Birthrights Responds to the National Maternity Review Report

Speaking in advance of the release of the NHS England National Maternity Review report’s release today, Birthrights Director Rebecca Schiller said, “the National Maternity Review report has a powerful message for all interested in improving maternity care. Birthrights agrees with the Review team’s vision that safe maternity care is personalised care and welcomes the recommendation that women should be in control of their care through the introduction of personal maternity care budgets.  In our August 2015 letter to the Review team we set out that safe maternity care is contingent on respectful care and that a rights-based approach offers the best means of improving maternity services in the UK.  We are therefore delighted to see that innovations to support women’s autonomy have been included in the plans. We echo the insistence throughout the report that genuine choice and unbiased information should be supported by healthcare professionals and service infrastructure.

It is now crucial that these ideas become a reality. We believe that the human rights legal framework and the values it promotes are vital tools in seeing this vision come to life.  Many of the report’s recommendations are supported by rights women should already enjoy. These rights arise from human rights law and existing policy and could provide a strong platform from which to demand that changes are made. The report’s ambition that all women are offered choice of place of birth by 2020 is a reality women should already expect, based on long-standing Department of Health policy which stipulates that women should be able to choose where to give birth. It is time for action to match rhetoric.”

Elizabeth Prochaska, Chair of Birthrights and human rights barrister adds, “As Birthrights set out to the Review team in our ‘Right to Choice in Maternity Care’ submission, legal protections on existing rights to choice could be strengthened and clarified by the simple step of amending the NHS Constitution and the 2012 Regulations so that maternity services are included in the right to choose a provider in the same way that choice is guaranteed to recipients of other health services. This would give women the confidence that they were entitled to receive choice and oblige providers and commissioners to accept their responsibilities for providing it.

Birthrights welcomes the Review’s recommendation that the Department of Health establishes an insurance scheme to provide redress to parents whose babies have suffered harm during birth. Families would obtain financial support without having to prove that a professional was at fault during the birth, sparing them years of litigation and emotional trauma, and the NHS would be freed from the devastating consequences of a litigation culture which has spread fear and defensive practice.

The Review has provided a once in a lifetime opportunity to get maternity care right. We hope that the government seizes the chance.”

Three Years Defending Dignity

Three years ago this month, Birthrights burst onto the maternity scene. At our launch, we declared our intention to ensure that all women receive the dignity and respect they deserve during pregnancy and childbirth. Since then we’ve worked hard to do just that. Free, expert legal advice direct to women, respectful care training for midwives and doctors, research, campaigns and accurate, unbiased comment in the media…

Providing clear and objective information on women’s rights in childbirth has remained a priority. Our factsheets continue to be a popular resource for women and healthcare professionals. Our email advice has provided much needed assistance to hundreds of women and their families and with your help we hope to launch a telephone advice line.

We have published groundbreaking research – such as the 2013 Dignity Survey – to improve the evidence on the importance of respectful care. This year we will be focusing on the rights of vulnerable groups of pregnant women, including migrants and those with disabilities.

Birthrights reaches out to healthcare professionals through our own events, such as our Dignity Forum and Fighting the Fear study day. We speak at conferences and seminars across the country as part of our popular and expanding training programme designed to give practical tools to midwives and doctors.

We also know that it’s imperative that the maternity service is designed to understand and respect women. So we continue to work closely with maternity leaders, the Royal Colleges and offer our perspective in relevant government consultations, NICE Guidelines and the National Maternity Review.

We believe our legal expertise should be used to strengthen and uphold the protections offered to pregnant and birthing women. Working alongside the British Pregnancy Advisory Service, Birthrights intervened in a critical Court of Appeal case that questioned a woman’s legal status while pregnant and her rights to make our own decisions. We were pleased that the court upheld these rights in their judgement.

Through this work Birthrights has also been a consistent voice of reason on women’s rights in the media, with appearances on Women’s Hour, the Today Programme, major TV news, radio, broadsheet and tabloids.

It’s been a busy three years and we’re proud of what we have achieved. We have big plans going forward: expanding our training, commissioning vital research and expanding our advice service so that we can ensure that dignity in childbirth is universally understood and respected.

But we can only continue this work with your help. As we celebrate our birthday please consider making a regular monthly donation to Birthrights as we defend the dignity of pregnant and birthing women. We ask you to continue to stand beside us for years to come.

 

Elizabeth Prochaska (Chair) and Rebecca Schiller (Director)

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The Right to Choice in Maternity Services: Our Submission to The National Maternity Review

Birthrights was asked to provide information and guidance to the National Maternity Review on the legal framework that supports women’s right to choice in maternity care.

