The NHS Ombudsman has proposed a radical shake-up of midwifery supervision after the deaths of a mother and 3 babies in Furness General Hospital. The Ombudsman’s report argues that the dual supervisory and regulatory function performed by supervisors of midwives leads to a potential conflict of interest. The report suggests that the two functions should be split and the NMC directly responsible for regulation.
‘We questioned why the supervision and regulatory arrangements were not the same for midwives as they are for the main medical professions, hence our recommendation that the roles of supervision and professional regulation are separated to avoid the potential for a conflict of interest. In all three of our cases, the local regulatory midwifery supervision and investigations at local level failed to identify poor midwifery practice. Our report highlighted that the confidential nature of supervision can prevent information about poor care from being escalated effectively into hospital clinical governance or the regulatory system.’
The practical effect of the proposals on the current system are not spelt out, but it seems that the role of the Local Supervisory Authority would be radically diminished or abolished. Supervisors of midwives might continue to have a ‘leadership’ role, supporting midwives in practice, but they would have no role in investigating incidents or complaints. As the report notes, employed midwives are already subject to risk management procedures and supervisory investigations can complicate those procedures.
The report notes that there are some benefits to the current system, including the 24 hour support that supervisors provide to midwives. The report does not mention the important role of supervisors for women using maternity services, who frequently turn to them for advice and support when they have a problem with their named midwife or experience difficulties accessing services. It is critical that this function is retained in any new system.
Last week women’s choices in childbirth became the focus of legal arguments in the European Court of Human Rights for the second time. Two women challenged the Czech government’s refusal to permit midwives to attend their births at home, arguing that their rights to autonomy and privacy under Article 8 of the European Convention on Human Rights obliged the government to make home birth a legitimate, state-sanctioned choice. The Court considered similar arguments in Ternovszky v Hungary in 2010 and concluded that women’s right to choose to give birth at home was protected by the European Convention. It seems unlikely that the Court will change its mind in Dubska v Czech Republic, but the case has prompted renewed discussion of the issue in the UK.
The right to make decisions about childbirth has long languished at the neglected end of the spectrum of reproductive rights. Abortion has attracted more attention, perhaps because it has traditionally been an easier subject for feminism than the entry into motherhood. The European Court cases emerging from eastern Europe mark a new legal frontier in childbirth that coincides with grassroots women’s movements in countries around the developed world that seek to wrest childbirth from the control of healthcare facilities, with their sometimes dehumanised and degrading procedures, and return it to communities and into women’s homes. The stark legal question – do women have a right to give birth at home – is asked against the backdrop of this feminist uprising.
As so often in the law, there is a simple answer to a question, and a longer one that leaves you (if you’re a lawyer) hungry for litigation to clarify things. Simply put, of course women have a right to choose to give birth at home. They cannot lawfully be forced into hospital. But most women who choose to give birth at home would do so only with professional assistance from a midwife. They seek assurance that this negative right to refuse hospital care translates into a positive right to support at home.
The European Court of Human Rights recognised the existence of the positive right in Ternovszky v Hungary. It found that women were entitled to a ‘legal and institutional environment’ that facilitated their choice of home birth. The Court understood that the choice was an expression of autonomy made in the knowledge that freedom is easier to achieve in one’s own home than in a state institution. The Court found that women’s birth choices ought to be granted legal protection from arbitrary state interference and Hungarian midwives had to be free to attend women at home without fear of state recrimination. The Czechs are likely to face a similar ruling in the Dubska case.
Midwives in the UK are already under a professional duty of care to attend a woman who requests her assistance at home. This duty reflects the state’s obligation to protect life under Article 2 of the European Convention. If a hospital refused to send a midwife and the mother or child suffered injury or died, there would be serious legal implications for the hospital and midwives involved.
Barbara Hewson, a barrister writing in the Independent last week, has suggested that the unpredictability of childbirth – couched in her professional knowledge of home births gone wrong – makes assistance at home birth unsuited to recognition as a positive legal right. The Czech government made a similar argument before the European Court. But study after study has vouched for the safety of birth at home, for its cost effectiveness, and, indeed, for the significant health benefits that it brings to mothers. Both risk and cost have proved to be emperors’ clothes, tailored to obscure women’s choice.
