Health Ombudsman v Peller[2023] QCAT 472

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Introduction

1. [1]
   This is a referral of a health service complaint against Linda Ann Peller (respondent) pursuant to sections 103(a) and 104 of the Health Ombudsman Act 2013 (Qld) (‘the HO Act’) by the Director of Proceedings on behalf of the Health Ombudsman (applicant).

2. [2]
   This referral relates to the respondent providing private midwifery services to an individual, Patient RB, and her newborn child, Patient SP. The applicant alleges the following:

   1. that between 15 April 2016 to 6 September 2016, the respondent practiced midwifery on a private basis without appropriate professional indemnity insurance arrangements in place, in breach of section 129 of the Health Practitioner Regulation National Law (Queensland) (‘the National Law’) (allegation 1);
   2. that between 15 April 2016 to 6 September 2016, the respondent obtained a restricted drug without a valid endorsement (allegation 2);
   3. that between 15 April 2016 and 3 September 2016, the respondent failed to provide antenatal care to Patient RB at the standard expected (allegation 3);
   4. that between 31 August 2016 to 3 September 2016, the respondent failed to provide clinical care during the intrapartum period to patient RB at the standard expected (allegation 4);
   5. that between 3 September 2016 to 6 September 2016, the respondent failed to provide postnatal care to Patient RB at the standard expected (allegation 5);
   6. that between 3 September 2016 to 6 September 2016, the respondent failed to provide clinical care to Patient SP at the standard expected (allegation 6); and
   7. that between 15 April 2016 to 6 September 2016, the respondent failed to maintain appropriate clinical records at the standard expected (allegation 7).

3. [3]
   The respondent admits all seven allegations. The parties have jointly filed and rely on a Statement of Agreed and Disputed Facts. At the time of hearing, the parties informed the Tribunal that there were no longer any material facts in dispute.

Background

4. [4]
   The respondent has completed the following qualifications:

1. a Bachelor of Nursing Science at James Cook University in 1995;
2. a Post Graduate Diploma of Midwifery at James Cook University in 2001;
3. a Drug Therapy Protocol, Sexual and Reproductive Health course at Griffith University in 2002;
4. Certificates I, II and III in sexual and reproductive health at Family Planning Queensland in 2002; and
5. a training course at Hypnobirthing Australia in 2016.

5. [5]
   The respondent was first registered as a nurse in Queensland on 8 December 1995, and from 2010, she was registered as a nurse and midwife with the Nursing and Midwifery Board of Australia.

6. [6]
   On 16 September 2016, the Health Ombudsman decided to suspend the respondent’s midwifery registration pursuant to section 58(1) of the HO Act. On the same day, the Health Ombudsman also issued an interim prohibition order, pursuant to section 68 of the HO Act, prohibiting the respondent from:

   1. providing any health services to pregnant women;
   2. providing any birthing-related services at all; and
   3. providing any peri-natal or post-natal health services to women or babies.

Conduct

Initial consultation

7. [7]
   On 15 April 2016, Patient RB consulted with the respondent and engaged her as a private midwife to provide antenatal care, intrapartum care and postnatal care. Patient RB paid the respondent $3,000.00 for this engagement.

8. [8]
   Patient RB informed the respondent that she wanted a home birth delivery with a midwife and that this was her second baby. The respondent recorded the following notes:

…wants homebirth, states has morbid fear of hospitals but knows will transfer to hospital ? water birth. Discussed Blood tests and ultrasound will have…

9. [9]
   Patient RB informed the respondent that she suffered from hyperemesis gravidarum (severe morning sickness) during her first pregnancy, and that she underwent an induction of labour at 38 weeks and 5 days.

10. [10]
    The respondent told Patient RB that she intended to go away for a short holiday in early September.

11. [11]
    Patient RB’s full-term date fell on or about 16 September 2016.

12. [12]
    The respondent did not arrange for another health practitioner to be available to provide care to Patient RB in the event that the respondent could not provide this care, or to carry out speculum examinations or take swabs for Group B Streptococcal disease.

Professional indemnity insurance

13. [13]
    Pursuant to section 129 of the National Law, registered health practitioners must not practise without appropriate professional indemnity insurance arrangements. Section 284(1)(b) of the National Law provides an exemption to this requirement for midwives practising private midwifery, where informed consent of the patient has been obtained.

