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

Home v hospital – the debate continues with publication of NICE consultation

National Institute for Health and Clinical Excellence_0Here we are again: home versus hospital versus midwifery led unit. Which place is ‘safer’, which mothers are putting their babies ‘at risk’ and so on and on. The place of birth debate is back in the news after NICE published its consultation into its guidelines on choosing place of birth. It plans to revise its guidance to recommend that women with ‘low risk’ pregnancies are advised by their midwives to give birth in a midwifery-led unit (an MLU), and for low risk second-time mothers, at an MLU or at home. The recommendations are based on the Birthplace Study, which was published in 2011, and has already has a significant impact on the advice given to women in the UK.

As ever, the debate neatly divides women into two groups: ‘low risk’ and ‘high-risk’. Each woman is expected to make her choices in line with her label. But risk is a political concept, particularly in maternity care. It can reflect discriminatory assumptions (just look at how obese and older mothers are treated). It can be used to enforce shocking violations of women’s autonomy (witness recent forced c-section cases in the UK and Brazil). And yet no one questions what ‘risk’ means and who determines it, or whether there might be something other than risk to consider, say the long-term physical and psychological health of the mother or the integrity of the family unit. We fixate on the risks of childbirth, which are generally fractional, and forget what childbirth is about: the creation of a family, making sure the mother and baby come out of the experience attached to one another and not torn apart by birth.

The only way to respect each individual woman – low risk or high risk – is to ensure that she has a relationship with one midwife throughout her pregnancy and labour who she can trust to provide her with balanced information and empathetic support. A midwife who will stand by her as she faces the inevitable and unavoidable risks of being human.

‘Captured womb’: feminism, childbirth and motherhood

Deborah Talbot explores the relationship between birthing experiences and the transition to motherhood.

Ann Oakley wrote in her seminal work on childbirth and motherhood, Women Confined, that ‘the medicalisation of childbirth has changed the subjective experience of reproduction altogether, making dependence on others instead of dependence on self a condition of the achievement of motherhood’ (1980, p.98). For Oakley, a core part of the feminist project was control over one’s own body; childbirth, in the context of increasing medical intervWomen Confinedentions, no matter how well-meaning, was a critical moment in the social control of women’s bodies.  The core question of ‘who owns my body, myself or the state’ is answered in Oakley’s work.

Yet since then there has been a resounding silence on the relationship between the feminist project, birthing and motherhood. Of course birth doulas and midwives talk about these matters, and the natural birth movement through organisations such as the National Childbirth Trust have highlighted some core concerns (albeit with their own strictures), and there has been specialised research done, but it has thus far remained on the margins of debate. Of course, rape, contraception, work and childcare are important aspects of women’s equality; although arguably the equation of work with equality – a capitalist hijacking of oppression – unravels when children arrive, and is perhaps more to do with the lack of flexible work and work/life balance for all, than the lack of childcare as successive governments have claimed.  The embodiments involved with being pregnant, giving birth, being a mother, seem to sit uncomfortably and messily with recent feminist demands for equality and inclusion, precisely because it is a condition of difference and, in our work obsessed and micromanaged society, deviance.

These issues were all raised in the first seminar of a new seminar series organised by Birthrights and myself, and sponsored by Centre for Citizenship, Identity and Governance at The Open University.

Elizabeth Prochaska presented a range of perspectives around dignity in birth, including highlighting the importance of rethinking the feminist project to be inclusive of birthing and motherhood. So she argued that ‘there is a need to match up feminist discourse with women’s experiences of their bodily integrity through pregnancy and childbirth…feminism is quite uncomfortable with the concept of motherhood. It doesn’t know what to say about it or construct it in any positive way’. She cited the case in 2013 in Essex of a women who had her baby removed from her by forced caesarian section because of a breakdown; this underlies the increasing lack of control women have over their own bodies and when, in the words of an article of the Lancet (2010) ‘Women have the right to choose how and where to give birth, but they do not have the right to put their baby at risk.’

Nicky McGuinness presented research around midwives’ perspectives, touching on issues of consent and control even for the most committed midwives. Her research showed that her sample thought and cared deeply about how women were treated during labour, but that ‘there was a feeling that sometimes biased presentation and/or coercion was used to manipulate women to make certain choices that were in line with recommendations and guidelines‘. The subsequent discussion focused on the surveillance and control of women’s bodies through the dominance of risk management in the NHS, where women’s compliance is expected and delivered, and midwives use of guidelines secured, through the threat of likely harm or risk particularly to the baby. The discussion was very lively and demonstrated an appetite not just for thinking about birthing and motherhood, but how we might begin to articulate a narrative of resistance.

