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

Dubska v Czech Republic: A blow to women’s reproductive rights in Europe

The European Court of Human Rights gave judgment in Dubská v Czech Republic last week. The Court found that Czech legislation prohibiting midwives attendance at home births did not interfere with women’s right to private life under Article 8 of the European Convention.European-Court-of-Human-Rights

The decision came as a surprise to maternity professionals and campaigners across Europe, who had welcomed the Court’s previous decision in Ternovszky v Hungary which enshrined an obligation on the state to respect women’s choice of place of birth. In the wake of recent advances in women’s reproductive rights (including the Court’s recent judgment in Konovalova v Russia), the Dubská judgment represents a regressive step in protection for women’s autonomy. The Court appeared to believe that it was safeguarding the safety of mothers and babies. The decision will achieve quite the reverse. Prohibiting midwives from attending women at home poses a grave threat to the health and well-being of women and babies.

Czech maternity care

Before analysing the decision, we first need to appreciate the context in which the case was brought. Maternity care in eastern Europe is provided almost exclusively in hospital. There are very few birth centres. The quality of care has been widely condemned by international organisations as disrespectful and over-medicalised, and the cause of serious physical and psychological harm to women and babies. The Court recorded “testimonies from numerous mothers” describing a plethora of human rights violations, including forced medical procedures, unnecessary separation of mother and baby and mandatory monitoring in hospital for 72 hours after birth. The medical staff were described as “arrogant, intimidating, disrespectful and patronising“.

In Hanzelkovi v Czech Republic, a judgment given by the Court on the same day as Dubská, the forcible return of a healthy baby to a Czech hospital for the mandatory 72 hour period post-birth was found to constitute a violation of Article 8. The Court in Dubská did not connect the dots: women faced with hospital care that violates their rights will seek alternative maternity care that safeguards their dignity. The law must support them in that choice.

Ms Dubská and Ms Krejzová

In 2011, two Czech women, Ms Dubská and Ms Krejzová, sought midwives to support them to give birth at home. Czech law regulating the provision of maternity care stipulates that intrapartum care can only be provided in a medical institution which has to meet minimum requirements relating to the provision of technical equipment. Providing care outside such a setting is unlawful. As the Court recognised, the law effectively amounted to a ban on midwives attending women at home.

Unable to obtain midwifery support at home, Ms Dubská gave birth alone without any professional assistance. As her decision to freebirth illustrates, women will continue to choose to exercise their basic reproductive autonomy and give birth outside medical institutions regardless of whether the state gives them its blessing.

Ms Krejzová gave birth at the closest hospital where she believed she could access respectful care. It was 140km away from her home. Even at this “respectful hospital”, her healthy child was separated from her at birth for routine monitoring despite her objections. 

Ternovszky v Hungary

The question for the Court in Dubská was whether the Czech law prohibiting midwifery support at home constituted a lawful restriction on women’s right to private life. The answer to this question ought already to have been apparent from the decision of the Court in Ternovszky v Hungary. In that case the Court considered the Hungarian government’s failure to regulate home birth, which left midwives susceptible to disciplinary and criminal sanctions. The Court held that:

(i) Women’s decisions about childbirth were an expression of physical autonomy that were protected by the right to private life in Article 8.

(ii) Any legislation that dissuaded health professionals from attending a woman at home represented an interference with her private life.

(iii) Women were entitled to “a legal and institutional environment that enables their choice“.

(iv) Regulation of midwives was essential to ensure that women’s choices could be respected.

The only difference between Ternovszky and Dubská was that Hungarian law did not ban home birth, instead the lack of regulation made it effectively impossible. There is no doubt that if the Court in Ternovszky had been considering a legislative prohibition on midwifery assistance, it would have reached the same conclusion – the right to choose where to give birth requires legal and institutional support from the state. Without such support, the right is eviscerated.