14. [14]
    At no time during the treatment period did the respondent hold professional indemnity insurance for her practise of private midwifery. Patient RB was unaware that the respondent did not have professional indemnity insurance and the respondent did not obtain informed consent from Patient RB regarding her lack of insurance.

Antenatal care

15. [15]
    The respondent provided care to Patient RB between 15 April 2016 and 6 September 2016. Between 15 April 2016 and 2 September 2016, the respondent provided antenatal care to Patient RB on 8 occasions. Throughout the treatment period, the respondent completed a Pregnancy Health Record (the record).

16. [16]
    On 31 May 2016, the respondent made the following entries into the record:

1. Included in the Model of Care: “Woman’s model of care “Private Midwife”” and reason for model chosen: “Wants Homebirth”;

2. Included in the Women’s Health History: pap smear details and surgical history;
3. Recorded in the Guidelines for Calculation of estimated Due Date: the due date by ultrasound of 16/9/16;
4. Recorded in the Laboratory results: “Hb g/L 99”; and

17. [17]
    On 31 May 2016, the respondent did not:

1. Complete the fundal height chart;

2. Complete the Edinburgh postnatal depression scale; and

3. Recommend any treatment of action in light of the recorded haemoglobin level.

18. [18]
    On 16 June 2016, the respondent attended on Patient RB, recording the following notes on the record under the following sections:

    1. Visit notes: “Fundas dates…longitudinal lie, cephalic presentation head brim ? LOT P:98”
    2. Birth Preferences: “Knows I might be at work when labour starts. Knows I’m going away beginning September…will have oxytocin injection if bleeding/necessary…wants homebirth water birth”; and
    3. Be Aware: “T’fer to hospital”.

19. [19]
    On 16 June 2016, the respondent did not:

1. record in the record any alternative care arrangements in the event she was away and could not provide the intrapartum care; and
2. record in the record any discussion with Patient RB about alternative care arraignments in the event that she was away or at work and could not provide the intrapartum care.

20. [20]
    On 14 July 2016, the respondent attended on Patient RB, recording the following notes on the record:

BP seated 104/92

Discussed premature labour and need to ring me Can have home birth 36-37/40 onwards

21. [21]
    On 14 July 2016, the respondent did not recheck Patient RB’s blood pressure by taking it again.

22. [22]
    On 14 July 2016, the respondent also completed the Recommended Minimum Antenatal Schedule Checklist for 31 weeks and recorded: “Discussed transfer to hospital – support role only & advocate”.

23. [23]
    On 4 August 2016, the respondent attended on Patient RB and recorded the following notes in the Medical and Obstetric Issues and Management Plan section of the record:

Discussed PPH with [Patient RB’s husband] and [Patient RB]. Discussed risks and management of. Reassured +++ Tfr to hospital if necessary. [Patient RB] has had blood tests but has not gone back to doctors to get results. I advised her last visit and today I need copy of results.

Administration of Oxytocin

24. [24]
    On or about 31 August 2016, the respondent gave Patient RB an unopened box containing 5 ampoules of the drug Oxytocin and asked her to place it in her refrigerator to be used in the case of emergency.

25. [25]
    The respondent did not:

1. obtain a valid prescription so that Oxytocin could be administered to the patient;
2. record in the record that she had provided Oxytocin to the patient; and

3. record any advice or direction to the patient as to the use of Oxytocin.

Intrapartum care

31 August 2016

26. [26]
    On 31 August 2016, the respondent attended on Patient RB and recorded the following on the record under the following sections:

1. Visit notes: “Head down very low- 3/5 ^ brim. [Patient RB] feeling down last few days, tired and emotional. Has lots of vaginal discharge, thick mucus creamy colour. Feels pressure in vagina & bottom.”;
2. Recommended Minimum Antenatal Schedule Checklist: completed the 38 weeks checklist;
3. Subsequent entry to Visit notes: “After leaving [Patient RB] Text me and stated had mucus “plug” with bloody discharge small brownish”;
4. Things you may like to talk about with your GP/midwife/obstetrician/allied health: “31/8/16 37 +5 [Patient RB] having increased vaginal discharge last few days clear mucus. States if get bloody show to let me know. Head low in pelvis. 3/5 ^ brim. Text from [Patient RB] after leaving home visit, had bloody show when going to bathroom.”; and
5. Completed a subsequent undated note: “Knows I am going away for weekend has been planned all year-[Patient RB] aware when she booked in with me. Will call me if anything happens or has concerns. Is adamant will not go to hospital as states her biggest fear is going to hospital”.

