwife she must be under direct supervision.
(4)The practitioner must ensure that prior to accepting patients for homebirths she receives approval to do so from the supervisor, with the supervisor’s approval notated in the patient’s clinical records.
(5)The supervisor must be nominated in writing by the practitioner, agree to the nomination, not be an employee of the practitioner, provide a copy of their curriculum vitae and be approved of in writing in advance by the Board.
(6)The practitioner authorises the Board or its representatives to exchange information with their (sic) supervisor, including notes, if it is deemed by the Board or its representative to be in the interests of patient safety.
(7)The practitioner authorises the supervisor to provide work progress reports to the Board or its representative at the following times – [at which various intervals were set out.]
(8)The practitioner will within seven days of the commencement of these conditions notify all supervisors and employers as to the existence of these conditions and provide the supervisor and employer with a copy of these conditions. The employer will provide written confirmation to the Board or its representative, acknowledgement (sic) to the existence of these conditions.
(9)The Board will request, direct and authorise the following:
(a)the Medicare program;
(b)Department of Human Services Australia;
(c)private health insurance funds
to provide information to the Board or its representative about the practitioner’s practice of midwifery and/or registered nurse.
For the purposes of the conditions ‘indirect supervision’ is defined as being when the supervisor works in the same facility or organisation as the supervised person, but does not constantly observe their activities. The supervisor must be available for reasonable access. What is reasonable will depend on the context, the needs of the consumer and the needs of the person who is being supervised. Direct supervision is when the supervisor is actually present and personally observes, works with, guides and directs the person who is being supervised.
Ms Oglesby has appealed against the Board’s decision to take immediate action. The nature of the appeal is well established. It proceeds by way of a fresh hearing on the merits, the purpose of which is to provide the correct and preferable decision.[1]
[1]Section of the Health Practitioner National Law Act 2009 (Qld) and s 20 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) and Pearse v
Medical Board of Australia [2013] QCAT 392.

Nature of the Proceedings

The Tribunal is required to apply the law at the time of the hearing. The Tribunal must decide on the material before it whether it reasonably believes that because of her conduct or performance Ms Oglesby poses a serious risk to persons and that it is necessary to take immediate action to protect public health and safety. This requires identification of any serious risk posed, and the particular aspects of Ms Oglesby’s conduct of performance which caused or cause that risk. It also requires, if relevant risk is identified, identification of the particular action necessary to protect public health and safety.[2]
[2]Ladhams v Medical Board of Australia (No 2) [2014] QCAT 286.

Events leading to immediate action

Prior to the imposition of the conditions on her registration Ms Oglesby was working as a midwife in her own private practice, called Sunshine Coast Maternal Care Centre. She specialised in providing home and community birth care to mothers. The premises from which she conducted the practice in Nambour include an apartment which could be leased by an expectant mother who wished to have a homebirth at the centre. It was not a birthing centre. It was located close by to the Nambour General Hospital.
The events which ultimately led to the immediate action taken against her stemmed from four notifications to the Australian Health Practitioner Regulation Agency (AHPRA). Two of the notifications were mandatory notifications by obstetricians engaged in practice at the Nambour General Hospital, Dr Larwood and Dr Weaver. It is in respect of those complaints that the matter has proceeded before the Tribunal.
Section 141 of the Health Practitioner Regulation National Law (National Law) obliges a registered health practitioner who in the course of practising his or her profession forms a reasonable belief that another registered health practitioner has behaved in a way that constitutes notifiable conduct to notify the National Agency of the notifiable conduct. In each instance the notifiable conduct, as defined by s 140(d), was that Ms Oglesby had placed the public at risk of harm because she had practised her profession in a way that constituted a significant departure from acceptable professional standards.
Dr Larwood’s notification concerned the care of patient IC. IC had been transferred to the obstetrics unit of the Nambour General Hospital on the morning of 29 November 2013 after a failed homebirth. Her baby was delivered vaginally with vacuum assistance shortly after arrival at the hospital.
Dr Weaver’s notification concerned the care of patient PR. PR gave birth to a baby by caesarean section in the early hours of 13 January 2014, having transferred to the Nambour General Hospital on the evening of 12 January 2014 after a failed homebirth.
Each of IC and PR had previously had babies delivered by caesarean section. Each was planning that the births with which Ms Oglesby was to be involved were vaginal births after caesarean section. Such a birth is commonly referred to as a VBAC, or trial of vaginal birth after caesarean section, a TOVBAC.
The review in the Tribunal proceeded on the basis that only the matters the subject of the notifications of Dr Larwood and Dr Weaver were to be considered.
In his notification Dr Larwood identified his concerns as follows:
My concerns are that this was a planned homebirth supported by the midwife with the following risk factors: VBAC, vaginal birth after caesarean section; previous failed homebirth; first baby macrosomic, four kilograms; patient is now 40 year old. My concerns are also with labour management: patient had been pushing for three hours before arriving at hospital, there was a severe shoulder dystocia requiring delivery of the posterior arm, patient suffered a third-degree tear. These problems would have been very difficult to manage at home. I performed a rotational vacuum-assisted delivery.
Ms Oglesby disputes that IC was pushing for three hours. She disputes that a VBAC precluded a homebirth or increased the risk of a homebirth, or that IC’s previous failed homebirth was a risk factor or increased the risk of a homebirth. She also disputes that the weight of IC’s first baby, or IC’s age, increased the risk of a homebirth. She says that the baby’s severe shoulder dystocia could not have been diagnosed prior to IC’s transport to the hospital, and that the care which she provided to IC did not cause the shoulder dystocia or IC’s third-degree tear of the perineum. She further disputes that the birth would have been difficult to maintain in a homebirth environment and says that IC was transported to the hospital as soon as the risk was identified.
