The law and the midwife

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The Law and the Midwife

The Law and the Midwife Second Edition

Shirley R. Jones and Rosemary Jenkins

# 1995, 2004 by Blackwell Publishing Ltd, Editorial offices: Blackwell Publishing Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK Tel: +44 (0)1865 776868 Blackwell Publishing Inc., 350 Main Street, Malden, MA 02148-5020, USA Tel: +1 781 388 8250 Blackwell Publishing Asia Pty Ltd, 550 Swanston Street, Carlton, Victoria 3053, Australia Tel: +61 (0)3 8359 1011 The right of the Author to be identified as the Author of this Work has been asserted in accordance with the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, except as permitted by the UK Copyright, Designs and Patents Act 1988, without the prior permission of the publisher. First published 1995 by Blackwell Science Ltd Reprinted 1997 Second edition published 2004 by Blackwell Publishing Ltd Library of Congress Cataloging-in-Publication Data Jones, Shirley R. The law and the midwife/Shirley R. Jones and Rosemary Jenkins. ± 2nd ed. p.; cm. Rev. ed. of: The law and the midwife/Rosemary Jenkins. 1995. Includes bibliographical references and index. ISBN 1-4051-1037-6 (alk. paper) 1. Midwives ± Legal status, laws, etc. ± Great Britain. I. Jenkins, Rosemary. II. Jenkins, Rosemary. Law and the midwife. III. Title. KD2968.M5J46 2003 344.4104'15 ± dc22

2003016762

ISBN 1-4051-1037-6 A catalogue record for this title is available from the British Library Set in 10/12pt Berkeley Old Style by DP Photosetting, Aylesbury, Bucks Printed and bound in Great Britain using acid-free paper by TJ International Ltd, Padstow, Cornwall For further information on Blackwell Publishing, visit our website: www.blackwellpublishing.com

Contents

Preface Introduction Chapter 1 The Legal Framework What is law? Statutory law Green Paper White Paper Development of primary legislation The first reading The second reading The committee stage The report stage The third reading The House of Lords Royal Assent Secondary legislation Other parliamentary processes Parliamentary select committees Specific parliamentary enquiries Parliamentary questions and early-day motions The Private Members' Bill Common law (case law) European law Treaties Secondary legislation European Court of Justice European Court of Human Rights EU Advisory Committee on the Training of Midwives Natural justice The structure of the law in England, Wales and Northern Ireland Civil law The structure of the civil courts Public law The criminal court system Constitutional law The Coroner's Court

x xi 1 1 1 2 2 3 3 3 3 4 4 4 4 5 6 6 6 7 7 7 9 9 9 10 10 10 11 11 12 13 13 13 14 14

vi

Contents

Other resolution systems The legal profession Solicitors Barristers The Lord High Chancellor The legal system in Scotland The civil system The criminal system Using the legal processes The system of government Lobbying for change Changing maternity policy Background A change in policy The results The current situation Summary Reader activity References Statutes/SIs Cases

15 16 16 16 17 17 17 18 18 18 19 20 20 20 21 21 22 22 22 23 24

Chapter 2 The Statutory Profession of Midwifery The Midwives Act 1902 The Midwives Rules ± early versions Subsequent legislation and review Midwives Act 1936 Midwives Act 1951 Report of the Committee on Nursing (Briggs Report) Sex Discrimination Act 1975 The Nurses, Midwives and Health Visitors Act 1979 The Nurses, Midwives and Health Visitors Act 1992 The Nurses, Midwives and Health Visitors Act 1997 Health Act 1999 Nursing and Midwifery Order 2001 (SI 2002 No. 253) National Health Service Reform and Health Care Professions Act 2002 The Nursing and Midwifery Council The Code of Professional Conduct The Midwives Rules Rule 36: Notification of Intention to Practice Rule 37: Post-Registration Education and Practice (PREP) Rule 38, Suspension from Practice by an LSA Rule 39: The Duty to be Medically Examined Rule 40: Responsibility and Sphere of Practice Rule 41: Administration of Medicines and Other Forms of Pain Relief Rule 42: Records Rule 43: Inspection of Premises and Equipment

25 25 27 28 28 28 29 29 30 31 32 32 33 33 34 35 35 36 37 38 39 39 40 42 42

Contents

vii

Rule 44: Supervision of Midwives Rule 45: Discharge of Statutory Functions by a Local Supervising Authority A Midwife's Code of Practice Summary Reader activity References Statutes/SIs

43

Chapter 3 The Statutory Regulation of Midwifery The supervision of midwives Alleged misconduct The Investigating Committee The Conduct and Competence Committee Restoration to the Register Summary Reader activity References Statutes/SIs

48 48 54 57 59 60 62 62 62 63

Chapter 4 Accountability within the NHS Clinical governance The Commission for Health Care Audit and Inspection Risk management National Institute for Clinical Excellence Complaints The Health Service Commissioner (Ombudsman) Summary Reader activity References Statutes

64 64 67 68 71 72 74 82 83 83 84

Chapter 5 Negligence in Midwifery Practice Negligence The duty of care Breach of the duty of care Expert witnesses Causation Clinical issues in labour associated with causation Compensation Vicarious liability Clinical Negligence Scheme for Trusts (CNST) Rights and limitations Withholding and withdrawing treatment Wrongful birth and wrongful life The compensation system Summary

43 43 45 45 45 46

85 86 86 89 96 97 99 99 100 102 104 106 108 109 109

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Contents

Reader activity References Statutes/SIs Cases

110 110 111 111

Chapter 6 Consent and Refusal Adults Minors The choice of home birth Research Summary Reader activity References Statutes/SIs Cases

113 114 121 125 127 127 128 128 129 129

Chapter 7 Use and Abuse of Information Record keeping in practice Data Protection Act 1984 Access to Health Records Act 1990 Data Protection Act 1998 Disclosure of confidential information Writing a statement Writing reports Introduction Body of the report Appendix Summary Reader activity References Statutes/SIs

131 131 134 134 135 139 140 141 141 141 142 142 142 143 143

Chapter 8

Aspects of Law Related to Reproduction and Child Protection Assisted conception and artificial reproduction Human Fertilisation and Embryology Act 1990 Abortion Adoption Child protection Summary Reader activity References Statutes Cases

144 144 147 149 153 157 158 159 159 160 160

Chapter 9 Aspects of Employment Law The contract of employment

161 161

Contents

ix

Statutory Dispute Resolution Procedure Wrongful dismissal Unfair dismissal Discrimination in employment Movement towards gender equality Discrimination on grounds of race Discrimination on grounds of disability Rights to leave and pay in parenting situations Maternity leave and pay (Employment Act 2002, Ch 2) Paternity leave and pay (Employment Act 2002, Ch 1) Public Interest Disclosure Act 1998 Summary Reader activity References Statutes

163 164 165 166 166 167 167 168 168 169 169 170 171 171 171

Chapter 10 Application to Midwifery Practice Kay Professional conduct Aspects of law Employment Susan Professional conduct Civil law Employment Daniel Professional conduct Civil law Employment Summary Reader activity References Statutes Cases

172 172 173 178 179 180 181 184 186 187 188 190 193 194 195 195 195 195

Glossary Table of Bills/Statutes/SIs Table of Cases Index

197 199 201 203

Preface

The first edition of The Law and the Midwife was written by a midwife, Rosemary Jenkins, and published in 1995. It was a welcome inclusion to midwifery literature, particularly as it was written with a full understanding of the needs of practising midwives. It also served to educate non-midwives with regard to the role and accountability of the midwife. When the time came to revise the book, Rosemary felt that she had been out of midwifery too long to do justice to it. I was then contracted to undertake the revision. Although there had been many changes in certain aspects of the law, some areas remained the same, or with minor change only, particularly in the first section on the legal framework. For this reason, some of Rosemary's original work remains in the book, hence her co-authorship. This second edition is intended to inform and update midwives on certain aspects of law pertinent to their practice and employment. A number of topics have been expanded, with the inclusion of newer areas, such as aspects of clinical governance, as they were at the time of writing. This point is important, as some aspects of the law move on apace and the full influence of the Human Rights Act 1998 is yet to be seen. In general, legislation and civil cases have been referred to directly, rather than relying on second and third hand opinions. Where possible, consideration is given to the differences in law in Scotland and Northern Ireland, from that in England and Wales. The changes in professional regulation have been incorporated and my intention was to utilise the new Midwives Rules, which were originally intended to be published in March 2003. However, they will not be published until April 2004, therefore, where reference is made to the rules, readers will need to check for differences after that date. In this edition, each chapter has `Reader Activity' at the end, which is designed to help the reader to develop their knowledge further and to assist in the application of this knowledge into practice. I hope that you find these sections, and the book as a whole, helpful in your professional development. Shirley R. Jones

Introduction

Until the late 1980s to early 1990s, ethics and law were not overtly evident in most midwifery curricula, apart from the professional rules and codes of the day. The inclusion of these subjects in midwifery programmes was gradual and varied, often inextricably linked because of the essential ethical basis for much of common law. The initial inclusion was also linked to the interest and personal study of some midwife teachers. When midwifery became part of higher education, from 1995, and modular diploma and degree programmes were developed, the inclusion of ethics and law became more widespread. In some cases the two disciplines were taught together in one module, in others they were separated. While it is important to understand the essential link between them, it is also important to be able to separate them, in order to recognise the difference between reasonably defined legal boundaries and the more flexible boundaries within different ethical beliefs. In current practice, midwives are more aware of the increase and impact of litigation in midwifery and obstetrics, which often leads to fearful or defensive practice. In many cases this fear is born of insufficient or outdated knowledge or a lack of understanding. There have been radical changes in the statutory regulation of the National Health Service (NHS) and of the various health professionals working within the NHS and in private arenas. The aim of this book is to describe the legal background to health care practice and apply it to midwifery. The first chapter considers the legal framework as it exists in England, Wales and, in general, Northern Ireland, with some consideration of the different structure in Scotland. Throughout the book, where there are differences in Scottish law they are indicated. The chapter considers the different sources and systems of law and the legal personnel involved and some developments in midwifery have been used to indicate how policy changes can be made. Where possible examples used to illustrate a point are those likely to be of interest to midwives. The full effects of the Human Rights Act 1998 will not be seen for some years. However, having been introduced in this chapter, it is applied as appropriate throughout the book. Also throughout the book, reference has been made to and quotations taken from other current legislation and actual legal cases, with explanations that are intended to assist you in your understanding. Chapter 2 looks at the development of midwifery as a regulated profession, from 1902 to 2003, when a new version of the Midwives Rules is awaiting publication. Chapter 3 continues with statutory regulation by considering statutory supervision of midwives and dealing with alleged misconduct. Having considered the professional accountability of midwives, Chapter 4 reviews the accountability of the NHS. Clinical governance, risk management and CNST are discussed, along with

xii

Introduction

complaints and the work of the Health Service Ombudsman. Midwifery cases have been used to give insight into the types of issue that arise and the process that is followed. Accountability in law is covered in Chapters 5 and 6 with consideration of negligence and battery in midwifery. In Chapter 5, the duty of care and negligence is discussed. Classic cases have been used to explain and illustrate the major principles and there is also discussion about withholding and withdrawing treatment. In Chapter 6, consent is the focus, for adults, minors and incompetents. The consequences of failing to uphold the principles surrounding consent are discussed, again with the aid of appropriate legal cases. The position with regard to home birth is also discussed in this chapter, as consent inherently involves the matter of choice. Chapter 7 covers aspects of patient/client information: legislation regarding recording and disclosing of information, plus practical aspects of record keeping, statement and report writing. In Chapter 8 the law related to various aspects of child bearing is considered, from assisted conception to adoption. This chapter also considers the protection of the children once they have been born. Chapter 9 looks at aspects of employment law, including the new procedures for discipline and grievance. It also includes the current situation with regard to maternity, paternity and parental leave. This information is important for you as employees but also for the women for whom you care. Also included are aspects of discrimination in employment and the legislation regarding `whistle blowing'. The final chapter, Chapter 10, is about application to practice. Three midwifery cases are analysed with regard to the accountability of the midwives concerned, from the perspectives of professional, civil and employment law. They bring to life the practical application of the major principles discussed earlier in the book. For this reason, it is important that you read at least Chapters 3±6 and 9 before accessing these cases, as the discussions were written with this prior reading in mind. At the end of each chapter there are suggested activities to further develop your knowledge and interest related to the content of that chapter. Undertaking these activities could form part of your PREP development. Write up what you have done, along with your reflection on what you have learned and how it will affect your future practice; indicate the time that you spent on the whole process. In addition, references, statutes and legal cases used have been included at the end of each chapter for ease of access. Further access to specific cases or Acts of Parliament can be gained by use of the relevant tables at the end of the book, rather than the general index. A short glossary of terms has also been included. The first edition of this book was written by a midwife, Rosemary Jenkins, not by a lawyer. It is appropriate, therefore, that this second edition is also written by a midwife for the benefit of other midwives. It is important for midwives to have sufficient understanding in order to make sense of the legal principles that affect our day-to-day practice. The intention of this book, in part, is to provide knowledge, which provides power and confidence. However, it is also to allay many of the anxieties that midwives express about the constraints that they feel the law imposes on their practice. In fact, the law frequently operates in such a way as to enable midwives to extend and develop their practice. If nothing else, it is hoped

Introduction

xiii

that midwives will realise that as long as they uphold their duty of care within acceptable standards, respect their clients' wishes and ensure a good standard of record keeping, then they have very little to fear from any aspect of the law. I hope that you will find the book interesting and useful, particularly in your professional lives. Throughout the book the midwife has been referred to as female, purely for ease of writing, but I wish to acknowledge that there are male midwives in practice in the UK and the contents of this book are also relevant to them.

Chapter 1

The Legal Framework

What is law? Law is a mechanism by which a society determines control and order of its subjects. It is a formal means of regulating a stable functioning of society, within an ethical framework, but under political influence (Slapper & Kelly 2000: 1). Law formulates rules by which all members of a society are expected to abide. These rules are intended to prevent or deal with conflict, prohibit and prosecute unacceptable behaviour to safeguard us from harm; they may be national `laws of the land', which apply to the whole country, or local `by-laws' (Rivlin 1999: 17). Law determines what constitutes a criminal offence and how it should be punished and it provides a framework for the settlement of disputes. It is not difficult to imagine what the absence of law would create ± criminality, anarchy, fear. Law is also enabling, in that it promotes equal opportunities for all, including those with disabilities, while also seeking to protect all members of society, for instance, by regulating health care professions. Laws provide us with rights and duties: rights should be respected and duties obeyed. If this formula is followed by all citizens then it creates fairness in society. One way of understanding English law, which generally includes Wales, except with regard to the organisation of the health service (Montgomery 2002: 6), is to look first at how it is developing and then to examine how the legal system administers the law on behalf of the people. White (1999: 14) argues that our legal system is not systematic, as much of it is `. . . the result of historical accretion rather than logical plan'. However, some logical steps have been taken with the passage of consolidating Acts, such as the Midwives Act 1951 (long since removed from statute) and the Children Act 1989, where, in each case, numerous pieces of legislation were brought together into one, more coherent document. English law has developed from three main sources ± statute, common law and European law ± within which there are various categories, with some degree of overlap (Slapper & Kelly 2000: 2±8).

Statutory law Statutes are Acts of Parliament and are the most important sources of law. They have to be interpreted by judges but can overrule previous decisions made in common law. In terms of sheer volume, they also represent the major source of

2


new law during the twentieth century and to date. The functions fulfilled by statutes are: . creation of new law ± for example, the Congenital Disabilities (Civil Liability) Act 1976. This Act is often thought to give rights to the fetus whereas its actual function is to give rights to the live-born child to claim against harm caused to it while in utero; . amendment of existing statutory law ± the Human Fertilisation and Embryology Act 1990 amended the Abortion Act 1967 and the Surrogacy Arrangements Act 1985; . amendment, clarification or confirmation of case law; . the repeal of existing law ± the Health Act 1999 repealed the Nurses, Midwives, Health Visitors Act 1997, among others related to other health care professionals; . consolidation of a number of disparate laws into one ± the Children Act 1989 consolidated all existing legislation relating to the care of children, except adoption, into one document, as well as introducing new legal principles; . enablement ± the primary legislation, i.e. the Act, allows for secondary legislation, or subsequent regulations, to fill in the detail of the law without being subject to a full debate in Parliament. The Nursing and Midwifery Order 2001 (SI 2002 No. 253) and the Health Professions Order 2001 (SI 2002 No. 254), for allied health care professionals, provide the detail of the professional regulation outlined in the Health Act 1999. An Act of Parliament is confirmed by Royal Assent, having passed through a number of stages of scrutiny and debate. When a government is contemplating new legislation it may choose to proceed in various ways. It can bring the matter directly to Parliament but it may choose to seek public opinion first, an action that is very important in a democratic state. It may do this with the publication of a Green or White Paper.

Green Paper A Green Paper is a government consultative document, issued when a wide range of views is required before drafting potential legislation. This consultation encourages comment from ministers, civil servants and the general public, through organisations, pressure groups, charities and individual members of the public. Not every Bill will be preceded by such a paper and not every Green Paper will progress to legislation; it may become the basis of a national policy document. Our Healthier Nation was a Green Paper produced in 1998; it formed a background to the White Paper Saving Lives: Our Healthier Nation, presented to Parliament on 5 July 1999.

White Paper Whereas a Green Paper is consultative, a White Paper sets out a government's intended policy in a form that enables people to understand it. It may or may not follow the response to a Green Paper. It uses everyday language to describe the

The Legal Framework

3

contents of an intended Bill, i.e. proposed legislation. Adoption: A New Approach was a White Paper presented to Parliament on 29 December 2000; the subsequent Bill, entitled the Adoption and Children Bill 2001, has since progressed through the process, becoming the Adoption and Children Act 2002. Although a White Paper is not a consultation document, it is possible to use the parliamentary process as the subsequent Bill passes through its stages to influence and possibly alter the policy.

Development of primary legislation Primary legislation consists of Acts of Parliament that start the formal process in the form of Bills. The Bill is usually presented to the House of Commons (HoC) but occasionally to the House of Lords (HoL). It then passes through five stages.

The first reading This formality includes the introduction of the Bill, whereby the long and short titles are read, a date is set for the second reading and the printing of the Bill is ordered.

The second reading This critical stage consists of extensive debate on the principles of the proposed legislation, usually by the Whole House. However, some non-controversial Bills may be debated by a `second reading committee', set up for that purpose (Silk & Walters 1998: 121). If it is approved at the end of the debate it moves to the next stage, with a good chance of eventually becoming law.

The committee stage It used to be that most Bills were considered by the Whole House examining the provisions of the Bill in detail, clause by clause. Today, however, Bills considered by the Whole House are those that are uncomplicated and those where there is extreme urgency; in both cases this method saves time. In addition, it would consider major constitutional Bills, such as those that dealt with devolution for Scotland and Wales (Silk & Walters 1998: 123). In all other cases, an all-party standing committee of the HoC, whose membership reflects the composition of the full House, deals with this detailed scrutiny and debate. It has the power to make amendments to ensure that the detail conforms to the overall approval given in the HoC debate. As part of the process, the committee may receive representations from interested parties or expert advice. As the committee has the same proportions of government and Opposition membership as the full House, it is not easy for Opposition members to achieve amendments, unless they are in line with government policy or a significant number of government backbenchers are persuaded to oppose their own party.

4


The report stage Where a committee has been used, it reports back to the Whole House with its recommendations, including any suggested amendments. Proposed amendments, from the committee or other MPs, are then debated by all members.

The third reading This is the opportunity, often following immediately after the report, for further debate on the content of the amended Bill, but no further discussion on the principles can take place. Following this debate, the Bill is then passed to the HoL.

The House of Lords Similar stages of consideration occur here, but the Whole House forms the committee. The Bill then returns to the HoC for consideration of any further amendments and recommendations made. Some Bills start in the HoL, rather than in the HoC, but the whole process must be achieved in both Houses before a Bill can become law.

Royal Assent Once the Bill is passed by the two Houses it is presented to the monarch for signing. Convention requires that the monarch should give assent; any disapproval can be expressed privately but the constitutional duty is to give assent (Rivlin 1999: 72). Immediately following the signing, the Bill is sent to the HoL for pronouncement and at this point it becomes enacted, with immediate effect, unless provision for a later date was specifically made in the Act. This process may seem to be a complicated way for Acts of Parliament to be passed, particularly as a Bill must complete the process within one parliamentary session or risk total loss (Slapper & Kelly 2000: 24). However, much legislation is not controversial and these stages can be passed over quickly. Indeed, in times of crisis or urgent need, some Bills can be rushed through the whole process in a matter of days. For example, the Landmines Bill 1998 passed from the first reading through all stages and back to the HoC in less than one week (Rivlin 1999: 73). On the other hand, some Bills are extremely controversial, such as the Criminal Justice Bill 1998, where it was intended to reduce the age of consent for homosexual activity to 16 years, as is the case for heterosexual activity. The HoL did not agree with this part of the Bill and the delay threatened to run the whole Bill out of time. The offending provision was removed in order to secure the passage of the rest of the Crime and Disorder Act 1998 (Slapper & Kelly 2000: 24). Some Bills are controversial but are rushed through in an attempt to prevent unethical action or remove an apparent loophole. The Surrogacy Arrangements Act 1985 is one example of this practice, having been a knee-jerk reaction to the Warnock Report (DHSS 1984), long before the eventual legislation regarding infertility issues was passed, in 1990, in the form of the Human Fertilisation and Embryology Act 1990 (Montgomery 2002: 8).

The Legal Framework

5

All primary legislation needs parliamentary time and it would be impossible for Parliament to consider every detail of proposed law, especially as much of it is very technical. To deal with the mass of technical law, much primary legislation is enabling. It provides a general framework, delegating authority to a minister to introduce detailed secondary legislation.

Secondary legislation Secondary or delegated legislation is derived from powers set out in primary legislation and takes the form of Statutory Instruments. The advantage of using secondary legislation is that, with the highly technical nature of some laws, it can be drawn up and approved by experts with delegated powers and, if it requires subsequent amendment, this does not have to wait for parliamentary time. It is often the most important source of law, particularly with regard to professional regulation (Montgomery 2002: 10). An example of how the system works is the Midwives Rules and Code of Practice (UKCC 1998). The primary legislation was the Nurses, Midwives and Health Visitors Act 1997. This Act continued the empowerment of the United Kingdom Central Council for Nursing, Midwifery and Health Visiting (UKCC) to draw up the rules and codes and amend them as necessary. The UKCC, in consultation with the Midwifery Committee, made amendments to the Midwives Rules (1993) and the Midwife's Code of Practice (1994) and amalgamated them into one document, published in 1998. By consultation with the Midwifery Committee, the Council was using the professional expertise of practising midwives to frame the legislation. More recently, in 2002, the Nursing and Midwifery Council (NMC) replaced the UKCC, following the Nursing and Midwifery Order 2001 (SI 2002 No. 253). This SI is unusual and complicated as it stemmed from section 60 of the Health Act 1999, which allows secondary legislation to amend primary legislation with regard to regulating health care and associated professions. In this case the Nursing and Midwifery Order repealed the Nurses, Midwives and Health Visitors Act 1997, placing all the relevant regulations in the Order (personal communication with Parliament, as a number of midwives felt that the Order was primary legislation). The NMC was then enabled to produce a new Code of Professional Conduct (NMC 2002). This version was expanded and replaced the previous Code of Professional Conduct (UKCC 1992a), Scope of Professional Practice (UKCC 1992b) and Guidelines for Professional Practice (UKCC 1996). At the end of 2002, the NMC conducted a consultation in order to update midwifery regulation further, resulting in new Midwives Rules to be published in 2004. The delay in publication is linked to approval for the required changes to the Professional Register. The remaining rules and guidelines were to be updated according to prioritisation of need, through further Statutory Instruments that require the approval of the Privy Council. Once the framing of the legislation is agreed, the Secretary of State, in this case for Health, endorses the legislation by laying it before both Houses for approval. If neither House has annulled the SI within 40 days of its presentation, then it becomes law (Silk & Walters 1998: 148). Secondary legislation has the same legal power as primary legislation, as long as its content stays within the authority of the parent Act.

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Since devolution and the formation of the Welsh Assembly in 1999, the power to make secondary legislation has moved from the Secretary of State for Wales to the Assembly. Such legislation will be made through Assembly Orders, which will be examined by the Subordinate Legislation Scrutiny Committee, to ensure that it is within the Assembly's powers, before being presented to the whole Assembly. Disputes over any perceived abuse of power would be referred to the Privy Council (Silk & Walters 1998: 245).

Other parliamentary processes Before moving on to discuss other sources of law, there are some other parliamentary processes that are important, even though they do not in themselves produce legislation.

Parliamentary select committees These committees consist of parliamentary backbenchers and form a system that reflects the major government departments. For instance, there is a Health Select Committee. Each committee has a Chair, elected by its members, and comprises members from various political parties, although the overall balance would reflect that of the HoC. Therefore, the ruling party will constitute the majority on the committee. A committee has no statutory function although it can exert influence on policy. It has the power to question ministers regarding past government action, present policy, future government intentions and to scrutinise expenditure. The hearings are public and the evidence that is obtained, both written and verbal, is published. A committee has complete freedom over the topics to be studied, although it is often influenced by current matters of controversy. When conducting an enquiry, a committee may invite evidence from a wide range of sources or make appropriate visits if the members believe that this will inform their final recommendations. When considering matters of a technical nature, it is usual for a committee to appoint a panel of advisers to assist in the enquiry. There have been a number of influential reports on maternity services from the Health Committee. The Health Committee Second Report on the Maternity Services (DHSS 1992) was undertaken when the committee was chaired by Nicholas Winterton MP. It resulted from a year spent looking at the general provision of maternity services. In 2000, there was the Health Committee Second Report on the Tobacco Industry and the Health Risks of Smoking (DH 2000a).

Specific parliamentary enquiries Not all parliamentary reports emanate from the select committee process. Ministers may order an enquiry if they believe there is a matter of public interest. For example, following the Winterton Report (DHSS 1992), where the main recommendation of the report was that an expert committee be set up to review the policy on care for child-bearing women. This committee was set up under the chairmanship of Baroness Cumberlege, the Junior Health Minister, and the

The Legal Framework

7

resulting Changing Childbirth: Report of the Expert Maternity Group was published in 1993. In 2000 the Chief Medical Officer's Expert Group on Cloning published their report ± Stem Cell Research: Medical Progress with Responsibility (DH 2000b). Another such group, the UK Expert Advisory Group on AIDS, provided guidance on HIV and infant feeding in 2001 (DH 2001).

Parliamentary questions and early-day motions Government ministers are accountable for their actions to Parliament and to their backbenchers. There are two mechanisms that MPs can use to call ministers to account. Ministers must answer questions put to them by MPs when asked as a `parliamentary question'. The answers can be given verbally in Parliament or as a written answer. Alternatively, motions can be laid before Parliament. These motions are placed at the Dispatch Box and individual MPs can then sign them if they support the principle. If sufficient MPs sign an èarly-day motion', as it is called, indicating general support of the House, the government may consider legislation to support the principle. Parliamentary questions and early-day motions on their own are not very influential in shaping government policy and legislation. However, they can be used in conjunction with parliamentary lobbying and other forms of public pressure to influence statutory law. Another small but important use of the parliamentary question is to obtain information that would usually take time to research.

