The BBC reported this week that NHS Lothian was reinstating its home birth service but would require individuals to sign contracts promising a series of safeguards for midwives. Earlier in the week there were reports of other Trusts in England using contracts to spell out the risks (the benefits were sadly omitted) of home birth. Unfortunately such contracts are not new. In 2018, we published this blog in response to reports that women were being asked to sign contracts agreeing to any intervention proposed by a midwife should they decided to birth at home.
Both Better Births and the Scottish equivalent Best Start talk about women centred care and the importance of choice. And yet the reaction from some Trusts/Boards to attending women in an environment where the individual may actually be in control, and healthcare professionals might not be, speaks volumes. Do midwives really need to be protected in this way and are contracts ever appropriate in a maternity care setting?
A “contract” is an agreement that is intended to be enforceable by law. It is a way to regulate commercial relationships: you give something (usually money) and get something in return, and if either party breaches the contract, they can be taken to court. Contracts exist in private healthcare settings, where a patient can sue a doctor for failing to provide healthcare they have promised, but contracts have no place for patients in the NHS.
Introducing the idea of contracts in the context of maternity care is like bashing a square peg into a round hole. There is no penalty for women violating their contract with a maternity service beyond refusing to provide care at home. And as no Trust would have anything to gain from taking an individual to court following their birth, there is no genuine intention for such documents to be enforceable by law.
A “contract” or even “agreement” also incorporates the idea of something that is entered into equally and freely by two parties. This is not generally the case with a home birth agreement. Terms are dictated by the Trust or Board. There is little or not room for negotiation. If you don’t “agree” you don’t get your home birth. A “terms and conditions” document would be a more accurate descriptor.
Terms and conditions documents
So do Trusts/Boards have the right to set the terms and conditions around the provision of home births? The short answer is they do but the terms must be proportionate and must not conflict with the law or with the professional duties placed on midwives by the Nursing and Midwifery Code.
A terms and conditions document that requires a woman to do anything the midwife asks is clearly unlawful. A woman always has the right to decline interventions wherever she gives birth.
On the other hand, during the current pandemic, it may be proportionate to ask women to have one birth partner only, for a limited period of time, if this is in line with the restrictions in hospital order to limit the spread of coronavirus. As always, individual exceptions should be considered where there is a good reason to do so.
But is a signed document the right way to ensure midwives are protected whilst in someone’s home?
The case for good documentation
We should make clear that Birthrights is not against written or even signed agreements per se. In our training for healthcare professionals we urge midwives and doctors to write up discussions around birth choices, including the pros and cons of each option discussed, and any evidence referenced. A genuine two way dialogue, that is accurately reflected in a written record and signed by the individual, can help to protect healthcare professionals from a legal claim. It may also allay fears about supporting a woman in her choices particularly when a pregnant individual takes a different view of the right decision, to that of the healthcare professional. But the important part of the process is the high quality dialogue leading to informed consent – the piece of paper is merely evidence that the conversation took place. As the Supreme Court said in the Montgomery decision, doctors cannot discharge their duty to obtain consent by demanding signatures on consent forms.
The home birth “contracts” that we have seen are not about recording a collaborative conversation. They are clearly aimed at securing compliance. The unmistakeable message to individuals giving birth is that they are not to be trusted and need to be kept firmly in line. Helena, who is 22 weeks pregnant with her 3rd baby, and is unhappy about the way the situation has been handled by NHS Lothian:
“I don’t like that we are being made to sign a contract or a document. It feels like we are being made to sign something that we don’t want to, just in order to be able to have our home birth. Like this can then be used to control measures within our own home. This signed agreement seems to be about protecting the NHS and not serving me.”
Interestingly services that have carried on a home birth throughout the pandemic report that women actually want to keep midwives safe and are open to guidance about how they can do this. Birthrights believes that starting from the assumption that women can be trusted, and providing clear guidance, alongside the opportunity for discussion with known midwives is a better way of keeping both midwives and women safe.
In summary, some important key points for Trusts/Boards to bear in mind are:
- A contract is a verbal or written agreement that is intended to be enforceable by law. Therefore a contract is an inappropriate and legally unsupported concept in the context of home birth.
- Your legal responsibilities towards a woman are just the same at a home birth as a hospital birth. A signed document does nothing to relieve you of these responsibilities.
- Any information you provide to a woman about potential outcomes must be balanced and evidence based.
- If you require women/birthing people to sign a document relating to potential risks and benefits of a home birth, you should do the same for other birth settings (or have clear reasons for not doing so).
- Whilst the safety of midwives during coronavirus is a very valid concern, we are aware of no evidence that a signed document results in increased safety for staff.
- You should consider and evaluate the impact that a terms and conditions document has on the relationship between healthcare professionals and the individuals they care for. Information for families about what they can do to help, combined with opportunities for both midwives and families to discuss their concerns, may well be a more effective way of keeping everyone safe as well as fostering trusting relationships.