This article originally appeared in Issue 4 (March 2020).
This judgment, delivered by Lambert J on 10 January 2020, is of particular interest for her consideration of the NICE Guidelines and their utility in establishing breach of duty. This specific aspect of the judgment is considered in this article.
The claim arose out of events surrounding the Claimant’s delivery at 01:05 on 26 February 2002. She suffered a period of acute brain hypoxia which led to cerebral palsy. The issues before the court related to the management of the Claimant’s mother’s labour; both breach of duty and causation were in issue.
The timeline of events was substantially agreed between the parties and was set out in table form at , reproduced below. Ms Bewley was the Consultant Obstetrician.
|00:40||Ms Bewley is called and arrives in Room 4.|
|00:48/49||Ms Bewley leaves Room 4 to obtain equipment for fetal blood sample and make inquiries concerning theatre availability and Room 18.|
|00:53/54||Ms Bewley returns to Room 4 and notes bradycardia.|
|00:54/55||Ms Bewley makes decision that delivery should be undertaken urgently, the Syntocinon is switched off and Dr Bewley leaves Room 4 for the second time, to get the equipment for an instrumental delivery and to make inquiries concerning Room 18.|
|00:57/00:58||Ms Bewley returns to Room 4.|
|00:58/00:59||Ms Bewley makes decision to deliver in Room 4 and prepares for instrumental delivery.|
|00:59||Ms Bewley starts instrumental delivery.|
First alleged breach of duty – decision to perform a fetal blood sample
The first alleged breach of duty was Ms Bewley’s decision to perform a fetal blood sample at 00:48 and not to proceed straight to instrumental delivery at 00:43.
The opinion of the Claimant’s expert, Mr Duthie, was that between 00:38 and 00:43 the CTG showed a single prolonged deceleration, that a single prolonged deceleration for over 3 minutes was clear evidence of acute fetal compromise, and the only response was urgent delivery (not fetal blood sampling).
Mr Duthie relied heavily on the 2001 NICE Guidelines concerning the use of electrical fetal monitoring. He relied on the Guideline definition to support his assertion that the CTG showed a single prolonged deceleration between 00:38 and 00:43. He also relied on the Guidelines to establish that a single prolonged deceleration of over three minutes was evidence of acute fetal compromise. Finally, he relied on the Guidelines to show that the response to acute fetal compromise was urgent delivery. As stated by Lambert J at : “There are, in effect, therefore three links in his chain of reasoning (all derived from his interpretation of the Guidelines) which lead him to the conclusion that the only reasonable management following the initial assessment was urgent delivery.”
Mr Tufnell, the Defendant’s expert, attacked each of the Claimant’s “three links”.
Looking at the first, Mr Tufnell’s view at  was that the CTG did not show a single prolonged deceleration. His view was that a prolonged deceleration was characterised by the heart going down and staying down for a period of time and then recovering back up to the baseline. He agreed that, on a strict view, the NICE Guidelines’ definition of a prolonged deceleration simply required the fetal heart rate to fall below the baseline, but it need not necessarily be consistently low.
In the present case he stated that there was an abrupt drop in the fetal heart rate but that it did not remain consistently low – rather there was a partial recovery (albeit not to the baseline as the recovery was interrupted by a further contraction). He appeared to accept that this would have been defined as a prolonged deceleration if one took a strict interpretation of the NICE Guideline definition. However Mr Tufnell took the view that the Guidelines were not necessarily precise enough in every definition. He described the heart complex as an atypical variable deceleration.
His view was that, regardless of how the heart complex was characterised, the important question was how to manage the labour. His view was that, overall, the trace, combined with other features, did not suggest the fetus was acutely compromised . Amongst other factors, the fetal heart rate never dropped below 120bpm.
He therefore disagreed with Mr Duthie that urgent delivery was required. His view was that decelerations lasting 3-5 minutes were normal in labour and he would likely have reviewed the trace to see if it returned to normal, which it did. If so, urgent delivery would not be not required.
Lambert J found in the Defendant’s favour on this issue. Looking at Mr Duthie’s ‘three links’ she found that, even if she accepted the first link (that the CTG between 00:38 and 00:43 showed one prolonged deceleration) the next two links were unsustainable. She was unconvinced by Mr Duthie’s reliance on the NICE Guidelines to support his reasoning because, as set out at :
“Putting it shortly therefore, the Guidelines on their face appear to advocate two contradictory management options in response to a single prolonged deceleration lasting longer than 3 minutes: conservative measures where possible or feasible (expressly including fetal blood sampling) and a few short paragraphs later urgent delivery (fetal blood sampling being contraindicated).”
She preferred Mr Tufnell’s approach to the Guidelines, at : “He told me that the Guidelines do not provide a complete compendium of either definitions or clinical management options. The Guidelines are useful so far as they go, but they are limited. The Guidelines do not provide a substitute for clinical judgement but must be interpreted by the clinician and then applied in the light of that judgement.”
Having come to this conclusion, Lambert J found Mr Duthie’s theory could not stand as it was predicated on a “formulaic” and “highly selective” application of the NICE Guidelines .
The Claimant also failed on her second allegation of breach of duty which related to an alleged delay between the decision to delivery urgently at 00:54/55 and the decision to deliver the Claimant in Room 4 at 00:58/59.
Lambert J’s judgment is a useful reminder of the weight which ought to be placed on NICE Guidelines. The judgment cautions against treating guidelines as providing hard and fast rules for, in this case, management of labour. This is particularly important in a case such as the present where the guidelines themselves did not mandate one course of action but were interpreted by the expert as if they did. Rather, the lesson from this judgment is that guidelines are, at the risk of stating the obvious, simply guides. They are no substitute for clinical judgement. Furthermore, they must be read as a whole, and one cannot pick and choose.