Independent midwives: working without professional indemnity insurance

It often comes as a surprise to many people, including clinical negligence practitioners (until they are representing a client with a claim) that independent midwives practise without professional indemnity insurance. This is despite the government being on record stating that it ‘introduced compulsory professional indemnity insurance in 2005 for all healthcare professionals’. But ‘introduced’ does not mean ‘enacted’ or ‘in force’ and in its code of conduct (The Code) the Nurses and Midwives Council (NMC) only recommends that independent midwives obtain professional indemnity cover.

The present position

While some independent midwives do undertake some NHS or private work in hospitals or clinics and may enjoy insurance cover for that part of their work, it is when engaged to provide exclusive private maternity care for one woman that they work uninsured and is the subject of this article. The main statutory control of midwives is contained in the Nurses and Midwives Act 1997; midwives must be properly qualified, comply with continual professional development requirements and notify the Supervisor of Midwives of their intention to practise in their area. Otherwise regulation is devolved to the NMC and The Code.

Previously all midwives who had full membership of the Royal College of Midwives (RCM) also enjoyed the benefit of professional indemnity insurance (currently up to a limit of £3m). In 1993 the Royal College withdrew insurance from midwives who did not practise in an environment where their employer also carried indemnity insurance for its employees. The only exceptions were when a midwife acts in the capacity of a Samaritan (such as delivering a baby in an emergency) or when a midwife agrees to deliver a baby for a friend outside her working hours. In the latter case the midwife should inform the relevant Supervisor of Midwives and arrange for an ‘honorary contract’ for that one birth. The effect of this change in the RCM insurance policy was to withdraw cover from all independent midwives.

Following withdrawal of RCM cover some independent midwives continued to obtain insurance commercially. But with premiums of between £15,000 and £20,000 many midwives had already been practising without insurance when, in 2005, the last product available was withdrawn from the market. Then in 2007, independent midwives received letters from the Chief Nursing Officer informing them, in line with government policy, that they must all obtain professional indemnity insurance within 18 months or cease to practise.

The Nursing and Midwives Council (NMC) considered this requirement in the context of the total absence of a suitable insurance policy and a well-organized campaign by the Independent Midwives Association who re-launched themselves as Independent Midwives UK to coincide with the campaign. After consultation the NMC recommended:

‘In situations where an employer does not have vicarious liability, the NMC recommends that registrants obtain adequate professional indemnity insurance. If unable to secure professional indemnity insurance, a registrant will need to demonstrate that all their clients/patients are fully informed of this fact and the implications this might have in the event of a claim for professional negligence.’ (The Code: Standards of Conduct Performance and Ethics for Nurses and Midwives)

To date there has been no enactment of the government's proposal to make the obtaining of professional indemnity insurance a condition of being able to practise for all midwives.

Information on insurance

The NMC leaves it up to the individual midwife to decide how she complies with this requirement of The Code. It would seem that the very least the NMC should require is a full explanation in the midwives publicity material, a full verbal explanation (with the conversation recorded in the notes) and reference to the client having received the explanation (and that she understands its implications) in the contract document signed by the midwife and her client.

Reading a random selection of independent midwives' websites there is considerable variation in practice in providing information on insurance. Some midwives provide a full explanation along similar lines to Independent Midwives UK's own website, some make only the briefest reference to insurance and some make no mention of it at all. Without an enquiry of all independent midwives it is not possible to say what the practice is in relation to informing individual clients but on the evidence of the websites alone the practice would appear to be variable.

It would appear that even this rather soft requirement to inform clients of the insurance position is not complied with adequately by most and ignored completely by some independent midwives. Solicitors in Exeter represented a child delivered by an uninsured independent midwife who sustained severe damage to the neck and shoulder from shoulder dystocia. The child suffered permanent nerve damage losing the use of one arm (Erb's palsy) and such deep lacerations to the neck that she required plastic surgery. Solicitors representing the NMC stated in a letter to the child's solicitors that ‘the NMC acknowledges that independent midwives could not necessarily be relied on to tell clients they are not insured’.

As a preliminary step to requiring that all independent practitioners are insured, the NMC should provide clear unambiguous rules for informing clients of the situation and ensuring that this advice is understood, with failure to do so being a disciplinary offence.

Much is made of women's right to choose, to choose where she will give birth, by what method and who will deliver her, yet choice can only be properly exercised when it follows being fully informed. Prospective parents should be made properly aware of the lack of insurance. They should know that insurance could compensate them or their child for the cost of years of on going care should a negligent mistake cause permanent injury. Otherwise they are not in possession of all the facts necessary to make the right choice for them.