27. [27]
    On 31 August 2016, the following text messages were exchanged between Patient RB and the respondent:

28. [28]
    On 31 August 2016, the respondent did not:

1. perform a visual inspection by speculum examination;

2. take swabs for Group B Streptococcal; and

3. arrange any alternative care arrangements in the event she was away and could not provide the intrapartum care.

1 September 2016

29. [29]
    During the evening on 1 September 2016, Patient RB telephoned the respondent and told her that she believed her waters had broken. During this phone call, the respondent advised Patient RB, amongst other things, to remain calm and keep her updated. The respondent also advised Patient RB that “if your waters have broken…chances are you’ll go into labour within the next 24 hours”.

30. [30]
    At 10:47pm on 1 September 2016, Patient RB sent a text message to the respondent stating:

Laying down theres more coming out in bits when baby seems to move my back stll got dull aches no surges yet tho still clear smells sweetish not urine. Ill message if contractions start gonna try and get some sleep x.

31. [31]
    On 1 September 2016, the respondent did not:

1. make any alternative care arrangements in the event she was away and could not provide the intrapartum care; and
2. attend on Patient RB and perform any examination including a visual examination by speculum examination.

2 September 2016

32. [32]
    At about 7:00am on 2 September 2016, the respondent telephoned Patient RB and asked her if she had any contractions to which she advised that she had not. Patient RB told the respondent that she had “lost like um heaps of water I had. I woke up at like 4 am and had to like change my pad because it was soaking yeah”. The respondent advised the patient that the liquid could be vaginal discharge rather than her waters breaking. Patient RB told the respondent that “when I stand up like a big gush comes out after laying down and stuff like um well when I’m laying down”. Patient RB also told the respondent that she was wearing maternity pads and that she had “soaked through 2 of them last night and its all clear like no colour”.

33. [33]
    On the same day, the respondent then attended on Patient RB. Patient RB had saved her maternity pads and had them available for inspection by the respondent. The respondent recorded the following notes about the visit:

2/9 Home visit with Bekki.? SROM – checked pads not amniotic fluid, smelt, urine, sweat etc also had sex. Reassured? Hindwater leak PADs dry and no liquor seen. Baby moving ++ Nil contractions.

34. [34]
    After the attendance, the respondent left Townsville for a planned four-day trip to the Gold Coast.

35. [35]
    At 2:10pm on 2 September 2016, the respondent exchanged the following text messages with Patient RB:

36. [36]
    Patient RB then sent a photograph of two sanitary pads to the respondent and the following text messages were exchanged:

37. [37]
    On 2 September 2016, the respondent did not:

1. make any observations which led her to believe that there had been a spontaneous rupture of membranes;
2. perform any internal examination including a visual examination by speculum examination;

3. make any alternative care arrangements in the event she was away and could not provide the intrapartum care;
4. recommend Patient RB attend a hospital for examination; and

5. consider Patient RB was in labour.

3 September 2016

38. [38]
    At approximately 4:30am on 3 September 2016, Patient RB telephoned the respondent, informing her that “my w-waters have continued to um leak and now I’m getting pretty strong contractions like every or like 2 minutes to like 4 minutes. An they go for about 50 seconds.” The respondent, amongst other things, advised Patient RB to rest and keep her updated.

Postpartum care

39. [39]
    At approximately 6:45am on 3 September 2016, Patient RB gave birth to a baby girl, Patient SP, in a birthing pool. Patient RB’s husband was present during the birth. At approximately 6:50am, Patient RB’s husband telephoned the respondent and informed her that Patient RB had given birth. Later the same day, the respondent spoke to Patient RB over the phone. Patient RB informed the respondent that she had given birth earlier in the morning, that Patient SP weighed 3 kilograms and that the placenta passed at approximately 7:20am. The respondent asked Patient RB to measure Patient SP using a tape measure. The respondent told Patient RB that she was in the process of booking a return flight when Patient RB’s husband called to inform her that Patient RB had given birth.

