Conduct and Competence Committee
Substantive Hearing
Monday 24 June 2013 to Friday 28 June 2013
at
NMC, 61 Aldwych, London WC2B 4AE
Name of Registrant:
Rosemary Kacary
NMC PIN:
95I0260E
Part(s) of the Register:
Registered Midwife – September 1998
Type of case:
Misconduct
Panel Members:
Edward Lucas (Chair, Lay member)
Nalini Varma (Lay member)
Evette Roberts (Registrant member)
Legal Assessor:
Michael Vere-Hodge
Panel Secretary:
Ruth Lang
Representation –
Nursing and Midwifery Council:
Represented by David Clark, Counsel
instructed by the NMC Regulatory Legal Team.
Registrant:
Mrs Kacary did not attend the hearing and was
not represented in her absence.
Facts proved:
1 (b), 1 (e), 1 (f), 1 (g), 2 (a), 2 (b), 2 (c), 3, 4
(a), 4 (c) (i), 4 (c) (ii), 4 (c) (iii), 4 (d) and 4 (e)
Facts not proved:
1 (a), 1 (c), 1 (d), 1 (h), 1 (i), 4 (b), 4 (f) (i) and
4 (f) (ii)
Fitness to practise:
Impaired
Sanction:
Striking-off order
Interim order:
Interim Suspension Order – 18 months
Page 1 of 42
Decision on service of notice:
The panel first considered whether notice of this hearing has been served in
accordance with Rules 11 and 34 of the Nursing and Midwifery Council (Fitness to
Practise) Rules 2004 (“the Rules”). It has heard the submissions made by Mr Clark on
behalf of the Nursing and Midwifery Council (“NMC”) and has taken account of the legal
assessor’s advice.
The panel was presented with information that notice was sent by recorded delivery and
first class post to Mrs Kacary’s registered address on 22 March 2013, over 28 days in
advance of this hearing. The panel is satisfied that this complies with the rules of
service.
Proceeding in the absence of Mrs Kacary:
The panel considered whether it would be appropriate to proceed in the absence of Mrs
Kacary. The panel heard submissions from Mr Clark on behalf of the NMC, who referred
the panel to the cases of R. v Jones (Anthony William), R. v Purvis (Paul Nigel), R. v
Hayward (John Victor) (No.2) [2002] UKHL 5; Tait v Royal College of Veterinary
Surgeons [2003] UKPC 34; Yusuf v Royal Pharmaceutical Society of Great Britain
[2009] EWHC 867 (Admin) and Raheem v Nursing and Midwifery Council [2010] EWHC
2549 (Admin). Mr Clark urged the panel to proceed notwithstanding the absence of Mrs
Kacary.
The panel heard and accepted the advice of the legal assessor.
The panel noted that Rule 21(2) (a) of the Rules allows panels to hear cases in the
absence of registrants. The panel is satisfied that all reasonable efforts have been
made to serve the notice of hearing on Mrs Kacary.
The panel has seen a copy of the Royal Mail track and trace indicating that delivery of
the document was refused on 26 March 2013.
Page 2 of 42
The panel noted that it has a discretion to proceed in the absence of Mrs Kacary, but
that it must exercise that discretion with the utmost care and caution. The panel is
aware that it must balance the interests of Mrs Kacary with the public interest.
The panel was mindful that the allegations against Mrs Kacary are very serious and
date back to February 2009. It noted that the NMC proposes to call a number of
witnesses to give live evidence and the panel recognised that an adjournment might
have an adverse impact on the quality of their evidence. The panel determined that it is
important that this matter be dealt with expeditiously in the public interest. It noted that
there has been no request for an adjournment. It bore in mind that although
representatives on Mrs Kacary’s behalf engaged with the NMC in 2011, on 7 March
2012 they informed the NMC that they were no longer receiving instructions on her
behalf. There has been no subsequent engagement from them or Mrs Kacary. The
panel also considered that if it were to adjourn today’s hearing there is nothing to
suggest that Mrs Kacary would attend a subsequent hearing. The panel concluded that
Mrs Kacary has voluntarily absented herself from these proceedings and that it is in the
public interest that the matter proceed today notwithstanding her absence.
Charges read:
That you, a Registered Midwife:
1.
Between 19 February and 17 August 2009, whilst in charge of the care of
Service User A:
a) Failed to document that you had attempted to take a blood sample from
Service User A at her 26 week antenatal appointment
b) Did not adequately discuss Service User A’s options for post maturity at an
appropriate time during her pregnancy
c) Failed to accurately document Service User A’s blood results
d) Lost a sample of Service User A's blood
Page 3 of 42
e) Left an unsheathed needle on Service User A’s sofa
f) Failed to provide appropriate pain relief to Service User A during her home
labour, which had been discussed prior to Service User A going into labour
g) Failed to respect the confidentiality of Service User A and Mr A, in that you
disclosed to a mutual friend how much Service User A had paid you for your
services as an Independent Midwife
h) Failed to maintain sufficient documentation of your postnatal visits to Service
User A
i) Failed to sign any of your entries within Service User A's midwifery records
2. Between approximately 18 August and 31 September 2009, behaved in an
unprofessional manner towards Service User A and/or Mr A after they expressed
concerns about the care you had provided, more particularly you:
a) sent numerous text messages to Service User A which did not relate to Service
User A’s medical condition or treatment
b) sent numerous emails to Service User A and/or Mr A which did not relate to
Service User A’s medical condition or treatment
c) Left numerous messages on Service User A’s and/or Mr A’s answering machine
which did not relate to Service User A’s medical condition or treatment
3.
Between 5 January and 1 August 2010, failed to highlight the risk factors for
Service User B during her assessments and/or determine the most appropriate
place of birth
4.
On 1 August 2010, whilst in charge of the care of Service User B:
Page 4 of 42
a) Failed to adequately manage the third stage of Service User B's labour
b) Failed to maintain accurate midwifery records, in that you did not state what time
your notes were made in retrospective entries
c) Failed to undertake a thorough examination of the placenta, more particularly
you:
(i)
Did not examine the placenta in good light
(ii)
Did not ensure you had sufficient space to examine the placenta
(iii) Did not identify a section of the placenta had been retained
d) Failed to adequately anticipate that Service User B may suffer from a
haemorrhage despite her being at a higher risk of haemorrhage
e) Failed to adequately assess and/or monitor Service User B’s deteriorating
condition in the immediate postnatal period
f) Failed to ascertain the clinical facts when you received a text message from
Service User's partner Mr B, stating that Service User B wanted him to call for
an ambulance, more particularly you:
(i)
Did not conduct a clinical examination via the telephone using Service
User B
(ii)
Did not call or instruct Mr B to call for an ambulance
And, in the light of the reasons above, your fitness to practise is impaired by reason of
your misconduct.
Page 5 of 42
Decisions and reasons on application to have a witness statement read in as
evidence:
Mr Clark on behalf of the NMC made an application to have the witness statement of
Service User A admitted as evidence under Rule 31 of the Rules because she could not
now be traced and therefore appear as a witness.
Mr Clark drew the panel’s attention to the cases of Nursing and Midwifery Council v
Eunice Ogbonna [2010] EWCA Civ 1216 and R (on the application of J P Bonhoeffer v
General Medical Council [2011] EWHC 1585 (Admin). He submitted that Service User A
was in effect one of the complainants in this matter. Mr Clark told the panel that the
evidence in Service User A’s witness statement goes to charges 1 and 2 and explained
that this statement provides first hand evidence in relation to these two charges. For this
reason, he submitted that the statement was relevant.
In relation to fairness, Mr Clark drew the panel’s attention to the fact that Mrs Kacary
has voluntarily absented herself and that she has had sight of Service User A’s witness
statement. He submitted that she has therefore been given the opportunity to provide a
written response. Further, following the allegations made by Service User A, an
investigation was carried out by the Supervisors of Midwives and a meeting took place
on 30 September 2009. Mrs Kacary attended this meeting and made comments on the
allegations during it, the minutes of which have been included in the bundle before the
panel (Exhibit 2).
The panel heard that the NMC has made various attempts to contact Service User A via
post, e-mail and telephone but has had no success. The NMC wrote to Service User A
on 19 October 2012, 29 November 2012, 28 March 2013 and 12 June 2013, at an
address that was believed to be in Sweden, requesting her availability for this hearing
but did not receive a response. Mr Clark said that on two separate occasions, 6 March
2013 and 10 June 2013 private enquiry agents provided the NMC with Service User A’s
details. Attempts to trace her were carried out however no contact was established with
Service User A. Further, an email sent to Service User A on 12 June 2013 bounced
back and a telephone call was attempted to Service User A on 13 June 2013 but the
number was unobtainable.
Page 6 of 42
The panel accepted the advice of the legal assessor who advised them that it was a
matter for the panel’s judgment as to what weight it attached to the statement should it
be admitted.
