Conduct and Competence Committee Substantive Hearing · Elka Dimitrova: Not present and not...

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Conduct and Competence Committee Substantive Hearing 10-18 July, 29-30 November and 1-6 December 2017 Nursing and Midwifery Council, 2 Stratford Place, Montfichet Road, London, E20 1EJ

(July 2017)

Nursing and Midwifery Council, 61 Aldwych, London, WC2B 4AE (November and

December 2017)

Name of Registrant Midwife: Elka Dimitrova NMC PIN: 10B0163C

Part(s) of the register: Registered Midwife (February 2010) Area of Registered Address: England

Type of Case: Misconduct and lack of competence

Panel Members: James Churchill (Chair, Lay Member)

Ceri Channon (Registrant member)

Marian Robertson (Registrant member)

Legal Assessor: Robert Frazer Panel Secretary: Amna Khan (July 2017)

Anita Abell (November and December 2017)

Elka Dimitrova: Not present and not represented.

Nursing and Midwifery Council: Represented by Hannah Smith, counsel,

instructed by the Nursing and Midwifery

Council (NMC) Regulatory Legal Team.

Facts admitted and found proved: Charges 1.5, 2.4.2, 3.1, 4.1, 8.4 and 10 Facts found proved: Charges 1.1, 1.2, 1.3, 1.4, 2.1 in relation to

student midwife, 2.2, 2.3, 2.4.1, 3.2, 4.2,4.3,

4.4, 5, 6.1, 6.2, 8.1, 8.2, 8.5, 8.6, 8.7, and 9 in

relation to 8.1, 8.2, 8.4, 8.5, 8.6, 8.7

Facts found not proved: Charges 2.1 in relation to maternity support

worker, 7, 8.3, 9 in relation to 8.3,11 and 12 Fitness to practise: Impaired

Sanction: Striking off order Interim Order: Interim suspension order for 18 months

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Decision on Service of Notice of hearing: Ms Dimitrova was not in attendance on the first day of the hearing. Written notice of this

hearing had been sent to her registered address by recorded delivery and by first class

post on 31 May 2017.

The panel accepted the advice of the legal assessor.

In the light of all of the information available, the panel was satisfied that Ms Dimitrova

has been served with notice of this hearing in accordance with the requirements of

Rules 11 and 34 of the Nursing and Midwifery Council (Fitness to Practise) Rules 2004.

Decision on proceeding in the absence of the registrant The panel then considered continuing in the absence of Ms Dimitrova.

Ms Smith submitted that the panel should proceed in the absence of Ms Dimitrova.

She drew attention to correspondence dated 13 June 2017 from Ms Dimitrova in which

she states that she does not intend to attend the hearing, that she wishes it to go ahead

in her absence and does not seek an adjournment. Further, the matters under

consideration are serious, one charge involving contributing to the death of an infant,

some of the charges date back to 2010 and there are six witnesses scheduled to attend.

The panel heard and accepted the advice of the legal assessor. He reminded the panel

that there was discretion to proceed in the absence of the registrant but this must be

exercised with the utmost care and caution.

The panel concluded that Ms Dimitrova had decided to voluntarily absent herself from

the proceedings and the panel had no reason to believe that an adjournment would

result in her future attendance. There are a number of witnesses attending to give

evidence and an adjournment would inconvenience them. Although there is a

disadvantage to Ms Dimitrova in not being present the panel can take into account the

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correspondence sent by Ms Dimitrova to the NMC when assessing the evidence.

Having weighed the interests of Ms Dimitrova with those of the NMC and the public

interest in an expeditious disposal of this hearing, the panel determined to proceed in

her absence.

Application to amend the charges under rule 28 Ms Smith applied to the panel to make a number of minor amendments to the charges.

She submitted that the amendments were merely to correct typing errors and did not

result in injustice to Ms Dimitrova.

The proposed amendments were as follows;

Charge 4.1 – the word “resuscitate” should read “resuscitaire”

Charge 8.3 - the word “Syntocin” should read “Syntocinon”

Charge 9 – Add the words “and/or 8.2” after the words “Charge 8.1” and remove the

duplication of the words “and 8.6”

She referred the panel to Rule 28 which allows a panel to amend charges and

specifically states:

28.⎯ (1) At any stage before making its findings of fact, in accordance with [rule

24(5) or (11) ], the Investigating Committee (where the allegation relates to a fraudulent

or incorrect entry in the register) [ , the Health Committee ] or the Conduct and

Competence Committee, may amend⎯

(a) the charge set out in the notice of hearing; or

(b) the facts set out in the charge, on which the allegation is based, unless, having

regard to the merits of the case and the fairness of the proceedings, the

required amendment cannot be made without injustice.

(2) Before making any amendment under paragraph (1), the Committee shall

consider any representations from the parties on this issue.

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The legal assessor emphasised that the panel had a discretion to amend the charges

but it must have regard to the rule and ensure that it did not cause unfairness to any of

the parties.

The panel concluded that the proposed amendments simply corrected typing errors in

the charges and did not add to the gravity of the charges. As such the panel

determined that the proposed amendments were not unjust and it agreed to allow the

amendments.

The charges as amended

That you, whilst employed by Kingston Hospital NHS Foundation Trust and working on

the maternity unit at Kingston Hospital, failed to demonstrate the standards of

knowledge, skills and judgement required to practise without supervision as a Band 5

midwife in that:

1. On 24 November 2010 in relation to an unknown mother and baby:

1.1. Did not communicate effectively with the mother

1.2. Did not attempt to loop the baby’s cord over when it was around the baby’s neck

1.3. Attempted to deliver the baby when there was no contraction

1.4. Did not respond requests to cut the baby’s cord to enable resuscitation

1.5. Pulled the normal patient call bell instead of the emergency bell for assistance.

The panel concluded that charges 1.1 to 1.4 inclusive are proved.

Charge 1.5 was admitted and found proved.

2. On 30 July 2012 you:

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2.1. Displayed poor communication skills in relation to an unknown student midwife

and/or maternity support worker

2.2. Had to be reminded to check the dosage time of medication

2.3. Had to be reminded of non-touch technique of dispensing medication

2.4. In relation to one or more patients:

2.4.1. Did not ensure that they had emptied their bladder prior to palpating their

abdomens

2.4.2. Did not ask questions about and/or examine them for deep vein

thrombosis.

Charge 2.1 is proved in relation to the student midwife but not proved in relation to the maternity support worker.

The panel concluded that charges 2.2, 2.3 and 2.4.1 are proved.

Charge 2.4.2 was admitted and found proved.

3. On 29 August 2013, while working as Unit Leader:

3.1. Failed to demonstrate sufficient leadership and management skills.

3.2. Had difficulties communicating with staff.


Charge 3.2 is found proved.

4. While being supported by Ms T on three shifts in around April 2014:

4.1. Failed to check a resuscitaire properly in that equipment was missing and the

suction was set too high.

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4.2. Required prompting to document the fetal heart rate every fifteen minutes while

looking after labouring women.

4.3. Needed prompting in relation to first newborn examination checks.

4.4. Performed one or more vaginal examinations without checking the mother was

ready.

Charge 4.1 is admitted and found proved.

Charge 4.2 to 4.4 inclusive are found proved.

5. On 8 May 2014 failed to communicate effectively with Mother B in that you did not

explain your comment that Mother B’s pulse was too high and/or were dismissive.

Found proved.

6. On 23 May 2014 in relation to Mother C:

6.1. Were unable to explain what Group B Streptococcus (GBS) was

6.2. Did not reassure Mother C

Found proved.

7. You failed to demonstrate that you had met the objectives set out in your 8 week

performance improvement plan from April 2014 in one or more of the following

areas:

7.1. Fetal Scalp Electrode Application.

7.2. Episiotomy.

7.3. Communication and Interpersonal Skills.

Found not proved.

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And, in light of the above, your fitness to practise is impaired by reason of your lack of

competence.


the maternity unit at Kingston Hospital or




midwife in that:

8. During a shift on 02 November 2013—3 November 2013 during the labour of Mother

1 and delivery of Baby 1 you:-

8.1 Did not communicate effectively with Mother 1 in that you did not explain the

importance of monitoring the fetal heart rate and/or

8.2 Did not correctly interpret the CTG trace and/or act accordingly and/or

8.3 Did not review and/or reduce the use of Syntocinon when clinically appropriate to

do so and/or

8.4 Did not ensure continual monitoring of the fetal heart rate in the later stages of

labour and/or

8.5 Did not apply a Fetal Scalp Electrode when it was clinically appropriate to do so

and/or

8.6 Did not ensure that an obstetrician was informed and/or attended following the

lack of satisfactory monitoring of fetal heart rate during the later stages of labour

and/or

8.7 Did not ensure that appropriate neo-natal care was in situ prior to and/or at the

delivery of Baby 1

Charges 8.1, 8.2, 8.5, 8.6 and 8.7 were found proved.