Remarkably, the Court in Dubská made no effort to explain its departure from the reasoning in Ternovszky.  The two cases were decided by different sections of the Court (Ternovszky by the second section, Dubská by the fifth) and none of the same judges were involved in the decision. The sections cannot overrule one another and their judgments ought to be informed by earlier decisions of the Court. The Dubská decision does not overrule Ternovszky, but the incoherence between them creates confusion and ambiguity. Dubská renders European state’s obligations towards pregnant women uncertain. In response to the decision in Ternovszky the Hungarian government has regulated to permit midwives to attend births outside hospital in certain circumstances. On the basis of the Dubská decision, would Hungary now be justified in reversing that regulation and banning home birth? The credibility of the European Court is undermined by inconsistencies like this.

Is banning home birth really about safety?

The Court in Dubská accepted that the prohibition on midwifery support at home birth pursued the legitimate aim of protecting the safety of mothers and babies. This assertion should have been more carefully scrutinised.

The dissenting judge, Judge Lemmens from Belgium, astutely pointed out that there is no prohibition on mothers from giving birth at home, only on midwives from assisting them. As he said: “I cannot understand how such a system, taken as a whole, can be seen as compatible with the stated aim of protection of the health of the mothers and their children.” If the aim of the Czech system is to protect health, and the government accepts that some women will choose to give birth at home (as Ms Dubská did), the system should enable the assistance of a midwife to ensure the safety of women and babies at home.

Why then would the state outlaw midwifery support for home birth? The answer is obvious to those who appreciate the history of professional rivalry between midwives and obstetricians and the role that eastern European governments have played in ensuring obstetric monopoly. Judge Lemmens summed it up:

Without suggesting that health considerations are totally absent, I think that it is clear that other considerations also come into play. As in other countries, the issue of home births seems to be the object of a form of power struggle between doctors and midwives. … When the issue of home births came up for examination in 2012, the Ministry of Health set up an expert committee composed of representatives of care recipients, midwives, physicians’ associations, the Ministry itself, the Commissioner for Human Rights and public-health insurance companies. However, the representatives of the physicians’ associations boycotted the meeting, arguing that there was no need to change the existing legal framework. Subsequently, no doubt after some efficient lobbying, they managed to obtain from the Ministry that it removed from the committee the representatives of care recipients, midwives and the Commissioner for Human Rights, with the argument that only with the remaining composition would it be possible for the committee to agree on certain conclusions. I am not aware whether, once the committee had been cleansed, it was capable of making any suggestion at all. Having regard to the foregoing, I believe that the public-health argument put forward by the Government should not be overestimated.

In its uncritical acceptance of the government’s “safety” argument, the Court failed to appreciate the risk that is created by refusing to support home birth. Women cannot be compelled to attend hospital. Some will decide to give birth at home without assistance, as Ms Dubská did. Thankfully, no harm came to her and her baby. If she had experienced complications during labour and she or her baby had died, wouldn’t the Czech state bear responsibility for failing to enable professional support to be provided to her during birth? It would certainly be arguable that the state would have breached its positive obligation under Article 2 to prevent foreseeable risk to life.

Far from safeguarding health, prohibiting trained, professional caregivers from attending women during birth displays a cavalier attitude to the safety of women and babies.

Unexpected difficulties”

A curious feature of the Court’s decision is its conclusion on the risk of home birth. The parties presented the Court with the latest evidence on the safety of giving birth at home. As the Court accepted, the studies showed that for many women the home is a safe environment in which to give birth. More than that, the Birthplace Study (cited by the Court) showed that home is actually safer for multiparous women and their babies because it avoids the risks for the health of mother and baby created by unnecessary treatment in hospital. The modern conflation of safety with hospital-based care has been conclusively debunked by recent research, which shows that continuity of care throughout pregnancy and birth with a midwife who builds a relationship with the woman is by far the safest model of care. In the Czech context, giving birth at home with a trusted midwife offers women the chance to avoid the abusive treatment meted out by hospitals (Judge Villiger’s claim that home birth is merely about “comfort” suggests that he needs to meet a woman who has had her perineum forcibly cut).

