England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		03/08/2018

Mrs Justice May:

Introduction

1. On 23 July 2012 the Claimant ("Cerys") was born at Queen Charlotte's Birth Centre, in West London, a unit operated and managed by the Defendant ("the Trust"). Mother and baby were attended throughout by a qualified and experienced midwife, Clare Nicholls ("MW Nicholls"). All went well, the baby appeared healthy and normal. Yet just under one hour after her birth, Cerys stopped breathing, as she and her parents were enjoying time alone after the birth. She was their first child.
2. When they noticed that something seemed wrong Cerys' parents called in the midwife, who removed the baby straightaway to be resuscitated. Staff managed to revive Cerys, but she had by then sustained a profound asphyxial insult. Despite immediate treatment in the paediatric ICU the neurological damage resulting from that event has left Cerys with very serious disabilities. She cannot walk, talk or eat normally and will require 24-hr care for the rest of her life. The shock and grief which her parents must have experienced can only be imagined.
3. The Trust conducted an internal investigation, in the course of which Cerys' parents raised certain concerns about the care they had been given, seeking to understand what might have caused Cerys to collapse in the way she did. In the event the Trust's internal report, dated 2 October 2012, identified no care issues with the midwifery management during labour or following delivery. It found no contributory factors or root causes of Cerys' collapse, nor any learning points to be derived from what took place.
4. Cerys' parents thereafter instructed solicitors and a Letter of Claim was sent to the Trust dated 7 September 2015. A Claim Form followed on 14 July 2016, with Particulars of Claim dated 27 July 2016. The Trust served its Defence on 3 January 2017. By his Order dated 10 April 2017, Master Roberts directed a split trial, with liability to be decided as a preliminary issue.
5. The hearing before me was to decide liability, in accordance with those directions. Cerys was represented at trial by Mr Angus Moon QC, the Trust by Mr John Whitting QC. I am grateful to them both for their careful, clear and helpful submissions.

Chronology of events

6. The timing of material events at and after the birth on 23 July 2012 is not in issue:

Cerys was born at 1329. It was a water-birth. She required some minor resuscitation, after which her colour, tone and APGAR scores were normal and healthy. Her father held her whilst the placenta was delivered.

At around 1402 Cerys was returned to her mother wrapped in a towel, for skin to skin contact. Breastfeeding was initiated, with advice and assistance in positioning given by the midwife. The uncontested evidence from Cerys' mother, Ms Geis-Clements, is that Cerys started to suck strongly, then came off and was re-latched where she suckled again, unlatching and re-latching once more until about 1412 when she fell asleep at the breast.

At 1408 MW Nicholls left the room, telling the parents that she was just outside and that they should call her if they had any concerns. There was a factual issue on the pleadings as to whether MW Nicholls told the parents that she would be back in 10 minutes; as I set out below, this issue receded in significance at trial.

Cerys' father took photographs during labour and throughout the period after her birth, including in particular a close-up shot at 1409 showing Cerys being held in her mother's arm, at her mother's left breast, with her face tucked in.

The paediatric neurologists' agreed evidence is that the acute hypoxic insult (AHI) to Cerys began at 1426. The neonatology evidence was that Cerys must have stopped breathing about a minute before, at 1425.

A photograph taken by Mr Clements at 1434 shows Cerys still held in the crook of her mother's left arm as before, but with a changed colour to her skin.

Initially her parents noticed nothing abnormal, but after Cerys' mother moved her from the crook of her left arm up to her chest at around 1439, both she and Cerys' father became concerned. At 14.45 they called in MW Nicholls who immediately removed Cerys and began resuscitation. The agreed neurology evidence is that the AHI ceased at 1448.

7. Although Cerys was revived and taken immediately to Intensive Care, the length of time for which her brain had been deprived of oxygen resulted in significant irrecoverable neurological damage.

Issues for my decision at this trial

8. Breach and causation are both in issue. The Particulars of Claim set out ten separate allegations of negligence but by the time of closing the "main causative allegations", as Mr Moon described them, had resolved to two specific breaches of duty as follows:

(i) Advising Cerys' mother that if Cerys could not breathe she (Cerys) would wriggle and pull her head back, described by Ms Greenway, the expert midwife instructed on behalf of Cerys, as "false reassurance"; and

(ii) Leaving Cerys and her parents unattended and unchecked to attempt breast feeding and skin to skin contact between about 1408 and 1440.

9. The case for Cerys is that her mouth and nose were obstructed and her breathing compromised by her mother's left breast during skin to skin contact when she was left alone with her parents. There is no criticism of MW Nicholls for leaving the parents alone with their new baby for bonding time, indeed this is mandated practice. However, it is alleged that MW Nicholls, before leaving them, should have advised Cerys' mother to keep her baby's nostrils free at all times, and should not have answered a query by Ms Geis-Clements about Cerys' ability to breathe whilst at the breast by saying that babies will wriggle and pull their head back if they cannot breathe.
10. It is also said that MW Nicholls should have returned within the hour after birth, or at the latest 5 minutes after that and that had she done so she would immediately have noticed that Cerys had collapsed and resuscitation would have commenced in time to prevent any neurological damage.
11. I deal with breach and causation in relation to each of these allegations separately below

First allegation of breach – advising that babies will move to breathe

Mechanism of collapse

12. Before deciding what, if any, causative effect the "false reassurance" had, there is a prior matter to be determined, namely the mechanism of Cerys' collapse. The assumption that it was caused by suffocation at her mother's breast underpins the allegation of negligent advice. It is to that matter, therefore, that I turn first.

Medical evidence

13. Taking it in stages, it is clear that Cerys sustained a period of asphyxia. The unchallenged conclusion of Dr Neil Stoodley, consultant neuroradiologist instructed on behalf of Cerys, was that:

"The pattern of structural brain damage evident on the scans is likely to be due to an acute near total hypoxic-ischaemic insult…Such patterns of structural brain damage are often associated with prolonged periods of fetal bradycardia where the fetal heart rate drops below 100bpm and often below 80bpm."