You can read our submission below which details that women do have the right to make choices in maternity care based on a number of different sources, but that the legal framework could be strengthened and clarified.

We hope that the National Maternity Review team will use this information to further clarify, strengthen and integrate women’s right to choice in childbirth as they publish their recommendations.

Maternity Review Right to Choice: Birthrights Submission .

Letter to the National Maternity Review

On 16th August the co-chairs of Birthrights and President of the Royal College of Midwives wrote to the members of the NHS England National Maternity Review. The letter (which was written in collaboration with and co-signed by senior lawyers, midwives, doctors and campaigners) asks that the Review makes the fundamental principles of respectful care and human rights a priority in its investigation of maternity services. We believe that safe maternity care is contingent on respectful care and that a rights-based approach offers the best means of improving maternity services in the UK.

A draft of the letter was presented and positively received at meeting with Baroness Cumberlege and Sir Cyril Chantler (who Chair and Vice-Chair the process respectively) earlier this summer. Now the group believe it is vital that all members of the Review process are aware that observing and building on human rights principles has the potential to transform maternity care.

You can read the fully referenced letter here (Human Rights Letter to National Maternity Review) or an un-referenced version below.

16 August 2015

Dear Baroness Cumberlege and the Maternity Review team,

We write to you as a group of health professionals, academics, campaigners and human rights lawyers who have a long-standing commitment to improving maternity care. As leaders in healthcare and human rights, we ask that the Review makes the fundamental principles of respectful care a priority in its investigation of maternity services. We believe that safe maternity care is contingent on respectful care and that a rights-based approach offers the best means of improving maternity services in the UK.

We outline the principles of respectful care and human rights below in the expectation that that they will inform the Review’s consultation process and discussion with stakeholders. We would be grateful for an opportunity to explore these issues with you in greater depth during the Review process.

Women’s fundamental human rights are at stake in maternity care

Pregnancy and childbirth are an intensely vulnerable time for women. Not only is the long-term physical health of women and babies at stake in the care they are given,women’s fundamental rights to human dignity and autonomy can be profoundly affected by their experience of maternity care.

The way a woman is treated during childbirth affects her at a time in her life when her identity as a mother is being forged. We know that many women experience anxiety,depression and post-traumatic stress disorder following childbirth and women with pre-existing mental health conditions may suffer a recurrence. Poor maternal mental health can affect the mother-child relationship and outcomes for children. Care providers have a critical role to play in ensuring that women emerge from childbirth physically and psychologically healthy and are able to develop a responsive and nurturing relationships with their children.

Dignity is the basis of respectful maternity care

Human dignity is the ultimate value on which respectful healthcare depends. It is most powerfully articulated in the imperative to treat a person as an end in their own right and not a means to an end. The relevance of this is clear in maternity care, when a woman risks being viewed as a means for the creation of life rather than as a person worthy of respect in herself. Dignity reinstates the woman as the central agent in childbirth. It means that her caregivers treat her as capable of making her own autonomous decisions about her child’s birth. Caregivers who protect women’s dignity listen to women and respect their perception of what it means for them to thrive as human beings.

Human rights law protects women’s health

The law protects people’s health by imposing obligations on governments and healthcare providers to respect human rights. Professional caregivers employed by NHS bodies are under a legal obligation to respect rights as set out in the European Convention on Human Rights. Article 2 of the Convention protects the right to life and requires the state to take positive action to ensure that critical healthcare services, including maternity care, are available to everyone.

Human rights do not stop at ensuring access to maternity services. The rights in the European Convention and under international treaties, including the Convention on the Elimination of Discrimination against Women and the Convention on Human Rights and Biomedicine, extend to protecting the way in which individuals are treated by their caregivers. These include the right not to be subjected to degrading treatment, the right to informed consent and the right to non-discrimination.

Healthcare professionals commonly consider the law to have a negative and distracting influence on care. The climate of litigation, particularly in maternity care, can make the law appear punitive. In fact, a human rights-based approach offers the potential for transformative impact on healthcare. The principles of dignity, autonomy and respect can create the foundation for a maternity service that is truly fit for purpose.

Human rights are an essential basis for safe health care

Respectful care is an essential component of safe care. Caregivers who listen to women, provide them with accurate information and respect their choices make a fundamental contribution to a safe maternity service. As the investigations into failing hospitals have repeatedly shown, lack of respect for patient dignity has gone hand in hand with clinical and systemic failings that have compromised patient safety.

