HEALTH PRACTITIONER REGULATION NATIONAL LAW (NSW) No 86a

NURSING AND MIDWIFERY PROFESSIONAL STANDARDS

COMMITTEE OF NSW
INQUIRY UNDER SECTION 171

FRANCES MAREE BULL

REGISTRATION NUMBER: NMW0001200424, NMW0001200423 (NSW)

STATEMENT OF DECISION

SUPPRESSION ORDERS APPLY

CITATION: HCCC v Bull [2015] NSWNMPSC

PARTIES: NSW Health Care Complaints Commission

(Complainant) represented by Judith Sweeney, Solicitor,
Health Care Complaints Commission.

Frances Maree Bull (Respondent) - represented by

Katherine Doust, NSW Nurses and Midwives’ Association.

TRIBUNAL: Mark Paul (Chairperson)

Deirdre Sinclair (Nurse Midwife Member)
Kathryn Crews (Nurse Midwife Member)
Dr Catherine Berglund (Lay Member)

DATE OF HEARING: 29 and 30 January 2015

DATE OF DECISION: /%\March 2015

 DATE OF ORDERS: March 2015

ORDERS (in summary): The Practitioner is cautioned and reprimanded.

CATCHWORDS: Midwifery - unsatisfactory professional conduct-

midwife in maternity ward of district hospital
assisting with care - failure to assess and interpret
Electronic Fetal Heart Rate Patterns
Cardiotocography - failure to escalate care —
administration of Morphine and intravenous fluids
without medical officer’s order or prescription.

LEGISLATION CITED: Health Practitioner Regulation National Law (NSW)

No86a (National Law) - s139 B, s171(2), clause 7 of
Schedule 5D.

Overview

1. On Thursday and Friday, 29 and 30 January 2015 this Professional Standards

Committee (‘Committee') inquired into a complaint made by the Health Care
Complaints Commission ('HCCC') concerning Frances Maree Bull, a registered
nurse and midwife ('Complaint').

2. The Complaint, dated 11 September 2014, is of unsatisfactory professional

conduct as provided by section 139B(1)(a) of the Health Practitioner Regulation
National Law (NSW) ('National Law'), and relates to the care provided by
Registered Midwife Bull to a mother in labour ('Patient') at the Maternity Ward of
Orange Hospital in the early hours of 16 December 2012. Midwife, RM Ridley,
was assigned as the primary carer of the Patient. RM Bull’s role was in
providing remote support as required by RM Ridley who had been registered as
a midwife for approximately 6 months. At the time, and again in the course of
giving her evidence, RM Bull readily accepted responsibility for her part in the
provision of care to the Patient.

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 3. The HCCC alleged that RM Bull was guilty of unsatisfactory professional
conduct on two occasions in wrongly assessing and interpreting the fetal heart
rate pattern as measured by means of Cardiotocography (‘CTG’) as ‘suspicious’
instead of ‘pathological’. It is also alleged that on two occasions RM Bull failed
to appropriately escalate care for the Patient. Further, that RM Bull authorised,
co-signed, and witnessed the administration of Morphine (a Schedule 8 drug)
without a medical officer’s order or prescription, and also authorised and
checked the administration of intravenous fluids without a medication order.

4. Other than in respect of her assessment and interpretation of the fetal heart rate
pattern on the first occasion, the Committee finds it proved that the conduct of
RM Bull overall and in particular amounted to unsatisfactory professional
conduct. The Committee cautions RM Bull with respect to her first failure to
escalate care. The Committee reprimands RM Bull in respect of: her
assessment and interpretation of the fetal heart rate pattern on the second
occasion; her failure to escalate care on the second occasion; the
administration of the Morphine without authority; and the administration of
intravenous fluids without authority.

The scope of the hearing

5. Ms Judith Sweeney presented the case for the HCCC as the Complainant.
RM Bull was represented by Ms Katherine Doust of the NSW Nurses and
Midwives’ Association. The Committee was greatly assisted by the efficient
presentation of the relevant material, and with the willingness of both
representatives to identify matters on which they agreed and to focus on the
factual matters in dispute.

6. In particular RM Bull, by her written statement, admitted significant aspects of

the subject-matter of the Complaint. On the documentary material presented
the Committee was satisfied to accept those submissions. Accordingly, the
Committee did not need to inquire into those matters (section 171(2) of the
National Law). Even so, the Committee received evidence of all the events of
the morning of 16 December 2012 in order to understand the nature of
RM Bull’s conduct.

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 7. After all the evidence was received and in light of RM Bull's admissions, the
parties proposed and the Committee accepted, that there was no need for the
Committee to first make findings as to unsatisfactory professional conduct
before the parties made submissions as to whether and what action the
Committee might take under section 146B of the National Law.

Suppression orders .