The panel determined that all reasonable efforts had been made by the NMC to attempt
to contact and secure the attendance of Service User A. It has concluded that Service
User A is no longer living in the UK and letters to her last known address have gone
unanswered. With this in mind, the panel is satisfied that it would be both fair and
relevant to have this statement admitted in evidence. The question of what, if any,
weight the panel chooses to attach to the evidence is a matter for the panel’s
deliberation once it has considered the evidence before it. It was satisfied that there
would be no injustice or prejudice to Mrs Kacary if the statement is admitted. The panel
has applied the test of relevance and fairness and determined to allow the application to
admit the statement.
Decision on the facts
The panel has carefully considered both the oral and the documentary evidence
presented in this case. The panel has taken into account the submissions of the NMC’s
case presenter, Mr Clark, and it has heard and accepted the advice of the legal
assessor.
The panel has reminded itself that the burden is on the NMC to prove the facts. It has
borne in mind that in order to find the facts proved the panel has to be satisfied on the
balance of probabilities. This means that for any fact or event to be found proved, the
panel must be satisfied that it is more likely than not to have occurred.
On 7 October 2010, the NMC received notification from Ms 1, the Local Supervising
Authority Midwifery Officer (“LSAMO”) for NHS South Central, that Mrs Kacary had
been suspended from practice on 17 September 2010. This was as a result of serious
concerns about her fitness to practice in that a Local Supervisory Investigation had
produced evidence that her standards of practice and conduct were unacceptable. It
was concluded by the local supervisory investigation that Mrs Kacary posed a
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significant and serious risk to mothers and babies if she continued to practise as a
midwife.
On 12 October 2010, the NMC also received notification from Mr C that his daughter,
Service User B, died in hospital after a homebirth whilst attended by Mrs Kacary. He
considered that Service User B died because Mrs Kacary failed to manage the delivery
competently, failed to check the placenta thoroughly, and failed to identify the internal
condition of Service User B before she left. He noted that there had been an
investigation by the Local Supervising Authority and referred the NMC to Ms 1.
On or about 27 March 2012 the NMC also received notification from Service User A, a
former patient of Mrs Kacary, complaining about Mrs Kacary’s conduct during her
pregnancy. She alleged that Mrs Kacary had exposed her and her baby to serious
health risks, caused her unnecessary pain by refusing pain relief during her labour and
had harassed her and her family during the post natal period.
Mrs Kacary registered as a midwife on 13 September 2008. She was initially employed
at the Great Western Hospital of Swindon as a Midwife and then as a Community
Midwife at the Royal Berkshire Hospital. She then commenced practice as a selfemployed independent midwife practitioner in June 2009.
In September 2009 Ms 2, a consultant midwife trainee, had reason to investigate Mrs
Kacary’s practice in relation to the care of Service User A.
Service User A transferred her care from a midwife at the Royal Berkshire Hospital
("RBH") to Mrs Kacary in February 2009 following a recommendation from a friend.
Service User A had previously endured a difficult birth with her first child which ended in
an emergency caesarean section. Service User A signed a contract of midwifery
services with Mrs Kacary, however she was not given a copy at the time, nor was she
given one when she complied with Mrs Kacary’s request for a stamped addressed
envelope and fee for photocopying. Mrs Kacary told Service User A that she could pay
her the fee in instalments, as and when she could afford to do so.
Page 8 of 42
Service User A initially planned to give birth at the RBH as she was concerned about
the risks if something went wrong and the lack of adequate pain relief. Service User A
alleges that she was persuaded by Mrs Kacary that she would be safer if she gave birth
at home. Mrs Kacary discussed the pain relief available for a homebirth with Service
User A and said that both gas and air and Pethidine would be available, but not an
epidural.
It was alleged by Service User A that Mrs Kacary took a blood sample from her and lost
it. Further, Service User A alleged that Mrs Kacary left a used needle behind at Service
User A’s house which she found in the hands of her young child.
Service User A did not give birth on her due date. At 4 am on 4 August 2009, Service
User A went into labour at home. Her husband, Mr A, rang Mrs Kacary and asked her to
come out. By 8 am Service User A felt that she could not cope, and asked for Pethidine
for pain relief. Mrs Kacary told her that she did not have any with her. Service User A
alleges that Mrs Kacary had told her and Mr A previously that Pethidine would be
available. Service User A decided thereafter to transfer to the hospital and an
ambulance was called.
Service User A was transferred to the RBH and had a successful forceps delivery.
Service User A said that Mrs Kacary went to the hospital but offered little support during
the birth. Service User A alleges that Mrs Kacary appeared to have lost interest. Service
User A sent Mrs Kacary a letter dated 16 August 2009 expressing concerns about her
experience and requesting a reduction in the agreed fee. In response, Mrs Kacary
emailed Service User A a document called a "debrief" of the birth, which Service User A
found upsetting. It is alleged that Mrs Kacary became aggressive and sent repeated
emails, texts messages and answering machine messages to Service User A and Mr A
demanding payment. Mrs Kacary is said to have demanded her fee in full and
threatened to come to Service User A's house to collect it. Service User A was
concerned about Mrs Kacary’s menacing behaviour and contacted the police on 13
September 2009.
Service User A also contacted the Supervisor of Midwives at RBH regarding Mrs
Kacary’s behaviour and on 30 September 2009, Service User A and Mr A were
Page 9 of 42
interviewed by Ms 2. As a result of this investigation, on 23 November 2009 Mrs Kacary
was placed on a programme for development, which she successfully completed on 31
March 2010.
Mrs Kacary was employed by Mr B and Service User B on 5 January 2010 to provide
maternity care for Service User B‘s pregnancy, birth and post-natal period. Service User
B had had a previous pregnancy in 2009. She was pregnant with twins, went into
preterm labour at 32 weeks, and underwent an emergency caesarean section under
general anaesthetic at the RBH. One twin was stillborn. Service User B became
pregnant again later in 2009. She and Mr B met a specialist at the John Radcliffe
Hospital in January 2010 to discuss the effect of her previous labour and birth on her
current pregnancy. They were told that there could be a chance of a uterine rupture but
that it was not a high risk and they should go and enjoy their pregnancy.
Mr B and Service User B’s initial plan was a birth at a hospital other than the RBH. Mr B
and Service User B carried out research on independent midwives and found Mrs
Kacary online. They met with Mrs Kacary on 5 January 2010. In the first 3 months of the
pregnancy Mrs Kacary visited Mr B and Service User B at home every 2 weeks and in
the last 4 weeks she visited every week. Mrs Kacary provided them with a great deal of
information about homebirth. Mr B and Service User B asked her about the risk of a
rupture, but Mrs Kacary reassured them that she would identify any problems and deal
with them immediately. As a result, Mr B and Service User B decided on a homebirth. It
is alleged that Mrs Kacary did not advise them of the risks of a homebirth, especially in
the light of Service User B’s previous history of child birth.
Service User B went into labour on 1 August 2010 at 2.10am. Mr B contacted Mrs
Kacary, who arrived very shortly afterwards. Service User B gave birth to a live male
infant at 5.50am on 1 August 2010. Mrs Kacary said that the placenta would pass
naturally (due to physiological third stage) but by 6.30am it had not passed. Mrs Kacary
took hold of the umbilical cord and used force to pull out the placenta. At 8.15am,
Service User B reported feeling poorly, hot and faint. She was not able to pass urine.
Mrs Kacary left at 10am, asking Mr B to call her if there were any concerns. Mr B rang
Mrs Kacary at 11.55am to say that Service User B was still feeling unwell, looked weak
Page 10 of 42
and was not able to move or pass urine. Mrs Kacary asked Mr B to call back in half an
hour to report any changes. At 12.30pm Mrs Kacary texted Mr B to check on Service
User B’s condition. At 12:45 Mr B texted Mrs Kacary saying that Service User B was not
any worse and the last hour she seems to be dealing with it better, but that Service User
B had still not passed urine. Mr B texted again at 1.07pm to say that Service User B had
asked him to call her an ambulance and at 1:08pm Mrs Kacary called Mr B and said she
was on her way over. Mrs Kacary arrived at 1.55pm and found that Service User B was
not breathing and cold to the touch. Mrs Kacary told Mr B to call an ambulance. Mrs
Kacary and Mr B performed CPR on Service User B.
An ambulance arrived at 2.03pm, and paramedics took over the resuscitation of Service
User B. She was taken to the RBH, arriving at 2.35pm. A Specialist Registrar performed
a vaginal assessment and found a significantly-sized piece of placenta and 1,000ml of
clotted blood in the uterus. Service User B was taken to theatre, where a hysterectomy
was performed. Service User B was transferred to the intensive care unit, but later died
at 9.17pm. A post mortem examination was carried out on 4 August 2010.