The recent decision of the UK Supreme Court in Montgomery v Lanarkshire Health Board (2015) reveals the interdependence of safety and respectful care. Mrs Montgomery’s doctor treated her with condescension and withheld important information about the risks of vaginal birth for diabetic mothers. As a consequence, her right to make a safe choice was denied to her and her baby was damaged during birth. The Court found that clinicians must adopt a woman-centred approach to advice giving during pregnancy. It deprecated the use of consent forms and information leaflets and held that the law required clinicians to have detailed and personalised discussions with women that enabled them to make their own decisions on the basis of information about ‘all material risks’. The Court explained that it was necessary to impose legal obligations of this sort, so ‘that even those doctors who have less skill or inclination for communication, or who are more hurried, are obliged to pause and engage in the discussion which the law requires.’

The Montgomery decision has profound consequences for the interaction of the principle of informed consent, clinical practice and the structural implementation of choice in maternity services. If the Court’s judgment is to be upheld, professional carers must be given the time to discuss choices with women in their care and must respect the decisions that women choose to make.

At a global level, there is increasing awareness that protection of women’s human rights in maternity care offers the best chance for progress in maternity services. The recent Bohren systematic review on the mistreatment of women in health facilities provides powerful evidence that childbirth is a particularly vulnerable time for human rights abuses globally (that seemingly developed/ industrialised democracies and countries shouldn’t forget or need to continually guard against). As the WHO stated in 2014, ‘Rights-based approaches to organizing and managing health systems can facilitate the provision of respectful, quality care at birth.’3 In countries as diverse as Nigeria and Venezuela, which have legislated for human rights in maternity care,services are being configured with respectful care at their heart.

In the UK, in response to systemic failures, the NHS is increasingly using dignity principles not only to improve patient experience but as means to ensure patient safety. Queen’s Hospital Romford experienced a cluster of maternal deaths in 2011, blamed in part on poor culture and disrespectful behaviour amongst staff. The midwives acted to introduce mandatory respectful care training based on the White Ribbon Alliance Respectful Care Charter. It has had a measurable impact on the quality of care, reduced complaints, improved communication and staff behaviour. We believe that the response to the tragic failures at Morecambe Bay and elsewhere must put respect for women at its heart.

Safety can only be achieved by full recognition of women’s right to dignity and respect in maternity care. This entails much more than compliance with protocols or improved documentation; it means genuinely personalised care given by staff who listen to women and respect their individual needs.

Services built on human rights provide the best start in life

Human rights and high quality, safe maternity care are inseparable. The provision of maternity services that have the capability to provide appropriate, affordable, accessible and safe services that lead to the best start in life to all women and their babies require models and systems that provide care respectful to the dignity and autonomy of each woman and respond to individual and community needs.

The capability to provide respectful care that leads to healthy physical and psychological outcomes as well as supporting strong family relationships and reducing the impact of inequalities, requires structured development of culture and care pathways in models of care that meet each woman and baby’s health, personal and social needs and preferences.

This more personal and appropriate care should reduce variations in outcomes between services, while providing care that is tailored to each individual woman’s needs, values and preferences.

The ability of all carers to provide personalised care, supporting informed consent and offering genuine choices requires evidence-based information and information aids. All professionals must be able to convey information in an understandable way and work with the woman without prejudicing her decisions. This unified approach may be supported by human rights-based interdisciplinary education. It will also require that choices are available and visible. Time to talk and listen, not only to women but also to other professionals when consulting, referring and transferring care, is crucial.

Continuity of carer is the model of care that promotes human rights and a safe maternity service

Continuity of carer is the most appropriate means of enabling personalised care that respects women’s human rights. By developing services that ensure that every woman is cared for by named midwifery and medical staff, it is possible to create a relationships of trust that prevents fragmentation in care and reduces risk for women and babies. Continuity of carer is a critical part of a human rights based approach to maternity services because it enables respectful and safe care that is responsive to the woman and her family’s needs.

Preventive or public health approaches to reduce inequalities and the impact of social economic deprivation may be built in part by strengthening current community midwifery services, through the development of models of continuity of carer to provide more personal services, and integration of the pathway between primary care, social services and acute hospital based services.

What is quality and safety in maternity care?

The assessment of high quality, safe maternity care goes beyond measures of mortality or morbidity and encompasses multiple outcomes.For example, the most commonly used definition globally, and which is used by the WHO includes the
following dimensions: women’s experience and woman-centred care, effective, efficient, equitable, timely and safe care.

Using this definition, safer care is focused on services that do no harm to those who use or work in them, rather than just focusing on the potential risk that women or staff create.