14. The Defendant's expert neuroradiologist, Dr Forbes, likewise concluded:

"[the] MRI scans show a pattern of brain injury consistent with her having suffered a short period of profound asphyxia."

15. The agreed evidence of the consultant paediatric neurologists, Dr Pohl instructed on behalf of Cerys and Dr Rosenbloom by the Trust, is that the AHI would have started at 1426, that brain damage would have been irreversible after 1436, and that the likely end of the AHI, once Cerys had been resuscitated, was at 1448. The neonatologists agreed that if the AHI started at 1426 then Cerys must have stopped breathing at 1425.
16. The key question at this trial is what caused her to stop breathing. The Claimant's case is that it was the result of her airways being obstructed by her mother's breast tissue.
17. The expert neonatologists from whom I received evidence at trial, Dr Dear instructed on behalf of Cerys and Dr Rennie for the Trust, were not agreed. Dr Dear's conclusion, set out at p.17 of his report was that:

"on a strong balance of probability, this is one of those extremely unfortunate cases of neonatal cardiorespiratory arrest brought about by obstruction of the airways during close bodily contact between mother and baby"

18. The terms in which Dr Dear couched this conclusion suggested that there are cases of sudden untoward postnatal collapse (SUPC) which have definitively been established as resulting from suffocation by the mother during close bodily contact. But such a definitive causative connection has not been established, as is evident from the literature relied upon by Dr Dear in support of his conclusion: a study undertaken by Poets et al, published in 2011. The authors of this article obtained data from every paediatric department in Germany from which they identified 17 cases of SUPC, corresponding to an incidence of 2.6 cases in every 100,000 births. 9 of the 17 cases occurred in the first 2 hours of birth. The authors discuss in their article what the reasons for such events might have been, including "potentially asphyxiating position", "postnatal fatigue of mother and child" "physiologic changes that take place in the first 6 hours after birth". In some cases, the infant was found lying supine in its own bed away from the mother. The authors go on to say, "All of these proposed mechanisms, however, remain speculative…"
19. Dr Dear was criticised by Mr Whitting in cross-examination at trial for referring to a single, un-referenced, article in his report in support of his conclusion. Dr Dear acknowledged the criticism but pointed out that there were many other papers making similar findings, whose authors had postulated asphyxia during skin to skin contact after birth as a possible cause of the baby's collapse. He referred in his evidence to a paper by Becher et al, also published in 2011, collecting and analysing data on incidents of SUPC within the UK.
20. Mr Whitting suggested to Dr Dear, and he accepted, that (i) the statistical incidence of SUPC within the first 2 hours of birth is around 1:100,000 live births and (ii) statistically there is a significant minority of SUPC cases with no reported connection between the baby's collapse and close contact with the mother, where no risk factors have pertained and thus where no possible cause has been identified.
21. Dr Rennie summarised her opinion as follows (in her Summary at p.4 of her report):

"The Particulars of Claim allege that the mechanism of asphyxia was nasal obstruction caused by contact of Cerys' face with Julia's breast and chest, and that if different advice had been given the collapse could have been avoided. Whilst SUPC is certainly a well known phenomenon there is still debate about the actual reason and mechanism for the collapse. Whilst many babies who experience SUPC are found prone on their mother's chest this is the usual position adopted when skin to skin contact is adopted in the first hours of life. There is extensive literature on the problem, with some authors making very specific recommendations, but so far no protocol or policy has been shown to be effective in preventing SUPC."

22. In answer to questions by Mr Moon, Dr Rennie accepted that the authors of research articles looking at the possible causes of SUPC had identified suffocation at the mother's breast as a possible cause in some cases. However, she was careful to draw a distinction between association and causation. Given the ubiquitous practice of skin to skin contact between mother and baby for a period immediately after birth, Dr Rennie pointed out, it was unsurprising that in many (but not all) cases of SUPC occurring within 2 hours of birth the baby was found in close contact with the mother.
23. Dr Rennie agreed that the literature identifies risk factors for SUPC which include skin to skin contact and primigravid (first-time) mothers. She also agreed that a common hypothesis for a cause of SUPC put forward in the literature is that of airway obstruction. Mr Moon suggested that the cause of that obstruction has been found to be occlusion of the mouth and nose in close contact with the mother; Dr Rennie accepted that this was commonly postulated in the literature, but pointed out again that as skin to skin contact after birth is so widely recommended and practised, the circumstances in which newborns with SUPC are found are likely to involve close contact. The as-yet unresolved issue, Dr Rennie said, was what came first: asphyxia, or collapse followed by asphyxia? In a significant minority of SUPC cases there is no possibility of airway obstruction, thus suffocation by the mother is only one hypothesis, she emphasised.
24. Dr Rennie agreed with Dr Dear that whilst most babies will move their head to breathe, or "arouse" if their airway is blocked, a small proportion appear to respond to airway occlusion with apnoea (ceasing to breathe) rather than arousing/moving. Both Dr Rennie and Dr Dear indicated that this finding is based upon a study performed in the 1970s which involved briefly blocking the nostrils of 100 sleeping infants and observing their reaction. 97 of the infants moved to breathe, but 3 responded by apnoea. As it is accepted in this case that Cerys was being held by her mother such that her head was free to move, Dr Dear concluded that she must have been one of a small number of babies who do not move/arouse in response to airway occlusion.
25. Dr Rennie, however, was of the view that the particular timing here, taken together with the evidence of Cerys' position in the photographs, could not bear out this conclusion. At 1409, notwithstanding that it appears from the close-up taken at that time that Cerys' mouth and nose were pressed into her mother's breast, she was pink and healthy. Dr Dear himself readily acknowledged that Cerys must have been breathing normally at this time. His view was that, despite Mrs Geis-Clements' evidence that neither she nor Cerys moved position until 1435, there must nevertheless have been a small shift of Cerys' mouth and nose relative to her mother's breast during this time, causing obstruction. As to this, the point made by Dr Rennie was that if Cerys' mouth and nose were occluded as at 1409, or risked being occluded, she was plainly able to move her head so as to maintain an airway over the next 16 minutes until she stopped breathing at 1425. It does not make sense, Dr Rennie pointed out, for Cerys to have been a baby who could arouse/move to maintain an airway up to 1425, but not after that.
26. Mr Whitting's submission, based on this evidence, was that the causal link between Cerys' collapse and suffocation by her mother's breast had simply not been made out. Quite apart from the lack of any definitive cause of SUPC being identified in the literature (as opposed to hypotheses or postulates), there were on the particular circumstances of this case, very significant contra-indicators to Cerys having suffocated at her mother's breast:

• Mrs Geis-Clements and her husband were both present and alert, both looking at Cerys if not constantly then very often.