Two Supervisory Investigation Reports were carried out, which identify failings in Mrs
Kacary’s practice in relation to Service User B. In particular, she did not document any
discussion of the specific risks of a homebirth given Service User B’s history; she did
not correctly manage the third stage of labour; she did not assess the increased risks of
postpartum haemorrhage; she failed to examine the placenta and membranes properly
and so did not identify that a large part of the placenta was retained; she failed to
assess Service User B's condition properly before leaving the house; and she did not
assess the situation adequately or give appropriate advice when Mr B subsequently
contacted her to report that Service User B was still unwell. Mrs Kacary was interviewed
as part of the investigation. At the conclusion of the investigation Mrs Kacary was
suspended from practice by the Local Supervisory Authority, on 17 September 2010.
The panel heard live evidence from the following witnesses:
 Mr B, the husband of Service User B;
 Ms 3, Consultant LSAMO in the investigation following the death of Service User
B;
Page 11 of 42
 Ms 4, Supervisor of Midwives appointed to conduct the first investigation into Mrs
Kacary following the death of Service User B;
 Ms 1, Local Supervising Authority Midwifery Officer (“LSAMO”) who conducted
the second investigation report into Mrs Kacary following the death of Service
User B. Ms 1 also supervised the investigation of Ms 2 with regards to the
complaint from Service User A;
 Ms 2, Supervisor of Midwives who conducted the investigation into Mrs Kacary
following the complaint from Service User A.
The panel considered these witnesses to be open, honest and credible and their
evidence was supported by contemporaneous documents and subsequent reports.
The panel also took into account the witness statements of Service User A and Ms 5
(Deputy Head of Midwifery, Supervisor of Midwives and an accredited expert witness
who prepared an expert report for the Coroner’s court on the midwifery care provided to
Service User B by Mrs Kacary), which were tendered in the form of signed witness
statements. The panel has borne in mind that it must evaluate what weight to attach to
this evidence, not having had the opportunity to assess or question the witnesses in
person.
The panel also considered a bundle of documents (Exhibit’s 1 and 2) including the
retrospective notes dictated by Mrs Kacary on 2 August 2010 together with meeting
notes of the various interviews she attended. These records are included in the bundle
(Exhibit 2). The NMC provided the panel with a Schedule of Anonymisation which was
designed to protect the identity of some witnesses and the service users.
In reaching its decision, the panel has carefully considered all the evidence. The panel
determined as follows:
1 (a) Failed to document that you had attempted to take a blood sample from
Service User A at her 26 week antenatal appointment
The charge is found not proved.
Page 12 of 42
The panel noted the notes of the meeting that took place on 30 September 2009 in
which Service User A told Ms 2 that Mrs Kacary had attempted to take her blood at her
26 week antenatal appointment. Ms 2 said that there was no documentation of this
made by Mrs Kacary.
Mr Clark, on behalf of the NMC said that the NMC was unable to place before the panel
any of the documentation relating to this charge. He said that he was unable to invite
the panel to accept the opinions of others when the material evidence was not before
the panel.
The panel noted Mr Clark’s submission that the panel may consider there to be
insufficient evidence relating to this charge. It reminded itself that this is a matter for the
panel to determine. The panel concluded that, as none of Mrs Kacary’s midwifery
records relating to Service User A had been placed before the panel, there was in fact
insufficient evidence to substantiate this charge.
Accordingly, the panel finds charge 1 (a) not proved.
1 (b) Did not adequately discuss Service User A’s options for post maturity at an
appropriate time during her pregnancy
The charge is found proved.
In her witness statement, Service User A said that Mrs Kacary did not discuss post
maturity options with her, nor discussed the opportunity of having a consultant
appointment.
In the Supervisory Investigation Report written by Ms 2, dated 20 November 2009, it
was recorded that on 4 August 2009 Mrs Kacary had documented that she had had a
long chat with Service User A regarding her post maturity options.
In her evidence, Ms 2 said that it was her opinion that discussing Service User A’s
options for post maturity at 40 / 41 weeks is too late and that these discussions should
have taken place earlier to allow Service User A time to consider her options. She said
Page 13 of 42
that, using the National guidelines as her benchmark, she would have expected Mrs
Kacary to have discussed Service User A’s options for post maturity from 38 weeks.
The panel took into account the Supervisory Report in which Ms 2 set out Mrs Kacary’s
responses during the interview. It noted that at the interview, Mrs Kacary stated that her
documentation provided a basic rather than a full account of the care that she had
provided and admits that she could improve it. The panel accepted that a discussion
between Mrs Kacary and Service User A did take place. However, based on the
evidence and Mrs Kacary’s own admission during the interview, the panel determined
that the timeliness and detail of the discussion held was inadequate.
Accordingly, charge 1 (b) is found proved.
1 (c) Failed to accurately document Service User A’s blood results
The charge is found not proved.
In her supervisory interview notes, Ms 2 recorded that Mrs Kacary could not recall
whether or not she took blood samples from Service User A, but stated that the dates in
her notes must be correct. As part of her investigation Ms 2 contacted the Doctors
Laboratory who confirmed that no blood results were received for Service User A in
February and that accordingly Mrs Kacary’s notes were incorrect. Ms 2 further reported
that in her professional opinion Mrs Kacary’s record keeping was not at an appropriate
standard for midwifery care.
As in charge 1 (a), Mr Clark, on behalf of the NMC said that the NMC was unable to
place before the panel any of the documentation relating to this charge.
The panel noted Mr Clark’s submission that the panel may consider there to be
insufficient evidence relating to this charge. It again reminded itself that this is a matter
for the panel to determine. As found in charge 1 (a), the panel concluded that, as none
of Mrs Kacary’s midwifery notes relating to Service User A had been placed before the
panel, there was insufficient evidence to substantiate this charge.
Page 14 of 42
Accordingly, the panel finds charge 1 (c) not proved.
1 (d) Lost a sample of Service User A's blood
The charge is found not proved.
In her witness statement, Service User A said that Mrs Kacary told her she had lost her
blood sample and that this had necessitated the taking of another sample.
The panel noted, as above, that Mrs Kacary’s midwifery records relating to Service User
A were not presented to it. Accordingly, as found in charges 1 (a) and 1 (c) above, the
panel concluded that there has been no evidence adduced in relation to this charge.
Therefore, charge 1 (d) is found not proved.
1 (e) Left an unsheathed needle on Service User A’s sofa
The charge is found proved.
In her witness statement, Service User A wrote that Mrs Kacary had lost a needle in her
home which Service User A found her two year old daughter playing with later. Service
User A wrote that she and her husband had hoped this was just a one-off mistake by
Mrs Kacary and not a reflection of Mrs Kacary’s practice as a whole. She said that she
never mentioned anything to Mrs Kacary about the needle as she did not want to
appear petty.
In her evidence, Ms 2 told the panel that during the interview on 30 September 2009,
Service User A had produced a sheathed needle which she claimed Mrs Kacary had left
behind after an antenatal appointment. Ms 2 said that Service User A had told her it was
found unsheathed on the sofa by her daughter who was playing with it.
The panel accepted the evidence of Service User A who produced the needle during
her interview with Ms 2. It noted the conclusion of Ms 2 in her Supervisory Investigatory
Report dated 20 November 2009, in which she stated that there was a health and safety
issue in relation to Mrs Kacary’s disposal of sharps in this instance. Ms 2 wrote that this
Page 15 of 42
appeared to be an isolated incident and that Mrs Kacary was able to demonstrate at the
interview that she had a clear and appropriate policy for the immediate disposal of
sharps. The panel noted however, that in this interview Mrs Kacary said that she
provided women with the necessary information to facilitate informed choice prior to
taking bloods. The panel determined that, based on these interview notes, there
appears to be acceptance of this fact by Mrs Kacary.
Accordingly, the panel finds charge 1 (e) proved.
1 (f) Failed to provide appropriate pain relief to Service User A during her home
labour, which had been discussed prior to Service User A going into labour
The charge is found proved.
In her witness statement, Service User A explained that she had had a traumatic
experience during the birth of her first child as she had had to wait 6 hours for pain relief
and was very fearful of this happening again. Service User A stated that during her
initial consultation with Mrs Kacary, she specifically asked her what pain relief would be
available if Mrs Kacary were to assist her in a homebirth. She said that Mrs Kacary
stated words to the effect that “everything apart from an epidural would be available”
and more specifically that gas and air (Entonox) and Pethidine would be available.
Service User A said that Mrs Kacary had said that she would carry Pethidine and
therefore Service User A had presumed that it would be available if needed in labour.
Service User A said that she was in the birthing pool and had been in labour since
04.00am. By 08.00am she felt she could not cope with the pain and asked Mrs Kacary
for Pethidine to which Mrs Kacary stated that she did not have any with her. In her
witness statement, Service User A said that she was both shocked and devastated as
she had been promised that this drug would be available. She told Mrs Kacary that she
could not take the pain and would rather go to hospital and have a c-section. Service
User A said that Mrs Kacary replied with words to the effect of “No [Service User A].
There is no cop-out like that. Pull yourself together. We greet every contraction with a
smile since it brings us one step closer to our baby”. Service User A said that at this
Page 16 of 42
point she felt that the arrangement was not safe and knew she had to get to the hospital
as soon as possible.