This inclusive approach to safety encompasses a positive experience of care in which the woman is respected and listened to, secure relationships between woman and baby and within the family, the capacity to mother and care for the newborn and reduction in mental health problems. Healthy outcomes require respectful support for physiological processes, with medical intervention when needed or desired. The culture and systems of healthcare must ensure that women and their babies are given optimal chances of healthy outcomes without threat to their personal and legal
autonomy.

Conclusion

Respect for human rights is fundamental to all healthcare. It is particularly critical in maternity care, given the transformative nature of childbirth and the moral and legal imperative to respect the autonomy and dignity of women. Moreover, quality maternity care improves experiences for the woman and her family, and affects a baby’s start in life and subsequent life chances. Every mother and baby should have an equal access to quality care. We have described some principles that will enable professional carers to provide respectful, woman-centred, personalised care which, we argue, will contribute towards optimal physical and psychological outcomes and secure family relationships. Observing and building on human rights principles has the potential to transform maternity care.

We look forward to further discussion on this topic and thank you in advance for your time.

Elizabeth Prochaska
Barrister and Co-chair, Birthrights

Rebecca Schiller
Co-chair, Birthrights

Lesley Page
President, Royal College of Midwives

Beverley Lawrence Beech
Honorary Chair, Association for
Improvements in the Maternity Services

Susan Bewley
Professor of Complex Obstetrics, King’s
College London

Sheena Byrom OBE
Freelance Midwifery Consultant

Miranda Dodwell
Health researcher, maternity services user
representative and co-founder,
BirthChoiceUK

Ann Furedi
Chief Executive, British Pregnancy
Advisory Service (BPAS)

Carolyn Johnson
Consultant Anaesthetist, St George’s
NHS Trust

Helen Mountfield QC
Barrister and trustee, Birthrights

Amali Lokugamage
Consultant Obstetrician and
Gynaecologist, Whittington Hospital

Mary Newburn
Consultant, health researcher/ public &
parent involvement

Simon Mehigan
Clinical Director, One to One Midwives
and Chair of National Consultant
Midwives Group

Jane Sandall
Professor of Social Science and Women’s
Health, King’s College London

Rineke Schram
Chief Medical Officer and Consultant
Obstetrician, East Lancashire Hospitals
NHS Trust

Beverley Turner
Writer, broadcaster and founder, The
Blooming Bunch

Jim Thornton
Professor of Obstetrics and Gynaecology,
University of Nottingham

Denis Walsh
Associate Professor in Midwifery,
University of Nottingham

The Times gets it wrong: midwifery is safe and women’s birth decisions are not a ‘fad’

A journalist called me recently asking for a quote for a story he was writing about maternity care. He told me that he was going to expose the dangers of giving birth in midwifery-led units where, he claimed, more babies came to harm than in obstetric facilities. He could not respond to my request for evidence to support his claim. And of course, there isn’t any, because all the research, including large government-funded studies in the UK and abroad, show that giving birth in a midwifery-led unit is safer for healthy women and their babies than giving birth in obstetric units (see the Cochrane review for a summary).

But the journalist was merely giving voice to a persistent demonification of midwives that is based not on evidence, but on centuries of mistrust, professional turfwars and, ultimately, fear of women’s labouring bodies. Midwives, those purveyors of female knowledge, burnt at the stake as witches in early modern Europe, have transmogriphied into modern incompetents who cost the NHS millions in litigation.

The latest incarnation of this trend towards midwife-blaming came in yesterday’s Times editorial (paywall). Commenting on a Leicester University study into stillbirth rates in the UK, it claimed that ‘the roots of the problem are inadequate monitoring before birth, inadequate Times editorialinvestigation after it and a faddish bias in favour of midwife-led “natural” maternity care.’

Antenatal monitoring can be fatally haphazard, but as the Times itself reported last year, stillbirth rates are falling following improvements in standarised antenatal growth measurements. The Times’ suggestion that independent inquiries should be conducted after a stillbirth is a useful one and would help prevent the obfuscation and cover-up that parents experience too often in the NHS. The idea that fetal electronic monitoring, ‘resisted by natural childbirth advocates‘, offers a wonder solution to stillbirth is sadly misguided. If only a technology were capable of preventing death. As NICE has concluded, the use of electronic fetal monitoring is guided by the imperatives of litigation rather than by any clinical evidence that it improves birth outcomes for babies.

