JMX v Norfolk and Norwich Hospitals NHS Foundation Trust

There is an anonymity order in this case. The case relates to the brain damage sustained by a 9-year old boy when he was born in 2008. I will refer to him in this judgment simply as ‘J’ and his mother as ‘J’s mother’ to assist preserving that anonymity. No discourtesy or lack of sensitivity is intended.

The trial in this case was limited to the sole issue of breach of duty.

J was born at 22.38 on 12 March 2008 at the Norfolk and Norwich University Hospital for which the Defendant NHS Trust is responsible. He acquired a brain injury in the period shortly before his birth caused by what is agreed to have been a period of prolonged partial hypoxia, probably resulting from a maternal placental abruption occurring at approximately 20.20 to 20.30 that evening. It is not thought that he suffers from cerebral palsy as such, but he does have a number of difficulties, including learning and behavioural issues. He now attends a special school.

The primary issue in the case is whether his mother, who was at 37⁺² weeks in her “high risk” pregnancy, should have been allowed home from the hospital at shortly after 18.00 on the day J was born. It is alleged on J’s behalf that she should not. Had she remained in hospital it is agreed that the problem that led to the brain damage (the placental abruption referred to above) would have been identified and that the brain damage itself would have been avoided. The secondary case is that, if it was acceptable for her to be allowed home, she had not been advised strongly enough to return quickly to hospital if the circumstances that in fact obtained occurred. Again, if she had returned to hospital in time for the consequences of the placental abruption to be avoided, it is agreed that the brain damage would not have occurred.

The issues are relatively narrow and easy to state. Given the debate between the experts in the case, they are rather less easy to resolve.

J’s mother’s pregnancy was “high risk” because her previous child had been born by Caesarean section. It follows that she had not laboured previously. Her wish was to have J born vaginally if possible, but this carries with it risks (see paragraphs 13-21 below). The acronym “VBAC” stands for ‘Vaginal Birth After Caesarean’. J’s mother was, therefore, a “VBAC case”. The alternative choice for such a mother is for an elective repeat Caesarean section (‘ERCS’). That also carries risks.

The risks associated with a VBAC case have been recognised for many years. The most serious risk (which can be life-threatening for mother and baby) arises from the possibility that the uterine scar from the previous Caesarean section ruptures or splits during labour.

Before identifying what the experts who have given evidence say about the foregoing and other features of a VBAC case, I think it would be helpful to record briefly what the most up-to-date guidance at the material time from the Royal College of Obstetricians and Gynaecologists said. What is known as ‘Green-top Guideline No. 45’, entitled ‘Birth After Previous Caesarean Birth’, was published by the College in February 2007, thus just over 12 months before the material events in this case. A new edition was published in October 2015, but it is clear that the 2007 guideline is the most relevant for present purposes since it was current at the time. (I was told that there were no significantly different substantive recommendations in the later version compared with the earlier version.)

The guideline contains the following disclaimer:

“The Royal College of Obstetricians and Gynaecologists produces guidelines as an educational aid to good clinical practice. They present recognised methods and techniques of clinical practice, based on published evidence, for consideration by obstetricians and gynaecologists and other relevant health professionals. The ultimate judgement regarding a particular clinical procedure or treatment plan must be made by the doctor or other attendant in the light of clinical data presented by the patient and the diagnostic and treatment options available.

This means that RCOG Guidelines are unlike protocols or guidelines issued by employers, as they are not intended to be prescriptive directions defining a single course of management. Departure from the local prescriptive protocols or guidelines should be fully documented in the patient’s case notes at the time the relevant decision is taken.”

The guideline is thus a guideline, but its purpose and scope was said to be “to provide evidence-based information to inform the antenatal and intrapartum care of pregnant women who have had previous caesarean delivery, with the options for delivery being either planned …VBAC … or … ERCS.” It was produced by distinguished obstetricians and gynaecologists who reviewed 20 years’ worth of published material on the issue. There was a recognition that the evidence did not include “randomised controlled trials comparing planned VBAC with planned ERCS”, but an equal recognition that “this may be an unrealistic aspiration.” It is, of course, difficult to see how any ethically acceptable trials of this nature could be instituted. One major series referred to by the authors of the guideline was a study published in 2004 by the National Institute of Child Health and Human Development (‘NICHD’) Maternal–Fetal Medicine Units Network in the USA which had “a large sample size, a prospective cohort design and [which used] standardised definitions for assessing outcomes.”

At all events, the guideline was peer-reviewed by many others, including by the Royal College of Midwives, although it seems that some midwives had reservations about the guidelines (see paragraph 40 below).

The background to the production of the 2007 guideline was said to be “widespread public and professional concern about the increasing proportion of births by caesarean section”, with reference being made to “new evidence” said to be “emerging to indicate that VBAC may not be as safe as originally thought.” It was said that “[these] factors, together with medico-legal fears, have led to a recent decline in clinicians offering and women accepting planned VBAC in the UK and North America.”

In relation to the risk of uterine rupture, the following recommendation was made, based largely upon the NICHD study:

“Women considering the options for birth after a previous caesarean should be informed that planned VBAC carries a risk of uterine rupture of 22–74/10,000. There is virtually no risk of uterine rupture in women undergoing ERCS.”

There is, therefore, roughly a 0.7% risk of uterine rupture in planned VBAC with virtually no risk in ERCS.

After the evidence underlying that recommendation was reviewed, the authors said this:

“Although a rare outcome, uterine rupture is associated with significant maternal and perinatal morbidity and perinatal mortality ….”

That maternal and perinatal morbidity and perinatal mortality was dealt with later in the paper and the following recommendation is made:

“Women considering planned VBAC should be informed that this decision carries a 2–3/10,000 additional risk of birth-related perinatal death when compared with ERCS. The absolute risk of such birth-related perinatal loss is comparable to the risk for women having their first birth.”

In other words, there is an additional risk of intrapartum stillbirths and neonatal deaths at or beyond 37 completed weeks of gestation in the order indicated in the recommendation.

So far as maternal deaths are concerned, the evidence referred to in the guideline demonstrates that “maternal death from uterine rupture in planned VBAC occurs in less than 1/100,000 cases in the developed world.” It is obviously a rare occurrence, but nonetheless a very serious one when it does.

So far as maternal morbidity is concerned, the paper indicates that the NICHD study showed that an unsuccessful planned VBAC (in other words, where an emergency Caesarean section during labour is required) compared with successful VBAC is associated with an increased risk of uterine rupture, uterine dehiscence, hysterectomy, transfusion and endometritis. So far as neonatal morbidity is concerned, the paper indicates that planned VBAC carries an 8/10,000 risk of the infant developing hypoxic ischaemic encephalopathy. It is, of course, this that can give rise to brain damage and cerebral palsy. There is no adequate study, the paper indicates, to show the long-term outcome of this occurrence as between VBAC and ERCS.

It will be clear from the summary of the guideline thus far that the concern in a VBAC case will primarily be uterine rupture during labour and the possible consequences of that occurring. The guideline makes this recommendation:

“Women considering their options for birth after a single previous caesarean should be informed that, overall, the chances of successful planned VBAC are 72–76%.”

This is, of course, a substantially optimistic assessment, but there are 24-28% where the VBAC will be unsuccessful and an emergency Caesarean section will be required. It is those cases that carry the higher risks to which I have referred.

The guideline made certain recommendations concerning intrapartum support and intervention during planned VBAC. Three have been the focus of attention during the trial:

“Women should be advised that planned VBAC should be conducted in a suitably staffed and equipped delivery suite, with continuous intrapartum care and monitoring and available resources for immediate caesarean section and advanced neonatal resuscitation.”

“Women should be advised to have continuous electronic fetal monitoring following the onset of uterine contractions for the duration of planned VBAC.”

“Continuous intrapartum care is necessary to enable prompt identification and management of uterine scar rupture.”

The justification for the second and third of these recommendations is (a) that in 55–87% of instances of uterine rupture there is an abnormal cardiotocograph (CTG) trace and (b) the other possible signs of uterine rupture (severe abdominal pain, especially if persisting between contractions, chest pain or shoulder tip pain, sudden onset of shortness of breath, acute onset scar tenderness, abnormal vaginal bleeding or haematuria, cessation of previously efficient uterine activity, maternal tachycardia, hypotension or shock and/or loss of station of the presenting part) would all be noted provided the mother was being monitored.

The first recommendation really follows from the other two because of the obvious need to have the facilities available to respond urgently to signs of incipient or actual uterine rupture.

It is common ground between the obstetric experts in this case that continuous electronic fetal monitoring is required in a VBAC case when labour is established. The expression used in the guidelines is that it is required from “the onset of uterine contractions”, but the obstetric experts in this case have agreed that this does not mean simply any uterine contractions (because there can be uterine activity arguably amounting to contractions prior to “active” or “established” labour), but contractions in “active” or “established” labour. They agreed that a literal interpretation of the guideline would be to “set the bar too low” for the commencement of electronic fetal monitoring. As will emerge (see paragraphs 28-31 below), the Trust’s own guidelines extant at the time speak of continuous CTG monitoring when the active phase of labour has begun. I will turn to the issue of when J’s mother was in established labour in the context of this case later, but the importance of the guideline is that it identifies in an authoritative and informed way the nature of the risks associated with a VBAC case and, subject to the caveat just mentioned, the nature of the observations required when the time has arrived at which those risks might eventuate.

