Do I have a right to a c-section? Update on Oxford University Hospitals

On 24th May we launched a campaign to engage with Trusts who state that they do not offer maternal request caesarean sections, thereby denying women the individual respect and consideration they are entitled to. The first Trust we wrote to was Oxford University Hospitals whose policy on offering planned caesarean sections is stated in this leaflet:

http://www.ouh.nhs.uk/patient-guide/leaflets/files/10405Pcaesarean.pdf

OUH responded to our original letter stating that their approach was in full compliance with NICE guidelines, and that they offered a “kind, friendly and professional service”. Unfortunately the reports we have received of women not being listened too, being left shaken by consultations, and being left distressed and anxious knowing that their request for a caesarean section would not be granted by OUH, are at odds with OUH’s account.  Therefore, this week, we wrote again to the Trust, their Commissioners, Healthwatch Oxfordshire and the CQC, to share some of your stories and to urge them to reconsider their approach. If you would like to tell us about your experience or requesting a maternal request caesarean section at OUH or elsewhere, please comment below…

Letter to R Schiller (Birthrights) from OUH

Second letter to OUH from Birthrights with case studies

Ban on Northern Irish Abortion Upheld

In a judgment published today, we were disappointed to learn that a Supreme Court appeal, challenging the government’s refusal to provide NHS-funded abortion care in England for women resident in Northern Ireland, has narrowly failed. Birthrights joined coalition of reproductive rights charities, Alliance for Choice, the British Pregnancy Advisory Service (bpas), the Family Planning Association (FPA), and the Abortion Support Network (ASN), to intervene in the case.

The court was divided 3-2 against the appeal and, in a sensitive and thoughtful judgment which made it clear that the levels of distress and hardship endured by vulnerable women were real and unacceptable, the Court ruled that they couldn’t force the Secretary of State to fund the abortions of Northern Irish women.

 

The case was brought by a young woman, A, who in 2012 as a pregnant 15-year-old girl travelled with her mother, B, from their home in Northern Ireland to Manchester for an abortion at a cost of £900. Abortion is effectively banned in all but the most severe of circumstances in Northern Ireland. Despite being UK tax-payers, women from Northern Ireland in need of abortion care have had to fund both their travel to England and their treatment.

The Court’s ruling stated that – as Secretary of State – Mr Hunt holds the legal authority to grant women resident in Northern Ireland NHS-funded abortion care in England, but had decided against doing so – not due to financial constraints – but out of “respect” for the democratic decisions of the Northern Ireland Assembly, in which the largest party is the DUP.

The Secretary of State had previously stated that the Government’s policy was that “in general, the NHS should not fund services for residents of Northern Ireland which the Northern Ireland Assembly has deliberately decided not to legislate to provide.”

The judges expressed a profound sympathy for the “plight” of women in Northern Ireland facing an unplanned pregnancy. Lord Wilson, who did not rule in favour of the appeal, stated that the “embarrassment, difficulty, and uncertainty attendant on the urgent need to raise the necessary funds” added significantly to mother and daughter’s “emotional strain.”

In a comment piece to be published later today, our CEO Rebecca Schiller, is expected to highlight that Lady Hale’s dissenting opinion reflected many of the points we made in our intervention. Lady Hale pointed to autonomy and equality as the “fundamental values underlying our legal system.” Underpinning all of that she invoked the profound legal and moral imperative given by the respect for human dignity. “The right of pregnant women to exercise autonomy in relation to treatment and care,” said Lady Hale, “has been hard won but it has been won.”

Rebecca is also expected to ask for assurance from the Prime Minister that women’s rights are not threatened by any future alliance between the Conservatives and the DUP. To that end she has written to the Prime Minister on behalf of Birthrights, in a joint letter which you can read in full here.

In a statement this morning our Chair, Elizabeth Prochaska, added, “the government’s tolerance of this affront to women’s dignity is deeply concerning. For very little cost to the NHS, women in Northern Ireland could be given access to abortion care in Britain. We need immediate clarity from the Prime Minister that any alliance with the hardline DUP will not be allowed to undermine our commitment to women’s equality and reproductive rights.”