The panel noted the email sent by Mrs Kacary to Service User A on 19 August 2009 at
15:56 in which Mrs Kacary wrote: “During our time together we discussed ways of
managing pain in labour. It is certainly true that you can have everything at home you
would have at a hospital apart from an epidural. Mostly, however, women at home are
committed to as drug free a labour as possible and they believe in their body’s ability to
birth their babies themselves without the need for pharmacological pain relief. Pethidine
is a controlled drug and available on a named patient basis. This means that I am not
able to carry it around in my handbag, I have to make a prior arrangement for it.”
The panel noted the inconsistencies in the evidence provided by Mrs Kacary and
Service User A regarding whether pain relief was agreed prior to the labour or not. The
panel determined that, on a balance of probabilities, pain relief had been discussed with
Mrs Kacary prior to Service User A going into labour as pain relief had been a specific
area of concern for Service User A during her previous birth experience. Therefore, the
panel accepted the evidence of Service User A over that of Mrs Kacary. In the light of all
of the above, the panel concluded that Mrs Kacary failed to provide appropriate pain
relief to Service User A during her home labour.
Accordingly, the panel finds charge 1 (f) proved.
1 (g) Failed to respect the confidentiality of Service User A and Mr A, in that you
disclosed to a mutual friend how much Service User A had paid you for your
services as an Independent Midwife
The charge is found proved.
The panel had sight of an email sent by Mrs Kacary to Service User A on 22 August
2009 at 09:17:47 in which Mrs Kacary wrote: “I gather you have told [Ms 6] that we have
had a ‘misunderstanding’. Something of an understatement don’t you think? She was
quite shocked when she heard how little you have paid me and the contents of your
email…”
Page 17 of 42
When asked about this by Ms 2 in the interview, Mrs Kacary stated that she did not
remember discussing money with Ms 6 and that when Ms 6 had asked her what had
happened she had replied that she would love to speak to her but that she could not.
In an email sent by Mrs Kacary to Mr A on 11 September 2009 at 11:57, she wrote:
“…You owe me £2750 which is long overdue…”. Mr A was not at work and an out-ofoffice-assistant message said to contact his secretary if the matter was urgent. At 12:10
on 11 September, Mrs Kacary forwarded this email on to Mr A’s secretary.
When asked about this in the interview with Ms 2, Mrs Kacary said that she had done
this because she was angry about being ignored and was chasing for payment.
In her evidence Ms 2 said that when questioned about the above Mrs Kacary was
unable to say definitely that she had not done this.
The panel concluded that, in the context of the highly inappropriate emails, text and
answering machine messages left by Mrs Kacary, it was more likely than not that Mrs
Kacary disclosed how much the A’s had paid for her services as an independent
midwife to a mutual friend. In addition, she had sent an email to Mr A’s work email
address which was read by his secretary. Accordingly, Mrs Kacary failed to respect the
confidentiality of Service User A and Mr A and the panel finds charge 1 (g) proved.
1(h) Failed to maintain sufficient documentation of your postnatal visits to
Service User A
The charge is found not proved.
In the Supervisory Investigation Report dated 20 November 2009, Ms 2 wrote that the
documentation of the postnatal visits carried out by Mrs Kacary in relation to Service
User A were inadequate. She explained that Service User A alleged that she was
expecting to be visited by Mrs Kacary every day for the first ten days after birth. The
panel had sight of the contract that was signed by Service User A and noted that it did
not specify the number of visits she expected postnatally.
Page 18 of 42
As Mrs Kacary’s midwifery records in relation to Service User A were not provided to
this panel, as in charges 1 (a), 1 (c) and 1 (d) above, the panel concluded that there is
insufficient evidence to substantiate this charge.
Accordingly, the panel finds charge 1 (h) not proved.
1(i) Failed to sign any of your entries within Service User A's midwifery records
The charge is found not proved.
As in charges 1 (a), 1 (c), 1 (d) and 1 (h) above, the panel concluded that as Mrs
Kacary’s midwifery records relating to Service User A had not been placed before the
panel, there is insufficient evidence to substantiate this charge.
Accordingly, the panel finds charge 1 (i) not proved.
2 (a) Sent numerous text messages to Service User A which did not relate to
Service User A’s medical condition or treatment
The charge is found proved.
In her witness statement, Service User A said that she was thoroughly unhappy about
the advice and service she had received from Mrs Kacary who she felt had encouraged
her to expose herself and her baby to some serious risk due to Mrs Kacary’s convictions
and not her interests. As a result, Service User A wrote to Mrs Kacary to ask for an
explanation and whether she would be prepared to reconsider her fees in the
circumstances. Service User A said that what followed was a series of emotional,
unprofessional and aggressive emails, text messages and answering machine
messages demanding payment.
Service User A said that on 11 September 2009 she received text messages in which
Mrs Kacary threatened to come around to her home for collection of her full fees. Earlier
that day Mrs Kacary texted her saying “Being ignored makes me feel really angry I have
Page 19 of 42
repeatedly asked you for your payment proposals I cannot afford to forget about this so
will have to take this further such a shame after everything we shared”.
On 13 September 2009, Service User A contacted the police to ask for advice as she
felt harassed.
The panel had sight of a transcript of the text messages sent between Mrs Kacary and
Service User B. Based on this evidence, the panel finds that Mrs Kacary did behave in
an unprofessional manner and accordingly, charge 2 (a) is found proved.
2 (b) Sent numerous emails to Service User A and/or Mr A which did not relate to
Service User A’s medical condition or treatment
The charge is found proved.
In the witness statement of Service User A, she said that Mrs Kacary sent emails
containing confidential information to the law firm where Mr A worked. She said that
these could have been seen by a number of people, including Mr A’s secretary.
The panel had before it a thread of email correspondence between Mrs Kacary, Service
User A and Mr A, dated between 18 August 2009 and 11 September 2009.
During the course of the investigation that was carried out by Ms 2, Mrs Kacary
accepted that she had sent these emails but explained in mitigation that at the time of
sending these her husband was unemployed, she was angry about bring ignored and
her desire to be paid was her first priority. Further, Mrs Kacary accepted that her
behaviour was unprofessional in an interview with Ms 2 (Exhibit KN2).
Based on the unprofessional nature of the emails the panel had sight of, it concluded
that Mrs Kacary did behave in an unprofessional manner towards Service User A and
Mr A by sending numerous emails to them that did not relate to Service User A’s
medical condition or treatment.
Accordingly, charge 2 (b) is found proved.
Page 20 of 42
2 (c) Left numerous messages on Service User A’s and/or Mr A’s answering
machine which did not relate to Service User A’s medical condition or treatment
The charge is found proved.
In her witness statement, Service User A said that Mrs Kacary left unpleasant and rude
messages on the A’s answering machine.
The panel had sight of a transcripts made by Ms 2, of two phone messages left on
Service User A’s telephone answering machine. Ms 2 said that it was difficult to
establish the date and time of the calls as the answer machine was not set to the
correct date and time but she said that Service User A and Mr A were sure they were
received after 13 September 2009, the date they contacted the police.
The panel noted that in these messages, Mrs Kacary said “…I am fed up with being
ignored…”, “…would like to know when you are planning in paying…”, “…the easiest
way to get rid of me is to pay me. I would like to say I wish you a happy life but I would
be lying.”
The panel concluded that these messages left on the A’s answering machine did not
relate to Service User A’s medical condition or treatment. Accordingly, the panel finds
charge 2 (c) proved.
3. Between 5 January and 1 August 2010, failed to highlight the risk factors for
Service User B during her assessments and/or determine the most appropriate
place of birth
The charge is found proved.
In his evidence, Mr B said that he and Service User B were told by a specialist at the
John Radcliffe Hospital in January 2010 that there could be a chance of a rupture but
that it was not a high risk and they should go and enjoy their pregnancy.
Page 21 of 42
Mr B explained that he and Service User B had every trust in Mrs Kacary and decided
to have a homebirth. They spoke to Mrs Kacary about the specialist’s comments about
the risk of rupture, but she reassured them by saying that if there was a problem she
would pick it up straight away. Mr B said that Mrs Kacary never told them that having a
homebirth was risky.
Mr B said that as far as he could remember he and Service User B had no special
advice from Mrs Kacary regarding their homebirth. He said that Mrs Kacary was given
the notes of the previous hospital birth and so she should have been aware of what had
happened with Service User B’s previous pregnancy in which she had a caesarean, one
twin was stillborn and Service User B had a blood transfusion after delivery. Mr B said
that throughout the pregnancy they were not offered the opportunity to discuss a birth
plan, in particular, the third stage of labour and the period afterwards.