The Private Members' Bill Ordinary MPs may bring their own Bills before Parliament. This is a difficult procedure as they are allotted parliamentary time on the basis of a ballot. There are occasions when issues of important ethical implication are eventually made law through this process. There are some issues that political parties prefer not to support but which, nevertheless, require statutory support; the Private Members' Bill may be the only way to achieve consideration of that issue. A notable example of this was the Abortion Act 1976, introduced by David Steel. Another Private Members' Bill to create a major national stir, inside the House and out, was Mike Foster's Bill calling for a ban on hunting with hounds. Although the `lottery' of a parliamentary ballot means that this type of legislation is not easily achieved, MPs sometimes win parliamentary time first and subsequently choose a subject to put forward. This could be considered to be devious practice but it is an ideal opportunity to lobby that MP to take up a particular cause.

Common law (case law) Until the twentieth century, the most important source of English law was common law or case law. Although its position has been overtaken by statutory law, it is still of great importance and has made significant contributions to health care

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law. This form of law is determined by the decision of judges in specific cases. There are certain rules that apply to the development and subsequent use of case law, which can be summarised under the general description of precedent. To maintain consistency of judgment in similar cases, a judge is obliged to follow the reported decision of a previous court hearing. This rule results in a degree of certainty about the eventual outcome of future cases, where circumstances and legal principles are substantially the same. However, it is possible for a judge to determine that the case being heard differs from previous cases. Determination of what `distinguishes' it from other cases allows the judge to make a different decision, clearly stating in the summing up what the distinguishing feature was. This decision then becomes precedent for future cases with the distinguished feature(s). Decisions in common law are hierarchical: a judge in a lower court is absolutely bound by the decisions made in a higher court. A judge in a county court, therefore, may not go against a decision made in a similar case in the High Court; the Court of Appeal may not go against the decisions made in the HoL. However, the HoL may depart from a previous decision when it appears right to do so, but such a step is not taken lightly. These positions hold unless there is a conflicting decision made by the European Court of Human Rights (ECHR), as all English law decisions must now be considered in the light of human rights. Since the activation of the Human Rights Act 1998, such considerations must be made in our courts, rather than expecting people to take their cases to the ECHR. Case law can fulfil three main objectives. (1) (2)

(3)

It can be used to introduce a completely new principle. The law on negligence (see Chapter 5) was finally defined by a decision in the HoL in the case of Donoghue v. Stevenson in 1932. It can be used to develop existing law. An example of this development is the Bolam Test (1957). A judgment was made that determined the professional standard that should be met when deciding whether a professional person had been negligent or not. In this case, the law of negligence already existed and the judgment merely clarified it. There have been other cases that, in effect, have modified Bolam further (see Chapter 5). It can be used to clarify the terms of a statute. Although the wording of all Acts of Parliament is carefully drafted, there can still be ambiguities. An example of this ambiguity is section 45 of the Nursing and Midwifery Order 2001 (SI 2002 No. 253). It states: À person other than a registered midwife or a registered medical practitioner shall not attend a woman in childbirth'. There is no clarity about either of the words àttend' or `childbirth'. Does the word àttend' mean to be there or to offer professional services? Is `childbirth' just the actual birth, is it the labour as well or does it extend to the whole process and include pregnancy? It may seem strange that this ambiguity has not been addressed since its appearance in the Nurses, Midwives and Health Visitors Acts of 1979, 1992 and 1997, but the only way a precise definition could become law would be if a judge hearing a relevant case offered a judicial definition.

Legal cases are reported through a number of official law reports: Appeal Cases (AC), All England Law Reports (All ER), Lloyd's Law Reports (Lloyds LR or Lloyds

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Rep) are examples. Lloyd's also produce a medical law report, which is obviously very useful in health care generally. According to Slapper and Kelly (2000: 33), over 200,000 cases are heard each year but only approximately 25,000 are reported on ± those of greatest authority. Such reports provide up-to-date guidance for those referring to them, for instance, lawyers seeking to determine a predicted outcome to a case, or academics seeking to educate students. They will be looking for the judgments, which consist of two parts. The first part consists of the ruling made, either following a preceding judgment or creating a precedent for future cases, along with the legal rule on which the decision was made (ratio decidendi). The second part consists of any `legal asides'; that is, legal statements made during the consideration of the case but not essential to the ruling (obiter dicta). Judges in future cases are not bound by this second part, but they may consider it if they feel that it is appropriate. In some cases, past judgments may appear to be contradictory or poorly distinguished. For this reason, the rules of precedent, which evolved to ensure a degree of certainty about the outcome of a case, still leave some doubt about the decision a judge will make in any case being heard.

European law Although statutory law holds precedence over all other sources within the UK, since our entry into the European Community in 1973 (now called the European Union) there has been a progression towards effective power being held by the EU. All UK law must fit within the framework of EU law, some aspects of which will be outlined below.

Treaties Treaties are the highest form of EU law, with all other European law stemming from them by way of enabling legislation (Hendrick 2000: 14).

Secondary legislation Secondary legislation within the EU consists of Regulations, Directives, Decisions and Recommendations. They are determined by the European Council of Ministers and the European Commission. It should be noted that the elected European Parliament plays a minor role in the determination of European law, although it was somewhat strengthened by the Maastricht Treaty (1992). . A Regulation is binding on all member states from the time it is formulated, without the need for states to pass any enabling legislation. In most cases, the Commission determines which legislation should be couched in terms of a Regulation. . A Directive is only binding with regard to the outcomes that must be achieved, rather than on the method of implementation. Member states, therefore, must determine what national legislation is required in order to fulfil the Directive. This mechanism is demonstrated by the inclusion of the Midwives Directive 80/

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155/EEC Article 4 into the UK Midwives Rules, indicating the minimum activities that midwives should be entitled to undertake. Rule 33(3)(a) clearly indicates that this Directive must be met in the educational programmes that lead to professional registration (UKCC 1998). If a state finds part of an intended Directive to be unacceptable, it must seek exemption within the terms of the Directive. It cannot allow the passing of the legislation, without submission of a claim for exemption, and then subsequently ignore it. Submissions for exemption will have political bias. The UK Conservative governments did not want union with other European nations beyond economic considerations. Hence, with the formulation of the Maastricht Treaty (1992), a claim for exemption from the Social Charter was made and was successful. As the next Labour government was in favour of the European social reform, it made no claim for exemption against the Social Charter that was included in the Treaty of Amsterdam (1997) (Slapper & Kelly 2000: 50). . A Decision is specific to an individual person or state. It is a binding ruling relating to law or policy. . A Recommendation provides what is intended to be helpful comment, particularly with regard to clarifying ambiguities in a state's legislation, but it is not binding.

European Court of Justice The European Court of Justice, based in Luxembourg, has responsibility for deciding disputes arising from the various treaties that exist between the members of the EU. It is the supreme court in these matters and consists of one judge from each member state. Their decisions apply both to the arbitration between parties in dispute (governments, institutions, companies or individuals) and to the authoritative interpretation of the European law. This court can overrule judgments made by national courts.

European Court of Human Rights The European Court of Human Rights (ECHR), based in Strasbourg, was created after the Council of Europe established the European Convention on Human Rights in 1950, to which the UK was a signatory. It is completely separate from the EU, being interested in civil rights, not economics. People who are dissatisfied with national decisions, having exhausted the legal processes open to them in their own country, can petition this court for a decision on the grounds of human rights. Until 2000, UK citizens were in this position but, with the passing of the Human Rights Act 1998, which became effective in 2000, the Convention was incorporated into the UK legal system. The ECHR will have a supreme function, but most UK citizens will be able to get national satisfaction, without the need to apply to the ECHR.

EU Advisory Committee on the Training of Midwives The EU Advisory Committee on the Training of Midwives is a permanent committee with responsibility to monitor the working of the Midwives Directive. Each

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member state has three midwifery representatives on the committee, one each for clinical practice, education and the `competent body' (e.g. NMC). Each representative has a named alternative person to attend meetings in their absence. In the UK, the membership takes account of the component countries being represented.

Natural justice The principles of natural justice are not in themselves sources of law, but philosophical concepts that underpin the law. Certain rights of justice are accepted as rules to guide any adjudication on matters in dispute. The main concepts of natural justice relate to justice being seen to be done and are as follows: . . . . .

to act fairly and in good faith to allow each party the opportunity to state his or her case adequately that a person must not be the judge in their own case that a person must be told of what they have been accused that all documents used in the adjudication process must be available to both parties.

Where it is alleged that the actions of a public body may be in contravention of natural justice, it can be possible to apply to the High Court for a judicial review. For example, a midwife used this process when she claimed that her case had been unfairly heard by the Professional Conduct Committee (PCC) of the UKCC. In this instance the court case was abandoned because the UKCC accepted that irregularities had occurred in the original hearing; it overturned the decision of the PCC. However, since 2000, professional conduct committees for all health care professions have been required to uphold Article 6 of the Human Rights Act 1998, regarding the `right to a fair trial'. Some cases have been considered under this article with regard to delay of the process and independence and impartiality (DH 2002: 2). Another judicial review was conducted in Ireland, in 2002, with regard to `provision of services to women in Northern Ireland in need of termination of pregnancy' (Hughes & Kaufman 2001).

The structure of the law in England, Wales and Northern Ireland It should be noted that the structure in Northern Ireland is virtually the same as for England and Wales. There are some differences but not sufficient to warrant a separate section, as with Scotland. Earlier in this chapter, it was stated that there are various overlapping categories of law; however, in simplified form, the law can be divided into two categories: public and civil. Public law includes criminal, constitutional and administrative law. Civil law includes torts (e.g. negligence, trespass), contract and family law. In general, civil law deals with disputes that occur between individuals, whereas public law deals with disputes between an individual and society or the organs of society. However, there are occasions when it is not always easy to determine the

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difference between them. For example, assault can be a criminal offence or a civil wrong (tort). Also, the breach of an order made in a civil court could result in criminal prosecution, as with antisocial behaviour (Crime and Disorder Act 1998) and stalking (Protection from Harassment Act 1997). It is often easier to define some of the different ways in which the two systems operate rather than define the two systems. . There are separate court systems depending upon whether it is a civil or criminal case. . There is a different burden of proof in the two systems. In the criminal system, proof has to be `beyond reasonable doubt' whereas in the civil system judgments are made òn the balance of probabilities'. . The sanctions are also different. The criminal system seeks to punish and to remove those who are a danger to society by, for example, imposing fines and giving custodial sentences. The civil system seeks to redress a wrong by awarding compensation or seeks to stop a wrong being perpetrated through the issuing of injunctions. . The processes of civil and criminal actions also differ as they pass through the parallel systems.

Civil law Civil law encompasses many aspects, such as contract, tort, family, commercial and property law. Most actions that are taken out against health care bodies or professionals are civil cases, seeking to redress an alleged civil wrong or tort (delict in Scotland). The rules of procedure involve considerable legal activity prior to a court hearing. This activity is conducted by the lawyers representing the parties to the case. The person who brings the action is called the plaintiff and the person or body answering the allegation is the defendant. Unfortunately, it has been an adversarial system of last resort, with the main parties as opponents and the judge as referee. Following the Woolf Report of 1996 on the civil law process, new legislation was passed in the form of the Civil Procedure Act 1997 and the Civil Procedure Rules 1998. This legislation enabled the reform of the civil process to address the negative issues formerly experienced, which included cost, delay and complexity. In the new process, started in April 1999, an assigned judge actively manages the case throughout, with a view to achieving settlements wherever possible, rather than court hearings. It is intended that delay of any kind will not be tolerated in the new regime; co-operation will be encouraged, rather than the previous adversarial approach. Clinical negligence and personal injury are the largest areas of civil litigation and protocols have been formulated to streamline the process in these areas. New cases are assigned to judges along one of three action tracks, in accordance with information provided by the plaintiff. . Small claims ± covers the least complex cases and where the amount of compensation claimed is up to £5000. Personal injury claims of between £1000 and £5000, however, will be conducted either as a single session hearing or a paper judgment.

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. Fast track ± for most cases, where they are more complex and compensation claims are up to £15,000, if they can be one-day trials with no expert evidence. . Multi-track ± for the most complex of cases and those with very high claims (O'Hare et al. 2000: 9) From a positive perspective, it is reported that the new Rules have encouraged earlier identification of issues, greater willingness to settle disputes and greater use of impartial expert witnesses, by the appointment of single joint experts (J S Publications 2003). Despite the changes, however, it is thought that little improvement has occurred with regard to speeding up the overall process; in fact, it is thought to have become more bureaucratic, because of a lack of IT resources (J S Publications 2003).

The structure of the civil courts The court system is hierarchical, from the Magistrates' Courts to the House of Lords, with lesser cases heard in the lower courts and the opportunity to appeal then being heard through the higher courts. Claims of a small nature are heard at County Court level but most obstetric cases are of a serious nature and will be referred to the High Court in the Queen's Bench Division. Appeals from both the County Court and High Court are referred to the Court of Appeal (Civil Division), although some cases are able to bypass directly to the House of Lords. There is also the possibility of an appeal to the European Court of Justice, if an important issue of European law is involved (see Fig. 1.1).

Public law The criminal court system As with the civil courts, the criminal courts operate on a hierarchical basis, with lesser cases being heard by the Magistrates' Courts and more serious cases heard in the Crown Court. The appeal mechanism is similar, from the Court of Appeal (Criminal Division) through to the House of Lords. There is a right of appeal from the Magistrates' Court to the Crown Court, but only for the defendant. For a case to go forward to appeal against conviction and/or sentence from the Crown Court and beyond, permission must be sought and granted. An appeal by the defence or prosecution takes the form of a review of the reports of the case; the case is not heard again. It is fortunately rare for cases relating to the provision of health care to be the subject of criminal proceedings. However, there have been some notable cases that led to enquiries that resulted in policy changes. For instance, the case of Beverley Allitt, a nurse with Munchausen syndrome by proxy, who was responsible for a number of cases of infant and child mortality and morbidity, led to the Clothier Report (DH 1994), which has resulted in `Clothier clearance' being sought alongside police clearance for people entering the health care professions. Such clearance includes formal health clearance, where special attention must be given to any history of major personality disorder. Also the case of Dr Harold Shipman,

14

The Law and the Midwife European Court of Justice

House of Lords

Court of Appeal (Civil Division)

High Court Chancery Division

Family Division

Queen’s Bench Division

Divisional Courts

County Courts

Fig. 1.1

Magistrates’ Courts

Supervision of other courts and tribunals

The civil court system for England, Wales and Northern Ireland.

the GP found guilty of murdering a number of his patients, mainly female, has led to concerns regarding single GP practices (see Fig. 1.2).

Constitutional law This part of the public law relates to cases where the mechanisms of the state are involved, including the law relating to welfare services, public corporations and the functions of local government. It is of fundamental importance in that it incorporates the rights and liberties of the individual within the state. In general, where individuals believe they have been deprived of their civil liberties or where an administrative decision appears to have been made in breach of the principles of natural justice, it may be possible to apply to the High Court to seek redress through the process of judicial review.

The Coroner's Court Coroners' Courts date back to at least 1194 and are no longer part of the criminal courts system (Slapper & Kelly 2000: 95); however, they function within public law. The Coroner, usually a lawyer and sometimes a doctor with qualification(s) in law, is an officer of the Crown whose jurisdiction encompasses deaths in suspicious circumstances. This would include unnatural, unexpected or violent deaths.

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House of Lords

Queen's Bench Division Divisional Court

Court of Appeal (Criminal Division)

Crown Court

Appeal

Magistrates' Courts

Committal for trial

Preliminary hearings before magistrates

Fig. 1.2 The criminal court system for England, Wales and Northern Ireland.

Suspicious circumstances are defined in broad terms and could include some deaths in hospital. The Coroner usually sits alone but, in some circumstances, a jury is present to support the decision of the court. The Coroner's judgment is confined to the cause of death and does not apportion blame to any person. However, this judgment may lead directly to criminal charges and a subsequent trial. People who are required to attend a Coroner's Court do so as witnesses and, as such, they are not entitled to representation. Any midwife finding herself in this situation, perhaps in the case of a maternal death or where a baby born before the arrival of the midwife or medical practitioner (BBA) is stillborn, may wish to have her Supervisor of Midwives or her professional body representative with her for support.

Other resolution systems Tribunals In addition to criminal and civil courts, there are various tribunals that operate within the legal system. Those most likely to reach the attention of midwives are tribunals dealing with Social Security benefit claims or employment tribunals (ET), dealing with employment issues. The Chair is usually a lawyer and the two lay members of the panel represent expertise in relevant areas. For instance, in an ET, where the appellant is claiming unfair dismissal, there would be two panel members with knowledge of industrial relations; one member would represent a management perspective, with the other representing the staff side view. The function of a tribunal is generally thought to be one of adjudication without using the full complexity of the formal courts of law. Tribunals are usually cheaper to operate and resolution of disputes is usually reached more quickly.

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In an ET the panel is not there to re-judge a case, it is there to judge the process. For instance, if a midwife was dismissed for what the NHS Trust judged to be gross misconduct, the panel members would review the relevant Trust's disciplinary policy and procedures. They would consider all the documentation from each level of the internal process, consider all the evidence, question witnesses and so on. They would not be in a position to judge whether the midwife's action or inaction was misconduct. They would assess the process followed to see whether it was in line with the policy and procedures laid down; also, they would consider whether dismissal was the appropriate disciplinary measure. Initial appeals against tribunal decisions can be reviewed by the tribunal itself, where the grounds of the appeal are related to procedure. Any appeals on points of law must be taken to the Employment Appeal Tribunal (EAT), where the case is reviewed by a High Court judge with two lay members representing employers and employees (White 1999: 361). The ombudsman system Another arena for dispute resolution is the ombudsman system, where citizens can follow through complaints that they feel have not been properly dealt with. There is a Health Service Ombudsman who, with the aid of internal and external professional advisers, has the power to investigate complaints from patients. This system will be discussed further in Chapter 4, when dealing with NHS accountability.

The legal profession There is often confusion outside the legal profession as to when to use what title ± should it be solicitor, lawyer or barrister? In England and Wales there are two branches to the profession, with different training and qualification, covering different areas of practice. They are all lawyers but undertake specialist training to become either solicitors or barristers (Rivlin 1999).

Solicitors Having achieved a suitable qualification, most commonly a law degree, the individual would undertake an assessed course in legal practice, followed by two years with a firm of solicitors, under a training contract (Rivlin 1999: 116±21). Solicitors offer a wide range of legal services and advice but often specialise in areas of particular interest, such as health care law or family law. Some firms of solicitors may have a number of specialists in different aspects of law, thus providing a wide range of expertise. As well as giving direct advice, their activities include drawing up contracts and preparing cases to be heard in court. They may undertake the role of advocate, presenting cases in the lower courts.

Barristers After legal training, a lawyer wishing to become a barrister-at-law, or counsel, must gain a place in one of the four Inns of Court, all housed in London, for specific

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training involving the Bar Vocational Course. Once qualified, barristers undertake at least a year of apprenticeship, known as pupillage. Then they are self-employed but often share premises with others, known as `chambers'. They have the right of audience in all levels of the court systems. After some time in practice, a successful barrister may be appointed as a Queen's Counsel (QC) by the Lord Chancellor, perhaps later becoming a judge.

The Lord High Chancellor This is the highest legal office in the British constitution and is the only party political appointment to the judiciary. The appointment is made by the monarch on the advice of the Prime Minister (PM) and the person can be replaced by the PM. As the appointment is party political, replacement occurs on the election of a new political party (Rivlin 1999: 178). The person holding this office is the Speaker in the HoL, a Privy Counsellor and a senior member of the Cabinet. The Lord Chancellor's office is responsible for nearly all appointments of judges and QCs.

The legal system in Scotland The principal law officer of the Crown in Scotland is the Lord Advocate; he and the Solicitor-General for Scotland advise the Crown and are its representatives in civil cases. It is customary for one of the advisers to hold a seat in one of the Houses of Parliament; if the Lord Advocate is not an MP, then he or she is usually given a life peerage to sit in the House of Lords. They are appointments made by the Prime Minister so the incumbents leave office if the government changes. The Lord Advocate is responsible for the prosecution of crime in Scotland. Both law officers form part of the Scottish Parliament but, if not members, they cannot vote (Shiels 1999: 32). Since devolution and the formation of the Scottish Parliament, a third law officer has been created: the Advocate-General. This officer's responsibility includes advising the UK government on Scottish law (Scotland Act 1998). Legal personnel in Scotland function under different titles from those in the other UK countries. Solicitors are law writers or agents; advocates equate to junior barristers or Counsel, becoming Senior Counsel on appointment as QC. There is the facility for solicitors with at least five years of experience in the courts to undertake further training and become Solicitor Advocates. Sheriffs and Sheriff Principals are appointed from any of these roles but must have ten years of experience (Shiels 1999: 32).

The civil system Starting with the lower courts, each local authority has a District Sheriff Court and these courts are grouped into six sheriffdoms, each with a Sheriff Principal, to whom dissatisfied clients would appeal. The highest court, sitting in Edinburgh, is the Court of Session, which is divided into two: the Outer House and the Inner House. The Outer House deals with first instance cases, often with a jury; the Inner

18


House mainly deals with appeals from the Outer House or the Sheriff Courts. There are also a number of specialist courts that are either formed within or can appeal to the Inner House (Shiels 1999: 17±18). Dissatisfaction in the Inner House may result in appeals to the House of Lords (see Fig. 1.3).

House of Lords

Court of Session Inner House Division 1

Outer House

Division 2

Sheriff Court

District Courts

Fig. 1.3

The civil system in Scotland.

The criminal system As with the civil system, the lower courts are District Courts, where minor crime is dealt with by justices of the peace. These courts equate to the Magistrates' Courts in England, Wales and Northern Ireland. More serious offences are dealt with by the Sheriff Courts, but where the potential sentence (where the case is heard before a sheriff and a jury) is no greater than an unlimited fine or a three-year prison sentence (Citizens Advice Bureau 2003). Very serious cases are heard in the highest criminal court, the High Court of Justiciary, before a judge and jury. This court also hears appeals from District and Sheriff Courts, but there is no facility for appeal to the House of Lords for criminal cases (see Fig. 1.4).

Using the legal processes The system of government The British system of government is a parliamentary democracy. The people are represented through their elected Members of Parliament (MPs), on a constituency basis. The political party with the majority of seats forms the government. The party leader, elected by the party members, will become the Prime Minister and will appoint the Cabinet, i.e. Secretaries of State and Ministers of State, mostly from elected members. Of the remaining parties elected to Parliament, the one with the

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House of Lords

High Court of Justiciary

Courts Martial Appeal Court

Sheriff Court

District Courts

Fig. 1.4 The criminal system in Scotland.

most members will form the Opposition, with a Leader and Shadow Cabinet. These people sit on the front benches in the HoC and all remaining MPs are known collectively as `backbenchers'. The government is accountable to Parliament for the development of policy and legislation. Supporting the government, and very influential in policy formulation and implementation, is the civil service. This is divided into departments or offices that support each Secretary of State; for instance, the Department of Health supports the Secretary and Ministers of Health. While civil servants are there to `serve', they also provide continuity and stability, particularly during changes of government following a general election or Cabinet reshuffles.

Lobbying for change Although it is theoretically possible for UK citizens to influence the law-making process through contact with local MPs, in reality this is a very difficult process. MPs usually hold `surgeries' in their constituencies, which are advertised in the local press. Their time is limited, however, and they have to listen to many competing interests. They also have interests of their own and of their party, as well as a need to satisfy majority wishes, in order to be in a strong position at election time. It usually needs a concerted and nationally led effort to bring pressure to bear on a busy government and Parliament. It is possible to engage a firm of professional lobbyists, often known as parliamentary consultants. They develop contacts, provide advice or advanced warning of proposals to their clients and express concerns to influential people on behalf of the client, but they are expensive. Alternatively, it can be done by setting up special interest pressure groups. They may be set up ad hoc for one specific issue but there are many established charities that act in this capacity. Charities such as MIND, MENCAP, SCOPE, NSPCC and Age Concern represent the interests of some of the most vulnerable members of society by meeting with ministers and MPs and by working with, or advising, Parliamentary Select Committees and the civil service. Organisations such as the

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Association for Improvements in Maternity Services (AIMS) and the Royal College of Midwives (RCM) have also been instrumental in bringing about change in maternity care provision. What follows is an example of how pressure was brought to bear to make a change in policy.

Changing maternity policy Background For some decades during and after World War II, there had been a slow change in maternity care with more women choosing to have their babies in hospital. The system still accommodated women's wishes to have their babies at home, while those midwives who worked in hospital still practised in an autonomous manner, working as colleagues with the obstetrician. Up to the late 1960s there was a network of small maternity homes and units where a woman could choose to have her baby. In 1970, a government-supported committee, under the chairmanship of Sir John Peel, reported on the maternity services. The report, Domiciliary Midwifery and Maternity Bed Needs (DHSS 1970), recommended that sufficient facilities should be made available for all women to deliver in consultant-led units. This report coincided with a variety of technical developments including electronic foetal monitoring and ultrasound scanning, although they were not in use everywhere at that time. Encouraged by government policy and generous funding, childbirth in hospital increased to nearly 100% in the space of a few years. Doctors took control of the technological developments and the midwife rapidly lost her autonomy. Midwifery was not organised at the time and many felt that it would disappear as a separate profession. As an indicator of the generally weak position of the midwife, it was the women, through organisations such as the National Childbirth Trust (NCT) and AIMS, who began to challenge the situation from their perspective. At the beginning of the 1980s, the Select Committee for Health and Social Services produced a number of influential reports. They were advised by obstetricians and, not surprisingly, their reports supported the investment in technology, even though they acknowledged that maternity care needed to become more `human' and cater for women's social and emotional needs. Universal hospital birth was supported. More and more women found it difficult to have a home birth and many of the smaller maternity units were closed as large, hospital-based, consultant-led units were opened.

A change in policy A pressure group of midwives with spirit was formed, the Association of Radical Midwives. It began to debate publicly some of the problems faced by midwives and to offer some solutions. One of the continuing strengths of the profession was the loyalty towards the RCM. The organisation has always enjoyed a high level of membership and thus has been able to claim that it represents the majority view. In the mid-1980s the RCM began to use this power to influence government. It began to adopt some very simple messages:

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. that women should have greater choice in childbirth . that the midwife should be able to practise autonomously in giving care to women with uncomplicated pregnancies . that the duplication of care that existed between midwife, general practitioner and obstetrician should be stopped . that the focus of care should shift to the community. To assist in promoting these messages, the RCM appointed a parliamentary and press officer and began an information campaign. It encouraged its branches to hold meetings before the general election in 1987. It targeted all new MPs after the election with its `manifesto' for maternity care. It approached a few MPs who agreed to act as an informal panel, raising matters concerning midwives in Parliament. It began to make regular contact with the national press through press releases and press conferences. It also began to train a network of local branch press officers who began to raise the profile of the midwife through the local press. In short, it began to enhance the image of the midwife and of the RCM itself.