A and B are now expected to take their case to the European Court of Human Rights and, if they do, our coalition of reproductive rights charities will be ready to intervene to help protect the vulnerable and ensure their voices are heard.

You can read the press release from the Interveners here.

A view from India: Human Rights in Childbirth

Today is Human Rights Day 2016. Every year on the 10 December we commemorate the day on which, in 1948, the United Nations General Assembly adopted the Universal Declaration of Human Rights. So on this day, when we think about how we can stand up for human rights both here in the UK, and all over the world, we are sharing a guest blog post from Lina Duncan, a midwife (@MumbaiMidwife), who has written about her experience of childbirth in India…

Trigger warning – this piece discusses a stillbirth

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I have lived and worked in urban India for nine years and during that time I have found that midwives are missing from the system. I have witnessed how hospital policies, mixed with religious or family tradition, harm women and their babies.

I have heard and read hundreds of stories about women in India who have been pressured into potentially unnecessary interventions with inaccurate, fear-mongering information. This breaks women. It damages them before they even begin to birth and care for their babies. Most women do not speak of these things because they are told that a healthy mother and baby is all that matters.

I have seen and heard of many tragic situations of pregnancy loss or stillbirth where the mother was not told the truth. In each case, the mother was told her baby was in the NICU. She was lied to and denied the right to meet her baby, to make memories, to grieve, to hold her baby. Mothers are too often then silenced in their grief.

I do not believe that a healthy mother and a healthy baby are all that matters. I believe that the truth also matters. Facts, and language, are vital, so that women have all the information they need to make informed decisions. This is especially the case when a care provider has to give difficult, or potentially devastating news.

Truth + Kindness + Compassion = (usually) Satisfaction and Comfort

Half-truths + Lies + Fear = Broken Trust, Fear and Trauma

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I have a friend. She looks a little wild, maybe that’s why I liked her from the start. She often has a vacant look in her eyes. Frequently, she adjusts her clothes and shows me bruises from her alcoholic husband.

She doesn’t know her birthday, nor her age. She looked about 22 when I first knew her, pregnant with her first son who was born in a temporary shelter where she was living on a disused railway platform.

Fast forward a couple of years. I have not seen her for months. Her chaotic life is mostly about daily survival. She feeds her drunk husband first, of course. Then, her son, and then, her pregnant self. She has not had any antenatal check-ups. I persuade her to go with me to the government hospital, with son in tow because she is afraid to leave him with his father.

I show her what to do and entertain her lovely unruly son who is filthy. Everyone stares at me, and her, and it’s awkward and tedious. It takes about seven hours to get completely registered. She is prescribed vitamins, calcium, protein powder. I get her a few of the important ones and open them so they can’t be sold for liquor.

I don’t see her again for months and I worry.

One day she rocks up and calls my name. She is 39 weeks pregnant. She has had no antenatal care for 30 weeks. She does not want to go back to hospital but her husband thinks it’s a good idea. I go with her. The son stays at ‘home’.

The hospital wants to see a sonogram. The machine is broken. We have to pay 400 rupees (£4) for a private one. She has 10 rupees only. I pay. It takes forever.

I’m ‘not allowed’ in with her. Then the curtains are drawn back and I’m invited in. I know it’s not good news. ‘No heartbeat and only part of the brain,’ says the sonographer, to me. My heart sinks. I ask him to tell my friend as my Hindi is not good enough. He tells her and she smiles and says, ‘let’s go get lunch’. She has not understood.

We get food and find her husband, who is drunk, and her 3-year-old son, who has bloody knees and chin from playing alone in a building site. She is angry. I call my consultant doctor friend who works in a government teaching hospital. He invites us to go there immediately.

Another sonogram. Heavily pregnant woman with confirmed anencephalic baby. Drunk husband. Three-year-old doing somersaults all around the hospital wearing his father’s t-shirt and nothing else. We are a laughing stock and I am requested to stay and admit my friend for induction and then remove the husband and son.

She is disturbed that her son is alone with dad and they are not ‘allowing’ her out of hospital. The hospital requests that she fasts and start induction at 5am the following morning. I ask several times, politely, if I may accompany her but it is not allowed. Baby is breech and still alive. I have had lots of conversations with her about what to expect. It hasn’t sunk in. She either doesn’t understand or doesn’t want to.