As Hewson explains, there are undoubtedly limits to women’s right to midwifery assistance at home, but those limits will have to be coherently articulated by their advocates. Risk factors specific to the mother may be one example, as successfully relied upon by the Irish Health Service Executive in the case before the Irish High Court of Aja Teehan, a woman who wished to give birth at home after a caesarean section. Staffing shortages, proposed by Hewson, are another candidate, but any case would be fact sensitive taking account of the hospital’s contingency planning and the woman’s situation, including of course her willingness to go to hospital, as the Irish court recognised. There may be some cases where limitations would overpower the right and others where they would not. In the only litigation I know about on this issue, judicial review proceedings were threatened against a London NHS Trust in 2011 after it suspended its home birth service. The Trust backed down and used independent midwives to cover its staff shortfall.
The Department of Health appreciates the importance of providing women with a variety of birth choices and promotes home birth as a “national choice guarantee”. It expects NHS Trusts and Clinical Commissioning Groups to make home birth services available to their local population. With the sanction of central government, home birth is not simply a legitimate choice, but a choice that women can reasonably expect to be made available to them.
It is no coincidence that the fight for respect for rights during birth has emerged at the same time as the fight for respect for the rights of the dying. Both groups have been failed by modern healthcare and turned to the law for recognition and support. The law has begun to oblige, recognising that birth and death demand sophisticated conceptions of individual autonomy and a sensitive legal response.
Elizabeth Prochaska, barrister and founder of Birthrights
Birthrights has responded to the CQC consultation on new standards for inspection and monitoring of care services. Maternity standards are included in the consultation.
We are particularly concerned that the CQC has robust standards in place for assessing whether or not hospitals are guaranteeing respect for women’s dignity and human rights in maternity care. We know that caring and respectful interpersonal relationships can make the difference between positive and traumatic birth experiences, which have lasting impacts for the mother that can be measured in poor post-natal outcomes, including post-natal depression and PTSD. The new CQC standards need to measure dignity in care explicitly by reference not simply to clinical metrics, but also to values that define respectful care.
Read our full response here: Birthrights response to CQC consultation.
Today is the final day for responding to the Department of Health’s consultation on mandatory indemnity insurance for all healthcare professionals. As Birthrights regulars will know, implementation of the proposals will spell the end of independent midwifery. As we have explained in our response, the loss of independent midwives will have serious repercussions for women’s choice in childbirth, as well as threatening the safety of mothers and babies. If you haven’t sent your response in yet, we encourage you to do it now.
You can download our response here: Why Independent Midwifery Matters
Independent Midwives and the women they have cared for gather today outside the Houses of Parliament as part of the “Your Body, Your Birth, Your Choice” campaign in protest at the imminent demise of Independent Midwifery in the UK.
The government’s proposed implementation of the EU Directive on Cross-Border Healthcare makes professional indemnity insurance (PII) a requirement for healthcare professionals and will effectively end the work of the 170 Independently practicing midwives in the UK. These midwives have been unable to secure PII since 2002 and, unless an affordable insurance solution can be found, the Nursing and Midwifery Council will be obliged to remove Independent Midwives from their register when the Directive comes in to effect by 25 October 2013.
Independent Midwives fill an important gap in the birth choice spectrum in the UK. They often attend women whose previous experiences of NHS care have been poor. Their clinical skills, such as experience with vaginal births after caesarean sections, vaginal breech birth and vaginal birth of twins, are frequently unavailable to women through the NHS.
We know that Article 8 of the European Convention on Human Rights guarantees every woman the right to choose the circumstances and place of her baby’s birth. Without the support that Independent Midwifery offers there will be some women who will be unable to make those choices. There is also danger of vital clinical skills being lost without the experience of midwives working outside the NHS.
Birthrights will be responding to the Department of Health’s current consultation on this issue highlighting the human rights implications for women and midwives and we will be among the protestors on Monday.