It is, perhaps, worth noting that, according to Mr Tuffnell (see paragraph 35), it has been established practice for many years to institute electronic fetal monitoring for the duration of established labour in a VBAC case.

The guideline, whilst not prescriptive of what should be done in any case, was plainly intended to inform the decision-making process about what to do in a VBAC case and would at least under-pin the risk assessment that must effectively be done in any such situation and the advice that must be given to the mother in her particular situation.

Although produced shortly before the College guideline referred to above, the Defendant had produced its own “Guidelines on the management of Vaginal Birth After Caesarean Section” in April 2006. Mr David Fraser, then a Consultant Obstetrician and Gynaecologist at the hospital (and on call at the material time), was instrumental in the production of the guidelines. The following appeared at the commencement of the document:

“Whenever possible, the mode of delivery for all women who have had a previous caesarean section should be discussed with the consultant before labour, failing this, the case should be discussed with the duty consultant at the onset of labour. In all cases a clear plan of action should be documented in the obstetric notes.”

The overall success rate for VBAC was said to be between 60-80% following one caesarean section. It was also said that the absolute risk of perinatal death associated with trial of labour following previous caesarean section was low, but significantly higher than with planned caesarean section.

In relation to the management of labour, the following provisions in the guidelines should be noted:

“1.

Following admission in labour the woman should have a 16G cannula inserted, blood taken for a FBC & G&S and a CTG commenced. Ranitidine, 150 mg orally should be prescribed every 6 hours through labour. The medical staff must be made aware that the woman is on the Delivery Suite.

2.

If no decision has been made regarding the mode of delivery this should be discussed with the on-call consultant following registrar review.

3.

Normal activity should be encouraged during the latent phase of labour. Once active labour has begun, continuous CTG monitoring should be commenced.”

This guideline contemplates continuous CTG monitoring “once active labour has begun” and distinguishes the period prior thereto by calling it “the latent phase of labour” (see further at paragraph 34 below).

There has been considerable debate in the case about when, during the latent phase (or stage) of labour, it is appropriate to contemplate the potential onset of active or established labour because it is that debate that lies at the heart of the decision concerning breach of duty in this case. I will return to it more fully in due course.

Again, I propose to record the guidance on these issues from sources other than the experts in the case before turning to their views about the meaning of this guidance.

The relevant NICE clinical guideline (no. 55) current in 2008 had been issued in September 2007. The definition of “the first stage of labour” in paragraph 1.6.3 was current at the material time (and, incidentally, has not been altered in the more recent revision):

“For the purposes of this guideline, the following definitions of labour are recommended:

•

Latent first stage of labour – a period of time, not necessarily continuous, when:

- there are painful contractions, and

- there is some cervical change, including cervical effacement and dilatation up to 4 cm.

•

Established first stage of labour – when:

- there are regular painful contractions, and

- there is progressive cervical dilatation from 4 cm.”

The Guideline Development Group is identified in Appendix A to the guideline, one of whose members is Mr Derek Tuffnell, the Consultant Obstetrician called as an expert witness on behalf of the Defendant.

It should be noted that this guideline was not specifically devoted to women who were in the “high risk” pregnancy group. The guideline said that a “further guideline is planned on the intrapartum care of women at high risk of complications during pregnancy and the intrapartum period.” My attention has not been drawn to any such guideline if it exists.

I will return to the interpretation of this guideline below, but it is necessary to understand the terms “cervical effacement” and “cervical dilatation” in order to appreciate what is being referred to. The cervix is, of course, the neck of the uterus that connects the uterus to the vagina. It is usually described as narrow and tubular-shaped and it remains thus (and effectively closed) until the final stages of pregnancy and the first stages of labour. At that stage the cervix shortens (which is the process of “effacement”) and opens (which is the process of “dilatation”). During the earlier stages of pregnancy, a mucous plug develops in the cervix which operates as a seal at what would otherwise be the opening of the cervix into the vagina. When that plug dislodges and exits through the vagina, it is said that a “show” has occurred. It is often pink because a small amount of blood is contained within it.

Given the debate to which I will refer in more detail below, it is to be noted that the guideline refers to “painful contractions” both in the latent first stage of labour and in the established first stage of labour, the distinction being that they are “regular” in the latter and, presumably, not necessarily so in the former. The word used, however, is “contractions” and not some other description of uterine activity.

Guidance such as this (and indeed the guidance of the Royal College of Obstetricians and Gynaecologists) is designed and formulated for the eyes of those in the field who carry out the daily task of ensuring, so far as possible, that babies are delivered safely and that their mothers are protected from harm. They are, accordingly, not to be interpreted by a court in the way that a contract or a statute is interpreted. A benevolent clinical and practical purpose must be taken to underlie the words used. If, of course, the words are ambiguous or unclear, the utility of such a document is undermined. The implementation of any guidance of this nature in practice will inevitably involve the exercise of judgment by the clinicians “on the ground” (see paragraph 9 above), but equally plainly, if there is some clearly defined, underlying principle, departure from its observance in any particular case would require justification.

In that overall last connection, it is interesting (and somewhat concerning) to note that the midwifery expert called for the Defendant, Mrs Suzanne Cunningham, OBE, said that in her own organisation the ‘Green-top Guideline No. 45’ (see paragraphs 8-27 above) was “not well received because of the lack of available evidence to direct much of the activity that might happen around a woman having a VBAC.” I assume that “her own organisation” was the midwifery community within Southampton University Hospital Trust where she has been based for many years as a Consultant Midwife and was indeed in that position in 2007. She elaborated on the reservations that were apparently felt by saying that the information not given by the guidelines was as follows:

“The rupture of membranes and whether that should be left for 24 hours or whether that should be something that is dealt with straightaway, whether a woman should be in hospital in that period, or whether somebody could usefully spend that time at home.”

Whilst the reservation is to be noted, it is clear, as indicated above (see paragraph 9), that the guidelines were intended to provide an informed backdrop to any decisions made in relation to a VBAC case rather than offering a prescriptive structure for action. I should, perhaps, record that she did not indicate any reservations about the NICE guideline to which I have referred.

I shall need to return to RCOG guidance in due course, but I should now trace the events, including the relevant clinical history, largely derived from the notes made at the time, for 12 March 2008.

As previously indicated, J’s mother was 37⁺² weeks in her pregnancy. It had been uneventful.

The relevant history on 12 March 2008 begins at 08.30 when there was spontaneous rupture of membranes (‘SROM’), colloquially known as the “waters” having broken.

This time is known because J’s mother telephoned the hospital at 10.00 to say that she thought her membranes had ruptured at 08.30. The note by the midwife taking the call indicated that she had been “leaking continuously” since that time. It was recorded that the colour of the fluid was “yellow” and there was “no blood”. She reported that the fetal movements were “fine”. It is noted that the pregnancy was “normal” and that the presentation was “cephalic”.

Under the heading “Advice given” it was noted that she “was happy to stay at home” and observe the liquor and the fetal movements. She was advised to “ring back at 4 - 5pm for review”.

In fact, the record made by the midwife noted incorrectly that J’s mother had a history of “1 x NB” (normal birth), although it did record accurately that she had pre-eclamptic toxaemia (‘PET’). Although it had no causative impact in the events which happened, the failure to record or appreciate that this was a VBAC case would almost certainly have represented a negligent omission given the acknowledged “high risk” nature of the pregnancy.

Although not reported until some while later (see paragraph 51 below), J’s mother began to experience “tightenings” at about 11.00. She telephoned the hospital again (earlier than had been suggested to her) at 14.45 and, according to the note made by Carmel Sayer (see paragraph 53 below), she said that there was a “pinky loss in the fluid” and that she had “pains low down” once every 10 - 15 minutes. It was recorded that there was “no scar tenderness” and that the fetal movements were “not quite as much as usual”.

It was noted in the record of the conversation that J’s mother had had a previous Caesarean section. She was advised to come in (‘TCI’).

J’s family live in a rural community about 30-40 minutes’ drive from the hospital. Their evidence was that J’s mother went prepared to stay in hospital – she took an overnight bag with her and she and her husband had left their daughter with her parents.

They arrived at the hospital at some time between 16.00 and 16.25 and J’s mother was seen by Midwife Deborah Caine at 16.40. Her notes show that there was a history of an emergency Caesarean section and PET. It is not clear whether that was written by Midwife Caine because there is another note further down the page referring to the previous Caesarean section. Nonetheless, her previous obstetric history was noted correctly. The notes indicate that spontaneous rupture of membranes had occurred that morning at 08.30 and that soaked sanitary towels were seen. The note appears to record “clear/pink liquor now”. It was noted that J’s mother had felt fetal movement today, but “not as much”. Her blood pressure and temperature were checked and were normal. It was noted that there was “no scar tenderness” and that she had been having “tightenings” that had started at about 11.00 that day. They were reported to be 1 every 5 minutes lasting 20 seconds. The lie is noted to be long with a cephalic presentation and 3/5 palpable.

