Frances Fraser is a midwife who qualified in 2010. She has worked in all clinical areas of maternity, with much of her experience in labour and birth care. Supporting women birthing at home, in the midwifery led unit and high-risk consultant led unit. Frances has a deep passion for supporting maternal choice, as well as her involvement in emergency sims training of staff.
I was first introduced to the role of a midwifery expert by a senior midwife I had the pleasure of working with early in my career. Not only did we share a surname, but also, it turns out, an ability to understand the nuances of midwifery practice enough to have the privilege to be considered an expert. Fast forward 12 years and this woman continues to mentor me, but now passing on her expertise as a witness as opposed to her clinical wisdom.
My role as an expert witness has certainly been a learning curve, a clinical midwife at heart, whose career majority has been spent with women giving birth. I seem to have stepped into a parallel universe, where clinical conduct is considered and discussed from the comfort of an office chair.
I am being facetious, although I admit that there is some truth to this, I often find myself thinking about the working environment the clinicians involved in the cases I comment on are working in and how I have walked in their shoes; twelve-hour shifts, no break, fetal heart traces, emergency buzzes, more women than staff to care for them. This can certainly be lost when we experts look back at what was recorded in the black and white.
This experience of the midwifery perspective comes easily to me and is an integral part of my role. The formulation of an argument with the application of the legal tests – Bolam, with Bolitho and Montgomery was not something my midwifery training had prepared me for. Two years down the line I certainly have developed a better understanding of relevant law and procedure, I am learning and improving upon this all the time.
This is part of what I really enjoy about the expert role, I can feel challenged in another way. Of course, the majority of cases have sad outcomes, and I take no pleasure in this, but I see myself as able to make a difference in another way, which is what led me to midwifery in the first place. I have always been passionate about maintaining high standards of care and the process of learning through multi-disciplinary collaboration to understand when things have gone wrong, this motivation has lent itself perfectly to my role as an expert.
I am still practising as a midwife, not only do I bring this expertise to my expert role, but I can also bring my insights as an expert to my clinical role. Most notably in my documentation, as I have never been a supporter of the adage ‘if it’s not written down, it didn’t happen’ because in practice this is not only impossible, due to the workload, but also, I question whether it is necessary. I note this reasoning has been the focus of some debate; however, a judge is likely to resolve a clinical negligence factual issue in favour of evidence in the clinical records (Ford, 2019)1.
I am starting to relate; when reviewing clinicians’ records becoming frustrated by the lack of well documented thought processes in decision making, which would certainly make my role as an expert easier, I now understand where the formulation for the above reasoning was born, in litigation proceedings. I can be torn between understating the context of the clinical environment and how it impacts upon documentation, but on the other hand how factual evidence can support an action or a perceived omission.
When I was a midwife in training we were told not to ‘write defensively’ as this was not the intention for the records. This is an idea that as a practising midwife I became challenged by and certainly as I have become an expert witness now disagree with, although perhaps worded in a different way the sentiment is the same. We should be writing our records in a way that supports rationale for decisions, clearly outlining information shared with women when they have been offered choice, to provide evidence of their consent to treatments and interventions. The current maternity climate calls for this transparency and perhaps there may be opinion that this approach is ‘defensive’, I pose the counter that it’s ‘reflective’.
Reflective of the standard of care provided, never allow your reasoning for decisions to be left to presumption. How has this affected my midwifery practice? I certainly write clearer records, document thought processes, and provide my rationale for decisions, all of which I can hope would give evidence of my competence, as acting with logic and reason.
I will continue my work in this dualled reality, on both sides understanding my influence:
• as a clinician maintaining a high standard and ensuring my records reflect this;
• as an expert maintain my impartiality, continue to understand the legal tests applied and remembering it is not always black and white.
For midwifery experts in the making, my advice is to ensure that when accepting a case, the issues of such fall within your remit. You must know and preach from the Civil Procedure Rules2 (CPR) 35 and the supporting Practice Direction, and ideally have a mentor with experience. Access some initial training to get started and then maintain CPD as you would for your clinical role, the medico-legal practices are very different.
If you are interested in expert witness training suitable for nurses and midwives, then go to the SpecialistInfo.com website, where you can find details of our 2025 CPD training. Use code NURSE20 at checkout to benefit from a 20% price reduction for nurses and midwives:
https://www.specialistinfo.com/ml-clinical-negligence-course
References:
[1] Ford (2019) https://www.capsticks.com/insights/medical-records-if-its-not-written-down-it-didnt-happen
[2] https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part35
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