I will present the next seminar on the 26th February, and will be taking forward these themes by examining research I conducted in 2013 exploring the relationship between birthing experiences and the transition to motherhood.

For further information on the seminar series and to register for future events follow this link.


Reflecting on the National Maternity Survey

The Care Quality Commission published the National Maternity Survey in December. We tweeted about it at the time and various press stories highlighted the main findings (see here for the Guardian, BBC, Independent), but we thought it was worth taking a more considered look at the results and comparing them to what we found in our own Dignity Survey, undertaken in October.

CQC Trust scoresThe National Maternity Survey obtained responses from over 23,000 women who had given birth in English NHS Trusts in February 2013. It is the only large-scale maternity survey of its kind in England. The Scottish government also conducted a similar survey last year and results are expected on 28 January. The survey matters because it informs both consumer perspectives on maternity care – the CQC ‘scores’ for individual NHS Trusts are intended to help inform women about where they might choose to have their baby – and because it sets an agenda for improvements in maternity care over the next three years.

The media focused on the fact that 25% of women reported being left alone during labour (an increase from 22% in 2010). This depressing finding reveals the impact of persistent NHS staffing shortages and adds yet more support, if it were needed, to the call for an increase in the number of midwives. What was not picked up in the media reports was the potential impact of being left alone on the outcome of women’s births. The survey found that significantly more women who reported being worried about being left alone went on to have an assisted birth or a c-section. We can conclude that being left alone contributes to poor birth outcomes, with associated mental and physical trauma for the woman. Any savings achieved by cutting the numbers of midwives are very likely to be lost in the financial consequences of bad births for the NHS.

Birthrights is particularly interested in the survey findings that related to respectful care. In common with the finding in our Dignity Survey, overall a substantial majority of women surveyed by the CQC said that they felt treated with respect and dignity (85% in the CQC survey, 82% in the Birthrights survey). However, 19% of women surveyed felt that staff did not listen to them when they raised a concern during labour. This accords with our finding that 18% of women felt that staff did not listen to them. When asked whether staff introduced themselves, 16% of women surveyed by the CQC reported that only some did and 2% that few or no staff did. Similarly, we found that 20% of women did not know the names of all the staff caring for them. These results suggest worrying failures in communication that can lead to women feeling degraded and disrespected. No doubt good communication is harder when staff are overstretched, but it ought to be possible to maintain basic standards of kindness and politeness whatever the staffing situation.

The CQC has not provided a breakdown of its results by type of birth (other than those relating to being left alone in labour). We found that women who experienced an assisted birth reported significantly poorer care than those who had a spontaneous vaginal delivery or a c-section. In particular, our findings showed that a quarter of women who had an assisted birth believed that their consent had not been sought for procedures during labour. It would be useful if the CQC were to provide results by type of birth in the future, so that maternity providers are made aware of serious issues that can arise during assisted deliveries.

When it came to choices in childbirth, the survey painted a depressing picture. As the CQC concluded, ‘Information needed to make choices was not consistently provided and the choices themselves were not universally offered to women.’ 18% of women said they were not offered any choice about where they gave birth, only 38% were offered the choice of home birth, 35% were offered the choice of a birth centre and 60% a choice between hospitals. The respondents to our Dignity Survey reported similar lack of choice – 26% said they did not have a choice about where to give birth and 21% said they were not given adequate information to make choices about their birth.

The government’s maternity policy, enshrined in ‘Maternity Matters‘, expects NHS commissioners to implement a ‘national choice guarantee’ of the full-range of places of birth – home, birth centre and hospital. The NHS Choice Framework, written for patients, entitles women to ‘self-refer’ into a midwifery service of their choice. The difference between the choices that are promised and the choices that are being delivered is stark. It is all the more depressing in light of what we know about the outcomes for women who are given choices about where they give birth. Our Dignity Survey repeatedly highlighted that women who give birth in birth centres and at home have dramatically more positive experiences that those who birth in hospital. Just one example – 45% of women who gave birth in hospital felt it had a negative effect on their self-esteem, compared with only 11% of those who gave birth in a birth centre.

The survey underscores a systemic failure to introduce real choice into maternity services that must be addressed by the Department of Health, NHS England and Monitor. If NHS Trusts are not going to provide services to meet women’s needs, private maternity providers that take advantage of the new NHS commissioning arrangements will grow to fill the gap.