Dr Weaver’s concerns were expressed in his notification as follows:
She was caring for a woman, PR, who was 12 days overdue in her second pregnancy. She had had an emergency caesarean section to deliver her first child and was interested in a trial of vaginal birth after caesarean section. PR was being cared for in the antenatal clinic at Nambour General Hospital and was seen there on 10 January 2014 and advised to be induced as she was 12 days overdue. She declined that advice. She re-presented to NGH on 11 January 2014 demanding to have her membranes artificially ruptured as Ms Oglesby had not been able to do this on two occasions with a hook. She eventually ruptured her membrane spontaneously and had a caesarean following poor progress in labour.
Basis of complaint: (1) attempting rupture of membranes (induction of labour) in a woman attempting a TOVBAC outside a hospital setting, (2) supporting TOVBAC in a poorly equipped birth centre, (3) attempting rupture of membranes twice in a setting of TOVBAC with unfavourable cervix, with no communication with obstetrician at NGH, who had to provide subsequent care.
Ms Oglesby disputes that she attempted an artificial rupture of PR’s membranes on either 10 or 11 January 2014. She denies that the care which she provided to PR posed a serious risk to PR.

Does Ms Oglesby pose a risk to Persons?

On the review the Board identifies three aspects of Ms Oglesby’s conduct which it says gives rise to a serious risk to persons. It says that the evidence before the Tribunal concerning the patients IC and PR demonstrates: that Ms Oglesby will fail properly to maintain records in relation to any given patient; that she will fail to communicate to other health professionals, particularly in the maternity unit at the local hospital, and in particular about the risk factors attending to any given patient; and that she herself would fail to communicate with a hospital when provided with records or notations from that hospital about which she is unsure or about which a reasonable midwife would make further inquiry.
The Board also identifies that there is a risk that Ms Oglesby will undertake practices – specifically an artificial rupture of membranes in a home setting – which should not be undertaken.
The Board contends that in order to protect public health and safety, the conditions as presently imposed, onerous as they are, ought be maintained.
Before proceeding to consider these matters, it should be observed that I am not of the view that it is necessary to be satisfied that certain conduct will be engaged in by a registered health practitioner before the reasonable belief can be held that the practitioner poses a risk to persons. In my view, it is not even necessary to be satisfied that it is more probable than not that the practitioner will engage in some conduct in the future. In my view, a reasonable belief may be held that a practitioner poses a serious risk to persons if, based upon evidence of past conduct, there is a real possibility that the practitioner will engage in conduct which could be harmful to persons. If the possibility of engaging in the conduct was so remote as to be fanciful, or the possible harm trivial, then I would not think that a belief could reasonably be held that the practitioner posed a serious risk to persons.
It is convenient to deal with the third of the identified risks first. It concerns the risk that Ms Oglesby may perform an ARM in a home setting. The risk is said to arise from Ms Oglesby having previously attempted such a procedure on the patient PR.
PR first consulted Ms Oglesby on 9 July 2013. On 24 July 2013, a referral letter to the Maternity Unit at the Nambour General Hospital was prepared. The referral identified that PR wished to birth at home, as long as safe to do so. It sought obstetric appointments for PR at 20 and 30 weeks, a matter to which I shall return later.
PR apparently consulted Dr Morgan at the hospital on 3 December 2013. She saw a registered midwife at the hospital on 17 December 2013. PR was again seen by Dr Morgan at the hospital on 8 January 2013. The notes recorded in the handheld record indicate that induction of labour was discussed. PR was then 10 days post-term. The notes indicate that PR was not keen on being induced, but would consider it at 14 days post-term. A vaginal examination was conducted with PR’s consent and the findings recorded.
PR was again seen at the hospital on 10 January 2014, on this occasion by Dr Harker. The notes in the handheld record indicate that PR was offered an induction of labour that day, but declined. There is then an entry which reads ‘Planning to see private MW for ?ARM. Happy to return Sunday for IOL. 1400 booked.’
Ms Oglesby contends that this entry indicates a clinical management plan reflecting agreement between doctor and patient. She says that the clinical management plan, as agreed between the patient and doctor, was for Ms Oglesby to attempt an ARM, if possible.
The handheld record is a document in which relevant events which occur, and observations which are made, in the course of a woman’s pregnancy are recorded. Often, a number of healthcare providers will be involved in the care of the woman over the course of her pregnancy, labour and birth. Ideally, all the healthcare providers involved in the care of the woman will engage with one another in a collaborative manner. It is self-evident that a collaborative approach can only enhance the care for, and the safety of, the woman and her foetus.
The handheld record travels with the woman and facilitates communication of past events and observations from one healthcare provider to another, as well as maintaining a continuous record of ongoing care. As such, it is important that it should record information in as complete and accurate a form as possible. It does not, however, constitute the only record of the care provided to a woman. The handheld record bears a note which states ‘All hospital staff document any variances in progress notes.’
It is not immediately apparent as to what may constitute a variance, however, a document called Obstetrics Handheld Record Variance gives some indication. It provides for the notification of ‘Problems requiring action’ and gives the example of ‘vaginal birth after caesarean, failed to attend, handheld record not available.’
Quite an extensive note was made by Dr Harker in the handheld record variance on 10 January 2014. She noted PR’s previous caesarean section and that she was planning a home birth. It referred to the patient’s recorded history and previous discussions with Dr Morgan about the plan for home birth and the associated risks. It recorded observations made that day and then recorded:
DW consultant would recommend IOL today. Discussed this with PR. Planning to visit private MW Oglesby today for ARM!! Discussed our recommendation for monitoring in hospital à declined. Discussed plan if gets to T plus 14. Happy to present for monitoring and IOL with cooks on Sunday. Booked for 1400 Sunday. Advised any concerns to represent DC today.