• Both parents were plainly intelligent, well read and highly responsible people. They had attended all NCT classes, including a 2½ hour class on breastfeeding during which Mrs Geis-Clements had taken full notes; she had later read booklets on breastfeeding and looked online. She was well aware that babies should have at least one nostril clear to be able to breathe.

• MW Nicholls was just outside, the parents knew they could call for her at any time if they had concerns.

• The evidence was that neither Mrs Geis-Clements nor Cerys had moved from the position seen in photos taken at 1402, 1403, 1405 and 1409 (there were none taken between 1409 and 1434). If Cerys was able to breathe at 1409, as the experts agreed she was, then her position, which remained the same, cannot have caused her to stop breathing at 1425.

27. It was highly unlikely, in these circumstances, Mr Whitting suggested, that the cause of Cerys' collapse was obstruction of her airways by her mother's breast. This was, he submitted, an event without any identifiable cause, as is the case in a significant minority of the reported occasions of SUPC.
28. Mr Moon submitted that Mr Whitting's was too scientific an approach, that the court's task is to decide, on the balance of probabilities only, what the likely cause of Cerys' collapse was. He urged me to find that there was sufficient evidence to reach a decision as to the cause of the AHI in her case, and that the only likely cause on the evidence was suffocation. Mr Moon pointed to:

(1) The absence of any other suggested cause.

(2) Cerys' position in the crook of her mother's left arm, with her face close in to her mother's left breast, as shown in the close-up photograph taken at 1409.

(3) The informed hypotheses put forward in a number of authoritative medical journals identifying asphyxiation through airway occlusion in close contact with the mother as a likely cause or contributor of SUPC.

29. Mr Moon accepted that Cerys' parents were well-educated, responsible and informed professionals, but pointed out that at the time of Cerys' birth they were first-time parents, totally inexperienced in the care of a newborn infant. Although Cerys' mother was aware that babies would need their nose clear to breathe, she had relied, as any new mother would, on the advice of MW Nicholls that babies will wriggle and pull their head back if they are in a position where they cannot breathe properly.

Conclusion – cause of collapse

30. Mr Moon's submission, made in closing, was that it was sufficient for the Claimant to show that "the asphyxia caused by her mother's breast made a more than negligible contribution to her injuries" (see para.31 of the Claimant's note of closing submissions). Mr Moon relied for this contention on the case of Bailey v MOD [2008] EWCA Civ 883 and in particular this passage taken from [46]:

"…In a case where medical science cannot establish the probability that 'but for' an act of negligence the injury would not have happened but can establish that the contribution of the negligent cause was more than negligible, the 'but for' test is modified, and the claimant will succeed."

31. I am not satisfied that this is the proper approach to be adopted here. Apart from anything, the formulation of the issue advanced by Mr Moon assumes as a fact that which the Claimant must show, namely that the asphyxia which Cerys suffered was caused by her mother's breast. Bailey was a case where the evidence suggested a number of cumulative causes of the injury sustained by the claimant (aspiration of vomit in a weakened state, leading to cardiac arrest and hypoxia resulting in brain injury). The present case is not one where cumulative causes of Cerys' injuries are said to have obtained. Her case is and always has been straightforward: that she stopped breathing at 1425 when her nose and mouth were obstructed by her mother's breast. It is for the Claimant to show that her collapse was more likely than not the result of asphyxiation through suffocation by her mother's breast.
32. In this respect, the circumstances of the present case appear more like those in Essex v. Wilsher v Essex Area Health Authority [1988] AC 1074 discussed by the court in Bailey at [9]-[10]. In Wilsher the House of Lords overturned the Court of Appeal's majority decision upholding liability, referring to the dissenting judgment of Sir Nicholas Browne-Wilkinson VC who said this, at 779:

"in the McGhee case…[t]here was only one possible agent which could have caused the dermatitis, viz, brick dust, and there was no doubt that the dermatitis from which he suffered was caused by that brick dust. In the present case the question is different. There are a number of different agents which could have caused the RLF [retrolental fibroplasia]. Excess oxygen was one of them. The defendants failed to take reasonable precautions to prevent one of the possible causative agents (eg excess oxygen) from causing RLF. But no one can tell in this case whether excess oxygen did or did not cause or contribute to the RLF suffered by the plaintiff. The plaintiff's RLF may have been caused by some completely different agent or agents….There is no satisfactory evidence that excess oxygen is more likely than any of those other four candidates to have caused RLF in this baby. To my mind the occurrence of RLF following a failure to take a necessary precaution to prevent excess oxygen causing RLF provides no evidence and raises no presumption that it was excess oxygen rather than one or more of the four other possible agents which caused or contributed to RLF in this case. The position, to my mind, is wholly different from that in the McGhee case [1973] 1 WLR 1 where there was only one candidate (brick dust) which could have caused the dermatitis, and the failure to take a precaution against brick dust causing dermatitis was followed by dermatitis caused by brick dust. In such a case I can see the common sense, if not the logic, of holding that, in the absence of any other evidence, the failure to take the precaution caused or contributed to the dermatitis. To the extent that certain members of the House of Lords decided the question on inferences from evidence or presumptions, I do not consider that the present case falls within their reasoning. A failure to take preventative measures against one out of five possible causes is no evidence as to which of those five caused the injury"

33. The analysis of the Vice-Chancellor in Wilsher seems to me to apply even more strongly on the facts of this case, where no definitive cause or causes of SUPC have been identified, but only many risk factors generating hypothesised causes.
34. On the evidence which I have heard, I cannot be satisfied on the balance of probabilities that what caused Cerys to stop breathing was obstruction of her mouth and nose by her mother's breast tissue. These are my reasons:

(1) SUPC is an exceptionally rare event. Although the literature indicates occurrence in 3 out of every 100,000 live births, incidents of collapse within the first 2 hours of birth are of the order of 1:100,000. A unifying cause of these tragic collapses has not been identified, and although postulated causes include asphyxiation through lying prone or at the mother's breast, these hypotheses come from the circumstances in which the babies have been discovered. In 30% of the reported cases of SUPC no cause at all has been able to be suggested.