8. On 29 January 2015 the Chairperson of the Committee made a suppression

order in relation to the name of the Patient and that of her baby in accordance
with the provisions of clause 7 of Schedule 5 to the National Law. The names
of the Patient and her baby and any information that may identify them are not
to be published. The names of the Patient and her baby are recorded in the
Schedule to these reasons for decision. Annexure A will only be attached to the
original reasons for decision held by the Registry and must not be reproduced.

9. The Chairperson now makes a suppression order in relation to the names of all
of the Patients appearing in the document headed Ward Register of Drugs of
Addiction which appears at tab 45 of Exhibit HCCC1. The names of those
Patients and any information that may identify them are not to be published.

Evidence before the Committee

10. In support of the Complaint the HCCC tendered two folders which contained a
number of tabbed documents: the complaint with particulars; details of
RM Bull’s registration; a letter of complaint from the Patient; information from
witnesses; clinical notes and reports; correspondence concerning the events;
the HCCC’s investigation materials and investigation report; materials from
Western NSW Local Health District; various policies; and, an expert report from
Robyn Rudner. The two folders were marked HCCC1.

11. The HCCC helpfully supplemented the contemporaneous Partogram and

Cardiotocographies at Tab 11, with clearer copies, and these were added as
Tab 11A.

12. During the course of the hearing the Committee was told about a recently
created adhesive label which assists in the interpretation of CTG fetal heart rate

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 patterns. This reflects the ‘Between the Flags' concept because of its yellow
and red colouring. A copy was provided by the HCCC, and was tendered and
marked HCCC2.

13. This adhesive label had not been developed and was not in use at the time,
although an earlier version of it formed part of the electronic fetal heart
monitoring records of 16 December 2012 included in the Tab 11A documents.
To the Committee the new guide was clearer and easier to read than the
version in use at the time. The new guide corrected some typographical errors:
'or' for ‘for’ under the VARIABILITY column; and ‘is’ for ‘in' under the
ACCELERATIONS column. It was not suggested that the errors in particular
words or the related phrases had any bearing on RM Bull’s decisions. Another
change was moving the term ‘Early decelerations’ from the category of non­
reassuring to category of re-assuring within the matrix. That change reflected
RM Bull’s practice and understanding at the time.

14. On behalf of RM Bull Ms Doust tendered a folder containing: a statement of

RM Bull of 19 December 2014; her curriculum vitae, to which was added an
updated list of RM Bull’s training; correspondence with Jenny Soar and Danielle
Syme, both professional work colleagues of RM Bull providing a reference; and
a Performance Appraisal and Performance Plan recording a 12 month
workplace program that RM Bull had undertaken following the events of 16
December 2012 - marked Respondent!.

15. Ms Rudner, RM Bull and Ms Soar each gave evidence under oath on 29
January 2015, and on 30 January the Committee heard submissions on behalf
of the HCCC and RM Bull.

The Complaint

16. The Complaint is that RM Bull is guilty of unsatisfactory professional conduct of

the kind described by section 139B(1)(a) being that RM Bull:

engaged in conduct that demonstrated the knowledge, skill or judgment

possessed, or care exercised, by the practitioner in the practice of

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 midwifery was significantly below the standard reasonably expected of
a practitioner of an equivalent level of training or experience.

17. The HCCC particularised the unsatisfactory professional conduct as follows:

1. On 16 December 2012, the Practitioner inaccurately assessed and

interpreted the Cardiotocography (‘CTG’) performed between the
hours of 0340 and 0425 as ‘suspicious’.

2. On 16 December 2012 between the hours of 0340 and 0425, the

Practitioner failed to appropriately escalate care for Patient A in
circumstances where:

a) the CTG performed between the hours of 0340 and 0425

indicated a reduced variability, the presence of decelerations and
a lack of accelerations;

b) RM Ridley had documented the CTG performed between the

hours of 0340 and 0425 as showing a decreased variability.

3. On 16 December 2012, the Practitioner inaccurately assessed and

interpreted the CTG performed between the hours of 0510 and 0530
as ‘suspicious’.

4. On 16 December 2012, between the hours of 0510 and 0530, the

Practitioner failed to appropriately escalate care for Patient A in
circumstances where:

a) the CTG performed between the hours of 0510 and 0530

indicated a reduced variability, the presence of decelerations and
a lack of accelerations;

b) RM Ridley had documented the CTG performed between the

hours of 0510 and 0530 in the CTG assessment and in
Patient A's progress notes as "difficult to determine baseline at
times".

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 5. On 16 December 2012, at 0225 the Practitioner authorised, co signed
and witnessed the use of the intramuscular administration of
Morphine, a Schedule 8 Drug, to Patient A without a medical officer's
order or prescription.

6. On 16 December 2012, between the hours of 0400 and 0530 the

Practitioner authorised and checked the administration of intravenous
fluids to Patient A without a medication order.