But it is the notion of a ‘faddish bias’ for midwife-led care that must be most vigorously challenged. As the evidence I cited to the journalist shows, midwifery-led care is safe. In fact, research shows that the safest form of maternity care is one-to-one care provided by the same midwife throughout pregnancy and birth. The reason is obvious: a midwife who provides continuous care for a woman will know her well and will be in a much better position to appreciate any problems that may arise and follow-up if they do.

Evidence aside, it is profoundly demeaning to suggest that the decisions a woman makes about how to give birth are a ‘fad’. Inevitably, all birth choices are shaped by cultural norms, but that makes them no less an expression of an individual’s fundamental human right to physical autonomy. At Birthrights, we hear from women who want to give birth in every conceivable way – naturally, via elective c-section, without any medical assistance at all. None of these choices are ‘fads’. All of them represent the very real wishes of women who approach birth influenced by their own histories and perspectives. Belittling women’s childbirth decisions is just another form of discrimination that women encounter in daily life; it is another way to say that women are stupid and that they do not know best. As Baroness Hale put it in the recent Supreme Court case on consent in maternity care, ‘Gone are the days when it was thought that, on becoming pregnant, a woman lost, not only her capacity, but also her right to act as a genuinely autonomous human being.’

Elizabeth Prochaska, Birthrights

The Labour Party’s midwife pledge: what does it mean and can it work?

The Labour Party launched its Health Manifesto today. The announcement it chose to promote? A guarantee of personalised one-to-one care from a midwife for every woman during labour.

Here are the details from the Labour Party’s blog (strangely, the Health Manifesto itself doesn’t set this out):

  • One-to-one care means that a woman in LabourPledgeestablished labour receives care from a designated midwife for the whole of that labour.
  • This means that a midwife will be able to care for mum 100 per cent of the time.
  • The one-to-one care will cover the labour, the birth and the period immediately after giving birth.
  • All the evidence shows this is the best way to improve the quality and safety of care for women and babies.
  • In fact NICE recently found that longer-term benefits of one-to-one may care include increased take-up of breastfeeding and a reduction in post-natal depression.

Currently, women giving birth in hospital may be attended by multiple midwives, depending on how long they are in labour. Shift changes are well-known to compromise women’s safety during childbirth and one-to-one care has repeatedly been shown to improve birth outcomes.

In February this year, NICE released its guideline on ‘Safe midwifery staffing for maternity settings’. It recommended one-to-one care for women in labour by a midwife, but it did not suggest that the women should receive care from the same midwife during labour.

The Labour pledge explicitly guarantees care in labour from a single designated midwife, so they have chosen to go further than the NICE recommendation. But they have not promised continuity of carer throughout pregnancy, labour and the post-natal period.

Milliband announced the pledge saying that he wanted every woman to receive ‘Call the Midwife’ style care. This is disingenuous: the wonder of the care provided by Jennifer Worth and the midwives of the 1950s was that the women received their antenatal care from the midwife who attended them in labour, giving them the chance to build a relationship over the course of pregnancy. If Labour’s pledge is honoured, women will not have met the midwife before their labour begins. While personalised one-to-one care during labour is certainly an improvement on the fractured care that women receive at present, the full benefits of personalised care will not be achieved by this election pledge.

Labour have suggested that the recruitment of 3,000 extra midwives will provide the staffing needed to make the pledge a reality. This might be optimistic. The RCM has said that there is currently a shortage of over 4,000 midwives and that’s without having to provide personalised support from a single midwife.

One-to-one support as envisioned by Labour would also have enormous consequences for shift patterns. There is no way for a hospital to guarantee that the same midwife would remain with a woman for her whole labour and maintain predictable shifts. Perhaps the only practical solution would be to introduce truly personalised care, so that midwives carried a caseload of women who they looked after during pregnancy and birth (as occurs now in Trusts that provide a dedicated home birth service).

It is not clear why the Labour Party did not promise real continuity of carer. It might well be more workable than the promise they chose to make instead.

Elizabeth Prochaska, Birthrights

 

Welcome to our new board members!

We are very pleased to welcome four new board members to Birthrights. There was a fantastic response to our advert for healthcare providers to join our board and we are delighted to have recruited highly experienced professionals with a track record of respect for women’s rights who represent a broad spectrum of maternity perspectives. Their contribution will be vital to our work advancing respectful maternity care for women in the UK.

Our new board members are:

Julie Frohlich

Julie is a consultant midwife and supervisor of midwives at a London teaching hospital. Her remit as a consultant midwife is promoting normality. Julie is a passionate advocate of personalised maternity care which promotes women’s dignity and empowerment and supports women’s individualised choices regarding their own maternity care.