This entry contains a tone of alarm at the prospect of a private midwife performing an ARM on PR outside of the hospital. That tone of alarm did not resonate in the note concerning the ARM made by Dr Harker in the handheld record. Had it done so, I doubt that Ms Oglesby would have interpreted it as a care management plan agreed to by Dr Harker.
The Tribunal heard evidence from Mrs Theresa Walsh, a highly qualified and experienced midwife. Mrs Walsh provided evidence jointly on behalf of the parties.
Mrs Walsh was of the view that Dr Harker’s note as recorded in the handheld record may have been open to interpretation as a care management plan. Notwithstanding that, however, Mrs Walsh stated that even if she had considered it to be so, she would not have acted upon it other than to call the doctor. She was clearly of the opinion that performing an ARM to induce labour in PR in a home setting should not have been considered by any health professional involved in PR’s care.
I would infer that even if an obstetrician had confirmed that the note in the handheld record was a care management plan which contemplated performing an ARM on PR in a home setting to induce labour, Mrs Walsh would not have acted upon it in the sense of proceeding to induce labour by rupturing PR’s membranes. She clearly identified the risk of complications for mother and baby in doing so. Mrs Walsh was of the view that it was Mrs Oglesby’s responsibility to communicate with the doctor for clarification.
That opinion would seem to be supported by Ms Oglesby’s own experience. While she initially said in evidence that she had performed a number of ARMs in a home setting, albeit that she could not say how many, it became apparent that all those occasions involved the performance of an ARM to augment labour; not to induce it. When asked the extent of her experience in ARM in a home setting to induce labour, she said, ‘Well, we don’t tend to do it.’
In light of that experience, I accept Mrs Walsh’s evidence that even if confronted with a note in the handheld record which she interpreted as a management plan authorising or condoning the performance of an ARM by her upon PR to induce labour, Ms Oglesby had a responsibility to call Dr Harker for clarification. It is readily inferred from Dr Harker’s note in the variance record that confirmation would not have been forthcoming. That clarification would have been consistent with Ms Oglesby’s knowledge and experience.

Ms Oglesby denies having attempted to perform an ARM on PR on either 10 or 11 January 2014. Those denials are based on a somewhat semantic argument as to what constitutes an attempt to perform an ARM. It is apparent that Ms Oglesby conducted a vaginal examination of PR on 10 January 2014 for the purpose of assessing whether her cervix was favourable to an ARM. It was not. I infer, however, that had it been, Ms Oglesby would have proceeded.
On 11 January 2014, another examination was performed, and this time the cervix was found to be favourable. On that occasion she did insert an amnihook into PR’s vagina; but was unable to insert it through the cervix at an angle which would have permitted the hook to be engaged with the membranes. Any semantic debate as to whether this constituted an attempt to perform an ARM need not be resolved, although I would think that it did.
For present purposes, what is relevant is that on both 10 and 11 January 2014 Ms Oglesby manifested a preparedness to proceed to perform an ARM on PR to induce labour in a homebirth setting, believing that such was consistent with the care management plan formulated by an obstetrician, but without any reference to the obstetrician when such a course was contraindicated by her knowledge and experience.
The potential harm to mother and baby was great. In giving her evidence on this issue, I did not form the view that Ms Oglesby, even now, considers that she acted inappropriately on 10 or 11 January.
I believe that she poses a risk to persons in that she may act in a similar way in the future. To protect public health and safety, I consider that it should be a condition of her registration that she does not perform, or attempt to perform, any artificial rupture of the membranes of any woman to induce labour in that woman, other than in a hospital setting. Such a condition shall not operate in a burdensome way. It will not prevent her from performing ARMs to augment labour in a homebirth setting where appropriate. It will only prohibit her from doing that which all the expert opinion in this case and her own experience suggests should not be done.
The particular context of the Board’s submission that a risk posed by Ms Oglesby is that she will fail to communicate with a hospital when provided with records or notations from the hospital about which she is unsure, or about which a reasonable midwife would make further inquiries, is her failure to have sought clarification in respect of the note in PR’s handheld record, which she interpreted as a care management plan for her to perform an ARM to induce labour. That risk, in the particular context, is addressed by a condition prohibiting the performance of ARMs to induce labour outside of a hospital, which I have already foreshadowed. That particular context is the sole example of such a failing of that kind on Ms Oglesby’s part.
I would be reluctant to extrapolate from that one particular example a more general risk that Ms Oglesby would fail to make inquiries when a reasonable midwife would. To do so would require an assumption that other healthcare providers might communicate via a patient’s handheld record in a way which conveyed information in a manner which was demonstrably at odds with that person’s actual views or intentions, as was the case with Dr Harker. I am not prepared to make that assumption.
Beyond that particular example, the Board’s submission that Ms Oglesby will fail to communicate with a hospital when provided records or notations about which a reasonable midwife would make further inquiry is cast at such a level of abstraction that it would not support a reasonable belief that Ms Oglesby posed a risk to persons.
It should be noted that there is no evidence to support the contention that she will fail to communicate when provided records or notations about which she is unsure. She was not unsure of the note from Dr Harker about the performance of an ARM. To the contrary, she was sure that it was an agreed management plan. The issue is not that she was unsure, but that she ought to have been.
The other communication risk identified by the Board, that she will fail to communicate to other healthcare professionals about the condition and risk factors attending her clients, is somewhat related to the risk that she will fail properly to maintain records in relation to patients. In order to consider whether Ms Oglesby poses such risks, some further facts about the care provided to each of IC and PR, and the records made of that care by Ms Oglesby, need to be set out.