Charge 8.3 was found not proved.

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9. Your actions at Charge 8.1 and/or 8.2 and/or 8.3 and/or 8.4 and/or 8.5 and/or 8.6

and/or 8.7 contributed to a loss of a chance of survival for Baby 1.

Found proved in relation to 8.1, 8.2, 8.4, 8.5, 8.6 and 8.7.

Found not proved in relation to 8.3.

And, in light of the above, your fitness to practise is impaired by reason of your

misconduct and/or your lack of competence.


the maternity unit at Kingston Hospital

10. On 23 May 2014 in relation to Mother C contravened Ms W’s instruction not to go

back into Mother C’s room

Admitted and found proved.

11. On 16 September 2014 stated that you had not seen your Supervisor of Midwives,

Ms U, since December 2013 when in fact you had met with her on:

11.1. 3 February 2014

11.2. 10 February 2014

11.3. 12 February 2014

11.4. 9 May 2014

11.5. 12 June 2014.

Found not proved.

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12. Your actions in relation to charge 11 above were dishonest in that you intentionally

made a representation that you knew was false, namely that you had not seen your

Supervisor of Midwives since December 2013 when you knew that was not the case.

Found not proved.

And, in light of the above, your fitness to practise is impaired by reason of your

misconduct.

Adjournment During the witness evidence stage of these proceedings, the panel heard an application

from Ms Smith, under Rules 32 (2) and 32 (4) of The Nursing and Midwifery Council

(Fitness to Practise) Rules 2004 (The Rules) to adjourn this hearing to a later date. This

application to adjourn was made in order for the NMC to secure the potential and likely

attendance of Mother 1 and Father 1 to give evidence in this case in relation to charge 8

where they were both present throughout the birth of Baby 1. It was Ms Smith’s

submission that the evidence of these witnesses is relevant and important to charge 8

and also had implications to charge 9. Ms Smith invited the panel to consider the case

of PSA v NMC & Jozi [2015] EWHC 764 (Admin), which provides guidance in relation to

considering additional evidence and the need to adduce all evidence which is relevant

and important.

The panel heard and accepted the advice of the legal assessor. He also made

reference to Rules 32 (2) and 32 (4). Such rules state:

32. (2) A Practice Committee considering an allegation may, of its own motion or

upon the application of a party, adjourn the proceedings at any stage, provided

that

(a) no injustice is caused to the parties; and

(b) the decision is made after hearing representations from the parties (where

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present) and taking advice from the legal assessor.

(4) In considering whether or not to grant a request for adjournment or

adjournment, the Chair or Practice Committee shall, amongst other matters, have

regard to

(a) the public interest in the expeditious disposal of the case;

(b) the potential inconvenience caused to a party or any witnesses to be called

by that party; and

(c) fairness to the registrant.

He advised the panel to consider the rules, have regard to the case of Jozi and the

discretion that is given to panels to balance the public interest in the expeditious

disposal of the case with fairness to the registrant. He advised the panel to consider the

application to adjourn in relation to the evidence which the NMC now wishes to adduce,

including the relevance of it to the allegations in charges 8 and 9.

The panel was mindful of its duty to uphold the overarching objectives of the NMC

which include public protection and maintenance of the public interest. The panel

determined that the public interest in the expeditious disposal of this case is met, as it

has become apparent during the hearing that the evidence of Mother 1 and Father 1 is

relevant and important to the facts surrounding charge 8. It is the panel’s view, that

given the tragic consequences of the incident, it was necessary that all evidence in

relation to the charge is heard. The panel further considered that it would be assisted by

the evidence of Midwife 18 who was also present throughout the course of the incident.

The panel bore in mind that Ms Dimitrova has voluntarily absented herself from this

hearing, but will have the opportunity to attend the resuming hearing if she wishes to do

so. The panel noted that any additional witness evidence will require to be disclosed to

her in advance of the resuming hearing. The panel considered that Ms Dimitrova’s

interests, such as her current circumstances and fairness to her will not be

unnecessarily prejudiced by the adjournment of this case in order to obtain important

and direct evidence pertaining to charge 8. Balancing all the factors that it has to

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consider, the panel concluded that an adjournment is fair and necessary. It accordingly

agreed to the NMC’s application to adjourn.

This hearing is adjourned. New dates will be identified in early course and intimated to

parties. The panel considered of its own volition an application for an interim order

under Rule 32 (5) but was advised by Ms Smith that such an order was presently in

place and in such circumstances a further order was not necessary.

29 November 2017 Decision on Service of Notice of resumed hearing: Ms Dimitrova was not in attendance. Written notice of this hearing had been sent to her

registered address by recorded delivery and by first class post on 18 October 2017.


In the light of all of the information available, the panel was satisfied that Ms Dimitrova

has been served with notice of this hearing in accordance with the requirements of

Rules 11 and 34 of the Nursing and Midwifery Council (Fitness to Practise) Rules 2004.

Decision on proceeding in the absence of the registrant The panel then considered continuing in the absence of Ms Dimitrova.

Ms Smith submitted that the panel should continue to proceed in the absence of Ms

Dimitrova. She drew attention to an email from Ms Dimitrova dated 2 August 2017 in

which she states “Can I now ask that you do not send or communicate with me any

longer. This case is absolutely waste of time and resources…I would like this read

out…at the hearing”. The case officer responded to this email informing Ms Dimitrova

that the NMC are governed by their Rules which obliged it to inform registrants of

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updates and events relating to referrals. Ms Dimitova replied on 17 August stating “I

have stated earlier that I have disengaged with the process…I don’t want anymore

paperwork to be sent.”

The panel heard and accepted the advice of the legal assessor who referred to the

advice given at the outset of the hearing on day 1 and reminded the panel that the

discretion to proceed in the absence of the registrant must always be exercised with the

utmost care and caution.

The panel concluded that Ms Dimitrova had chosen not to attend the hearing and the

panel had no reason to believe that an adjournment would result in her future

attendance. Furthermore, there are three additional witnesses cited who will give

evidence over the next two days. Having weighed the interests of Ms Dimitrova,

together with her most recent communication, with those of the NMC and the public

interest in the expeditious disposal of this hearing the panel determined it was in the

interests of justice to proceed in her absence.

Application under Rule 19 for part of the hearing to be held in private

Ms Smith informed the panel that she had a number of updates for the panel and

applied for part of the hearing to be in private ir order to deal with some of those

aspects. This included certain information relating to the health and personal

circumstances of the three cited witnesses.

The panel heard and accepted the advice of the legal assessor who referred to Rule 19

which states:

Hearings…may be held, wholly or partly, in private if the Committee is

satisfied⎯

(a) having given the parties, and any third party from whom the Committee

considers it appropriate to hear, an opportunity to make representations; and

(b) having obtained the advice of the legal assessor,

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that this is justified (and outweighs any prejudice) by the interests of any party

or of any third party (including a complainant, witness or patient) or by the public

interest.

The panel agreed to hear those parts of the hearing that refer to health or other

confidential matters in private, but concluded that the rest of the hearing would remain

in public.

Application to admit hearsay documents

Ms Smith informed the panel that during the adjournment period she had obtained a

number of documents which she wished to submit to the panel. These included the

coroner’s inquest transcripts of Midwife 18 and Ms Dimitrova. As neither of these

people were available to give evidence Ms Smith applied for the transcipts to be

admitted. She submitted that whilst the documents were hearsay, as there were the

sworn testimonies given at a coroner’s court, they were “good quality” hearsay, and

could be relied upon.

The legal assessor advised that the panel had the discretion to admit the transcripts,

provided it was satisfied that its admission was relevant and fair to all parties.

He reminded the panel of Rule 31 (1) which states:

Upon receiving the advice of the legal assessor, and subject only to the

requirements of relevance and fairness, a Practice Committee considering an

allegation may admit oral, documentary or other evidence, whether or not such

evidence would be admissible in civil proceedings (in the appropriate Court

in that part of the United Kingdom in which the hearing takes place).

The panel concluded that the documents were relevant as they related directly to

charges 8 and 9. The panel was informed in private session of the reason for the non-

attendance of Midwife 18 and accepted that the reason put forward by the NMC was a

sound one. Whilst Ms Dimitrova has chosen to dis-engage, her testimony to the

coroner would offer some explanation by her relating to the events of 2 and 3 November

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2013 and would be treated in the same way as other evidence given and contained

within the transcript.

In these circumstances the panel concluded that the admission of the transcripts was

fair and accordingly granted the application.