40. [40]
    The respondent recorded the following notes in the Intrapartum Record section of the record:

3.9.16 Phone call from [Patient RB] @ 4:30 stating woke up from sleep at @400 then contractions started, irregular, some more painful than others, states was sitting on gym ball, reassured and [Patient RB] stated that she would call me back with update, states had small amount of clear fluid on pad and baby was moving. At 0530 I rang [Patient RB] who stated that she was in birthing pool and contractions had increased in intensity but still irregular. Reassured [Patient RB] and I suggested a video link so I could see what was happening and talk through contractions. Tried several times to set up link on my laptop but was unsuccessful. I spoke to [Patient RB’s husband] who then messaged me that [Patient RB] wanted to be left alone that phone calls etc were too distracting, that they would call me if any concerns. [Patient RB’s husband] phoned me at @650 to state that they had baby girl born in the pool a few minutes ago. I spoke to [Patient RB] who was very happy and baby was on her chest crying. I stayed on phone until placenta delivered @ 720 hours. …

I rang [Patient RB] who stated she was in birthing pool and contractions had increased…

I offered to come back to Townsville, but [Patient RB] thought everything was fine and no need to at that stage …

I called [Patient RB] several times on Saturday Sunday and Monday, each time [Patient RB] insisted that her and baby were well, no problems.

41. [41]
    The respondent’s records do not disclose all the times of the conversations or the clinical observations recorded in the Intrapartum Record.

42. [42]
    The respondent completed the Intrapartum Record section of the record, including the following observations dated 3 September 2016:

    1. “Spontaneous rupture of membrane 3/9/16 ??”

2. “SROM date/time”; and

3. Newborn summary, including “Apgar score 5 mins 10” and measurements which included the baby’s weight, length and head circumference.

43. [43]
    The respondent did not conduct a hands on visual assessment of Patient SP on 3 September 2016 and instead recorded the measurements and weight of the baby based on her telephone conversation with Patient RB.

44. [44]
    On 3 September 2016, the respondent did not:

1. make any alternative care arrangements in the event she was away and would not be able to attend in person for the birth of Patient SP;
2. make any other recommendation in the event she was away and would not be able to attend in person for the birth of Patient SP, including to call an ambulance or attend a hospital;
3. perform a visual inspection by speculum examination;

4. take swabs to test for Group B Streptococcal;

5. before the first telephone call at approximately 4:30am, advise or recommend that Patient RB call an ambulance or attend a hospital;
6. advise Patient RB not to birth in the birthing pool; and

7. did not arrange to return to Townsville on 3 or 4 September 2016, so that she could examine Patient RB and Patient SP following the birth.

6 September 2016

45. [45]
    On 6 September 2016, the respondent returned to Townsville and attended on Patient RB and Patient SP. The respondent conducted an examination of Patient SP and considered that Patient SP’s respiratory rate was normal on examination. The respondent recorded the following notes about this visit:

Home visit with [Patient RB] and [her husband] discussed birth of baby and [Patient RB] very upset that I wasn’t there Reassured that I did not think [Patient RB’s] membranes had ruptured @ the time she said as the two pads that [Patient RB] showed me had o evidence of liquor on and did not smell like amniotic fluid. ? hindwater leak ? vaginal discharge …Examination of baby HR 125bph RR 30-32 Afebrile 36.7 [Patient RB] states baby slow to attach @ breast but once attached suckles for up to an hour… Heart sounds normal, lung fields clear air entry equal bilaterally morro/startle reflex present, grasp reflex and planter reflex evident. Little or no stepping reflex.

46. [46]
    The respondent did not:

1. examine or assess Patient SP until three days after her birth;

2. recommend treatment of Patient SP with antibiotics;

3. consider that Patient SP’s respiratory rate was low on examination on 6 September 2016;
4. arrange for Patient RB or Patient SP to be examined, or advise that Patient RB or Patient SP be examined, by a medical practitioner for a general examination; and
5. advise Patient RB to take Patient SP to the hospital or a general practitioner for examination, other than for slight tongue tie.