The date upon which IC first consulted Ms Oglesby is unclear. The first recorded entry in the handheld record is undated. It does, however, record that IC was seven weeks pregnant at the time. The second consultation took place on 16 April 2013, at which time IC is recorded as being nine weeks pregnant. It would seem, then, that the first consultation must have taken place in early April 2013. IC was then 39 years old, her date of birth being 1 August 1973. The notes of the initial meeting, as recorded in the handheld record, record that IC’s first birth experience was discussed. Presumably that discussion would have included that the first child was delivered by Caesarean section.
The notes of the second consultation record, amongst other things, that IC was wishing to attempt a VBAC. There is no note of any discussion of risks associated with a VBAC having been discussed on that occasion.
Page A6 of 13 of IC’s pregnancy health record is a record of an initial physical examination apparently conducted on 9 June 2013 by Ms Oglesby. However, there is no record of any consultation on that date in the handheld record. Pages A1 and A2 of the pregnancy health record are undated, so do not identify when they were completed. Page A2 contains the woman’s health history. It has been completed but is unsigned and undated. It is unclear as to whether it was intended to be signed by the patient as the provider of the information, or by the midwife as the recorder of the information. The record in respect of PR would indicate that it is the former.
There are notes of a consultation on 26 July 2013 in the handheld record. It does not appear that any risk factors were discussed on that occasion. The next notes in the handheld record are for 8 August 2013. It records no discussion about risk factors. On the same date, however, Ms Oglesby entered into a record of understanding with IC. The record of understanding is in the standard from published by the Australian College of Midwives. The form itself records that ‘It is recommended that this form is completed when a woman chooses care outside the ACM guidelines or against the advice of her midwife.’
The provenance of the record of understanding is Appendix A to the National Midwifery Guidelines for Consultation and Referral published by the Australian College of Midwives. Appendix A is entitled “When A Woman Chooses Care Outside The ACM Guidelines For Consultation and Referral.” It will be necessary to consider further the use of the record of understanding at Appendix A to the guidelines later in these reasons.
As the record of understanding itself states, it is in three parts. Part 1 is a record of the advice and discussions held between the woman and the midwife. One column is to be completed by the woman, the other by the midwife. In each of the columns are related questions.
The first answer provided by IC identifies that she had, by that time, chosen a home birth as the only option she was considering. It is to be noted that this option had not been identified in the records at any earlier time. In respect of the options being considered by the woman, the midwife is asked ‘What is your advice in relation to the option?’ Ms Oglesby’s response is simply, ‘Informed choice’.
The woman is then asked what, if any, information, evidence or concerns she had considered in exercising the option. IC responded, ‘None’. The related question of the midwife is ‘What information or evidence have you provided to the woman to support her decision-making in relation to the option?’ Ms Oglesby’s response was:
·ACM guidelines.
·Choosing how to birth your baby. A decision for a woman with a previous Caesarean with a previous Caesarean section – Queensland Centre for Mothers and Babies.
·Queensland Maternity and Neonatal Clinical Guidelines (VBAC).
·Perinatal statistics.
The woman was then asked what questions or concerns she had. IC again responded, ‘None’. The woman was then asked ‘What is your understanding of the answers you have received to your questions or concerns?’ IC answered ‘Have made an informed, conscious decision based on what is right for me.’
The related question of the midwife is ‘With whom have you discussed the woman’s care?’ In response, Ms Oglesby identified IC and her husband and a referral letter to the Nambour General Hospital.
The form then provides for the nomination of the persons with whom the woman’s care has been discussed. It provides for the date and method of such discussions to be identified. The first pro forma entry is in respect of discussions with a midwife. Ms Oglesby’s entry identifies herself as the midwife, the dates of discussions as 8 August 2013 to 4 October 2013 and the method of discussions as “communication.” The next professional identified in the pro forma document is ‘Medical Practitioner’. Ms Oglesby identifies Dr Marc Miller and the discussion being by way of hospital referral on 4 October 2013.
Some observations should be made about those entries. First, parts of them must have been made on a date subsequent to the completion of the record of understanding by IC. The nomination of 24 October 2013 as the date of both the referral letter to the hospital and the end date of the communications with herself could only have been made by Ms Oglesby two and a half months after the record of understanding was signed by IC. The referral letter confirms that it was prepared on 24 October 2013.
Secondly, the inclusion of ‘midwife’ in the pro forma document is intended, in my view, to have recorded any discussions which the midwife responsible for the care of the woman has had with another midwife. Ms Oglesby identifying herself as the midwife demonstrates that she failed to understand this. For reasons to which I shall return, it also demonstrates a failure on her part to understand the significance of discussing the options with another midwife and a failure to understand and implement the ACM guidelines.
Thirdly, those entries also demonstrate that there was no consultation with any other healthcare provider in respect of IC’s decision to have a home waterbirth VBAC prior to her deciding to do so, at the time of that decision, or in the period immediately following.
When giving evidence, Ms Oglesby was asked about IC having stated, ‘None,’ in response to the question about what, if any, information, evidence or concerns she had considered in exercising her option. Ms Oglesby gave this evidence:
That means because she wasn’t looking at what I gave her. So IC was very specific on her wishes and I gave her the VBAC pack that we have and I said, I would like you to read these. I’ve documented that and I have provided those documents to IC. Again, it doesn’t mean that they’re going to read them. With IC, she was very specific on that there was no other choice to her. That was what she was going to do. She wasn’t really taking into consideration any other information that we’re giving her but it was my obligation to provide her with that information.