Despite apparently appreciating that there is now a scientific consensus on the safety home birth, the Court raised the spectre of “unexpected difficulties” that could occur at home (“acute lack of oxygen supply to the foetus or profuse bleedings, or events which require specialised medical intervention, such as a caesarean section or the need to put a newborn on neonatal assistance“). They had been told of these difficulties by a Czech obstetrician, who gave oral evidence to the Court during the hearing. The purpose of the large-scale studies cited by the Court is to objectively examine whether or not unexpected difficulties that arise during birth at home in fact lead to maternal or neo-natal injury or death. The conclusion that home birth is safe takes into account these unexpected difficulties and as the studies show, they do not lead to greater incidence of neonatal morbidity than birth in hospital. The Cochrane Review on Planned Hospital Birth Versus Planned Home Birth (made available to the court, but not cited by it) considered the incidence of unforeseen complications at home birth in depth, concluding that the risks of complications in low-risk pregnancies were fractional (equivalent to the risk of being killed in a traffic accident during any one year), many such complications could in fact be managed at home and medical interventions could themselves lead to complications during birth that could cause injury and death to mother and baby.

In its focus on the potential complications, the Court fell into the age-old mistake of preferring a personal account (by a doctor implicated in the “power struggle” described by Judge Lemmens) over tested evidence of risk.

European consensus

The Court accepted that the Czech prohibition interfered with women’s right to choose where to give birth. The real question was whether the interference was “necessary in a democratic society” – was it justified? In answering this question, the Court chose to invoke “the margin of appreciation”. This doctrine offers the Court a means of respecting individual state’s decision-making when a case raises particularly sensitive political or social issues (it has been used to avoid determining abortion rights case, for example). The Court surveys European practice and determines whether or not there is a European consensus on an issue. (It did not do this in Ternovszky because it determined that the lack of regulation violated the principle of legality, which is not subject to the margin of appreciation.)

In Dubská, the Court set out practice of 32 states in the Council of Europe (relying on material presented by the parties, which omitted a number of states, including Denmark, Norway, Iceland, Portugal and Bulgaria). It noted that “Only in a handful of States can a health professional face a sanction for the simple fact of having assisted with a planned home birth (Croatia, Lithuania and Ukraine).” The other states listed by the Court either expressly regulate home birth, are on the verge of doing so, or tolerate it without imposing sanctions on midwives. The Czech system belonged in the handful of states that sanction midwives who attend out of hospital births. On the Court’s own analysis, the Czech system is an outlier.  But most importantly, the Czech Supreme Court had itself suggested that the Czech prohibition violated Article 8 in its judgment quashing criminal charges brought against a home birth midwife. It is troubling to see the margin of appreciation being used to adopt a more restrictive view of human rights than the court of the respondent state.

Bearing burdens

The Court concluded that in light of the public health concerns of the Czech government, and the “unexpected difficulties” of home birth, expecting Czech women to give birth in hospital did not cause them to bear “a disproportionate and excessive burden“. The language of excessive burden is more commonly used in cases involving the right to property and expropriation of land by the state. It is peculiar to see it deployed in a case such at this, which involves fundamental rights to physical autonomy and integrity. The Court’s conclusion is also dubious in light of the facts of Ms Dubská and Ms Krejzová cases. Giving birth alone and travelling 140km to give birth in hospital seem like considerable burdens to bear, to say nothing of the burdens borne by Czech women who are subjected to the catalogue of degrading procedures practiced in Czech maternity hospitals.

What next for reproductive rights in the European Court?