The Birthrights Dignity Survey launches our Dignity Campaign

We are excited to announce that our Dignity in Childbirth Campaign launches today!

Read the results of our Dignity Survey to find out what women have reported about choice and respectful care during childbirth in the UK. The majority of women said they were happy with their maternity care, but less than half of women we surveyed had the birth they wanted and many experienced lack of choice and disrespectful care.Sally's story first panel

Check out our interactive graphic stories produced to mark the start of our Campaign. We think they are an exciting and innovative way to tell birth stories with a punch.

We will be holding our Dignity Forum at the Royal College of Physicians this Wednesday. Davina McCall and Carrie Longton, co-founder of Mumsnet will be speaking about what women want in childbirth. Lesley Page, President of the Royal College of Midwives, will give her perspective on why dignity matters. Take a look at our exciting programme of speakers: Birthrights Dignity Forum Final Programme

The Forum marks the first step in our campaign to promote dignity in pregnancy and childbirth. We will be listening to expert views on dignity – what it means, why it matters and how we can improve women’s experiences by focusing on respectful care. Over 20 maternity professionals and campaigners will be showcasing their dignity-respecting initiatives. Read about them here: Birthrights Projects and Perspectives

Tickets have now sold out, but you can add your name to the waiting list. Follow us on Twitter for news from the Forum: @birthrightsorg

If you would like to support our Campaign, please consider making a donation.

Women’s Institute and NCT Report Highlights Key Rights Concerns

Yesterday’s report by the National Federation of Women’s Institute and NCT highlights key rights-based concerns facing UK women accessing maternity services. The report, which looked at the care received by 5500 women over the past five years, concluded that choice of place of birth remained “an aspiration, not a reality” and paints a picture of “fragmented” antenatal care and lack of postnatal support.

The report followed on the heels of this week’s Royal College of Obstetricians and Gynaecologists’ Patterns of Maternity Care paper, which found substantial variations between hospitals in numbers of inductions of labour, emergency caesareans, instrumental deliveries and other common intrapartum procedures.

At Birthrights we are only too aware of the profound impact that denying a woman choice of where to give birth can have on her physical and mental wellbeing. When compounded by feeling “let down” by the care received, the experience of childbearing within the current UK system can be unbearable for some and lead to long-term consequences.

There are many within and without the current system working hard to promote change and to deliver care that respects women’s rights. We look forward to hearing from many of these innovators at the forthcoming Dignity in Childbirth Forum in October and are currently calling for submissions on this subject. Reports like the above serve to highlight the importance of cross-professional discussion and collaboration in this area and underline the importance of our work.



When maternity doesn’t matter – new report shows how badly we are failing vulnerable pregnant women

We are failing the most vulnerable pregnant women in our society. Women who have experienced serious trauma and abuse in their home countries, who often have underlying health conditions, and who are in the UK seeking refuge and protection. The report published today by the Refugee Council and Maternity Action explains how we take these women and “disperse” them around the country during their pregnancy. Women within days of giving birth are uprooted from the communities who support them, from the fathers of their children, and from the health professionals who have cared for them. The UK Border Agency policy that permits such mistreatment is a national disgrace.


At the launch of the report tonight in the Houses of Parliament, Sethu, one of the women featured in the report, spoke about how she had been sent from Leeds, her home of 8 years, across the country shortly before she gave birth, away from her partner, her specialist midwife, her charitable support worker and her NCT classes. She managed to return to Leeds to give birth but under pressure from UKBA she discharged herself early to return to her new accommodation. She contracted an infection and was admitted to a local hospital which refused to allow her to see her newborn baby except during prescribed visiting hours.

The report is full of similar stories. It helps us understand how it is that refugee women are 6 times more likely to die in childbirth than British women. And as obstetrician Daghni Rajasingham said at the event tonight, there is simply no reason for such an arbitrary dispersal policy that has clear economic as well as human costs.

It should galvanise every one of us who cares about women’s rights to take action to change UKBA policy. Join the campaign.

The end of Independent Midwifery? Consultation launched into mandatory insurance for midwives

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.

Independent Midwives

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.

The history

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

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.

Mid-Staffs shows us why human rights matter in healthcare

Mid-Staffordshire victims

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

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

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

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

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

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

– Elizabeth Prochaska, Birthrights co-chair

US research reveals widespread mistreatment of pregnant women

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

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

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