IMUK’s Judicial Review of NMC Decision: A Guest Blog

On 18th and 19th October, members of IMUK (the membership organisation for independent midwives in the UK) will bring to court their judicial review of the Nursing and Midwifery Council’s decision that their indemnity cover is inadequate.

In January Birthrights wrote to the NMC to express concern about the decision stating that their actions “appear designed to cause maximum disruption and damage to independent midwives and the women they care for,” adding that, “we do not believe that these are the actions of a responsible regulator.”

Ahead of their court date, IMUK Chair Jacqui Tomkins has shared her thoughts and hopes in this guest blog. 

I became an independent midwife almost 20 years ago. It has been an overwhelming joy to be able to determine my own volume of work and to work with women and families that I can take the time to listen to and get to know very well. This has also been hugely beneficial for my family who know that I will be at most of the big family events we want to share but if I do have to miss the occasional celebration they are to be found helping me pack the car inan excited state as I get ready to help another family welcome in their newest family member. 

I work with a collective of like-minded midwives who provide me with a wealth of knowledge and skills that are fast becoming lost to us as a profession and ultimately to women. We have a supportive network that holds us and lifts us when it’s needed and allows us all to thrive in a supportive and emotionally intelligent environment. It’s not all unicorns and rainbows but it is a safe space to work within and its the way forward for a lot of midwives who need to feel they can provide the care they have been trained to give with the time needed in order to give it. 

This way of working is so important to me, my colleagues and the women we work with as we all value the relationship that is at the centre of this very important life event. The women I have helped look after in the past and the present are shocked to understand that this right to choose for them, but also for midwives, is at risk of being lost forever. So many women have been telling me that they feel they have nowhere left to turn as for various reasons they feel they cannot use the local maternity providers. As Chair of IMUK I have also been hearing about how some of those women have made the difficult decision to birth alone during this enforced period of redundancy for self employed midwives. This is the most terrible consequence of the decision made around insurance supposedly and in the name of public protection as these woman had not set out to do this. 

As an organisation we are ready to move forward and resume our plans to help with the training of student midwives and help the government to deliver the vision of “Better Births” by supporting pilot NHS groups and continuing to work closely with NHS England. 

Overwhelming throughout the struggle for independent midwifery to survive, my concern has been both for the midwifery profession generally but also the thousands of women per year who seek out our care. This woman centred model gives women a skilled and safe option for their care, with a guaranteed assertion that they will know who is coming to support them on the day and that they trust that person implicitly to be able to turn up and of course will respect and protect their carefully thought out choices. 

The importance of clinical autonomy is fast being eroded within employed models and self employed midwives understand that this is the thing we must protect and enshrine within our profession at all costs. That is not to say we do not work collaboratively with other health professionals, we are very skilled at communicating our clients needs and best interests so will be making appropriate referrals and accompanying women when they need to make alternative care plans for their pregnancies and births. 
 

Midwives are fast becoming a scarce commodity so it makes no sense to remove the right to be self employed from the profession. We need help and support to be able to continue to practice and for there to be an understanding that these issues highlighted in court this week are not about safety but about finances. Finances that have been confirmed by two independent actuarial firms to be perfectly adequate for our scope of practice.

Four years ago when this board of IMUK decided not to accept the future in front of us, we had only midwifery experience between us.  Since then, the team and our members have been joined by supporters and experts from all walks of life, almost all of them having previously benefitted from independent midwifery in some way.  We have become very knowledgable about insurance, both its benefits and its restrictions, we have experienced the political arena, press and legal worlds all of which have given us surprising new life skills but most of all I’m proud of how far we’ve come as a small group of health professionals with a big problem and my hope is that next week we will find out that it has been enough.

How should Health Care Professionals handle a maternal request for caesarean?

Its been unusually noisy in the maternity world over the summer, as media reports have reignited discussion about what a safe” birth looks like. At Birthrights we believe that the need to listen to women is the mast that all those who care about the safety of women and babies during birth, can cling to when the seas of discussion get rough. 

