Protecting human rights in childbirth

Registered Charity Number 1151152

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.