The results The campaigns by both professional and non-professional groups produced slow but powerful results. In 1992 a Health Select Committee, chaired by Nicholas Winterton, reported its recommendations after a year-long study of maternity care. This committee invited two midwives to advise it alongside doctors. It concluded that choice for women should be available and that the midwife was the professional best placed to facilitate it. When a subsequent working party, chaired by Baroness Cumberlege, was charged with developing recommendations for future maternity services, a midwife was included. The expert group produced the report Changing Childbirth (1993), recommendations from which were to be achieved by 1998, which was thought to be the turning point for maternity care and midwifery as a profession. This example has indicated that policy changes can be made by continued pressure from professional and non-professional groups, although the road to success can be long and arduous.

The current situation Unfortunately, although policy was changed, the position for women and midwives has not changed greatly. Despite the efforts of maternity service providers and the varied, innovative women-centred schemes that were developed, the dreams that were attached to the change in policy have not been achieved. Most schemes, although very successful with regard to satisfaction for women and midwives, had to be abolished due to lack of resources, in terms of money and midwives. Following the Peel Report, funding was provided to ensure success but adequate funding did not follow Changing Childbirth and the revenue consequences of the schemes proved too great. It has not been a total disaster, however, as the general ethos underpinning care has changed and developments are occurring, albeit more slowly than we would

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like. There is more evidence of birthing centres and midwife-led units being developed; there is also national involvement of midwives in consideration of various aspects of normal birth. The current government is intent on moving policy forward and has put more funding into the service. In addition, in December 2002, the Health Committee decided to set up a subcommittee, chaired by Julia Drown, to further examine maternity services (Bonar 2003a). The final reports, published in July 2003, uphold the views of `Changing Childbirth' and indicate disappointment in the lack of progress in 10 years (Bonar 2003b). In summary, the lesson to be drawn from this example is that changes in government policy can be achieved using the parliamentary system if: . there is a very clear purpose or message that is supported throughout any campaign . the media are fully exploited to disseminate the message of the campaign . there is clearly focused activity at national and local levels . experts are used.

Summary This chapter has outlined the processes and structure of the law in the UK. It will form the basis for understanding how some of the specific areas of law, which are covered in later chapters, have come about. Understanding a little of the parliamentary process should enable midwives to recognise and take opportunities to influence government policy and legislation, particularly related to the midwifery profession and provision of maternity services.

Reader activity Make use of the Internet, particularly the government websites. . Look for current consultation documents and take an active part in developing policy (e.g. www.hfea.gov.uk). . Look at current Green and White Papers related to health and social services (www.doh.gov.uk). . Trace an earlier Green or White Paper through the process to enactment (www.doh.gov.uk).

References Bonar S (2003a) NHS takes centre stage in 2003. RCM News and Appointment; mid-January: 5 Bonar S (2003b) Health policy keeps politicians busy right up to summer. RCM News and Appointment; mid-August: 4±5 Citizens Advice Bureau (2003) www.adviceguide.org.uk DH (1994) The Allitt Inquiry (Clothier Report). HMSO, London DH (1998) Our Healthier Nation. The Stationery Office, London

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DH (1999) Saving Lives: Our Healthier Nation. The Stationery Office, London DH (2000a) Health Committee Second Report on Tobacco Industry and the Health Risks of Smoking. The Stationery Office, London DH (2000b) Stem Cell Research: Medical Progress with Responsibility. The Stationery Office, London DH (2001) HIV and Infant Feeding. The Stationery Office, London DH (2002) The Human Rights Act 1998 ± Case Studies in Health and Social Care. www.doh.gov.uk/humanrights/casestudies.htm DHSS (1970) Domiciliary Midwifery and Maternity Bed Needs (Peel Report). HMSO, London DHSS (1984) Report of the Committee of Inquiry into Human Fertilisation and Embryology (Warnock Report). HMSO, London DHSS (1992) Report of the House of Commons Health Committee. Maternity Services, Second Report (Winterton Report). HMSO, London DHSS (1993) Changing Childbirth: Report of the Health Committee on Maternity Services (Cumberlege Report). HMSO, London Hendrick J (2000) Law and Ethics in Nursing and Health Care. Nelson Thornes, Cheltenham Hughes B, Kaufman T (2001) Abortion in Northern Ireland: the law and the issues. RCM Midwives Journal; 4(8): 260±61. J S Publications (2003) www.jspubs.com/experts/ewire/itemtext.cfm Montgomery J (2002) Health Care Law, 2nd edn. Oxford University Press, Oxford NMC (2002) Code of Professional Conduct. NMC, London O'Hare J, Browne K, Hill R (2000) Civil Litigation, 9th edn. Sweet & Maxwell, London Rivlin G (1999) First Steps in The Law. Blackstone Press, London Shiels R (1999) Scottish Legal System. W. Green / Sweet & Maxwell, Edinburgh Silk P, Walters R (1998) How Parliament Works, 4th edn. Longman, London Slapper G, Kelly D (2000) English Law. Cavendish Publishing, London UKCC (1992a) Code of Professional Conduct. UKCC, London UKCC (1992b) Scope of Professional Practice. UKCC, London UKCC (1993) Midwives Rules. UKCC, London UKCC (1994) Midwife's Code of Practice. UKCC, London UKCC (1996) Guidelines for Professional Practice. UKCC, London UKCC (1998) Midwives Rules and Code of Practice. UKCC, London White RCA (1999) The English Legal System in Action, 3rd edn. Oxford University Press, Oxford

Statutes/SIs Abortion Act 1967 Adoption and Children Bill 2001 Adoption and Children Act 2002 Children Act 1989 Civil Procedure Act 1997 Civil Procedure Rules 1998 Congenital Disabilities (Civil Liability) Act 1976 Crime and Disorder Act 1998 European Convention on Human Rights in 1950 Health Act 1999 Health Professions Order 2001 (SI 2002 No. 254) Human Fertilisation and Embryology Act 1990 Human Rights Act 1998

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Maastricht Treaty 1992 Midwives Act 1951 Nurses, Midwives, Health Visitors Act 1979 Nurses, Midwives, Health Visitors Act 1992 Nurses, Midwives, Health Visitors Act 1997 Nursing and Midwifery Order 2001 (SI 2002 No. 253) Protection from Harassment Act 1997 Scotland Act 1998 Surrogacy Arrangements Act 1985 Treaty of Amsterdam 1997

Cases Bolam v. Friern Hospital Management Committee [1957] 2 All ER 118 Donoghue v. Stevenson [1932] AC 562 (HL)

Chapter 2

The Statutory Profession of Midwifery

In July 2002, midwifery in England and Wales celebrated its centenary as a profession regulated by statute. However, midwifery training started before 1902. According to Ridgway (2002: 756), there was a period from 1567 to 1662 when midwives were trained and licensed by bishops. For some reason training ceased at this time, then it started again in a small way in 1861, when Florence Nightingale initiated it into King's College Hospital (Parker & Collins 1998: 102). It ceased in 1868 but from 1872, because the London Obstetrical Society required it, midwives had to train, attend 25 labours and pass examinations (Parker & Collins 1998: 102). In order for the profession of midwifery to have a future, it is important that midwives are aware of its history ± reflective practice on a grand scale. This chapter, however, will only consider the legislation and its effects; for other aspects of the history, midwives can access other sources. The previous chapter outlined the effort needed to influence policy and legislation. It takes considerable, planned activity and change is rarely achieved rapidly. This was certainly the case for the group of women who took just over 20 years to campaign for midwifery legislation, having followed the same principles as outlined in Chapter 1. They had a single goal, they organised themselves, as the Midwives Institute, later to become the Royal College of Midwives, and they targeted the people with influence. They had opposition from the medical profession and from some nurses but, by arguing that a well-trained profession could improve the health of mothers and their babies, they were successful.

The Midwives Act 1902 The first Midwives Act received Royal Assent on 31 July 1902, 17 years before nursing achieved such status, in 1919. The first of its clauses stated: `From and after the first day of April one thousand nine hundred and five, any woman who not being certified under this Act shall take or use the name or title of midwife (either alone or in combination with any other word or words), or any name, title, addition, or description implying that she is certified under this Act, or is a person specially qualified to practise midwifery, or is recognised by law as a midwife, shall be liable on summary conviction to a fine not exceeding five pounds.'

26


A somewhat wordy statement, this clause took into account the fact that an immediate ban on uncertified midwives would be impractical and leave childbearing women unsupported. It is also evident from the wording that the legislators of the day were trying to close all loopholes that might allow an uncertified midwife to practise autonomously, rather than under the authority of a medical practitioner. This first Act applied only to England and Wales and its main provision was to set up a statutory body for midwives, the Central Midwives Board (CMB). It also included a clause prohibiting the attendance at childbirth of nonenrolled midwives from 1910 (Donnison 1977: 172). The original membership of the CMB reflected the difficulties experienced and the compromises that were eventually made in order to achieve the legislation. Non-medical appointments were for terms of three years and midwives were very much the minority in the membership: . four registered medical practitioners, one each to be appointed by the Royal College of Physicians of London, the Royal College of Surgeons of England, the Society of Apothecaries and the Incorporated Midwives Institute; . two persons (one of whom was to be a woman) to be appointed by the Lord President of the Council; . one person to be appointed by the Association of County Councils; . one person to be appointed by the Queen Victoria's Jubilee Institute for Nurses (Rosalind Paget); and . one person to be appointed by the Royal British Nurses Association (original dissenters indicated earlier). Powers given to the CMB by the legislation were: (1)

(2) (3) (4) (5)

to frame rules: (a) regulating their own proceedings; (b) regulating the issue of certificates and the condition of admission to the Roll of Midwives; (c) regulating the course of training, the conduct of examinations and the remuneration of examiners; (d) regulating the admission to the Roll of women already in practice as midwives at the passing of the Act; (e) regulating, supervising and restricting within due limits the practice of midwives; (f) deciding the conditions under which midwives might be suspended from practice; (g) defining the particulars required to be given in any notice under section 10 of the Act (which required notification of intention to practise); to appoint examiners; to decide upon the place where and the time when examinations should be held; to publish annually a Roll of Midwives who had been duly certified under the Act; to decide upon the removal from the Roll of the name of any midwife for disobeying the rules and regulations from time to time laid down under the


(6) (7)

27

Act by the CMB, or for other misconduct, and also to decide upon the restoration to the Roll of the name of any midwife so removed; to issue and cancel certificates; and generally to do any other act or duty which might be necessary for the due and proper carrying out of the provisions of the Act.

One of the first tasks of the CMB was to establish the Roll of Midwives. The criteria for entry to the Roll were that the midwife should: . be in possession of a recognised qualification in midwifery, the certificate of the London Obstetrical Society being one of the acceptable qualifications; or . have been in bona fide (genuine) practice as a midwife for one year and be of good character; or . meet the requirements of the CMB for training and examinations.

The Midwives Rules ± early versions The CMB then formulated rules for the practice and training of midwives, the first set being issued in 1903. As midwives worked as independent practitioners, paid directly by their clients, the CMB had to determine ways in which it could enforce compliance with these rules. It devised a system of statutory supervision of the practising midwife; the origins and subsequent development of this unique form of professional regulation are covered in the next chapter. The rules laid emphasis on cleanliness in practice and one of the rules, in the version of 1919, could be relevant for today's advice on protection against bloodborne diseases: `The midwife must be scrupulously clean in every way, including her person, clothing, appliances and house; she must keep her nails cut short, and preserve the skin of her hands as far as possible from cracks and abrasions.' The 1919 version also set out the requirements for summoning medical aid, which the midwife was required to do: `. . . in all cases of illness of the patient or child, or of any abnormality occurring during pregnancy, labour or lying-in [puerperium].' A list of conditions was then given for which this rule would apply. Comparison of this list with what currently constitutes an abnormality indicates that, in most cases, the problems are the same; it is only their magnitude that is different. The main difference is the absence of fetal problems. Another interesting point in this version of the Rules is included in the section relating to various notifications that midwives had to make to the Local Supervising Authority (LSA). Along with notifications of when medical aid had been sought or where there had been a stillbirth, neonatal death or maternal death, there was one that required the midwife to notify the LSA `whenever it is proposed to substitute artificial feeding for breast feeding'.

28


Subsequent legislation and review In 1915 the Midwives (Scotland) Act was passed, which was followed in 1918 by the Midwives Act (Ireland), each with their own regulatory boards. When Ireland was partitioned in 1922, a Joint Nurses and Midwives Council (Northern Ireland) Act set up a joint statutory body for the two professions. Also in 1918, a further Midwives Act, for England and Wales, added to the CMB's powers the right to suspend midwives from practice, whereas the initial Act only allowed for removal from the Roll. Another Midwives Act was passed in 1926 but no major changes occurred.

Midwives Act 1936 This Act came into force on 1 June 1937 and amended the previous Acts, rather than creating a completely new Act. This piece of legislation introduced a salaried midwifery service; local authorities would be responsible for the provision of a midwifery service and they would employ midwives to carry out the functions of that service. Proper conditions of employment were provided, albeit not what midwives today would tolerate, but the principles were there: duty times, salaries and pensions, annual leave, uniforms and equipment (Parker & Collins 1998: 104). However, authority employment was not compulsory; midwives could still be independent practitioners, although many sought the relative stability of paid employment and working independently became increasingly precarious. Section 1 of the Act stated: Ìt shall be the duty of every local supervising authority within the meaning of the Principal Act . . . to secure, whether by making arrangements with welfare councils or voluntary organisations for employment by those councils or organisations of certified midwives as whole time servants or by itself employing such midwives, that the number of certified midwives so employed who are available in its area for attendance on women in their own homes as midwives or as maternity nurses during childbirth and from time to time thereafter during a period not less than the lying-in period, is adequate for the needs of the area.' This Act was, of course, prior to the establishment of the NHS, so there was no such statutory provision for hospital care. Midwives were, however, employed in the voluntary and private hospital sectors. This amending Act also stated the qualifications for medical and non-medical supervisors of midwives and empowered the CMB to make rules regarding the updating or `refreshment' of midwives. These issues will be considered in the next chapter.

Midwives Act 1951 This Act consolidated all previous Midwives Acts into one. No major changes in the statutory position of midwives were made; the statutory framework remained in place, with the CMB carrying out its designated functions, after


29

consultation with the relevant boards in Scotland and Northern Ireland, on a UK basis.

Report of the Committee on Nursing (Briggs Report) In 1970 a committee was set up under the chairmanship of Professor Asa Briggs, with the following terms of reference: `To review the role of the nurse and the midwife in the hospital and the community and the education and training required for that role, so that the best use is made of available manpower to meet present needs and the needs of an integrated health service.' The report (DHSS 1972) was presented to Parliament by the Secretaries of State for Social Services for England, Wales and Scotland; it applied, therefore, to all three countries. It made many far-reaching recommendations, some of which were subsequently taken up. Many were, as the terms of reference indicate, about the provision of education, but some referred to the statutory framework for the professions. The Committee stated: Àt present there is a wide range of bodies concerned with nursing and midwifery education and directly or indirectly, therefore, with the future of the profession. Some are statutory bodies; others have wide experience and carry out teaching and/or research activities . . . It is in no sense because we fail to recognise the achievements of these bodies that we recommend that in the interests of the profession there should be one single central statutory organisation to supervise training and education and to safeguard and, when possible, to raise professional standards.' On considering midwives, it rejected the continuation of a separate statutory body but stated: Àt the same time we recognise the existence of real and important differences between nursing and midwifery. After careful consideration, we conclude that there are aspects of midwifery practice on which a body dealing also with all aspects of nursing could not rightly pronounce . . . We recommend therefore the setting up by statute of a Standing Midwifery Committee of the Central Nursing and Midwifery Council.' The Committee also recommended that there should be National Boards in each country of the UK to cover the whole of nursing and midwifery education. These recommendations were incorporated into the Nurses, Midwives and Health Visitors Act 1979.

Sex Discrimination Act 1975 Until 1975, midwifery, as opposed to obstetrics, had been an all-female profession. The passing of the Sex Discrimination Act meant that men could train to be midwives, just as women could be trained for areas of work previously deemed to be male (section 20). However, their working freedom was restricted.

30


The Nurses, Midwives and Health Visitors Act 1979 The introduction to the Act stated: Àn Act to establish a Central Council for Nursing, Midwifery and Health Visiting, and National Boards for the four parts of the United Kingdom; to make new provision with respect to the education, training, regulation and discipline of nurses, midwives and health visitors and the maintenance of a single professional register . . .' This Act was one of the last to pass through Parliament before the resignation of the Labour government led by James Callaghan. With its passing, the CMBs for England, Wales and Scotland were dissolved, along with the Joint Council in Northern Ireland and numerous other statutory and quasi-statutory bodies. They were replaced by the United Kingdom Central Council for Nursing, Midwifery and Health Visiting (UKCC). Four National Boards were constituted with members elected by the three professions and then elected members from the Boards were chosen to represent each country on the UKCC. Other places on the UKCC were filled by appointees of the Secretary of State to make the final membership of 45. The main functions of the Council were given in section 2 of the Act. (1) (2) (3) (4) (5) (6)

The principal functions of the Central Council shall be to establish and improve standards of training and professional conduct for nurses, midwives and health visitors. The Council shall ensure that the standards of training they establish are such as to meet any Community obligation of the United Kingdom. The Council shall by means of rules determine the conditions of a person's being admitted to training, and the kind and standard of training to be undertaken, with a view to registration. The rules may also make provision with respect to the kind and standard of further training available to persons who are already registered. The powers of the Council shall include that of providing, in such manner as it thinks fit, advice to nurses, midwives and health visitors on standards of professional conduct. In the discharge of its functions the Council shall have proper regard for the interests of all groups within the professions, including those with minority representation.

These functions, though phrased slightly differently, and expanded with regard to post-registration training, are not dissimilar from the original functions of the CMB. Section 6 of the Act stated the responsibilities of the National Boards, which are outlined below: . approving training courses, arranging examinations and awarding qualifications; . approving refresher course for midwives; . investigating allegations of professional misconduct and referring cases when necessary to the UKCC;


31

. advising Local Supervising Authorities (LSAs) on matters relating to the supervision of midwives; and . receiving notification of intention to practise forms and passing this information to the UKCC. The Act also set up Midwifery Committees at the UKCC and National Boards; the UKCC was charged with consulting the Committee òn all matters relating to midwifery'. Rules relating to midwifery practice were not to be approved by the Secretary of State unless they were framed in accordance with recommendations of the Council's Midwifery Committee. Similarly, each Board was to consult its Committee regarding all midwifery matters. The Act determined that there should be one single Professional Register divided into sections, known as `parts', for the different qualifications and trainings. The parts were not determined by the Act but by the Secretary of State at a later stage. The midwifery qualification was assigned part 10. Section 15 of the Act laid down other provisions for midwifery practice, including notification of intention to practise, suspension from practice and attendance at refresher courses. Section 16 dealt with statutory supervision. In section 17, the Act upheld the previous statutory position regarding attendance by unqualified people: À person other than a registered midwife or a registered medical practitioner shall not attend a woman in childbirth.' This position did allow for students of the stated professions to undertake care. However, the Act still banned attendance by male midwives, `. . . except in a place approved in writing by or on behalf of the Secretary of State'. This position was overturned by secondary legislation (SI 1983 No. 1202), effective from 1984. The primary legislation having been enacted, the UKCC then took up the regulatory function of the three professions and all previous statutory bodies were disbanded. Norman Fowler, Secretary of State at that time, presented the Statutory Instrument for parliamentary approval of the Nurses, Midwives and Health Visitors Rules (SI 1983 No. 873), part 5 of which laid down the Midwives Rules.

The Nurses, Midwives and Health Visitors Act 1992 Apart from changing the constitution of the Council and National Boards, this amendment Act brought about major changes in professional regulation, in effect streamlining functions and activities. A firm of management consultants, Peat Marwick McLintock, was appointed to review the overall regulatory structure. This firm determined that an unnecessary level of bureaucracy was evident, causing delay in the processing of information and professional conduct investigations. The enacted changes meant that investigation of alleged misconduct would be undertaken directly by the UKCC committees, rather than by the National Boards first. Also, the forms notifying intention to practise were to go directly from the LSAs to the UKCC. The National Board functions were then focused on all aspects of professional education, including approval of courses and institutions undertaking clinical aspects of training.

32


The Nurses, Midwives and Health Visitors Act 1997 This Act was one of consolidation, creating one document of the initial Act and its subsequent amendments, and came into force in June 1997. The Act had a short existence in this form, as the government commissioned an independent review of the Act, by J M Consulting Ltd, which reported in February 1999. The main recommendations of this report involved the replacement of the UKCC and National Boards by one smaller Council, UK wide. This body would oversee all aspects of professional education, training and conduct and would have greater lay representation. This review was undertaken during a period of review of the NHS in England, Wales and Scotland, which started at the end of 1997 with the publication of the White Paper The New NHS (DH 1997), and concluded with Royal Assent for the Health Act 1999 on 30 June 1999 and the National Health Service Reform and Health Care Professions Act 2002 on 25 June 2002.

Health Act 1999 This Act implemented the aspects of the proposals for NHS change that required primary legislation. Its main purpose was to change the running of the NHS, including: abolition of GP fund holding; amendment of the NHS Act 1977 to establish Primary Care Trusts (in England and Wales) and the NHS and Community Care Act 1990 regarding the purpose of NHS Trusts; improvement of quality of care and the establishment of the Commission for Health Improvements (c6). In addition to these changes, it became the primary legislation for the regulation of all health care professions (Part III, s60 and Sch 3). One effect was that specific regulation of the professions would be achieved by Orders in Council. For the future, any required amendments would be facilitated more swiftly through the route of secondary legislation, i.e. by Statutory Instrument, rather than the lengthy process related to primary legislation. Therefore, our professional regulation has become the responsibility of the Privy Council, in line with other health professionals, rather than Parliament as a whole (c9). Another effect of this aspect of the Act, following on from the first, was the repeal of the Nurses, Midwives and Health Visitors Act 1997, on approval of the Nursing and Midwifery Order 2001 (SI 2002 No. 253). The Health Act gave powers to the Secretary of State for Health to submit Orders that would improve services, taking account of public expectation and the views of the professions. However, these powers did not extend to the abolition of existing professional bodies, or those newly established by the Act itself, or the removal of their statutory functions (c344/345). Therefore, professional regulation could not be abandoned on the whim of a particular individual in that powerful office. Over a number of years there had been attempts by some midwives to get midwifery separated from nursing and health visiting, returning to a separate Midwives Act. They were not successful in stirring up enough passion in the whole body of midwives and, even if they had been, the intended direction of successive governments, particularly the Labour government that processed the most recent legislation, was to avoid separatism. Indeed, had these midwives been successful in earlier attempts, with the passing of the Health Act, midwifery would most


33

probably have been brought under the Health Professions Order, where it would have had to fight its corner against many other professions, not just two. In July 1999, one month following Royal Assent for the Health Act, the government produced a document explaining the future roles of nurses, midwives and health visitors in its strategy for improving the NHS: Making a Difference: strengthening the nursing, midwifery and health visiting contribution to health and health care. For midwives it indicated not only that their role was seen as vital, but that the government recognised that they play a large part in health promotion and education. The intention was to broaden their remit still further (DH 1999: 66, NHS Executive 2001: 3). This document also indicated the importance of professional self-regulation within the government's plan.

Nursing and Midwifery Order 2001 (SI 2002 No. 253) From a practical point of view, this is the legislation that governs the midwifery profession. It covers the areas that were previously covered by the Nurses, Midwives and Health Visitors Act 1997, including the position regarding attendance by unqualified people (which changed from section 17 of the 1979 Act to section 16 in 1997), in Part IX, section 45. The Order provides for a new governing body, the Nursing and Midwifery Council (NMC), and a new structure to the Professional Register. The legislation required the Register to be in two parts, with the option of a third. Following a consultation exercise, the decision was made to have three parts, one each for midwifery, nursing and public health practitioners. This decision opens the way for a new health profession by `direct entry'. Current practitioners who are already trained in that field, such as some health visitors, will have to provide evidence of the required competences before being admitted to the new part of the register. During the preparation of this Order, there was a three-month informal consultation period that led to the production of the Draft Order in April 2001, then further formal consultation before presentation of the final SI. There had been a great deal of anxiety for midwives, most of which will not be discussed here. However, it is important to note that, had it not been for the midwifery response, co-ordinated and hard fought by the RCM, the existence of a Statutory Midwifery Committee would have been lost and midwifery interests would not have been protected. Eventually the battle was won and the Committee established; it was to have consultation rights and a professional majority in determining all midwifery matters. Another hard-fought battle was that to retain statutory supervision, although there were some midwives who would have preferred to lose what they considered to be a professional straitjacket.

National Health Service Reform and Health Care Professions Act 2002 This Act, along with further organisational reforms, provided the legislation to set up an overarching regulatory body, the Council for the Regulation of Health Care Professions. Functions of this Council include the formulation of principles of selfregulation, for all regulatory bodies to conform to, and promotion of co-operation between regulatory bodies (Part 2, s25(2)). Effective functioning of this Council

34


would create greater equality of treatment of the different professional groups, by auditing disciplinary action taken, receiving complaints and hearing appeals from practitioners. However, it cannot interfere in a regulatory body's determination of cases relating to fitness for practice. What it can do in this regard, if complaints are made about the professional body, is refer the case to the High Court if there are concerns for public protection.

The Nursing and Midwifery Council The membership of the NMC is laid down in Schedule 1, Part 1 of the NMC Order. . Twelve registrant members, to be appointed following election by the professions. These members were initially appointed by the Secretary of State until an electoral system could be established. The 12 members comprise one representative of each of the three disciplines of nursing, midwifery and health visiting, for each of the four countries of the UK. The Order lays down the criteria for eligibility for prospective candidates. . Twelve alternate members, also appointed in the first instance, later to be elected. This band of deputies is to ensure that, wherever possible, there is always representation for each discipline and country, while maintaining continuity. The original intention was for these members to attend only in the absence of the registrant member; however, the eventual decision was that they attend all Council meetings and contribute to the proceedings, but without voting powers (Lewis 2002a: 455). It is only in the absence of the primary member that the alternate member may vote. Eligibility criteria are the same as those for the primary members. . Eleven lay members, appointed by the Privy Council, at least one of whom to represent each country. These members must be truly lay, having never been on any part of the Professional Register regulated by the NMC. Members would be appointed for the value that they can add to the NMC, related to their areas of interest and expertise. Each member's term of office is four years, therefore, elections for registrant and alternate members will be four yearly. The initial NMC that was set up spent its first year in a shadow position, allowing for a period of overlap with the UKCC. This organisational move was essential, in order to maintain effective regulation while the new body determined its future structure and developed its policies and standards (Thomas 2002: 16). The structures, functions and working practice reforms that the shadow NMC identified had to be in line with the NHS Plan (2000) (DH 2002). Although the membership numbers stated have been laid down in legislation, provision was also made for a change in size and composition should a NMC proposal be accepted by the Privy Council (s5). However, any such change must maintain the balance between registrant and lay membership and each UK country must be represented by both. One of the functions of the NMC, as with the UKCC before it, is to translate the relevant secondary legislation into readable directive and guiding documents for its practitioners. The first such document published by the NMC was a new ver-


35

sion of the Code of Professional Conduct (2002), outlined below, the last having been published by the UKCC ten years previously. The shadow NMC developed this new document and it came into force on 1 June 2002, just two months after it became the formally established professional body.

