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.

Last chance to stand up for Supervisors of Midwives

SoM image

Tomorrow (17th June) this unassuming consultation on amendments to modernise midwifery regulation comes to an end:

Remarkably the key role that Supervisors of Midwives play in advocating for women doesn’t even get a mention in the consultation document. As an organisation we refer women to SoMs on a daily basis – they are crucial defenders of women’s human rights. Today we need to defend these defenders. That is why we have today submitted the response below to 3 key questions in the consultation. If you haven’t already – please join us in submitting a response…

Q1. Do you agree that this additional tier of regulation for midwives should be removed? 

No. At Birthrights, we believe that safe maternity care is contingent on respectful care and that a human rights-based approach offers the best means of improving maternity services in the UK.

In the current regulatory system in the UK, Supervisors of Midwives (known as SoMs) play a dual role: they are responsible for making sure that midwives under their charge abide by professional standards and they are responsible for supporting and facilitating women’s decisions about their pregnancy and birth. SoMs provide a critical protection for women’s rights in maternity care. They enable women who may have been refused access to specific services to obtain the care they want and need; they negotiate with obstetricians and other members of the maternity team to support women’s choices; they are at the heart of planning safe and respectful care for more complex births. Birthrights calls on the help of SoMs for the women we advise on a daily basis. Remarkably, this aspect of SoM’s role does not appear in the consultation document. Birthrights is deeply concerned about the consequences of removing the role of SoMs without giving any proper thought to how to maintain this critical function.

We recognise that improvements must be made to the current regulatory system. Morecambe Bay showed what can happen if the statutory supervision system is not well understood, supported and implemented. A weak supervisory system can be subverted to protect midwives rather than to advocate for women. However, 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. This requires ongoing access for women to an “expert” who understands the care setting and can help women to navigate it. The role of SoM, protected by statute, provides a healthy level of challenge to Trusts to ensure they remain focused on women’s needs, and fulfil their obligations under the NMC Code and human rights law.

With the RCM, and others, we are concerned that putting supervision on a non-statutory basis will leave supervision at the mercy of employers to fund and implement. These changes move supervision from a must have to a nice to have. In the current financial climate of the NHS, that does not bode well. Indeed it could create many of the problems with supervision that were reported in Morecambe Bay where supervision was not prioritised, and where SoMs put their loyalty to their employer, and colleagues, above their loyalty to the Local Supervising Authority. Supervisors may be forced to tow the line of their employer or leave themselves exposed for standing up for women. Regulatory systems that fail to protect women also fail to protect midwives: Birthrights is aware of cases in other countries where midwives have faced criminal prosecution because they have supported women’s decisions to give birth in ways that are not supported by mainstream health providers. There is a real risk that eroding the distinctive system of regulation for midwives will leave women and midwives in a highly vulnerable position.

The proposal in the consultation document that supervision continues merely “as a vehicle for professional support and development” entirely fails to appreciate the distinctive role of SoMs in the provision of safe and respectful care for women. In their focus on the regulatory intricacies of supervision, the Department of Health and the NMC have overlooked this crucial aspect of safe care. They do so at the risk of endangering women and babies and degrading the quality of maternity services.

Birthrights calls for guaranteed access for women to SoMs who are explicitly charged with promoting respectful care and upholding the NMC Code.

Q2.Do you agree that the current requirement in the NMC’s legislation for a statutory Midwifery Committee should be removed? 

Birthrights does not agree that the statutory Midwifery Committee should be removed.

Midwifery is a distinct profession from nursing. It is not based on a curative model of care, but on a social model, which has significant implications for the way it is both practised and regulated. Midwifery puts the needs of women and their families at its heart; its does not treat a specific complaint but supports a woman in her transition to motherhood. The NMC must ensure that the unique characteristics of midwifery are respected and protected and maintaining the Midwifery Committee is the means of achieving this.

