A mum who found out a midwife caring for her baby had slept with her partner in Benidorm has been ordered to pay her legal fees after a judge ruled she "did not have a legal case".
Michelle Pryor was recovering in Liverpool Women's Hospital after giving birth to her fourth child, Skylar, by caesarean section when experienced midwife Joanne Lumsden made reference to meeting her partner, Merseyside Police Sergeant Gary Hayden.
Ms Pryor, now 41, became suspicious after Ms Lumsden, who had featured in Channel 4 documentary One Born Every Minute , told her she had "rubbed sun-cream into his back" in the Spanish resort.
READ MORE: Midwife held my newborn baby - then said she'd slept with the dad after Benidorm lads' holiday
She raised her concerns with a community midwife after leaving hospital, and Ms Lumsden then called Ms Pryor at home, revealing that she had indeed had sex with Sgt Hayden.
To make things worse for the distressed mum, Ms Lumsden also revealed their affair had continued for a short time after they returned from Spain and that Sgt Hayden had claimed he was single.
Ms Pryor said her relationship with Sgt Hayden ended soon after the affair came to light.
Ms Lumsden was eventually sacked by Liverpool Women's Hospital for failing to declare a conflict of interests when she realised Ms Pryor was Sgt Hayden's partner, and for contacting her about the affair.
Ms Pryor launched legal action against both Ms Lumsden and the hospital at the High Court for "breach of privacy rights" and "breach of the duty not to act in conflict of duty".
However High Court judge Senior Master Barbara Fontaine ruled her legal team, Bond Turner, had failed to argue a "legally coherent cause of action".
Ms Pryor is now liable to cover the costs of both Ms Lumsden and Liverpool Women's Hospital, although she said she is not out of pocket due to a no-win-no-fee arrangement with her solicitors and indemnity insurance.
Ms Pryor told the ECHO: "I am shocked and saddened by the outcome of my legal claim against Joanne Lumsden and Liverpool Women’s Hospital.
"The news is still raw and I have not yet had an opportunity to fully come to terms with the unexpected outcome. I have spent the last four years fighting for justice through the English Legal System to hold Joanne Lumsden and Liverpool Women’s Hospital accountable for Ms Lumsden’s breaches as a Midwife...
"Although the decision is disappointing for my family and I, one of the motivating factors in fighting for justice and bringing Ms Lumsden’s conduct to the public domain, is through my belief that Ms Lumsden’s conduct should be open to public scrutiny.
"No woman should be faced with this diabolical ‘treatment’ at childbirth, at one of the most vulnerable times of a woman’s life."
Louis Browne, QC, representing Ms Lumsden, had argued neither breach was "recognised as a tort in English law", which Master Fontaine agreed with.
Ms Pryor's lawyers had argued that Ms Lumsden misused private information to "make sure" she was on duty while Ms Pryor was on the ward and approached her an "unusual" amount of times.
However Master Fontaine ruled that there was no evidence personal information was misused, and concluded her medical treatment of Ms Pryor was in keeping with normal clinical standards for a woman who had undergone a caesarean section.
She stated in her judgment: "The primary reason for the Claimant’s distress was the growing realisation that Gary Hayden had been lying to her and had probably been unfaithful to her, particularly during her pregnancy, with the unpleasantness of the situation exacerbated by the circumstances of having just given birth, and the suspicion that the treating midwife had been the person with whom Gary Hayden had had a sexual liaison.
"The most that could be said about the pleaded conduct, in my view, is that it was conduct calculated to embarrass, humiliate and cause distress to the Claimant. There is no tort to remedy this."
Master Fontaine also stated that Ms Pryor's decision to share her story with journalists, although she remained anonymous at the time, meant any reasonable expectation of privacy "would be extremely difficult to maintain".
She must now pay the legal fees of both Ms Lumsden and Liverpool Women's Hospital.
According to the court judgment, Ms Lumsden claimed she met Sgt Hayden on a friendly basis after their return from holiday in September 2016, at his request, going for coffee and to the cinema.
This developed into a brief sexual relationship in November 2016, which ended when he told her he was planning to reattempt a relationship with a woman he had got pregnant on a "one night stand".
However, the court heard during the short period when Sgt Hayden and Ms Lumsden were having a sexual affair he had continued his relationship with Ms Pryor.
Ms Lumsden said they ended their affair amicably and Sgt Hayden wanted them to "remain friends on Snapchat", but she deleted his contact details as she did not feel it was appropriate in light of his "new" relationship.
After the ECHO published the story in March 2018, Sgt Hayden anonymously called a reporter apologising for his behaviour.
He said at the time: "I want to make an apology to my ex-partner and speak out in support of her and my child.
“I’m really sorry for what’s happened and I know I’ve let you down. It wasn’t a relationship I had and was just a ‘fling’ which didn’t mean anything to me."
Following the decision to strike her claims out of court, Ms Pryor released a lengthy statement to the ECHO, which is in full below:
"I am shocked and saddened by the outcome of my Legal Claim against Joanne Lumsden and Liverpool Women’s Hospital.
The news is still raw and I have not yet had an opportunity to fully come to terms with the unexpected outcome.
I have spent the last four years fighting for justice through the English Legal System to hold Joanne Lumsden and Liverpool Women’s Hospital accountable for Ms Lumsden’s breaches as a Midwife.