The records indicate that J’s mother was made the subject of electronic monitoring for about 28 minutes between 16.50 and 17.18. The CTG trace was itself reassuring and it confirmed that the uterine activity was 2 in 10 minutes (which confirms what J’s mother had reported). There was a note that fetal movements were being felt by her and marked on the trace. The note timed at 16.50 records that the uterine activity was “felt as period pain” by J’s mother.

A note timed at 17.35 records that Midwife Caine had discussed the position with Carmel Sayer, the Delivery Suite Co-ordinator and Midwife in charge, who “agreed” that J’s mother “can go home [and] return tomorrow ± IOL (i.e. with or without induction of labour) if [she] has not laboured before, to be seen by doctors.” The note continues

“[J’s mother] prefers to go home. Advised to be vigilant about [fetal movements]/temperature and colour of liquor.”

The note concludes that she was “discharged home”.

Midwife Caine did explain in her evidence that the expression “to be seen by doctors” meant that she would be seen by doctors when she came in in labour. Although it might have been interpreted differently on one view, the context would suggest that Midwife Caine is right and I accept that this was the intention and indeed the meaning the expression would convey to a reader within the hospital setting.

The Ward Attendance Summary, completed by Midwife Caine, indicates that the departure time of J’s mother was 18.10 and the “Comments on Attendance” were as follows:

“Seen on triage. Good history SROM. Clear liquor. CTG reassuring. Active baby. To return tomorrow for review on Delivery Suite.”

The reason given in the Summary for the hospital attendance was “early labour”. This was one of the choices on a drop-down menu on the programme, another being “other” with the opportunity to give a different reason from the standard choices available.

The note made by Midwife Caine at 17.35 indicates what her advice to J’s mother was (see paragraph 53 above). There is an issue about whether the advice was adequate, but I will return to that issue later (see paragraphs 148-162).

I will return to the implications of what occurred and what was said during the examination conducted by Midwife Caine in due course because they lie at the heart of the cases advanced on each side. However, I will simply continue with the chronology of the next few hours in the first instance.

J’s mother and her husband left the hospital and, according to their recollection, arrived home at about 18.45. She had found the journey uncomfortable and had been shifting around in the car because of the pain. When she arrived home she felt unwell and had what she described as abdominal pain (in the pleadings) and “pain with contractions” (in her witness statement). At about 19.00 there was a significant change in what was taking place. I will refer to this in more detail below, but the ambulance crew who were called subsequently and arrived at 21.13 (see paragraphs 65-66 below) recorded that contractions had started at 19.00 for 35 seconds duration, the frequency being noted as “1.15 mins between.” I should observe that there was no discussion during the trial by any of the experts about the frequency of the contractions as noted by the ambulance crew, but I assume that this meant 1 minute and 15 seconds between each though it is very unclear and seems inconsistent with what was recorded when she arrived in hospital (see paragraph 66 below). If it did, it would suggest that the frequency, if not the duration, had increased over the previous hour: see paragraph 51 above. However, whatever the true position about what was recorded by the ambulance crew, it was generally accepted that there was a “step change” in the uterine activity at 19.00.

After J was delivered at 22.38 and all the consequential matters were attended to, a Delivery Summary was completed (presumably by the midwives who managed the delivery). It recorded that the period of “Membrane Rupture To Birth Interval” was 14:08 hours and that the “First Stage” was 03:11 hours. It is agreed that the latter recording means that the staff completing the Delivery Summary took the commencement of the “first Stage” to be 19.00. I will return to the debate about what this means in the context of the issues arising in the case below (see paragraphs 96-103).

At all events, J’s mother confirmed in her oral evidence that she started to experience “regular painful contractions” at 19.00 and that this constituted a significant worsening of her condition compared to the position prior thereto.

Again, as I have indicated, I will return to the debate about the significance of this in due course when I have completed the chronology of the material events that evening.

J’s mother’s unchallenged evidence in her witness statement about what occurred after the onset of the more painful contractions was as follows:

“… At about 8pm, I decided to have a bath as I thought this might relax me and ease the pain, and I was in the bath for about 30 minutes.

When I got out of the bath, at about 8.30pm, I was having very strong contractions and I felt like I needed to push. The pain was worse when I had a contraction but I was still in pain between contractions. I noticed I was losing blood, it was bright red and dripping every 2 or 3 seconds onto the mat. I was frightened, and wondering whether this was meant to happen. I was leaning over the toilet as I was in such pain, and I could not get up so Ian had to help me get dressed. This took about 20 minutes and then Ian called an ambulance.

He suggested that we drive back to the hospital, but by then I was in such discomfort that I could not get back in the car, I was ready to push and deliver the baby, and therefore I asked him to call an ambulance.”

This account was supported by her husband and, whilst the precise timings she gave in her statement may not have been completely accurate, there is a hospital record of a telephone call to the hospital at 20.20 which appears to indicate that after J’s mother had been at home for an hour she took a bath and was describing contractions (referred to as "too painful”) every two minutes that lasted for one minute. The record of the conversation recorded “bleeding” and there is the word “Show?” written alongside it. It was recorded that she wanted to come in to the hospital and that was agreed. It is to be inferred that it was J’s mother who spoke on the telephone, and indeed she accepts that she must have done so, although she says that she cannot recall doing so because she does not think she was in a fit state to do so. At all events, there is no doubt that a call was made conveying the information recorded.

The ambulance records show that the crew received the message to go to J’s mother’s home at 20.51 so it must be assumed that the telephone call for the ambulance was made shortly before that.

J’s mother was “blue-lighted” to hospital and arrived at 21.58. The crew recorded that the contractions remained the same throughout the journey. By 22.05 she was transferred to the Delivery Suite and the contractions were recorded as being “1:2-3”, that she was feeling “rectal pressure ++” and an urge to push. A vaginal examination at 22.11 revealed that she was “fully dilated”. The rest of the detail leading to the delivery at 22.38 is not directly relevant to the issues in the case.

Given the history to which I have referred and what was revealed when J was born, it is common ground that his mother probably suffered a placental abruption at around 20.20 to 20.30. This is an obstetric emergency (where the placenta separates from the uterine wall before delivery of the baby) and was the cause of the prolonged partial hypoxia suffered by J before he was born. It was not linked in any way to the previous Caesarean section and was not one of the risks associated with a VBAC birth. Its relevance in this case, however, is that, had there been continuous electronic fetal monitoring from the start of (or soon after the start of) “active” or “established” labour, the problem would have been identified when it occurred and steps taken to deliver J as a matter of urgency undertaken in time to prevent the brain damage.

It took a little while during the trial for the true battleground between the parties to emerge. Each side claimed “the moral high ground” on the basis of consistency of position in the litigation. Unfortunately, and, in my view, surprisingly, there has been some general looseness of language which has obscured the real issue until it emerged more clearly during the trial. What is surprising is that the well-known expressions “labour”, “first stage of labour”, “contraction” and “pain” seem to mean different things to different people. It has undoubtedly given rise to some confusion in this case.

This unfortunate state of affairs has been contributed to, to some extent, by each of the experts in the case and Mr Dominic Nolan QC, for J, and Mr David Westcott QC, for the Defendant Trust, have sought to rely upon infelicities of language on the part of the experts on the other side to demonstrate their comparative unreliability compared with their own experts. Whilst an exercise of this nature can sometimes be dismissed as simply a forensic exercise, I consider that it does have some bearing on the outcome of this case. Before examining why that is so, I should state what I perceive to be the true issue between the parties on J’s primary case, namely, that his mother should not have been allowed to return home after her initial visit to the hospital.

In that regard, his broad case is that at the time she was examined by Midwife Caine, she was in the latent first stage of labour (see paragraph 34 above), that there was the prospect of progressing to the established first stage of labour (also see paragraph 34 above) the timing of which could not be predicted, and that, since it was necessary for there to be continuous electronic fetal monitoring once first stage labour was “established” in that fashion, she should have been advised to remain in hospital pending the onset of active or established first stage labour. In fact, on the Claimant’s case, her first stage labour became “established” at 19.00. The Defendant’s case, as it emerged or became clarified during the hearing, was that J’s mother was not even in the latent phase of the first stage of labour when examined by Midwife Caine and did not enter that stage until 19.00. At some stage thereafter, she entered the “established” first stage. There was, it is said, therefore no reason to think, at the time she was being seen by Midwife Caine, that there was any prospect of her going into established first stage labour and it was safe in those circumstances to allow her to go home with instructions to return when painful and regular contractions occurred.

The midwifery expert called on J’s behalf was Mrs Sandra Reading and for the Defendant, Mrs Suzanne Cunningham. Both were qualified from their experience to speak about the issues in the case.