(2) The close-up photograph taken at 1409, seen in isolation, shows Cerys nuzzled right in to her mother's breast, with her nose and mouth hidden from the camera. However, looking at the position shown in the wider shot taken at 1405 it is not at all clear that Cerys' mouth and nose were obstructed or even "potentially obstructed", as Dr Dear put it. The expert neonatologists, looking at the close up taken at 1409 were each satisfied that Cerys' airway must have been clear and that she was breathing properly as she is pink and healthy in that picture.

(3) I am persuaded by Dr Rennie's analysis of the timing: if Cerys was one of a statistically small percentage of babies who respond to occlusion of their nose with apnoea rather than moving/arousing, and her airway was compromised by the position in which she was being held as shown in the photograph taken at 1409, she would have started to deteriorate then, whereas the evidence is that Cerys was able to, and did, breathe normally for another 16 minutes, until 1425. I acknowledge Dr Dear's evidence that there may be small shifts of position, unnoticed by the mother, but to my mind that does not explain how Cerys managed to breathe apparently normally for over 23 minutes from 1402, notwithstanding that (if he is right) there must have been many small shifts of position in that time.

35. I was not persuaded by the further points made by Mr Whitting concerning Cerys' parents' undoubted intelligence and responsible interest. I understood him to be suggesting that Cerys' parents must have been alert and concerned at all times to ensure that her mouth and nose were free of obstruction. For the reasons I have given I do not believe that the evidence has established that Cerys collapsed through being suffocated by her mother's breast. But in any event Lee Clements and Julia Geis-Clements were new parents, totally inexperienced with newborns, unaware of the vanishingly small possibility of SUPC. They were innocent and unsuspecting in that delivery room, exhausted and elated as new parents are with the birth of a child which they had so much been looking forward to and planning for. Cerys was being held in the position that their midwife had placed her in and they had been reassured that she would move her head to breathe if necessary. They did not immediately notice that Cerys was losing tone and colour, why should they? There was no reason at all for them to be alert to that possibility. The fact that they were unaware of anything amiss until sometime after Cerys had stopped breathing and her colour had changed (as shown in the photograph taken at 1434) of itself demonstrates to my mind that the information from classes which they had attended and leaflets which they had read was insignificant in the events that occurred. No parent expects their apparently healthy baby to stop breathing.

Breach of duty

36. I addressed the cause of Cerys' collapse first as Mr Moon's arguments in relation to breach of a duty to advise regarding breastfeeding appeared to be predicated on the cause of her collapse being suffocation by her mother's breast. The expert opinion advanced by the independent midwife instructed on behalf of Cerys, Ms Greenway, also seemed to be based upon an assumption that this accounted for Cerys' asphyxia. For the reasons I have given, I am not satisfied that obstruction of her airway was the cause of her collapse and asphyxia.
37. If there was a breach of duty, therefore, it was not in my view causative of Cerys' injury. However, in case this matter should go further I shall record my findings regarding the allegation of breach.
38. It is undoubtedly the case that the Trust, in the person of MW Nicholls, owed Cerys a duty of care in relation to the care and advice given to her mother after the birth. The issue is whether that duty was breached by the specific advice that the midwife gave.
39. It is important to note that there was no criticism of the position in which MW Nicholls placed Cerys at her mother's breast. Ms Greenway accepted in evidence that the photos showed Cerys being held in a suitable position with her back supported and her head free to move. Mrs Geis-Clements' evidence was that Cerys had come off and been latched back on again by MW Nicholls before she left, and then that she had come off once more and been guided back to the breast where she continued to suckle after the midwife had left the room.
40. In her witness statement MW Nicholls' evidence was that she "always explain[s] that a baby will not suffocate if it can move its head back". In her evidence at trial she said that she could not recall whether Mrs Geis-Clements had specifically asked whether Cerys would be able to breathe with her face up against her breast but accepted that it was a normal question for a mother to ask. Mr Moon put it to her that she had told Mrs Geis-Clements that a baby will wriggle and pull their head back if they could not breathe, to which MW Nicholls said that she could not remember specifically saying that to Mrs Geis-Clements, but that these were words she would use. She agreed that she would not have gone on to tell Cerys' mother to ensure that one nostril was free at all times.
41. Mr Moon contended that MW Nicholls was negligent in advising Cerys' mother that if she could not breathe Cerys would wriggle and pull her head back. Even if a body of competent and careful midwives would in 2012 have given this advice, he argued, it was not reasonable or rational advice to give. He referred me to the judgment of Lord Browne-Wilkinson in Bolitho v. City and Hackney Health Authority [1998] AC 232, and to this passage at 241G-243E:

"…The use of these adjectives – responsible, reasonable and respectable – all show that the court has to be satisfied that the exponents of the body of opinion relied upon can demonstrate that such opinion has a logical basis. In particular, in cases involving, as they so often do, the weighing of risks against benefits, the judge before accepting a body of opinion as being responsible reasonable or respectable, will need to be satisfied that, in forming their views, the experts have directed their minds to the question of comparative risks and benefits and have reached a defensible conclusion on the matter."

Referring at 242F to the case of Edward Wong Finance Co Ltd v. Johnson Stokes & Master [1984] AC 296 Lord Browne-Wilkinson went on to approve the reasoning of the Privy Council in that case:

"The Privy Council held that…the defendant's solicitors were liable for negligence because there was an obvious risk which could have been guarded against. Thus, the body of professional opinion, though almost universally held, was not reasonable or responsible."