My understanding by this outcome, is that the law in this country has afforded me no recourse finding on a technicality that I cannot bring a claim.
However, despite me being unable to hold the parties to account legally, this does not exonerate Ms Lumsden from her professional misconduct as a Midwife.
Although the decision is disappointing for my family and I, one of the motivating factors in fighting for justice and bringing Ms Lumsden’s conduct to the public domain, is through my belief that Ms Lumsden’s conduct should be open to public scrutiny.
No woman should be faced with this diabolical ‘treatment’ at childbirth, at one of the most vulnerable times of a woman’s life.
Liverpool Women’s Hospital is an NHS publicly funded body that women rely on to take care of them and women should be able to put their upmost trust and confidence in those that are tasked to care for them at such a significant time in their life.
During proceedings, I was offered a significant sum of money by Liverpool Women’s Hospital, known as part 36 offer, to settle out of Court. However, money has never been the motivating factor in my quest for justice, and I declined this offer.
My motivation was simply to hold those who had wronged me to account and for the truth to be aired.
I went into Liverpool Women’s Hospital on 6 th June 2017 to give birth to my daughter Skylar.
The next day, I was confronted by a Midwife called Joanne Lumsden on Matbase, who stated she would be caring for me and my baby.
Unbeknownst to me, Ms Lumsden had been having an affair with my then partner and father of Skylar, Mr Gary Hayden, during my pregnancy.
Ms Lumsden was made aware by Gary Hayden by text message in advance that I was going into Hospital to deliver my baby and provided my location in the hospital and the day I was due to give birth.
Ms Lumsden had many opportunities to declare a conflict of interest and remove herself from my care, but she chose not to do so.
Ms Lumsden initiated a text message conversation with Gary Hayden from the ward whilst on duty caring for me and my baby, yards away from my bedside, whilst I was recovering from childbirth and major surgery.
Whilst I was breastfeeding on the ward, Ms Lumsden announced she’d met Gary Hayden on holiday just before I discovered I was pregnant.
Days later she revealed the full details of the affair in a telephone call to me whilst I was still under the care of Liverpool Women’s Hospital.
Joanne Lumsden was dismissed from her employment as a Midwife at Liverpool Women’s Hospital in February 2018 as a direct result of my complaint, which was upheld.
The findings concluded that Ms Lumsden should not have provided care to me as a patient on that day, and by doing so she compromised my privacy and dignity, and that the questions that Ms Lumsden asked of me on the ward in the context of her relationship with my partner, could be seen as further compromising my privacy and dignity.
It was also found that Ms Lumsden made a telephone call to me, unrelated to any aspects of my clinical care, and this allegation was upheld.
Liverpool Women’s Hospital stated that Ms Lumsden had breached her Nursing and Midwifery Council (NMC) professional Code of Conduct and her actions fell well below the expectations, values and behaviours of the trust.
Due to her actions, there has been an “irrevocable breakdown of trust and confidence” and her contract of employment was terminated with immediate effect “on the grounds of gross professional misconduct”.
Ms Lumsden then went on to appeal her dismissal in April 2018, which was not upheld.
Liverpool Women’s Hospital commented to Ms Lumsden that “Regarding your personal reflection on the event, I am not satisfied that you fully appreciate the gravity of your actions.
I was concerned by statements including you ‘wouldn’t accept the care of anyone whose partner you happened to know’ as this does not give me sufficient assurance that you understand what made your behaviour in this particular case inappropriate”.
It noted “It is clear that the decision you took to provide care to the patient was inappropriate and did create a conflict of interest” and “it is undisputed that you knew the patient was coming into the Trust and that you could have taken steps to ensure you either were not the midwife caring for her on Matbase, or you arranged to work in another area that day”.
It was also noted that “The conversation in relation to ‘sun cream’ gave the patient sufficient suspicion that an intimate relationship had taken place between you and her partner and prompted her to raise this with her community midwife.
This conversation and the information imparted and implied caused considerable distress to the woman”.
It was found that Ms Lumsden’s decision to telephone me and reveal the nature of her relationship with Mr Hayden caused me additional distress and breached professional boundaries.
It was found that “the breach of [Ms Lumsden’s] professional code of conduct was fundamental and that therefore a final written warning would not be appropriate in this case”.
Accordingly, her appeal was dismissed.
I now turn to the regulatory decision of the NMC.
The NMC found that “Ms Lumsden compromised the care provided to the patient and child, breached professional boundaries by failing to withdraw from the care of a patient where there were personal matters infringing upon her professional responsibilities, in telephoning a patient when there was potential to cause distress for reasons other than clinical care, and in discharging a patient without an accurate discharge summary”.
I hope that by this being made public, that women can now make an informed choice about whether they wish to continue being treated by Ms Lumsden.
Ms Lumsden’s conduct has tainted my whole birth experience and I’ll never be able to look back on my experience fondly.
I should have been afforded the highest levels of respect and dignity, which was all taken away from me by Ms Lumsden.
I have suffered and lived with the consequences of Ms Lumsden’s actions which I am reminded of every day, particularly on the anniversary of my daughter’s birth.
I am grateful to Talk Liverpool for the emotional support they have provided to me in coming to terms with my trauma as a direct result of Ms Lumsden’s actions."
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