On the issue I have identified above, Mrs Reading’s report indicated her view that “labour” was not “established” at the time J’s mother was seen by Midwife Caine, but that it was “establishing” and (using my words, rather than hers) established or active labour was potentially not far away. That is why she regarded it as necessary for J’s mother to remain in hospital so that once “labour” became “established” continuous electronic fetal monitoring could be commenced. (She did not use the expression “latent first stage of labour” or “early labour” in her report, but the sense of her opinion was as I have indicated.)

Mrs Cunningham said that J’s mother was not in established labour at the material time and it was, therefore, acceptable to send her home to await the “onset of labour”. She said nothing about whether J’s mother was in the latent first stage of labour when seen by Midwife Caine, but she did use the expression “early labour” on several occasions and paragraph 25 of her report certainly reads as if she accepted that J’s mother was in “early labour”:

“It is generally accepted that women are more comfortable at home in early labour particularly if they have had some professional reassurance that all is well, and therefore no longer routine practice to keep women in the Maternity unit who are not in established labour and this includes women who have had a previous Caesarean section. Midwife Caine recalls that she observed [J’s mother] having a tightening when she was arranging for her to be discharged and she appeared uncomfortable. This prompted her to ask her if she still wanted to go home, as there was the option to stay on the antenatal ward and await established labour. [J’s mother] does not recall this offer and denies that she chose to go home. This element of fact is for the court to decide but the professional recommendation for [J’s mother] to return home and await the onset of labour is reasonable, in the context of the normal findings of the assessment.” (Emphasis added.)

She also said that Midwife Caine was in a good position to assess whether she was in “early labour” because it is the daily task of a midwife to make such an assessment.

One question the midwifery experts were asked to address and their answer was as follows:

“If either Mr Fraser or the attending midwives had (or should have) concluded that the Claimant's mother was in early labour, is it agreed that she needed to be admitted for monitoring, close surveillance and continuous electronic fetal monitoring ("EFM") once labour became established? In such circumstances would immediate admission be required or would it have been sufficient to make arrangements for admission when labour established? (Please agree, if possible, the definition of "early labour" and of "established labour')

We agreed - Yes to both.”

It is obvious that answering “yes” to both questions did not make sense and it has to be observed that no definition of the two expressions was proffered. “Established labour” (i.e. established first stage labour) is defined in the RCOG Green-top guidelines (see paragraphs 8-27 above) and there is no need to look elsewhere. Mrs Cunningham, in a subsequent letter, said that “[early labour] is a common phrase used by clinicians, which is without a definition but often used in the context of mild or irregular uterine activity/contractions prior to the diagnosis of established labour.”

Mrs Reading gave this description in a subsequent letter:

“Early labour or latent phase of labour is the period where the cervix thins out (effaces) and dilates. The dilation will be from 1-4cms.

At the beginning of this phase tightenings will usually be irregular and not painful. Membranes will commonly be intact. On examination the cervix may be partially effaced and described as long or effacing. The cervix will usually be closed or 1-2 cms dilated.

Early labour will progress and the cervix will thin out further (described as effaced) the cervix 2-3cms dilated. The contractions will usually be more regular and contractions felt as mild becoming moderate. Ruptured membranes may or may not be present.”

She equated “early labour” with the “latent phase of labour” which is what Midwife Caine also said.

In the context of the present case, Mrs Reading did continue thus:

“Whether one calls it early labour or the latent phase of labour [J’s mother] when examined was showing clear signs that established labour was imminent (i.e. within hours) ….”

She gave as her reasons the spontaneous rupture of the membranes, regular uterine activity for over six hours, with the pain on uterine activity increasing, and the presence of pink liquor. I will be returning to that issue in due course.

Dr Pamela Loughna, the Senior Lecturer/Consultant Obstetrician at Nottingham City Hospital, who gave evidence on behalf of J, did use the expression “early labour” in her report when reflecting on Mr Fraser’s involvement. She said this:

“… if he had been told that [J’s mother] had had a previous caesarean section, ruptured membranes with pink liquor draining … and was having regular contractions, in my opinion it was negligent to discharge her home as she was probably in early labour. She needed to be admitted for monitoring, close surveillance and continuous CTG monitoring once labour became established.” (Emphasis added.)

In his report dated January 2017, Mr Tuffnell did not refer expressly to the latent phase or the active phase of labour (and did not use the expression “early labour”), but his report was certainly consistent with the view that there was no need to admit J’s mother to hospital until established labour had occurred at which point continuous electronic fetal monitoring would be instituted. He recorded that, when seen by Midwife Caine, labour had not been established.

In the joint discussion he held with Dr Loughna in June 2017, they were asked to address the same question as that asked of the midwifery experts and which is set out at paragraph 75 above. Their respective answers were as follows:

Mr Tuffnell

“There is no definition of 'early labour'. The latent phase of labour is when there are painful contractions prior to the cervix reaching 4 cm dilated. Established labour is when there are regular painful contractions and progressive dilatation of the cervix with a dilatation of 4 cm or more. In this case it does not seem as though there were painful contractions so neither diagnosis would be appropriate.”

Mr Tuffnell thus expressed the view in the joint statement that J’s mother was neither in the latent phase as defined nor in established labour (the latter not being in issue). He dismissed any suggestion that J’s mother was in the latent stage on the basis that there were no painful contractions.

He was asked to clarify his response to this question and replied as follows:

“The question asks about early labour which is not a defined term and I would not use it.

I have agreed with Dr Loughna that established labour is when there are regular contractions and the cervix is 4cm or more dilated. When labour is established arrangements must be made for a continuous CTG in a woman with a previous Caesarean section. However in the latent phase of spontaneous labour I do not consider that a continuous CTG is required in a woman with a previous CS.

Question 15 seems to be based upon a hypothesis, which was that there were painful contractions and [J’s mother] was in the latent stage of labour. This did not seem to me to be supported by the evidence (though I acknowledge it is for the court) and this, perhaps, is why my answer addressed the question whether either diagnosis was appropriate.

The second part of Q15 asks whether continuous CTG must start immediately labour becomes established. I did not answer this part of the question directly but in my opinion it does not. It is not necessary to admit a woman with a previous CS to hospital if she presents in the latent phase of labour so that continuous CTG can be commenced the moment labour becomes established. It would be sufficient to make arrangements for admission when labour establishes.”

Dr Loughna was asked for her comments (which she supplied in the form of a letter) on that and they were as follows so far as the expression “early labour” was concerned:

“Mr Tuffnell does not accept that early labour is a defined term but he does accept that there is a latent phase of labour, which covers the time until the cervix is 4 cm dilated, during which there will be uterine activity in the form of contractions with cervical effacement and dilatation.”

Dr Loughna went on to respond to the suggestion that it was not necessary to admit a VBAC mother who is in the latent phase to await the onset of established labour:

“I do not agree with Mr Tuffnell … where he states that it is not necessary to admit a woman with a previous caesarean section if she presents in the latent phase of labour.”

She then referred to the second of the three recommendations in the 2007 Green-top guidance (see paragraph 22 above), then to the more recent guidance promulgated in 2015 (which says that “[women] should be advised to have continuous electronic fetal monitoring for the duration of planned VBAC, commencing at the onset of regular uterine contractions” – emphasis added) and then proffers the following observation:

“It has been agreed by both Mr Tuffnell and Ms Cunningham that [J’s mother] was experiencing uterine contractions, and thus by the relevant guideline (2007) she should have been monitored from the time of her attendance at 16.40 for the duration of the VBAC. It is my opinion that her contractions were regular, as the notes record contractions at a rate of 2 In 10 minutes, and the CTG clearly shows regular contractions. There is no mention in either guideline of a need for the contractions to be painful, although both Mr Tuffnell and Ms Cunningham both rely on the need for painful (or more painful) contractions before admission and the commencement of continuous monitoring.”

She was, of course, correct to say that neither guideline referred to the need for the contractions to be “painful”, but she has accepted elsewhere that the NICE guidelines (see paragraph 34) do require all contractions to be “painful” to qualify as contractions, though her view of what constitutes pain for this purposes differs from that of Mr Tuffnell and Mrs Cunningham (see paragraphs 109-118 below).

She then referred to some literature (produced in 2009 and thus not available at the material time) suggesting that the “highest incidence of uterine rupture in attempted VBAC occurs at 4-5 cm dilatation” and said that it justified the proposition that “discharging women who are contracting but who have not attained cervical dilatation of 4 cm or more will inevitably lead to cases of uterine rupture occurring at home, with adverse consequences for baby and mother” and that that is why “monitoring should commence with uterine activity rather than a predetermined stage of cervical dilatation.” (See further at paragraph 153 below.) The letter continues in a way that suggests that her view was that it would not have been correct to await established or active labour before commencing continuous monitoring in J’s mother’s case.