All is not lost! There are several other cases from other eastern European states that are awaiting determination. Kosaite-Cypiene v Lithuania will be decided by the second section, the same section that determined the Ternovszky case. In the meantime, the Dubska judgment will be appealed to the Grand Chamber. There is no guarantee that the Grand Chamber will choose to hear the appeal, but the general importance of the issue, the inconsistency with Ternovszky, and the upcoming cases from other countries, all suggest that there is a good chance that the appeal will be heard. If it is, the Grand Chamber will face a choice: to support women’s right to choose where they give birth and in so doing to safeguard their health, or to condemn them to choose between the risks of a hospital birth or the risks of birthing alone.

Elizabeth Prochaska, Birthrights

Obstetric violence in Brazil

This week a court in Brazil authorised the forcible removal of a woman from her home and the performance of a cesarean section against her will. You can read the Brazilian news reports here, translated here. obstetric-violence

The justification? An obstetrician told the judge that a c-section was necessary to protect the fetus from potential harm. The mother did not suffer from any mental health disorder, she had mental capacity, and she had agreed to labour naturally in hospital. Her crime? According to news reports, she was deemed ‘high risk’ because she had had two previous c-sections and her baby was breech. She was in well-established labour when she was taken from her home by police and medical personnel.

Risk can never be a justification for authorising a violent physical assault on a woman. It is a very poor basis on which to make judicial decisions that have a long-lasting and profound effect on a person’s physical integrity. Risk might sound appealingly scientific and rational, but it is not. The risk of uterine rupture is around 0.5%. Put another way, there is a 99.5% chance that it will not happen. Which way you look at it depends on your personal sensitivity to risk. Some obstetricians would present the risk in one way, others would present it in another. Some support a woman to have a vaginal birth after two c-sections, others would recommend a c-section. Risk can never provide a sound legal basis for justifying an assault. When it is used to compel women to receive medical interventions, it is an expression of violent patriarchy, pure and simple. Would a Brazilian court order a man to undergo an invasive kidney transplant to save his dying child? No. Only women’s bodies are treated as public objects subject to the whims of the medical profession backed by the coercive power of the state.

Brazil is known for its appalling treatment of pregnant women. The United Nations Committee on the Elimination of Discrimination against Women ruled in 2011 that health services in Brazil discriminated against a pregnant woman after she miscarried and was left to die in a primary care clinic. Risk to women’s lives is overlooked, risk to the life of the fetus apparently justifies grossly disproportionate state intervention.

We must hope that the response to this case will mark a sea-change in the treatment of pregnant women in Brazil.

You can sign the Avaaz petition here.

Victory for pregnant claimant in use of force case

Following previous posts on this issue, we are very pleased to hear that UKBA has conceded that it, and its private contractors, cannot use force against children and pregnant women in the absence of a policy on the use of force.

Four Claimants – a pregnant woman and three children – brought a judicial review on behalf of all children and pregnant women within the immigration system, challenging the legality of the UKBA’s practice of using force against these them in the absence of any clear policy limiting its use.
Shortly before the hearing for an injunction in the High Court on Friday, the UKBA re-published an old policy addressing the use of force against pregnant women and children. That policy prohibits the use of force save where absolutely necessary to prevent harm.

The Royal College of Midwives gave a witness statement in the legal proceedings. They said: “The Royal College of Midwives believes the restraint of pregnant women and children is an antiquated practice that shames us all. Midwives must serve all mothers and babies regardless of their immigration status.”

UKBA’s climb-down avoided the need for the court to extend an injunction which the Claimants had obtained in early February from Mr Justice Collins which prevented the use of force save to prevent harm occurring. In court before Mr Justice Turner on Friday, UKBA accepted that it is necessary for a policy to be in place and announced that they had published a policy today on UKBA’s website. Mr Justice Turner stated that there needed to be an immediate consultation on the terms of the policy applying to children and pregnant women.

High Court prevents use of force against pregnant immigration detainee

We are pleased to report that a legal challenge has been brought to the use of force against pregnant women and children in immigration detention by UKBA and private security contractors. The High Court granted an interim injunction preventing force from being used against the claimants (a woman 30 weeks pregnant and her small children) in the case until their claim is determined.