The Code of Professional Conduct In addition to the specific midwifery documents discussed below, midwives are guided, along with their nursing and health visiting colleagues, by this Code of Conduct, which has both ìmplications and imperatives' for midwives' practice (Lewis 2002b: 30). The clauses in this document are, therefore, phrased in a general manner, in order to apply to all practitioners governed by the NMC. The document clearly indicates to the practitioners themselves, their employers and the public the standard of care expected of the relevant professionals and also the individual's accountability for her practice (Dimond 2002). The UKCC's version of the Code had been very brief and, over time, it published a number of documents that each expanded on one clause of the Code, providing explanation and guidance. In another phase of updating, it put a number of the original guidance documents into just one. The NMC has taken another approach, incorporating the explanations into the Code itself and removing many of the guidance documents. This approach should help midwives particularly, as they already have two other documents with which they must be familiar. The Code of Professional Conduct (NMC 2002) also provides an ethical underpinning to practice. It covers accountability in general, but also specific areas: . . . . .

respect for individuals obtaining consent and respecting refusal maintenance of knowledge and competence being trustworthy risk identification and management.

Paul Lewis, the alternate member for midwifery on the NMC at the time, gives examples of how these specific areas apply to everyday practice. He also states that the standards set by the Code are no more than `whispers in the wind' unless we apply them ourselves and audit our own practice (2002b: 30). In addition to this professional Code, midwives have two `midwife-only' documents to consider, as indicated earlier, and they are outlined below.

The Midwives Rules The Midwives Rules are determined under a Statutory Instrument. In essence, they translate the governing principles of the parent legislation into a working document. The document is amended by further SIs after the parent legislation changes or when there is the need to provide clear direction related to new or evolving issues. Until 1986 the rules were specifically restrictive in some respects; even in the 1983 edition, there were headings such as `Restrictions of treatment' (UKCC

36


1983, s3, p15). Initially these restrictions were necessary, as midwifery was moving towards better educated and more professional practice. They served their purpose at the time. However, for practice to move on it became necessary for the rules to be sufficiently broad to allow development and innovation, while still maintaining boundaries of safe practice. In some cases the only real change was to remove the headings of `Restrictions' and replace them with something that generally described the function under comment, as the wording could then be interpreted more flexibly. Some midwives still maintain that the rules are too restrictive; speculation on the possible reasons for this will not be entered into here. Before the demise of the UKCC, Rule 33 (related to pre-registration education) was under review. There was wide consultation on the Council's recommendations with regard to this rule. One recommendation was to remove the detail from clause 3(c). Some people felt that such detail was not necessary; that removal of it would allow for changes to be made without the delay caused by preparation and approval of an SI. Others were concerned that removal of the detail could result in too much variation in interpretation, with the possible loss of vital aspects of education and training. It could also mean that higher education institutions might decide that there was no longer sufficient difference from nursing to maintain a specific midwifery programme. After the consultation, the UKCC decided to leave the final decision to the incoming NMC, as it would have to work with the decision. The Midwives Rules, as a document, covers the education and registration of prospective midwives, followed by rules to govern practice once a midwife is admitted to the register. These Practice Rules cover the following areas.

Rule 36: Notification of Intention to Practise The Rules require midwives to notify appropriate LSAs of their intention to practise within that authority's boundaries. This rule applies to any qualified midwife whose post requires her to hold that qualification, including clinicians, midwifery managers, educators, midwifery researchers and those in specialist posts in bereavement, fetal medicine, early pregnancy units and so on, whether in NHS or private practice. This annual notification is in addition to the three-yearly registration required of all NMC professionals and is intended to provide each LSA, and eventually the NMC, with information on exactly who the practising midwives are at any given time. Notification must be submitted by the end of March each year and, in recent years, the appropriate forms have arrived during February, with most details already completed. Midwives then complete various sections including all the LSAs, and trusts within them, in which they intend to work. For many midwives this will be only one Trust in one LSA; for others, such as community midwives who cross borders, it would be two or more. For independent midwives, depending on their practice radius, there could be many LSAs and possibly Trusts involved. The original form, completed and signed, is submitted to the main Trust, for subsequent submission to the appropriate LSA, but the midwife must send a photocopy to any others that she has identified. Not all midwives are in post in March every year; there will always be those who are newly qualified, changing jobs or returning from maternity leave, who will


37

need to submit their forms at different times. The submission must be at or before taking up post or returning to practice. In cases of emergency practice in a different LSA, notification that practice was undertaken must be made within 48 hours of the event. Emergency practice is exactly what it suggests ± undertaking care of a child-bearing woman in an emergency situation, where there has been no time to plan for it. Such a situation could involve a neighbour seeking help if she has an antepartum haemorrhage or a precipitate labour at home, where the midwife lives outside her LSA boundary. Such activity could also occur when on holiday or out shopping. In any such situation the midwife should contact a Supervisor of Midwives (see Chapter 3) in the Trust that covers the place in question, to complete the form to give notification that she has practised in that LSA. The original purpose of this procedure related to the fact that midwives were all independent and, without such a system, LSAs could not possibly know who was practising. It is still necessary today but for different reasons. It provides something of a safeguard for the public, in that the LSAs and then the NMC can determine whether all those who have notified their intention to practise are currently on the effective Register and entitled to practise. The system would pick up those who are not entitled to practise in one LSA, such as those suspended from practice, or those not entitled to practise anywhere following interim suspension or removal from the Register. It would also pick up bogus midwives who have not been registered in the UK or the rest of the EU. Such a process in other health professions might prevent, or at least reduce, the incidents of bogus practitioners. The NMC's extra intended safeguard, from the management perspective, is that on or before appointment, the practitioner's personal identity number (PIN) should be checked to ensure that she is currently registered, but it would appear that this process is sometimes overlooked. As notification of intention to practise is a statutory requirement, it is an offence to practise without doing so, except in an emergency, which was dealt with earlier. A midwife's notification can only be refused if she has not complied with Rule 37 below.

Rule 37: Post-Registration Education and Practice (PREP) Since 1936 there has been a statutory requirement for midwives to update themselves professionally. Initially the updating was prescribed but, over time, more flexibility was included until, from 1 April 1995, it became a completely flexible, practitioner-led process that applied to nurses and health visitors as well. At the same time as introducing PREP, the professional body introduced threeyearly re-registration and the two were directly linked, in that the PREP requirements had to be fulfilled in order to be eligible for re-registration. There were a number of years of overlap, as midwives integrated the fulfilment of their statutory responsibilities under the old scheme of five-yearly updating with the three-yearly requirements of re-registration. However, as from 1 April 2001, all midwives had transferred to the PREP system of updating. Since that date, for a midwife to be able to re-register she must demonstrate a minimum of 35 hours of reflective updating during the preceding three years and a minimum of 100 days or 750 hours of midwifery practice during the preceding five years (UKCC 2001). She has to self-declare to the NMC that she has achieved

38


the requirements. A midwife who has had a break in practice or worked sufficiently part time that the practice requirements have not been met will need to undertake an approved return to practice course (UKCC 2001). Such courses are for a minimum duration of four weeks, depending on the length of absence and determined by the LSA midwifery officer. Such courses are 50% theory and 50% practice, at a minimum of academic level two, with clinical competences to be achieved. There is a system for the auditing of a small percentage of professional portfolios, which should hold the evidence of the PREP achievements. Having signed the declaration, should a practitioner be found to have declared falsely, the case would be investigated with regard to misconduct. In midwifery, however, very few cases of false declaration are likely to occur because of the safeguard of statutory supervision (see Chapter 3). Supervisors, at least at the annual review, would want to see evidence of the updating and practice hours where appropriate, such as bank or agency staff. Most midwives would offer the whole portfolio or relevant sections of it as their proof, although they cannot be compelled to, thus assisting them to stay within the statutory Rules.

Rule 38: Suspension from Practice by an LSA Suspension from practice can only be carried out by the LSA Officer, who has the statutory powers to do so. This action can only be carried out if the LSA Officer believes it necessary to prevent the spread of infection or if it is felt that the midwife is in breach of the Rules or Code of Conduct sufficiently to raise concerns regarding public safety, which could lead to the possibility of removal from the Register. The LSA officer must notify the midwife and the NMC in writing, including the reason for the action. The suspension is effective only in midwifery and within the boundaries of that LSA. Therefore, during the investigation of the case, a midwife could cross LSA boundaries to undertake bank or agency midwifery or, if she has current nursing registration, then she could undertake bank or agency work within the LSA boundary. Suspension from practice is totally different from suspension from duty. It has a similar immediate effect ± that of removal of the individual from the area of work during the course of investigation of one or more incidents. It is this similar effect that is probably responsible for some midwives being confused about the two kinds of suspension. This second type can only be carried out by the manager and is only effective in that particular Trust, as it relates to the midwife's employment. Suspension from duty is with pay and, unless the LSA has also suspended from practice, the midwife could undertake midwifery care in any other Trust in that LSA. It could be short or long term, depending on the circumstances. Suspension from practice, as stated above, must be notified to the NMC, whether related to conduct or health and it is indicated on the Register until such time as investigation and any action are complete. If the NMC believes the case to indicate that the midwife is a risk to public safety, then it can order an interim suspension from the Register, from one or all parts relevant to the individual practitioner. Some issues would only relate to midwifery, therefore suspension from part 10 of the Register would occur. However, some issues could relate to


39

care of anybody, such as cases of alleged abuse of women or babies, thus the midwife would be suspended from any part on which she was registered. This suspension is for up to three months, to allow initial investigation and determination of the need for further action while protecting the public. Such a suspension means that the midwife cannot practise anywhere where NMC registration is required, not just the relevant LSA.

Rule 39: The Duty to be Medically Examined Most midwives would determine for themselves when they have an illness where they could be deemed to be a risk to mothers and babies or even to colleagues. Sometimes midwives will soldier on, concerned that they will affect the staffing levels, and usually managers would send them home. This, strictly speaking, is suspension from duty but the term is rarely used in this situation because of the professional connotation. There could be times, however, when a midwife is thought to have an illness that is putting mothers and babies at risk but refuses to go off duty, perhaps worried about her sickness record, perhaps not willing to accept that she has a problem. There could be times when it is thought that someone is a carrier for an infection or where there are concerns related to mental health or suspected substance abuse, including alcohol. In any such situation the supervisor can insist that the midwife be seen by a medical practitioner.

Rule 40: Responsibility and Sphere of Practice This rule determines the breadth of autonomous clinical practice for which the midwife has responsibility. There are midwives who feel that the Rules are very restrictive; however, this rule covers any care or treatment that a midwife has been trained to give, whether in initial training or subsequently, related to pregnancy, labour, the puerperium and neonatal period. This is a very broad remit and allows for innovation and creativity, depending on the needs of mothers and babies, which could mean some variations in policies and practices in different areas. When the next edition of the Midwives Rules is published in 2004, it is possible that the breadth will have increased further, particularly with the government's intention that the public health remit should be increased (DH 1999: 66, NHS Executive 2001: 3). This rule makes it clear that the midwife must refer to appropriate practitioners in cases where there is a deviation `from the norm which is outside her current sphere of practice' (UKCC 1998a: Rule 40(3)). The 1998 edition of the Rules broke with tradition, giving midwives direct referral to a variety of practitioners in addition to GPs or obstetricians. However, it is still controversial, in that clause 3 indicates the need to refer to others when there is a deviation from `the norm'. What this term refers to is difficult to define as there does not appear to be any consensus. Also, the clause goes on to say `. . . which is outside her current sphere of practice'. It could be interpreted that, if the midwife has been trained to care or treat in certain situations, then that could be considered `the norm', such as midwives undertaking ultrasound scanning or vacuum extraction in certain circumstances (Tinsley 2001). As new aspects of practice become part of the mid-

40


wife's role, particularly in view of the changes in junior doctors' hours and responsibilities, it is essential that midwives have effective education and training in order to fulfil their responsibilities.

Rule 41: Administration of Medicines and Other Forms of Pain Relief This rule allows for midwives to administer any medication for which they have received appropriate education and training, either pre- or post-registration. However, this does not mean that midwives can prescribe all such medication. Midwives do have limited statutory prescribing rights, as determined by exemptions from certain requirements of the Misuse of Drugs Act 1971. The provisions for such exemptions are contained in secondary legislation in the form of the Misuse of Drugs Regulations 1985, SI 1985 No. 2066 and by the Prescription Only Medicines (Human Use) Order 1997 (POM Order), SI 1997 No. 1830. The items for which a doctor's prescription or other order is not needed are as follows. . . . . . . . . .

Ergometrine maleate Lignocaine Lignocaine hydrochloride Naloxone hydrochloride Oxytocins, natural and synthetic Pentazocine lactate Pethidine hydrochloride Phytomenadione Promazine hydrochloride

Such medicines can only be prescribed and administered within the boundaries of midwifery practice, as is the case with the use of inhalational analgesia, most commonly nitrous oxide and oxygen. Midwives have been able to administer this form of pain relief, as long as it was via apparatus approved for midwifery use by the professional body and the apparatus was properly maintained. Since June 1998 all medical apparatus has had to meet the requirements of carrying the CE marking, as laid down by the relevant EC Directive that came into force on 1 January 1995. At that time the approved apparatus for administration of inhalational analgesia included: . . . .

the original Entonox apparatus the PneuPac apparatus SOS Nitrox (midwifery model) the Peacemaker apparatus (UKCC 1995).

However, during the process of updating the rules, the NMC proposed that it was no longer necessary for it to give such approval. The Midwifery Committee felt that midwives were accountable for ensuring that any equipment used for this purpose has the CE marking and has been maintained. This view will undoubtedly be reflected when the new rules are published. This legislation requires strict control over supply, storage, use and destruction of the relevant drugs. It must be possible, by referring to the records relating to these drugs, to account for the total amount issued, administered, returned or


41

destroyed. In hospital settings midwives follow standard processes determined by the chief pharmacist. Changes in community practices, and the need to be alert to the dangers of carrying addictive drugs, have resulted in few midwives carrying their own drugs in the community. The exception is perhaps in large rural areas or in independent midwifery practice. It is more common, in some areas, for GPs to prescribe the required drugs for women planning home births, even though they may not be in support of the woman's choice of place of birth. Where midwives do carry drugs, such as pethidine, they could become out of date and they need to be destroyed in an appropriate manner. They can be returned to the pharmacy from which they were ordered or they can be destroyed in front of certain listed people. The most easily accessed person in the list is probably a supervisor of midwives; the destruction must be properly recorded. Where the drugs were prescribed for the woman by her doctor, they are her property and, if they are unused, it is her responsibility to deal with them. She can be advised to return them to the pharmacy where the prescription was filled or, perhaps a safer option, she can be advised to destroy them in the presence of the midwife. Midwives can also administer drugs under Standing Orders. Such Orders are general instructions, related to a list of drugs specified in the POM Order 1997 (i.e. Schedule 5 drugs). Such drugs, as agreed by relevant doctors, managers and supervisors, are listed on a Standing Order (SO), signed by the approving personnel, in order that a midwife can give a particular medication in specific situations, thus preventing an unnecessary delay in administration. On 9 August 2000 a new system was launched by the NHS Executive in a Health Service Circular ± Patient Group Directions (PGDs). These directions are `. . . written instructions for the supply or administration of medicines to groups of patients who may not be individually identified before presentation for treatment' (HSC 2000/026). These PGDs applied to a number of health care professionals and, initially, there was great confusion within midwifery, as it was thought that all drugs at that time administered under SOs would have to be reorganised into the new format. In fact, that was not the case. Investigation through the DH indicated that `The status quo for midwives remains including Standing Orders' (RCM 2001). PGDs would be needed, however, for appropriate drugs that were not Schedule 5 or listed for midwife prescription in SI 1997 No. 1830. By the time the confusion was cleared up, many Trusts, often instigated by supervisors, had undertaken much of the work of transferring to PGDs, so they continued and developed their methods of education and training for the midwives. It is important that midwives keep abreast of what they can give under which system or else they could find themselves in breach of the Rules. Also, some drugs are ordered to be given by a route that is unlicensed in the UK. Doctors can take responsibility for such orders and, once it is prescribed, as long as the midwives have familiarised themselves with regard to dosage, administration, contraindications and side effects, they can administer them. They cannot, however, administer such medication on their own authority. One such item is syntocinon by the intramuscular route. This synthetic form of oxytocin is licensed for intravenous use only, but obstetricians have taken responsibility for ordering its intramuscular use. It is commonly used either for all third-stage management or

42


for women with a diastolic blood pressure above a certain level. The fact that it might be seen as routinely used in some units does not mean that midwives can use syntocinon intramuscularly under their own responsibility, as in midwife-led care.

Rule 42: Records Record keeping is a key aspect of all professional practice. There is a tendency for midwives to consider record keeping as a defensive tool only, with a view to protecting them from what they consider to be a rapidly rising rate of litigation. While this point is obviously of great importance, professionally it is a negative view of the need for clear records. A more positive view relates to maintaining clear accounts of care, and discussions with women and other carers, to ensure adequate clarity and continuity. The guidance document on record keeping (UKCC 1998b) states that records should be às contemporaneous as is reasonable'. This statement recognises that records cannot always be written immediately, particularly during certain activities being undertaken, such as assisting with childbirth. In the case of emergency activity, such as haemorrhage, cord prolapse or shoulder dystocia, it is now normal practice to have one practitioner who will act as a scribe, writing times, activities, names of relevant people. Skills drills are practised, including the scribing, to ensure that everyone knows what to do in a real situation. The individual practitioners are still responsible for their own recordings after the event, but the notes made serve as a point of reference and a back-up. The professional body also suggests that the standard of a practitioner's record keeping is indicative of the standard of her care. It would appear that one of the most common reasons for midwives to appear before the NMC Professional Conduct Committee is their apparent failure to maintain adequate records. This aspect will be discussed further in Chapter 7. For legal purposes all records related to care of the child-bearing woman or the neonate must be kept for at least 21 years but, in effect, they need to be kept for 25 years (NHS Management Executive 1994). This point will be discussed in greater detail in Chapter 5. When midwives move away, retire or leave midwifery for any other reason, their records must be preserved. For midwives working in an NHS hospital setting this is not a problem, as the usual record storage system is used. However, community midwives also need to save their diaries, as records of visits, clinics and other entries that they make may also need to be referred to at a later date. Independent midwives will have case notes, diaries and other documents that need to be kept. If midwives have difficulty in storing these records themselves, they can either ask their employing authority to store them or the LSA. They will need a receipt to prove the transfer of the records.

Rule 43: Inspection of Premises and Equipment This rule, of major significance when all midwives were independent, is often considered to be redundant in current practice. However, this is not the case. The LSA must still be assured that appropriate hygiene and safety measures are


43

adhered to and that midwives are not using out-of-date equipment. In community practice, supervisors, on behalf of the LSA, should be aware of the conditions in which midwives work, for instance where they hold their clinics and how they store their equipment. If midwives carry drugs, their method of storage must meet the legal requirements. This is important for independent midwives too, especially as they will have responsibility for purchasing, storing and sterilising their own equipment. Ensuring safe and hygienic practices does not only relate to community practice. It is just as important in hospital settings, yet many midwives, even supervisors, overlook this requirement. Just because they practise within the hospital, this does not automatically ensure that drugs and equipment are dealt with safely, as shown by the number of drug incidents that occur because of improper storage. Hygiene in hospital settings can also be unacceptable, from inadequate domestic processes to sloppiness in hand-washing practices. In order to safeguard the public, it is still necessary to uphold this rule, even in the twentyfirst century; complacency can cause morbidity and mortality.

Rule 44: Supervision of Midwives The whole of Chapter 3 relates to the application of this rule, therefore nothing specific will be written here.

Rule 45: Discharge of Statutory Functions by a Local Supervising Authority The rule itself, in the way that it is written, suggests a very limited role for the LSA. It states that the LSA must provide written information, at least every two years, related to certain functions and processes. These include notification of intention to practise, investigation of suspected misconduct, appointed supervisors and the provision for supervision of midwifery practice. It must also issue any policies that it has produced. As stated before, these functions are carried out, on behalf of the authority, by a responsible officer and what appears to be a limited role, in the way that it is written, is in fact very full. This is particularly evident in the listed functions in the ENB publication Advice and Guidance for Local Supervising Authorities and Supervisors of Midwives (1999: 11±12). The midwifery officer also has to audit the supervision of midwives' practice in each area annually.

A Midwife's Code of Practice This Code, whether printed separately or as the second half of the document that includes the Rules, determines how the Rules should be upheld and provides an ethical underpinning to professional law (Montgomery 2002: 14). It provides explanations and standards appropriate to every midwife, regardless of her place or type of practice ± community, hospital, whether in the NHS, private or independent practice. Where the Midwives Rules had been restrictive until 1986, A Midwife's Code of Practice was prescriptive in its explanation of how to practise within the Rules. Until the UKCC's 1986 edition, the duties of the midwife in each stage of child bearing were specified, even stating the frequency of postnatal

44


visiting. The inclusion of the prescribed uniform for state-registered midwives died out a little earlier, as the UKCC's first Midwives Rules (1983) replaced the CMB's 1980 Rule Book. A Midwife's Code of Practice also lists the activities of a midwife as laid down in the European Union Directive 80/155/EEC Article 4, mentioned previously. This Directive states clearly the minimum activities that midwives should be able to undertake. The Directive is very important for UK midwifery. First, while it is in existence, we could not become obstetric nurses in the same way as some of our American colleagues, whereby the second stage of labour is managed by an obstetrician. Second, it should inform the educational programmes for preregistration student midwives, those returning to practice and the further development of registered midwives. Third, it should provide midwifery managers with a template for determining the appointment of new midwives. At the point of registration, all midwives should be fit for practice and purpose; therefore, they should be competent to undertake all of these activities, at a basic level, not with the level of expertise of someone who has been in practice for a few years. While managers may assume that, because the applicant has `passed' her course, she has been deemed fit for practice, it could be that she has only scraped through. This might suggest that the depth of knowledge may not support competent practice without close supervision. Also, the assessment processes in some institutions may allow compensation for some failed aspect(s) of the course in which case, unless there is absolute confidence in the robustness of the clinical assessment of competence, there could be some deficit. Managers and supervisors might, in such circumstances, want to work together to provide suitable experience during a preceptorship period. In addition to expanding on the practice rules, A Midwife's Code of Practice provides guidance with regard to home births, complementary and alternative therapies, maternal or perinatal death. It also makes it very clear that a midwife may not delegate her role or functions to anyone other than another practising midwife or a registered medical practitioner. Student midwives, student nurses (decreasingly allowed into maternity settings now) or student doctors obviously have to gain clinical experience if they are to become fit for practice on qualification; therefore, they are also included in those who can undertake midwifery activity. However, such activity must be under the appropriate level of supervision for their stage of training and their individual level of competence. The midwife remains accountable for the practice of the student and for responsible delegation of duties. The Code of Practice also gives a brief explanation of other legislation that is relevant to midwives. For instance, it briefly explains the reason why any records related to pregnancy, labour and birth need to be kept for such a long time, as indicated in Rule 42 above, i.e. the Congenital Disabilities (Civil Liability) Act 1976. This Act provides for a person to claim for a disability caused as a `consequence of some person's fault' during pregnancy or childbirth that caused harm or injury to the baby. A claim can be made on the child's behalf until the age of 18 years, after which time the individual has three years in which to claim for herself. Of course, a claim made shortly before the person's 21st birthday would not get to court immediately, hence records may have to be


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kept and interpreted for some years beyond the obvious 21. This point will be discussed further in Chapter 5. An interesting item in the Code relates to jury service and, in particular, midwives' exemption from it. Under Schedule 1, Part III of the Juries Act 1974, midwives are indicated in a shortlist of health care professionals (including veterinary personnel) who are èxcusable as of right' if they are in current registered practice. Presumably the reason for this is to prevent increasing the risk of staff shortages that could affect the public. In the days when midwifery was all community based, there would also have been the possibility of knowing many of the defendants or their families, or having to have very close contact with them at a later date.

Summary This chapter has looked at the first 100 years of midwifery, from becoming a profession in 1902, through the various changes in regulation by way of primary and secondary legislation, to the current position. From the beginning, its passage has not been easy. However, the more recent battles have shown that it is still a power to be reckoned with; also its function of protecting and promoting the health of mothers and babies is still highly valued. Included in the regulatory changes was the formation of the new professional body for midwifery, the NMC, and the main documents of direction and guidance. Particularly considered were the rules and codes by which midwives should practise, indicating the positive rather than restrictive nature of them.

Reader activity . Access the NMC website for up-to-date information on the membership and working of the Council. Who are the current registrant and alternate members for midwifery? (www.nmc.org.uk). . Read the latest quarterly newsletters and respond to any call for comment on midwifery or general issues. . Attend a Council meeting to see it in action. Dates are advertised in the newsletter. . Ensure that you are familiar with all the current Directives and guidance documents issued free by the NMC.