Background The referral against Ms Dimitrova, a band 5 midwife, was made in October 2014,

following the conclusion of a capability programme undertaken by the Kingston Hospital

NHS Foundation Trust (the Trust).

The capability programme was triggered in November 2013 because of a series of

concerns in relation to Ms Dimitrova’s practice. This followed a serious incident

investigation in relation to the care of Mother 1 and Baby 1, on 2 and 3 November 2013,

during labour and delivery, and the death of Baby 1 some five days after her birth.

There had been previous concerns about Ms Dimitova’s practice dating back to 2010,

when an informal support mechanism had been put in place.

On 24 November 2010, a concern was raised by Ms R, a practice development midwife

with Ms Dimitrova’s Supervisor of Midwives in relation to her lack of communication with

both a mother she was caring for and the midwife in charge of the labour ward. It is

alleged that during the delivery, the baby had the cord around its neck and Ms Dimitrova

made no attempt to loop the cord over the baby’s head. She further tried to deliver the

baby when there was no contraction. On birth, the baby was pale and floppy. It is also

alleged that Ms Dimitrova was asked several times to cut the baby’s cord to enable

resuscitation to commence, but did not do so. Ms R asked Ms Dimitrova to pull the

emergency bell for help and Ms Dimitrova instead pulled the ordinary call bell.

On 30 July 2012 Ms R, was asked to observe/supervise Ms Dimitrova while she was on

the postnatal ward. On this day the ward was quiet and Ms Dimitrova was assigned a

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maternity support worker and a first year student midwife. It is alleged that Ms

Dimitrova’s communication with the student and the maternity support worker was poor.

She did not involve the student in providing care to the mothers other than taking

temperatures or blood pressure. She did not explain the rationale behind taking

observations or attempt to show the student how to interpret any deviations from normal

readings. The student was not involved in the drug round but was following Ms

Dimitrova around without being given proper information. Ms R saw this as a lost

learning opportunity for the student working on what was, at the time, a quiet ward.

On that same shift it is alleged that Ms Dimitrova had to be reminded by Ms R about

checking medication dosage times and the non-touch technique of dispensing

medication.

Ms R described Ms Dimitrova’s communication with the maternity support worker as

non-existent. Ms Dimitrova appeared to make the assumption that the maternity

support worker would check all the babies but she made no inquiries as to whether this

had taken place or if there was anything of concern.

It is further alleged that when Ms Dimitrova undertook maternal checks she did not

check with the mothers concerned whether they had emptied their bladders before such

checks nor did she make any inquiries in relation to deep vein thrombosis or examine

them in relation to this. Ms R concluded that whilst Ms Dimtrova’s general

communication with the women she was caring for was good, her communication was

poor in relation to her student and her maternity support worker.

This supervision was designed to enable the senior midwifery team to consider whether

or not Ms Dimitrova had the necessary capability to progress to a band 6. The team

ultimately concluded that she was not suitable to progress to a band 6 at that stage.

On 29 August 2013 another assessment took place. This required Ms Dimitrova to act

as a unit leader, which is effectively a link point between the various different parts of

the labour ward. This shift was observed by Ms R, who concluded that Ms Dimitrova did

not grasp the importance of the role of unit leader nor the necessity to have an overview

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of the unit. Although Ms Dimitrova was working as the unit leader on the shift, staff

turned to Ms R for advice and direction. It is alleged that on this shift Ms Dimitrova did

not demonstrate sufficient leadership and management skills required to work as a unit

leader and that she had difficulty communicating with staff working under her.

On the morning of 2 November 2013 Mother 1 attended the delivery suite for an

induction of labour due to prolonged rupture of membranes (PROM). She was fully

assessed and an artificial rupture of the membranes (ARM) took place and at that stage

meconium was noted. Syntocinon was prescribed and started two hours later as the

labour was slow. Syntocinon is a drug which helps speed labour up by stimulating

contractions.

Staff handover to the night shift was at 19.30. As her labour had been induced,

meconium had been present during the ARM and she was receiving Syntocinon, Mother

1 was considered a high-risk delivery.

Ms Dimitrova thereafter took over the care of Mother 1 for the night-shift. An epidural

was sited at about 20.45 when analgesia and Syntocinon was continued. Also present

in the room for some of the shift, in a supportive capacity, was midwife 18, a band 7

midwife, the lead midwife for the unit on that shift. Ms Dimitrova was the midwife in

charge of the care of Mother 1 for the night shift.

Later that night it was noted that Mother 1 was hyper-stimulating. It is alleged that at

that point the dose of Syntocinon should have been reviewed and/or reduced in order to

reduce contractions. The Syntocinon was reduced at just after midnight and Mother 1

was reviewed by the registrar at about 00.30.

Ms Dimitrova went for her break at 00.50 and midwife 18 took over the care for this

period. During that time it was noted that Mother 1 had started to push involuntarily. Ms

Dimitrova was called back early from her break by midwife 18 at 01.20 and at 01.25 full

dilatation was confirmed.

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Between 01.27 and 01.58 the cardiotocograph (CTG) which records the fetal heart rate

was interrupted because of a loss of contact as Mother 1 was in pain and struggling to

keep the belt around her abdomen. It is alleged that a fetal scalp electrode (FSE),

which is attached to a baby’s head via the cervix, could have been used to overcome

the difficulty with monitoring the baby. It is alleged that this option was not discussed

adequately with Mother 1 and Father 1 and they were not informed of the risks that

were carried by an inability to adequately monitor the baby’s heart rate. As a

consequence the fetal heart rate was not adequately recorded between about 01.20

and 01.58 and so it was unable to be interpreted to help monitor the baby’s condition.

Given the lack of certainty over the baby’s condition, together with the fact that this was

a high-risk delivery, it is alleged that Ms Dimitrova should have escalated the matter to

ensure that an obstetrician was informed, and that she should also have ensured that

there was appropriate neo-natal care available from the moment of birth.

Midwife 18 did leave the room in order to inform a doctor of the situation, but she

discovered that the doctor was busy in theatre with a caesarean section and she did not

pursue the matter further. Neither she nor Ms Dimitrova took further steps to escalate

the matter including using the emergency bell in the delivery room to obtain further

assistance.

Baby 1 was born floppy and in a poor condition. The paediatric team were summoned

immediately she was born and she was transferred to a high dependency unit. The

baby had sustained serious brain damage and died five days later.

It is alleged that Ms Dimitrova’s actions in the care of Mother 1 and Baby 1 prior to birth

was such that it contributed to the loss of a chance of survival of Baby 1.

Following this incident Ms Dimitrova was placed on a Capability Programme

commencing on 7 April 2014 for an eight-week period. The specific concerns that were

to be addressed during that period were communication, interpersonal skills, electronic

fetal monitoring, fetal scalp electrode application, ability to perform an episiotomy, use

of syntocinon, handover of care and documentation and escalation.

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In April 2014, Ms T, a senior midwife, was supervising Ms Dimitrova on a number of

shifts, as part of the formal Capability Programme. Ms T asked Ms Dimitrova to check a

resuscitaire prior to an expectant mother being taken into theatre, but it is alleged that

Ms Dimitrova did not check or failed to check it adequately. When Ms T checked the

resuscitaire, there were two pieces of equipment missing and the suction was set too

high, which meant the equipment did not work as expected and could have had a

detrimental effect on any baby needing resuscitation.

It is alleged that Ms Dimitrova had to be prompted to document the fetal heart rate every

15 minutes and also to carry out newborn examination checks. In relation to vaginal

examinations (VE), it is further alleged that although Ms Dimitrova had received initial

consent to perform the VE, she did not subsequently check that it was acceptable to

proceed having prepared her equipment.

On 8 May 2014 Ms Dimitrova was providing care to Mother B. When Mother B stated

she had internal pain during labour Ms Dimitrova’s response was “It’s only going to get

worse” which upset Mother B who considered it to be unfeeling. Mother B also

considered Ms Dimitrova’s attitude as dismissive. Ms Dimitrova told Mother B that her

contractions were not strong enough and that she would need a drip, which further

upset Mother B because there was no reassurance or further explanation given to her.

Ms Dimitrova had also told Mother B that her pulse was too high but had said nothing

more and did not offer any reassurance or explanation. Mother B subsequently

complained to Ms P, a midwife, and requested that Ms Dimitrova no longer care for her.

On 23 May 2014 Ms Dimitrova was caring for Mother C. She tested Mother C, to see if

she was a carrier of group B streptococcus (GBS), a bacteria often present in the gut.

The test result was positive which meant that her baby would need to be tested and, if

positive, treated with antibiotics. Ms Dimitrova alerted the paediatric team. Ms S, a

maternity support worker, went to collect the baby for testing but discovered that Mother

C and her partner had not been informed of the outcome of the test, nor that the baby

would also need to be tested.