That night, I tell her I will come and I will be outside the ward until she gives birth and they let me see her. I tell my friend that when she feels alone, she can know I am just on the other side of the wall. This breaks my heart. I am a midwife.

She has to go into the labour ward alone.

A colleague and I sit on the floor outside the labour room for 19 hours. Being a doula through a wall is very hard, especially knowing what she is about to face. No one should have to labour and birth without a companion.

Around 1am we are called into a little room to look at her little girl who has been born dead. I ask to take a picture for my friend. They assure me that she will be shown her baby but don’t let me in to be with her. I take pictures on my phone. They are lovely doctors but I am so angry.

At 4am they let me in to see her and ask me to buy her tea and food. It had been about 30 hours since she has eaten.

It is easy to find her, sitting up in bed with a big grin, announcing she is starving and asking where her food is. I ask her if she has seen her baby and she says, ‘not yet’. I ask her if she wants to see my photos and she says yes. I tell her that her baby was not born alive, that she was a girl, that her heart had stopped beating before she was born. I tell her the truth. She doesn’t ‘hear’ it. She smiles, asks me to come back in the morning and goes into a deep sleep.

In the early hours of the morning my phone rings. Sobs, deep sobs and demands. ‘Come now’, she says. ‘They have killed my baby,’ she says. My friend is distraught in a room full of mothers with their babies.

The day she is discharged I go to bring her home. She’s a darling and so feisty. She laughs and jokes until we walk arm in arm out of the ward. Then her body begins to shake. She says, ‘I came here to have a baby and I’m leaving with empty arms’. I have tears running down my face as well and passers-by gave us kind looks.

My colleagues and I make many visits over the following days and weeks. The family like to see the picture on my phone.

My friend has since had another baby. Her husband sold her when she was only 2 weeks old. This is one woman, one story and she represents many that live in a silent story of abuse and disrespect.

Many of us are longing for the Human Rights in Childbirth conference to be held in Mumbai, February 2017. We hope to hear many women’s stories, hear from researchers, and talk about how a midwifery model of care can be introduced in India. Do follow the conference, and join in the conversation. #breakthesilence

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Maternity Care Failing Some Disabled Women

Research published today (15/09/16) by Bournemouth University and commissioned by Birthrights highlights how maternity care may not be meeting the needs of some pregnant disabled women.

A survey of women with physical or sensory impairment or long term health conditions highlighted how  – despite most women rating the support they received from maternity health carers positively – only 19% of women thought that reasonable adjustments or accommodations had been made for them. Some found birth rooms, postnatal wards and their maternity notes and scans “completely inaccessible”,  while a quarter of women reported that they felt they were treated less favourably because of their disability. Most strikingly, more than half (56%) felt that health care providers did not have appropriate attitudes to disability.

Just over half of the participants expressed dissatisfaction with one or more care providers, particularly their awareness of the impact of disability and their perception that their choices in pregnancy and birth were being reduced or overruled. One participant with a physical impairment and a long-term health condition stated, “No one understood my disability. No one knew how to help or who to send me to for support.” Another added, “I didn’t have any control or any choice. Everything was decided for me.” And one woman said, “They did not listen to me. I advised them on the unique way my body works. They did not listen to my advocates.”

Speaking in advance of the publication of her book Why Human Rights in Childbirth Matter and the Birthrights #newchapter campaign linked to the launch, Rebecca Schiller, chief executive of Birthrights said, “this interim report suggests that there are significant human rights issues at stake for disabled pregnant women in the UK and Ireland. More than a quarter of women we surveyed felt that their rights were either poorly or very poorly respected. This is unacceptable and we will be working hard to address this over the coming years.

After Birthrights’ dignity in childbirth survey (2013) we became concerned that the needs of disabled women in the system were not being met. Though it’s heartening to see how overall most women were satisfied with their care and hear some positive stories of excellent practice there is clearly progress to be made. The women surveyed asked overwhelmingly to be listened to. It is crucial to listen to and trust women to ensure the system is genuinely meeting their requirements and that they are at the heart of decisions about their maternity care. The Equality Act 2010 places a duty on the public sector to provide services that meet the diverse needs of those who use them yet participants indicated worrying lack of attention to accessibility of maternity services and facilities for women with a range of disabilities.