Many women want to avoid unnecessary interventions in childbirth and, on the 15th August, Birthrights CEO Rebecca Schiller wrote about the vital role midwifery care plays in ensuring women who don’t need and want intervention have the best chance of avoiding it safely

We have also been working hard to support a smaller but important group of women who feel a planned caesarean section is the right choice for them. We created our recent maternal request for caesarean campaign to ensure that these women’s voices were heard and to discover the barriers to their requests being granted

In this blog post, our Trustee, midwife Simon Mehigan, shares his experience of working with women who want a caesarean for no medical reason, and why the approach of a number of Trusts to shut off this option from the outset, is counter-productive.

“A few years I was employed as a consultant midwife at a large teaching hospital in the Northwest of England. One of my responsibilities was to see all the women requesting a caesarean section in the absence of what was considered to be a medical reason.

Over the course of three years I saw over 500 women. I saw the majority of these women just once with a follow up either by email or by phone. Some I saw twice and for a small proportion I took over all of their care, as it was apparent that continuity would have a significant impact on their decision-making. Here’s what I learnt:

Saying no initially to a womens request for an elective caesarean section creates an antagonistic starting point for discussion and doesnt reduce the overall caesarean rate.

I very quickly discovered that by telling women very early on in my conversation with them that “if a caesarean section is ultimately what you want I will help arrange that for you”, that they relaxed, were prepared to listen to what I had to say and were receptive to discussing alternatives.

In fact having met me and discussed their options, 85% of women opted to aim for a vaginal birth of their own accord and over 70% of those women ended up having a vaginal birth.

A couple of women actually informed me after our consultation that because I had said I would support them in their request for a caesarean section that they no longer wanted one. Being told “no” by consultants had made them more determined to have a caesarean section because they were not prepared to let someone else make decisions about their birth.

A de-brief of their last birth often alters a womens view.

A number of women didn’t understand what happened to them last time. Going through it with them, explaining why things might have happened often helped women in realising that things could be different in this new pregnancy and birth.

After 28 weeks it is more difficult to alter the view that caesarean section is the right choice

Many Trusts schedule these conversations for the last few weeks in pregnancy and yet what I experienced was a direct correlation between the gestation at which I met women for the first time and whether they would be open to explore options that might ultimately feel better to them than a caesarean section. The later I saw them the less likely they were to consider any other options.

The plans of care I developed in conjunction with the women often focused on having an uncomplicated birth with a low threshold for a caesarean section.

The majority of women I saw had had a previous traumatic birth experience. Common themes were a lack of control, lack of communication from staff and a negative experience of induction. Therefore the plans we made together often stated no induction of labour, no rotational forceps, minimal examinations and diverting to a caesarean rather than trying other interventions if the birth wasn’t completely straightforward

Once a decision had been made a line had to be drawn.

Women found it very stressful having to revisit their decision every time they met a health professional.

A caesarean is the right choice for some women.

I have over the years met many women that have felt a caesarean section was the right choice for them. They could all explain rationally why they wanted to birth their babies in that way.

By listening to them, talking to them as an equal and ensuring they felt in control of the process they not only developed confidence in their bodies but more importantly in their caregivers and the organisation irrespective of whether their final decision was to opt for a caesarean section.

In over 20 years as a midwife I have yet to meet a woman that has made irrational decisions or choices. They have always been the right choice for that women based on her individual circumstances.”

Simon Mehigan

Birthrights comments on midwives and normal birth

In response to this weekend’s news coverage of the Royal College of Midwives, Birthrights’ CEO Rebecca Schiller gave this comment to the Sunday Times:

“The RCM’s decision to change the name of its campaign to the ‘Better Births Campaign’ took place in 2014. I welcomed this and continue to value the RCM’s drive to ensure women have access to the very best births no matter their circumstances and whatever their wishes. Birthrights has worked closely with the RCM to train midwives across the country in their human rights obligations. These obligations make it very clear that – whatever the health care professional’s personal beliefs – women must always be provided with the best evidence available, pressure should never be put on them to do something they don’t want to and their decision is to be respected. Whether women want a home birth or an epidural, the RCM has demonstrated their commitment to promoting care that responds to women’s needs.

I welcome a shift away from the use of the term “normal”, as it’s a term that has caused unnecessary division and become needlessly politicised. No-one should tell a woman how she should give birth, but should listen to her and work with her to develop a plan that fits her needs and circumstances.

