Back in 2013, Independent Midwives (IMs) in the UK were facing a crisis: a new EU regulation was coming into effect in October of that year which would require all IMs to carry malpractice insurance (and would therefore make it illegal for IMs to practice without indemnity insurance). At the time, it was difficult to find an insurer willing to cover IMs, and given that the pool of IMs sharing the costs of insurance was small, the quotes from insurance companies at the time were prohibitively expensive. Thankfully, after several petitions, protests outside of parliament, and a long and drawn out campaign by IMUK, a resolution was found in early 2014 that enabled self-employed IMs to purchase insurance through a pooled indemnity scheme set up by IMUK itself rather than using a third-party insurance company, which allowed IMs to continue to practice legally.
However, this past Friday (the 13th, no less!), the Nurse and Midwifery Council (NMC) made a decision that the IMUK indemnity scheme does not provide adequate coverage (i.e. sufficient funds), particularly if a serious case of malpractice was ever brought against an independent midwife using the scheme. From the NMC’s statement on their website:
The NMC’s investigation found that the indemnity scheme provided for IMUK members was not able to call upon sufficient financial resources to meet the costs of a successful claim for damages for a range of situations. These include the rare cases of catastrophic injury, such as cerebral palsy. This could have the effect that mothers and babies who suffer injury through the negligence of an attending midwife are not properly compensated for their injury. (NMC, 2017)
Which basically means, that as of Friday 13th, 2017, any independent midwife using the IMUK scheme is now considered to be practicing illegally, unless they can find a different indemnity insurer to cover them ASAP.
As you can imagine, this has created quite a bit of chaos. Women who chose independent midwives for their care and have developed trusting relationships with them throughout their pregnancies are now being told that their chosen midwife can’t attend their births, and that they’ll have to find alternative arrangements, in some cases with only days to go until their due date. Even more cruelly, the NMC has specified (on Page 2 of their guidance) that IMs using the IMUK indemnity scheme will not be allowed to attend their clients’ births in any capacity, even in a non-midwifery role, which is particularly harsh given that the general standard of care during home to hospital transfers is for the IM to remain with the client in a doula/ emotional support role even as the midwifery role is transferred to NHS midwives.
In an urgent letter written to the NMC on Friday the 13th, Rebecca Schiller, CEO of Birthrights (the human rights in childbirth charity) expressed her dismay over the NMC’s decision, criticising many of the implications of this decision:
While we are aware that some women may be able to transfer to local NHS home birth services, we are concerned about the safety implications of this. Local NHS home birth teams will not have antenatal records relating to women who book later in pregnancy and there will be a very limited opportunity for a named midwife to build a relationship. In some areas there are limited, unreliable or no home birth services at all, which may have prompted the woman to use the services of an independent midwife. Furthermore, many NHS home birth services are unwilling to support women who are making an informed choice to birth at home outside of guidelines. In these cases we believe that women will be unable to give birth at home with appropriate clinical care.
As the regulator for the midwifery profession in the UK, it’s certainly important that the NMC sets and enforces clear safety guidelines. However, the amount of indemnity coverage a midwife has does very little to ensure safety. All it ensures is that in the event of a tragedy, the affected family will be able to sue the IM who did the delivery for a larger amount than they otherwise would be able to. As Richard Chappell at Philosophy.net succinctly summarised in his article about the decision:
NMC Chief Executive and Registrar Jackie Smith has responded with the claim that “The NMC absolutely supports a woman’s right to choose how she gives birth and who she has to support her through that birth. But we also have a responsibility to make sure that all women and their babies are provided with a sufficient level of protection should anything go wrong.”
In other words: nice as a women’s right to choose might be, what’s really important is that she can sue for many bucketloads of money (not just a few bucketloads) if anything goes wrong.
BirthRights has also questioned the timing and manner in which this decision has occurred, as it’s left many women who had booked independent midwifery care without a clear way forward. The NMC has been particularly opaque about what amount of coverage would meet their safety standards, despite both IMUK and Birth Rights asking for clarification. For example, in the NMC’s own policy guidance on indemnity insurance, they state:
We are unable to advise you about the level of cover that you need. We consider that you are in the best position to determine, with your indemnity provider, what level of cover is appropriate for your practice. You should seek advice as appropriate from your professional body, trade union or insurer to inform your decision. You need to be able to demonstrate that you fully disclosed your scope of practice and to justify your decisions if asked to do so. (NMC, 2017, Page 3)
Therefore, they are raising an objection to the amount of coverage IMUK decided upon, while simultaneously stating that the amount of coverage can be determined by professional body, insurer or trade union (i.e. IMUK)–not exactly helpful in terms of figuring out what amount of coverage would satisfy requirements.
The NMC’s press release also implies that the NMC has been in talks with IMUK about the inadequacy of their indemnity cover since 2014 and that if their clients now feel suddenly surprised by this decision, it’s the fault of the IMs for not updating them about this issue. However, the final decision was only reached 3 days before Christmas, which left IMs and their pregnant clients scrambling for alternative care arrangements over the holiday season. Additionally, in the NMC’s press release on their decision, they go out of their way to stress that this only affects a small percentage of midwives in the UK (approximately 80 out of 41,000 midwives), as if that makes it ok. But this small number includes nearly every independent midwife working in the UK, and the women the IMs are caring for are as equally entitled to their chosen provider and manner of birth as any of the other women cared for by the 41,000 other midwives in the UK. As Milli Hill wrote in the Telegraph back in 2013 when the insurance coverage was first threatening independent midwifery as a profession:
If … Independent Midwifery becomes illegal, this will be a grave blow to birth freedom in the UK. The NHS will be left unchallenged, a monopoly, and a system that already seems to be over-stretched and flawed will be left to continue without an alternative for anyone to compare it to. Women who seek an different option to the mainstream will have no choice but to birth unattended, or perhaps in secret with an midwife practicing illegally. Will this really improve birth safety?
Independent Midwifery provides the gold standard of midwifery practice in the UK: trusting relationships, continuity of care, respectful, informed choice, and freedom to birth where and how the woman would like, and is therefore something that needs to be protected, even if the number of women choosing this type of care is ultimately small.
As it stands right now, talks are ongoing between IMUK and the NMC, and IMUK has filed a legal challenge to the decision, while IMs are seeking out alternative indemnity cover. The RMC has also proposed that honorary NHS contracts could be a solution for IMs in the short term. If you get a chance, please sign this petition in support of IMUK. This post also explains more of the history of independent midwifery and the insurance issue that has come up since 2013, and of course, you can continue to follow IMUK and Birth Rights for further updates. Hopefully a resolution will be found soon!