18. The criticism made in particulars 1 and 3 is that instead of assessing the fetal
heart rate pattern as suspicious RM Bull should have assessed the fetal heart
rate pattern as pathological. Although not contained in the particulars it was the
position of the HCCC, and understood by RM Bull, that the appropriate
escalation of care was that RM Bull should have contacted the on-call obstetric
registrar or at least a medical practitioner.

19. Whilst the particulars arise out of a common series of events they can be
understood as being six distinct aspects of RM Bull’s conduct that morning,
even if particulars 1 and 2 are related, as are particulars 3 and 4.

20. As previously mentioned RM Bull admitted much of the subject-matter of the

Complaint Material, being particulars 2, 3, 4, 5 and 6 (paragraphs 47 to 53 of
her statement). RM Bull did not admit the first particular, being the allegation
relating to the assessment of the CTG undertaken between the hours of 03:40
and 04:25.

21. Given the admissions made much of the attention of the Committee was
directed towards whether the admitted matters, and the first particular if proved,
amounted in whole or in part to unsatisfactory professional conduct.

The CTG

22. The phrases ‘CTG’ or 'CTG traces’ were commonly used in these proceedings
as a shorthand term for ‘the fetal heart rate pattern’. However, the CTG is a
machine that allows the fetal heart rate to be electronically recorded and
measured, and then printed on a chart, which in turn can then be used as an
assessment of fetal well-being.

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 23. The CTG machine produces a charted paper print out that is a continuous time-
stamped record of the fetal heart rate over a period of time. The chart also
indicates maternal contractions and contains other information. The lines on
the chart can be read so as to make an assessment of the fetal baseline
heartbeat, whether there is variability of the baseline, and whether there are
decelerations and accelerations. Each of these measures can be assessed as
reassuring, non-reassuring or abnormal. A midwife can then use the measures
and the assessments of the fetal heart rate to make a judgment as to the
appropriate treatment to be provided to the mother and the baby during labour.

24. To assist in that process a form is attached to the chart. The form includes a
matrix of different descriptive features of the fetal heart rate, combined with
various quantitative and qualitative measures of the fetal heart rate. By making
notes within the matrix of the different assessments the midwife is led to an
overall assessment of whether the fetal heart rate patterns is to be categorised
as normal or suspicious or pathological. A suspicious or pathological
assessment prompts escalation of care. The form includes a section for
recording the ‘ACTION TAKEN’.

25. Once a continuous electronic fetal heart rate pattern is in progress assessments
are recorded in the Patient’s clinical notes by way of a printed adhesive sticker
that requires the recording of very similar, but not identical information to that
recorded in the form and matrix attached to the CTG chart.

The events

26. The particulars of the complaint do not tell the story of what happened. In light
of RM Bulls’ admissions it is not necessary to traverse the events in detail. It is
sufficient to record that the Patient attended the Maternity Ward of Orange
Hospital at about 9am on 12 December 2012. RM Bull assessed the Patient
and recorded the fetal heart rate pattern by CTG. The Patient was not then in
labour, and after further review she was advised to return for a clinic
appointment due on 17 December, or earlier if she had concerns.

27. The Patient again visited the Maternity Ward at 08:30 on 15 December, was
seen by another midwife, and then went home. At 00:30 on 16 December the

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 Patient returned to the Maternity Ward in labour. RM Ridley, then a registered
midwife for about six months, was assigned to provide care for the Patient in the
Delivery Suite. RM Bull was on general duty in the Maternity ward and was
looking after 17 Patients, mostly mothers and babies. RM Bull was also
available to assist and provide advice to RM Ridley as required. RM Bull had
over 30 years experience as a nurse, and had been awarded a Graduate
Diploma in Midwifery in 1995. RM Bull said she was busy and was kept
occupied throughout the night. She also offered several times to relieve
another senior nurse/midwife rostered on in the special care nursery area, but
this was not needed on this shift. RM Bull did not claim that her conduct
concerning the Complaint was affected by her workload.

28. RM Ridley commenced an electronic fetal heart rate pattern recording from
about the time the Patient arrived, and that recording was continued until about
01:05 when it was discontinued so that the Patient could use the toilet.
RM Ridley assessed the electronic fetal heart rate pattern recording as 'normal’,
which was confirmed by RM Bull. This pattern was recommenced and
continued throughout the night until the morning - RM Ridley interpreted the
electronic fetal heart rate pattern recording, completed the form and matrix, and
then made an assessment if the fetal heart rate was
normal/suspicious/pathological. RM Bull would then review the electronic fetal
heart rate pattern recording read RM Ridley’s notes on the form and matrix, and
make her own assessment of whether the fetal heart rate was
normal/suspicious/pathological and co-sign the form.