42. However, Lord Browne-Wilkinson emphasised that cases where a body of professional opinion will not be found to be responsible or respectable will be rare (at 243B):

"In the vast majority of cases the fact that distinguished experts in the field are of a particular opinion will demonstrate the reasonableness of that opinion. In particular, where there are questions of assessment of the relative risks and benefits of adopting a particular medical practice, as reasonable view necessarily pre-supposes that the relative risks and benefits have been weighed by the experts in forming their opinions. But if, in a rare case, it can be demonstrated that the professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of opinion is not reasonable or responsible.

I emphasise that in my view it will very seldom be right for a judge to reach the conclusion that views genuinely held by a competent medical expert are unreasonable. The assessment of medical risks and benefits is a matter of clinical judgment which a judge would not normally be able to make without expert evidence. …it would be wrong to allow such assessment to deteriorate into seeking to persuade the judge to prefer one of two views both of which are capable of being logically supported. It is only where a judge can be satisfied that the body of expert opinion cannot be logically supported at all that such opinion will not provide the benchmark by reference to which the defendant's conduct falls to be assessed."

43. The expert midwifery experts, Ms Greenway instructed on behalf of Cerys and Ms Brydon for the Trust, held different opinions as to whether a new mother who asked about her baby's breathing during breastfeeding should be told that babies will wriggle and pull their heads back if they cannot breathe. Ms Greenway described the advice given by MW Nicholls as "false reassurance"; Ms Brydon's evidence was that provided the midwife has positioned the baby correctly then this reassurance was proper to give; indeed, she said, she frequently reassures new mothers feeding their babies for the first time in this way. Women with larger breasts will generally ask whether their baby will be able to breathe when suckling, she said, and this is what she tells them.

Discussion and conclusion on breach of duty

44. It was not clear from Ms Greenway's expert report whether the reason for her opinion was that reassurance in these terms fails to cater for the risk of SUPC, or whether she thought it inappropriate as the sole piece of advice to be given to a new mother regarding the correct way to breastfeed. There was no reference in her report or her answers in the joint statement to the literature regarding SUPC or to the study done in the 1970s indicating that a small percentage of babies will not move/arouse to breathe when their nostrils are briefly occluded. Thus, I could not be sure from Ms Greenway's report, or the joint statement, whether she took the view that advice as given by MW Nicholls represented false reassurance even when a baby is correctly positioned at the mother's breast with her head free to move. As I have recorded above, there is no dispute in this case that when MW Nicholls left the room, Cerys was correctly positioned at her mother's breast.
45. However even on the understanding that this was the thrust of Ms Greenway's evidence, it appears nevertheless that a body of midwives, including Ms Brydon and MW Nicholls, adopt the practice of telling mothers who express concern about their baby's ability to breathe at the breast, that babies will move their heads in order to do so. I did not understand Mr Moon seriously to contest Ms Brydon's evidence in this respect or to suggest that giving such reassurance to new mothers was not the accepted practice of a body of midwifery practitioners.
46. Mr Moon's argument was rather that such a practice was "not reasonable or responsible", per Lord Browne-Wilkinson in Bolitho, cited above. Mr Moon relied on the research done in the 1970s to which I have already referred. The fact that a small percentage of babies will become apnoeic when their nostrils are blocked "has been known for decades", Mr Moon submitted, making it unreasonable and illogical to give reassurance in the terms that Ms Brydon and other midwives use, and that MW Nicholls used in this case. Mr Moon asserted that there was "no proper basis" for giving such reassurance.
47. I do not accept that the evidence before me went this far. Dr Dear accepted that advice to the effect that a baby will wriggle and pull its head back if it cannot breathe properly whilst feeding is accurate for most infants. Dr Rennie pointed out that the 1970s study only occluded the babies' nostrils for a very short time to note the immediate response and that there was (obviously, as it would have been unethical) no further investigation as to what the apnoeic babies would go on to do if their nostrils continued to be occluded. Mr Moon attempted to explore with Dr Rennie what she would advise new mothers in this regard, however Dr Rennie emphasised that as doctors they would not expect to give advice on breastfeeding, that this was a midwifery issue.
48. Ms Brydon's evidence, which I accepted, was that she had not known of the 1970s study before speaking to the neonatologists in this case. Ms Greenway in her evidence accepted that there was nothing in any Guideline requiring a midwife to advise a new mother of steps they should take to ensure that a baby can breathe or directing them against giving reassurance to the effect that babies will move their heads to breathe.
49. Mr Moon took Ms Brydon to the NICE Guideline entitled "Postnatal Care" where, under the heading "Continuing successful breastfeeding", at para 1.3.21 there is a reference to the woman being advised of the matters set out in Box 1 on the next page, including as to positioning of the baby:

"chin touching the breast, lower lip rolled down, and nose free" (emphasis added)

Mr Moon suggested to Ms Brydon that this part of the guideline set out a requirement for new mothers to be told to keep the nose free, to which Ms Brydon pointed out that the advice and indicators set out in Box 1 appear in a section of the guideline which deals with the advice to be given in the days and weeks after birth. The initial stage immediately after the birth is dealt with in the preceding section of the NICE Guideline, she indicated, under the heading "Starting successful breastfeeding" where the direction does not include advising the mother to keep her baby's nose free at all times. Ms Greenway in her evidence agreed that there was a distinction to be made between the initiating of feeding immediately after the birth and what happens after that.

50. I accept, based on this evidence, that there is no mandated practice of advising a new mother to ensure that her baby's nose is kept free, and that the procedure for initiating feeding between mother and new baby immediately post-birth is very different to the more prescriptive and didactic approach which midwives adopt at a later stage when assisting a mother to establish a good breastfeeding routine.
51. Returning to the question of whether the practice of reassurance given by Ms Brydon and others in response to a new mother's expressed concerns was unreasonable or irresponsible, Mr Moon referred me to the case of Montgomery v. Lanarkshire Health Board [2015] AC 1430, and to the judgment of Lord Kerr and Lord Reed (with whom the remaining Supreme Court Justices agreed) at [87] where they said this:

"An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken. The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient's position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it."