47. [47]
    The respondent considered that Patient SP’s respiratory rate was normal on examination on 6 September 2016.

48. [48]
    During the evening of 6 September 2016, Patient RB began feeling unwell. She had abdominal pains and had decided to attend hospital. She had a shower and then laid down to feed Patient SP at approximately 9:00pm. Patient SP began struggling to breathe. Patient RB put her baby on the floor and began resuscitation. Patient RB’s husband telephoned 000 for an ambulance.

49. [49]
    Patient RB and her husband continued resuscitation with guidance from the Queensland Ambulance Service over the telephone. After about 15 minutes, an ambulance arrived. During the trip to hospital, the resuscitation team continued resuscitation and administered adrenaline. After some time, Patient SP’s heartbeat improved.

50. [50]
    Both Patient RB and Patient SP were admitted to hospital. In hospital, Patient SP was diagnosed with pneumococcal sepsis. She was hospitalised for three weeks. Patient RB was also treated for an infection related to the birth.

Characterisation of conduct

51. [51]
    At the time of the conduct, the respondent was required to comply with the following:

1. the National Law;

2. the Health (Drugs and Poisons) Regulation 1996 (Qld);

3. the Code of Professional Conduct for Midwives in Australia;

4. the Code of Ethics for Midwives in Australia;

5. the National Midwifery Guidelines for Consultation and Referral; and

6. the Midwifery Competency Standards.

52. [52]
    Section 5 of the National Law defines “professional misconduct” as:

professional misconduct, of a registered health practitioner, includes—

1. unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and

2. more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
3. conduct of the practitioner, whether occurring in connection with the practice of the health practitioner’s profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.

53. [53]
    Section 5 of the National Law defines “unprofessional conduct” as:

unprofessional conduct, of a registered health practitioner, means professional conduct that is of a lesser standard than that which might be reasonably be expected of the health practitioner by the public or the practitioner’s professional peers, and includes—

1. a contravention by the practitioner of the Law, whether or not the practitioner has been prosecuted for, or convicted of, an offence in relation to the contravention; …

54. [54]
    The parties submit that the conduct relating to allegations 1 and 4 should be characterised as professional misconduct, and that the conduct relating to allegations 2, 3, 5, 6 and 7, should be characterised as unprofessional conduct. The parties also jointly submit that, in respect of allegations 2, 3, 5, 6 and 7, the totality of the respondent’s conduct should be characterised as professional misconduct.

55. [55]
    The Tribunal accepts this characterisation of the conduct.

56. [56]
    The respondent’s conduct, especially in relation to allegation 4, is not only a clear breach of the terms of the National Law and relevant codes and standards for midwives, it also demonstrates a blatant ignorance, on the part of the respondent, for the fundamental responsibilities of a midwife.

57. [57]
    As defined by the Code of Professional Conduct for Midwives in Australia, a midwife:

…is recognised as a responsible and accountable professional who works in partnership with each woman to give the necessary support, care and advice during pregnancy, labour and the postpartum period, to conduct births on the midwife’s own responsibility and to provide care for the newborn and the infant.

This care includes preventative measures, the promotion of normal birth, the detection of complications in mother and child, the accessing of medical care or other appropriate assistance and the carrying out of emergency measures. …

58. [58]
    Principally by placing herself in a situation where she could not physically attend on Patient RB immediately before, during and after the birth of her child, the respondent, in this case, almost entirely failed to fulfil her duties as a midwife. The seriousness of this lapse in judgment is compounded by the respondent’s failure to put in place alternative care arrangements during her absence, especially in circumstances where the dates of her absence were known well in advance and where Patient RB’s reluctance to attend hospital was obvious.

59. [59]
    Additionally, the respondent also failed to fulfil her duties as a midwife when present and attending on Patients RB and SP. This is most evident in her almost superficial examinations, of Patient RB at the onset of labour, and of Patient SP three days after her birth.

60. [60]
    The other aspects of the respondent’s conduct, including her lack of professional indemnity insurance, maladministration of a restricted drug, and insufficient record keeping, are also disreputable.