29. At 02:30 the Patient was becoming distressed during contractions and
requested morphine. Although it was RM Ridley who administered the
morphine, RM Bull participated in the administration of the morphine in that she
checked out witnessed and co-signed the use of the Morphine, a Schedule 8
drug.

30. RM Ridley re-commenced the continuous fetal heart rate pattern recording at
about 03:40. Tab 11AofHCCC1 contains a copy of that continuous fetal heart
rate patterns from 03:40 until about 06:25. At about 04:00 in the early morning
RM Ridley assessed the fetal heart rate pattern as suspicious and called

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 . RM Bull who attended the Delivery Suite. RM Bull agreed the fetal heart rate
pattern was suspicious, and in doing so did not therefore assess it as
pathological. RM Bull inserted a cannula and with RM Bull’s approval
RM Ridley administered intravenous fluids to the Patient. RM Bull noticed signs
of improvement in the fetal heart rate pattern from soon after 04:25 which to her
suggested the fetal heart rate pattern was no longer suspicious and was now
normal

31. At about 05:30 RM Ridley noticed that from about 05:10 the electronic fetal
heart rate pattern recording had recorded a single prolonged deceleration in the
fetal heart rate. RM Ridley then assessed the electronic fetal heart rate pattern
recording suspicious and noted that it was difficult to determine the baseline at
times. About that time or perhaps later on in the morning (from the evidence it
is not clear when) RM Bull also made an assessment of that reading of the
electronic fetal heart rate pattern recording as suspicious, and thus in doing so
did not assess it as pathological.

32. RM Ridley rang the assistance call bell at 06:30 and RM Bull responded
immediately. Both midwives then provided care to the Patient that is not the
subject of this Complaint. Sadly, shortly before seven o’clock that morning the
child was stillborn.

33. In the circumstances, did the conduct of RM Bull, at any particular time or
overall, amount to unsatisfactory professional conduct?

Evidence of Ms Robyn Rudner

34. Ms Rudner was called by the HCCC as an expert. There was no objection to
the Committee accepting Ms Rudner as an expert able to provide an opinion of
RM Bull’s conduct, and the Committee received her evidence on that basis. Ms
Rudner provided a report of 23 February 2014, which she updated on 27
February 2014. In her oral evidence Ms Rudner explained the minor change in
her views from the first report to the second.

35. It was Ms Rudner’s view that RM Bull’s conduct in assessing the electronic fetal
heart rate pattern recording performed between the hours of 03:40 and 04:25 as

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 suspicious rather than pathological fell below the standard reasonably expected
of a midwife with RM Bull’s training and experience. It is this allegation that
RM Bull disputes.

36. Ms Rudner said that RM Bull failed to note from the fetal heart rate pattern the
reduced variability in fetal heart rate, and the presence of decelerations and the
absence of accelerations. When questioned Ms Rudner agreed that reading an
electronic fetal heart rate pattern recording was not an exact science, and that
interpretations of the data could be made within a range. It was important to
interpret the electronic fetal heart rate pattern recording accurately including
reduced variability but also take into account the entire clinical picture prior to
making a judgment.

37. In accordance with the NSW Health Maternity Fetal Heart Rate Monitoring
policy PD2010_040 (Ex HCCC1, Tab 26, page 11 as numbered in the exhibit,
but page 6 in the document) the presence of ‘typical variable decelerations’
combined with the 'absence of accelerations’ were two non-reassuring features
that required an assessment of the fetal heart rate pattern being pathological,
and thus warranting an escalation of care. Ms Rudner expressed the opinion
that given her training and experience RM Bull should have been able to
interpret the electronic fetal heart rate pattern recording and reach that
conclusion. PD2010_040 provides that the absence of decelerations or early
decelerations is reassuring, whereas variable or prolonged decelerations are
non-reassuring.

38. When asked about the administration of the Morphine an hour or so earlier
Ms Rudner agreed the effect of the Morphine could have altered the electronic
fetal heart rate pattern recording but expressed the view that the possible effect
of the Morphine was not a reason to be cautious about making an assessment
between suspicious and pathological, but rather a reason to escalate care to a
medical practitioner and advise the practitioner of the administration of
Morphine.

39. In her report and in her evidence Ms Rudner agreed that the care which
RM Bull provided at that time, changing maternal position and initiating
intravenous fluids, demonstrated good clinical decision-making. Change of

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 maternal position and intravenous fluids is also supported by the Local Health
District’s policy Maternity- Fetal Heart Rate Monitoring, WN_PD2011_146 and
the reference to the Royal College of Obstetrics and Gynaecology Clinical
Practice Algorithm. However Ms Rudner was strongly critical of RM Bull's
failure to consult and obtain the approval of the on-call obstetric registrar or
another medical practitioner for the administration of the intravenous fluids.