It is not entirely clear, on reading the letter, whether she was relying upon the 2007 or the 2015 guidelines for the support for that apparent proposition. However, the expression of such a view was contrary to my understanding of the way she expressed herself in her report (see paragraph 81 above), in the joint statement and indeed in the way she gave her oral evidence. Her explanation was that she was answering Mr Tuffnell’s letter in the present tense because it was itself expressed in the present tense. Since the letter seems so out of kilter with the rest of her contributions to the case, I think I must accept that explanation although the letter could, with respect, have been phrased more clearly.

At all events, this exchange seemed to indicate that there were two broad issues in this case between the two expert teams:

The Defendant’s experts say ‘no’ to each; the Claimant’s experts say ‘generally, yes’ to the first and ‘yes’ to the second.

I propose to deal with the foregoing issues in reverse order because I consider that the question of way the second is answered may inform the first.

The resolution of the factual issue underlying the second of the two issues was clouded for a time when the perception of the Claimant’s team (and indeed my own perception) was that it was common ground that active or established labour commenced at 19.00 on 12 March. The reason for this perception was the answer to a Notice to Admit Facts served on the Defendant on 26 June 2016. The Notice was in these terms:

“That on 12 March 2008 [the midwives who delivered J] were given information that lead them to conclude the first stage of labour had commenced at 1900 hours on 12 March 2008.”

The accompanying letter said this:

“To assist you, we refer you to the delivery summary …. You will see that the second stage of labour is noted to have lasted 27 minutes, [J] was born at 22:38 and therefore the second stage commenced at 22:11. The first stage is stated to have lasted three hours 11 minutes, counting back from 22:11 when the second stage commenced.”

The reply, referring to the Delivery Summary (see paragraph 60 above) said that it implied that the first stage started at 19.00 and finished at 22.11.

In one sense, it is not entirely clear why the Notice to Admit Facts was considered necessary because the following averment in the Particulars of Claim was admitted in the Defence:

“The first stage of labour was noted to have lasted 3 hours, 11 minutes, implying that established labour had commenced at 1900. This was also the time noted in the ambulance record as the start of contractions.”

Mr Nolan opened the case on the basis that 19.00 was “probably the commencement of established labour and so much seems to be common ground now.” At the conclusion of the opening, Mr Westcott made it clear that this was not common ground and that the Defendant’s case was that “labour started at 19.00” (emphasis added). At that stage, the distinction between “labour” as a term and “established labour” as an expression had not been brought fully into relief in the trial. However, it is right to say that Mr Nolan had foreshadowed the argument that has been advanced by the Defendant (namely, that it was not until 19.00 that the latent first stage of labour commenced) in his opening when he drew attention to amendments made to the Defence in September 2017 which replaced virtually all expressions “she was not in labour” in the original pleading with the expression “she was not in labour (alternatively not in established labour)”. A distinction was being drawn between “labour” and “established labour” which could only be explained, Mr Nolan suggested, by the denial that J’s mother was either in established labour or the latent first stage of labour at the time she was seen by Midwife Caine. That indeed, as I have said, is the case that has been deployed.

Mr Nolan says that this represented a significant change in the Defendant’s position and asserts, with justification, that the case pleaded in the Particulars of Claim was that J’s mother was “probably in early labour” when seen by Midwife Caine and that she should have been admitted and advised to stay in hospital. Indeed, the express assertion was made that, if the case advanced by the Defendant was that Mr Fraser made the decision to permit J’s mother to return home, to do so was negligent “when she was probably in early labour, and with a history of rupture of membranes and previous caesarean section, she needed to be admitted for monitoring, close surveillance and continuous CTG once labour became established.” Meeting that case with the assertion that J’s mother was not in established labour at the time she was seen by Midwife Caine was not really an adequate answer to the case thus advanced.

As I have indicated, Mr Tuffnell’s original report did not say anything about “early labour” or “the latent stage”, its focus being solely upon whether labour was established at the time. The same can be said of Mr Fraser’s first witness statement made in June 2016. In a second witness statement made in January 2017 he commented on the assertions made in the Particulars of Claim to which I referred in paragraph 101 above. He said that, on the basis of the information contained in the notes, he would not have concluded that she was “in early labour”, but even if she was he would not have admitted her simply because she was a VBAC mother because “compulsory admission is not mandated simply because [J’s mother] had a previous Caesarean section.”

The question of the relevance of “early labour” and “the latent phase of labour” was brought to the fore in the Agendas for the expert discussions and Mr Tuffnell’s view about that issue, as an issue of fact in the present case, was first identified in the answer referred to in paragraph 84 above.

The issue seems to be quite narrow, albeit (at least in the way it was deployed) an important one.

The starting-point seems to me to be the view of Midwife Caine who, as Ms Cunningham acknowledged, was best placed to make the assessment. Midwife Caine was of the opinion that J’s mother was in “early labour” which, during her oral evidence, she equated with the latent phase of labour. Although she did not see J’s mother earlier in the day, she agreed that the periodic feelings described in the note of the telephone call at 14.45 (see paragraph 48 above) was the kind of “uterine activity that one would see at the very beginning of labour”. When asked about the note she made at 16.50 referring to “period pain” (see paragraph 52 above), she agreed that this description could be consistent with contractions in the latent phase of labour.

Midwife Caine’s actions have, of course, been called into question in these proceedings. To that extent, it is necessary to approach any conclusion she reached with appropriate caution. However, there are four observations I would make in that connection: first, she was an experienced and well-qualified midwife, albeit one who normally practised in the community; second, she appeared to me to be an open and honest witness who, within the limits of her recollection, did not give the impression of simply adhering to an agenda; third, and arising from that last consideration, agreeing that J’s mother was in the latent phase of first stage labour might well be seen as an admission against her own personal interest given the criticism of the decision to allow her home; fourth, however, there are grounds for concluding that she was uncertain about what she should advise J’s mother to do and went to Carmel Sayer (and via her to Mr Fraser) for guidance. If, as Mr Fraser appears to accept, the actual decision was made by him, she has no reason to regard herself as the true target of the criticism. Her reliability on this issue can, it seems to me, be assessed without concerns as to her credibility.

The question is whether what was recorded by Midwife Caine was consistent with the latent phase of labour because there was “a period of time, not necessarily continuous, when there were painful contractions and some cervical change, including cervical effacement and dilatation up to 4 cm” (see paragraph 34 above).

What is said on J’s behalf is that from about 11.00 there was uterine activity (using a neutral expression for present purposes) that was associated with pain that increased in frequency during the day, accompanied by the discharge of “pinky liquor”. It seems to be common ground that such a discharge could be associated with cervical change. (It was also common ground that it could also be associated with a “show”, but the possibility that it was associated with cervical change cannot be excluded unless, one supposes, the other features of what occurred could not be associated with cervical change.) There has been a significant debate about the nature of the pain that qualifies for the definition of “painful” in the NICE guidelines and also about constitutes a “contraction” for the same purpose. It is, perhaps, to be noted that each word is unqualified and undefined in the guidelines: what is required in either the latent phase or the active stage of labour are “painful contractions”. Nonetheless, the debate I have mentioned figured in a significant way in the evidence.

Before dealing with the debate, I will record one other factor that can be described as common ground between the experts (and was supported by Midwife Caine), namely, that pain is subjective and different women will describe it and respond to it differently. That being so, the immediate reaction of a layman would be that when a woman says she feels uterine activity (the tightening of the uterine muscle) at an advanced stage in her pregnancy which she associates with something she describes as pain, then that would be sufficient to come within the meaning of “painful contractions”. On that basis, what J’s mother described in the telephone call at 14.45 (see paragraph 48 above) would qualify as “painful contractions”, as indeed would what she described when she was seen by Midwife Caine (see paragraph 52), the regularity of the uterine activity having increased by then.

However, Mr Tuffnell and Mrs Cunningham did not subscribe to that layman’s view and said that anything described merely as “pains low down” and as “period pain”, albeit associated with uterine activity, could not qualify as “painful” for the purposes of the definition. Mr Tuffnell said that pain that qualifies has to be “fundally dominant” which he explained by saying that “the pain of labour tends to start at the top of the uterus and works down”. He said that the “pain of labour tends to be of a significantly different intensity to the period-type pain that has been described”. He amplified that as follows:

“For the latent phase of labour you would need pain to be fundally dominant for it to be a contraction within the body of the uterus. Pain that is low in the abdomen and period-type pain is not the pain of the latent phase of labour. That is the discomfort of late pregnancy before women transition to labour.”

He asserted that there is a difference between painful contractions of labour and tightenings, uterine activity and discomfort or period-type pains which he described as “pre-labour”.

Since the physiological explanation mentioned above had not emerged in any of the reports or joint discussions, it had to be dealt with orally in the evidence. The following passage in the cross-examination of Dr Loughna demonstrates her view on the issue:

“Q: … The pain of labour is fundally dominant, is it not?

A: Women feel the pain of labour in different ways. In advanced labour, they will usually feel the pain at the top of the uterus because that is where the maximum uterine contraction occurs. In the earlier stages of labour, they will feel the pain in different ways. I think we heard yesterday that quite often it will feel like backache. Some will feel it more on the sides lower down. So I agree in advanced labour, yes, it will be fundally dominant, but not in the earlier stages.