61. [61]
    Accordingly, the Tribunal finds, pursuant to section 107(2)(b)(iii) of the HO Act, that the respondent’s conduct amounts to professional misconduct.

Sanction

62. [62]
    The purpose of sanction is to protect the public, not punish the practitioner. In determining sanction, the main consideration for the Tribunal is the health and safety of the public.^[1]
63. [63]
    As has been noted in many previous decisions, often citing Craig v Medical Board of South Australia,^[2] the imposition of sanction may serve one or all of the following purposes:

    1. preventing practitioners who are unfit to practise from practising;

2. securing maintenance of professional standards;

3. assuring members of the public and the profession that appropriate standards are being maintained and that professional misconduct will not be tolerated;

4. bringing home to the practitioner the seriousness of their conduct;

5. deterring the practitioner from any future departures from appropriate standards;
6. deterring other members of the profession that might be minded to act in a similar way; and
7. imposing restrictions on the practitioner’s right to practise so as to ensure that the public is protected.

64. [64]
    Both parties agree on the following orders by way of sanction:

1. that the respondent be reprimanded pursuant to section 107(3)(a) of the HO Act;
2. that the respondent’s midwifery registration be cancelled pursuant to section 107(3)(e) of the HO Act;
3. that the respondent be disqualified from applying for midwifery registration for one year; and
4. that the respondent be prohibited from providing any pregnancy-related health service or birth-related health service until such time as the respondent obtains registration as a midwife under the National Law or corresponding law of a State of Territory of Australia.

65. [65]
    The Tribunal will not ordinarily depart from orders agreed between the parties unless they fall outside of the permissible range of sanction.^[3]
66. [66]
    In support of their submissions as to an appropriate sanction, the applicant has referred to three comparable cases.^[4] Consideration of these comparable cases confirms that the proposed orders fall within an appropriate range and adequately meet the purposes of sanction.

67. [67]
    In determining the appropriate orders by way of sanction, the Tribunal had particular regard to the respondent’s level of remorse. The respondent deposes the following in an affidavit sworn on 10 February 2021:

“… I sincerely regret what happened to Patient RB and her baby.

With the benefit of hindsight, knowing of my pre-arranged plans to be absent from Townsville from 2 September 2016 to 6 September 2016, I should not have agreed to act as Midwife for Patient RB in relation to the birth of her second child.

With the benefit of hindsight, knowing of Patient RB’s strongly held views about not wishing to attend at a Hospital and her unwillingness to undergo recommended testing during the pregnancy, I should have declined her request that I act as her private Midwife particularly knowing of my intention to be away from Townsville from 2 September 2016 to 6 September 2016.

I regret what happened to Patient RB and her baby, I regret the fact that I was not present for the birth of the baby, I regret the fact that they both needed to be hospitalised and the fact that the baby’s health was critical.

I am extremely remorseful for my actions and contribution which are the subject matter of these proceedings. …

I wish to record that notwithstanding the eventual outcome of these proceedings, I do not ever intend to be re-registered or practice as a Midwife.”

68. [68]
    The respondent’s apparent remorse and insight provides some reassurance, and in the Tribunal’s opinion, mitigates the need for personal deterrence. However, it is worth noting that the respondent was an experienced health practitioner at the time of this conduct, having been registered as a nurse in 1995, and later as a nurse and midwife in 2010. The fact that an experienced practitioner would demonstrate such a lapse of judgment is of great concern.

69. [69]
    As such, in determining appropriate orders by way of sanction in this matter, the need to maintain professional standards, and to assure both the public and the profession that such standards are being maintained, are especially relevant.

70. [70]
    A reprimand is not a trivial penalty and has the potential for serious adverse implications to a professional person.^[5] It is a public denunciation of the respondent’s conduct and a matter of public record. It will be recorded on the Register until such time as the Board considers it appropriate to remove it.^[6]
71. [71]
    There is also an evident need to place restrictions on the respondent’s right to practise, so as to ensure the public is protected. Whilst conduct such as the respondent’s would usually attract a longer period of disqualification, in light of the Health Ombudsman’s immediate registration action, coupled with the significant delay in this matter being referred to the Tribunal, a one year disqualification period is appropriate.

72. [72]
    In these circumstances, the Tribunal makes the orders jointly sought by the parties.