Mr B said that he got the impression that Mrs Kacary did not want the B’s to go to
hospital to have their baby. He said that Mrs Kacary never told them that 10 of her
previous 26 Vaginal Birth after Caesarean (“VBAC”) clients had to be transferred to
hospital and that, if she had done, it might well have changed their minds about having
a homebirth. Further, Mr B said that when he and Service User B decided on a
homebirth, Mrs Kacary never said that they should discuss it with a consultant. He said
that Mrs Kacary reassured him on several occasions that she would be able to pick any
problems by the way Service User B was breathing and by other signs and symptoms.
In her evidence, Ms 1 said that there was no documentary evidence in Mrs Kacary’s
midwifery notes to show that she had discussed the risks of a homebirth or took into
consideration Service User B’s medical history.
In the Supervisory Investigation Report, dated 16 September 2010, Ms 4 wrote that
there was no evidence of any discussion regarding the risks of a homebirth specific to
Service User B (“e.g. a scarred uterus, Mrs Kacary had a transfer rate of almost 50% for
VBAC women, the risk of scar dehiscence with the impact for her and her baby;
outcomes are poorer at home due to delays in access to emergency care; and a history
of blood transfusion at her previous birth and with an increased risk of postpartum
haemorrhage for subsequent births”).
Page 22 of 42
In the LSAMO Investigation Report dated 4 October 2010, Ms 1 recorded that Service
User B’s birth plan stated that she “would prefer the third stage to happen naturally”. Ms
1 wrote said that this birth plan was not dated and there was no evidence that Mrs
Kacary had given Service User B the relevant information to make this choice. Ms 1
wrote that there was no documented discussion about Service User B’s risks of birthing
at home and any plan of care that Mrs Kacary was going to put in place because of the
risks. Ms 1 said that when Service User B saw both the consultant obstetricians, she
was planning to birth in hospital.
Ms 1 wrote that Service User B’s family perceived that Service User B was coerced by
Mrs Kacary to have a homebirth. Mrs Kacary denied this and said that she felt that
Service User B had made an informed decision. Ms 1 said that informed decision
making involves making reasoned choices based on the relevant information about the
advantages and disadvantages of all the possible courses of action.
The panel finds charge 3 proved in so far as the fact that Mrs Kacary failed to highlight
the risk factors for Service User B during her assessments. However, the panel did not
find that Mrs Kacary failed to determine the most appropriate place of birth as this was
ultimately the choice of the parents’ and not for Mrs Kacary to determine.
Accordingly, the panel finds charge 3 proved only to the extent of the failure to highlight
the risk factors for Service User B during her assessments and to enable them to make
an informed decision about the most appropriate place of birth.
4 (a) Failed to adequately manage the third stage of Service User B's labour
The charge is found proved.
At the LSA meeting on 3 September 2010, Mrs Kacary said that at the third stage labour
there was nothing untoward. She said that Service User B was lying flat on the bed with
the baby on her chest. Mrs Kacary said that there was a brisk blood loss so she
switched to active management. She said that Service User B was uncomfortable and
had after pains, but that there was nothing untoward with the delivery of the placenta.
Page 23 of 42
Mrs Kacary said that she pulled the placenta maybe 2 or 3 times at the most, let the
cord bleed and then wrapped the cord around her fingers and pulled.
Mr B told the panel that after the birth of the B’s infant baby boy, Mrs Kacary said that
the placenta would pass naturally. However, this did not happen. Mr B said that Mrs
Kacary started to pull the placenta out. He said that Service User B’s stomach was
expanding to a size more than when she was fully pregnant and she said it was too
uncomfortable. Mr B said that Mrs Kacary pulled the cord 6 to 7 times over a period of
about half an hour. He said that eventually the placenta came out with a lot of force and
tugging. Mr B said that he thought the force would have “ripped all of her insides out”
and that Service User B needed gas and air while the placenta was being pulled out.
Ms 1 recorded in the LSAMO Investigation Report that the whole of the third stage had
lasted 40 minutes. There had been a 500ml blood loss and Mrs Kacary did not deliver
the placenta easily. She said that all of these factors should have alerted Mrs Kacary to
being extra vigilant in examining the placenta and in the anticipation that there may be
haemorrhaging. Ms 1 said that the clinical situation should have alerted Mrs Kacary to
assess the impact the blood loss had on the maternal condition. She told the panel that
Mrs Kacary should have checked that the uterus was well contracted and the normal
blood loss following delivery (lochia) stayed within normal limits and was not excessive.
Ms 1 reported that Mrs Kacary had taken some steps to check the condition of Service
User B, as postnatal observations of pulse, temperature and blood pressure were
recorded at 08.15 and 09.30.
Further, Ms 1 reported that the placenta had not delivered before the sustained action of
the Syntometrine took effect. She said that the cervix may have clamped down and this
may be why Mrs Kacary had difficulty in delivering the placenta or the placenta was still
adhered to the uterine wall at this point in time. Ms 1 said that the effects of the
Syntometrine may have been wearing off at approximately 09.00 – 10.00. This was just
at the time that Mrs Kacary was preparing to leave. Ms 1 said that it is significant to note
that Service User B had not got out of bed as she felt too unwell and also had not got up
to pass urine. In the interests of prevention of deep vein thrombosis it would have been
good management for Service User B to have mobilised early. The fact that she did not
want to or could not, was very unusual for homebirth women and should have alerted
Mrs Kacary to the fact that things were not well.
Page 24 of 42
Ms 1 said that one of the problems associated with controlled cord traction is that the
midwife risks pulling out an incompletely separated placenta and also causing the
woman pain if the placenta is not completely separated. Mr B asserted that Service
User B was in pain and required Entonox for the third stage. Ms 1 told the panel that
this was unusual as it is a-typical for a woman to feel pain when delivering the placenta.
Ms 1 said that in her professional opinion, when dealing with a patient with Service User
B’s history, Mrs Kacary should have planned for the third stage of labour in the
antenatal period. In addition, it would have been best course of action with Service User
B’s history to plan a package of care jointly with the LSA. Ms 1 said that Mrs Kacary’s
decision to administer Syntometrine ten minutes after the baby was born was a late
decision to make and indicated that Mrs Kacary had not anticipated the risk factors for
Service User B.
Ms 1 said that Mrs Kacary should have been aware of the signs and symptoms of a
concealed as well as a revealed haemorrhage.
The panel determined that, in light of all the expert evidence adduced which the panel
has accepted, Mrs Kacary failed to follow the correct techniques in attempting to deliver
the placenta and accordingly, failed to adequately manage the third stage of Service
User B’s labour. Therefore, the panel finds charge 4 (a) proved.
4 (b) Failed to maintain accurate midwifery records, in that you did not state what
time your notes were made in retrospective entries
The charge is found not proved.
In her evidence, Ms 1 drew the panel’s attention to the Labour Notes completed by Mrs
Kacary. She said that although these notes were made retrospectively by Mrs Kacary,
they were written as if she recorded them contemporaneously. Ms 1 explained that it is
normal practice for such notes to be written retrospectively, but that these should still
state at what time the entries are written.
Page 25 of 42
The panel concluded that although the time of Mrs Kacary’s retrospective notes was not
recorded, there was no evidence adduced by the NMC to suggest that these notes were
inaccurate. Accordingly, due to the lack of evidence, the panel finds charge 4 (b) not
proved.
4 (c) Failed to undertake a thorough examination of the placenta, more
particularly you
(i) did not examine the placenta in good light.
(ii)Did not ensure you had sufficient space to examine the placenta
(iii)Did not identify a section of the placenta had been retained
The charge is found proved in its entirety.
At the LSA meeting on 3 September 2010 Mrs Kacary said that at Service User B’s
home there was a lamp in the corner behind her and a light shining through from the
hallway in front of her. She said that she had a hand held torch but she was unsure
where it was and it may have been laid out on the floor or the bed. Mrs Kacary said that
she used a bowl of clean water and sterile gauze swabs to wash the area. She stated
that she did not turn the light on.
Mrs Kacary said that she had Inco (incontinence) pads with her. She said she took the
placenta out of the silver bowl and held it in two hands. Mrs Kacary said that the silver
bowl was on an Inco sheet.
In response to another question, Mrs Kacary stated that the lighting was adequate and
‘it did not feel dark’. She said that she checked the placenta and talked Mr B through it
to check vessels, look at membranes and look for cotyledons. Mrs Kacary said she
examined the placenta on the floor with the wall lamp behind her and the landing light in
front as she was near the door.
Mr B told the panel that Mrs Kacary placed the placenta in a silver bowl about 6 inches
in diameter and put it on the floor to inspect. She turned the placenta over while holding
Page 26 of 42
a torch in her hand or in her mouth. Mr B said that it was done quite quickly. He said
that Mrs Kacary thought there was some membrane still in Service User B which she
said would come out naturally. Mrs Kacary then checked Service User B to see of any
placenta had been left behind by torchlight but she did not check her internally. Mr B
said that Mrs Kacary had to use a small torch (“a mag light”) to check the placenta and
Service User B because the curtains where closed and the room was not well lit. Mr B
said that Service User B did not feel right from the time that the placenta came out.