Q: You have explained to my Lord that you extend the scale of painful contractions, when you are identifying labour or not labour, down to the level of discomfort. Would you agree that the less significant the pain, the less likely progression of the cervix is to be identified on inspection?

A: What do you mean by "less significant is the pain"?

Q: If it is discomfort, I am going to suggest it is at the very bottom of the scale of things that you say would qualify for labour.

A: It does not make it less significant that it is discomfort. I would actually put it the other way. The stronger the pain is described, the more likely it is the further you are in the labour, but I would not say that just because somebody was describing their contractions as "uncomfortable", that would mean that the cervix was not changing.”

This appears to match substantially what Midwife Caine said when she agreed that a contraction of latent phase labour could be consistent with period pain whereas it might be hard to square a description of period pain with a contraction of established labour. Equally, it ties in with what Mrs Reading said. She said (and repeated several times in her evidence) that women often refer to pain that is “low down” in the following way:

“Often women will describe those pains as either being in the back or in the front of the stomach, which can feel like menstrual cramps, so they will describe them as a period-type pain. That is a very typical picture that you will see in the latent phase of labour.”

Mrs Cunningham accepted that describing pains as period-like pains was frequent, but said they did not amount to pains in the latent stage of labour:

“When women are in labour they describe lots of pain, lots of ways of describing their contractions as painful. But linking them with period-like pains is a common experience to many women; and in terms of a continuum of a description of pain, I would consider that right at the very beginning of any type of a pain that a woman might experience and describe, and not the type of pain associated with labour.”

Mr Nolan asked Mrs Cunningham about the note summarised in paragraph 51 above and put to her that what was being described by J’s mother there were “painful contractions”. Her response was:

“She is describing tightenings that feel like period pain. I think there is a distinction.”

Whilst I do not under-estimate Mrs Cunningham’s experience and eminence as a midwife, I did get the impression that, at least in this respect, her evidence was dancing on the head of a pin. The distinction she sought to make is not one that I find persuasive, particularly in the light of the evidence of Dr Loughna, Mrs Reading and Midwife Caine – all of whom are, of course, women and will know precisely what is being described – and the fact that what she wished to describe in her oral evidence as “tightenings” she had called “contractions” in her report.

Reverting to the apparent differences between Dr Loughna and Mr Tuffnell on the type of pain to be anticipated from the physiological process Mr Tuffnell described, it seemed to me that he was ascribing that physiological process (which Dr Loughna accepted occurred during the active phase of labour) to the latent stage and said that if the pain described by the woman was not consistent with that physiological process, she could not be in the latent stage. There was a hint of circularity about this opinion, but overall I found Dr Loughna’s evidence on this issue more balanced and consistent with the other evidence. I do not accept Mr Westcott’s submission, based upon a somewhat equivocal passage in the evidence, that Dr Loughna “was not familiar with the physiological process by which the contractions of labour achieved” the effect of causing pain and/or discomfort. It would be extraordinary if someone of her experience and teaching history failed to understand the basic physiology underlying “labour pain”.

Reverting briefly to the issue of the subjective nature of pain, there was a persuasive piece of evidence on this issue when Mr Westcott was cross-examining Dr Loughna about paragraph 1.6.3 of the guidelines (see paragraph 34 above) which I think is worth quoting in full:

“Q: … It is not sufficient, is it, to say that there is uterine activity, that constitutes a contraction, there is a complaint of pain (however slight), and come to the conclusion that the woman is in labour?

A: No, because for them to be in labour, they would need to have cervical change.

Q: You sensibly correct the question that I asked you. On that same premise, it is not sufficient to conclude that they have painful contractions as intended under the guideline?

A: Why not? If a woman is complaining of pain, she is complaining of pain.

Q: Any complaint of pain, in your book, constitutes painful contractions and labour if she has cervical change?

A: Yes, definitely. Only the woman can tell us whether it is painful or not. We cannot judge whether it is painful or not. I cannot have a woman saying, "It is painful" and I say, "Oh, no, it is not."

Q: You contemplate no threshold of any kind as to how significant that complaint needs to be?

A: Of the pain?

Q: Yes.

A: There cannot really be a threshold because women's perception of pain is so varied.

Q: Does discomfort count?

A: Yes.”

So where does all this lead on the question which all parties accept that I must resolve as a matter of fact, namely, whether J’s mother was in the latent stage of labour at the time she saw Midwife Caine?

On the balance of probabilities, I consider that she was. I do not at this stage reach that conclusion on the basis of what is known to have happened later in the evening, but on the basis of the information recorded before she left the hospital after being seen by Midwife Caine. By that time a number of things were known:

This was sufficient for Midwife Caine to consider that J’s mother was in “early labour” which she equated with the latent first stage and her view as to that is supported by Dr Loughna and Mrs Reading. In my judgment, on the evidence I have heard, she was correct so to conclude.

Excluding the alternative scenario (which, for this purpose, is that the latent first phase started at 19.00) would not of itself confirm the finding thus made. However, successfully to do so may operate as some comfort for a finding that was otherwise hotly contested.

In my view, Mr Nolan was justified in submitting that the alternative scenario was sufficiently out of tune with all the material in the case as not to withstand scrutiny. This was J’s mother’s first labour. The NICE guideline (see paragraph 34 above) suggests that a mother should be advised that the length of established first stage of labour in first labours varies between women, but first labours last on average 8 hours and are unlikely to last over 18 hours. In this case, of course, J’s mother suffered a placental abruption that (it is common ground) hastens the process. However, if the Defendant’s argument is correct, the whole of the latent and established phases took less than three hours. Whilst nothing, of course, is impossible, this seems most unlikely. It also raises the question of precisely what was going on between about 11.00 and 19.00 if it was not the latent phase.

As I have said, although not directly relevant to the resolution of the issue being addressed, it adds some support for the legitimacy of the finding referred to in paragraph 120 above.

Simply concluding that J’s mother was in the latent phase of first stage labour would not, of itself, necessarily mean that it was negligent to permit her to go home. If the RCOG guideline (or indeed the Trust’s own guideline) is to be regarded as a blueprint for how cases of this nature were to be considered in 2008, neither says expressly that a mother found to be in the latent stage must be admitted for observation. Mr Fraser’s assertion referred to in paragraph 102 above has a resonance here, but since the guideline is intended to offer the material upon which what are essentially risk assessments for VBAC mothers are carried out (see paragraph 27 above), simply saying that it does not “mandate” admission is not a sufficient answer to the question of how to manage an individual VBAC case.

Furthermore, the fact that the Defendant has sought to argue so strongly that J’s mother was not in the latent phase might suggest that the view has been taken that if she was found to have been in the latent phase, the prospects of defending successfully the case that she should have been admitted to await developments were not strong. Indeed Mrs Cunningham agreed that had what she described as the “late latent phase” been diagnosed, she (Mrs Cunningham) would have kept J’s mother in hospital. It was noticeable that Mr Fraser was very anxious that nothing he said in evidence should be interpreted as a concession that she was in the latent stage. Mr Tuffnell and Mrs Cunningham were similarly careful with their use of words which, I am bound to say, did not make aspects of what they said particularly persuasive, particularly where they sought to revise the meaning of expressions or terms used in their reports.

A VBAC case is treated as “high risk” for all the reasons revealed in the analysis in paragraphs 13-21 above. The response to such a case is to ensure that there is continuous fetal monitoring once labour is established (see paragraph 22 above). Obviously, there must be situations where a woman intending on a VBAC delivery goes into established labour outside hospital and a time lapse occurs before the monitoring is put in place. That cannot be avoided. But if it can be, should it be?

I will, of course, turn to what the experts say, but I will review in the first instance what Midwife Caine said. She said (and I think everyone agreed with her) that it is impossible to predict when a woman in the latent phase of labour would move into the established phase and, although she said that there are “rough times” that midwives take for first-time labours, she recognised that “a [precipitate] labour is a known fact of labours”. She did, however, say that it was not usual to base decisions around such a possibility. She acknowledged, however, that in a VBAC case, the mother does risk uterine rupture as soon as she goes into established labour.

In relation to the case of J’s mother, she accepted that there was a realistic possibility that she would go into labour that evening whilst at home and also accepted the possibility that it might have been within “an hour or so”. Her answer to the suggestion that in order to ensure that the hospital’s own guideline was adhered to, J’s mother should have been advised to stay in hospital, was that she understood that she lived only 30 minutes away and that, given her presentation on examination, she would not have anticipated that she would have gone into labour so quickly. When pressed by Mr Nolan with the proposition that it took about 3 hours to get back to the hospital, she replied that the reasons why this happened were beyond anyone’s control.