Intervention in childbirth can be life-saving and midwives work with obstetricians during complex pregnancies and births every day. However, the reality remains that many women want to avoid unnecessary intervention in childbirth as it comes with its own set of risks to their physical and emotional health. It is clear from the evidence base that, in our current maternity system, too many women who don’t want and need intervention end up with it – sometimes with long-lasting consequences. So it is essential that we ensure that midwives’ pivotal role in supporting physiological birth is protected, while remaining supportive of all women’s choices. We must also campaign with them for services that genuinely enable the women who want to, to access care that minimises their chances of having an intervention they didn’t need.

The current trend to use terms such as the “cult” of midwifery, pointing the finger of blame at midwives and seeking to devalue their profession, autonomy and valuable role in our maternity system is deeply concerning. The media focus on this three-year-old change of campaign name is just another example of the contemporary witchhunt of midwives that ultimately makes pregnancy birth less safe and more stressful for women at a vulnerable time in their lives.”

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

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

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

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

Letter to R Schiller (Birthrights) from OUH

Second letter to OUH from Birthrights with case studies

Birthrights on Mumsnet

We’re really pleased to announce that we have not only updated our own set of factsheets, but have partnered with Mumsnet, to update our answers to their most frequently asked questions about rights relating to pregnancy and birth.

You can find Mumsnet users’ questions and our answers here. Ranging from common concerns about the right to an epidural or a homebirth, to more specific questions about water birth and antenatal check-ups our work with Mumsnet helps us to give definitive answers to millions of women.

We’ve grateful once again to the team at Mumsnet HQ for the chance to speak directly to so many women directly affected by these issues.

About Mumsnet

Mumsnet is the UK’s largest network for parents, with over 10.5 million unique visitors per month clocking up over 100 million page views. It has 170 local sites and a network of 10,000 bloggers and vloggers. It regularly campaigns on issues including support for families of children with special educational needs, improvements in miscarriage care and freedom of speech on the internet.

Mumsnet logo

 

Ban on Northern Irish Abortion Upheld

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

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

 

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

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

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

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

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

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

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

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

You can read the press release from the Interveners here.

Birthrights Administrator vacancy

Birthrights is very excited to be expanding our small team. Are you highly organised? Have experience of running a busy (virtual) office? Then you could be our new administrator! You will be the key to ensuring our organisation runs smoothly as our work continues to grow at pace. The role is part-time (22.5 hours), flexible and home-based. Closing date for applications is the 23rd June, with interviews in mid-July. Download the job description here for more details.

Do I have a right to choose a caesarean section?

Three and a half years after the original publication of this article, the right to choose a caesarean section remains one of the most common enquiries we receive at Birthrights.

Today we are launching a campaign asking you to help us identify Trusts who have a public policy of not offering caesareans unless there is a medical indication, contrary to NICE guidance and their duties under human rights law.

NHS Trusts are under pressure to reduce their caesarean section rate and there are good public health reasons for this. However in their quest to meet targets some Trusts appear to be abandoning their duty to consider cases on an individual basis and to act in accordance with NICE guidelines unless they have good, necessary and proportionate reasons. Any blanket policy not to offer elective caesareans without a medical reason is unlikely to be lawful and the fallout is felt by the very small percentage of women who, even with support, feel incredibly distressed about the idea of a vaginal birth. The reasons cited by women trying to access caesareans for non-medical reasons include physical damage from a previous vaginal birth, extreme fear of childbirth, emotional trauma after a previously difficult birth or experience of sexual violence or other violent trauma. 

Birthrights wants to hold to account Trusts that do not give women the individual consideration and respect they are entitled to, and we need your help. Have you been denied a caesarean yourself? Do you know if a Trust that states publicly that it does not offer elective caesareans for no medical reason? Then do email us today at info@birthrights.org.uk so that we can write to that Trust and explain to them their obligations under human rights law.

This article explains a woman’s rights to choose an elective caesarean:

A human rights-centred approach

Birthrights is regularly asked whether women are legally entitled to a cesarean section. The question is asked both by women who seek an elective c-section and by healthcare professionals who wish to understand their obligations towards women who choose c-sections.