She was then asked ‘Did you – did your obligation – did you consider extend to actually knowing that she knew what the risks were rather than that she’d been provided with a bundle of documents?’
Ms Oglesby responded:
‘We discussed the risks, which if she –Well, she hasn’t disclosed that she hasn’t read. She said that she hasn’t taken the information and evidence or concerns that she has considered in exercising her opinion. She wasn’t considering them. She may have read them but she wasn’t considering them because she’d already made her decision and her decision was what she wanted to do.
The woman was then asked whether she had discussed her maternity care options with her midwife or any other care providers. IC answered that she had had discussions with Ms Oglesby. In response to the further question as to why she had had those discussions, she stated ‘To ensure we were both comfortable with option.’
The related question asks the midwife to summarise these discussions, including the safest and most ethical course under those circumstances, and discussion of appropriate next steps if the woman continues to choose care outside the guidelines. Ms Oglesby’s response was:
Management plan to be in place for transfer to hospital if required if:
·foetal tachycardia
·foetal bradycardia
·half-hourly intermittent Doppler FHR
·FHR (something) during post-contraction
·paint between contractions.
The form then asks the woman what is her understanding of those discussions. ICs response was ‘Tash is experience (sic) and very competent.’
It then asks what questions the woman has about her midwife’s recommendations to her. IC again responded ‘None’.
The related questions of the midwife ask what, if any, alternative care plan has been recommended to the woman after the discussions and the date upon which the woman has been advised of that recommendation. Ms Oglesby responded that on that day, 8 August 2013, she had recommended hospital birth support which had been declined.
Part 2 of the record of understanding records the management care plan agreed between the woman and the midwife. The pro forma document provides for a series of care providers to be nominated, including a midwife, and a medical practitioner. It states that each care provider’s role is to be specified. The only care providers identified are Ms Oglesby as the midwife and another person as ‘birth support’. No roles are specified.
The form provides for the woman and each of the agreed care providers to sign the document. Ms Oglesby signed part 2 on 8 August 2013. The name of the birth support person was apparently entered on 1 November 2013. That person did not, however, sign the document at any time indicating that she agreed to undertake any role.
Part 3 of the record of understanding is in the form of a declaration. Ms Oglesby stated her reasons for deciding to continue to provide maternity care as being ‘Woman’s choice – ACM guidelines followed, documented.’
As to conditions upon which she may review the decision to continue care, Ms Oglesby nominated ‘Any additional risk factors present during antenatal period of care, needing OB consultation such as breech.’
Notes in the handheld record show IC having consulted Ms Oglesby on 5 and 24 September 2013. No discussions of risk are recorded on those dates. IC again consulted with Ms Oglesby on 4 October 2013. The notes recorded in the handheld record for that occasion are:
Birth plan discussed in detail. Past birth discussed. Previous birth notes reviewed. Risk factors addressed. Transfer to hospital if required. Discussed, agrees, no questions asked. Present position: breech. Review 2/52 for ultrasound if required.
On 18 October, the handheld record notes the appointment made for 24 October 2013. The referral letter to the hospital dated 24 October 2013 identifies that ‘IC is planning a home birth as long as safe to do so.’
It stated that the booking referral/ care notification was designed to ensure a seamless flow of information should consultation become necessary during the antenatal period, and to form a collaborative arrangement with the hospital to provide shared care. It sought an obstetric appointment at 36 weeks.
The referral makes no mention of the breech position of the baby, which had been identified by Ms Oglesby in the record of understanding as a circumstance which may cause her to reconsider her decision to continue to provide care.
Page A5 of 13 of the pregnancy health record contains a note apparently made on 18 October 2013. It indicates under the heading Mode of Care ‘IM’, which I take to mean independent midwife, ‘? home birth’
Under the heading Medical and Obstetrics Issues and Management Planning, it records:
previous planned home birth in UK Emisc … for foetal distress – prolonged labour (malpositioned) → … SCN for five days, wishes to do trial of home birth – discuss risk factors – still wishes to birth at home – discussed plan to transfer if any concerns – discussed previous labour notes.
In the event, IC failed to keep her obstetrics appointment on 24 October 2013. It is apparent from the hospital’s handheld record variance notes that Dr Mitchell contacted Ms Oglesby that day, and that Ms Oglesby indicated to him that IC did not want to have any appointments in hospital, and that she, Ms Oglesby, would fax the hospital any antenatal notes and investigations for inclusion in the patient’s hospital notes.
The next occasion on which IC consulted Ms Oglesby after her failure to keep her hospital obstetrics appointment was on 1 November 2013. The note for that consultation in the handheld record is simply: ‘Well.’
No record is made of any discussion of her failing to attend the appointment or any discussion of risks, nor of the question of the position of the baby, nor of their having been any consideration by Ms Oglesby of discontinuing care in light of these circumstances. There are subsequent notes for consultation on 8, 5 and 22 November. None record any discussions concerning risks.
IC went into labour late on the night of 28 November 2013 or in the early hours of 29 November 2013. Ms Oglesby’s labour notes commence from when she was contacted by ICs husband at 01.32 am on 29 November. The notes include:
05.02: IC fearful. Reassurance given. Explained very normal at this stage. IC encouraged to listen to her body. Contractions 3:10 FHR 140 BPM – before, during and after contraction = FHR reassuring.
07.24: Some increase in pressure at height of contraction. I discussed with IC the mechanisms of pushing in second stage of labour, and only to push if the urge to push is there – encouragement given, that close now to meeting her baby girl. IC said she has a lot of pressure in her bottom.
07.40: urge to push with contraction.
08.33: discussed with NC and IC that we are approaching an hour now of pushing and although has taken a while for IC to understand and push effectively, must be mindful of the time, and if does not progress, would need to look at transfer. IC does not want a transfer and agreed to change of position and review in half hour, asked me to give her a chance to do this.