As to that last issue, I should say that I accept that what occurred was unexpected and would have come as a surprise to anyone involved. I am not convinced, however, that the test here is whether anyone ought to have envisaged that there could be a 3-hour delay. A fair part of that delay was caused by the need to call an ambulance that itself had to travel to the rural community where J’s family lived and then to get his mother back to the hospital. That probably arose because the placental abruption occurred, which itself is not a common occurrence. If it was appropriate to consider permitting J’s mother to return home, the truer test must, in my view, have been to consider the length of the journey back (40 minutes) to which should be added the reasonable time it would have taken J’s mother to appreciate that there was a need to return to hospital. It is difficult to see how this could have been precisely on the dot of 19.00: some period must be allowed for her to appreciate that what she had been experiencing prior thereto had changed to regular painful contractions. That itself would depend on how regular the contractions are. It would not be unreasonable to conclude that it might take up to 30 minutes or so from the onset of the new form of contractions to make the decision to return to the hospital (perhaps having made a telephone call to check) and to get into the car to make the journey. Dr Loughna said that it could have taken 10-15 minutes for J’s mother to appreciate that the contractions had become regular, as well as painful. If allowing a total of 30 minutes before starting the journey back to hospital is reasonable, it means that anyone addressing the issue in relation to J’s mother would have known that there might be at least 1 hour to 1 hour 15 minutes or so from the onset of the relevant type of contractions before continuous electronic fetal monitoring could be implemented.

Is that kind of unmonitored period acceptable in a VBAC case? More importantly, was it acceptable in this case? Is there evidence that the risks associated with the fact that J’s mother was a VBAC case were properly evaluated in the decision made to permit her to return home?

I will return to those issues below after addressing one other important factual issue in the case.

It arises from the question as to why did Midwife Caine discuss the case “several times” with Carmel Sayer (which is what she recorded in her statement for the internal inquiry about four weeks after the material events and repeated in her witness statement) and why Mr Fraser was troubled about the issue at all if it was so obvious that J’s mother could go home? Midwife Caine, when cross-examined, said that she did not engage Carmel Sayer’s attention to the case because she had doubts about what to do, but was merely keeping her informed about what was happening. It may simply be a matter of emphasis, but I do consider that the reality was that she certainly wanted confirmation that she was doing the right thing by allowing her to go home. I think that does mean that there was an element of uncertainty in her mind and that uncertainty possibly arose because of her knowledge of what the hospital guideline said about a VBAC case (even though the guideline was not immediately to hand). At all events, in my view, she plainly wanted her plan to be endorsed by her supervisor and, as it happened, her supervisor decided to ask the Consultant on call, Mr Fraser, for his view. To that extent, the ultimate decision was not hers and hers alone.

In those circumstances, it is most unfortunate that that neither Carmel Sayer nor Mr Fraser were asked to make statements about their recollections of what occurred as Midwife Caine was (see paragraph 133 above). The note made by Midwife Caine (see paragraph 53 above) clearly indicates that she discussed the case with Carmel Sayer and this was emphasised in her own statement. Whilst there was no reference to Mr Fraser in her clinical note, her statement for the internal inquiry records that he was consulted. Since her statement was headed “statement written in anticipation of legal proceedings”, someone within the hospital had plainly identified the circumstances as potentially giving rise to criticism. As it was, Carmel Sayer was not asked to cast her mind back to these events until “the past year” and perfectly understandably could remember nothing about the case. Mr Fraser also was not asked anything about the background until the litigation started, he said. Since neither he nor Carmel Sayer had made any contemporaneous notes or made any statement nearer the time, their ability to recount what occurred or did not occur was substantially disadvantaged.

Mr Fraser’s statement for these proceedings omitted any reference to this being a VBAC case. He believes that this was a “simple oversight” on his part though he did concede that it was possible that he did not see this as a VBAC case at the time it was mentioned to him. He did, however, say that he thought it most unlikely that he was not told at the time that it was a VBAC case.

I do not find that factual issue very easy to resolve. There is no doubt that permitting J’s mother to return home would have been entirely acceptable if she had not been a VBAC case. However, if she had not been a VBAC case, the decision ought to have been easy for someone like Midwife Caine and, even if she felt the need consult Carmel Sayer, there would have been no reason for Mr Fraser to be consulted. Midwife Caine had noted that J’s mother had had a previous Caesarean section and it does seem to me more likely than not that Mr Fraser was told that it was a VBAC case. What is less clear is precisely what was passed on to him and how he perceived it. Midwife Caine said she would have given him the information she had and the clinical circumstances she found. What Mr Fraser says now is that if he was told what he has seen in the notes he would have concluded that she was not in established labour (which, of course, is indeed the case) and that having only 35 minutes to travel to the hospital from home represented a reasonable timescale if there was any material change in her condition. His view of matters if (contrary to his view) she had been in early labour is set out in paragraph 102 above.

Whilst I do not doubt Mr Fraser’s honesty, I am bound to approach with some caution his ex post facto justification for a decision which, I have to conclude on the evidence, he took or at least confirmed after what was likely to have been a brief conversation. As expressed, it looks as if he simply approached the issue on the basis of whether J’s mother was in established labour and, since she was not, that a 35-minute delay between its onset and the opportunity to establish continuous electronic fetal monitoring was acceptable. He was not asked about whether he would have thought that a speculum examination was called for before making the decision to permit J’s mother to go home, although his colleague, Mr Warren, noted (at a post-natal follow-up appointment on 4 July 2008) that there had been no vaginal examination or speculum examination at 17.35 on 12 March. He (Mr Warren) did note that there had been a spontaneous rupture of the membranes which would ordinarily militate against a vaginal examination, but would not necessarily militate against a speculum examination.

Mr Fraser’s most recent analysis of the notes made by Midwife Caine suggests that he believed at the time he made both his statements that J’s mother was “contracting (his word) only 1-2 in 10 only lasting 20 seconds which was said to be felt as period pain”. In fact she was contracting 1 in 5 (or 2 in 10). Also he only made reference to clear liquor and not to liquor that was pink.

I am afraid that all these factors put together make me conclude that a sufficient risk assessment was not carried out in J’s mother’s case about whether it was safe to send her home. She was in the latent phase of labour, which itself had progressed over the nine hours or so since the spontaneous rupture of membranes. I accept that it was not, certainly in 2008, necessary in every case for a VBAC mother who was in the latent stage of labour to be retained in hospital pending the establishment of active labour. However, the logic of the position is that the risk (which is small albeit measurable, but with potentially very serious consequences) of not being monitored from the outset of established labour has to be balanced against the disadvantages of retaining the mother in hospital. Simply by way of example, if the mother lived very close to the hospital and had received the very clearest of instructions about the circumstances in which to return, then it would be difficult for a court to conclude that an acceptable balance had not been struck. I also accept that it was then (and maybe still is now) appropriate to take into account the mother’s wishes. However, it is again incumbent on the relevant hospital to spell out clearly the risks involved in not remaining in hospital when a mother expresses the wish to return home in these circumstances.

In this case, for the reasons I have given above (see paragraph 130), I think it was too simplistic simply to say that J’s mother was 35 minutes away from the hospital. On any rational view of what would be involved in the process of deciding whether and when to return, the period would be longer and the unmonitored period of established labour could itself thus be longer.

I am prepared to accept that if (contrary to the above) 35 minutes was the appropriate period to put into the balance, it would have been on the cusp of what was acceptable. However, certainly in the circumstances of this case, I do consider that an examination that demonstrated so far as possible the extent to which the cervix had dilated would have been necessary before permitting J’s mother to leave the hospital. The outcome of such an examination would not necessarily have given rise to a conclusion that established labour was “imminent” or was likely within any particular period, but it would have informed the overall position and it seems to be common ground (or if it is not, I so find) that if the cervix was found to be 2-3 cm dilated, the advice to J’s mother to stay in hospital would have been strongly expressed.

Would such an examination have revealed this? In the first place, the issue is what form the examination would have been. Again, it seems to be common ground that a speculum would have been used in the first instance. Its advantage over a digital examination is that the risk of introducing infection when the membranes have previously ruptured is considerably less. The speculum is an implement that enables the operator to look directly into the vagina, the features of which are parted to enable a physical view of the cervix to be obtained. Of itself, it does not enable measurement of the dilatation or effacement if it has occurred but, as Dr Loughna explained, it is possible to see if the cervix has started to dilate. If it had not started to dilate there would be no need for a digital examination to determine the extent of the dilatation. If it has started dilating, a digital examination would follow to determine the extent. This would have given useful information about the stage reached in the latent stage. It would not of itself be predictive of when active labour would begin, but it would be some indicator of where in the latent stage the mother was.

It is inevitably speculative to a degree as to what any such examination would have revealed. It is, of course, the case that full dilatation had occurred by about 22.00, but the placental abruption will have hastened the process and so may not make it easy to “job backwards” to try to determine what the position was at an earlier time. The inference, however, is that the cervix was 4 cms dilated at 19.00 since that is when active labour commenced. It is not much better than an informed guess, but Mrs Reading considered that it would have been found to have been 2-3 cms dilated if examined when Midwife Caine saw J’s mother about 90 minutes earlier. Although she was challenged about this, I see no reason to doubt that, based on her experience, that assessment was substantially correct. It is never attractive for a defendant to assert that a claimant cannot establish a material fact when it is the defendant’s breach of duty that causes the lacuna in the evidence: c.f. Keefe v Isle of Man Steam Packet [2010] EWCA Civ 683.

