An update from a regular series written by Mr Robert Wheeler, director, department of clinical law, where he considers various aspects of clinical law that our nursing and medical staff rely on when caring for patients.

Ashley Sanderson is 17 and has cerebral palsy, giving her motor and visual deficits and learning difficulties. Her injuries were caused by brain ischaemia during delivery. An obstetrician was called to see her mother during labour because of recurrent decelerations in the foetal heart rate. Reviewing the trace, she was concerned but at that stage did not find an indication for urgent delivery. Examining the mother, the obstetrician found that whilst the baby had descended the birth canal head-first, she was nevertheless facing the wrong way, the back of her head lying posteriorly. The obstetrician tried to turn her into the correct position, but was unable to rotate the head, or move it up or down.

The obstetrician contemplated an instrumental delivery, but was reluctant to embark upon this in the small room where Ashley's mother lay, which was intended only for women in the first stage of labour. This reluctance was based on the unsuitability of the far-too-small room for emergency caesarean section, should the instrumental delivery fail and the foetal condition immediately deteriorate.

The obstetric unit that night was frantically busy, with all theatres and delivery suites fully occupied. The unit had closed for safety reasons, but women were still arriving by ambulance or self-referring. The obstetrician decided to perform a foetal blood sample; in the two minutes spent obtaining the equipment the foetal heart rate dropped abruptly, and delivery had now become urgent. The notion of blood sampling was abandoned. With no time for a sterile field or catheter insertion the baby was successfully rotated and delivered using instruments, 17 minutes after the beginning of the bradycardia. She was born in poor condition.

Ashley’s mother died in tragic circumstances shortly after the birth. Ashley was subsequently brought up by her maternal aunt, who made a claim against the hospital on her behalf. The claim was in part based on the assertion that if Ashley had been delivered earlier, the period of hypoxia would have either been reduced or avoided completely, and that if the decision to take a foetal blood sample had not been taken, the delivery would not have been delayed for vital minutes.

The expert witness for the claimant relied on a NICE guideline indicating that where there is clear evidence of acute foetal compromise, foetal blood sampling should not be undertaken, and the baby should be delivered urgently.

The judge made several points about the guidelines, not least that they appeared to advocate two contradictory management options in relation to foetal blood sampling. In words that could be applicable to guidelines generally, she noted that guidelines are ‘...useful as far as they go, but they are limited....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.’ The court found this witness offered little in the way of a ‘...real world analysis of how the reasonably competent clinician should respond...’ to these clinical circumstances. The guidelines in this case were ‘...a practical tool to be used in conjunction with clinical judgement’.

This judgement confirms what we already knew, but this confirmation is welcome. A breach of a guideline or a local policy does not automatically indicate substandard care. Some guidelines are flawed; some fail to reflect the ‘real world’.

Equally, this does not release any of us from the responsibility to consider relevant guidelines as a tool to help us make clinical decisions. If on occasion the clinical circumstances lead us after cautious consideration to depart from guidelines, we should record our reasons for so doing.

Robert Wheeler
Department of clinical law
March 2020

Guidelines only guide us