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Outcome of Bacchus Marsh / Djerriwarrh Health Service Inquiry

Michael Gorton AM and Tessa Leounakis

The review of maternity deaths at the Bacchus Marsh / Djerrwarrh Health Service identifies many failings in management and clinical governance. It prompted a major reform of clinical governance for health services in Victoria and led to the creation of Safer Care Victoria.

Several health professionals were investigated by the Australian Health Practitioner Regulation Agency (AHPRA), and a number of senior practitioners have been subject to regulatory action.

This recent VCAT case relates to the then Director of Nursing.

Overview

A recent decision by the Victorian Civil and Administrative Tribunal (the Tribunal) to reprimand and restrict the registration of an Australian registered nurse and midwife has highlighted the responsibilities of Directors of health services to adhere to their contractual duties regarding governance, organisational leadership and management. Failure to do so can result in systematic failure to uphold a duty of care to patients and taint the integrity of the health profession in the public’s eye.

Background Facts

In a recent case (Nursing and Midwifery Board of Australia v Meek [2021] VCAT 68) the Nursing and Midwifery Board of Australia (the Board) took immediate action under ss 196(2)(a), 196(4)(a) of the Health Practitioner Regulation National Law (Victoria) Act 2009 (the National Law) to reprimand and restrict the registration of an Australian registered nurse and midwife. It was alleged that the practitioner failed to take adequate steps to deliver effective systems and processes at a health service.

In March 2015 the Department of Health and Human Services (DHHS) was notified of an unusually high number of recent perinatal deaths at Djerriwarrh Health Service (DjHS). The DHHS commenced an investigation. On 31 May 2015 a 'Investigation into Perinatal Outcomes' (report) by Professor Euan Wallace was produced. The report detailed a series of avoidable newborn deaths and adverse patient outcomes that occurred between 2013 and 2015 at DjHS.

An investigation into Ms M was one of several that arose during DHHS’s investigation. Ms M had been employed as the Director of Nursing at DjHS since 2005 and during the time of the cluster of avoidable perinatal deaths.

At all relevant times, Ms M’s conduct was governed by the National Competency Standards for the Midwife (2006), the National Competency Standards for the Registered Nurse (2006), the Code of Professional Conduct for Midwives in Australia (2008) and the Code of Professional Conduct for Nurses in Australia (2008).

Contrary to these standards, it was alleged that Ms M failed to take adequate steps to deliver effective systems and processes at DjHS pursuant to requirements under the National Law.

Ms M was referred to the Tribunal who alleged that her governance was deficient. Specifically:

  • Ms M failed to fulfil her contractual responsibility to facilitate adequate education and training for nursing and midwifery staff and ensure that deficiencies in skill were identified and remedied;
  • Ms M failed to ensure the constant presence of a midwife competent in foetal surveillance monitoring in the birthing suite as per her duty as Director;
  • No clear admission or transfer criteria was implemented for maternity cases to ensure that only admissions suitable to the level of the capacity of DjHS were accepted; and
  • There was inadequate review of clinical practice and perinatal deaths and implementation of recommendations.

The National Law defines ‘professional misconduct’ of a registered health professional as involving more than one instance of unprofessional conduct that falls substantially below the standard reasonably expected of an equivalent registered health practitioner (National Law s 5(a)). The conduct of the practitioner must be deemed to be inconsistent with them being a fit and proper person to hold a registration (National Law s 5(a)).

Section 196(2)(a) of the National Law sets out the determinations that that Tribunal may make to prove professional misconduct or unprofessional conduct.

The Tribunal's Considerations

The Tribunal agreed that each allegation against Ms M constituted professional misconduct under the definition in the National Law.

Ms M admitted that she engaged in the alleged conduct and that the conduct was in breach of various professional codes and constituted professional misconduct.

The Tribunal considered a range of factors to ensure a protective focus of Ms M, including the seriousness of her conduct, whether she pleaded guilty or showed remorse and the need for specific or general deterrence for practitioners to engage in similar conduct.

The gravity of Ms M’s conduct was reinforced by the Tribunal, considering that she was a very experienced and senior employee operating within an executive role at DjHS.

Outcome

Ms M’s conduct was found to be a serious abrogation and breach of her professional duties and obligations.

On 27 January 2021 the Board chose to reprimand Ms M and disqualify her from applying for registration under the National Law for a period of ten years (under the National Law ss 196(2)(a), 196(4)(a)). There was no need to restrict Ms M’s registration as she had surrendered her registration as a nurse on 28 October 2016.

Practical Implications for Medical Practitioners

Given that Victoria’s overall perinatal mortality rate is one of the lowest in the world, the series of significant clinical and governance failures made at Djerriwarrh Health, that resulted in the avoidable still births and newborn deaths in 2013-2015, were particularly shocking.

To ensure that the Victorian perinatal mortality rate remains low, health services must implement and ensure ongoing monitoring of the competence of their nursing and midwifery staff. Clear admission and transfer criteria should be implemented for maternity cases to ensure that services only receive admissions suited to their level of capacity. Health services must conduct regular review of clinical practice and outcomes including perinatal deaths, and implement according practice recommendations.

This recent decision demonstrates that failure to provide an adequate level of service in a health service organisation may see Directors being held responsible for governance failings. It is important for Directors to adhere to their contractual duties regarding governance, organisational leadership and management; in this case ensuring the provision of adequate education and training for midwifery and nursing staff.

The case also highlights the power that AHPRA has to investigate practitioners and place conditions on their regulation in order to maintain proper and ethical professional standards within the medical and nursing professions. This is important to protect the public and ensure that the profession’s integrity is maintained in the eyes of the public.

If you require assistance or more information regarding the Alert above, please contact Michael Gorton on (03) 9609 1505.

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