References CMB (1903) The Midwives Rules. CMB, London CMB (1919) The Midwives Rules. CMB, London DH (1997) The New NHS. HMSO, London DH (1999) Making a Difference: strengthening the nursing, midwifery and health visiting contribution to health and health care. HMSO, London DH (2002) Strengthened Regulation for Health Professionals. Press Release: 2002/0158

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DHSS (1972) Report of the Committee on Nursing (Briggs Report). HMSO, London Dimond B (2002) The new Code of Professional Conduct. British Journal of Midwifery; 10(7): 456±9 Donnison J (1977) Midwives and Medical Men. Schocken Books, New York ENB (1999) Advice and Guidance for Local Supervising Authorities and Supervisors of Midwives. ENB, London Lewis P (2002a) Protecting the public through professional standards ± an analysis of the role and responsibilities of the Nursing and Midwifery Council. MIDIRS Midwifery Digest; 12(4): 454±7 Lewis P (2002b) Implications and imperatives: the Code of Professional Conduct. Practising Midwife; 5(9): 30±1 Montgomery J (2002) Health Care Law, 2nd edn. Oxford University Press, Oxford NHS (2000) The NHS Plan. HMSO, London NHS Executive (2000) Patient Group Directions [England Only]. HSC 2000/026 NHS Executive (2001) `Making a Difference ± the nursing, midwifery and health visiting contribution.' Midwifery Action Plan. NHS Executive, London NHS Management Executive (1994) Preservation, Retention, and Destruction of Maternity (Obstetric and Midwifery) Records. HSG(94)11. DH, London NMC (2002) Code of Professional Conduct. NMC, London NMC (2003) Midwives Rules. NMC, London Parker ER, Collins M (1998) Learning to Care. A History of Nursing and Midwifery Education at The Royal London Hospital, 1740±1993. Royal London Hospital Archives and Museum, London RCM (2001) Nurse prescribing. RCM Network; December: 13 Ridgway S (2002) The birth of the midwifery profession. British Journal of Midwifery; 10(12): 756±60 Thomas M (2002) Achievements of the past ± a platform for building our future? MIDIRS Midwifery Digest; 12(1): 13±17. Tinsley V (2001) Rethinking the role of the midwife: midwife ventouse practitioners in community maternity units. MIDIRS Midwifery Digest; 11(Suppl 2): S6±S9 UKCC (1983) Handbook of Midwives Rules. UKCC, London UKCC (1986) A Midwife's Code of Practice. UKCC, London UKCC (1995) Approval of Apparatus of Inhalational Analgesia by Midwives. Registrar's Letter 31/1995. UKCC, London UKCC (1998a) Midwives Rules and Code of Practice. UKCC, London UKCC (1998b) Guidelines for Records and Record Keeping. UKCC, London UKCC (2001) The PREP Handbook. UKCC, London

Statutes/SIs Congenital Disabilities (Civil Liability) Act 1976 Health Act 1999 Juries Act 1974 Midwives Act 1902 Midwives (Scotland) Act 1915 Midwives Act 1918 Midwives Act (Ireland) 1918 Midwives Act 1926 Midwives Act 1936 Midwives Act 1951

The Statutory Profession of Midwifery Misuse of Drugs Act 1971 Misuse of Drugs Regulations 1985 (SI 1985 No. 2066) NHS Act 1977 NHS and Community Care Act 1990 NHS Reform and Health Care Professions Act 2002 Nurses, Midwives and Health Visitors Act 1979 Nurses, Midwives and Health Visitors Act 1992 Nurses, Midwives and Health Visitors Act 1997 Nurses, Midwives and Health Visitors Rules 1983 (SI 1983 No. 873) Nursing and Midwifery Order 2001 (SI 2002 No. 253) Prescription Only Medicines (Human Use) Order 1997 (SI 1997 No. 1830) Sex Discrimination Act 1975 Sex Discrimination Act 1975 (amendment of Section 20) Order 1983 (No. 1202)

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Chapter 3

The Statutory Regulation of Midwifery

The previous chapter outlined the process of achieving and maintaining professional status for midwifery distinct from other professions. The legislative framework aligns us with nurses and health visitors at one level and all other health care professions at another level. However, within this framework, midwifery is seen to have distinct differences from its allies. This chapter looks at the translation of the legislation into practical, everyday regulation.

The supervision of midwives Supervision in midwifery is a statutory function laid down in the Midwives Act of 1902 and it has been continued through all the legislation outlined in the last chapter; in other words it is part of our professional law. The Act required the designation of local supervising authorities (LSAs ± then the borough councils) and gave them statutory powers. The title Supervisor of Midwives did not feature in this Act but the LSAs were given the power to delegate their imposed powers to a committee on which women would sit. Over the years the process of delegation developed, moving from committees to individuals. However, it would seem that it was common practice to delegate this responsibility to a health visitor. In the Midwives Act 1936, further regulations for the process of supervising midwives were introduced. In 1937, a letter, signed by the Assistant Secretary, was sent from the Minister of Health to the LSAs to elaborate on the revised requirements for supervision. This letter is fundamental to the understanding of both the development of supervision and to some of the claims for its functions today. It is reproduced in full below, in order for readers to determine the thinking of the time, some of which appears insightful for that time, particularly the issue of supervision versus management that is indicated in point 7. `Sir (1) I am directed by the Minister of Health to enclose for the information of the Council copies of the Regulations which he has made under section 9(2) of the Midwives Act 1936, prescribing the qualifications of persons appointed by Local Supervising Authorities under Section 8 of the Mid-


(2)

(3)

(4)

(5)

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wives Act, 1902, to exercise supervision over midwives practising in their areas. The Regulations, which have been made after consultation with the Central Midwives Board and the Association of Local Authorities concerned, will come into operation on the 1st June next. It will be observed that the Regulations apply to persons appointed as Supervisors of Midwives on or after that date, but in view of the importance of entrusting this work to persons with the necessary qualifications and experience, the Minister suggests that each Authority should review their arrangements for the supervision of midwives and should take the earliest opportunity for effecting any changes which may be desirable having regard to the qualifications prescribed by the Regulations. This is of particular importance at the present time when the new service of salaried midwives under the Act of 1936 is about to be established throughout the country. The Department Committee on Midwives, which reported in 1929, pointed out that the inspection of midwives by a person without adequate experience of practical midwifery has a bad psychological effect upon the midwife, and reacts unfavourably on her methods of practice, as she is deprived of the opportunity for guidance on professional matters affecting the well-being of her patients which she would receive from a properly qualified inspector. In particular, the Committee strongly deprecated the employment as inspectors of midwives Health Visitors with little or no practical experience of midwifery. The Minister endorses these views, and it will be seen that the Regulations require that persons appointed in future to supervise midwives shall have had adequate experience in the practice of midwifery. The Department Committee also drew attention to the fact that an inspector of midwives should be regarded as the counsellor and friend of the midwives, rather than a relentless critic [my emphasis], and should be one who is ready to instruct the midwives in the various points of difficulty which arise from time to time in connection with their work and make them feel that there is always someone to whom they can look for sympathetic understanding of the laborious nature of their profession. The Minister feels that it is scarcely necessary for him to emphasise the importance of appointing persons who not only possess the necessary professional qualifications, but who also have the essential qualities of sympathy and tact, and he thinks it desirable that the title of Ìnspector of Midwives' should be superseded by that of `Supervisor of Midwives' which is that used in the Regulations. The Regulations prescribe qualifications for a Medical Supervisor, and a non-Medical Supervisor, respectively, and it is within the discretion of each Authority to appoint either one or the other, or both. But in large areas it appears to the Minister that the most desirable arrangement would generally be to appoint a Medical Supervisor, acting under the direction of the Medical Officer of Health, to exercise general supervision over the midwives practising in the area, and non-medical Supervisors to work under the instructions of the Medical Supervisor and perform the routine duties of supervision.

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(6)

(7)

(8)


The Minister appreciates that at the outset it may be difficult in some cases to secure Medical Supervisors who possess all the qualifications prescribed in Article 3 of the Regulations, and if necessary he will be prepared to consider the question of using the dispensing power which is contained in Article 5. He thinks it desirable, however, to point out that the words ``some branch of obstetric work'' in Article 3 have a wide range, and include the conduct of ante-natal clinics, the duties of administrative officers in a maternity department, the investigation or treatment of puerperal fever, obstetric research, etc. In conclusion, the Minister wishes to emphasise the fact that the duties of the Supervisor of Midwives extend to all the midwives practising in the area of the Authority, and that a distinction should be drawn between an officer holding this post and one who is appointed as a Superintendent or Senior Midwife to control the work of the salaried midwives appointed by the Authority [my emphasis]. The Minister is advised that it is not desirable for a Supervisor of Midwives to be engaged in the actual practice of midwifery. A copy of this circular has been sent to the Medical Officer of Health.' (MoH 1937)

Over time, the seat of LSA responsibility has moved from councils through regional health authorities, then local health authorities to the more recent strategic health authorities. In 1936 the non-medical supervisors, referred to in the MoH circular above, were required to be practising midwives, under the control of the medical supervisors. In 1973, the restructuring of the NHS organisation, through the National Health Service Reorganisation Act, created the opportunity for midwifery managers to become supervisors of midwives. It was not until 1977, however, that all supervisors had to be midwives and the role of medical supervisor ceased to exist (SI 1977 No. 1580: 3(1)). However, that did not automatically mean that the LSA function was carried out by a midwife. At the time of writing, it is only in England that LSA midwifery officers, functioning on behalf of the responsible authority, are necessarily midwives. In other parts of the UK, other professionals often hold such posts, despite the UKCC recommendation `that the LSA function should be undertaken by a practising midwife' (UKCC 1998a). Changes over time have been made to some of the detail of the LSA duties but the principles remain the same. During the formulation of the Nursing and Midwifery Order 2001, there was great uncertainty and debate with regard to this aspect of midwifery practice. Midwives who felt that supervision was a positive, fundamental principle of our professional practice were concerned that it would be abolished, bringing us into line with nursing and health visiting. They were concerned that such a decision would be a retrograde step for midwives and, therefore, for women and babies. Others, however, felt that they now had the opportunity to rid the profession of an archaic, punitive constraint. Some of these midwives felt that supervision prevented development and innovation in the profession. Presumably, the different views expressed by individual midwives were based on their personal experience of supervision, in some cases stretching over many years. It is probable that


51

midwives who had experienced the old style of supervision, which appeared to be authoritarian, punitive, reactive and constraining, were those who spoke against it while those who had experienced positive supervision, which is proactive, supportive and developmental, were in favour of keeping it. Certainly, the evidence collected by Stapleton, Duerden and Kirkham (1998), while raising areas for improvement, indicated a great strength of feeling that the midwifery workforce wanted supervision to stay (Drury & Staples 2000: 168, Kirkham 2000: 52). Indeed, a number of people from other health professional groups have suggested that the principles of midwifery supervision should be disseminated as good practice within their own fields. After the national consultation and debate it was agreed that statutory supervision should continue. Major changes in supervision started to occur from the early 1990s, when a more robust system of education and training was developed. From this point midwives had to successfully complete the training before being appointed to the role. The previous system allowed them to take up the role and then undertake a three-day instruction course within one year (SI 1977 No. 1580: 3(1)); they also tended to be midwifery managers of some level. Recognition of the need to change the concept of supervision, while maintaining the aim of protecting child-bearing women and their babies, led to the innovative approach to training. However, this was not the first time that the positive aspects of supervision had been promoted, as evidenced in the circular above. Many midwives, on reading the relevant section of A Midwife's Code of Practice (UKCC 1994a, c51, p19) and the Midwives Rules and Code of Practice (UKCC 1998a, c34, p33), would be surprised to know that the principle behind `Your supervisor of midwives should give you support as a colleague, counsellor and advisor' was stated in 1937. It has taken a long time to become fact rather than aspiration, in most cases. In 1993, the NHS Management Executive outlined a system of clinical supervision and defined it as: À term to describe a formal process of professional support and learning which enables individual practitioners to develop knowledge and competence, assume responsibility for their own practice and enhance consumer protection and the safety of care in complex clinical situations . . .' (DH 1993) It was seen as a positive move to enhance the practice of health professionals and systems were set up to put the principles into practice. In 1995 the UKCC produced an initial, consultative position paper on clinical supervision for nurses and health visitors, in which it stated that, while midwifery's system was statutory, it did `not advocate either a statutory or prescriptive approach . . . for nursing and health visiting' (1995: 1). Some managers felt that it should be taken on board for midwives too, although that was not the intention. There was great debate as to whether this new form of practitioner support was workable, especially as it was in addition to what was already in place. At best, it was seen by many as requiring even more time away from clinical practice, for every midwife and for this second set of supporters, on what was envisioned to be a monthly basis. This requirement was thought, even by some supporters of the system, to be a potential `straw to break the camel's back', as there was insufficient time for the statutory supervision, in view of staffing levels. At worst, it was seen as

52


an attempt by non-midwives and opponents of the statutory system to drive it out. However, pilot schemes were conducted in many places: clinical supervisors were trained, with very small caseloads, and time was set aside for the meetings to take place. Many people enjoyed the process and the fact that time was being spent on them and their issues. Sadly, that suggests that this supportive, reflective side to statutory supervision was lacking for these individuals. Ad hoc discussions with various nurses and midwives around England suggest that there are pockets where it seems to be working in nursing and health visiting, but it seems to have generally died a death in midwifery, except in neonatal units. The major reason appears to be the lack of time available; at least with a statutory system, some time has to be found. However, the general view appears to be that statutory supervision has improved, with reflective practice being encouraged. Further discussion regarding supervision per se will not be entered into in this book; there are other detailed works for such reference, particularly the work by Mavis Kirkham (2000). The focus will remain on the statutory role and functions. The current statutory requirements for supervision are contained in the Nursing and Midwifery Order 2001, section 43. There are no changes that affect the relevant entries in the Midwives Rules and Code of Practice, last updated by the UKCC in 1998 and adopted by the NMC until such time as they wish to update the document further. Therefore, the requirements for appointment as a supervisor of midwives have not changed either. Midwives interested in becoming supervisors must have a minimum of three years of qualified practice, one of which must be within two years of starting the training, or they must gain further experience as required by the NMC. The most usual background is the three-year rule. This requirement prevents inexperienced midwives or those who have limited up-todate experience from being in a position of advising others when they do not have the knowledge or experience to do so. They must also be acceptable to the midwives who would be supervised by them. The selection process is, therefore, very important and the move towards having more clinically based supervisors, rather than just managers, has been very positive. In England the process was determined by the ENB and is overseen by the LSA midwifery officers (ENB 1999). Initially, prospective supervisors have to be selected by their peers, where considerations of approachability and respect for the person are particularly important. The process is initiated and overseen by the coordinating supervisor in the Trust. There are two methods of achieving this selection: either the candidate can submit four letters of support from midwifery colleagues or there can be a ballot, in which she must achieve over 50% approval from the ballot papers returned. Neither of these methods is flawless; however, it is interesting to hear that the supervisory teams in many Trusts have dropped the approach of four letters of support, for a number of reasons. The ballot approach does, at least, give all the midwives in the Trust the opportunity to take part in the selection and make their views known. Once the local selection has taken place, the candidate is interviewed by the LSA officer or her representative. The details of this part of the process may differ around the country but the principle remains the same. Having been accepted, the prospective supervisor then undertakes the relevant academic and practice-based course. Again, the courses around the UK may be


53

different but in England, from 1992 to 2001, the course was based on a distance learning package, updated in 1997. In 2001 the ENB, prior to its closure, produced new guidelines for the development of this course, giving the opportunity for institutions to develop a taught course or develop their own distance learning materials. The NMC adopted National Board recommendations and guidelines on educational matters when it was inaugurated; it then produced a new package to support the course in 2002. Achievement of the academic course does not lead to automatic appointment. The LSA responsible officers decide whether to appoint or not after successful achievement of the course requirements. In most instances they are pleased to appoint these midwives but, very occasionally, something occurs during the course or complaints are received about the attitude of the prospective supervisor. In such cases, the officers work with the individuals concerned in an attempt to rectify the situation. Once appointed, the supervisor becomes part of the supervisory team, although she would have been working closely with the team during the course. There are obviously individual responsibilities related to the individual supervisees, but the team can work together on broad, common issues to achieve their goals. Although there has been a major shift in the balance of supervision, from all managers to mostly clinicians in many Trusts in England, which is a complete move away from the 1937 circular, there are definite benefits in having a wide skill mix within the team. Clinicians from various areas of practice, managers and educationalists all have their expertise to inform the team and enrich supervision in their Trust. There should be no hierarchy in supervision, so the team determines who their co-ordinating supervisor will be. She could be an E grade midwife, where once it would have been expected that the most senior manager/supervisor would undertake the role. The role holds no power; it is purely organisational and includes receiving information from the LSA and disseminating it to the team, and vice versa. All supervisors must maintain their skills and increase their knowledge related to supervision. Of their 35 hours of PREP activity over three years, 15 must be related to supervision. LSAs may determine the form of some or all of these minimum hours. PREP replaced the five-yearly statutory refresher courses for midwives and, for the first time, such updating applied to nurses and health visitors as well. Certain responsibilities of the LSA are laid down in the Midwives Rules. Generally they play a strategic role that includes guidance, support and the development of standards. The specific responsibilities of LSAs and supervisors will not be listed here; it is sufficient to say that they all seek to fulfil the two main aims of statutory supervision: to safeguard the public and to support and develop midwives. Essential to meeting both of these aims is the need to ensure that midwives are working within their statutory Rules and Codes. It is important that they do not stray outside the statutory boundaries, but it is also important that they be assisted to use them to the full, particularly during this time of trying to recapture midwifery from the grip of obstetrics and the medical model. If the burgeoning birthing centres, in or out of hospital settings, and other forms of midwifery-led practice are to continue successfully, midwives need to take up their full role. In order for supervisors to fulfil their role, they have to work closely with the

54


professional documents that govern and guide midwifery practice, three of which were detailed in the previous chapter. All midwives have access to the documents as they are sent, free of charge, to each currently registered midwife. Supervisors should establish, during their supervisory contact, that the midwives have current copies. They should also highlight the importance of reading and understanding them and then maintaining the principles in their practice. They can assist midwives to reflect on their practice with regard to Rules and Codes; they can also help them to determine their developmental needs. It has already been stated that supervision should be supportive and developmental; however, should an occasion arise where it is thought that a midwife might be in breach of the Rules or Codes, a supervisory investigation should take place. Midwives are accountable through a number of pathways. This means that they are responsible for their actions and inactions in their practice and answerable for them in different ways. They are accountable to their clients through the legal system, usually the civil courts, which will be discussed further in Chapters 5 and 6. They are accountable to society through the criminal courts, for antisocial behaviour or gross negligence caused by wanton disregard. They are accountable to their employer, within the bounds of their contract of employment, which will be considered further in Chapter 9. They are accountable to the professional body for their conduct and this pathway will be explored below.

Alleged misconduct In situations where it is thought that a midwife has breached any of her Rules or Codes, the supervisor will need to investigate the matter, regardless of whether a manager is also undertaking an investigation. It may appear that this is duplication of work for everyone concerned, but the purpose of the two investigations is different. The outcome of a management investigation, where it is deemed that there is a case to answer, is a disciplinary hearing; it is related to a breach of employment contract. This subject will be discussed further in Chapter 9. The supervisory investigation, however, relates to professional conduct and practice issues; the outcome is not directly related to the contract of employment or discipline, although the final result could have a bearing on the employment status of the midwife. When supervisors were always managers and were few in number, it was common practice for one investigation to be undertaken for both purposes. Once there was a move towards training and appointing more clinically based supervisors, such an approach to investigations became no longer necessary. However, module 4 of both the original and current education and training packages, developed to prepare Supervisors of Midwives (ENB 1997: 21, NMC 2002: 16), indicated that it was acceptable for a supervisor/manager to continue to undertake just one investigation. It also stated that if separate investigations were being undertaken, then it was acceptable for the two investigators to work together. In both cases it was highlighted that the midwife should be supported by a separate supervisor, as there would be the obvious possibility of a conflict of interest for one person to be the investigator and supporter. Despite this position being promoted,


55

or at least supported by the professional body, it should be no surprise to find that many supervisors have withdrawn from that approach. It is essential to maintain the boundaries of supervision and management, in order to be fair to the midwife as well as the public and the service. When an incident has occurred, indicating a prima facie (first impression) case of professional misconduct of a midwife, a supervisory investigation should be started immediately and a support supervisor should be identified, preferably chosen by the midwife concerned. Acts or omissions on the part of the midwife, that put a mother or fetus/baby at risk or indicate a breach of the Rules or Codes already explained, are what constitute possible misconduct. If the investigation, including interviews of and statements from relevant people, elicits evidence that supports the first impression, then the investigating supervisor must make a formal report to the LSA officer with recommendations for action. In determining the recommendations, the supervisor should consider whether or not the continuing practice of the midwife places mothers and babies at risk. Part of this decision will be based on the attitude of the midwife. A midwife who does not recognise her error(s), or shows no remorse, is a potential danger to others. It is also difficult to educate and develop such a midwife, as it is difficult for someone to correct an error that they do not believe exists. On the other hand, an insightful, remorseful midwife may not be such a danger and is usually more open to assisted development. If it is thought that local action would be beneficial, the decision needs to be made as to whether the situation warrants `supported practice' or `supervised practice'. Where the midwife does recognise her errors or needs, it may be determined that `supported practice' is the appropriate solution. The midwife and the supervisor will formulate appropriate learning outcomes, in theory and practice, in order to boost confidence as well as competence (Hawkins, Kirby & Mayes 2001: 1) and a clinical mentor would be appointed. This approach can also be used for midwives returning from maternity leave or long-term sickness or where a change of practice area is taking place after a long period elsewhere. For instance, where regular rotation does not occur, someone could be moving from a ward to a delivery suite or to the community. Such a programme does not need to be reported to the LSA. Where the midwife does not recognise poor practice or errors or shows no remorse, then a programme of `supervised practice' is arranged. Such a programme involves a specified period of education and practice, based on set objectives with a view to achieving competence, in order to redevelop `. . . the skills and ability to practise safely and effectively without the need for direct supervision' (Peach 1999: 35). The overarching objectives for such a programme have been laid down in a guidance document prepared by the LSA Officers for England (Hawkins, Kirby & Mayes 2001: 2). . To provide a positive learning experience for a midwife that will facilitate her to gain the required experience and knowledge in order to achieve the agreed outcomes. . To facilitate a midwife to achieve the level of competence necessary to practise midwifery safely.

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. To facilitate a supportive environment, which enables the midwife to reflect and become a confident, competent practitioner, up to date with contemporary practice. . To provide opportunities that will enable a midwife to have greater insight into personal behaviours such as team working, communication, and preferred style of learning. Midwifery competences are laid down for pre-registration students by the professional body, to be achieved prior to entry to the Professional Register; therefore, it is appropriate that registered midwives should achieve the same level. Supervised practice can also be used in a situation where a midwife is considered to have practised inadequately over a period of time, not just related to one specific critical incident (Hawkins, Kirby & Mayes 2001: 1). A suitable midwife is selected to be a mentor to the midwife in the practice element of the programme, being responsible for the final clinical assessment. The programme is usually organised by the supporting supervisor and the Lead Midwife for Education, who should have a sound knowledge of supervision, and agreed with the midwife concerned. The educationalist will lead on the theoretical outcomes to be achieved, providing support for the midwife and feedback to the supervisor regarding the assessment of achievement of these outcomes. Sensitivity is needed in the organisation and conduct of the supervised practice. Conflict can occur between the need for some personnel to be aware of the situation and the need to maintain confidentiality for the midwife. It is preferable that the programme be approved by the LSA officer, who will offer support to the supervisor during the process. Feedback to the LSA, regarding the outcome of the programme, will also be needed. If it is felt that local action is not appropriate or it has been tried but has not been unsuccessful, then the LSA officer will need to determine the next stage. She could decide that supervised practice should be tried or repeated or she could decide to report the case to the NMC Investigating Committee (IC), with a view to removal from the Professional Register. If the latter decision is made, then it is probable that the LSA officer will suspend the midwife from practice (as explained in Chapter 2), thus preventing her from practising anywhere within the boundaries of that LSA. If it is thought that the midwife is potentially dangerous to mothers and babies, then a request will be made for an interim suspension from the Register, thus preventing the midwife from practising midwifery (and possibly nursing) anywhere that requires NMC registration. In the situation where a midwife's practice appears to be insufficiently improved by the supervised practice, the LSA officer may advise a further period of supervised practice or may follow through with a report to the IC and suspension from practice, as just outlined. To report a midwife to the IC, the LSA officer must consider the midwife's conduct to be such that she could be removed from the Register. Prior to the Nursing and Midwifery Order 2001, such conduct would have included: . . . .

physical, sexual or verbal abuse of patients stealing from patients failing to care for patients properly failing to keep proper records


57

. failing to administer medicines safely . deliberately concealing unsafe practice . committing criminal offences (UKCC 1998b: 4). However, the Nursing and Midwifery Order 2001 provides for the NMC to investigate and take appropriate action with regard to competence, as well as conduct (Part V, section 21). In the future this will mean that action can be taken against practitioners who do not maintain satisfactory standards of competence and, therefore, are no longer fit to practise. Such action should remove, or at least reduce, the number of midwives (albeit small) whose practice is substandard but where their actions or inactions do not fall into the misconduct category (see Fig. 3.1).

The Investigating Committee It has been stated above that the LSA officer could report a midwife to the NMC for alleged misconduct, but this is not the only source of complaints received by the professional body. Members of the public, colleagues, supervisors of midwives or NHS managers could all report conduct that they believe falls short of that which they would expect from the practising midwife. Additionally, cases are reported automatically by the police and the courts when a nurse, midwife or health visitor has been found guilty of a criminal offence. If such a crime constitutes misconduct, then the NMC will not re-try the case but act on the findings of the court, as in the case of Beverley Allitt, who was removed from the Register in April 1994 (UKCC 1994b). All cases are considered by the IC, one of three practice committees of the NMC. This committee fulfils a screening function and then makes its decisions in camera (in a private meeting). It may come to one of four decisions. (a) Undertake mediation; or (b) Refer the case ± (i) to Screeners for them to undertake mediation, (ii) to the Health Committee in the case of an allegation of a kind mentioned in article 22(1)(a)(iv), or (iii) to the Conduct and Competence Committee, in the case of any other allegation. (Nursing and Midwifery Order 2001: 26(6)) As with other democratic legal processes, professional law presumes innocence until guilt is proven; therefore, it would be inappropriate to prevent a midwife from practising during the investigative procedures. However, there is the possibility of an immediate interim suspension, as explained earlier, while awaiting an early referral to the IC or the Health Committee. This course of action would take place where the IC felt there was evidence that women or babies would be exposed to serious risk from that individual continuing to practise. The only other reason for imposing an interim suspension would be in the interests of the midwife, where her practice is in question from a health perspective (UKCC 1998b).

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The Law and the Midwife Untoward critical incident

Supervisor of midwives Should inform LSA

Must investigate

May inform manager May suspend from duty

If not alleged professional misconduct:

If alleged professional misconduct:

Supervisor informs LSA

Supervisor submits formal report and recommends action

Local action Supervised practice

No action

May suspend from practice after informing NMC

LSA

Must investigate Should advise local managers if policy issues are involved May impose interim suspension from Register

May refer to:

NMC Investigating Committee May refer to:

Competence and Conduct Committee

Supervisor will be asked to give evidence

May conduct hearing May suspend from register NMC or LSA may revoke suspension Midwife may undertake practice

Fig. 3.1 The general process for dealing with alleged misconduct or incompetence. (Adapted from Module 4, p7 of the Preparation of Supervisors of Midwives pack, with permission from the NMC.)