The survey is indicative of a wider problem around women’s rights in childbirth that can impact on all women and often most forcefully on the most vulnerable . This month Birthrights is launching a campaign for a #newchapter in pregnancy and childbirth to ensure safe, quality, respectful care is available to all women. Pregnancy and childbirth are a vulnerable time and the physical and emotional impact on women and their babies of a negative journey through pregnancy and childbirth can be severe.”

Professor Vanora Hundley of Bournemouth University added, “while this is a small survey the findings echo the recommendations of the National Maternity Review published earlier this year, which highlighted the importance of personalised, woman-centred care with continuity of carer. It is clear that these are important considerations for all women, but particularly for those women who have a disability.”

Read the full interim report here. We expected the full report to be released in January 2017 when the qualitative research is completed. With thanks to the Matrix Causes Fund for supporting this work.

Human dignity after the EU referendum

In the volatile political, economic and social climate of post-referendum UK many of us are anxious and uncertain about the future. As a charity Birthrights did not take a position on the referendum and it would be wrong for us to do so now.

What is clear to me today is that we are presented with a range of opportunities at a challenging time. For some these are opportunities for division, discrimination, violence, extremism and hate. As an organisation founded on respect for basic human dignity, we deplore those who have exploited these opportunities and the acts of xenophobia, racism and violence we have seen over recent days. The murder of women’s rights champion Jo Cox MP is a tragic testament to the consequences of allowing these divisions to widen.

But this isn’t all that lies within reach. Whatever our beliefs (and however the consequences of last week’s vote unfold) there is now a chance to reinforce and promote another set of values: respect, dignity, equality, justice and fairness. The values of the human rights movement.

The need for an understanding of our human rights framework has never been greater. As we cast about for an anchor in this storm we can hold on to the legal protection of our rights as individuals and the specific provisions for vulnerable groups. These protections exists in UK law (particularly in the Human Rights Act 1998) at a European level (through the European Convention on Human Rights which is not directly threatened by our leaving the EU, contingent as it is on our membership of the Council of Europe) and at an international level.

The values that underpin the human rights movement and the legal scaffolding that gives them teeth are vital now more than ever. Yesterday the United Nations expressed “serious concern” about the impact of UK’s pre-existing austerity policies on the most marginalised and disadvantaged. As we face the prospect of further economic disruption and begin to imagine how this could affect vulnerable groups, it is important to know we are not in a vacuum. Our government has key human rights obligations and it must fulfil them.

With this in mind Birthrights will continue to defend the human rights of all childbearing women, with a particular focus on those vulnerable groups who need us most. Whatever the impact of the referendum on the NHS, on midwives, doctors or on the vulnerable migrant women whose risk of maternal death or stillbirth is so high, we will continue to advise women and families, champion their rights, inspire and train their caregivers and use the power of the law to protect them.

Pregnancy and childbirth are an intensely vulnerable time for an individual. The way they are treated during birth affects them at a time in their lives when their identities as mothers are being forged and when they are developing their relationship with the next generation. The long-term physical health of women and babies is at stake in the care they are given and women’s fundamental rights to human dignity and autonomy can be profoundly affected by their experience of maternity care.

Human dignity matters in the post-referendum UK. It should be the principle we live by and the basis of the world we aspire to live in. The safety, equality, respect and dignity of each woman during pregnancy and birth will always be a strong foundation for that aspiration.

Rebecca Schiller, CEO, Birthrights

Birthrights needs your support today.

Maternity experience of women with physical disabilities

Birthrights are excited to be taking part in a joint research project with Bournemouth University looking at disabled women’s experiences in maternity care. The survey below is open now (deadline extended from 3rd June). If you are a mum with a physical disability, please fill in the survey. Otherwise please share the link. The more women we can reach the better!

Disability survey

This is an area that we want to work more on and are planning some qualitative research with Bournemouth University in the future. The survey results will be shared widely. We will also be using them to inform our training and resources.

With thanks to the Matrix Causes Fund for part-funding this project.

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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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

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