As I have said, if that examination had been conducted and the result was as I have found it would have been, J’s mother would have been advised strongly to remain in hospital and I have no doubt that she would have done.

For those reasons, I find the primary case presented on J’s behalf established.

There was a hint at one stage in Mr Westcott’s cross-examination of Dr Loughna that it was going to be his contention that admitting someone like J’s mother to hospital with her presentation at 17.30 on 12 March 2008 would result in large numbers of unnecessary admissions to hospital being made. Dr Loughna answered the point convincingly and the matter was not advanced in his closing submissions. I have assumed, therefore, that the point is not pursued, but for completeness I simply express my view that it is not an argument that could be sustained (a) given the need for continuous electronic fetal monitoring once active labour is established and (b) for the reasons given by Dr Loughna in response to the questions.

Equally, Mr Westcott did not invite me to conclude that the case on breach of duty was defeated because Mr Tuffnell asserted that J’s mother would have been allowed home had she gone to his hospital. Far more in terms of local protocols and examples of other cases would be needed to sustain such an argument and, again, it would, in my judgment, defy the logic underlying the need for continuous electronic fetal monitoring once active labour is established.

I have already referred to the need for very clear advice to be given to a VBAC mother who, for whatever reason, is permitted to return home to await the onset of active labour (see paragraph 139). The secondary case is based on the premise that it was appropriate for J’s mother to be allowed home after having been seen by Midwife Caine.

Given the need for continuous electronic fetal monitoring once active labour is established given the risks associated with not monitoring, the need for the VBAC mother to get into hospital as soon as possible once the signs of established labour have emerged is obvious. Since there is acceptance that regular painful contractions constitute the hallmark of active labour, any advice would almost certainly need to include reference to that.

The midwifery experts agreed that the advice should be as follows:

“… she should have been advised that she should return if her contractions are more painful, regular, if she has constant pain or bleeding. If she is concerned about her babies (sic) movements. If there is any change in the colour of the liquor, if she feels unwell or has a temperature. Also if she is generally worried at any time.”

The obstetric experts said this:

“… To return if there were regular painful contractions, constant pain, bleeding, concern about fetal movements or a change in the nature of the liquor, or if she felt unwell or felt she had a temperature.”

Mrs Reading had said in her report that the advice should have been that she should return immediately in any of these situations. Mr Wescott submitted that the agreed positions of the experts omitted any reference to immediacy and, if I understood the submission correctly, that the evidence and cross-examination might have been different if such a reference had been made and, accordingly, that I have “no basis upon which to conclude that [J’s parents did not return to hospital immediately] because the importance of returning promptly had been insufficiently stated.” I do not, with respect, accept that there is any validity in that argument. As I have already observed, it must be obvious that if what is required is continuous electronic fetal monitoring throughout established active labour, but active labour is established outside a hospital setting, the sooner the mother gets back to the hospital the better. For the reasons I have reflected on previously (see paragraph 130), it may be that it takes a little while for a mother to appreciate that she is having regular painful contractions rather than irregular painful contractions, but there can be no possible justification for delaying a return to hospital once that appreciation has taken place. I cannot believe that any of the experts, if asked, would have said that it was acceptable to advise someone who was in the latent stage of labour who was permitted to return home to await active labour to be established that there was no urgency in returning. Indeed Mr Tuffnell accepted that the advice should be that the mother should return as soon as she realised that she was having regular, painful contractions and Dr Loughna’s opinion that J’s mother would have been back in hospital by about 19.45 if she had been properly advised was consistent with this.

I am sure that was the position in 2008. Although the material was not available then, it is worth recording that a series of cases in the Netherlands between August 2004 and August 2006, reported by Zwart and others in the International Journal of Obstetrics and Gynaecology in 2009, revealed that the highest incidence of uterine rupture was at 4-5 cms dilatation – in other words, relatively early on in the established labour phase. That adds support to the proposition that the sooner the monitoring starts after the onset of established labour the better. It is this report of this series of cases to which Dr Loughna referred in her letter (see paragraph 91 above).

The note made by Midwife Caine at 17.35 about the advice she gave J’s mother is recorded at paragraph 53 above. The statement she made for the internal inquiry (see paragraph 133) said that J’s mother was discharged “with advice to be vigilant about the baby’s movements, the colour of her liquor, and her own temperature.”

In her witness statement for these proceedings she said this:

“Prior to discharging [J’s mother] home, I would have advised her to call the unit if she experienced her tightenings increasing in intensity, lasting longer and getting painful. I would have advised her to contact the labour ward with a view to returning if this occurred. This is what I always tell mothers in comparable circumstances. I would have made sure that [J’s mother] knew the telephone number of the delivery suite and also that she was aware she could contact the delivery suite at any time if she had any concerns, or there were any changes ….”

This creates a rather fuller picture than her note and her initial statement, both made much nearer the time. Even if it was to be accepted that she gave this fuller advice, it does not create any sense of urgency about the return.

Mr Westcott suggested to J’s mother that she understood that she was being sent home to await the onset of labour and that “once this occurred she was to return to the delivery suite”. If he was intending to suggest that this was an instruction to return immediately there was the onset of labour, then for the reasons given below, I do not think that message was conveyed despite J’s mother agreeing with what he put to her. She accepted that she understood that the onset of labour was marked by the commencement of regular painful contractions. He went on to suggest to her that she was told to return if “the uterine activity that [she was] experiencing, became more painful, lasted longer, or more frequent.” She said she did not remember that, but accepted that this probably fitted with her understanding.

J’s father said that he did remember that reference was made to returning to hospital if things became more painful, but he could not remember anything more.

I think it is more likely that the advice given was along the lines of that recorded in Midwife Caine’s note and witness statement, perhaps with some further reference to pain, than in the terms put to J’s mother by Mr Westcott. However, to my mind, the issue can be resolved by reference to what actually occurred after J’s mother and father arrived home. They were, I thought, very sensible, level-headed people who placed their faith in the advice they received from the doctors and midwifery staff. J’s mother had had an eventful first pregnancy (a premature baby delivered by emergency Caesarean section) and would undoubtedly have been anxious to ensure that there were no risks with the second. She was aware of the possible risks associated with being a VBAC mother and would unquestionably not have wished any of those risks to eventuate. J’s father was sufficiently concerned to ask about the travel time to and from the hospital. However, it seems that almost as soon as she arrived home after an uncomfortable car journey, J’s mother started experiencing regular (and more painful) contractions from about 19.00 and yet took the steps referred to above (see paragraphs 63-65) rather than either immediately returning to the hospital or at the very least contacting the hospital straightaway. The first contact with the hospital was at 20.20, over an hour and a quarter after the onset of the regular, more painful contractions.

There are two other, possibly minor, contemporaneous indications of J’s mother’s frame of mind during this important period which add some support for the conclusion I have foreshadowed: first, either she or her husband told the ambulance crew that she had been “sent home” by the hospital because that is how the crew noted the position; second, the note of the telephone call made at 20.20 (see paragraph 64 above) was to the effect that J’s mother “wanted” to come in. That is slightly different from being recorded as saying that she had been told to come back when the contractions became more painful and regular. Both these matters are at the margins, but they afford some insight into (i) the way J’s parents saw things having left the hospital and (ii) why there was a delay before they took steps to return.

The obvious inference from all this is that the message that J’s mother should return to the hospital as soon as regular, more painful contractions occurred had not been brought home to her. I am quite satisfied that she would have returned had she been told clearly the circumstances in which to do so even if, as was the case, her preference was to go home if (as I am sure was the case) she thought it was safe to do so.

In those circumstances, there is no alternative but to conclude that Midwife Caine did not convey the appropriate message satisfactorily. That may, of course, have been derived from her own perception of how advanced J’s mother’s “early labour” had developed and/or by the confirmation from Mr Fraser that she could return home, but however it came about, I do not consider that J’s mother was fully and adequately advised about what to do and in what circumstances. Accordingly, the advice received fell below reasonable standards for the situation in which she found herself at about 17.30 on 12 March 2008.

It follows that I consider that breach of duty is established on both bases relied upon.

I should conclude by saying that I regret having to decide that Midwife Caine is thus associated with a finding of breach of duty. I thought she was an impressive person, plainly dedicated to her calling as a midwife, and who, I am quite sure, is and always has been a conscientious and caring midwife. Ultimately, the decision about what to do in the situation that confronted her that evening was taken in the rather informal way to which I have made reference and indeed was made by Mr Fraser, not by her. I recognise that conversations of this kind do happen on a daily basis in hospitals up and down the country, but this case does demonstrate the need for proper records to be kept of the substance of those conversations, particularly in “high risk” cases, because re-creating the circumstances many years later can be fraught with difficulty.

For the reasons I have given, there must be judgment for the Claimant with damages to be assessed.

I am grateful to Mr Nolan, Ms Ferguson and Mr Westcott for their assistance.