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The Conduct and Competence Committee This second practice committee is charged with consulting with other practice committees, as appropriate, and then advising Council with regard to the expected standards and requirements of its practitioners, both registered and in training. This remit covers `conduct, performance and ethics', `good character and good health' and `protection of the public'. It must also consider cases referred by appropriate committees and applications for restoration to the Register (Nursing and Midwifery Order 2001: 27). The CCC is not one set of people who hear every case. There are a number of Council members who have undergone training to chair such committees. When the NMC first took up its formal role, a number of previous UKCC members had been appointed and many of them were experienced in chairing the Professional Conduct Committee, as it was then. Their experience allowed hearings to continue, thus preventing undue delay, while newer members were being trained. Each CCC must have a chair, who could be a lay member, with the remainder of the panel including a consumer, a Council member from any part of the Register and a `due regard' Council member. The `due regard' member must represent the part of the Register under which the accused practitioner was functioning at the time of the incident(s) under scrutiny. This member will understand the area of practice of the practitioner and will have `due regard' for the relevant pressures and expectations. Therefore, a panel hearing a midwifery case will have a chair (who could be a midwife), a midwife member, a member from any part of the Register (who could be a midwife) and a lay person. The panel also has a legal adviser but (s)he can only advise on points of law (in camera), not take part in determining decisions. For each practitioner brought before the CCC, there could be a number of charges following analysis of the details of the case(s). Examples of charges made against midwives are as follows: . . . . . . . . . . . .

failure to obtain obstetric/medical assistance; falsification of records; failure to provide sufficient information to enable informed choice; failure to carry out adequate monitoring of mother and fetus during labour; failure to recognise maternal collapse in the third stage of labour; alteration of records with regard to labour; giving false information in relation to an investigation; failure to declare a medical condition; failure to ensure a safe level of care; causing distress through a dismissive and self-important attitude; continuing the use of syntocinon despite fetal distress; failure to take appropriate action in the presence of an abnormal cardiotocograph (CTG); . failure to take appropriate action in the presence of abnormal uterine action (Lewis 2002). If the CCC believes the allegations to be proven, it can take the appropriate action from the following list:

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. . . . .

refer for, or undertake, mediation; take no further action; make a Striking-off Order (i.e. removal from the Register); make a Suspension Order, for a specified period not exceeding one year; make a Conditions of Practice Order, whereby the registrant must comply with set conditions for a specified period not exceeding three years; . issue a Caution Order, whereby it is indicated on the Register for a specified period of time ± between one and five years (Nursing and Midwifery Order 2001: 29(4/5)) (see Fig. 3.2). The Health Committee's (HC) power is exactly the same as that of the CCC with regard to consideration of allegations of unfitness to practise, but related to health. Examples of issues dealt with by the HC include alcohol or drug dependence, untreated mental illness and serious personality disorder (UKCC 1998b: 4). Each committee must review the Orders made before the date of expiry, in order to determine whether an extension of the original Order is required or a change to another Order is warranted. For instance, where a midwife was suspended for a year, the committee may determine that a Conditions of Practice Order should be made for a further year (Nursing and Midwifery Order 2001: 30(1)). Once removed from the midwifery Register, an individual must not practise as a midwife, as this would be a criminal offence. If she is entered on any other part of the effective Register and has not been removed from it, then she can continue to practise in that area. However, her fitness to practise in that area will depend on her eligibility to practise, based on length of absence from that field and her relevant PREP activity. She may be required to undertake a return to nursing practice course. If her misconduct was of a general nature, not specific to midwifery alone, requiring that she be removed from all parts of the Register, then she cannot practise at all. Whatever the situation, she may receive practical, immediate advice from her professional organisation with regard to the possibility of an appeal to the High Court, the right to which is not automatic.

Restoration to the Register In the long term, the midwife may wish to have her name restored to the Register; however, this is almost a `Catch 22' situation. To restore a name the NMC requires evidence that the practitioner is no longer unfit to practise. If the removal was on health grounds, then favourable medical reports may be sufficient evidence. If the grounds were based on the standard of practice, then it will not be possible to show directly that practice has improved, as the midwife is no longer in practice. It might be possible for her to undertake work or activity related to midwifery practice, such as that of a maternity health care assistant, or voluntarily with the National Childbirth Trust (NCT). Working with the NCT would be of particular benefit, as it applies rigorous standards to its teachers and the accredited education and training could be invaluable. No professional body likes to remove its practitioners from the Register. The


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Case referred from Investigating Committee to Conduct and Competence Committee

Charges read and plea in response received

Evidence of fact given by witnesses under oath (where required)

Committee decides if facts are proved to the required standard

If ’no’ case closed

If ’yes’, committee decides if those facts are misconduct in a professional sense

If ’yes’ committee hears evidence as to the practitioner’s previous history and in mitigation

Committee decision

No further action

Refer for or undertake mediation

Caution Order, Conditions of Practice Order, for one to five years up to three years

(Announced by the Chairman in public, in terms decided by the Committee)

Suspension Order, up to one year

Striking-off Order

Fig. 3.2 The process of consideration of alleged misconduct by the CCC.

NMC would usually wish to restore them as soon as possible following the completion of five years from the initial removal (Nursing and Midwifery Order 2001: 33). However, it must have regard for the safety and confidence of the public so it is essential to have some indication that the formerly registered practitioner would provide safe standards of care in the future. This point is particularly important in midwifery, where practitioners can practise completely independently.

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Summary This chapter has looked at the statutory regulation of midwifery, particularly the organisation of supervision, including the training, role and functions of the supervisor. Consideration was given to the governing and guiding documents with which all midwives should be familiar and an outline of action to be taken in cases of suspected breach of Rules or Codes was included. This action included the various stages and possible outcomes of alleged misconduct, up to the possibility of being removed from the professional Register, along with the requirements for seeking restoration.

Reader activity . Make an appointment with a supervisor of midwives, yours or another, to discuss the role further. . Contact the NMC to arrange to observe a CCC hearing. . Undertake reflective analysis of your practice (be honest with yourself) and then approach your own supervisor if you feel that you need assistance with any aspect of it.

References DH (1993) A Vision for the Future. The Nursing, Midwifery and Health Visiting Contribution to Health Care. DH, London Drury C, Staples M (2000) Supervisors and managers. In: Fraser D (ed) Professional Studies for Midwifery Practice. Churchill Livingstone, Edinburgh ENB (1997) Preparation of Supervisors of Midwives Pack. ENB, London ENB (1999) Advice and Guidance for Local Supervising Authorities and Supervisors of Midwives. ENB, London Hawkins J, Kirby J, Mayes G (2001) Supervised Practice Guidelines. LSA, London Kirkham M (2000) Developments in the Supervision of Midwives. Books for Midwives Press, Manchester Lewis P (2002) Presentation data, unpublished MoH (1937) Supervision of Midwives. Circular 1620. MoH, London NMC (2002) Preparation of Supervisors of Midwives. NMC, London Peach L (1999) Fitness for Practice. UKCC Commission for Nursing and Midwifery Education. UKCC, London Stapleton H, Duerden J, Kirkham M (1998) Evaluation of the Impact of the Supervision of Midwives on Professional Practice and the Quality of Midwifery Care. ENB, London UKCC (1994a) A Midwife's Code of Practice. UKCC, London UKCC (1994b) Registrar's Letter 7/1994, Professional Conduct ± Changes to the Council's Register 1 April ± 30 April 1994. UKCC, London UKCC (1995) Registrar's Letter 4/1995, Position Statement on Clinical Supervision for Nursing and Health Visiting. UKCC, London UKCC (1998a) Midwives Rules and Code of Practice. UKCC, London UKCC (1998b) Complaints about Professional Conduct. UKCC, London


Statutes/SIs Midwives Act 1902 Midwives Act 1936 NHS Reorganisation Act 1973 Nursing and Midwifery Order 2001: SI 2002 No. 253 The Midwives (Qualifications of Supervisors) Regulations 1997 (SI 1977 No. 1580)

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Chapter 4

Accountability within the NHS

In the previous chapter, the pathways of a midwife's accountability were indicated. The listing of these pathways can give the impression of the burden of accountability resting solely on the shoulders of the midwife. While this is the case with regard to their practice and their decision making within that practice, it must be remembered that most midwives work within the NHS. Each unit of the NHS is accountable for its part of the overall service, not just in civil law (Chapters 5 and 6) but also to the Department of Health. Therefore, a midwife working within an acute NHS Trust, for instance, is not solely responsible for the maternity service provided by that Trust, but she bears a share of the corporate burden appropriate to her role. In 1997, the government produced its White Paper The New NHS. Modern, Dependable, a ten-year strategy for modernising the health service, which stated that there was to be a statutory duty for quality in the NHS (DH 1997: 6). This overarching duty was to be fulfilled through a number of new measures, both national and local. The national measures included the setting up of National Service Frameworks (NSF), aiming for evidence-based, accessible services regardless of where people lived. Another national initiative was the development of the National Institute for Clinical Excellence (NICE), which would have responsibility for developing evidence-based guidelines for practice; this body will be discussed later in this chapter. At a local level, collaborative working in the community was developed, by way of Primary Care Groups (PCGs), later to become Primary Care Trusts (PCTs) in 2002. Also, long-term quality-based agreements between the various bodies were to be developed, in place of the annual contracting process that had created great difficulties within the health service under the Thatcher/Major governments. Although the strategy relates to all sections of the NHS, as midwives mainly work within NHS Trusts, in hospital and community, this chapter will focus mainly on that section.

Clinical governance In order to ensure that all the new initiatives indicated above delivered the quality that was required, a system of clinical governance was set up. Following the initial White Paper, a strategy document inviting consultation was produced: A First Class Service. Quality in the New NHS (DH 1998), which indicated how the implementation of the government's vision of improved quality was to be achieved. This document defined the term `clinical governance' as:


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`. . . a framework through which NHS organisations are accountable for continuously improving the quality of their services and safeguarding high standards of care by creating an environment in which excellence in clinical care will flourish.' (DH 1998: 33) This definition is very demanding. It requires all parts of the NHS to perform more than just a quick-fix action and then move on to the next task. It expects continuous improvement, not just in quantity and financial aspects of the service but in quality at all levels, from the organisation of services to the actual delivery of care. The system, therefore, involves everyone working in the NHS, from the chief executives who are accountable for the overall services (Dimond 2002: 335) to the health care professionals undertaking the actual care and the many other health care workers who provide the infrastructure to the environment of care. The definition also states a roughly measurable outcome to be achieved ± excellence ± and while we might debate an exact definition of excellence, we know that it is more than just `good enough'. The strategy document laid out the framework for clinical governance, which included the strengthening of professional self-regulation and quality control systems; the identification and dissemination of good practice, alongside the identification and minimisation of clinical risk. It also advocated support of health professionals (DH 1999a: 35). In order to achieve the requirements of the framework, the document indicated that a clinical governance structure needed to be organised in each Trust. The main components of the planned system included: creating lines of accountability for quality care; undertaking quality improvement activities; implementing risk management policies; and identification and management of poor practice (DH 1999a: 36±7). Determining lines of accountability was the easiest of the components to deal with, appointment and training of personnel being a fairly routine part of NHS business. The other components were more wide ranging and required changes and additions to practice for many individuals. In some cases the requirements were seen as posing a threat to individuals or groups of health care professionals. For many midwives, once they had a clearer picture of what was involved, it appeared that the framework was less threatening than it had been envisaged. The reason, of course, was their familiarity with statutory supervision, as explained in the previous chapter, which has a similar ethos and therefore fitted in well to the new system. The quality improvement activities included various forms of audit, use of evidence-based practice, implementation of NICE recommendations, workforce planning and development, continuing professional development, safeguarding patient information, monitoring of clinical data collection and storage, monitoring of care, implementation and integration of quality assurance processes. The two components that probably created most anxiety in the early days of clinical governance were those related to `risk' and `poor practice'; assessment and management of risk will be discussed later in this chapter. The poor practice category required critical incident reporting and investigation, an accessible complaints procedure, procedures to enhance professional performance where needs were identified and support for staff who report incidents related to the

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performance of their colleagues. Some of the concerns related to this category were with regard to the effect on working relationships of reporting incidents of poor practice. Midwives are again fortunate to have supervisors, as they can be very helpful and supportive to midwives with performance deficits and to those who have concerns about colleagues. Although many health care professions were seen to have stringent regulatory processes in place, public trust in doctors had been unsettled by certain serious incidents covered in the national media. Therefore, in November 1999, the Department of Health produced a consultation paper entitled Supporting Doctors, Protecting Patients. A Consultation Paper on Preventing, Recognising and Dealing with Poor Clinical Performance of Doctors in the NHS in England (DH 1996). The title is self-explanatory and although the document was targeting doctors, it was clearly stated that the contents related to good regulation and were therefore relevant to all health care professionals (p4). The main reason for reporting adverse clinical incidents is in order to learn from them, to undertake measures that prevent the recurrence of the incident. In 2000, the DH produced a document specifically related to such incidents: An Organisation with a Memory. Report of an Expert Group on Learning from Adverse Events in the NHS. The remit of the group was to determine the extent of the capability of the NHS to learn from individual incidents or system failures (p6). The report includes examples of cases, from across all fields, organised into categories of errors: for example, drug errors, communication failures, absence of safety culture. The report also indicates the importance of recording `near misses', what it calls a `free lesson', as lessons are learned without the unacceptable cost of harm or death. The report added weight to the need for a clinical governance system, its recommendations supporting what was already being implemented. As clinical governance was seen to be central to the improvement of quality in the service, a guidance document was produced by the NHS Executive in March 1999: Clinical Governance. Quality in the New NHS. This document, which stated that the focus of clinical governance involved `team work, partnership and communication' (1999a: 11), provided a five-year vision and a four-step guide to action required in the first year, up to April 2000. Shortly after this publication, in June 1999, therefore during that first year, the Health Act 1999 received Royal Assent. Section 18 of the Act created the statutory duty for quality that the earlier White Paper had prescribed; thus the chief executives and their Trust boards became responsible for upholding that duty. The four steps to be achieved in the first year were to: . . . .

establish leadership, accountability and working arrangements [by April 1999]; carry out a baseline assessment of capacity and capability [by September 1999]; formulate and agree a development plan in light of this assessment; clarify reporting arrangements for clinical governance within Board and Annual Reports.

Some years on from the setting up of the system, clinical governance is well established now. The first year was somewhat fraught, with individuals at all levels getting to grips with where they fitted into the process. At the same time, systems for risk assessment and management, along with critical incident reporting, had to


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be planned and implemented. Over time these systems have been developed further, members of staff have become familiar with the processes and most newly qualified professionals have never known anything different. In order to ensure that clinical governance was implemented, a monitoring process was determined. For NHS Trusts the implementation was initially monitored by their NHS Executive Regional Offices and professional bodies were also seen as having a key role with their respective practitioners, particularly with regard to conduct and competence. More recent changes in the legislation for professional regulation, as outlined in earlier chapters, were with clinical governance in mind. Within midwifery the link with clinical governance was not difficult. As a system for statutory supervision was already in place for every practising midwife, it was mainly a matter of ensuring that it was included in plans and reporting. In addition, there was also three-yearly re-registration with the professional body. For doctors, however, a new, compulsory system has been developed. They will undertake five-yearly revalidation with the General Medical Council (GMC); annual appraisal, with personal development plans included, will form part of that process (DH 1999b: 62). Failure to meet the revalidation requirements will lead to remedial measures and then, if necessary, to the GMC's procedures related to conduct and competence. This system will be more in line with what midwives have experienced for many years.

The Commission for Health Care Audit and Inspection In addition to regional monitoring by the NHS Executive, the Commission for Health Improvements (CHI) was set up as an independent body, regulated by the Secretary of State for Health, through the Health Act 1999 (ss19±22), to improve the quality of patient care across England and Wales. The major remit of the CHI was to audit clinical governance systems throughout all units of the NHS ± every Trust and authority ± to ensure that continuous improvement is being made. The Commission aimed to identify areas for improvement and assist with development of aspects of good practice. Its review focused on the experience of patients, from their appointments to the outcome of their treatment, involving the care that they received and the environment in which it was given, in addition to their opinions. Once a review date had been set, the CHI held meetings for members of the public and group representatives to make comments on the local Trust under scrutiny. Dates and venues were determined and individuals made appointments to give their views to a CHI member. Staff of all levels, and other carers, were also given a similar opportunity to make their contribution, as were other local stakeholders, such as higher education institutions whose students undertake clinical placements in the Trust. CHI reviews were intended to take place every three or four years and each review had three stages. Stage one lasted for 15 weeks, when information was gathered from all stakeholders. Stage two, week 16, was when the team visited the Trust concerned for the complete week, meeting clinical teams, observing nonprivate interactions between staff and patients. Stage three lasted for the next eight weeks, during which time a report was written. The document included `key areas

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for action' and `notable practice' and was available to the public as well as the Trust. The Trust then developed objectives to address areas that needed improvement and an action plan was produced. Monitoring of progress related to the action plan was undertaken by the regional NHS. The CHI's position was strengthened by the NHS Reform and Health Care Professions Act 2002. This Act allowed for the CHI to appoint its own chief executive and created a duty for the Commission to make an annual report on NHS services to be presented to Parliament by the Secretary of State for Health. The new Office for Information on Heath Care Performance was created and could assist the CHI with stage one of the review process (s14(4)(c)(2)). The CHI could also make a recommendation to the Secretary of State for `special measures' to be applied to an NHS body where there was an unacceptably poor quality of services (s13(1E)). This Act (s11) also amended section 18 of the Health Act 1999, which created the statutory existence of the CHI, to include the environmental aspect of the role, which had become part of the review as the CHI developed. Further developments took place in 2002, following the Kennedy Report on the public enquiry into the Bristol Royal Infirmary (DH 2001). The report recommended the rationalisation of health care regulators and of inspection bodies; it stressed the need for independence from government control. As was seen in earlier chapters, changes have been made to professional regulation, including rationalisation. As to the rationalisation of inspection bodies, the government indicated further changes in its document Delivering the NHS Plan. Next Steps on Investment, Next Steps on Reform, which was presented to Parliament in April 2002. Confusingly, this was two months prior to receiving Royal Assent for the NHS Reform and Health Care Professions Act 2002, with its strengthening of power for the CHI. The announcement made in the April document was of the formation of the Commission for Health Care Audit and Inspection (DH 2002: 23). This new body is an amalgamation of the CHI, the Audit Commission and the National Standards Commission for Private Health Care (Fyle & McGlyn 2002: 212). The new arrangement takes account of the fact that the legislation had already enabled the CHI and the Audit Commission to undertake joint investigations, with the permission of the Secretary of State (Montgomery 2002: 102).

Risk management `Risk' is the chance of certain negative consequences arising from an action, inaction or just the environment. In health care settings, the patients or clients are vulnerable individuals who need risks to be minimised. If the NHS is to deliver quality for these vulnerable people, then the degree of risk that they might face must be minimised. The best form of risk management would obviously be avoidance: the prevention of risk. In order to prevent risk, there needs to be a thorough assessment of all systems, procedures and environments that could create potential risk situations for the public. While the risk management system relates to each individual practitioner, it needs to be organised to ensure efficiency. In NHS Trusts, chief executives appointed risk managers and teams were developed from appropriate personnel, in order to carry out this function on their


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behalf. The size of maternity units, according to the annual delivery rate, determined whether the post of risk manager was full or part time (Cooper 2000: 144). The risk category of clinical governance, brought about initially by the sudden rise in litigation claims in the 1990s (Cooper 2000: 143), was intended to encourage self-assessment intrinsically by the individual practitioner and systematic assessment of processes and systems as a whole. Also to be included were sociocultural factors, some of which would involve the extrinsic assessment of practitioners. While clinical practitioners are usually prepared to highlight risks in processes and systems, it can be a daunting prospect to be assessing one's own or one's colleagues' practice in this regard. However, some midwives have developed well with such processes, having used reflection with their supervisors. For some service managers, however, the threat of risk assessment is possibly different from that experienced by the clinicians. Identification of risk in an individual midwife's practice can usually be dealt with without major upheaval or the need to identify new funding. Therefore, identification through self-assessment or through systematic assessment is willingly supported. However, where a system risk is highlighted it is more wide ranging in its possible effects; it needs to be remedied quickly but the remedy could require substantial financial support. The manager would then need to make her claim alongside those of colleagues in similar positions in other parts of the Trust ± not an easy task. Having highlighted a risk, it must be dealt with; failure to do so is a breach of the duty of quality. Failure to correct an identified risk is arguably more unacceptable than not identifying the risk in the first place. Therefore, where the financial situation is difficult, the temptation to ignore risks would be understandable but it is not acceptable under the statutory duty to monitor and improve quality. Management of risk ideally starts with assessment to identify potential risk, followed by decisions on how to control the risk, which will undoubtedly have implications for education and training of all staff and students. In midwifery, this process should be followed for all aspects of care for a child-bearing woman and her baby, including environmental aspects where a woman is in hospital or in a clinic. Midwives must ensure that they practise within safe bounds and act to prevent avoidable adverse outcomes (Wilson & Symon 2002: 2), whether employed by the NHS or directly by a client, as in independent practice. While the woman's home and personal actions are her own responsibility, a midwife, in following her duty of care, should indicate to a woman anything of which she feels the woman needs to be aware regarding risk; this discussion should then be documented. Life is not ideal, however, and while such processes are carried out across the whole spectrum of care, there could be incidents in areas as yet not assessed. In addition, however well established the risk assessment and prevention systems are, there is also the possibility of something unforeseen occurring or failures in the system by human error (Hallett 2002). For this reason there needs to be a system in place for reporting unavoidable adverse incidents and, just as important, the `near misses'. Whatever system of reporting is implemented, it needs to incorporate a `no blame' culture. Personal protection is strongly inherent in most people and if they perceive that by reporting adverse incidents and near misses they may face disciplinary reprisals, then many opportunities to identify risk factors and prevent poor outcomes will be lost.

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Part of the education process must involve consideration of what constitutes an adverse incident or near miss. According to the DH (2000: xii), an adverse incident is àn event or omission arising during clinical care and causing physical or psychological injury to a patient'. An event could be a drug error or inappropriate care; an omission could be failure to diagnose preterm labour or interpret a cardiotocograph (CTG) trace or to find an appropriate interpreter for a woman to be enabled to make an informed choice; every midwife could write a list under each of these headings. A near miss is defined as à situation in which an event or omission, or a sequence of events or omissions, arising during clinical care fails to develop further, whether or not as a result of compensating action, thus preventing injury to a patient' (DH 2000: xii). In other words, either it was by chance that no untoward outcome occurred or someone noticed an error and stepped in to prevent harm occurring. For instance, a baby is born in reasonable condition, with Apgar scores of 5 at one minute, 8 at five minutes. Later assessment of the CTG indicates that if correct interpretation had taken place, further investigation of the fetal condition, possibly followed by caesarean section, would have been expected. While there is national concern about the incidence of caesarean section, it is important to remember that there are times when such intervention is necessary for an optimal outcome. Again, midwives could list many situations where near misses have occurred. The process for reporting in such cases must be simple and effective, taking account of the working environment. Long or complicated documents may be incorrectly completed or not completed at all, especially where areas are understaffed and midwives are continually running from one case to another. This situation in itself should be identified as a major risk. Documentation usually goes through the management line to the chief executive, who holds overall responsibility, but it is also essential that it reaches the supervisory team in the Trust. In this way any practice issues, as opposed to organisational issues, can be taken up immediately through supervision. Statutory supervision of midwives was involved in the identification and prevention of risk long before `risk management' became a formal approach in health care; much could be learned by other professions from this approach to professional practice. While it is important that incident-reporting documentation is completed, it is also important to remember the need for all care records to be completed comprehensively and as contemporaneously as possible. According to the Confidential Enquiry into Stillbirths and Deaths in Infancy (CESDI 1997: 56), many incidents of suboptimal outcome have occurred because of inadequate record keeping. Despite this observation and the one of the previous year, which should have served as a warning to midwives and doctors in relevant fields, the organisation still felt compelled to comment on poor record keeping in the reports of the next two years, the last being in 1999. Having ensured that a reporting system is in place, that it is understood by all who need to use it and it is apparently utilised appropriately by those practitioners, that is not the end. Critical analysis of the situation, including relevant events leading up to it and the action taken in dealing with it, must take place. Without such analysis and relevant action nothing will be learned and the situation could be repeated. Also, while it is important for individual professions to monitor their


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own practice, it is essential that analysis of untoward incidents is considered from a multiprofessional angle, gaining a holistic view in order to achieve more than partial minimisation of risk (McSherry & Pearce 2002: 35). In addition, all professionals should develop their knowledge of current, evidence-based care, to ensure that risks promoted by outdated practice are removed.

National Institute for Clinical Excellence This body started its existence with the White Paper The NHS. Modern, Dependable (DH 1997) and was duly formed in April 1999. Its task is to develop robust national guidelines for best practice, based on available evidence, which every health professional is expected to consider when exercising their clinical judgement. One particular intention, initially, was to àbolish the postcode variation' in health care (Dimond 2002: 338). The guidance can relate to individual methods of diagnosis, care and treatment or to overall management of particular conditions (Palmer 2002: 260). Failure to take due consideration of the guidelines, without justification based on the circumstances of the individual case, could lead to a charge of misconduct. Also, if harm or injury is caused by not following the guidelines in appropriate cases, there could be a civil suit for negligence (Chapter 5), as the functions of the NICE are what Montgomery (2002: 15±16) calls quasilaw; that is, not legally binding in itself, but with sufficient legal force to direct people's actions. As midwives are accountable for their own actions it is important that they are represented on Trust policy committees, to ensure that their voice has been heard in developing policies in keeping with NICE guidelines. They must not accept policies as a matter of course, without scrutiny, particularly if the policies do not follow national guidelines. It is very useful to have a supervisor of midwives on such committees, as they are experienced midwives with a specific remit to consider professional practice issues. The NICE is not a committee of isolated doctors making decisions in the dark. Guidelines are developed by groups of people with relevant expertise and experience in the subject; for instance, midwives would be involved in guidelines related to any aspect of child bearing. There are also six National Collaborating Centres (NCCs) that provide the relevant groups with evidence, advice and expertise in development of the guidelines. Each NCC is led by a professional, with input from other health care professionals and members of the public, and each deals with guidelines and audit for a separate category of care: . . . . . .

chronic conditions mental health nursing and supportive care primary care women and children's health renal [conditions] (Palmer 2002: 206).

The NCC for women and children's health comprises representatives from the relevant royal colleges (RCM, RCOG, RCPCH) and organisations dealing with contraception and sexual health. As with the other NCCs, it produces quarterly

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reports regarding progress and expenditure of the centre and each project. The NICE then produces an annual report that is reviewed by a statutory body, the NICE Partners Council, again composed of experienced people from a broad range of backgrounds, this time appointed by the Secretary of State for Health and the Welsh National Assembly. This Council also reviews performance and helps to set the future agenda. It is helped in this regard by the reports from confidential enquiries being submitted directly to the NICE rather than the Department of Health (Palmer 2002: 261). Midwives are particularly familiar with the Confidential Enquiry into Maternal Deaths (CEMD) and the Confidential Enquiry into Stillbirths and Death in Infancy (CESDI), which amalgamated on 1 April 2003 to become the Confidential Enquiry into Maternal and Child Health (CEMACH). The documents produced by the NICE are to guide the Trusts and their practitioners with the aim of delivering care that is effective, both clinically and financially. Thus the principles of clinical governance would be fulfilled, as effectiveness must surely include quality. The initial guidelines produced for obstetrics were The Use of Electronic Fetal Monitoring (NICE 2001a) and Induction of Labour (NICE 2001b), both of which had great impact on the improvement of practice but not without a great deal of debate in some areas. Guidelines that are related to obstetric and midwifery care are sent to each midwife, as they are produced, by the professional body.