Carolyn Johnston

Carolyn is a consultant anaesthetist at St George’s Hospital in London, with clinical commitments covering obstetric anaesthesia, pre-operative assessment, and renal transplantation amongst others. She has an interest in healthcare improvement, particularly improving patient experience; leading projects improving patient feedback and involving patients as partners in designing new services and safety improvements. She was an NHS London Leadership ‘Darzi’ Fellow and an Improvement Faculty fellow of the NHS Institute of Innovation. She teaches regularly on local, regional and national courses, with particular interests in coaching, simulation and non technical skills/human factors. She is also working with the Royal College of Anaesthetists on research into less-than-full-time training outcomes and developing quality improvement training for doctors.

Simon Mehigan

Simon is the Clinical Director at One to One Midwives. A midwife for 20 years, his particular areas of interest are supporting women that have had a previous traumatic experience achieve a more positive outcome in future pregnancies and births and encouraging health professionals to continually question what they do and how they care for women and their families. He strongly believes that promoting a culture within maternity services where women are treated with respect and kindness, and where they feel informed, supported and empowered can have a positive impact on the health and wellbeing of the wider community.

Rineke Schram

Catharina (known as Rineke) Schram is a Consultant Obstetrician and Chief Medical Officer at East Lancashire Hospitals NHS Trust. Her clinical expertise is in women with medical conditions during pregnancy (e.g. diabetes) and women with complications during childbirth. She has a particular interest in women’s right to informed consent (and informed refusal), and dignity and choice during pregnancy and childbirth. In her professional lead role for doctors she strives to ensure that medical ethical principles such as the right to autonomy, informed consent and confidentiality are upheld and protected.

NHS charges threaten the health of pregnant migrants

A new report released this week by Doctors of the World has revealed the threat to the health of pregnant migrant women in the UK posed by NHS charging policies. The report found that two-thirds of pregnant users of the charity’s drop-in clinic in east London, who are mostly undocumented migrants or asylum seekers, had not received antenatal care until their second trimester. Half had no care for 20 weeks or longer. pregnant-migrant-NHS-chargesNearly a third of women in the report were billed for their maternity care, one as much as £6,000.

‘These findings indicate an unacceptable inequality in our health system,’ Lucy Jones, an author of the study, says. ‘We must continue to improve access to healthcare for all mothers regardless of their wealth or immigration status.’ The average time the women in the report had been in the UK before becoming pregnant was longer than 5 years, debunking the myth of ‘health tourists’.

Maternity care in the UK is classified as ‘immediately necessary’ by the Department of Health and cannot be denied to any woman regardless of her means to pay for care. However, charges are imposed on those who are not ‘ordinarily resident’ in the UK and hospitals often pursue unpaid fees by means of debt collection. As the report states, NHS charges often deter vulnerable women from seeking care in pregnancy and can lead to undiagnosed health conditions and serious childbirth complications for woman and baby. One of the women in the report lost her premature baby after she did not access maternity care for 7 months.

In the past year, Birthrights has been receiving increasing numbers of enquiries from women who have been charged for the care. In many of these cases the charges have been levied unlawfully and contrary to government guidance. It appears that the funding crisis in the NHS and the focus on so-called ‘health tourism’ is leading to unjustified and oppressive charging decisions by NHS Trusts.

Our factsheet on foreign nationals and maternity care explains the legal position. Further information is also available via Maternity Action.

For further information or advice on NHS charges, please contact us: info@birthrights.org.uk.

 

 

 

UK Supreme Court upholds women’s autonomy in childbirth: Montgomery v Lanarkshire Health Board

The UK Supreme Court powerfully affirmed women’s right to autonomy in childbirth yesterday in the case of Montgomery v Lanarkshire Health Board. Allowing the appeal from the Scottish courts by a woman whose baby suffered shoulder dystocia in labour, the Supreme Court held that women have a right to information about ‘any material risk‘ in order to make autonomous decisions about how to give birth.

Mrs Montgomery, a pregnant diabetic woman with a large baby, was not informed by her obstetrician of the chance of shoulder dystocia. Although she had repeatedly expressed concerns about giving birth vaginally, the obstetrician said that she routinely chose not to explain the risk of shoulder dystocia to diabetic women because the risk of serious injury to the baby was very small and that if she did explain it, ‘then everyone would ask for a caesarean section‘. For diabetic women, the risk of the occurence of shoulder dystocia is about 9-10% and the consequent risk of serious injury to the baby is less than 1%. However, shoulder dystocia poses a variety of serious risks to the woman’s health, including post-partum hemorrhage (11%) and 4th degree perineal tear (3.8%). The doctor apparently did not consider that these risks were worth explaining to women.

