It seems that Professional Indemnity insurance cover is soon to be compulsory for all independent midwives. The liability for independent midwives can be a difficult area, especially where independent midwives are working alongside NHS staff. They are not (as some people think) covered by the CNST scheme and the NHSLA has long advocated independent midwives obtaining their own PI cover.
The NHSLA has warned all NHS Trusts that independent midwives should not be responsible for patient care if the Trust wants to be sure of CNST cover. It is recognised that this is sometimes difficult to reconcile with patient wishes, sometimes strongly held. However, NHS Trusts (and the NHSLA) are unable to satisfy themselves that all independent midwives have sufficient quality or continuity of training, or that they will work in accordance with the prevailing hospital protocol (among the first things that any lawyer will consider when investigating likely areas for a negligence claim).
Whilst there is no problem in principle with a NHS patient opting to have an independent midwife with her as a 'companion in labour' if that is her wish, NHS Trusts are expected to provide exactly the same care as they would have done in the absence of the 'companion' without placing any professional reliance on the independent midwife or using the independent midwife to free up one of its own NHS staff. This can be very difficult in practice as the patient's decision is likely to be at least divided if she receives conflicting advice on the pros and cons of a recommended medical intervention, for example.
Concern has been raised about the lack of CNST cover by some NHS Trusts and by independent midwives. Apparently there have even been some attempts to get cover under the CNST scheme by 'employing' independent midwives via an agency or granting 'honorary contracts' solely for the purpose. These methods are unlikely to succeed if simply a device to circumvent the CNST scheme rules and should be avoided.
The small group of 200 or so independent midwives have now been sent a letter by the government's chief nurse informing them that the government is intending to pass legislation within the next 12 to 18 months to make professional indemnity insurance a pre-requisite for registration purposes. It appears the European parliament is also considering similar legislation.
The Independent Midwives Association has responded with a petition calling on the government to provide midwives with PI insurance or else to make sure they are exempt from any legal action arising from their participation. The latter seems unlikely.
Claims against midwives rank as some of the highest value claims faced by the NHS. By the very nature of the work, even small mistakes or contributions to mistakes within a larger 'system error', can have very serious consequences. Midwifery claims are rarely 'trifling' in terms of the scale of damage . Figures suggest that independent midwives report a 85% 'normal' birth rate (ie without medical intervention) compared to a UK wide average figure of under 50%. Independent Midwives tend to be experienced practitioners and this higher normal birth rate may well be better for the mothers in general, if that is their birth preference. However, where medical intervention is called for NHS staff are like to be needed and often in emergency circumstances (for instance, where the original plan may have been for a home birth and an admission to hospital by ambulance may now be required).
By contrast independent midwives are paid less than GPs or many doctors and some practitioners fear that the high cost of mandatory PI insurance following new legislation may force hundreds to quit - thus reducing patient choice - if the government does not provide funding. At present the availability of PI cover in the insurance market is very uncertain and it is a 'high risk' area that may not be attractive to many insurers at all. Watch this space!
We recommend that NHS Trusts have robust guidelines for ensuring that NHS staff (and patients alike) understand the limited role of independent midwives within NHS care as 'companions in labour' and that they check for PI cover. Any divergence of views about treatment decisions with the independent midwife should be clearly documented and a senior member of staff should be summoned immediately in cases of dispute, ideally a consultant obstetrician or head of midwifery. In extreme cases the independent midwife might have to be asked to remove him or herself.
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