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Ms S considered that Ms Dimitrova should have informed Mother C without Ms S being

present. However, Ms Dimitrova called her into the room while she informed Mother B

of the outcome of the test. It is alleged that because of the way the information was

given by Ms Dimotrova, Mother C assumed that she had possibly contracted a sexuallly

transmitted disease. She became upset and a doctor had to be called to explain the true

situation.

Mother C subsequently made a complaint about Ms Dimitrova. The immediate outcome

was that Ms Dimitrova was no longer to care for Mother C and was given a specific

instruction not to enter her room. However, Ms Dimitrova did later go into Mother C’s

room, to ask what it was about her (Ms Dimitrova’s) behaviour that had upset Mother C.

As a consequence of the complaints made by Mother B and Mother C a decision was

taken not to allow Ms Dimitrova to work anywhere other than the postnatal ward. As a

result of this decision the eight week performance improvement plan which should have

spanned from 7 April to the first week in June was terminated at the end of May

because of the concerns raised by the two complainants.

A capability hearing then took place on 27 June 2014 which concluded that, whilst Ms

Dimitrova had passed a number of competencies, she had not passed competencies in

fetal scalp electrode application, episiotomy and communication and interpersonal skills.

Ms Dimitrova was asked what further support she required in order to address the

outstanding competencies.

On 16 September 2014 the final capability hearing was held as Ms Dimitrova had still

not passed all of her competencies. It is alleged that at the hearing Ms Dimitrova

asserted that she had not seen her current supervisor, Ms U, since December 2013. Ms

U had been appointed Ms Dimitrova’s supervisor in January 2014. Ms U subsequently

provided information to the hearing that she had met with Ms Dimitrova on five dates

between 3 February and 12 June 2014.

As a result it is further alleged that Ms Dimitrova was acting dishonestly when she

suggested that she had not seen her Supervisor of Midwives since December 2013.

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Following the hearing Ms Dimitrova was downgraded from a band 5 midwife to a band 3

midwifery support worker.

Determination on facts Prior to the hearing Ms Dimitrova submitted a response to the charges form to the NMC

signed and dated 27 June 2017. On that form she ticked the boxes to admit charges

1.5, 2.4.2, 3.1, 4.1, 8.4 and 10. The panel therefore found charges 1.5, 2.4.2, 3.1, 4.1, 8.4 and 10 proved by way of admission.

The outstanding charges The panel heard evidence from, and read the exhibits of the following witnesses:

• Ms P, initially practice development midwife and later midwifery matron at the

Trust, who presented the management case at a capability hearing at the Trust

• Ms Q, nurse and midwife who prepared an independent report on the

circumstances surrounding the birth of Baby 1

• Ms R, a practice development midwife and a supervisor of midwives at the Trust

• Ms S, a maternity support worker at the Trust

• Ms T, senior midwife on the labour ward at the Trust

• Ms U, midwife with responsibility for safeguarding, and Ms Dimitrova’s supervisor

from January 2014

• Mother 1, mother of Baby 1, referred to in charges 8 and 9

• Father 1, father of Baby 1, who was present prior to labour and during labour of

Mother 1, and during delivery of Baby 1

21

• Dr V, consultant paediatrician at the Trust who attended Baby 1 shortly after her

birth, and gave evidence as to the probable period in which Baby 1 had been

deteriorating prior to birth.

The panel read the transcripts of the evidence given by Midwife 18 and Ms Dimitrova to

the coroner, and various documents submitted by Ms Dimitrova to the Trust and to the

NMC.

When considering the charges, the panel took into account the submissions of Ms

Smith, and all of the evidence before it, both documentary and oral, and, in particular

the information submitted at various stages by Ms Dimitrova.

The panel considered the credibility and reliability of the witnesses:

• Ms P was professional, credible and reliable who gave an overview of the issues

of concern in relation to Ms Dimitrova’s competencies

• Ms Q, although an expert was not an experienced witness and her oral evidence

was more comprehensive than her written report. She was open-minded and

conceded, in particular, that some of her conclusions in relation to the data she

presented could be open to an alternative interpretation

• Ms R was professional, credible and reliable who was frank with the panel when

she could not remember certain details

• Ms S was credible and reliable

• Ms T was credible and reliable

• Ms U was credible and reliable, but prepared to admit when she could not

remember details

• Mother 1 and Father 1 had differing memories of the events of November 2013,

attributable to the passage of time, but were consistent in relation to not being

told the significance of using a FSE

• Dr V, gave evidence by telephone, and his evidence to the panel was consistent

with that given to the coroner.

The panel heard and accepted the advice of the legal assessor.

22

The burden of proof rests upon the NMC and Ms Dimitrova does not have to prove or

disprove anything. The standard of proof is the civil standard, namely the balance of

probabilities. This means that, for a fact to be found proved, the NMC must satisfy the

panel that what is alleged to have happened is more likely than not to have occurred. In

determining the facts, the panel is entitled to draw common-sense inferences but not to

speculate.

The panel then considered the outstanding charges against Ms Dimitrova which are:




midwife in that:

Charge 1

1. On 24 November 2010 in relation to an unknown mother and baby:

1.1. Did not communicate effectively with the mother

1.2. Did not attempt to loop the baby’s cord over when it was around the baby’s neck

1.3. Attempted to deliver the baby when there was no contraction

1.4. Did not respond requests to cut the baby’s cord to enable resuscitation

1.5. ….[Admitted]

The panel had sight of an email from Ms R, dated 24 November 2010, to Ms Dimitrova’s

then supervisor, which gave details of a number of issues arising on a particular shift in

the delivery suite. The email specifically mentioned concerns relating to Ms Dimitrova

not communicating effectively with the mother and the mother requesting “instruction,

not to be asked questions”. It also stated “The baby had the cord twice around the

neck, she didn’t attempt to loop it over and tried to deliver incorrectly with no

23

contraction….Alka (sic) despite being asked several times didn’t cut the cord to enable

me to take the baby to resus”.

When giving her evidence Ms R was frank with the panel that she could not recollect the

specific incident. However, when questioned she considered that as she wrote the

email within a few days of the incident, it was likely to be an accurate account of events

even if she was not able to provide any further information at the hearing.

Ms Dimitrova’s recollection was slightly different stating that labour happened very fast,

that there was no need of resuscitation and denying that she attempted a delivery when

there was no contraction. She remembered pressing the bell, but stated that it was not

an emergency situation so she did not press the “wrong” bell, and that she was asked to

discuss this matter with her supervisor after the event. She criticised Ms R for spelling

her name wrongly and described the account as “exaggerated”.

The panel concluded that Ms R was credible and reliable. There was no reason to doubt

the contents of her email written shortly after the event some seven years ago. The

panel considered that it is not surprising that she cannot remember specific details at

this stage. However, it was impressed with the detail of the email and in these

circumstances, and on the balance of probabilities, found the charge proved.

The panel therefore concluded that the charge is proved in its entirety.

Charge 2

2. On 30 July 2012 you:

24

2.1 Displayed poor communication skills in relation to an unknown student

midwife and/or maternity support worker

2.2 Had to be reminded to check the dosage time of medication

2.3 Had to be reminded of non-touch technique of dispensing medication

2.4 In relation to one or more patients:

2.4.1 Did not ensure that they had emptied their bladder prior to palpating

their abdomens

2.4.2…[Admitted]

The panel had sight of a contemporaneous note written on 3 August 2012 by Ms R,

entitled “Observational Shift with Elka Dimitrova 30/07/2013”. The note is just over 1

page of closely typed A4 paper. The note described Ms Dimitrova’s communication

with the student midwife as “poor” and with maternity support worker as “non-existent”.

In both cases Ms R expanded on these descriptions to give specific examples. The note

also stated that Ms Dimitrova had to be reminded by Ms R about checking the dosage

time of medication and the non-touch technique of dispensing medication. In addition,

the note stated that “she did not check that the women had emptied their bladders prior

to their check”. The panel considered that note was not wholly critical and also

expressed some positive observations of Ms Dimitrova’s practice, in relation to

breastfeeding, perineal care and communication with mothers in her care.

Ms R was able to support the contents of this note in the oral evidence she gave to the

panel.

Ms Dimitrova in her account denied the charges and specifically stated that she spoke

with the student midwife and the maternity support worker prior to the start of the shift

when Ms R was not present.

25

The panel accepted that it was possible that Ms Dimitrova had spoken with the student

midwife and the maternity support worker when Ms R was not present. The panel

accepted that this could explain the lack of communication during the shift with the

maternity support worker. However, based on the evidence of Ms R the panel did not

accept this as a satisfactory explanation in relation to Ms Dimitrova’s lack of

communication with the student, who was there specifically to observe and learn from

Ms Dimitrova. It was incumbent on Ms Dimitrova to communicate with the student to

ensure she understood what was happening and why.