40. It was Ms Rudner’s view that in each of the particulars RM Bull’s conduct fell
significantly below what could reasonably be expected of RM Bull given her
level of training and experience. She was critical of RM Bull’s conduct with
respect to the interpretation of the electronic fetal heart rate pattern recording
and strongly critical of her conduct in administering the Morphine and the
intravenous fluids without approval of a medical practitioner.

41. The Committee was reminded, and the Committee accepts, that it is not bound
to accept Ms Rudner’s opinions. The Committee may have regard to its own
general expert knowledge and experience regarding the standard of conduct to
be expected of a midwife with the experience and training of RM Bull. Although
greatly assisted by the opinions of Ms Rudner, it is for the Committee to make
its own assessment. See, for example Kalil v Bray [1977] 1NSWLR256 at 262,
Slezak, Dr Peter [2011] NSWMPSC (14 September 2011) paragraphs 98-99,
and HCCCvPhung (No.1) [2012] NSWDT 1 (10 July 2013).

42. Similarly, the Committee should not simply take RM Bull’s admissions of
significant aspects of the subject-matter of the Complaint as sufficient in and of
themselves to make findings of unsatisfactory professional misconduct. In
order to make findings the Committee must be satisfied that the conduct
amounted to unsatisfactory professional conduct.

Evidence of RM Bull

43. RM Bull provided a statement to the Committee of 19 December 2014 in which

she admitted much of the subject matter of the Complaint and it is not
necessary to review all of her evidence.

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 44. It is salutary that RM Bull accepts the criticisms of her performance on that night
and acknowledges that, in some aspects, her conduct fell below expectations.
She said her failure to escalate care was a gross error of judgment.

45. RM Bull could offer no particular explanation for not seeking the approval of a
medical practitioner before the administration of the Morphine or intravenous
fluids. In her statement she said that she had often given a different S8 drug
under a standing order, but there was no such order for Morphine; it was not
something she had done before. She also said in her statement that in the
absence of a medical officer on site, over time, it had become what she termed
'a cultural practice in Maternity’ to give intravenous fluids. However, when
giving evidence she said, “I don’t know why I didn’t call.” She said it (not
calling) was not something she would do again. The Committee accepts her
evidence that she would not do so again, but would always seek approval in
accordance with any protocols or requirements.

46. RM Bull also gave evidence of her ongoing employment with Orange Health
Service. She is now a Clinical Midwife Specialist in the Orange Midwifery
Group Practice. Following the events her employer arranged for her to
undertake a lengthy formal supervised Performance Appraisal and Performance
Plan, which she successfully completed. The plan was supported by further
discussions with her supervisor. She has undertaken routine and additional
training in the last two years, and both on-line and periodic assessments in the
clinical environment.

47. In responding to the Complaint RM Bull had reviewed the electronic fetal heart
rate pattern recordings. The evidence she gave in acknowledging her errors
demonstrated she now had an improved understanding and appreciation of the
electronic fetal heart rate pattern interpretation, and was also clearer about the
correct classification of fetal heart rate, and the circumstances where escalation
of care was required.

48. RM Bull now sees that her original reading of the electronic fetal heart rate
pattern recording was poor. She assessed the variability as greater than or
equal to 5bpm (beats per minute) and had marked the matrix accordingly but
without making assessment of the change since admission. RM Ridley had

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 recorded in the clinical notes a decrease in variability since admission and
RM Bull said she had read the notes. However her assessment was made on
her point in time reading of the CTG rather than also taking into account the
changes since admission. RM Bull now sees the error in that approach.

49. RM Bull also said that she thought the Morphine could be having an effect on
the electronic fetal heart rate pattern recording. Also, intravenous fluids had just
been administered and RM Bull said she then observed from the electronic fetal
heart rate pattern recording that variability had increased. RM Ridley recorded
in the clinical notes that at 04:50 there was good variability. RM Bull appears to
have not been concerned about any absence of accelerations because, as she
said, the fetal heart rate pattern was otherwise normal in that the base line was
110bpm, variability was 5 bpm, and any decelerations were early decelerations.
In making this assessment RM Bull did not explicitly make any observation
about accelerations being present or not. RM Bull says she assessed the fetal
heart rate pattern as suspicious because the baseline was difficult to determine,
as recorded in the clinical notes.

50. These observations do not accord with the entries made on the CTG matrix or
on the related sticker in the clinical notes. The matrix records ‘Variable
decelerations’ and accelerations being present. The sticker records ‘Nil’
decelerations and accelerations being present.

51. Looking back RM Bull says she should have escalated care. On review of the
fetal heart rate pattern she says there were no accelerations. That information
combined with the reduction in variability from admission should have prompted
her to escalate care. A reduction of variability in beats per minute over a period
of time does not appear as an item on the printed matrix but it is mentioned in
the notes to Table 2 in paragraph 3.3 of PD2010_040 as a factor to be
considered. In giving this evidence of the importance of also considering the
reduction in variability RM Bull showed she understood the importance of
considering not just the score on the CTG matrix, but also the changing
condition of the Patient and baby.