Furthermore, modern regulation should understand and meet the needs of the community that it regulates. It is contrary to best regulatory practice to create super-regulators that are distant from the professionals they serve. The abolition of the midwifery committee will lead to the loss of midwifery standards and ethics in regulation; and the assumption of nursing standards will be detrimental to the distinctive practice of midwifery.

Q13:Do you think that any of the proposals would help achieve any of the following aims: 

  • eliminating discrimination, harassment, victimisation and any other conduct that is prohibited by or under the Equality Act 2010? 
  • advancing equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it? 
  • fostering good relations between persons who share a relevant protected characteristic and persons who do not share it?

No. Birthrights is concerned that the elimination of statutory protection for the role of Supervisor of Midwives will have a detrimental impact on pregnant women. Currently, pregnant women have access to a SoM who supports and facilitates their healthcare decisions. This role reflects the unique position of pregnant women in healthcare services; for the majority, they are not receiving treatment for a condition, but seeking support for a normal life process which requires support and respect for their decisions. If pregnant women are no longer able to access SoMs, they will undoubtedly receive less support, the quality of their care will diminish and their safety will be compromised.

These proposals should be changed so that the role SoMs play in supporting women is given proper recognition. This may be by maintaining statutory supervision or by placing an enforceable obligation on Trusts to ensure that women are given guaranteed access for women to SoMs who are explicitly charged with promoting respectful care and upholding the NMC Code.

 

 

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

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

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

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

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

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

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

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

Elizabeth Prochaska, Birthrights

NHS charges threaten the health of pregnant migrants

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

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

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

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

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

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

 

 

 

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

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

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

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

Baroness_Brenda_Hale

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

The law

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

An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken. The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it.’

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

What are the implications for healthcare professionals?

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

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

More litigation?

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

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

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

An example: post-dates induction

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

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

Elective c-section

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

 

Elizabeth Prochaska, Birthrights

Birthrights Comments on Sex-Selection Abortion Amendment

Press Release: 19 February 2015

The human rights in childbirth charity Birthrights has serious concerns about amendments to the Serious Crimes bill that could make sex-selection abortion a crime.

If passed the amendment to the Serious Crimes Bill (which MPs are due to vote on on Monday 23 February) could lead to a woman who has been pressurised in to an unwanted abortion being given a prison sentence. Moreover, it may deter midwives and doctors from giving vital individual counselling and support to women around these issues for fears they themselves may be charged with a crime.

Rebecca Schiller, co-chair of Birthrights says, “Attempting to tackle the complex social and cultural issues at the root of gender bias by criminalising vulnerable women is damaging to us all. Once again it punishes women for broader issues while pretending to protect them. It is right that we should tackle gender discrimination in this country but this amendment would do nothing to address the underlying issues in communities who may put pressure on women to have an abortion based on gender. Women need to be free to make decisions about their reproductive futures without fear of criminal sanctions. I fear that, were this amendment to be passed, it could be a step to encroaching on all women’s rights to abortion.”

“Existing legislation and guidance is sufficient. A 2012 undercover investigation found no doctors willing to perform abortions solely based on gender and Department of Health guidance is already clear that abortion based solely on gender is not permitted. This amendment adds nothing to protect women, but would prevent those who have concerns about gender-specific foetal abnormalities from accessing abortion. Women in South Asian communities are also being profiled by this amendment and are likely to face difficulty accessing abortion for any reason should it be passed.”

ENDS

Notes for EditorsBPAS briefing on the Serious Crime Bill Amendment: http://www.bpas.org/js/filemanager/files/bpas_sexselective_abortion_briefing.pdf

Rebecca Schiller’s book All That Matters: Women’s Rights in Childbirth is published by the Guardian’s e-imprint as part of the Guardian Shorts series. Ebook: £1.99, with 10% profits going to Birthrights.
epub ISBN: 978-1-78356-106-3
mobi ISBN: 978-1-78356-107-0Available at: guardianshorts.com, Kindle Store and all e-readers from Friday 20 February.

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