The panel considered the Ms R was a credible and reliable witness. It considered that

there was no reason to doubt the contents of her note written three days after the shift

in question. Accordingly, on the balance of probabilities it considered these parts of the

charge proved. It accepted, however, that Ms Dimitrova may have spoken with the

maternity support worker prior to Ms R being present and to that extent did not consider

this part of the charge proved.

The panel therefore concluded that charges 2.2, 2.3 and 2.4.1 are proved.

Charge 2.1 is proved in relation to the student midwife but not in relation to the maternity support worker.

Charge 3

3. On 29 August 2013, while working as Unit Leader:

3.1. ….[Admitted]

3.2. Had difficulties communicating with staff.

The panel had sight of an email from Ms R, dated 3 September 2013, to four members

of staff on the maternity unit. The email referred to the shift of 29 August when Ms R

“worked with Elka as planned”. The email stated “I do still have concerns about Elka’s

communication skills, her telephone manner is often abrupt and staff did comment

26

during the day that they had difficulty understanding what was required when she called

them”.

In her evidence Ms R suggested that one of the communication difficulties could arise

from the fact that English is not Ms Dimitrova’s first language. However, she also

considered that Ms Dimitrova was capable of communicating in English with staff but on

this occasion failed to do so effectively.

Ms Dimitrova in her account simply stated that there was no evidence for this charge.

The panel considered Ms R was a credible and reliable witness, and there was no

reason to doubt the contents of her email written five days after the shift in question.

Accordingly on the balance of probabilities, it found the charge proved.

The panel concluded that the charge is proved in its entirety.

Charge 4

4. While being supported by Ms T on three shifts in around April 2014:

4.1. ... [Admitted]

4.2. Required prompting to document the fetal heart rate every fifteen minutes while

looking after labouring women.

4.3. Needed prompting in relation to first newborn examination checks.

4.4. Performed one or more vaginal examinations without checking the mother was

ready.

The panel had sight of an email from Ms T, dated 23 April 2014, to Ms P in which she

stated: “…here is my feedback after working three shifts …with Elka Dimitrova”. The

27

email discussed a number of issues relating to Ms Dimitrova’s practice, including some

positive feedback. It also included the following comments:

“On numerous occasions the fetal heart rate was not documented every fifteen

minutes…notes were written more like a summary…instead of a minute by

minute account…I advised Elka to verbally talk through the first newborn

examination check as…there was a suspicious mark on the babies head had not

been noted. She thought there were two undescended testes during one

examination whereas both were present…subsequently she was more

thorough…but did need prompting…on a couple of occasions she performed a

VE without double checking that the women were ready after gaining their initial

consent.”

In her response Ms Dimitrova denied the charges but provided no further explanation of

her position.

The panel considered that Ms T, a senior midwife, was a credible and reliable witness.

There was no reason to doubt the accuracy of her email written shortly after the three

shifts in question. In her evidence she was able to explain to the panel the reasons for

her concerns and the potential consequences, and what she considered to be best

practice. On the balance of probabilities the panel found all parts of the charge proved.

The panel therefore concluded that the charge is proved in its entirety.

Charge 5

5. On 8 May 2014 failed to communicate effectively with Mother B in that you did not

explain your comment that Mother B’s pulse was too high and/or were dismissive.

28

The panel had sight of a note written by Ms P. The note stated that Mothers B’s mother

requested of the midwife in charge that Ms Dimitrova no longer care for her daughter.

Ms P spoke with Mother B, her mother and her partner the following day. A number of

concerns were raised including Ms Dimitrova’s attitude which was described as

unfeeling and upsetting and the lack of an explanation of the significance of a raised

pulse.

In her written response Ms Dimitrova described caring for Mother B appropriately. The

panel considered that it was difficult to reconcile her account with the details contained

in the note made by Ms P. The panel considered that that there must have been

something in Ms Dimitrova’s behaviour and/or attitude which upset Mother B and Ms

Dimitrova did not appear to recognise this.

Ms P in her oral evidence recalled speaking with Mother B and her family which resulted

in her escalating the matter. The panel considered that Ms P was a credible and reliable

witness and, on the balance of probabilities found the charge proved.

The panel therefore concluded that the charge is proved.

Charge 6

6. On 23 May 2014 in relation to Mother C:

6.1. Were unable to explain what Group B Streptococcus (GBS) was

6.2. Did not reassure Mother C

The panel had sight of a note written by Ms P which, although undated, appeared to

have been forwarded to Ms Dimitrova on 23 May 2014. The note stated that Mother C

asked for a different midwife to care for her as she was very upset about the way the

GBS infection was explained to her. Both she and her husband got the impression from

what Ms Dimitrova had said about GBS that Mother C had contracted a serious,

29

possibly sexually transmitted, disease and eventually a doctor was called to reassure

them.

This account of events was supported by the oral evidence of Ms S who was present in

the room at the time. Ms Dimitrova actually asked Ms S to explain GBS to Mother C but

Ms S said that it was for Ms Dimitrova to do this as the midwife. Ms Dimitrova attempted

to do this. Ms S expressed her considerable unease whilst being present when the

parents were informed of the infection and in Ms S’s words the “horrific” way in which

Ms Dimitrova conveyed the information to them which gave entirely the wrong

impression. Ms S tried to reassure the parents and then called a doctor in order to

speak to them and explain about GBS properly.

In her reply to Ms P’s note on 12 June 2014, Ms Dimitrova stated that she was

surprised by the allegations and did not agree with Ms P’s interpretation of the situation.

She stated she was shocked when she was told not to go back into Mother C’s room.

Ms Dimitrova disputed the interpretation of how she delivered the news of the GBS to

Mother C. She stated that both Mother C and her husband were shocked and tired after

a traumatic delivery.

The panel considered the evidence of Ms S who was present in the room and the note

of Ms P who interviewed Mother C at the time. The panel considered both witnesses to

be credible and reliable and accepted the accounts given by them. On the balance of

probabilities the panel found both parts of the charge proved.

Accordingly the panel concluded that the charge is proved in its entirety.

Charge 7

7. You failed to demonstrate that you had met the objectives set out in your 8 week

performance improvement plan from April 2014 in one or more of the following

areas:

30

7.1. Fetal Scalp Electrode Application.

7.2. Episiotomy.

7.3. Communication and Interpersonal Skills.

Ms Dimitrova was placed on an eight-week capability programme from 7 April 2014.

However, due to the concerns raised by Mother B and Mother C it was decided to

transfer Ms Dimitrova to the postnatal ward. The exact date of transfer is unknown but

it was towards the end of May 2014. As a result she did not have the opportunity to

complete the objectives. This therefore was before the end of the eight-week capability

period.

It is a matter of fact that at the time of her transfer Ms Dimitrova had not completed the

objectives relating to fetal scalp electrode application, episiotomy and communication

and interpersonal skills.

However, given that the eight-week capability period had not finished, the panel

considered that Ms Dimitrova had not had the full opportunity to complete her capability

programme. In these circumstances the panel was not satisfied that she had failed to

demonstrate the necessary competencies because the time period previously agreed

for her to do so had not finished.

Accordingly the panel concluded that the charge is not proved.


the maternity unit at Kingston Hospital or




midwife in that:

31

Charge 8

8. During a shift on 02 November 2013—3 November 2013 during the labour of Mother

1 and delivery of Baby 1 you:-

Charge 8.1

8.1 Did not communicate effectively with Mother 1 in that you did not explain the

importance of monitoring the fetal heart rate and/or

Both Mother 1 and Father 1, who was present from the start of Ms Dimitrova’s shift

to delivery, gave evidence to the panel. Initially Mother 1 was being monitored by a

CTG which meant that she had to have a belt around her abdomen. However, as

the contractions became more severe, from the time of Ms Dimitrova’s return from

her break (at approximately 01:20) the belt started to slip off so that the fetal heart

rate was unable to be constantly monitored.

The recollections of Mother 1 and Father 1 in relation to some of the details were

slightly different but both recalled an earlier conversation with Ms Dimitrova when

she explained that a FSE could be attached to monitor the baby, but it involved an

incision to the baby’s scalp for the electrode to be hooked on. Both recalled at the

time declining this on the basis that it was too intrusive, but both were adamant that

the absolute importance of monitoring the fetal heart rate at that later stage of labour

was not properly stressed to them. Both stated that had they been fully informed of

the importance of the monitoring at that later stage they would have consented to

the procedure.

Midwife 18 had care of Mother 1 for some of the shift when Ms Dimitrova took her

break at about 12:50 hours. She asked Ms Dimitrova about using a FSE and she

was informed by Ms Dimitrova that Mother 1 had earlier declined it to monitor the

fetal heart rate.