A positive birthing experience

Independent midwives contract with individual women to provide a complete care package from early antenatal care, to delivery and postnatal visits. There is a wealth of information on independent midwives available on the Internet from that of Independent Midwives UK (www.independentmidwives.org.uk) to those of individual practitioners. The websites emphasize the benefit of individual care which leads to an ideal outcome. Various alternative therapies are offered and unlimited choices in how the care is provided and the delivery conducted, even for breach and vaginal birth after Caesarean section. Where insurance is discussed it is often coupled with assurances that though it is a sad fact some babies suffer injury at birth, as the midwife practises a policy of non-intervention, it is not likely to be their fault, just one of those things. Further that as the midwives have no assets, they are not able to satisfy any claim for damages that might be made. In effect ‘please do not bother to sue us, as we are “men of straw” it is not worth it'.

When the birth of a baby is anticipated all the focus is on the baby in the cradle but if the cradle is empty or the baby is permanently injured everything changes. The independent midwife's publicity is all about having a positive birthing experience often offered to women as an antidote to the poor experience of a hospital birth. However this ignores the fact that for many women the birth of their first baby is not straightforward while subsequent deliveries are more likely to fit the model of ‘natural birth’. This offer of a much improved second birthing experience in the form of a home birth, assisted by an independent midwife ignores this natural progression and encourages women with high-risk pregnancies to opt for what could be a less safe delivery with no insurance cover if things go wrong. Further many obstetric emergencies occur out of the blue, an unexpected haemorrhage from a placenta that detaches prematurely, a cord prolapse or prolonged bradycardia. After many years of acting for children with cerebral palsy, I can say that parents will accept the opinion of experts who say that sadly in this case the damage caused is unexplained ‘just one of those things’ but on the other hand when told by experts that this was an avoidable injury, they want damages to be paid to their child, damages that typically amount to several millions of pounds. Where does that leave the parent of such a child delivered by an uninsured midwife?

In support of the contention that poor outcomes are rare in the hands of a skilled midwife, Independent Midwives UK provides some statistics. Of births conducted by their members from January 2002 to March 2003, the emphasis is on the high percentage of normal deliveries achieved despite over 50% of the women being considered high risk. But there is little information on the condition of the child apart from reference to a study which found an increase in the number of babies with 5-minute Apgars of greater than 7 when born at home. These incomplete statistics are based on such a small sample that they are not helpful.

The emphasis on the birthing experience itself plays to the heightened emotions around pregnancy and childbirth and denies any possibility that something could go wrong. Memories are short; those in charge of policy-making today and those who call for home deliveries on demand and a positive birthing experience as a right are not in a position to remember how things were in the 1950s when Britain had an unacceptably high maternal and infant mortality rate and the policy decision was made then to deliver all babies in hospital. Arguably the pendulum has now swung the other way with too many inductions, increased risk of infection and poor staffing levels leading to a lack of continuing care. But the answer to this, and the lack of insurance, cannot be as Independent Midwives UK suggests to incorporate independent midwives into NHS provision for maternity care allowing all women the choice of care by an independent midwife. Finance and the shortage of qualified midwives would make this solution unworkable. In April 2009 The Guardian reported 20 NHS trusts running at 10% below capacity for midwives and that the figure for the country as a whole 5%. Independent midwives typically deliver 10–15 babies a year, any more and they could not provide the care they promise to provide. Such a high ratio of midwives to pregnant women is arguably desirable. However, should just a few more women opt for delivery by independent midwife the increased cost, even were there enough qualified midwives available, would be too high.

Why no insurance?

As only self-employed, independent midwives were excluded by the change in the RCM insurance policy, it begs the question, is the risk of a claim arising out of a negligently caused injury greater in independent practice? This seems contrary to the assertions of so many of the practitioners, yet they were excluded from a large group policy designed to spread the risk. On the open market, firstly premiums were unaffordable for many, then a policy ceased to be available at all. Surely it must be the case that the risk of negligent damage occurring in independent midwifery practice and of resulting high value claims was too great for insurers to offer indemnity.

At one time it was possible for independent midwives to come to single arrangements with their local maternity units to deliver their clients there if they judged it necessary for assistance to be available should an emergency need arise. However the National Health Service Litigation Authority (NHSLA) has since warned that this practice may affect a Trust's cover under the Clinical Negligence Scheme for Trusts (CNST).

Expressing concerns

It was the letter from the Chief Nursing officer in 2007 warning independent midwives of the need to insure within 12–18 months that led to the campaign to ‘save independent midwives’ and the compromise guidance issued by the NMC. Twelve months later, Peter Walsh, Chief Executive of AvMA, wrote to Christine Beasley, Chief Nursing Officer, expressing concern over the continuing danger of midwives practising without appropriate indemnity cover. Peter Walsh called for the NMC to make it clear that a midwife practising without insurance should be subject to disciplinary procedures and, if appropriate, removal from the register. Further that if a policy decision were to be made by the DOH that independent midwifery services should be an option for parents, then it should also facilitate indemnity insurance for midwives by subsidy or direct provision.

