JMX v Norfolk and Norwich Hospitals NHS Foundation Trust

In a high-risk VBAC case, it is not automatically negligent to allow a woman in the latent phase of labour to return home. The decision requires an individual risk assessment. The risk of an unmonitored period after established labour begins must be balanced against the disadvantages of hospital retention, including journey time and the time reasonably needed to recognise changing symptoms and return. The mother’s wishes may be relevant, but the risks must be clearly explained. Where the clinical circumstances warrant it, examination of cervical dilation may be necessary before discharge. If discharge is permitted, the woman must receive clear and urgent instructions to return on the onset of regular painful contractions or other specified warning signs.

The claimant, a child, brought a clinical negligence claim concerning brain injury sustained at birth following a placental abruption. The trial was confined to breach of duty. His mother had a previous Caesarean section and was therefore treated as a high-risk VBAC case. After spontaneous rupture of membranes and increasing uterine activity, she attended hospital, was assessed as being in the latent phase of labour, and was allowed to return home. She later developed regular painful contractions and bleeding, but returned only after a delay. The central issues were whether she should have been retained in hospital for monitoring and whether the advice on returning to hospital was adequate.

1. Judgment for the claimant. Breach of duty was established on both the primary and secondary cases.
2. The relevant RCOG and hospital guidance required continuous electronic fetal monitoring once active or established labour began, but neither operated as a rigid rule requiring every VBAC mother in the latent phase to remain in hospital. The guidance informed the clinical risk assessment and was not to be interpreted as a statute or contract.
3. The proper assessment required the risk of an unmonitored period after established labour began to be balanced against the disadvantages of retaining the mother in hospital. Relevant considerations included the journey time, the reasonable time needed to recognise changed symptoms and decide to return, the mother’s wishes, and the clarity of the advice given. A simple reference to a 35-minute journey was insufficient.
4. On the balance of probabilities, the mother was in the latent phase of labour when examined. The evidence included prolonged uterine activity, increasing frequency, pain described as period pain, and pink liquor. Pain was subjective, and the distinction sought between painful contractions and tightenings was unpersuasive.
5. In the circumstances, a cervical assessment was necessary before discharge. A speculum examination could identify whether dilation had begun, followed by digital examination if appropriate. Had the cervix been found to be 2–3 cm dilated, the mother would have been strongly advised to remain in hospital, and she would have done so.
6. If discharge was considered appropriate, the advice needed to make clear that the mother should return as soon as regular painful contractions occurred, or if there was constant pain, bleeding, concern about fetal movements, a change in the liquor, illness, fever or general concern. The advice given did not convey the necessary urgency. The delay before the first further contact with the hospital supported that conclusion.
7. The court also emphasised the importance of recording the substance of consultations and decisions, particularly in high-risk cases. Damages were to be assessed.