52. Whilst acknowledging that Montgomery decision was given in the context of determining treatment options, Mr Moon relied upon it in support of his submission that the reassurance given by midwives to the effect that a baby will move to breathe takes no account of the material risk that some babies do not do so, instead suffocating at their mother's breast. The existence of that material risk is what makes the practice of giving such reassurance irresponsible, unreasonable and irrational, he argued.
53. I bear in mind that even if one were to assume that all cases of SUPC within the first 2 hours of birth are attributable to asphyxiation by the maternal breast (which for the reasons given above is not an assumption that can properly be made) the incidence is 1:100,000 births, which represents an extremely low risk. Mr Whitting referred me to two first instance decisions where courts have found that risks of the order of 1:1000 were immaterial and not obliged to be notified, Mrs A v. East Kent Hospitals NHS Foundation Trust [2015] EWHC 1038 and Mahima Begum Tasmin v. Barts Health NHS Trust [2015] EWHC 3135; Mr Whitting submitted that the present case was a fortiori.
54. Mr Moon argued that materiality cannot be tied to a single percentage, that what is material will vary from case to case according to the nature of the risk, the effect on the patient and the alternative treatments or courses of action which might be available. In this case, he pointed out, the effect of the risk of suffocating eventuating was catastrophic, on the Claimant's case, as against the simple precaution of alerting mothers to keep their baby's nose free.
55. Mr Moon put to each of the doctors in evidence that advice to the effect that a mother should "keep the nose clear" need not be unduly stressful to the mother, a proposition with which they agreed. When he suggested this to Ms Brydon, however, her response was that there was a risk that the mother would be too frightened to feed her baby. She pointed out that having the baby's face up against the breast tissue is not the same thing as obstructed breathing and that midwives had not told women to lift their breast tissue for years. Breastfeeding is not a dangerous activity, Ms Brydon emphasised.
56. In my view, even assuming that all of the 1:100,000 cases of SUPC could be linked definitively to breastfeeding, the risk is not one that is so material as to render the reassurance given by some midwives generally, and MW Nicholls in particular in this case, irresponsible or unreasonable. A midwife cannot say nothing in answer to a mother who seeks reassurance that their new baby will be able to breathe whilst feeding. Mr Moon's suggestion to the doctors that a mother be told to "keep the baby's nose clear" was not put or specifically addressed by them in the context of a new mother who has sought reassurance that her baby will be able to breathe whilst feeding. I can well understand that in that context advising a mother to "keep the baby's nose clear" may give rise to anxiety in a woman who is already concerned about whether her baby can breathe, and may provoke checking behaviours inimical to calm and peaceful enjoyment of skin to skin contact immediately post-birth and the initiation of relaxed breastfeeding.
57. I am satisfied, on the evidence, that a responsible, reasonable and respectable body of midwives in 2012 was telling new mothers seeking reassurance about their baby's ability to breathe during breastfeeding that the babies would move to breathe, and that this practice was logical with a proper basis in fact. Indeed, on Ms Brydon's evidence, midwives are still providing this reassurance in 2018. All the experts were agreed that most babies will move to breathe, if held in the correct way so as to allow the baby's head to move. The best estimate of the risk that an otherwise apparently healthy newborn will stop breathing within 2 hours of birth is 1:100,000, the figure is even lower ("unknowably" small, as submitted by Mr Whitting) if cases where the baby has collapsed at the breast are considered in isolation. Moreover, as indicated by Dr Rennie in her evidence (see above) an association with breastfeeding does not establish causation. In my view therefore, the risk of SUPC is not a material risk which renders illogical or unreasonable the advice given to mothers that their babies will move to breathe, set against the undoubted benefits of relaxed initiation of breastfeeding and skin to skin contact post-birth.
58. For these reasons, I conclude that MW Nicholls was not in breach of duty in responding to Mrs Geis-Clements' enquiry as she did on 23 July 2012. I am fortified in this conclusion by the evidence of Dr Rennie concerning her department's response at UCH in London to the rare events of SUPC that have occurred there. She told me that she has had direct experience of 2 events of SUPC in 40 years of clinical practice, along with some further cases of babies admitted for cooling treatment following their collapse at other centres. After each such case, Dr Rennie said, she and her team have considered most anxiously what changes might be made, what advice to new parents could be given, how procedures might be altered so as to prevent or reduce the risk of these disastrous events occurring. On each occasion they have concluded that nothing more could be done; neither her hospital or health trust, nor any other in the UK, has made any changes to their procedures as a result of occasions of SUPC occurring there, or in response to the published research discussing what the causes of SUPC might be.