The Home Secretary has failed to put in place a policy regulating the use of force following her rejection of the Prison Inspector’s recommendation that force can only be used where there is a risk of harm to self or another.

The judge, Mr Justice Collins, expressed grave concern about the Home Secretary’s decision to continue to the use of force against pregnant women and children without a policy in place. The full judicial review will be heard soon.

You can read about the background to the case in this Guardian article.

Mid-Staffs shows us why human rights matter in healthcare

Mid-Staffordshire victims

I am often asked why I think human rights are relevant to maternity care. As a human rights lawyer, I am quick to think the answer is obvious: the NHS is bound by the Human Rights Act just like all other public bodies and so it must respect patients’ rights. But it’s fair to say that we are not used to framing debates about healthcare in human rights terms.

The report, published today, into the “appalling suffering” of patients at the Mid-Staffordshire Foundation Trust shows us how systemic failings in the NHS lead directly to human rights abuse. Years of understaffing and a managerial culture focused on the interest of the system rather than patients’ needs, led to disrespect, indifference and neglect. The Trust violated patients’ basic human rights to life and humane treatment. As Robert Francis QC said “fundamental rights to dignity were not respected.” Human rights claims on behalf of over 100 of the victims families have already succeeded, revealing the power of the Human Rights Act to compensate for medical abuse.

The labour ward at Stafford Hospital was implicated in the scandal. Women gave birth without attention from midwives and serious post-natal complications went undiagnosed. Birthrights has heard of bullying and coercion and procedures performed without consent.

The focus on bureaucracy, finance and targets, on policy and protocol, simply fails to create a culture that can provide good quality care to individuals. Pregnant women know this only too well, repeatedly told that they must bow to the strictures of hospital policies that are put above their own needs. We know “corporate self-interest”, referred to by Francis, too often takes priority in maternity services. We know women’s complaints about their maternity care are routinely side-lined by Trusts and regulators.

Human rights relentless focus on dignity and autonomy, on humane and person-centred treatment, means that pregnant women must never be treated as numbers to be churned through wards, but as individuals in the middle of a profound physical experience that will remain with them for the rest of their lives.

Mid-Staffs shows us what happens when human rights are disregarded, but it also gives us hope that change will come in the form of real appreciation for women’s dignity.

– Elizabeth Prochaska, Birthrights co-chair

Midwives to ask women about FGM

Interesting story yesterday about plans for midwives to ask routine questions about female genital mutilation in ante-natal appointments. Generally women will not have vaginal examinations during their pregnancies, so unless the question is asked (and answered honestly) it’s impossible to know whether they have suffered FGM until they are examined during or after childbirth.

It’s not quite clear whether the main purpose of the new question is to identify women who might need additional support during childbirth (FGM can lead to complications) or whether it is to identify baby girls who may be at risk because they are born into families who have practiced FGM. Either way, midwives will need robust training and support to deal with the issue sensitively and ensure that women do not feel stigmatised and shut out from maternity care.

US research reveals widespread mistreatment of pregnant women

A study just published in the USA finds horrifying mistreatment of pregnant women based on misguided application of ‘pro-life’ laws.

The groundbreaking research reveals how attempts to create a separate legal entity for fetuses have led to arrests, detentions, and forced medical interventions on pregnant women.

Co-authored by Lynn Paltrow at National Advocates for Pregnant Women, an inspirational organisation fighting hard to resist the rising incursions on pregnant women’s autonomy in the name of their unborn child.

Shocking report into use of force on pregnant immigration detainees

The Guardian has reported today on the UK Borders Agency refusal to stop its security contractors (the notorious G4S) using force to remove pregnant women from the UK. Pregnant women have reported being mistreated by G4S staff – including being pushed in the stomach and dragged around the floor.

The Prison Inspectorate reported on mistreatment in October and recommended that the use of force ceased.

Medical Justice, a charity investigating healthcare abuses in immigration detention, is doing great work about the treatment of pregnant women detainees.