52. RM Bull agreed that from about 05:10 the fetal heart rate pattern showed a
single prolonged deceleration in fetal heart rate, longer than three minutes.

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 That deceleration in itself was abnormal and should have been assessed by her
as pathological. There was no matrix completed for this portion of the fetal
heart rate pattern. However a sticker with the time stamp 05:30 and containing
similar information appears in the clinical notes. The position of the sticker in
the clinical notes is out of chronological order, and comes after an entry at
20:00hrs, in the evening of 16 December 2012.

53. The sticker is signed by RM Bull, but she was unclear in her evidence as to
when she saw the electronic fetal heart rate pattern recording to which the
sticker relates or at what time she signed the sticker. The overall assessment
was recorded as suspicious. The sticker does not contain any record of an
assessment of decelerations even though there is a field to record that
information. RM Bull could not explain the records, but did agree that the fetal
heart rate pattern was pathological and she should have escalated care.

54. RM Bull agreed that there was nothing in what was required of her on 16
December 2012 that was not within her level of training and experience.

55. During the course of the evidence the Committee was handed an updated
schedule of training and development undertaken in the last few years. RM Bull
has continued with the usual and expected learning and development, and she
has also undertaken additional study, particularly related to reading and
interpreting electronic fetal heart rate pattern recordings.

56. RM Bull said she continues to be employed and practice as a midwife. She has
the support of her employer. Two colleagues, Danielle Syme and Jennifer
Soar, provided written references on her behalf. Ms Soar gave evidence.

Evidence of Jennifer Soar

57. Ms Soar is a midwife and has known RM Bull since 2007, initially as a
colleague, and from November 2012 until June 2014 as her line manager.
Since June 2014 they have worked together in clinical practice in the Orange
Midwifery Practice Group.

58. Ms Soar gave evidence of RM Bull's deep understanding, regret and

acceptance of her role in the events of 16 December 2012. RM Bull has

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 willingly taken on every task required of her by way of practice improvement,
increased supervision, performance improvement, professional updating, and
learning and development to ensure her practice and care has improved.

59. Ms Soar says her work, although always excellent, is now of the highest
standard. Her view of RM Bull's interpretation of fetal heart rate patterns was
that it was now 'absolutely meticulous’. She saw no need for RM Bull to be
supervised in her work in any way other than usual. Ms Soar was of the view
that RM Bull could be held out to Patients and the community as a person
worthy of their confidence.

Findings of unsatisfactory professional conduct

Particular 1

60. The criticism contained in particular 1 is that of assessing the fetal heart rate
pattern as suspicious rather than pathological. The use of these terms or labels
derives from PD2010_040 and is reflected in the CTG matrix form. The terms
are an important means of standardising communication and avoiding
uncertainty.

61. The path to the use of the terms follows from the classification of the different
assessments of the electronic fetal heart rate pattern recording as reassuring,
non-reassuring or abnormal. Just one non-reassuring feature of any kind is
considered suspicious. And two or more non-reassuring assessments or just
one abnormal assessment is considered pathological. If all other features are
otherwise normal then the absence of accelerations is to be treated as
reassuring. But if one other factor is non-reassuring then the absence of
accelerations is also to be considered non-reassuring, and accordingly the
overall assessment is pathological (because there are two or more non­
reassuring factors).

62. Ms Rudner says the first electronic fetal heart rate pattern recording was
pathological because it showed reduced variability, the presence of
decelerations, and lack of accelerations. Implicit in that view was that a
reduction in variability is non-reassuring. But even aside from that assessment

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 the presence of decelerations and lack of accelerations were two non­
reassuring features and hence the electronic fetal heart rate pattern recording
was pathological.

63. RM Bull accepted that the reduced variability was a factor that should have
prompted escalation of care, but it was also the factor that led her to assess the
electronic fetal heart rate pattern recording as suspicious. But reduced
variability aside, from RM Bull’s evidence it seems she would have assessed
the electronic fetal heart rate pattern recording as normal on the basis that the
baseline was 110bpm, variability was 5 bpm, and any decelerations were early
decelerations. On the sticker RM Bull confirmed ‘Nil’ decelerations, but on the
matrix it is the phrase ‘Variable decelerations’ that has been circled.
Nevertheless her evidence was that the electronic fetal heart rate pattern
recording showed that the decelerations were early decelerations.

64. The Committee is of the view that the decelerations recorded in the fetal heart
rate pattern recording at that stage could fairly be judged as either early
decelerations or as variable decelerations. Although on the matrix early
decelerations are placed in the non-reassuring category, in both PD2010_040
and the new colour coded fetal heart rate pattern interpretation stickers which
correlate with the Between the Flags concept, early decelerations are placed in
the reassuring category. On this basis the absence of accelerations need not
have been of concern provided the other factors were reassuring.