32

Ms Dimitrova stated in her written explanation that she explained the importance of

monitoring the fetal heart rate to Mother 1.

The panel considered the evidence of Mother 1 and Father 1 to be credible and

largely reliable. It accepted their evidence that the importance of always having an

accurate monitor of the baby’s heart rate was not fully explained to them by Ms

Dimitrova. Accordingly, on the balance of probabilities, the panel finds this part of the

charge proved.

The panel therefore concluded that this charge is proved.

Charge 8.2

8.2 Did not correctly interpret the CTG trace and/or act accordingly and/or

As described above the CTG trace (exhibit 8) became increasingly unreadable and

was therefore uninterpretable from about 01.20 and was lost altogether from about

01.27. Because of the importance of this, together with the fact this was considered

a high-risk delivery, the panel determined that Ms Dimitrova should have acted

immediately the trace worsened by either the use of a different and effective way of

monitoring or escalating the matter to other medical practitioners.

In her written explanation Ms Dimitrova did not offer any satisfactory explanation for

why she did not deal with matters in this way. Her responses at the inquest were

that she was trying to help Mother 1 who was distressed and that she and midwife

18 were trying to use the fetal transducer which was part of the CTG to monitor the

heart rate by holding it manually against Mother 1’s abdomen.

The panel considered that in the circumstances as soon as the CTG trace became

unreadable and was thereafter lost, immediate steps were required to be taken to

33

address the problem and reduce the risk to Baby 1. The panel considered that it was

obvious from the CTG trace that the transducer was neither effective nor successful.

On the balance of probabilities the panel concluded that Ms Dimitrova should have

been more proactive when the CTG trace worsened, and that she failed to correctly

interpret this and therefore that as a midwife she did not act accordingly in this

serious situation.


Charge 8.3

8.3 Did not review and/or reduce the use of Syntocinon when clinically appropriate to

do so and/or

Mother 1 was reviewed by a doctor at 21.30 and Syntocinon was recommenced. At

22.30 a doctor reviewed and increased the dose. A further review was carried out at

23.15. At 23.45 a doctor and anaesthetist were present and a discussion took place

about the level of Syntocinon in use. At 00.03 the dose of Syntocinon was reduced.

At 00.30 the plan was to monitor the contractions and to further reduce Syntocinon if

the contractions were greater than 4 in 10 minutes.

The panel therefore concluded that the dose of Syntocinon was reviewed regularly

and was in fact reduced, after Mother 1 was seen by a doctor.

The panel accordingly concluded that this charge is not proved.

Charge 8.4

8.4 …[Admitted]

34

Charge 8.5

8.5 Did not apply a Fetal Scalp Electrode when it was clinically appropriate to do so

and/or

As described above at charge 8.2, a FSE was not attached to Baby 1. It was

clinically appropriate to do so as it would have enabled Ms Dimitrova and midwife 18

to have an accurate reading of Baby 1’s heart rate, after the CTG trace became

unreadable and was lost at 01.27.

The panel noted Ms Dimitrova’s written explanation that Mother 1 had initially told

her that she did not want to use a FSE.

As discussed above at charge 8.1, the panel has concluded that if the necessity for

having an accurate reading of the baby’s heart rate had been fully explained to

Mother 1 and Father 1, then consent would have been forthcoming. In these

circumstances the panel concluded that Ms Dimitrova had not properly explained the

absolute necessity of monitoring the fetal heart rate at that stage by any means. The

panel therefore considered on the balance of probabilities that Ms Dimitrova failed to

apply a FSE when it was clinically appropriate to do so.

The panel concluded that this charge is proved.

Charge 8.6

8.6 Did not ensure that an obstetrician was informed and/or attended following the

lack of satisfactory monitoring of fetal heart rate during the later stages of labour

and/or

When the CTG trace was lost Midwife 18 went to fetch a doctor. Midwife 18 concluded

that the doctor was busy in theatre with a caesarean section and was therefore not

available. However, the panel considered that there was an emergency call bell at the

35

bedside available to Ms Dimitrova and midwife 18, which was specifically for this type of

situation. In her evidence at the inquest Ms Dimitrova was asked what would she

change in relation to her delivery of Baby 1 and replied: “I could escalate a bit earlier…I

could press the crash bell earlier”.

In these circumstances the panel considered that, given the clear warning signs as to

the potential difficulties and risks to Baby 1, further attempts should have been made to

ensure that an obstetrician was informed and/or attended, if at all possible.


Charge 8.7

8.7 Did not ensure that appropriate neo-natal care was in situ prior to and/or at the

delivery of Baby 1

The panel considered that there was no neo-natal care team present at the birth of

Baby 1. This was despite it being a high-risk delivery with the complication of a loss of

a reading of the fetal heart rate for a significant period. in her evidence at the inquest,

Ms Dimitrova said she had felt sufficiently concerned to discuss this with midwife 18,

who went to fetch a doctor. In all the circumstances, and for the same reasons as

expressed in charge 8.6, it would have been appropriate to have a neo-natal team

available from birth.


Charge 9

9. Your actions at Charge 8.1 and/or 8.2 and/or 8.3 and/or 8.4 and/or 8.5 and/or 8.6

and/or 8.7 contributed to a loss of a chance of survival for Baby 1.

36

Dr V gave evidence that Baby 1 would have suffered from brain damage for a period of

between 20-40 minutes prior to birth. This coincided with the CTG trace worsening from

about 01.20, being lost altogether at 01.27 and the birth at 01.58. He attributed his

findings to the lack of recognition of what was happening because of the initial

unreliability and subsequent loss of CTG trace rate prior to birth. In these

circumstances, and for the reasons expressed at charge 8.1, 8.2, 8.4, 8.5, 8.6 and 8.7

the panel considered that Ms Dimitrova’s actions clearly contributed to the loss of

chance of survival of Baby 1.

The panel therefore concluded that charge is proved in relation to charges 8.1, 8.2, 8.4, 8.5, 8.6 and 8.7.

The panel concluded that this charge is not proved in relation to charge 8.3.


the maternity unit at Kingston Hospital

Charge 10

10. …[Admitted]

Charge 11

11. On 16 September 2014 stated that you had not seen your Supervisor of Midwives,

Ms U, since December 2013 when in fact you had met with her on:

11.1. 3 February 2014

11.2. 10 February 2014

11.3. 12 February 2014

11.4. 9 May 2014

11.5. 12 June 2014.

37

On 16 September 2014 the stage 3 formal capability hearing took place. The hearing

concluded that Ms Dimitrova had denied meeting her supervisor on five occasion as

detailed above.

The panel did not have the verbatim notes of the meeting in which this remark was

alleged to have been made. It merely had a copy of a letter dated 25 September 2014

from Ms P with the outcome of the meeting which was sent to Ms Dimitrova. It did not

consider that this document in itself was sufficient. The panel further noted that in her

oral evidence Ms P was unable to recall exactly what was said by Ms Dimitrova at the

meeting. The panel had regard to Ms Dimitrova’s written explanation in which she

stated she had never denied seeing Ms U but rather Ms U had not provided her with

sufficient support.

The panel considered that in the absence of any further evidence the matter had not

been proved on the balance of probabilities.

The panel concluded that this charge is not proved.

12. Your actions in relation to charge 11 above were dishonest in that you intentionally

made a representation that you knew was false, namely that you had not seen your

Supervisor of Midwives since December 2013 when you knew that was not the case.

As charge 11 has been found not proved it follows that this charge which is directly related to charge 11 is also not proved.

Determination on lack of competence, misconduct and impairment The panel went on to consider, on the basis of the facts found proved, whether Ms

Dimitrova’s actions in relation to charges 1 to 6 inclusive amounted to a lack of

competence, whether her actions in relation to charges 8 and 9 amounted to

misconduct and/or a lack of competence, and whether her actions in relation to charge

10 amounted to misconduct.

38

The panel has taken account of all the evidence before it, including the submissions of

Ms Smith and, in particular the written evidence submitted by Ms Dimitrova both to the

Trust and to the NMC.

Ms Smith submitted that Ms Dimitrova’s behaviour was such that it amounted to a lack

of competence in relation to charges 1 to 6, and it amounted to misconduct in relation to

charges 8, 9 and 10. She submitted that in relation to charges 8 and 9 the panel should

first consider whether Ms Dimitrova’s behaviour amounted to misconduct. If the panel

concluded there was misconduct it was not necessary to find a lack of competence.

However, if the panel did not find misconduct in relation to these two charges it should

go on to consider whether Ms Dimitrova’s behaviour amounted to a lack of competence.