09.02: further progress. HOV with contraction, however slow. I discussed with NC and IC again that unless we see some good progress soon, we will need to transfer to NGH. Advised IC at this point she has been in second stage for one hour, 22 minutes, and that we are coming close to the need to transfer, although baby is happy, so IC declined to transfer and asked for one more chance as she felt that she had made progress.
9.33: I discussed with NC and IC the need to now transfer to NGH. I am not seeing satisfactory movement forward and progress, and that although head is now visible with contraction, we are not making progress and to maintain ‘safe’, a transfer is a must. No longer happy with support at home. I have expressed the need to transfer now rather than later. The possible need for a vacuum assistance on arrival to NGH discussed. N and I agree with my recommendation to transfer. IC expressed wish to transfer in her own car.
There is then a record at 9.52am of a telephone call to the birth suite at the Nambour General Hospital. Telephone records tendered in the proceedings established the call was actually made at 9.45am.

The notes for the patient PR are somewhat complicated, because there are different versions of the handheld record. The fact that there are differing versions demonstrates that some of the notes made by Ms Oglesby were made after the initial entries. However, because Ms Oglesby made no notation of them being additional notes, one would not know what additions were made simply by reading the respective notes. That would mislead the reader to believe that the version being read was the version of the note with any information which it contains having always been available. Further, one is simply unable to determine when the alterations were made.
PR first consulted Ms Oglesby on 9 July 2013. She was then 21 weeks pregnant. The original note makes no mention of the method of birth.
A subsequent note in the handheld records has been added, which says: ‘To look towards home birth? Hospital referral.’ However, the service agreement entered into that day between PR and Ms Oglesby identifies that she had chosen to have the baby at home or in a maternity care centre.
The next date on which PR attended Ms Oglesby was 26 September 2013. The original note in the handheld record for that appointment records ‘Discussed birth, mechanism of birth, VBAC.’
The following was subsequently added:
Information provided:
·ACM guidelines
·Making decisions to VBAC
·Queensland Health guidelines for VBAC.
That additional entry suggests that the identified information was given to PR on 26 September 2013. That seems at odds with an entry made in PRs pregnancy health record by Ms Oglesby. That entry records the same information having been provided. Unhelpfully, Ms Oglesby has failed to date that entry, so it is unknown when it was made. However, immediately following it is a further entry which refers to a referral letter to the hospital and an appointment having been booked for when PR would be 36 weeks pregnant. The referral letter was dated 24 July 2014. Oddly, it seeks a 20-week appointment, as well as a 26-week appointment, even though, as the notes record, by that time PR must have been at about 23 weeks. However, the entry would establish that PR had been provided the information at least by 24 July 2013. Why she would again be given the information on 26 September 2013 is unclear, and certainly unexplained. One inference would be that the additional note is inaccurate, and that, contrary to what it indicates, PR was not given the information on that occasion.
An additional note has been added for the consultation on 29 October 2013 to include ‘Hasn’t decided on birth location at this stage.’
Similarly, for 5 November 2013, the following has been added ‘? Whether to book apartment for home birth close to hospital – wanting to home birth and VBAC; however, aware of time if needs arise for transfer to hospital.’
I have already set out the notes for 10 January 2014. It should be noted though that of that note it is apparent that the following was added at a later time ‘PT agreed to present to MGH as planned, at T plus 14 for CTG. PR not wanting hospital induction of labour. Will discuss with hospital on 12/1/2014.’
Despite the events concerning the ARM on 11 January 2014 and the change in the cervix on that occasion from being unfavourable the previous day to favourable, no record at all was made by Ms Oglesby of that consultation. Her response in giving evidence as to that having occurred because “it was irrelevant, nothing had changed,” was both surprising and inaccurate.
For the consultation on 26 November 2013 there are two versions of the notes in the handheld record. In the original version, there is no note of any risks having been discussed. In another version there is a note of four dot points which are risk related. So too, to the note for 23 December 2013, the following has been added ‘Post-term management and need to communicate with hospital. T, T plus 10, T plus 12, T plus 14 are assessment stages when post-dates.’
Ms Oglesby’s notes are unsatisfactory. Whilst Mrs Walsh stated in her report that it is usual in clinical practise, for reasons of time and available space, to document that discussions on a theme have taken place, without providing details of all aspects of the discussions, Ms Oglesby’s failings go beyond that. In some instances it is only through the additional note that there is any indication of a discussion on a particular theme.
Furthermore, in my view, when the theme or topic of discussion is the risks faced by a woman and her child in pregnancy and labour, particularly given certain risk factors, a general note such as: ‘risks discussed’, or: ‘risks addressed’, does not inform any reader of the note what risks were discussed or addressed. Any healthcare provider following would not know if particular risks which he or she considered should be discussed had in fact been discussed.
That of itself, however, does not give rise to a serious risk to persons. Faced with such deficiencies in the recording of whether risks had been discussed at all, or what particular risks had been discussed, a prudent healthcare provider would satisfy himself or herself that the patient knew of and had considered those risks.
The real risk, in my view, and one which is open to be found on the evidence, is that Ms Oglesby may not properly inform women in her care of the particular risks associated with their histories and chosen method of birth, such that the women have not made properly informed decisions and given truly informed consent, particularly in the context of patients wanting to have a baby by VBAC in a home setting.
Before turning to that issue, I will deal with the Board’s submission that Ms Oglesby will not communicate with other care providers, particularly in maternity units, as to risk factors attending her clients. As I understand the Board’s case, much of that submission is based upon events concerning IC. The Board submits that there should have been communication with the hospital earlier in IC’s pregnancy, and earlier on the day of her labour. In my view, the first aspect of that has relevance to the informed consent issue to which I shall shortly return, and I will address it in that context.