Complaints Despite having all these systems and processes in place, there are times when problems occur, whether avoidable or not, or when the public is dissatisfied with the quality of care or treatment received by themselves or their families. Everyone is entitled to make a complaint if they feel dissatisfied with any service, including the health service. There are various intentions behind the making of a complaint. In some cases people want to air a grievance, while in others the complainants want to see an individual punished or they want to receive compensation; in yet others, all that is sought is an explanation and apology (Montgomery 2002: 112). Since 1988, when the Secretary of State fulfilled the obligations of the Hospital Complaints Procedure Act 1985, all NHS organisations have been required to have a system for handling complaints. In the early 1990s a committee was charged with reviewing the complaints procedures and the resulting Wilson Report (DH 1994) documented the findings and recommendations. The findings included the steep rise in complaints between 1982 and 1992, particularly in the last year of the timeframe, thought to be because of greater publicity about the right to complain (Montgomery 2002: 112), although McSherry and Pearce (2002: 5) suggest that rising levels of dissatisfaction and complaints were a consequence of raising expectations that could not be met. The recommendations for streamlining, made by the Wilson Report (DH 1994), were implemented on 1 April 1996. The complaints system, which must be transparent to the public, has three levels: internal resolution within the relevant organisation, i.e. Trust or health authority; independent review (IR); and finally, the Health Service Ombudsman. Each organisation has an identified complaints manager to oversee the process, and


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where a complaint relates to more than one body, for instance two separate NHS Trusts or an NHS Trust and a GP practice, then co-operation is expected. The public can be guided through the system by the Patient Advice and Liaison Service (PALS), which has taken over this function from the former Community Health Council. Complaints are often made verbally to various members of an NHS organisation and should be reported to the complaints manager. Those verbal complaints should be resolved, or at least acknowledged, within two working days; this timeframe can be extended to five days if the whole matter can be resolved in that time.

Case study 4.1 A woman on her first postnatal day complained to the midwife undertaking her observations that she awoke at 7am that morning having expected to have been woken by her baby during the night, for a breast feed. Having shown concern that the baby did not wake for feeding, she was told by a health care assistant that the baby had been given a bottle feed when he awoke. She was distressed by this fact. The midwife took the complaint to the Ward Manager, who in turn contacted the Complaints Manager. The Complaints Manager attended the woman and promised to investigate. The same night team was on duty that night and the Complaints Manager requested information about the situation. It transpired that the woman had undergone a traumatic delivery during the previous evening, following a long and arduous labour. Despite the pain relief given she had had no rest until some hours into the night, having requested further medication for pain and to help her sleep. When the baby awoke the woman was fast asleep and the new health care assistant, who was not familiar with breastfeeding initiatives within the Trust, fed the baby out of concern for the woman. The Complaints Manager fed this information back to the woman, apologising for what was a breach of policy and explaining that action would be taken to inform newly appointed personnel about such policies. The woman said that she could understand how the error had occurred and did not want to take the matter any further.

In the case above, had the woman not accepted the explanation, perhaps because of a history of severe allergies in the family, whereby cow's milk was to be avoided at all costs, then to pursue her complaint further it would have to have been put in writing. All written complaints must be acknowledged in writing within two working days, with complete resolution achieved within 20 working days, unless the letter states the intention to pursue a legal action. Internal investigation of a potential legal case is then carried out as part of the risk management process and to determine certain facts as close to the event(s) as possible. The time standard is monitored by the Patient's Charter Initiative (Montgomery 2002: 118). The final written response, following full investigation, is the responsibility of the chief executive, although it may be that she will sign an agreed response prepared by the complaints manager. The response must indicate that complainants who remain dissatisfied with the outcome may apply for an IR through the designated `convener' within 28 calendar days, but that this process is not a statutory right.

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Requests for an IR must be in writing from the complainant, with the expressed reasons for their dissatisfaction with the internal procedure. The convener must discuss the case with an independent chairperson, taken from a regional list of lay chairs, before determining whether or not an IR should take place, based on available NHS guidance. If the convener believes that the Trust has executed its duty fully or, to the contrary, it is obvious that there is something else that could be done, then an IR is not appropriate. In the latter case, the complaints manager would be asked to review the particular issue(s). Where a decision is made to progress to an IR, the convener must notify all relevant personnel of the decision and the reasons for it. The IR panel consists of the chair plus two other lay people and it must hold the review within 28 calendar days; two assessors drawn from appropriate professions, from a national list, are included where the complaint relates to clinical judgement. All parties must be given a reasonable hearing of their views and they will receive a copy of the final report, which should be completed within 12 weeks. The chief executive will write to the complainant regarding the findings of the IR, informing her of the right to complain to the Health Service Commissioner, or Ombudsman, and including any action that the organisation will take in line with the findings.

The Health Service Commissioner (Ombudsman) Midwives generally appear to know very little of the Ombudsman system. They concern themselves more with civil law, professional regulation and employment considerations, understandably. However, it is important that they understand the process, hence its fairly lengthy inclusion in this chapter, with three real examples of investigations undertaken. This office was created by the NHS Reorganisation Act 1973, then the Health Service Commissioners Act 1993, allowing for one post each for England, Wales and Scotland. However, to date, the functions for each country have been carried out by one appointed person. Initially the areas of investigation by this office were related to failures in administration and service provision. However, in 1996, the Health Service Commissioners (Amendment) Act was passed, leading to family health services provision and all clinical matters coming within the Ombudsman's remit. In 2001 there was a further amendment to this Act, which effectively put an end to practitioners escaping investigation by retiring. The amended Act determines the overall function of the Ombudsman, which includes having discretion about whether or not to investigate complaints within his jurisdiction. If complaints alleging hardship or injustice caused by failings on the part of the NHS bodies or practitioners (but not those including personnel and disciplinary issues or contract matters) are investigated, then they must be undertaken in privacy. The Ombudsman has the same power as the High Court with regard to gathering evidence, including confidential documents, and his reports are privileged; therefore, although details of cases are published, they are anonymised with regard to the individuals concerned, although not the NHS organisation involved. The Ombudsman, his staff and his advisers are prevented and protected by the Act


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with regard to disclosure of information for purposes other than producing the official report (HSO 2000). The complainant must usually have exhausted the internal system of complaint before she can apply to the Ombudsman's office. Therefore, this final opportunity for investigation, without recourse to litigation, is for those people who are still dissatisfied after the IR or who have been refused an IR and still feel that there are questions to answer. The application to the Ombudsman must be submitted within one year of the event(s) coming to the complainant's attention. If, on initial review, it appears that nothing more could be achieved in the case, then a formal investigation will not be undertaken. If the decision to investigate is taken, then a Statement of Complaint is sent to the relevant body, for instance an NHS Trust, stating the terms of reference for the investigation, giving the opportunity for comment and requesting all relevant documentation. Failure to comply with the request for documentation could result in the responsible officer for the NHS body concerned, such as the chief executive of a NHS Trust, being punished for contempt of court (Montgomery 2002: 123). The Ombudsman system investigates the whole complaint, including the conduct of the internal process and any independent review. The investigation may require scrutiny of documents alone, but it could also require interviewing the complainant, anyone involved in the period of care in question and any key people from the internal or independent processes. The Ombudsman is assisted by investigating staff, mostly lay people but also those with professional qualifications ± internal professional assessors (IPAs) for the various disciplines. For instance, there is an IPA for midwifery and one for obstetrics, who assist with the initial review of the case. If their advice to proceed with the investigation is accepted by the Ombudsman, then external professional assessors (EPAs) are appointed, from outside the geographical area of the complaint, to assess all facets of the case. The EPAs are experienced people in their own professional field. They will be approached by the Ombudsman's office, perhaps by an IPA in the first instance, to determine their willingness and availability. Having agreed to undertake the work, the EPAs then receive copies of all the relevant documentation: the Statement of Complaint; the case notes; all correspondence, statements and records from the internal investigation; and similar items from the IR if there was one. Having read the documentation, the EPAs then attend a case conference with the IPAs and the Investigating Officer (IO) assigned to the case, where the case is discussed, concerns are raised and a plan of action is determined. The plan of action includes collecting any further evidence that is required, either documentary or by interviewing appropriate personnel. If interviews are required then these are undertaken by the IO along with the appropriate EPA. Therefore, in an obstetric case, the IO would be accompanied by a midwifery EPA to interview midwives and an obstetric EPA to interview obstetric staff. Any interviews of non-clinical personnel, such as complainants, conveners and IR chairs, are conducted by the IO alone. The EPAs write a joint report that becomes part of the final Ombudsman's report, if it is accepted by him. They have the opportunity to comment on use and interpretation of their report in the final draft of the overall report. The claimant and the organisation at the centre of the complaint are informed of the final outcome. Selected case reports are then anony-

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mised with regard to individuals ± complainants, staff and EPAs ± and published through The Stationery Office, some in full text and others as summaries. The only challenge that can be made to the Ombudsman's findings are by judicial review. Here are two examples of midwifery cases that were investigated by the Health Service Ombudsman and completed between December 2001 and March 2002, reported in full in June (HSO 2002a).

Case study 4.2 Inadequate care provided to a woman during and after labour (pp9±15) Outline of case (based on the account of the complainant and her partner in the published report) Ms S, a 38-year-old primip, was admitted to the hospital at 01.15 h with prelabour rupture of membranes. At 03.30 h a midwife told her that she had not yet reached 4 cm dilatation of the cervix and she was transferred to the antenatal ward. She was told that her partner could not stay with her, even though she had been allocated a side room, as visiting hours did not start until 08.00 h, so she waited in the corridor in order to be with him. At 05.00 h Ms S requested an examination because she was experiencing contractions, at which point she was examined and informed that, although the cervix was 4 cm dilated, this did not constitute labour and she could not go to the delivery suite. At 06.00 h she phoned the ward from the corridor and insisted that she be transferred to the delivery suite. This time they complied, but Ms S felt that she had angered the midwife, as she was given details of how to complain. On the delivery suite the first midwife made comment about Ms S being unable to cope. At 06.25 h she requested Entonox but was given pethidine and at 07.15 h a student midwife introduced herself to Ms S but appeared uninterested; Ms S felt that the student had been warned that she was a `difficult' patient. At 08.30 h she asked the senior midwife for an epidural, which was refused after a vaginal examination; the reason given was that there was no anaesthetist available at the time, he `would not be happy to be called back to the hospital'. This midwife asked `Can you not cope for an hour and a half longer?'. When difficulties arose, the obstetrician asked what time she had had an epidural and when she said that she had not had one, she was told that it was going to be hard and painful. Ms S had a ventouse delivery at 10.10 h, of a large baby boy who was resuscitated immediately then put in a cot, following which she was given no information and was not given the baby to breast feed. After suturing, Ms S was `left with her legs in stirrups with blood everywhere' and the staff left the room. The partner handed the baby to Ms S. He stated that no-one had told them whether everything was all right or the sex of the baby. (There were other points raised but not included in this outline.) There was no IR in this case.

Outline of the Trust's response to the statement of complaint The Chief Executive's (CE) response indicated the findings of the internal investigation and the action taken. The investigation showed that staff agreed that Ms S had been left in the corridor and that they believed that they had followed the visiting policy. All midwives were informed that there was no such policy for visiting in labour. The records indicated that when Ms S had requested Entonox, alternative methods of pain relief were discussed and she accepted pethidine. The records also showed that Contd.


Case study 4.2

Contd.

she did request an epidural but while there was nothing to indicate that it had been refused, there was nothing to suggest that the anaesthetist had been called. Apparently, at 09.20 h, the midwife in charge was informed of reduced variability on the CTG and this information was relayed to the obstetrician at 09.30 h. At 09.40 h he confirmed full dilatation of the cervix and proceeded with a ventouse delivery on the grounds of a suboptimal CTG. There was nothing documented to suggest that any information had been given, but there was an entry stating that the baby had not been breast fed on delivery suite. Both of these points led the CE to accept Ms S's view of events. He apologised. He also agreed there seemed to be a number of ùnacceptable failures in interaction'.

Ombudsman's Investigation Three members of staff were interviewed: the Head of Midwifery, regarding policies, the first midwife to have dealt with Ms S and the midwife who had been the student at the time. The midwife present at the delivery was not available for interview. Neither the midwife nor the `student' remembered Ms S, therefore their answers to procedural questions related to what they said they would usually do or to presumption. They could shed no light on any specifics of the case, although the `student' stated that the senior midwife did sometimes advise against epidural for women close to full dilatation of the cervix. From the investigation further detail was established, such as the cervical assessment indicating only an anterior rim of cervix at the time of the epidural request. The entry in the notes at the time indicated that the senior midwife had explained the plan of care to the couple, but there was no evidence of what that plan was. Also, there was shoulder dystocia and the baby was delivered by the McRoberts' manoeuvre, Apgar scores being 5 at one minute, hence the resuscitation, and 9 at five minutes. The paediatrician wrote èarly feed' in the notes. The EPAs commented on all aspects of the case, indicating their areas of criticism: the care in early labour; the outdated practice of refusal of the epidural; communication and staff attitude. Their conclusion was that `Ms S was given inadequate support during and after her labour'.

Findings of the Ombudsman The Ombudsman agreed with the views of the EPAs and upheld the complaints to the extent of the following comments from paragraph 28 of the report: that he had `deep reservations about the level of care to [the couple] and Baby J immediately after the birth'; concern about the `communication failures', àbsence of recorded information' and `failure to provide Ms S with the early opportunity to breast feed her baby', particularly in light of the instruction for early feeding following the traumatic delivery. His recommendations were that the Trust: . ensures that all midwives are made aware of current good practice referred to in [the] report; . takes appropriate steps to make sure that the lapses I have identified . . . do not occur again. It would be a foolish Trust that failed to respond positively to such recommendations.

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Case study 4.3 Unsatisfactory management of a woman's labour; failure to safeguard medical records (pp66±72) Outline of case (based on the account of the complainant in the published report) Mrs V was admitted to the hospital when she was 24 weeks pregnant. Three weeks later, still an inpatient, she awoke in pain at 05.00 h and the night midwife called an obstetric Senior House Officer (SHO) to see her. At 05.50 h the SHO arrived and examined Mrs V. The vaginal examination (presumably by speculum) did not confirm labour and the CTG reading did not show contractions but indicated that the fetal heart rate was normal. At 08.00 h another midwife came on duty, by which time Mrs V was in great pain and vomiting. At 08.30 the SHO returned but appeared unconcerned about her, stating that they needed to await blood test results before they could do anything further. The midwife saw her several times but did not summon the doctor again, even when Mrs V requested her to do so. At 10.10 h it became obvious that Mrs V was in the second stage of labour and was rushed to a delivery room. At 10.25 h her baby was stillborn.

Independent review Following the internal investigation, Mrs V was granted an IR, but most of the documentation relating to her care and the internal investigation was missing. The decision by this panel was that, despite difficulties in diagnosis of preterm early labour, it appeared that the second midwife had attended Mrs V but failed to respond appropriately. The midwifery assessor had felt that it could constitute professional misconduct. Following the outcome of the IR, Mrs V's complaint to the Ombudsman was twopronged: that `staff failed to recognise early signs of labour' and that `the Trust did not adequately safeguard her clinical records or make sufficient effort to recover them'.

Outline of the Trust's response to the statement of complaint The Chief Executive (CE) of the Trust responded that the view of the IR had been accepted, regarding the midwife's failure to act appropriately, and that the issue of misconduct would be dealt with at the end of the Trust's disciplinary process. The letter confirmed acceptance of the failure to recognise early labour. The response also indicated acceptance of the second complaint, regarding the safeguarding of records. The CE explained that investigation had highlighted a number of errors in the records system and large-scale searches had been undertaken to locate the missing records, to no avail. His conclusion was that they may have been destroyed.

Ombudsman's investigation The investigation revealed that Mrs V had been leaking liquor intermittently for three weeks prior to initial admission to one hospital, before transfer to the hospital in question. Following the transfer, the antibiotics initially prescribed were stopped and Contd.


Case study 4.3

Contd.

she was advised that regular blood tests would be required. Eighteen days after admission there was some vaginal bleeding, which Mrs V thought was a large amount. Mrs V stated that at 08.00 h on the day in question, when the day duty midwife attended her, she had continuous pain with heightened periods every ten minutes. Mrs V and this midwife had apparently had a disagreement a few days previously. Mrs V was too uncomfortable to wear the straps to secure the transducers from the CTG monitor; she felt that the midwife was still annoyed with her. There were a number of instances stated that were to do with the perceived unhelpful attitude of this midwife. The midwifery records were never found and there was a definite suspicion that they had been destroyed. A G grade midwife was interviewed with regard to normal procedures and the midwife who attended Mrs V stated that she thought an SHO had taken them for a case conference. According to the consultant obstetrician, the notes were eventually found but without the midwifery records. There were some entries in her medical notes (which were very poor examples of record keeping as there was an abundance of unacceptable abbreviations), indicating that the SHO suspected a urinary tract infection at 05.50 h, at which time a urine sample was obtained, and he planned to discuss the case with the registrar. The notes of the delivery showed that the breech was protruding at 10.28 h, the head was delivered at 10.29, the senior registrar arrived at 10.31 h and resuscitation was abandoned at 10.52 h. The report on the placenta suggested an acute inflammatory condition, possibly the cause of the preterm labour. It was thought that the baby died from intracranial injury during birth, as cord blood pH at delivery was 7.17, but a postmortem examination was refused. A consultant obstetrician was interviewed with regard to relevant policies as well as the case itself. His view was that, had he known about Mrs V's symptoms on the day, he would probably have performed a caesarean section. The Director of Midwifery was interviewed, again with regard to relevant policies and practices. She had been appointed since the time of the IR and had made major changes, both strategic and with individuals. The night midwife was interviewed about her actions and preterm labour generally. Two further midwives were contacted: the midwife who was on the off-duty rota for that morning, who had since left that Trust, responded in writing that she had not had contact with Mrs V. The other midwife was the one who did attend Mrs V and she was interviewed. She could not remember the case, therefore her answers to procedural questions related to what she said she would usually do or to presumption. She explained the system of staff allocation to the clinical areas, which involved allocation to either the antenatal ward or the labour ward on a shift-by-shift basis. The obstetric EPA was concerned about the protocols for dealing with preterm prelabour rupture of membranes and preterm breech presentation. An extra concern was that there was no reference to such protocols recorded in the records or of discussions with Mrs V regarding her care. He felt that the outcome had been avoidable. The midwifery EPA determined that the only useful account available to the assessors was that from the claimant, in view of the absence of all midwifery records and no memory of the case by the midwife who attended Mrs V. She felt that both early shift midwives bore responsibility for the case, as the one midwife had taken the handover from the night staff, but that the midwife who attended failed in her duty to Contd.

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Case study 4.3

Contd.

Mrs V. She was concerned about the method of allocation of midwives to the clinical areas, as the system in place at the time did not provide adequate support for the highrisk women on the antenatal ward. Another area of concern was the midwives' reliance on CTG recordings, rather than clinical skills, to determine labour. An interesting point raised by this assessor was with regard to the fact that the Trust's response indicated that appropriate action had been taken with regard to the key midwife in the case. However, the midwife stated that she knew nothing of the case until the IR.

Findings of the Ombudsman The Ombudsman concurred with the views of the EPAs, that the night duty midwife acted appropriately and that the attending midwife, rather than the other mentioned, failed to provide appropriate observation. Also agreed was that the lack of communication between midwives and doctors, plus the failure to recognise labour, prevented consideration of a caesarean section at an appropriate time. With regard to the lost records, he agreed with the CE's view that it was possible that the records had been destroyed, either by accident or deliberately. The Ombudsman strongly criticised the Trust. The complaints were upheld and the recommendations made were that: . protocols are introduced for both junior doctors and midwives to remind them of the importance of noting patients' concerns and relaying them promptly, as appropriate, to senior staff; . high-risk, long-stay antenatal patients such as Mrs V are allocated a named midwife; . the trust takes steps to ensure that midwives are fully competent in the assessment of preterm labour in high-risk patients; . all staff are reminded of the critical importance of safeguarding patients' records at all times.

The following case was investigated by the Health Service Ombudsman, completed between December 2001 and March 2002 and reported in summary in June (HSO 2002b). It is copied in its entirety as there are many points worthy of note and the case is already in summary form.

Case study 4.4 Inadequate standard of maternity care and conduct and outcome of independent review Outline of case Mrs S attended . . . [the hospital] because her waters had broken. A midwife conducted an antenatal assessment, which included a digital vaginal examination. Mrs S was sent home, in line with the hospital's procedure then for managing spontaneous ruptured membranes (SRM), and she was advised to return to the antenatal ward the following day for induction of labour. Mrs S telephoned the hospital the following day to report a Contd.


Case study 4.4

Contd.

slight rise in her temperature and a severe headache and she was advised to return to hospital. Having arrived there at 1.00pm, Mrs S waited until 3.00pm to be admitted to the antenatal ward, where an assessment failed to locate the fetal heartbeat. A scan confirmed intrauterine death. Mrs S complained to the Trust about aspects of her care in September. She was concerned particularly that the midwife might have introduced infection when ± against hospital protocol ± she conducted the digital examination, and that she was kept waiting for two hours before admission to the antenatal ward. Although an independent review panel expressed some concern about Mrs S's complaints and made recommendations which the trust accepted, Mrs S felt that the IR had not resolved her concerns.

Findings The Ombudsman took advice from two independent professional assessors. They concluded that it was unlikely that infection was introduced by the midwife's digital examination. They also commented that as a qualified, experienced midwife, it was within the scope and sphere of the midwife's practice to exercise her clinical judgement in the way that she did. The Ombudsman accepted that advice and also agreed with the professional assessors' conclusion that the midwife's error was not in her actions, but in omitting to record her justification for not adhering to the relevant protocol. The Ombudsman also found, on balance, that Mrs S probably was kept waiting for two hours in the antenatal ward's reception and that that was unacceptable. However, he also accepted the professional assessors' conclusion that the delay did not cause the tragic outcome as it seemed clear, from the investigation, that the death of her baby had occurred before that time. To the extent described, the Ombudsman upheld Mrs S's complaint about her care. The Ombudsman agreed, too, with his professional assessors' views that the failure to call the consultant responsible for Mrs S's obstetric care to give evidence to the [IR] panel was a major oversight and that the panel's report raised more questions than it answered. The Ombudsman criticised the report in several respects, particularly in terms of its failure to reach clear conclusions supported by evidence and to provide explanations in terms which a lay person could readily understand. Therefore, the Ombudsman upheld Mrs S's complaint about the IR.

Remedy The midwife and her supervisor had already discussed comprehensively the issues arising from this case. The Trust agreed, however, to the Ombudsman's recommendation that the midwife's supervisor should consider whether there was any further action which she and the midwife should take in this respect. This complaint clearly had raised awareness within the Trust of dealing with women with SRM and the Trust had taken a wide range of measures, which should help to improve services for patients and to prevent a recurrence of the type of issues about which Mrs S complained. However, the Trust agreed to implement several recommendations made by the professional assessors, aimed at improving procedures and standards further still. The Ombudsman recognised that a lay chair has ultimate responsibility for an IR's Contd.

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Case study 4.4

Contd.

conduct and the panel report and that the events in this instance were, in practice, beyond the Trust's control. However, as the Trust were formally responsible for the IR, he was bound to consider this complaint as being against them. They agreed to consider, after appropriate consultation, whether this complaint highlighted a training need for staff involved in the administration and conduct of IRs and to take any action considered appropriate. They also apologised to Mrs S for the shortcomings the Ombudsman had identified.

The cases outlined above indicate some of the issues that are followed through the whole complaints system by dissatisfied patients or clients. The system is rigorous and aims to be fair to all. As can be seen from the last case in particular, application to the Ombudsman does not automatically lead to all complaints being upheld. Also, it is important to see that the people who are responsible for internal investigations and independent reviews of complaints can be criticised where they have been in error. It would appear from the cases used here, and the many others included in the published reports (HSO 2002a, 2002b), that poor attitudes of staff, as perceived by the vulnerable public, still feature high on the list of complaints. A change in this one aspect of care could make a significant difference in reducing complaints, and the time spent in investigating them, at no financial cost. Another regular failure, as indicated in each of the cases above, relates to record keeping. Inadequate records not only hamper investigations, but they fail to support health care professionals when complaints are made. Midwives are not expected to remember every detail of every woman for whom they have provided care; their records should provide that detail and may help with recall of significant events. In the second case above, where the midwifery notes were lost, possibly destroyed, the midwives had nothing to indicate what action they had taken or to jog their memory. The investigators had no alternative than to use what was available to them, which was a clear account by the complainant.

Summary This chapter has shown that NHS organisations cannot be `laws unto themselves', that there are pathways of accountability within and outside the overall NHS structure, before we even contemplate the direct legal arena. Risk management and the work of the NICE are directly linked to the functioning of clinical governance, on the larger scale, with the CHAI in the position of being auditor and watchdog. The complaints system, with the Ombudsman as the final arbiter, is another pathway of accountability for NHS service provision and care delivery on an individual level. NHS organisations and the individual members of staff can be called to account for the quality of their services and care through both pathways. Every midwife employed by the NHS has her part to play in the processes designed to deliver safe, quality care. No-one should presume that the responsibility lies with others, perhaps more senior in rank.


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Private health services are also regulated, by the National Care Standards Commission, under the Care Standards Act 2000, but this area of care provision will not be discussed further.

Reader activity . If you are in clinical practice, consider the last two shifts that you have worked. Were there any adverse incidents or near misses ± anything where you feel that something could be learned for the future? If you had any involvement with the cases, ensure that appropriate reporting has taken place; it is not too late to do it now. Write up events in your profile in case you need to write a statement later. . If you are in management, consider the reports of any adverse incidents or near misses that you have received in the last week. List the action that you took in each case. Did your list include feedback to the person who submitted the report form? Did it include informing supervisors of any practice issues? If not, consider how you could modify your processing of such reports to include these two points. . If you are a supervisor of midwives, consider the ways in which adverse incidents or near misses come to your attention. If there is no direct system, discuss the matter with your supervisory team and determine a plan of action for changing the current system. . If you are in education, consider the reports of adverse incidents that are made to you by pre-registration students in particular. What do you do with such information? If there is not already a process whereby relevant Trust personnel can be informed of clinical and professional concerns, consider how best to develop one. . All midwives: ensure that you are conversant with all relevant NICE guidelines. Check the current clinical policies or guidelines to ensure that account has been taken of them. . Find a source of Ombudsman Reports and read some of the midwifery/obstetric cases, so that you can learn from others' mistakes. Community midwives may find some of the cases related to removal from GP's lists of interest.