In her response, Christine Beasley stated the government was committed to compulsory cover as a condition of registration for each healthcare profession. But for nurses and midwives, the government intended to hold a major public consultation exercise (why when without enquiry doctors must insure, is it sentiment?). She also referred to an amendment to the Health and Social Care Act 2007, where it would be possible by secondary legislation to allow non-NHS bodies or self-employed health practitioners who deliver NHS care to join the CNST. This may sound like a solution but it would only permit independent midwives who practise in the NHS to join. Surely this flies against the definition of independent midwives. What is required is a solution to the lack of professional indemnity insurance for independent midwives when they practise alone providing 1:1 care for women away from the NHS setting. Alternatively, if such a solution is not available then the hard decision must be taken without reference to sentiment braving the consequences that independent midwives may no longer practise.

Despite suggestions to the contrary, the situation is not exactly analogous to the inclusion of Independent Sector Treatment Centres (ISTCs) in the CNST as here the patients are still in receipt of free care provided by way of direct payment by the NHS. However, if the DOH is prepared to extend CNST cover in this way to facilitate implementation of its own policy of providing care via ISTCs, then it may also do so if it decides women should be able to choose to receive maternity care from independent midwives. On the other hand it is equally logical to say that a country cannot afford this highly expensive form of maternity care. Governments have a duty to protect their citizens from harm or at least to facilitate the obtaining of damages if harm occurs. A government can achieve this in the context of healthcare by making all professionals obtain indemnity insurance without exception, including those with strong emotional arguments. Motor insurance is compulsory whatever the circumstances; it is a matter of public policy to require drivers to have adequate cover for damage to property and personal injury. If for some reason, be it the driver's fault or not, a driver cannot obtain or perhaps afford insurance he may not drive. Not even the fact that he needs to drive to save lives will exempt him from the legal requirement. It is as simple as that.

Quality of training and up-to-date knowledge

One supervisor of midwives in this country has three independent midwives suspended from practice for various failures to provide adequate care. When independent midwives state that generally with non-interventionist care in labour if something goes wrong it is not due to negligence, how can we be sure this is correct? It is estimated that there are about 200 independent midwives practising in the UK, and this number is too small for accurate statistical analysis. However the NHSLA, when issuing guidance to Trusts to remind them that independent midwives were not covered by the CNST, also expressed concerns over competency. This was stated to be because the NHSLA was unable to satisfy itself that all independent midwives have sufficient quality or continuity of training. There were also concerns that they will not work in accordance with hospital protocols, one of the first things requested by a Claimant lawyer investigating a claim against midwifery staff.

In March an independent midwife was struck off and removed from the NMC register. The disciplinary action arose out of the midwife's care in labour of a 36-year-old primagravid patient. Gestation was 41 weeks +5 days and it was a breech presentation. The charges were that the midwife failed to monitor and safeguard the fetus, failed to assess the condition and progress of the woman, and failed to take appropriate action when labour fell outside normal parameters (delayed in calling 999 in the presence of fetal bradycardia and meconuim). The baby died. There was a large amount of media interest because the midwife delivered JK Rowling's two children. Not surprisingly neither the NMC (because it was not a disciplinary issue) nor the media (because it either did not know or did not realize the implications) mentioned that the midwife was not insured. We do not know what civil action, if any, was brought by the parents of the child of Patient A but with no insurance it is likely that the midwife had little by way of resources to satisfy a claim for either damages or costs. Perhaps as the baby died, damages would have been modest and the midwife would have been able to satisfy a claim. But it would have been a different case entirely had Patient A's baby lived but suffered hypoxic brain damage. Of course it was not because the midwife practised independently (with the assistance of another independent midwife) that these events occurred but it is because the NMC and the government permitted her and others like her to practise without insurance that Claimants in these circumstances are denied damages.

Conclusion

The overwhelming majority of women, with minimal interference, will labour normally and deliver a healthy baby with no problems at all. But when things go wrong they go very seriously wrong; an injured child requires a lifetime of care, hugely costly in time and money. Is the risk therefore too great for parents alone to take the decision to employ the services of an independent midwife without more information about the consequences of the midwives having no insurance cover? Arguably such a very personal choice about where their baby is born is for parents alone, but it must also be a matter of public policy that the midwife who attends the birth should carry insurance. Without new developments in insurance provision independent midwives will have to stop practising. If the government wishes its citizens to have the choice of independent midwifery care it may have to facilitate the provision of insurance in another way than through commercial insurance providers.