65. Even if RM Bull was wrong in her assessment of the decelerations or made an
error, the Committee does not believe that her conduct in that regard fell
significantly below the standard expected. The reading of the electronic fetal
heart rate pattern recording is not purely mechanical and there remains the
need for the midwife to exercise a judgment as to what the electronic fetal heart
rate pattern recording indicates. Although RM Bull’s assessment of the
electronic fetal heart rate pattern recording for the period 03:40 and 04:25 may
have been wrong the Committee does not find that her conduct, in this regard,
was not significantly below the standard reasonably expected and therefore was
not unsatisfactory professional conduct as defined by the National Law.

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 Particular 2

66. Both Ms Rudner and RM Bull held the view, with which the Committee agrees,
that a decision to escalate care should take into account more than just the
electronic fetal heart rate pattern recording matrix assessment. In this case
there had been a decrease in variability in the fetal heart rate since admission
even though it was still not below 5 beats per minute and therefore remained
reassuring. Had the variability been below 5 bpm it would have been assessed
as non-reassuring. But the decrease in variability to 5 bpm was an additional
piece of information that warranted escalation of care. The Committee is of the
view that the escalation required was consultation with the on call obstetric
registrar or another medical practitioner, and both Ms Rudner and RM Bull
agreed.

67. Ms Rudner referred to the Australian College of Midwives National Midwifery

Guidelines for Consultation and Referral 2009 point 8.1.13 which recommends
consultation. Also the policy PD2010_040, at paragraph 3.5, requires a call for
assistance and notification to a medical practitioner. In failing to escalate care
following her assessment of the fetal heart rate pattern for the period 03:40 to
04:25 the Committee finds RM Bull’s conduct fell significantly below the
standard reasonably expected.

68. Even though she did not escalate care, the treatment which RM Bull afforded
the Patient demonstrated good clinical decision-making - the change of
maternal position and administration of intravenous fluids. Ms Rudner agreed.
The care that RM Bull provided at this time is relevant to the Committee's
consideration of what action under section 146B of the National Law might be
appropriate upon the finding of unsatisfactory professional misconduct.

Particular 3

69. The Committee finds that exercise of judgment by RM Bull in assessing the fetal
heart rate pattern taken between 05:10 and 05:30 as suspicious rather than
pathological fell significantly below the standard that could be reasonably
expected of RM Bull given her level of training and experience. RM Bull
admitted her failing, and gave evidence that had she properly assessed the

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 electronic fetal heart rate pattern recording she would have seen the prolonged
deceleration, and would then have made the assessment of pathological.
Ms Rudner was critical of RM Bull’s exercise of judgment, and the Committee
agrees with that criticism.

70. The Committee has concerns as to when it was that RM Bull made her
assessment of the electronic fetal heart rate pattern recording and what she
took into account. The clinical notes do not provide an adequate record of what
happened, or when things happened. RM Bull signed the sticker in the clinical
notes but without marking her assessment of decelerations, even though the
sticker has a location for recording decelerations. Had she seen the prolonged
deceleration, her overall assessment would have been pathological.

71. Putting aside the prolonged deceleration, in the Committee’s view RM Bull
should have assessed the electronic fetal heart rate pattern recording as
pathological because the electronic fetal heart rate pattern recording showed
typical variable (even if not prolonged) decelerations, which are non-reassuring,
combined with an absence of accelerations. The absence of accelerations
becomes non-reassuring if occurring with another non-reassuring feature. The
presence of two non-reassuring features should have prompted an overall
assessment of pathological.

Particular 4

72. In the circumstances of the electronic fetal heart rate pattern recording being
pathological there is no doubt that RM Bull should have escalated care by
contacting the on-call obstetric registrar. Even RM Bull's then assessment of
the electronic fetal heart rate pattern recording as suspicious should have led to
an escalation of care. Any considerations thought to militate against escalation
(the possible effects of the Morphine on the electronic fetal heart rate pattern
recording and the improvement in variability following the use of intravenous
fluids) had passed. At this point the decrease in variability, the difficulty of
identifying the baseline and the passage of time should have alerted RM Bull of
the urgent need to escalate care.

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 73. In failing to escalate care the Committee finds that RM Bull failed to exercise
care in a way that was significantly below the standard reasonably expected.

Particular 5

74. RM Bull could offer no explanation for her failure to follow required procedures
before the administration of the Morphine; she should have sought approval
from a medical practitioner. Patients and the public generally are entitled to
expect that a midwife will not be involved in the administration of a drug,
especially an S8 drug such as Morphine, except in accordance with a standing
order. RM Bull failed to do so. The Committee finds that RM Bull’s conduct
was significantly below the standard reasonably expected.