Ms 3 told the panel that a placenta needs to be spread on a flat surface with good light
to ensure completeness. Ms 3 said that when she met the B family on 27 August 2010,
Mr B was clear as to what happened at this stage. She said that she believed Mr B
would not know what the normal procedure is and she believed he gave an account of
what he observed.
Ms 1 told the panel that in her opinion, Mrs Kacary did not adequately check the
placenta once it had been delivered as it seemed clear to her that a substantial section
of the placenta (almost a third) was missing. Ms 1 referred the panel to photographs
(Exhibits 4 a and b) of the placenta taken at RBH showing the placenta and the section
removed from Service User B while at the hospital.
Ms 1 said that Mrs Kacary’s midwifery notes recorded that the placenta was complete
and the membranes ragged. She said that in her professional opinion it was obvious
that a substantial part of the placenta was missing and that a trained midwife should
have been able to spot this.
The panel noted that there is a conflict of evidence between Mr B’s account of events
and Mrs Kacary’s account of events. The panel noted that Mrs Kacary’s evidence was
inconsistent. Further, it bore in mind that Mr B was interested in the placenta and
determined that, on a balance of probabilities, Mr B provided an accurate account of
what occurred. Further, the panel accepted Ms 1’s professional opinion that it was clear
that a substantial part of the placenta was missing and that a trained midwife should
have been able to spot this. Accordingly, the panel finds charge 4 (c) proved in its
entirety.
Page 27 of 42
4 (d) Failed to adequately anticipate that Service User B may suffer from a
haemorrhage despite her being at a higher risk of haemorrhage
The charge is found proved.
Ms 4 told the panel that the fact that Service User B had a scarred uterus; a history of
blood transfusion; given birth to a larger than average baby; experienced a brisk blood
loss in the third stage; delivered a placenta with ragged membrane and tearing to the
genital tract should have alerted Mrs Kacary to the fact that Service User B was at a
higher risk of haemorrhage.
In the Supervisory Investigation Report dated 16 September 2010, Ms 4 wrote that Mrs
Kacary told them that she did not assess that there was a high risk of postpartum
haemorrhage.
In her evidence, Ms 3 said that Mrs Kacary should have noted that the after pains
experienced by Service User B combined with the fact that Service User B was feeling
sick and faint and had lost 500mls of blood should have alerted Mrs Kacary to the fact
that Service User B may haemorrhage.
Ms 1 told the panel that in her professional opinion the fact that Service User B’s third
stage of labour had lasted forty minutes, combined with a 500ml blood loss and a
difficult delivery of the placenta, should have alerted Mrs Kacary to the risk of a
haemorrhage. She said that Mrs Kacary should have made further checks of the
placenta and contraction of the uterus. Ms 1 also said that in her experience it is highly
unusual for pain relief to be required for the delivery of the placenta and that this should
have “rang warning bells” with Mrs Kacary. She said that the fact that Service User B
could not get up and did not want to urinate also should have alerted Mrs Kacary to the
fact that something may be wrong.
The panel found the wording of this charge to be unhelpful and vague. However, it
concluded that, based on all the evidence adduced, it is more likely than not that Mrs
Kacary failed to adequately anticipate that Service User B may suffer from a
haemorrhage. Accordingly, charge 4 (d) is found proved.
Page 28 of 42
4 (e) Failed to adequately assess and/or monitor Service User B’s deteriorating
condition in the immediate postnatal period
The charge is found proved.
At the LSA meeting on 3 September 2010 Mrs Kacary said that she thought Service
User B was having a normal reaction to a normal birth and that there was no reason for
her to think that anything was wrong as women often feel faint and sickly after birth. Mrs
Kacary said that Service User B’s blood pressure, which was taken at 09.30 am, was
not very low (60MmHg diastolic) and that if she had felt that there was a reason to take
Service User B’s blood pressure again she would have done so. Mrs Kacary said that
she checked Service User B’s uterus and all of her observations seemed okay. She
then asked Mr B if it was okay for her to go and “said proper goodbyes and thank
you’s”. Mrs Kacary said that she felt that it was not unreasonable to go as everything
seemed “perfectly okay”. She said that she left a woman in a perfectly good condition
after a normal birth and came back and found her very seriously ill.
In his evidence, Mr B described to the panel what his wife's symptoms in the postnatal
period were: she was feeling hot but she was cold to the touch, she felt weak and had
feelings of pins and needles in her legs. He said that Mrs Kacary was not very “hands
on” after the birth. Mr B said that between 9.00 and 10.00 am he and Mrs Kacary took
turns in massaging Service User B’s legs but that for most of the time, Mrs Kacary sat
on the end of the bed using her mobile phone. Mr B said that Mrs Kacary did not check
Service User B’s blood pressure before she left at 10.00 am because he was there with
Service User B when Mrs Kacary took off the blood pressure cuff at about 9.30 am. Mr
B said that Mrs Kacary appeared to be in a hurry when she left, and said she would be
back the following morning. Mr B said that he thought it was bizarre and was shocked
that Mrs Kacary was leaving so soon.
Mr B said that Mrs Kacary kept telling him that Service User B was fine whenever he
raised his concerns about her. He said that Mrs Kacary reassured him that all Service
User B needed was rest and sleep. Before she left, Mrs Kacary asked Mr B to make
sure that Service User B did pass urine.
Page 29 of 42
In the Supervisory Investigation Report dated 16 September 2010, Ms 4 wrote that Mrs
Kacary had documented that she had completed temperature, pulse and blood pressure
recordings. Mrs Kacary had recorded that she had assessed Service User B’s uterine
contraction and blood loss as normal on several occasions, but that the timings were
unclear. Mrs Kacary had documented Service User B’s temperature, blood pressure
and pulse at 08.15 hours as all within normal limits and repeated her pulse at 09.30
hours which was again normal. Mrs Kacary wrote that she had assessed Service User
B’s symptoms were due to the after effects Pethidine, Syntometrine and after pains and
had suggested that she take 2 Paracetamol.
The NICE Postnatal Guidelines 2006 state that signs and symptoms of postpartum
haemorrhage include faintness and dizziness. It states that pregnant and newly
delivered mother compensate for some time which means that the usual signs and
symptoms of problems in the case of haemorrhage are not present or are delayed.
Further, NICE Postnatal Guidelines state that “if a woman has not voided by 6 hours
postpartum and measures to encourage micturition, such as taking a warm bath or
shower, are not immediately successful, bladder volume should be assessed and
catheterisation considered (urgent action).”
Ms 1 said that by the time Mrs Kacary left the house at 10.00am, Service User B had
not passed urine since the birth. She said that in her professional opinion Mrs Kacary
should not have left the home while Service User B was exhibiting such symptoms. She
said that the Syntometrine which Mrs Kacary had administered to Service User B would
have been wearing off by the time that Mrs Kacary left the home and as such would not
have been the cause for Service User B’s symptoms.
In the LSAMO Investigation Report dated 4 October 2010, Ms 1 wrote that Mrs Kacary
failed to holistically assess Service User B in the postnatal period.
Ms 3 told the panel that in her professional opinion Mrs Kacary should have been
concerned when Service User B could not get up to pass urine. She said that in her
opinion Mrs Kacary should have phoned a colleague for either advice or support at this
point.
Page 30 of 42
The panel determined that there were a series of factors that Mrs Kacary failed to
recognise in relation to Service User B’s deteriorating condition in the immediate
postnatal period. Based on all of the evidence, the panel concluded that Mrs Kacary
failed to adequately assess and/or monitor Service User B’s deteriorating condition and
accordingly, charge 4 (e) is found proved.
4 (f) (i) Did not conduct a clinical examination via the telephone using Service
User B
The charge is found not proved.
Mr B told the panel that he texted Mrs Kacary at 13:07 informing her that Service User B
wanted him to call an ambulance. Mrs Kacary called Mr B at 1.08pm to say that she
was on her way over.
Ms 1 said that in her professional opinion Mrs Kacary should have conducted a clinical
examination over the phone using Mr B. She said that Mrs Kacary should have asked
further questions to clarify the situation instead of leaving Service User B without
professional attendance for fifty minutes.
Ms 3 told the panel that upon receiving Mr B’s text, Mrs Kacary did not question Mr B
carefully enough regarding Service User B’s condition. She said that as Mrs Kacary
lived 40-50 minutes away, an ambulance should have been called as it could have
arrived within 8-10 minutes.
In her witness statement, Ms 5 said that Mrs Kacary should have asked to speak to
Service User B and should have realised something was wrong in that Service User B
had not recovered some 6-7 hours after an apparently uncomplicated, planned birth at
home.
The panel accepted that Mrs Kacary failed to carry out any form of assessment of
Service User B via telephone upon receiving the text from Mr B at 1.07 pm. However,
the charge is that Mrs Kacary failed to ascertain clinical facts, more particularly that she
Page 31 of 42
did not conduct a “clinical examination” via telephone using Service User B. The panel
determined that Service User B would have had to be physically present for Mrs Kacary
to conduct a clinical examination of her and that as such, such an examination was not
possible for Mrs Kacary to carry out. The panel therefore concluded that it would not be
appropriate to seek to construe the meaning of the charge by drawing a wider meaning
than that set out. Accordingly, the panel finds charge 4 (f) (i) not proved.