The panel has heard and accepted the advice of the legal assessor. In relation to lack

of competence he referred the panel to the cases of Sadler v GMC [2003] 1WLR 2259,

Holton v GMC [2006] EWHC 2960 and Calhaem v GMC [2007] EWHC 2606 (Admin),

when considering the approach to take. In relation to misconduct he referred the panel

to the cases of Roylance v GMC (No 2) [2000] 1 A.C. 311 and Mallon v GMC [2007]

CSIH 17. In relation to impairment of fitness to practise he referred the panel to the

approach as set out in CHRE v NMC and Grant [2011] EWHC 97 and Cohen v GMC

[2008] EWHC 581 (Admin), when considering current impairment.

The panel approached its deliberations as a two stage process. It considered firstly

whether as a matter of judgement, if the facts found proved indicate a lack of

competence and/or there has been misconduct. Secondly, if a lack of competence

and/or misconduct is found, whether, in the light of all the material before it, Ms

Dimitrova’s fitness to practise is currently impaired.

39

Lack of competence – charges 1 to 6 The panel noted that in assessing lack of competence, the standard to be applied was

that applicable to the post to which the registrant had been appointed and the work she

was expected to carry out, as a band 5 midwife.

When reaching its decision the panel took a number of factors into account. The first is

that these charges span a period of approximately three and a half years. Ms

Dimitrova’s failings are serious in that, the panel considered, they fell significantly short

of the standards expected of a band 5 midwife. Further, a number of the failings relate

to basic skills, such as the non-touch technique for dispensing medications, checking

the dosage times for medication, asking patients to empty their bladders before

palpating their abdomens, preparing a resuscitaire and documenting the fetal heart rate

promptly.

The panel was concerned that some of the charges relate to a lack of basic

communications skills. Charge 3 relates to an assessment in order to see if Ms

Dimitrova could progress to a band 6 midwife, which she failed. At the time of the

assessment Ms Dimitrova had been working as a midwife for 3 years and it was be

expected, in the normal course of events, that she would be ready to move to the next

grade given her experience.

The panel considered Ms Dimitrova’s failures in relation to charge 6 is of particular

concern. In May 2014 Ms Dimitrova had been working as a midwife for 4 years and

was not able to satisfactorily explain GBS (not an unusual topic for a midwife) to a

mother and her partner. The panel were told by Ms S, of how upset the mother and

partner were, having been given entirely the wrong impression by Ms Dimitrova and as

a result a doctor was required to be called in order to reassure them.

Looking at matters in the round, the panel concluded that because of the timespan of

the charges, and the fundamental and wide-ranging nature of the deficiencies in her

practice that charges 1 to 6 demonstrate a fundamental lack of competence in Ms

Dimitrova’s ability to practise effectively as a band 5 midwife.

40

Misconduct and lack of competence – charges 8 and 9

The panel next considered charges 8 and 9. The panel first considered whether these

charges demonstrated a lack of competence. The charges relate to a lack of effective

communication with the mother Ms Dimitrova was caring for, a lack of essential

monitoring of a high-risk birth and a failure to escalate matters in a timely manner to an

obstetrician and to the neo-natal team. These actions contributed to the loss of a

chance of survival for Baby 1. The panel considered that these are all basic midwifery

skills and that Ms Dimitrova’s actions clearly indicated a lack of competence in her

ability to practise as a band 5 midwife.

The panel next considered whether the charges also amounted to misconduct. It bore in

mind the case of Roylance where misconduct was defined by Lord Clyde as;

…a word of general effect, involving some act or omission which falls short of

what would be proper in the circumstances. The standard of propriety may often

be found by reference to the rules and standards ordinarily required to be

followed by a [medical] practitioner in the particular circumstances.

The panel concluded that these actions fell seriously short of the standards expected of

a band 5 midwife. The failings relate to basic midwifery care. It appeared to the panel

that Ms Dimitrova made no attempt to properly manage the situation, particularly where

nothing effective was done to address matters when the CTG trace was lost for the best

part of 40 minutes in a high risk delivery. Further, knowing that this was a high risk

delivery, Ms Dimitrova did not take appropriate steps to summon the neo-natal team

and obstetrician even though she must have realised that they would be needed and

that time spent waiting for such specialist assistance after the birth could be critical to

the chance of survival of Baby 1.

41

In relation to charge 9 the panel concluded that the seriousness of Ms Dimtrova’s

failures contributed to the loss of a chance of survival for Baby 1 and that her falling

short of the required standard was sufficiently serious so as to amount to misconduct.

Misconduct – charge 10 The panel considered that by directly contravening an express wish of a mother for

whom she was caring, not to be cared for anymore by Ms Dimtirova, and by then

entering her room to talk to her, Ms Dimitrova displayed a complete lack of respect for

Mother C. Further, from the evidence of Ms S, it considered that Ms Dimitrova had little

or no understanding of the distress and upset she caused Mother C by her “horrific”

explanation of GBS.

The panel considered that, by doing so, Ms Dimitrova put her own wishes (the desire to

know why she was no longer wanted by Mother C) ahead of those of Mother C. The

panel considered that this demonstrated an attitudinal failure on her part.

The panel concluded that by disobeying a specific order from a senior colleague and

acting directly against the wishes of Mother C,MS Dimitrova’s actions were sufficiently

serious so as to amount to misconduct.

In addition, the panel also had regard to the Nursing and Midwifery Council Code of

Professional Conduct May 2008 (the Code). The panel concluded that Ms Dimitrova’s

conduct in relation to charges 8, 9 and 10 contravened the following provisions of the

Code:

From the preamble:

The people in your care must be able to trust you with their health and wellbeing.

To justify that trust, you must:

• make the care of people your first concern, treating them as individuals and

respecting their dignity

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• 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

Specific paragraphs

3 You must treat people kindly and considerately

8 You must listen to the people in your care and respond to their concerns and

preferences

12 You must share with people, in a way they can understand, the information they

want or need to know about their health

15 You must uphold people’s rights to be fully involved in decisions about their care

21 You must keep your colleagues informed when you are sharing the care of

others

22 You must work with colleagues to monitor the quality of your work and maintain

the safety of those in your care

23 You must facilitate students and others to develop their competence

25 You must be willing to share your skills and experience for the benefit of your

colleagues

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

38 You must have the knowledge and skills for safe and effective practice when

working without direct supervision

41 You must take part in appropriate learning and practice activities that maintain and

develop your competence and performance

53 You must not allow someone’s complaint to prejudice the care you provide for

them

61 You must uphold the reputation of your profession at all times.

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Having found that Ms Dimitrova’s actions amounted to misconduct and lack of

competence, the panel then went on to consider whether her fitness to practise is

currently impaired by reason of that misconduct and lack of competence.

Decision on impairment The panel was mindful that a registrant’s impairment should be judged by reference to

her suitability to remain on the register without restriction.

In deciding this matter the panel has again exercised its own judgement. It took account

of the need to protect the public and the need to declare and uphold proper standards of

conduct and behaviour so as to maintain public confidence in the profession.

The panel reminded itself of the guidance of Dame Janet Smith in her Fifth Shipman

Report as cited by Cox J., in Grant, regarding the proper approach to be taken when

considering impairment:

Do our findings of fact in respect of the [doctor’s] misconduct ...show that her fitness to

practise is impaired in the sense that she

a) has in the past acted and/or is liable in the future to act so as to

put a patient or patients at unwarranted risk of harm;

b) has in the past brought and/or is liable in the future to bring the

profession into disrepute;

c) has in the past breached and/or is liable in the future to breach

one of the fundamental tenets of the profession.

d) ….not relevant

The panel concluded that Ms Dimitrova did put her patients at unwarranted risk of harm.

In the case of Baby 1 Ms Dimitrova’s actions contributed to the loss of a chance of

survival. In the cases of Mother 1, Father 1, Mother B and Mother C, Ms Dimitrova’s

actions caused considerable distress.

The panel concluded that Ms Dimitrova’s actions had brought the profession into

disrepute as she had contributed to the loss of a chance of survival for Baby 1, and she

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had caused distress to a number of other individuals. The panel also considered that Ms

Dimitrova breached a number of fundamental tenets of the profession given the

breaches of the Code identified.

The panel considered whether Ms Dimitrova’s fitness to practise is currently impaired

and her likely future behaviour. In doing so, it took into account the guidance in the

case of Cohen v GMC [2008] EWHC 581 (Admin):

“… It must be highly relevant in determining if a [doctor's] fitness to practise is

impaired that first his or her conduct which led to the charge is easily remediable,

second that it has been remedied and third that it is highly unlikely to be

repeated.”

In considering this matter the panel took into account the evidence provided by Ms

Dimitrova, which included a number of positive comments from mothers and families

that she has cared for, and some professional references, dated between 2010 and

2016. Ms Dimitrova has also expressed some remorse and admitted some of the

charges at the outset of the hearing.