As to the second aspect, whilst it is clear on the evidence, particularly that of Mrs Walsh, that Ms Oglesby should have contacted the hospital earlier than she did, when precisely that should have occurred is less clear. Certainly, as Dr Weaver made clear, it is beneficial for the hospital to know as early as possible what potential patients they may have coming in, in the event a transfer is required, and what risks might be associated with them.
However, I would not infer from the events from about 7.30 am onwards on 29 November 2013 that Ms Oglesby has a general propensity not to communicate with the hospital. The events of that morning unfolded in an unfortunate manner, and I am sure that in hindsight Ms Oglesby would have made the call earlier. However, it is apparent to me that Ms Oglesby was diligently doing the best she could to manage a dynamic, evolving situation.
Of course, labour and childbirth are dynamic processes. Things change. Often rapidly. Sometimes with catastrophic outcomes for mother and baby. Ms Oglesby found herself in the very situation she had tried to plan to avoid: the woman questioning her decision that a transfer to the hospital was required. Ms Oglesby’s standard service agreement includes:
I also acknowledge that when a home birth or home birth away from home at the maternity centre is a preferred location of birth, that a hospital birth may be recommended due to circumstances at any point during the pregnancy and/or labour. Should a hospital birth be recommended due to increased risk, health concerns or any other reason indicated by my midwife, I agree that actions will be taken immediately to enable this to occur.
The notes of her consultation with IC on 4 October 2013 record that the issue of a transfer to hospital, if required, was discussed and that IC had agreed to that, ‘no questions asked’.
But on the morning of 29 November, when in a difficult, non-progressing, second-stage of labour, IC indeed questioned it. The dilemma for Ms Oglesby was manifest. She could not withdraw her care from a woman in labour whose confidence, both in Ms Oglesby and in herself, she was trying to maintain. Of course, the correct course was the one ultimately taken: transfer. She should have consulted with the hospital earlier and obtained their views, but, in the event, she facilitated a transfer of care and a safe outcome for mother and baby. On those events I would not consider Ms Oglesby a serious risk to persons.
However, I am of the belief that Ms Oglesby poses a serious risk to clients who engage her and who want a VBAC in a home setting. In my view, the evidence establishes that those persons may not be properly informed by Ms Oglesby of the risk of such a course. In the absence of being properly informed, they cannot give truly informed consent. The risks are serious, and potential outcomes include the catastrophic. If a woman is to choose to assume those risks, as she is entitled to do, she must do so properly understanding them.
The significance of these issues is apparent from Appendix A to the ACM guidelines. The guidelines set out the following matters:
The ACM respects and supports a woman’s legal right to make decisions regarding her care following a discussion of the risks and benefits of any aspect of care, including procedures. This document can assist midwives to continue to provide midwifery care when a woman chooses a course of action against advice or outside the guidelines.
Under the heading, Background, it states:
The ethical and legal principles that underpin healthcare and health law both emphasise the importance of respecting the autonomy and rights of individuals to weigh risks and benefits according to their personal needs and values and make independent decisions. A woman in the care of midwives may, at times, choose not to accept a care pathway as recommended in the guidelines. It is also possible that a woman receiving midwifery care may either choose care that the midwife has determined is beyond her ability to safely manage within her scope of practice, or decline care that the midwife considers essential for the provision of safe care.
It provides that midwives are responsible for, amongst other things, providing information about the risks and benefits of any aspect of care provided and any alternative approaches. Under the heading “In the first instance,” it provides:
When a woman chooses care outside the recommendations provided in the guidelines, the midwife must attempt to discuss with the woman and with any hospital staff through identified channels where applicable, the risks and benefits of the woman’s decision. It is important to explore available options and possible resolutions within midwifery professional standards to address the woman’s needs. If this does not resolve the issues to the satisfaction of both the woman and midwife, the following approach is recommended.
It then goes on to provide, if the matter remains unresolved, as follows:
If a midwife advises a woman that a certain course of action should be followed in order to comply with midwifery standards of practise, and the woman declines to follow that advice, the midwife should:
(1)Advise the woman about the recommended guideline and the reasoning and evidence behind the guideline, ensuring that risks are neither understated nor overstated.
(2)Support the woman to access relevant high quality, unbiased evidence-based information.
(3)Consult with another midwife and/or a medical practitioner.
(4)…
(5)Document the advice, process and outcomes of the decision and record relevant details. The ACN recommends using the record of understanding provided in appendix B.
(6)Provide a reasonable amount of time for the woman to consider the information and advice given to her before discussing and documenting the woman’s informed decision.
Under the heading “Continuing or discontinuing care when a woman chooses a course of action outside the guidelines,” it observes that the decision to continue or discontinue care when a woman has chosen a course of action outside midwifery standards of practise is a serious one. Then, importantly, this is said:
The impact on the woman should also be considered. Midwifes should express clearly that if the woman continues with care with the midwife in any form, the midwife’s continued care does not mean she or he endorses the woman’s decision to choose a pathway of care that carries increased risk of harm to their the woman or her baby.
These matters are all reflected in the record of understanding. They resonate in the questions of both the woman and the midwife to which I have referred.
In my view, the analysis which I have performed above of the record of understanding entered into between Ms Oglesby and IC demonstrates that the intent of the guidelines and Appendix A was not met. In my view, it is clear that Ms Oglesby did not engage with IC as intended. She did not provide IC the necessary information in a way which would satisfy Ms Oglesby that IC had been supported in her decision-making. It is not to the point that IC may not have been receptive to information and advice. Far from absolving the midwife of the need to be satisfied that the patient is making a timely informed decision, it heightens the need to do so.