4 (f) (ii) Did not call or instruct Mr B to call for an ambulance
The charge is found not proved.
The panel accepts the evidence that Mrs Kacary did not call or instruct Mr B to call an
ambulance upon receiving the text from Mr B at 1.07pm. However, the panel noted that
the charge is drafted as “Failed to ascertain the clinical facts when you received a text
message from Service User B’s partner Mr B…” The panel concluded that, on the basis
of the drafting of charge 4 (f) (ii), it could not be satisfied that, on a balance of
probabilities, Mrs Kacary would have been able to ascertain clinical facts when she did
not call or instruct Mr B to call for an ambulance. Accordingly, the panel finds charge 4
(f) (ii) not proved.
Decision on misconduct and impairment
In determining whether or not Mrs Kacary’s fitness to practise is currently impaired, the
panel has borne in mind that this is a two stage process. It considered first whether the
facts found proved amount to misconduct and only if so, whether as a result of that
misconduct, Mrs Kacary’s fitness to practise is currently impaired. The panel bore in
mind that there is no burden or standard of proof and that both misconduct and current
impairment are for the panel’s own judgement.
The panel has considered the submissions of Mr Clark on behalf of the NMC. It has had
regard to all of the oral and documentary evidence adduced.
In his submissions to the panel regarding whether Mrs Kacary’s actions amount to
misconduct, Mr Clark referred the panel to the guideline case of Roylance v GMC (No
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2) [2000] 1 A.C. 311. Lord Clyde, in that case, described misconduct as “a word of
general effect, involving some act or omission which falls short of what would be proper
in the circumstances.” Mr Clark submitted that the charges found proved fell far short of
the standards expected of Mrs Kacary as a registered midwife and as such, amounted
to misconduct.
Mr Clark invited the panel to consider The Code: Standards of Conduct, Performance
and Ethics for Nurses and Midwives (2008) (“the Code”) namely the preamble and
paragraphs 1, 3, 5, 8, 26, 28, 35, 52 and 61, which he submitted Mrs Kacary had
breached.
As well as the Code, Mr Clark referred the panel to The Nursing and Midwifery Council
(Midwives) Rules 2004 (“the Midwives Rules”) in force at the relevant time and
submitted that Mrs Kacary had breached Rule 6.3 in particular. He submitted that
through her actions Mrs Kacary failed to adhere to various provisions of both the Code
and the Midwives Rules and that her deviations from these were on a wide scale.
Mr Clark submitted that in view of the significant risk to patients, both potential and
actual and Mrs Kacary’s wholly unprofessional response to the complaint from Service
User A, Mrs Kacary’s actions have brought the midwifery profession into disrepute. He
submitted that a finding of misconduct in respect of all the facts found proven is justified.
With regard to impairment, Mr Clark referred the panel to the guidance in Dame Janet
Smith’s Fifth Shipman Report, approved by Mrs Justice Cox in CHRE v NMC and Grant
[2011] EWHC 97. That guidance urges panels considering impairment to ask
themselves, amongst other matters, whether:
a)
The registrant has in the past acted and/or is liable in the future to act so as to
put a patient(s) at unwarranted risk of harm; and/or
b)
The registrant has in the past brought and/or is liable in the future to bring the
profession into disrepute; and/or
c)
The registrant has in the past breached and/or is liable in the future to breach
one of the fundamental tenets of the profession; and/or
d)
The registrant has in the past and/or is liable in the future to act dishonestly.
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Mr Clark submitted that although provision (d) is not relevant in this matter, he
submitted that provisions (a), (b) and (c) are directly applicable and relevant to this
case. He submitted that Mrs Kacary’s failings were wide-ranging and related to core
skills and professional behaviours expected of a midwife.
Mr Clark submitted that the charges found proved (specifically charges 1 (b), 1 (f), 3, 4
(a), 4 (c), 4 (d) and 4 (e)) present a very significant risk to the public. Mr Clark submitted
that given Mrs Kacary’s almost complete lack of engagement with these NMC
proceedings and the lack of evidence demonstrating any insight or remediation, the
likelihood of repetition is high.
Mr Clark submitted that a fatality in consequence of care provided by a registered
midwife is so grave an outcome that the public interest and the need to declare and
uphold proper standards can only be satisfied, by the conclusion that this is misconduct
which impairs Mrs Kacary’s fitness to practise.
The legal assessor referred the panel to the cases of Roylance v General Medical
Council (No 2) [2000] 1 A.C. 311, R (on the application of Dr. Malcolm Calhaem) v
General Medical Council [2007] EWHC 2606 (Admin) and Council for Healthcare
Regulatory Excellence v (1) Nursing and Midwifery Council (2) Grant [2011] EWHC 927
(Admin). The panel has accepted the advice of the legal assessor.
The panel has had regard to all the evidence, the matters found to have been proved
and the provisions of the relevant Code and the Midwives Rules. It reminded itself that
registrants are personally accountable for their practice. The panel accepted Mr Clark’s
submissions that, by her actions Mrs Kacary was in breach of the following provisions of
the Code:
Preamble
“The people in your care must be able to trust you with their health and wellbeing
To justify that trust, you must:
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• make the care of people your first concern, treating them as
individuals and respecting their dignity
• work with others to protect and promote the health and wellbeing of
those in your care, their families and carers, and the wider
community
• provide a high standard of practice and care at all times
• be open and honest, act with integrity and uphold the reputation of
your profession.
1.
You must treat people as individuals and respect their dignity.
3.
You must treat people kindly and considerately.
5.
You must respect people’s right to confidentiality.
8.
You must listen to the people in your care and respond to their concerns
and preferences.
26.
You must consult and take advice from colleagues when appropriate.
28.
You must make a referral to another practitioner when it is in the best
interests of someone in your care.
35.
You must deliver care based on the best available evidence or best
practice.
52.
You must give a constructive and honest response to anyone who
complains about the care they have received.
61.
You must uphold the reputation of your profession at all times.”
Further, the panel considered that Mrs Kacary was also in breach of the following
provisions of the Midwives Rules:
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“6.3
If an aspect of practice is beyond your level of competence or outside your
area of registration, you must obtain help and supervision from a
competent practitioner until you and your employer consider that you have
acquired the requisite knowledge.”
In reaching its decision, the panel accepted that breaches of the Code and the Midwives
Rules do not automatically result in a finding of misconduct. However, it is the panel’s
judgement that Mrs Kacary’s actions fell significantly short of the professional standards
expected of her as a registered midwife.
The panel noted the email sent by Mrs Kacary to Service User A on 19 August 2009 at
15:56. In this email Mrs Kacary wrote: “You do owe me rather a lot of money. I consider
this a debt of honour as much as anything and it will be on your conscience every time
your look at your son.” The panel concluded that the emails sent by Mrs Kacary were
inexcusable and wholly unprofessional. Mrs Kacary placed her own needs above those
of the Service User in what can only be described as an abuse of trust and power on
the part of Mrs Kacary.
The panel also had regard to the evidence that Mrs Kacary’s actions either contributed
to the death of Service User B or significantly increased the risk of her death. The panel
bore in mind the evidence of the experienced midwives heard during the course of this
case who all consistently stated that Mrs Kacary’s conduct was a substantial departure
from the expectations of her as a registered midwife. Mrs Kacary’s conduct involved a
number of significant and catastrophic errors, which included her failure to recognise the
multiple signs that Service User B’s condition was deteriorating.
The panel concluded that Mrs Kacary departed significantly from best practice by failing
to identify the risks involved, take appropriate and prompt action, use the third stage of
labour techniques effectively, adhere to the NICE Guidance and maintain current good
practice.
The panel bore in mind that Mrs Kacary had successfully undertaken a period of
developmental practice following the events involving Service User A. However, Mrs
Kacary repeated some similar errors in relation to the care of Service User B.
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Accordingly, it is the panel’s judgement that misconduct has been made out which is
serious.
The panel then considered, on the basis of the misconduct found, whether Mrs Kacary’s
fitness to practise is currently impaired. The NMC defines fitness to practise as a
registrant’s suitability to remain on the register without restriction. The panel reminded
itself that it should consider not only the risk that a registrant presents to members of
the public, but also the public interest in upholding proper professional standards and
public confidence in the NMC as a regulator, and whether that confidence would be
undermined if a finding of impairment were not made in the circumstances of this case.
In approaching its decision on impairment the panel asked itself whether by reason of
her misconduct Mrs Kacary had put patients at unwarranted risk of harm, had brought
the profession into disrepute and had breached fundamental tenets of the profession.