Particular 6

75. Similarly RM Bull fell below the expected standard in the administration of the
intravenous fluids in her failure to seek medical authorisation. Yes, the
administration of the intravenous fluids may have demonstrated good clinical
decision-making, but had she sought medical approval the subsequent course
of events may have been otherwise. •

Findings and exercise of powers of the Committee

76. The Committee finds that the subject matter of the Complaint as encompassed
by particulars 2, 3, 4, 5 and 6 to have been proved. This finding follows from
the evidence, and also that RM Bull admitted these components of the subject
matter of the Complaint

77. The Committee is to give paramount consideration to the health and safety of
the public, but it also has a role in maintaining public confidence in the
profession of midwifery and maintaining the reputation of the profession: HCCC
v Litchfield (1997) 41 NSWLR 630. The decision of the Committee will have a
general deterrent effect for other members of the profession and also
demonstrate to the public that it can have confidence in the standard of care
provided by midwives.

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 78. The HCCC submitted that RM Bull should at least be reprimanded, as a
reprimand would demonstrate to the public that the conduct was below the
standard expected. And further that the public can be confident that departures
from expected standards will have the consequence of a sanction.

79. Ms Doust submitted that in light of RM Bull’s admissions, the demonstration of

her better understanding of electronic fetal heart rate pattern interpretation her
subsequent training, and the continuing support of her employer and colleagues
no further action was required to protect the public, although a caution may be
of benefit.

80. The Committee considers that there is no utility in the making of orders in
addition to the caution and reprimand, and no particular benefit for the
protection of the public in doing so. The events of 16 December 2012 aside,
Ms Bull continues to be a midwife of good standing, she has the respect of her
colleagues and she possesses the necessary experience and training to safely
practice midwifery.

81. The Committee considers that RM Bull’s conduct as summarised in particulars

3, 4, 5, and 6 of the Complaint warrants reprimand. In her provision of care to
the Patient RM Bull’s conduct fell significantly below the standard reasonably
expected of a practitioner of her equivalent level of training and experience.
RM Bull now sees and understands the errors she made at the time. Whilst she
is unable to explain why she made the mistakes that she did, the Committee is
confident that the flaws in her conduct identified by the Complaint have been by
RM Bull through her efforts at self-improvement, her willing participation in the
Performance Improvement process, and the additional training she has
undertaken.

82. RM Bull has corrected her weaknesses in interpreting the electronic fetal heart
rate patterns she is now clear about when to escalate care and the importance
of doing so, and said under oath she will always seek the required approvals for
any medical treatment. The evidence of RM Bull’s practice and training since
the events of 16 December 2012 supports the conclusion that her level of care
is now of the standard reasonably expected of a midwife with her level of
training and experience.

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 83. The conduct as summarised in particular 2 of the Complaint fell significantly
below the standard reasonably expected of a practitioner of her equivalent level
of training or experience; the appropriate response is a caution. In issuing a
caution the Committee wishes to draw to RM Bull’s attention the importance of
considering all aspects of the Patient’s history in deciding to escalate care. The
completion of the matrix and the sticker is not just an exercise in checking the
observations of another midwife or confirming the record, but the opportunity to
make an independent, contemporaneous judgment of the electronic fetal heart
rate pattern recording and any changes over time and then decide on
appropriate care. .

84. The Committee has concerns about the quality of RM Bull's recording of her
electronic fetal heart rate pattern recording observations in the CTG matrix and
the lack of clarity about when she reviewed the electronic fetal heart rate pattern
recording and when she completed the matrix and the sticker. Instead of
considering all the available contemporaneous information it is likely RM Bull
relied too much on just her personal assessment in making her decision not to
escalate care. RM Bull is cautioned to keep in mind that an electronic fetal
heart rate pattern recording and the related CTG matrix and sticker are more
than matters of procedure but are valuable tools to assist her in determining the
best clinical care.

85. This statement of decision will be given to the HCCC, RM Bull and the Nursing
and Midwifery Council of NSW. As the Council will be making the Committee’s
statement of decision publicly available there is no need for the Committee to
give the statement of decision to any other person, see 171 E(3) of the National
Law.

Action pursuant to section 146B of the National Law

86. In accordance with sec 146B of the National Law the Committee cautions
RM Bull with respect to her conduct, as described in particular 2, in failing to
appropriately escalate care of the Patient.

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 87. In accordance with sec 146B of the National Law the Committee reprimands
RM Bull with respect to her conduct, as described in particular 3, 4, 5 and 6,
being:

a) Inaccurately assessing and interpreting the electronic fetal heart rate

pattern recording

b) Failing to appropriately escalate care;

c) Authorising the use of Morphine without approval; and

d) Authorising the use of intravenous fluids without approval.

Mark Paul
Chairperson
Date i/s .
/f A-W-^ AC If

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