However, she has shown very limited insight and the panel considered that she has

produced no evidence of remediation. Following the capability hearing Ms Dimitrova

was demoted to a band 3 maternity support worker. The Trust did not consider her

capable to be a band 4 maternity support worker. She has remained in that post.

Ms Dimitrova had not succeeded in rectifying all the faults identified by the Capability

Programme. Indeed, the evidence given to the panel indicated that even though she

was well-supported, Ms Dimitrova criticised what she considered to be a lack of support.

However, when questioned she was unable to say what further support she needed.

The panel concluded that, given the lack of remediation and the lack of insight, a risk of

repetition of similar incidents remains. The panel therefore concluded that Ms

Dimitrova’s fitness to practise is impaired on the grounds of public protection.

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The panel also considered the public interest in upholding standards in the profession

and in maintaining confidence in the NMC as the regulator. The panel concluded that

members of the public would expect midwives to be capable of safe and effective

practice. In the panel’s judgement public confidence in the profession would be

undermined if a finding of impairment were not made in this case. For the reasons

which it has set above, the panel concluded that Ms Dimtrova’s fitness to practise is

also impaired on the grounds of public interest.

Determination on sanction

Having determined that Ms Dimitrova’s fitness to practise is impaired, the panel went on

to consider what sanction, if any, it should impose on her registration.

The panel took into account the submissions made by Ms Smith, and all of the evidence

before it, including Ms Dimitrova’s written responses. Ms Smith informed the panel that,

in relation to sanction, Ms Dimitrova was subject to an interim conditions of practice

order but had not worked as a midwife since her demotion at the Trust to a band 3

maternity support worker. She suggested that this may indicate that Ms Dimitrova is not

interested in remediating her shortcomings.


Under Article 29 of the Nursing and Midwifery Council Order 2001, the panel can take

no further action or impose one of the following sanctions in relation to the misconduct

charges: make a caution order for one to five years; make a conditions of practice order

for no more than three years; make a suspension order for a maximum of one year; or

make a striking off order. A striking off order is not available as a sanction in relation to

the lack of competency charges at this stage.

The panel has borne in mind that the purpose of a sanction is not to be punitive, though

it may have a punitive effect. It concluded that it would first consider the appropriate

sanction in relation to the misconduct charges, and depending on the outcome of its

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deliberations, the panel will then review the sanction in light of the competency charges,

if necessary.

The panel considered the sanctions in ascending order of seriousness.

The panel has applied the principles of fairness, reasonableness and proportionality,

weighing the interests of patients and the public with Ms Dimitrova’s own interests and

taking into account the mitigating and aggravating factors in the case. The public

interest includes the protection of patients, the maintenance of public confidence in the

profession and declaring and upholding proper standards of conduct and behaviour.

The panel has also taken account of the current Sanctions Guidance publication (SG).

The panel concluded that the aggravating features in this case include:

• there was actual serious patient harm

• there are two separate misconduct incidents some six months apart, and the

incident with Mother C occurred whilst Ms Dimitrova was subject to the capability

programme

• the charges (including those concerning lack of competence) show a similar

pattern of behaviour over time

• Ms Dimitrova appears to have an attitudinal issue, as exemplified by her

behaviour with regard to re-entering Mother C’s room and her disregarding of a

direct instruction from a senior midwife.

The panel concluded that the mitigating features in this case include:

• there were some admissions and there is a limited acceptance relating to some

of the concerns

• there is some insight.

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The panel considered whether the presence of a more senior midwife during some of

Mother 1’s labour and delivery was an aggravating or mitigating factor. It considered

that it did not have sufficient information, as to how long midwife 18 was in the room and

what other responsibilities she had on that shift, to reach an informed decision on

whether this was an aggravating or mitigating factor. It nonetheless noted that Ms

Dimitrova was not the only midwife present in the immediate lead-up to the birth of Baby

1 but that Ms Dimitrova was at all times directly accountable for her own acts and

omissions.

The panel first considered taking no further action but determined that this would be

inappropriate. It would not address the seriousness of Ms Dimitrova’s misconduct. In

those circumstances it would not be in the public interest to take no further action as it

would be wholly insufficient to maintain public confidence in the profession. To do so

would not provide sufficient public protection, nor would it uphold the standards of

behaviour expected of a registered midwife.

The panel then went on to consider whether a caution order would be appropriate. The

panel concluded that a caution order was not appropriate as the matters of concern

were too serious and could not be described as being at the lower end of the spectrum

of impaired fitness to practise. Further, a caution order would not be in the public

interest as it would not maintain confidence in the profession, it would not provide

sufficient public protection and it would not uphold the standards of behaviour expected

of a registered midwife.

The panel next considered a conditions of practice order. The panel concluded from

the content of Ms Dimitrova’s recent letters to the NMC that she very clearly no longer

wishes to work as a midwife. Further, as Ms Smith indicated in her submissions, Ms

Dimitrova appears to have decided to make no effort to find work as a midwife whilst

under an interim conditions of practice order. She has continued to work as a maternity

support worker at the Trust and has therefore been unable to comply with the interim

conditions of practice order. The panel was also concerned that whilst a conditions of

practice order could possibly address some of the deficiencies in Ms Dimitrova’s

practice, it was not in the public interest as the misconduct in charge 8 was too serious

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resulting in the death of Baby 1. The panel therefore concluded a conditions of practice

order is not appropriate nor proportionate in this case.

The panel next considered whether a suspension order would be appropriate in this

case. The panel took into account that this was not a single incident, that there was

evidence of an attitudinal issue and that Ms Dimitrova’s insight was limited. The panel

has already concluded that there is a risk of repetition of similar misconduct. There has

been no actual repetition because Ms Dimitrova has not worked as a midwife since her

demotion at the Trust and her role as a band 3 maternity support worker is very

different. The panel was also concerned that the attitudinal issues identified would not

be properly addressed by the imposition of a suspension order.

The panel then considered a striking-off order. The panel concluded that Ms

Dimitrova’s misconduct was an extremely serious departure from the standards

expected of a registered midwife. Her behaviour in relation to Mother 1 and Baby 1

resulted in major harm to Baby 1, who died within five days of birth. Further, her insight

is limited and there have been a significant number of breaches of the Code. The panel

concluded that these factors, together with the attitudinal issue displayed by Ms

Dimitrova, were so serious that her behaviour is incompatible with her remaining on the

register.

Having carefully balanced all the aggravating and mitigating factors the panel concluded

that a striking off order was the only sanction which will be sufficient to protect the public

and the public interest. The panel further concluded that public confidence in the

professions and the NMC as the regulator could not be sustained if Ms Dimitrova were

to remain on the register.

As the panel has concluded that a striking off order is appropriate for the misconduct

charges, it does not need to consider sanction in relation to the lack of competence

charges.

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For all the reasons above the panel directs that Ms Dimitrova’s name be removed from

the register.

Determination on Interim Order Pursuant to Article 29 (11) of the Nursing and Midwifery Order 2001, this panel’s

decision will not come into effect until after the 28 day appeal period, which begins on

the date that notice of the striking off order has been served. Article 31 of the Nursing

and Midwifery Order 2001 outlines the criteria for the imposition of an interim order.

The panel may only make an interim order if it is satisfied that it is necessary for the

protection of the public, is otherwise in the public interest or in Ms Dimitrova’s own

interest. The panel may make an interim conditions of practice order or an interim

suspension order for a maximum of 18 months.

The panel has accepted the advice of the legal assessor. It has also had regard to the

NMC’s guidance to panels in considering whether to make an interim order. The panel

has taken into account the principle of proportionality, bearing in mind the interests of

the public and Ms Dimitrova’s own interests.

The panel has borne in mind its reasons for making a striking off order. For those same

reasons, the panel is satisfied that it is necessary for the protection of the public and is

otherwise in the public interest for Ms Dimitrova’s registration to be subject to an interim

order. Not to do so would be inconsistent with the panel’s reasoning in relation to

sanction. The panel first considered whether an interim conditions of practice order

would be appropriate and proportionate and determined that it would not be for the

same reasons given in the substantive order.

The panel therefore determined that an interim suspension order is necessary and

would be appropriate and proportionate.

The period of this order is for 18 months to cover any potential appeal, but if at the end

of a period of 28 days, Ms Dimitrova has not lodged an appeal the interim order will

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lapse and be replaced by the substantive order. On the other hand, if Ms Dimitrova

does lodge an appeal, the interim order will continue.

That concludes this hearing. The decision will be confirmed in writing.

Conduct and Competence Committee Substantive Hearing · Elka Dimitrova: Not present and not...

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