The panel acknowledged that Mrs Kacary engaged fully with the LSA investigation
process into Service User A’s complaint and Service User B’s death. It determined that
by her misconduct she had placed Service User A at a risk of potential harm and
caused Service User B unwarranted and serious harm. Further, in relation to both
service users, the panel found that Mrs Kacary had brought the profession into
disrepute and had breached fundamental tenets of the midwifery profession by not
making the mother and child the primary focus.
The panel noted Mrs Kacary’s very limited engagement with the NMC proceedings. It
has been provided with no evidence to suggest that Mrs Kacary has taken any steps to
remedy or address her clinical failings. Accordingly, the panel determined that it has no
evidence to be reassured that as of today Mrs Kacary is capable of working safely and
effectively as a registered midwife and therefore, her fitness to practise is currently
impaired.
Further, the panel considered that Mrs Kacary’s misconduct was of a type likely to bring
the profession into disrepute. Her actions did not meet the standards expected of her as
a registered midwife. For these reasons the panel was also satisfied that this was a
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case where the need to uphold proper professional standards and public confidence in
the profession would be undermined if a finding of impairment were not made.
Having regard to the very serious misconduct in this case and also to the wider public
interest in maintaining and upholding proper professional standards and upholding
public confidence in the profession and the NMC as its regulator, the panel concluded
that Mrs Kacary’s fitness to practise is currently impaired by reason of her misconduct.
Determination on sanction
Having found that Mrs Kacary’s fitness to practise is currently impaired, the panel
moved on to consider what sanction, if any, to impose.
In reaching this decision the panel has had regard to all the oral and documentary
evidence that has been adduced in this case. The panel heard the submissions of Mr
Clark on behalf of the NMC.
Under Article 29 of the Nursing and Midwifery Council Order 2001, the panel has power
to impose the following sanctions in ascending order: to take no further action; to
impose a caution order for one to five years; to impose a conditions of practice order for
up to three years; to impose a suspension order for up to twelve months or to make a
striking off order.
The panel is aware that any sanction imposed must be reasonable, appropriate and
proportionate. The panel had careful regard to the NMC’s Indicative Sanctions
Guidance of May 2012 and kept in mind that it must start with the least restrictive
sanction. It recognised that the decision on sanction is a matter for the panel exercising
its own independent judgement.
In his final submissions, Mr Clark referred the panel to the Indicative Sanctions
Guidance, in particular paragraphs 15, 19 – 24 and set out the mitigating and
aggravating factors in relation to Mrs Kacary.
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The panel has accepted the advice of the legal assessor, who referred it to the case of
R (on the application of Abrahaem) v GMC [2004] EWHC 279 (Admin).
In reaching its determination, the panel has applied the principles of fairness,
reasonableness and proportionality, weighing the public interest with Mrs Kacary’s own
interests and taking into account the mitigating and aggravating factors in the case. The
public interest includes the protection of members of the public be they patients or
service users, the maintenance of public confidence in the profession and the declaring
and upholding of proper standards of conduct and behaviour. The panel has carefully
examined the key considerations outlined in the Indicative Sanctions Guidance, and has
borne in mind that the decision on sanction is one for its own independent judgement.
The panel is mindful of the fact that the purpose of a sanction is not to be punitive but
rather to protect the public and the public interest.
The panel then considered the aggravating and mitigating factors in this case. In terms
of mitigation, the panel has taken into account Mrs Kacary’s engagement with the LSA
investigations. It also noted the mitigating factors Ms 2 set out in the Supervisory
Investigation Report dated 20 November 2009 in relation to Service User A, namely that
Mrs Kacary was experiencing financial concerns at that time and that her behaviour in
reaction to Service User A’s concerns was unprofessional. Mrs Kacary also
demonstrated insight in recognising that her documentation could be improved upon.
The panel noted that in both the Supervisory Investigation Report of Ms 4 dated 16
September 2010 and the LSAMO Investigation Report of Ms 1 dated 4 October 2010, in
relation to Service User B neither recorded that any mitigation was put forward by Mrs
Kacary.
In terms of aggravating factors, the panel has taken into account the nature and
seriousness of the charges and the facts found proved. It bore in mind the actual harm
caused to the service users. Mrs Kacary has not engaged in the NMC process and so
the panel has had no evidence of any remedial steps that have been taken by Mrs
Kacary. The panel has concern that Mrs Kacary appeared to prioritise her own clinical
preferences for the type and location of birth to be offered to Service User A and B and
did not either adequately assess the risks involved to them or consider those patients
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needs as her first priority. There has been no evidence of any willingness to address
these attitudinal concerns raised or any attempt to overcome her clinical failings and
return to safe midwifery practice.
The panel noted Mrs Kacary’s inexcusable and wholly unprofessional conduct in
relation to Service User A and her apparent failure to learn from the period of
developmental practice undertaken. The panel further bore in mind the tragic death of
Service User B and Mrs Kacary’s repeated failure to take appropriate action in the time
leading up to her admission to hospital. Finally, the panel has taken into account the
notes of the LSA meeting dated 17 September 2010 in which Mrs Kacary stated that
she did not intend to engage in the NMC process and that she did not intend to work as
a midwife again.
The panel first considered whether this is a case where it is appropriate to take no
action. Given the serious nature of Mrs Kacary’s misconduct, the panel concluded that
such a course of action would be wholly insufficient for the protection of the public and
would not be in the public interest.
The panel then considered whether to impose a caution order and concluded that this
too would not be appropriate. It took into account the Indicative Sanctions Guidance,
which states that a caution order may be appropriate where ‘the case is at the lower end
of the spectrum of impaired fitness to practise and the panel wishes to mark that the
behaviour was unacceptable and must not happen again.’ The panel concluded that
such an order would not send a sufficiently strong message to the public and to the
profession. In the panel’s view, this misconduct manifestly does not fall at the lower end
of the spectrum of impaired fitness to practise. The panel has concluded that a caution
order would be insufficient to mark the seriousness of Mrs Kacary’s actions, or to
maintain the public’s confidence in the profession and the regulatory process.
The panel went on to consider the imposition of a conditions of practice order. The
panel has given careful consideration as to whether imposing conditions would be
sufficient to protect the public and address the public interest in this matter. It is the
panel’s judgement that conditions would neither be proportionate nor workable. There
has been no information provided as to what conditions could be imposed, monitored or
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enforced and, most significantly, no evidence of any willingness from Mrs Kacary to
return to work subject to conditions of practice. Further, the panel is of the view that
conditions of practice would be wholly inadequate and not proportionate. Nor would it
address the panel’s concerns, protect the public or the public interest.
The panel then went on to consider whether a suspension order would be appropriate. It
bore in mind that Mrs Kacary’s actions involved multiple instances of misconduct.
Further, the panel noted that Mrs Kacary has not provided the panel with evidence that
any steps have been taken to remediate her misconduct. In addition, the panel
considered that the misconduct and its consequences in this case were so serious that
nothing less than a striking off order could be considered appropriate.
It is the panel’s judgement that Mrs Kacary’s failings both attitudinal and clinical are
fundamentally incompatible with continuing to be registered with the NMC. These were
very serious departures from the relevant standards as set out in the Code and the
panel has determined that there is a continuing risk to patients and service users. The
panel bore in mind that Mrs Kacary made the decision to work as an independent
midwife, in a degree of isolation, and that this arguably involves a higher degree of trust
from the public and the requirement to withstand public scrutiny. She reassured Service
User A and B that they would receive individual and better standards of care than they
had previously received during their hospital births. However, Mrs Kacary’s failings
resulted in a series of serious clinical errors that resulted in a departure from even the
basic professional standards of care expected of a midwife.
The panel concluded that Mrs Kacary’s behaviour was wholly unprofessional and
unacceptable. Given the nature of the misconduct found, the panel has concluded that
confidence in the profession and its regulator would be undermined if Mrs Kacary were
to remain on the Register. For all these reasons, the panel has concluded that a striking
off order is necessary both to protect the public and address the public interest in this
case, namely, declaring and upholding proper standards and maintaining public
confidence in the profession.
Mrs Kacary may not apply for restoration until five years after the date that this decision
takes effect.
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Decision on interim order
The panel has considered the submissions of Mr Clark, on behalf of the NMC. He
submitted that an 18 month Interim Suspension Order is necessary for the protection of
the public and is otherwise in the public interest. Mr Clark submitted that an Interim
Suspension Order would be consistent with the panel’s earlier findings.
The panel has accepted the advice of the legal assessor.
The panel has had regard to the seriousness of the case and the reasons set out in its
decision for the Striking-off Order. The panel considers that an interim order is
necessary for the protection of the public and is otherwise in the public interest. Not to
make an interim order would be incompatible with the panel’s earlier findings.
The panel has determined to make an Interim Suspension Order for a period of 18
months. This is because, should an appeal be lodged, the Substantive Order would not
take effect until the appeal had been determined or withdrawn. However, if no appeal is
made, then the Interim Suspension Order will be replaced by the Striking-off Order 28
days after Mrs Kacary is sent the decision of this hearing in writing.
That concludes this hearing.
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