While women have no statutory entitlement to any particular type of maternity care in the UK, the decisions of healthcare professionals about the care that they give to women must be lawful. That means decisions must be taken in accordance with the general principles of the law, and where the care is provided by the NHS, that includes the principles of public and human rights law.

It goes without saying that a decision not to perform a c-section where it is clinically necessary to avoid harm to mother or child could lead to a retrospective claim for damages for clinical negligence. Where there is a threat to the life of mother or child, hospitals and individual clinicians are obliged to take steps to save life under Article 2 of the European Convention on Human Rights, enacted in UK law by the Human Rights Act 1998. But these are not the concerns of mothers who request a c-section when there is no immediate clinical necessity for the operation.

The right to an informed choice

Women have a right to make choices about the circumstances in which they give birth. This simple but powerful principle was established by the European Court of Human Rights in Ternovszky v Hungary (2010) under the right to private life in Article 8 of the European Convention which encompasses rights to physical autonomy and integrity. Article 8 is a ‘qualified right’ and so limitations on the right are permitted. The Ternovszky case concerned the right to give birth at home, but the principle applies equally to all choices that women make about childbirth. The decision represents a profound challenge to medical authority: if women have a legal right to make a choice, any limitation on that right must be justified. The decision-maker, whether a hospital or a doctor or midwife, must give proportionate reasons for their decision based on the individual circumstances of the woman and their reasons can be tested in court before a judge.

A reasonable request

 

 

 

 

 

 

 

 

To take the experiences of a number of women who have contacted Birthrights, if a women requests a c-section after a previous traumatic vaginal birth and explains to her midwife and obstetrician that she is afraid of giving birth vaginally again, the reasons given to her for refusing to offer a c-section can be scrutinised and balanced against her reasons for requesting a c-section. A court has not considered this sort of case before (and it seems unlikely that a case would reach court given the cost of litigation versus the much lower cost of simply providing the surgery), but a judge would undoubtedly take into account the serious effects of refusing the operation on the mother alongside obstetric risk as assessed by the doctor and, potentially, the financial cost of a c-section.

Some cases would be stronger than others. As recent research by the Royal College of Obstetricians and Gynaecologists revealed, in some UK hospitals women have a 40% chance of an emergency c-section after an induction. If a woman requests a c-section in order to avoid the induction process and the high odds of an emergency c-section or instrumental birth, and consequent potential trauma, a decision to refuse to perform the operation might be hard to justify. (And, of course, a failure to explain the likelihood of a c-section in these circumstances disables the woman’s ability to make an informed choice and casts doubt on her consent to the induction.)

We are often asked whether NICE guidelines have legal force to compel a doctor to provide a c-section. The NICE guideline on elective c-sections without a clinical indication states that women ought to be offered a c-section after discussion and an offer of mental health support. NICE guidelines are not legally binding on medical professionals. However, where a decision is made to depart form a guideline, reasons need to be given and exceptions considered in each individual case.

With thanks to RightsInfo who re-published this article last week to mark International Week for Respecting Childbirth

 

 

Birthrights responds to Rapid Resolution and Redress consultation

In March, the Department of Health launched a consultation about one of the key recommendations in the Better Births report – introducing a Rapid Resolution and Redress scheme for families whose babies suffer severe injury due to negligent maternity care. These families currently wait an average of 11.5 years to receive compensation.

Birthrights believes there is a clear need for such a scheme. However it must be designed around the needs of the families and children it is intended to serve, and it must be sustainable. Birthrights feels that the exclusion of stillbirths and neonatal deaths is arbitrary and insensitive. We are also concerned that the proposal for the NHS Litigation Authority to administer the scheme will undermine its credibility and effectiveness.

You can read Birthrights’ full response here. Please feel to draw upon our response as a basis for your own. The consultation closes on the 26th May.

New human rights i-learn course

The Royal College of Midwives and Birthrights today launched a new i-learn module on human rights, which is available to all RCM members.

Birthrights CEO, Rebecca Schiller commented: “With the launch of A-EQUIP planning complex care will not longer be down to a specialist. Therefore all midwives and maternity workers need to understand how human rights law can empower them to advocate for women, and to plan individualised care. This i-learn module created by the RCM in collaboration with Birthrights is an important contribution to further training midwives for this role.”

You can see the full press release here.