Ms Oglesby’s evidence about those matters demonstrates that she was content to proceed knowing that IC was not listening to any advice given or considering the information provided. The decision to continue care in such circumstances must be questioned.
The woman’s right to choose must be respected; but it is a right to an informed choice. It is not to be equated with a right to proceed in ignorance of the facts and risks.
Mrs Walsh states the matter succinctly in her report. She says:
Whether or not processes for obtaining informed consent are adequate can be very difficult to determine in any healthcare interaction. In order for a person to provide true informed consent or refusal for procedures or treatments, they need to be provided with full explanations about the procedure and about all other treatment options available as well as the risks and benefits of all options. The information should be explained in language the client can understand in a non-biased way without coercion and accompanied by written material if possible. The person making the decision should have an opportunity to ask questions and allowed time to consider the options available to them.
It is only if a woman has made a truly informed decision that one could have confidence in her decision-making when in labour, such as occurred on 29 November 2013.
The circumstances of PR are no better. It is true that PR did gain an understanding of the risks, but this was only because she engaged with the hospital. She could have taken the course taken by IC and failed to engage at all. Counsel for Ms Oglesby referred repeatedly to the hospital records to establish that PR made an informed decision; but this completely misses the point. He was unable to demonstrate that Ms Oglesby informed PR’s decision-making. The records concerning PR are quite worrying in this regard.
Unlike IC, PR and Ms Oglesby did not complete parts 1 and 2 of the record of understanding. In those circumstances, part 3 becomes a solemn farce. On 13 January 2014, PR declared that she had read parts 1, 2 and 3.1 of the record of understanding. She declared:
I have had the opportunity to ask questions and discuss possible alternatives. I am satisfied that my questions have been answered. I acknowledge that my midwife has concerns that we have not been able to resolve and I agree to continue care by the midwife on the terms stipulated above. I understand that I am free to change my mind at any time and I will notify my midwife in that event at the earliest opportunity.
In the absences of parts 1 and 2, the concerns said to be held by the midwife and unresolved are completely unidentified. Of course, by 13 January 2013, PR had already given birth. The only conclusion to draw is that the process dictated by Appendix A of the ACM guidelines had not been followed at all. In order for such an agreement to serve its purpose, it is necessary for it to be entered into well before the expected birth. It is also necessary for there to be a plan for further management. That is the purpose of part 2. If such a plan is not put in place on a timely basis, it will be of very little, if any, practical value.
In those circumstances, one could not have confidence that the matters which PR declared were accurate. That she may have believed them to be accurate is not to the point. Belief that there is nothing else to know is often a function of a state of ignorance.
There is another version of the one page record of understanding. Troublingly, it bears a different date: 3 January 2014. It would appear the date has been altered. Ms Oglesby denies having done so. Apart from the amendment of the date, the following has been added into the document which, by its date, purports to be earlier in time than the less complete 13 January version: ‘Conditions upon which midwife may revisit the decision to continue care: any other risk factors that may present themselves between now and term plus 14.’
Ms Oglesby was the author of that additional note. That additional entry could only be made to appear as though it had some utility if the date of the document was also altered. If the date remained unaltered, as 13 January 2014, the additional statement would be patently absurd. No other risk factors could present themselves between ‘now and term plus 14’. “Now” would have been term plus 15. There is no record of PR having seen Ms Oglesby on 3 January 2014. The conclusion which must be drawn from this is that Ms Oglesby altered the date to give her additional note apparent meaning.
For the purposes of these proceedings, which are protective in nature, all these matters concerning PR’s record of understanding support the conclusion that women wishing to have VBACs in a home setting and who engage Ms Oglesby may not be properly informed of the considerable risks associated with such a course, and may thus be deprived of their right to make a truly informed decision. That constitutes a serious risk to them.
In my view, it is necessary to take immediate action against Ms Oglesby to protect public health and safety. That immediate action should take the form of conditions on her registration. However, I do not believe that the risk which she poses supports, or warrants, the current conditions.
Indeed, I believe that the current conditions which the Board seeks to maintain may not meet the risk. They leave open the possibility of Ms Oglesby being engaged by a client who wishes to have a homebirth VBAC provided she is directly supervised. If such a woman went into labour in the early hours of the morning, as did IC, and the supervisor was not available, Ms Oglesby would be in an impossible situation. She could not withdraw care at that point, but if she was to attend the woman without the supervisor, she would breach the conditions of her registration, thus placing her continued registration at peril.
Furthermore, the risk which I have identified is a risk that women with particular risks in seeking VBAC in a home setting may not be provided the information which they should be and may thus not make a truly informed decision. That risk is met by burdening Ms Oglesby’s registration with the condition that she not provide midwifery care to any woman wishing to have a VBAC in a home setting. This does not remove the ability of such women to choose that mode of care and method of birth. It will be available to them from other midwives.

Further, it does not burden Ms Oglesby’s registration in respect of the care of other women, for whom no serious risk has been established. The present conditions go well beyond meeting any risk Ms Oglesby presently presents.
The Board has not sought its costs. Ms Oglesby has had some success. It is appropriate that each party bear their own costs of and incidental to the proceedings.
Disposition
The formal orders are:
1. That the following conditions be imposed upon the practitioner’s registration:
a.The practitioner is prohibited from performing or attempting to perform any artificial rupture of the membranes of any woman to induce labour in that woman other than in a hospital.
b.The practitioner is prohibited from providing midwifery care or services to any woman planning a vaginal birth after caesarean section outside of a hospital.
2. There will be no order as to costs.