The arrogance of the doctor’s assumptions clearly disturbed the Court. As Lady Hale said (para 111): ‘In this day and age, we are not only concerned about risks to the baby. We are equally, if not more, concerned about risks to the mother. And those include the risks associated with giving birth, as well as any after-effects. One of the problems in this case was that for too long the focus was on the risks to the baby, without also taking into account what the mother might face in the process of giving birth.’

Baroness_Brenda_Hale

Supreme Court Justice Brenda Hale: ‘Gone are the days when it was thought that, on becoming pregnant, a woman lost, not only her capacity, but also her right to act as a genuinely autonomous human being.’

The law

From a legal perspective, the decision brings English and Scottish law into line with that of the United States and other common law jurisdictions by separating the question of informed consent from the traditional test for clinical negligence. The Court expressed the legal duty on doctors as follows (para 87):

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.’

It is therefore no longer appropriate to assess the adequacy of the doctor’s information sharing by reference to the standards of a reasonable medical professional; instead the relevant standard is whether the patient would attach significance to the risk. In its explicit recognition of patients’ rights to autonomy and informed choice, Montgomery hammers the final nail in the coffin of medical paternalism.

What are the implications for healthcare professionals?

Doctors will already be well-acquainted with the GMC guidance on consent, which was quoted with approval in Montgomery, and the case is a reminder of the importance of this guidance. The Court highlighted the following aspects of the process of informed consent that all healthcare professionals (and hospital managers) should take on board:

(i) Dialogue: in order for a patient to make an informed decision, there must be a conversation between doctor and patient. The doctor must ‘ensure that the patient understands the seriousness of her condition, and the anticipated benefits and risks of the proposed treatment and any reasonable alternatives, so that she is then in a position to make an informed decision.’ The information cannot flow one way and the doctor’s advice must be ‘sensitive to the characteristics of the patient‘ (Montgomery, para 89). Hospitals cannot rely on printed information leaflets to provide information; there should always be a personal discussion.
(ii) Material risks: a material risk is one to which a reasonable patient would attach significance. Statistics alone will not determine whether a risk is significant for a particular patient. For example, the risk of complications for future pregnancies after a c-section might be statistically small, but it would be more significant for a woman who wished to have multiple children than for a woman who did not.
(iii) Consent forms: the Court emphasised that the doctor’s obligation will only be discharged if the information is imparted in a way that the patient can understand. ‘The doctor’s duty is not therefore fulfilled by bombarding the patient with technical information which she cannot reasonably be expected to grasp, let alone by routinely demanding her signature on a consent form‘ (Montgomery, para 90). This is important guidance. Hospitals cannot rely simply on a completed consent form as evidence that a clinician has fully appraised a patient of the risks of a procedure.

More litigation?

Maternity care is already infamously litigious and accounts for nearly 50% of the value of all NHS negligence claims (see NHS Litigation Authority, ’10 Years of Maternity Claims’). The Supreme Court recognised that there is a risk that the Montgomery decision will increase litigation by women who claim that they were not adequately informed of risks. The Court gave an interesting response to this (para 93):

‘…in so far as the law contributes to the incidence of litigation, an approach which results in patients being aware that the outcome of treatment is uncertain and potentially dangerous, and in their taking responsibility for the ultimate choice to undergo that treatment, may be less likely to encourage recriminations and litigation, in the event of an adverse outcome, than an approach which requires patients to rely on their doctors to determine whether a risk inherent in a particular form of treatment should be incurred.’

Far from threatening doctors with more claims, proper disclosure of risks should protect the medical profession from litigation and lead to patients bearing responsibility for their own decisions. Respect for patient autonomy means that patients take responsibility.

An example: post-dates induction

Post-dates induction provides a useful example of how informed consent ought to work in practice.

  •  The obstetrician must make time for a genuine dialogue with the woman. Hospital information sheets on induction are not a sufficient basis for making informed decisions. During the dialogue, the doctor cannot not simply impart facts or hospital policy without taking account of the woman’s particular situation and wishes for the birth.
  • The conversation must be personalised – it would differ between a first-time mother and a woman who has already had children; or between a woman who wants to give birth vaginally and a woman who is concerned about vaginal birth.
  • The obstetrician should explain the risks of exceeding her due date using accurate and comprehensible information that does not put undue pressure on the woman (stating only that ‘your baby might die‘ would not be considered sufficient information).
  • She should then be told of ‘any material risks‘ of induction to both herself and her baby. It is obvious that most women would wish to know the likelihood of success and failure of induction in that clinician’s experience at the hospital in question, and the risks should induction fail. These will include fetal distress, assisted birth, with consequent potential for perineal trauma, and emergency c-section.
  • The obstetrician should suggest alternative courses of action, including waiting for natural labour to begin and elective c-section.