Second allegation – failing to return by 14.31 at the latest

59. I turn next to the second allegation of breach, namely that MW Nicholls should have returned to the room to check on Mrs Geis-Clements and Cerys sooner than she did.
60. As the evidence is that Cerys was breathing adequately until 1425, I checked with Mr Moon what the precise allegation was, in the light of that evidence. He confirmed that his case was that MW Nicholls should have returned to the room between 1426 (the time the AHI is agreed to have started) and 1431 (1hr and 5mins after the birth). He based his end-point of 1431 upon Ms Greenway's evidence that she would have expected the midwife to return at the latest 5 minutes after an hour post-birth in order to do regular checks on the baby.
61. It is not in dispute that if MW Nicholls had returned at any point after 1426 she would have noticed that Cerys was not breathing and would have taken steps to resuscitate her. Neither is it disputed that if Cerys had been resuscitated before 1436 permanent brain damage would have been avoided. On this second allegation of negligence, therefore, if the breach of duty is established, causation is not in issue.
62. One of the matters of fact traversed in the evidence was whether MW Nicholls had told Cerys' parents that she would be back in 10 minutes, ie by 1418. Mr Moon confirmed in closing that although he continued to rely on the fact that this was said in support of his case as to breach generally, he did not seek to contend that MW Nicholls was in breach of duty by failing to return within 10 minutes. He accepted that if MW Nicholls had come back after 10 minutes, the evidence suggested that she would have seen Cerys in the same position at her mother's breast, pink and healthy, breathing well. He relied upon her promise to return as further support for his case that MW Nicholls should have come back before 1431.
63. In my view, however, the factual dispute about whether a promise to return in 10 minutes was given is immaterial to the second allegation of breach. Ms Greenway based her opinion that MW Nicholls should have returned on the hour (or 5 minutes either side) on the Trust guideline requiring routine measurements of weight and temperature to be taken, together with her own view of what, in the light of the note made by the paediatric SHO on Cerys' file at the time she was resuscitated immediately post-birth, the attending midwife should have done. Ms Greenway did not suggest, and I cannot see, that a promise to check on the family in 10 minutes would have impacted the obligation to assess Cerys' temperature and weight on the hour, if such an obligation existed.
64. Had it been necessary to make any factual finding as to whether or not MW Nicholls told the parents that she would check on them in 10 minutes I would have found that she probably did say something to that effect. It was admitted in the Trust's Defence. I accepted Cerys' parents evidence that MW Nicholls said it and also that the reason they had not asked a specific question about it at the time or later during the Trust's Investigation was that they were wholly focussed on Cerys' condition and on her care and prognosis. As Mr Whitting pointed out, however, the 10-minute promise was a red herring, given that there was no clinical imperative for the midwife to return in that time and that no damage could be shown to have resulted from the fact that she did not come back in 10 minutes.
65. The key issue for me to decide is whether MW Nicholls should have returned on the hour, or at most 5 minutes after the hour, after Cerys' birth at 1326, ie by 1431 at the latest. Ms Greenway relied for her opinion that this was mandated in Cerys' case on the following:

(i) The Trust Postnatal Care Guideline from March 2012 which, at section 21 "Maintaining Infant health", provided as follows:

"…

The vital signs of a healthy newborn baby should fall within the following ranges:

Respiratory rate normally 30-60 breaths per minute

Heart rate, normally between 100-160 beats per minute

Temperature in a normal room environment of around 37 degrees C (if measured). The temperature of a newborn baby should always be taken about 1 hour after birth (NICE, 2007) but does not need to be taken subsequently unless there is a clinical indication." (my emphasis)

(ii) The note made by the paediatric SHO following Cerys' birth and minor resuscitation, which read as follows:

"Good tone by 2mins & muts [sic], good cry, No resp. distress

(P) Cord blood group. Routine care. Any concerns please bleep.

Keep warm and feed ? 1 hr…"

(iii) Her own clinical practice, which she said was invariably to attend on a newborn within one hour of the birth.

66. In cross-examination Mr Whitting took Ms Greenway through all the timings given in her report and set out in the Joint Statement, pointing out that she seemed to have suggested a number of different times at which MW Nicholls should have returned to check on Cerys, namely 1430, 1423, 1429. Ms Greenway's response was that the timings were not exact, but that she would have expected a midwife who was not otherwise busy to have returned sooner than MW Nicholls did, and certainly within 5 minutes after the hour. Ms Greenway explained that Cerys had not been born in entirely excellent condition and that Mrs Geis-Clements was a mother with fibroids and so at risk of haemorrhage, warranting close monitoring. She agreed that there was no guideline mandating a return precisely on the hour but relied on the terms of the Trust Guideline (above) saying that in her view 5mins over the hour was the longest that a midwife should leave mother and baby before checking on them.
67. Mr Whitting also challenged Ms Greenway about her interpretation of the paediatric SHO's note, suggesting that all it recorded was a requirement for routine care. Ms Greenway disagreed, pointing out that not all newborns will require resuscitation, even minor resuscitation, and not all will have a doctor making a note about the care they require, yet Dr Patel had seen fit to do so in this case. She said that she would have read Dr Patel's note as mandating a temperature check and a full feed within an hour. She criticised MW Nicholls for not taking Cerys' temperature, nor checking whether she had had a full feed, at both breasts.
68. Mr Whitting took Ms Greenway through each of the local and national Guidelines; she confirmed that MW Nicholls had complied with all the requirements for care of mother and baby after the birth, although she maintained that the mandated measurements of temperature and weight should have been done within the hour.
69. Ms Brydon disagreed with Ms Greenway: in her experience, she said, the checks on a newborn's weight and temperature are usually performed before transfer of mother and baby from the delivery suite to the ward. The transfer may happen, and the checks performed, within the hour or sometimes up to two hours after birth; there is no urgency or strict time requirement for the transfer or the checks, she said. Her evidence was that in general midwives will leave the woman in skin to skin contact for at least an hour and that the regular checks – temperature, weight, head circumference, are done after that. There is no rush, Ms Brydon emphasised, the timing is very much led by the parents. It was necessary to take the new baby's temperature, she said, but to do so strictly within an hour of birth was not mandated. As to Dr Patel's note, Ms Brydon's view was that it did no more than record what midwives would ordinarily do in any event and that she did not read it as requiring any more of MW Nicholls than she had already done. She had ensured that Cerys was kept warm, by covering her with a dry towel and putting her in skin to skin contact with her mother. She had also supported and supervised mother and baby in initiating a feed: according to Ms Geis-Clements' evidence Cerys had latched on and sucked, come off and been latched on again, all entirely satisfactorily. Putting the baby to the breast at this early stage, Ms Brydon emphasised, was to initiate breastfeeding only, not to establish any sort of feeding pattern. She would not have expected to instruct the mother to switch sides if and when she had finished on the left side, not in this early bonding period between mother and newborn.
70. In cross-examination by Mr Moon Ms Brydon acknowledged that Mrs Geis-Clements was recorded as having fibroids and that this condition carried a risk of haemorrhage; however, she denied that this was a factor calling for a midwife-led intervention, or anything other than an entirely routine approach. She drew attention to the Trust's Midwifery-led Guideline for Intrapartum Care in the section entitled "Immediate Postnatal Care of the Newborn and mother where it is stipulated that:

"Parents will be allowed time alone with their baby which will be unhurried and not compromised by hospital routines"

Conclusions on the second allegation of breach of duty

71. I am not satisfied that there was any breach of duty in the timing of MW Nicholl's return. Her care of mother and baby during the birth and afterwards was in accordance with all the guidelines. I do not read section 21 of the Trust's guideline as requiring a newborn's temperature to be taken strictly within the hour, or even within 5 minutes afterwards as Ms Greenway suggested. The parenthetical reference in section 21 of the Trust Guideline to the NICE 2007 guideline is instructive. The 2007 NICE guideline entitled "Intrapartum care: Care of healthy women and their babies during childbirth", issued in September 2007, provided as follows:

"1.9 Normal labour: care of the baby and woman immediately after birth

Initial assessment of the newborn baby and mother-infant bonding

…

1.9.3 Women should be encouraged to have skin-to-skin contact with their babies as soon as possible after the birth.

1.9.4 In order to keep the baby warm, he or she should be dried and covered with a warm dry blanket or towel while maintaining skin-to-skin contact with the woman.