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The Department of Health today launched a 12 week consultation into mandatory professional indemnity insurance (PII) for all healthcare professionals, including midwives. Mandatory insurance has been on the horizon for years, but it is now clear that the government intends to pass the Health Care and Associated Professions (Indemnity Arrangements) Order 2013 making it a condition of registration for midwives to have PII.
While employed midwives will be covered by their employer’s insurance, the new registration condition will have a profound effect on Independent Midwives (IMs). They have not been able to obtain PII since 2002 and will therefore be unable to continue self-employed practice.
IMs are self-employed, private providers of maternity care who work outside the NHS. They provide continuity of carer during pregnancy, birth and post-natally, and generally attend births at home. There are currently around 170 IMs in UK. They are sorely needed by women who seek the support, and better maternity outcomes, that continuity provides. IMs often assist women who have had poor experiences of NHS care in previous pregnancies. IMs are also an incredibly valuable repository of skills that are disappearing in mainstream maternity care, such as vaginal delivery of breech babies and twins.
IMs have had difficultly obtaining PII since the Royal College of Midwives withdrew PII as part of their membership package in 1994. PII was obtained from the Medical Defence Union from 1994 until 2002, when premiums became unaffordable. Since 2002, commercial insurers have refused to insure IMs and they have been required to inform clients of their lack of insurance on booking women for maternity care.
Successive governments have made compulsory PII a healthcare policy objective and it is already a compulsory requirement in various health professions. In 2006, the Nursing and Midwifery Council (NMC) considered making PII a condition of registration on the register of midwives. It decided not to do so on the basis that IMs were not able to obtain PII and would therefore lose their livelihoods.
As a result of the NMC’s concerns about the impact of mandatory insurance, the Department of Health commissioned an independent review into the issue by Finlay Scott (former chief executive of the General Medical Council), which reported in June 2010. The review recommended making PII a statutory condition of registration as a midwife with the NMC. It recommended that a midwife who fails to prove that they are covered by PII should be removed from the register.
The consequence of making PII a mandatory registration condition will be that IMs who are unable to obtain commercial insurance will no longer be able lawfully to practice their profession.
The EU Directive
In parallel with the government’s review of PII in healthcare, the EU passed Directive 2011/24/EU on the application of patients’ rights in cross-border healthcare (the Directive), which obliges EU Member States to ensure the healthcare professionals have PII that is “appropriate to the nature and the extent of the risk”. The UK is legally obliged to implement the Directive by 25 October 2013.
The consultation sets out the terms of the Health Care and Associated Professions (Indemnity Arrangements) Order 2013.
It amends the Nursing and Midwifery Order 2001 to insert a requirement that in order to register with the NMC midwives must have “appropriate cover under an indemnity arrangement” (Article 22, amending Article 9). This is defined as: “cover against liabilities that may be incurred in practising as such which is appropriate, having regard to the nature and extent of the risks of practising as such.” (Article 25, inserting Article 12A). The new Order gives the NMC the power to refuse to register, or remove from the register, a midwife who does not have PII.
The consultation poses a number of questions for respondents to answer, but it does not ask the fundamental question: should PII be required for self-employed health professionals if it is impossible to obtain?
The Department of Health states:
“[IMs have been] able to obtain insurance as employees within a corporate structure. We know this model of maternity care delivery is viable because midwives operating such models have been able to purchase insurance for the whole of the midwifery care pathway and are delivering maternity services, both inside and outside the National Health Service.”
This is presumably a reference to the single provider of private midwifery services in the country, One-to-One Midwives. As far as Birthrights understands, One to One does not provide services outside the NHS, and no corporate midwifery body has been able to secure insurance to provide care to private clients.
The consultation then states that:
“…given the small scale of the professional group, the assumption made for the purposes of the Impact Assessment is that the majority of independent midwives will be able to obtain cover …, although it may require such midwives to change the governance framework for their care and their delivery practices to comply with an indemnity policy.”
The Department of Health provides no evidence to support this assumption.
The consultation closes on 17 May 2013 and anyone – individuals, groups and organisations – can send a response. Birthrights will be producing a response highlighting the human rights implications for women and IMs.