Elective c-section

The Court in Montgomery made it clear that not only should the doctor have explained the risks of shoulder dystocia, but that she should have offered Mrs Montgomery an elective c-section. Lady Hale stated (para 111) that doctors should volunteer the pros and cons of vaginal birth and elective c-section ‘in any case where either the mother or the child is at heightened risk from a vaginal delivery.’ Following these comments, failure to offer an elective c-section where there are heightened risks to vaginal delivery may lead to legal liability for negligence.

 

Elizabeth Prochaska, Birthrights

Kirkup Report: Inhuman healthcare

The Kirkup Report was published this week. It catalogues the failings in the maternity unit at Morecambe Bay between 2004-2013, when clinical errors contributed to the deaths of 3 mothers and 16 babies. As the Report acknowledges, healthcare professionals can be expected to make mistakes, but in Morecambe Bay, like Mid-Staffordshire and Queen’s Hospital Romford before it, those mistakes can be traced to a rotten institutional system that privileged its staff and reputation above the care of its patients.

Dr Kirkup makes clear his suspicion that many of the hospital’s failures are endemic in the NHS generally. The Report particularly criticises the ‘rudimentary and flawed’ investigations that took place after the deaths and suggests that investigative failures are widespread in NHS Trusts. Birthrights supports that view. Women who contact us frequently describe unsatisfactory hospital investigations into their complaints. We have heard of ‘investigations’ that do not interview relevant staff, that are hampered by missing or falsified notes and seem designed solely to protect the hospital’s interests. Women consistently report a refusal to acknowledge mistakes and a failure to treat them with compassion or respect. It is not only patients who suffer. Health professionals themselves can become the target. We have advised midwives going through punitive investigations (both by hospital management and Local Supervisory Authorities) that are used to silence them when they have raised concerns about culture and clinical standards.

Dr Kirkup singled out for blame a group of midwives who styled themselves ‘the musketeers’. They perpetuated a ‘them and us’ culture, dishonestly concealed mistakes and pursued ‘normal’ childbirth ‘at any cost’. The charge that midwives sacrificed safety to an ideological agenda is an interesting one. It has led to inevitable clamour in the right-wing press that midwives (the Daily Mail’s favourite witches) bully women into natural childbirth in spite of the risks. In fact, ‘normal’ childbirth is promoted by maternal healthcare organisations around the world because it has been shown repeatedly to lead to the healthiest outcomes for the large majority of mothers and babies. Normal birth is not championed by midwives because of medieval blood lust, but because it is usually the best means of ensuring that woman and baby emerge from labour in good health. The motivation for the Morecambe Bay midwives’ exclusion of obstetricians from the unit is unlikely to have been principled adherence to evidence-based care (‘musketeer’ would be an unusual choice of title for a natural birth advocate); rather, they appear to have initiated an unethical and toxic battle for professional control over decisions in the maternity unit that had fatal consequences for women and babies. It is a sad consequence that the pursuit of well-evidenced maternity care has been conflated with their impropriety.

As a consequence of the Kirkup Report, the Telegraph reports that the Department of Health has commissioned a review into the safety of midwife-led care (I cannot find any confirmation of this on the DoH website). The worth of such a review has to be questioned in light of the findings of the Birthplace Study, which comprehensively assessed the safety of midwife-led units in 2011, concluding that they led to better outcomes for women with low-risk pregnancies than other options. Rather than scapegoating a single profession, the Department of Health would do better to look at the systemic failures of communication and management that arose in all of the professions – midwifery, obstetrics, peadiatrics – implicated by the Report.

Kirkup analyses the failings at a single NHS Trust; it does not answer the enduring question that arises from every hospital scandal – how can those charged to protect health end up doing harm? But yet Kirkup’s conclusions hint at a fundamental unease in modern healthcare – is inhumane, and even fatal, treatment inherent in large-scale institutional care? Within his recommendations, Kirkup suggests that the opportunities afforded by smaller units with a high-level of personal responsibility have been overlooked. Morecambe Bay, Mid-Staffs and the inevitable scandals yet to unfold, ought to make us to ask: have our healthcare institutions become too big to protect the humans at their heart?

Elizabeth Prochaska, Birthrights