This post reports on the decision of the Victorian Civil and Administrative Tribunal in Nursing and Midwifery Board v Macrae (Review and Regulation) [2018] VCAT 1707 (and thank you to Bill Madden’s WordPress for bringing this case to my attention).  This case will be of interest to paramedics because of forthcoming registration and the demands on overworked health practitioners – see

Ms Macrae was a registered as a nurse in 1976 and as a midwife in 1978.  She worked at Bacchus Marsh Hospital from 1980 to 2016.  Between 2013 and 2014 there were high incidents of perintal deaths at the Bacchus Marsh Hospital.  This was investigated and the investigation included review of the conduct of the midwives including Ms Macrae.

Ms Macrae was subject to professional discipline over her conduct with respect to three deaths that occurred during that time.  For the purpose of this post we don’t need to set out the allegations in detail. The Tribunal said (at [5]):

In summary, the alleged conduct was:

  • initiating intravenous fluids and arranging an epidural without prior medical consultation: patient A
  • inadequate or inappropriate monitoring of patient and fetal well-being: patient A
  • failing to recognise and respond effectively in an emergency or urgent situation: patient A, patient B and patient C
  • failure to make adequate records: patient A, patient B and patient C
  • inadequate response to adverse events, in particular Mrs Macrae’s failure to respond adequately to a 2011 clinical review of cases attended by her which identified substandard fetal surveillance in each case, and a 2012 fetal surveillance and monitoring assessment which concluded that her knowledge of fetal surveillance was equivalent to a junior ‘supervised practitioner’.

A critical issue was the workload at the hospital.  At [51]-[60] the Tribunal said (emphasis added):

Counsel on her behalf submitted that while Mrs Macrae does not shirk responsibility for her own failings, including that she was clearly not appropriately skilled in the interpretation of CTGs during the relevant period, she asked that the Tribunal assess her culpability with a number of issues in mind including that her conduct was not borne of laziness or disinterest, rather it was a product of being stretched too thin at her job.

Counsel for Mrs Macrae referred to the long working hours, lack of breaks, unexpectedly high and growing patient numbers, old and inadequate CTG machines and no centralised CTG monitoring system, difficulties and delays in obtaining the attendance of doctors including paediatricians. In short, she submitted, the system that was the Bacchus Marsh Hospital maternity unit at the time, was broken and since knowledge of the infant mortality rate came to light, after the events the subject of this proceeding, major changes and improvements have occurred.

Her Counsel described Mrs Macrae as being in “the eye of the storm,” as having no option but to “roll up her sleeves and get on with the job” and that “she did the best she could”.

We recognise that working conditions were difficult and that independent reports found failures at all levels. But, ultimately, a midwife’s professional obligations and responsibilities to the patients in her or his care are paramount.

Poor working conditions do not excuse incompetence or dangerous practice.

Patients are entitled to assume that if they come through the doors of a hospital to give birth, they and their babies will receive safe and competent care.

And if midwives are unable to safely or competently care for patients because of conditions outside their control and have done all they can to bring the deficiencies to the attention of those responsible, they will need to make their own decision about whether they remain in that workplace. This case illustrates the risks not only to patients but also to professionals who work in such an environment.

Dangerous conditions should be reported, documented and publicised.  They should never be normalised, as Mrs Macrae appears to have done.

The Tribunal that found Ms Macrae’s conduct amounted to professional misconduct. The outcome was that Ms Macrae’s was reprimanded. Ms Macrae had surrendered her registration prior to the hearing so the Tribunal made no further orders but did accept, and record, her undertaking that to never again apply for registration as a nurse and/or midwife.

Discussion

Unsafe workplaces

The implications of this case should be clear.  As registered professionals paramedics, and nurses, doctors and any of the other 15 registered health professions, are required to put the care of their patients first and ahead of their own interests.  We all have to focus on our jobs as we all have bills to pay, but ‘Poor working conditions do not excuse incompetence or dangerous practice’ and if the work place is unsafe for patients, professionals ‘will need to make their own decision about whether they remain in that workplace’.

On the one hand this is a burden on registered health professionals.  As unregistered employees paramedics can point to the requirements of the job set by their employer and say ‘that is all I can do’. As registered paramedics they have independent duties to their patients that may be in conflict with their employer’s decisions about how the workplace is to operate.  As the Tribunal said ‘This case illustrates the risks not only to patients but also to professionals who work in such an environment’.

But this is also a source of power.  Now paramedics can say to employers – the workplace you are putting us into is unsafe and you have to allow us to practice safely in order to meet our obligations and if not we have an obligation to ensure that ‘Dangerous conditions [are] … reported, documented and publicised’.  If an ambulance service (state or private) is putting paramedics in a position where the work practices put patients at risk, paramedics will now have professional authority, so it is no longer just an industrial issue, to challenge their employer and perhaps refuse to work in those conditions.

I don’t pretend that would be easy.  A professional would want to know that they will be supported by their peers and act collectively but it does give rise to an extra, independent professional authority to challenge issues such as lack of staffing or poor fatigue management.

Professional competence and CPD

Another aspect of this case was the need for a professional to take responsibility for their own performance.  The Code of Conduct for Paramedics (Interim) (17 May 2017) says:

Maintaining and developing knowledge, skills and professional behaviour are core aspects of good practice. This requires self-reflection and participation in relevant professional development, practice improvement and performance-appraisal processes to continually develop professional capabilities.

One of the complaints against Ms Macrae was that she failed to meet those professional responsibilities. A review of the treatment of patients A and B revealed (at [10.1(d)]):

… substandard fetal surveillance by the attending midwives (which included Mrs Macrae) in each of those cases. In particular, the review identified that up skilling of CTG interpretation by staff was a necessary and agreed action to be undertaken after each case. Further the review identified as a necessary and agreed action to education staff that if fetal viability was in doubt this should be confirmed prior to further management/intervention.

In light of that finding, the Tribunal found Ms Macrae was guilty of professional misconduct because she did not at [10.1(g)]):

  • Undertake formal reflective practice activity to identify gaps in her skills, knowledge or abilities.
  • Analyse strengths and limitations in her own skill, knowledge and experience and address those limitations.
  • Focus her CPD activity on the factors drawn to her attention in the clinical reviews of the cases of Patient A and Patient B.

It was her responsibility to reflect on her practice and ensure that the CPD she undertook met her needs.  This was particularly poignant in this case because the death of baby C was also preceded by inadequate patient assessment and a failure to identify critical issues that could have been identified from the cardiotocography (CTG).  Had she undertaken the type of CPD that was identified in the review, that may have had better outcomes for C and her baby.

For paramedics this case confirms, as they move into registration, that it will be their obligation to reflect on their practice.  It is not professional, or acceptable, to simply attend the CPD events that are on in order to ‘tick the box’.  Professional reflection on one’s own practice and weaknesses, and finding CPD to fill identified gaps in knowledge and skills, will be required.

Conclusion

In light of earlier discussions on this blog, this case serves as a timely lesson on what professional responsibility means for registered professionals and therefore will mean for paramedics.

The obligation of a registered professional is to put their patient’s interests first. This may mean standing up to employers to ensure that workplaces do not expose patients to sub-standard care.

Further paramedics and registered professionals must maintain reflective practice and set their CPD program to ensure that they are meeting their needs, not just meeting requirements.