1.9.5 Separation of a woman and her baby within the first hour of the birth for routine postnatal procedures, for example weighing, measuring and bathing, should be avoided unless these measures are requested by the woman, or are necessary for the immediate care of the baby.

1.9.6 Initiation of breastfeeding should be encouraged as soon as possible after the birth, ideally within 1 hour.

1.9.7 Head circumference, body temperature and birth weight should be recorded soon after the first hour following birth."

72. Nor do I read the SHO's note on the file as mandating anything more than routine care of mother and child.
73. Having heard both midwives give evidence, I preferred Ms Brydon's evidence on this point. Although Ms Greenway was still in clinical practice and supervising other midwives in 2012 when Cerys was born, she stopped clinical practice in that year and has since been employed exclusively in preparing expert reports and giving expert evidence in courts. By contrast Ms Brydon remains in clinical practice, attending births, looking after new mothers, as she has done for over 35 years. Mr Moon suggested that Ms Brydon's answers to his questions were evasive and circumlocutory, but I did not obtain that impression. For the most part I thought both midwives were doing their best to assist the court with an independent view of midwifery practice at the time of Cerys' birth.
74. Ms Greenway in her evidence accepted that MW Nicholls could not be criticised for leaving mother and baby alone for bonding time. She acknowledged that she had agreed with Ms Brydon at their meeting that there was nothing wrong with the feeding technique or the feeding position shown in the photos, and that MW Nicholls was justified in leaving the family alone together when she did. Ms Brydon said that she would not have left an unaccompanied mother, but both parents were present and MW Nicholls had observed them with their new baby for 40 minutes before leaving. As long as the baby is in the right position, as Cerys was, the midwife has seen the baby latch on and off and re-latch, as MW Nicholls had, Ms Brydon's evidence was that she leaves parents for about 40 minutes or more to have their bonding time. I accept that evidence.
75. Ms Greenway's view was that the baby could not be "kept" warm unless a baseline temperature had been taken, however it appears to me that taking such a measurement at an early stage would be inconsistent with the NICE guideline and the Trust Guideline. The NICE Guideline, set out above, gives a specific direction as to how a baby is to be kept warm, namely by covering him/her with a dry towel and maintaining them in skin to skin contact with the mother. It is agreed that this is what MW Nicholls did.
76. In retrospect, given what the neurology experts have agreed about the all-important timing of the onset of the AHI, it is clear that had MW Nicholls returned at around an hour after Cerys' birth, or shortly after, then the outcome may have been different. Had she come back in and noticed Cerys' condition in that short window between 1426 and 1436, Cerys might have been resuscitated before any irreversible damage was caused. But all this is with the benefit of hindsight; my task at this trial has been to determine if a return on the hour, or up to 5 minutes thereafter, was mandated in 2012 under a relevant guideline and/or by the SHO's note and/or as a matter of universal clinical practice. For the reasons I have given, I do not think it was. MW Nicholls' evidence was that if she not been called by the parents at 1445, she would have gone back in to see them at around that time, just under 40 minutes after she left them together at 1408. I accept what Ms Brydon says about the timing of the parent-baby bonding stage being relaxed and parent-led. All experts at trial were agreed that putting mother and baby into skin to skin contact and leaving a new family alone together to bond is of the utmost importance – an "auditing standard" as Dr Rennie put it. In circumstances where the midwife had correctly positioned the baby, seen her start to feed, come off once and re-latch, it was not wrong to leave them alone together for that length of time, especially as she was only some 10 metres away, within call and able to respond immediately.

Overall conclusion

77. I have considered all the evidence and the issues in this case most anxiously. The contemporaneous photographs of the new family shortly after Cerys' birth, showing her mother's joy and delight at her new baby, are almost unbearably poignant given what was to happen just minutes later. It is impossible not to have the very greatest sympathy for Cerys and her parents.
78. On my findings in this case, however, no one is to blame for Cerys' collapse shortly after her birth in 2012 or her disabilities resulting from the AHI that she sustained as a result of that collapse. The precise cause or causes of extremely rare events of sudden untoward postnatal collapse in newborns remain unknown. Although in some cases asphyxiation by lying prone, or up against the mother's side or breast in skin to skin contact has been posited as a cause, these are not the only hypotheses which have been put forward in the literature; in a significant minority of cases the circumstances in which the baby has been found are suggestive of no apparent cause at all. I have concluded that Cerys' collapse remains unexplained; the evidence has not demonstrated on the balance of probabilities that she was suffocated by her mother's breast.
79. I can entirely understand that Cerys' parents would have wished to explore fully through the trial process if and how what happened to their daughter could have been avoided, and in doing so to identify any steps that might prevent what occurred to her and them from happening to other newborns and their parents. It is for health bodies more experienced and knowledgeable than this court to balance the risks and benefits of adopting the course suggested by Mr Moon which involves advising all new mothers starting to breastfeed to keep their baby's nostrils free. Given my findings on the evidence in this case I cannot say if such advice could have prevented what happened to Cerys. I have noted above what Dr Rennie said in her evidence about the outcome of discussions within her hospital trust following events of SUPC with which it has had to deal. It remains the case to this day that no guideline setting out procedures for the care of newborn babies, whether national or local, has been amended to take account of research examining the possible causes of rare and shocking cases of respiratory collapse in otherwise healthy newborn infants.