References CESDI (1997) Confidential Enquiry into Stillbirths and Deaths in Infancy. Fourth Annual Report. Maternal and Child Health Research Consortium, London Cooper IG (2000) Clinical risk management. In: Fraser D (ed) Professional Studies for Midwifery Practice. Churchill Livingstone, Edinburgh DH (1994) Being Heard: The Report of a Review Committee on NHS Complaints Procedures (Wilson Report). HMSO, London DH (1997) The NHS. Modern, Dependable. HMSO, London DH (1998) A First Class Service. Quality in the New NHS. HMSO, London DH (1999a) Clinical Governance. Quality in the New NHS. HMSO, London DH (1999b) Supporting Doctors, Protecting Patients. HMSO, London

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DH (2000) An Organisation with a Memory. Report of an Expert Group on Learning from Adverse Events in the NHS. The Stationery Office, London DH (2001) Learning from Bristol. The Report of the Public Inquiry into Children's Heart Surgery at the Bristol Royal Infirmary, 1984±1995 (Kennedy Report). The Stationery Office, London DH (2002) Delivering the NHS Plan. Next Steps on Investment, Next Steps on Reform. The Stationery Office, London Dimond B (2002) Legal Aspects of Midwifery, 2nd edn. Books for Midwives Press, Oxford Fyle J, McGlyn AG (2002) Bristol: still posing questions. RCM Midwives Journal; 5(7): 212±13 Hallett L (2002) Clinical Governance. A Teaching Resource Pack. ENB/Professional Nurse/ DH/NHS Modernisation Agency, London Health Service Ombudsman (2000) Notes for External Professional Assessors. The Stationery Office, London Health Service Ombudsman (2002a) Investigations Completed December 2001±March 2002, Part 2, Full Texts of Selected Investigations. The Stationery Office, London Health Service Ombudsman (2002b) Investigations Completed December 2001±March 2002, Part 1, Summaries of Investigations Completed. The Stationery Office, London McSherry R, Pearce P (2002) Clinical Governance. A guide to implementation for health care professionals. Blackwells, Oxford. Montgomery J (2002) Health Care Law, 2nd edn. Oxford University Press, Oxford NICE (2001a) The Use of Electronic Fetal Monitoring. NICE, London NICE (2001b) Induction of Labour. NICE, London Palmer L (2002) The National Institute for Clinical Excellence and the RCM. RCM Midwives Journal; 5(8): 260±61 Wilson JH, Symon A (2002) Clinical Risk Management in Midwifery. The Right to a Perfect Baby? Books for Midwives Press, Oxford

Statutes Care Standards Act 2000 Health Act 1999 Health Service Commissioners Act 1993 Health Service Commissioners (Amendment) Act 1996 Health Service Commissioners (Amendment) Act 2001 NHS Reorganisation Act 1973 NHS Reform and Health Care Professions Act 2002

Chapter 5

Negligence in Midwifery Practice

While midwifery is a profession considered to be rewarding and associated with very positive events in the lives of the families for whom care is provided, there are also times of tragedy and distress. Not all pregnancies are uncomplicated, leading to a healthy, fulfilled woman, a healthy, undamaged baby and a happy family. Complications can occur in pregnancy and labour that can affect the mother and/or her fetus(es) or postnatally that affect the mother or the baby(ies). In most cases it is nobody's fault; however, there are occasions when it would appear that midwives or doctors, or a combination of both, have contributed to the resulting problem. In these cases women and their families have the right to seek redress. As was seen in previous chapters, most cases come through the complaints system and are dealt with locally, or they may follow through the system to the Ombudsman. In addition, some complaints against midwives require supervisory action, some require disciplinary action (Chapter 9) or perhaps both. Some are serious enough to be reported to the NMC. However, some of the problems that arise lead women and their families to seek redress through the courts, particularly where they believe that someone has been negligent, committed a trespass to their person, failed to safeguard their confidentiality or breached their human rights. It is often reported that people sue in order to get answers and explanations that have not been forthcoming from the practitioners themselves or those for whom they work (Montgomery 2002: 165). These and other cases are usually dealt with in the civil courts, although there could be occasions when criminal proceedings are more appropriate. An example could be where it is alleged that the professional is guilty of gross negligence or wanton disregard, so that what might have been a death where compensation is claimed becomes a charge of manslaughter where punishment is sought. As there do not appear to be any such midwifery cases, this chapter will focus on civil litigation, which covers problems related to underlying ethical issues (Kennedy & Grubb 1998: 3). Any midwife involved in litigation will find it at best stressful, at worst terrifying, whether the person is accused of wrongdoing or is a witness testifying to her knowledge of the situation. In Andrew Symon's research into midwifery and obstetric litigation, a number of words were used by midwives to express their feelings: `shock', `fear, worry and guilt', ànger and resentment' and `depression' (Symon 2001: Ch.9). A number of midwives would possibly experience many, if not all, of these feelings. Knowledge gives us power; therefore, knowing how the systems work and where to get help and support can be invaluable. The legal process can take a long time although, as indicated in Chapter 1, changes have

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occurred to shorten it. The process is designed to be fair to both parties, but whether fairness is achieved or not is sometimes challenged.

Negligence Negligence is either an action or a failure to act that breaches a duty of care held towards someone, resulting in harm or injury. In order for the plaintiff (the person pursuing the case) to be successful in her claim for compensation following an error by a midwife, she must prove that: . the defendant (the midwife) had a duty of care towards her . the duty of care was breached, and . the breach of duty of care caused the harm or injury.

The duty of care The explanation of the duty of care comes from the judgment made by Lord Atkin in Donoghue v. Stevenson [1932]. `You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be ± persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called into question.' Anyone who offers themselves as skilled in a particular field has an accepted duty that arises independently of any contractual arrangements there may be. In midwifery practice the woman and the neonate become the `neighbour' from Lord Atkin's ruling. Establishing a duty of care in a health care setting, particularly in midwifery, is usually not difficult. If there has been a professional encounter with the woman or a professional relationship, as with the practice of allocating a named midwife, particularly in a community setting, then there is a duty of care. The midwife must consider the possible consequences of her actions and omissions related to that woman; for example, with regard to any information and advice that she chooses to give and that which she chooses to withhold. Consider, for instance, a busy antenatal booking clinic. The midwife asks a woman routine questions including whether she smokes or has a history of oral herpes. In both cases the woman says `no'. Because the clinic is busy, the midwife decides to omit advice relating to smoking in pregnancy and around a baby; also she omits the advice about not kissing babies when a `cold sore' is present. The foreseeable consequences are that the baby could be at risk if its father, or another close relative, smokes or suffers from oral herpes. If the information and advice are given and the couple choose to ignore it, then they bear the responsibility. If it is withheld and a problem ensues, then they could hold the midwife responsible. However busy she is, she must not cut corners as harm could result and she could then be accused of negligence.


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In a hospital setting the midwife has a duty of care to those child-bearing women with whom she can reasonably be expected to have a professional relationship. In a delivery suite this duty will relate to any woman, or neonate, allocated to her care for that shift. It will also relate to any woman or neonate whom she attends in an emergency, perhaps a shoulder dystocia, or by request, perhaps to cover for a colleague's meal break or in answer to a call bell. In the latter examples, her duty is with regard to any action or inaction by her during the time of attendance. Her duty of care is not for every child-bearing woman in the building. Similarly, a midwife working on an antenatal ward has a direct duty of care for the women to whom she has been allocated and a less direct duty to the other women on the ward. Assume she has been allocated to the left half of the ward; she is responsible for the care of those women, she has a professional relationship with them, therefore she has a definite duty of care. She cannot be responsible for the direct care of the right half of the ward; however, she cannot ignore them. If she sees a woman on that side in difficulty and the allocated midwife is not readily to hand, then she must act appropriately. The same is the case if the emergency bell rings in the other side; she must attend, unless in a position with another woman where she cannot leave, for instance a woman who is bleeding heavily vaginally or who has progressed from early labour to delivery. Contrary to popular belief, a midwife does not have to respond automatically to an emergency bell on an adjoining ward. It will be dependent on the staffing levels and activity on her own ward. Leaving the one ward of vulnerable women and/or babies unattended by a qualified midwife to answer the bell in another ward area could be a breach of duty to everyone on the original ward. In the community the situation is somewhat different. A midwife cannot have a duty of care to every pregnant woman, even in a defined geographical area. However, once she has become the named midwife for a woman, she then has a duty of care to her. She should not feel that she holds a responsibility for each woman 24 hours a day; that is unrealistic. Her duty relates to ensuring that appropriate arrangements are made for antenatal care and making reasonable attempts to follow up on failed attendance. The duty also covers the information, advice and care that are given and any omissions that are made, throughout all stages of the childbirth experience in which she is involved, plus the neonatal care. If she has consultations with other midwives' clients, in a clinic or at home, then she has a duty of care for that episode. Such situations can arise when relieving for days off or holidays or when on call at night, in which case the duty of care is initiated once a phone call is received stating that advice or care is required, as her employment as a community midwife creates a statutory obligation. The position explained above does not apply in the same way in emergency situations outside the normal practice area of the midwife. A woman requiring emergency midwifery assistance, for instance in a shop or restaurant or on public transport, where no pre-existing professional relationship exists, is not owed a duty of care by that off-duty midwife at the point of needing help. In law, the midwife could continue about her business and take no action without being accountable for an omission of care or breach of duty. Even if she was in her uniform and obviously a health care professional in the eyes of observers, she is under no legal duty to offer assistance (Kennedy & Grubb 2002: 298). However, if

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she chooses to undertake a Samaritan act and offer assistance, she has a duty of care from that moment. If called to account for her care, she will be judged as an average midwife of her level of knowledge, skill and experience, in the specific circumstances in which that care was given, not as a midwife in a well-equipped delivery suite with other professionals to call upon. A community midwife is in a slightly different position from her hospital-based colleague. Whether she is on or off duty, if the woman in distress is one of her clients she must attend. It could be argued that a hospital-based midwife could find herself in a similar position; if the woman who is bleeding or in labour, for instance, was in the care of that midwife in hospital within the last few days, then there would be evidence of a pre-existing professional relationship. If a community midwife is geographically based and the emergency occurs within her `patch', she would be expected to attend if her contract of employment states that she has an obligation to the child-bearing women in her area (Montgomery 2002: 168). To summarise the points made above, a midwife has a direct duty of care for the child-bearing women with whom she has a professional relationship, while on duty. Also, while on duty, she has a less direct duty of care, but nevertheless existent, to child-bearing women to whom she could reasonably offer assistance, without jeopardising the care of others. When she is off duty she has no duty of care for a child-bearing woman, on that occasion, unless there is a pre-existing professional relationship or a covering clause in a contract of employment. It must be remembered, however, that while this is the case in civil law, it is not the case in professional law. A midwife is deemed to be a midwife 24 hours per day. If it was reported to the NMC that she failed to attend, and there are various ways in which a midwife could be identified, the midwife would be answerable for her conduct (NMC 2002: 8.5). The discussion above relates to the provision of midwifery care, but midwives could be present at road traffic accidents or when someone has a cardiac arrest at a bus stop. Many midwives are not registered nurses and many of those who are have been out of nursing practice for too long to be of much assistance in the case of an accident. However, some may be trained in first aid and feel able to undertake basic first aid care. If they choose to become involved, the same conditions apply as stated above: they can be held to account for their actions and inactions. For instance, any first aider will know that a clear airway is a priority. If the midwife, seeing heavy blood loss from an injury, decides to stem the flow of blood before ensuring a clear airway and the person suffers brain damage or death, she may face a claim of negligence. With regard to the cardiac arrest, however, all student midwives are trained and updated annually in cardiopulmonary resuscitation (CPR) and mandatory training for qualified midwives includes an annual update in CPR. There would be no reason why they could not undertake the procedure in which they have been trained, should they choose to do so. According to the Resuscitation Council (UK), by August 2000, although there had been a few cases where `rescuers' had been sued, there had been no successful claims. A midwife undertaking CPR would only be liable if she does more harm than good; that is, she leaves the person ìn a worse position than . . . had no action been taken at all' (Resuscitation Council 2000: 6). One could ask how anyone could be worse off than facing death if no-one attempts to resuscitate; a damaged


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rib or even a perforated lung are usually temporary problems as opposed to death which is permanent. However, in some cases the resuscitation prevents death but leaves the person in a persistent vegetative state, where the family feel that death would have been preferable. Such claims for wrongful life are not supported in the UK (Resuscitation Council 2000: 7).

Breach of the duty of care To achieve a consensus about whether a professional has failed to give proper care requires an assessment of what the expected standard of care should be in the first place, so that it can then be judged whether someone has fallen below that standard. The law has developed a set of rules on the expected standard of care, which enable consistent decisions to be made. In Lord Atkin's ruling (1932), he stated that reasonable care should be exercised towards one's neighbour. Reasonably, the professional is expected to offer a standard of care above that of the ordinary man, described by Judge McNair as `. . . the man on top of a Clapham omnibus'. However, consideration has to be given to what that standard should be. The legal test to decide on the required standard was also defined by McNair J, in the same case, that of Bolam v. Friern Hospital Management Committee [1957]. The case relates to Mr Bolam, who was admitted to hospital to have electroconvulsive therapy. During the treatment he suffered a fractured hip and subsequently claimed that this could have been avoided if he had been given relaxant drugs or had been restrained properly. The expert witnesses stated that there was a large body of competent doctors who would not use relaxants for the procedure. Having described the ordinary man, McNair J ruled that, where special skills or competence are involved, the standard is that of: `. . . the ordinary skilled man exercising and professing to have that special skill. . . . It is a well established law that it is sufficient if he exercises the ordinary skill of an ordinary man exercising that particular art . . . A doctor is not guilty of negligence if he acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art.' In Scotland a similar approach to proving negligence and causation is used but Bolam is not the test applied. Scottish courts apply the case of Hunter v. Hanley [1955], with Lord President Clyde's test being: `. . . the course the doctor adopted is one which no professional man of ordinary skill would have taken if he had been acting with ordinary care.' (Symon 2001: 11) Both cases are important as they still form the basis of judgments regarding the standard of care today. These cases involved doctors, but the principles apply equally to midwives and other professional staff. The Bolam standard that is required of a midwife is that she performs at the level of an ordinary midwife, not that of a highly skilled, long experienced midwife, but in a way that other midwives would hold to be standard practice. (The Hunter v. Hanley standard would apply to a midwife in Scotland.) It would be hoped that all midwives are striving towards highly skilled, best practice but that is not how they would be judged in court. The

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Bolam case also highlights the role of the expert witness in any negligence case. Increasingly, as the courts have accepted the multiprofessional involvement in these cases, the skill of the midwife can be questioned and the expert witness will be a midwife, as an expert from another profession cannot determine what a reasonable midwife would do in a given situation (Symon 2002: 157). The court does not expect these midwives to be drawn from the best practitioners, but that they should present what a reasonable body of ordinary practitioners would do, given the circumstances of the case. Therefore, they are usually experienced midwives, drawn from clinical management, supervision or education. Consider what the ordinary midwife would determine the standard practice to be in the following situation.

Case study 5.1 Sylvia has been qualified as a midwife for two years, undertaking routine rotation throughout the different areas of the maternity unit and the community. Today she was caring for Angela, a woman in labour with her second baby, at term; her partner, Philip, was actively involved in supporting her. The last vaginal examination, half an hour prior to Sylvia taking over the care from the last midwife, at the change of shift, indicated that the membranes were intact, the cervix was 5 cm dilated and the fetal head was 2 cm above the ischial spines. An hour after Sylvia took up the care, Angela's fetal membranes ruptured. Sylvia changed the wet items to make Angela comfortable, then listened to the fetal heart, which had been at a normal rate with reactivity when auscultated with a Pinard's stethoscope at 15-minute intervals. On this occasion the fetal heart was 60 beats per minute and showing no sign of picking up. She was aware of the high head and immediately thought of the possibility of a cord prolapse. She asked Philip to press the ordinary call bell while she undertook a vaginal examination, during the quick preparation for which she told Angela that the baby's heart beat was low and she needed to check if àll was well internally'. Angela quickly agreed to the examination. The whole process took a matter of seconds rather than minutes. On vaginal examination she confirmed her suspicions, the umbilical cord was protruding through the undilated cervix. As a senior student midwife came in, in answer to the call bell, Sylvia withdrew her hand and tore off her gloves, stating firmly `stay with Angela' as she ran from the room to get help for the emergency situation. An emergency caesarean section was undertaken, as there was still some pulsation in the cord. The baby's Apgar scores were 2 at one minute, 5 at five minutes and 6 at ten minutes, with resuscitation by an experienced paediatrician. The baby survived but with severe cerebral palsy.

What would you say was standard practice in such an emergency? Up to a certain point Sylvia appeared to be thinking correctly but with such a strong suspicion of a cord prolapse, she should have told Philip to use the emergency bell. Having confirmed her suspicion, she should have kept her fingers in situ and changed Angela's position, preferably to genupectoral (knee±chest) as she had not had an epidural, both actions with the intention of keeping the presenting part from occluding the cord. She had not told the couple or the student what the emergency was, she had not had a chance to write anything that the student could have picked


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up on, so no-one was in a position to do anything useful in her absence. No expert witness could possibly come to her aid to say that her actions were `within the range of acceptable practice' (Montgomery 2002: 170) and therefore that they equated to `practice accepted as proper by a responsible body of midwives'. In cases where midwives take on extra skilled responsibilities, such as ultrasound scanning, ventouse delivery or midwife prescribing (beyond that which all midwives can do), they would be judged as a midwife with those particular skills, but by a professional who has experience in that field. As yet, there are probably insufficient midwives undertaking such activities for there to be a `body' within midwifery able to determine standard practice. Hence an expert with regard to a ventouse delivery could be an obstetrician. Although in Sansom v. Metcalfe Hambleton & Co. [1995], not a health care case, the Court of Appeal dismissed the claim upheld at the original trial, stating that: [The court] should be slow to find a professionally qualified person guilty of a breach of his duty of skill and care without evidence from those within the same profession as to the standard to be expected . . .' (O'Hare, Browne & Hill 2000: 407) Even though the rules laid down in the Bolam case, known as the Bolam Test, appear definitive, it does not mean that the outcome of a case is always predictable. Both sides in a trial for negligence will have expert witnesses and the judges often have to draw a conclusion by balancing the two sets of opinions. An interesting case related to a cord prolapse is Lucy Reynolds v. North Tyneside Health Authority [2002], which clearly indicates the balancing of judgements required. More will be said about expert witnesses later in this chapter. Another problem that arises when trying to decide what the expected standard should be is that cases are often decided many years after the clinical events have taken place. The rule is also followed that the standard of clinical care should be that which prevailed at the time of the events, even if it would no longer be acceptable at the time of the trial. Another case led to an important ruling on this matter of timing, that of Whitehouse v. Jordan and Another [1981]. Mrs Whitehouse was a 30-year-old primiparous woman of very short stature, who was `difficult, nervous and at times aggressive'. During the pregnancy it was decided that she would undergo a trial of labour, as she would not agree to a vaginal examination or lateral X-ray to assess her pelvis. In January 1970 she was admitted to hospital in labour. Mr Jordan, the senior registrar, examined her under epidural analgesia and decided on a trial of Kielland's forceps to see whether she could deliver vaginally. After using traction with five or six contractions he decided to perform a caesarean section. The caesarean section was performed quickly, with no difficulties, but Stuart was born apnoeic and required prolonged resuscitation; he failed to breathe for 35 minutes. He was subsequently brain damaged and, acting through his mother, sued Mr Jordan claiming that he had pulled too hard and for too long with the forceps. (Lord Wilberforce) The initial trial, in 1980, found Mr Jordan guilty of negligence but, as stated above, an important point of law was made, thus effectively modifying Bolam. Judge Bush

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stated that `the skill and expertise which we are considering is that applying in 1969±70'. This ruling ensured that in future cases comparison with the standards of the time in question would be used, not the standards at the time of the trial. It is, therefore, acknowledged to be inappropriate to judge someone on practice developments that occurred after the time of the incident. The Court of Appeal reversed the initial decision and granted the plaintiff's appeal to the House of Lords, where it was unanimously dismissed (Kennedy & Grubb 2002: 425). The final judgment was not reached until 1981, when Stuart was 11 years old. The decision was made on an assessment of whether a body of responsible doctors would have done what Mr Jordan did but it had to refer back to 1970 when a trial of Kielland's forceps was used much more commonly than in 1981, when it had largely been abandoned. Another important point made is this case, and applying to midwives as well, was by Lord Denning, when he stated: `We must say, and say firmly, that, in a professional man, an error of judgement is not negligent. To test it, I would suggest that you ask the average competent and careful practitioner: `Ìs this the sort of mistake that you yourself might have made?'' If he says: ``Yes, even doing the best I could, it might have happened to me'', then it is not negligent.' Another case to further clarify the expected standard of care also arose in the maternity services. In Wilsher v. Essex Area Health Authority [1988] the principle was accepted that a doctor's duty of care can be assessed in relation to the post that he holds. Baby Martin Wilsher was born prematurely. He was suffering from various conditions including oxygen deficiency ± the prognosis was poor and he was in the Special Care Baby Unit (SCBU). In monitoring the oxygen levels, a Senior House Officer (SHO) mistakenly inserted a catheter into the umbilical vein, not artery, then asked the senior registrar to check it. The registrar failed to notice the error and some time later, when replacing the catheter, he made the same mistake. It was wrongly sited for over 24 hours; monitoring was, therefore, in error and the infant was given excess oxygen. The plaintiff (baby) brought a claim for retinal damage causing near blindness. The initial trial upheld the claim but in his summing up the judge added that, while the registrar was negligent, the SHO was not. He was entitled to rely on having his work checked as he was in a learning post. Again, this would apply equally to midwives where they are in a training capacity; for instance, while learning the skills of ventouse delivery, they are entitled to supervision. To some extent it could apply during preceptorship. The ruling also indicates that student midwives are entitled to proper supervision and it would be the midwife who would be found negligent, not the student. This does not mean that student midwives should never be allowed to undertake care alone. Supervision of this sort can be indirect, so students can undertake small caseloads in senior community placements or `confidence deliveries' with the midwife outside the door, during a senior placement. If they do not have this opportunity they cannot be said to be fit for practice at the point of qualifying, at which point they would be expected to


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undertake care with no direct supervision. However, the accountability lies with the mentor to determine that the individual student is sufficiently competent before delegating such responsibility. The Wilsher case went to the Court of Appeal, where there was a debate regarding the issue of primary (direct) versus vicarious liability; that is, was the health authority vicariously liable for the doctor's actions or primarily liable for employing incapable doctors? The court upheld the first decision and the defendant authority appealed to the House of Lords where, after much debate, a new trial was ordered. That trial determined that the plaintiff did not prove that the actions of the doctors were the cause, when other causes were possible, therefore compensation was not awarded. However, a settlement was made (Dimond 2002: 193). In Maynard v. West Midlands Regional Health Authority [1985], a case involving tuberculosis and a diagnostic surgical procedure, a further clarification of the Bolam Test occurred. The initial trial found the doctors to be negligent, the Court of Appeal held that they were not; the case then went to the House of Lords, where Lord Scarman stated: Ìt is not enough to show that there is a body of competent medical opinion which considers that theirs was a wrong decision, if there also exists a body of professional opinion, equally competent, which supports the decision as reasonable in the circumstances . . . I have to say that a judge's ``preference'' for one body of distinguished professional opinion to another also professionally distinguished is not sufficient to establish negligence . . .' This ruling, therefore, allows for more than one acceptable method of clinical practice. Interestingly, Kennedy and Grubb (1998: 341) point out that Lord Scarman appeared to equate ` a competent (or ``responsible'')' body of opinion with `distinguished' or `respectable', the concern being that the worth of the body of opinion would depend on how distinguished or respectable was the expert witness. A more recent authoritative case is that of Bolitho v. City & Hackney Health Authority [1997]. In December 1983, Patrick Bolitho, aged two years, underwent an operation to correct the condition of patent ductus arteriosus. On 11 January 1984, he was again admitted to hospital, this time with acute croup. The following morning his condition had deteriorated and he was having difficulty breathing. The next day, 13 January, he appeared cyanosed but recovered quickly and was discharged home two days later. He had a restless night and was readmitted the next day. His respiratory rate was high and there was rib recession on inspiration, which worsened during the evening. The next morning he was much improved but air entry on one side of his chest was still reduced. The consultant examined him but apparently Patrick's condition did not cause particular concern. At about 12.40 h a nursing sister, concerned about Patrick's condition, asked the senior paediatric registrar to see him straight away. The doctor said that she would attend as soon as possible. On the sister's return to Patrick, he was

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walking about and was pink; she left another nurse with him. At 14.00 h there was a repeat of the lunchtime difficulty and the sister contacted the registrar, who still had not arrived. The doctor was in her afternoon clinic and said that she had asked the SHO to attend. During the telephone conversation Patrick's colour returned and the sister described the two episodes to the registrar. At about 14.30 h, Patrick became agitated, began to cry but maintained his colour. The nurse left a colleague with Patrick while she reported to the sister, who ordered that doctors be bleeped again. During this process Patrick suffered a cardiac arrest, sustaining severe brain damage as a result. Apparently the SHO had not attended because her bleep was not working and she did not get the message. It was claimed that a doctor's failure to attend a patient in hospital amounted to a breach of the duty of care; in this case it caused asphyxia and consequent brain damage. There was disagreement between expert witnesses with regard to whether or not the registrar would have intubated Patrick if she had attended at 12.40 h. While there was agreement that failure to attend was a breach of duty, in consideration of the hypothetical aspect of the case, the judge held that it had not been proven that any competent registrar would have intubated Patrick before his collapse. Therefore, the case failed with regard to causation. (LLR Med, 1998: 26±36). The case went to the Court of Appeal, where it was dismissed by a majority decision of the judges (2:1). The statement made by one of the judges (Farquaharson LJ) could have great impact on future cases, although Montgomery (2002: 173) is not convinced that this is happening. Ìt is not enough for a defendant to call a number of doctors to say that what he had done or not done was in accord with accepted clinical practice. It is necessary for the judge to consider that evidence and decide whether that practice puts the patient unnecessarily at risk.' (Farquaharson LJ) When the case went to the House of Lords, the following statements were made. `The court had to be satisfied that the exponents of the body of opinion relied on can demonstrate that such opinion has a logical basis. In particular, in cases involving . . . the risks against benefits, the judge, before accepting a body of opinion as being responsible, reasonable or respectable, will need to be satisfied that, in forming their views, the experts had directed their minds to the question of comparative risks and benefits and had reached a defensible conclusion on the matter.' Ìt would seldom be right for a judge to reach the conclusion that views held by a competent medical expert were unreasonable.' It would appear that there was some ambiguity or conflict in these statements. The first appears to suggest that judges should determine what is considered a valid body of opinion, yet the second statement suggests that this would rarely be done. Presumably, the intention was to create the opportunity for a judge to disregard a so-called body of opinion that appears to be outlandish, as suggested in Bolitho. To summarise, the position with regard to determining standards of care, in


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order to determine whether or not a breach of the duty of care has been committed, currently appears to be as follows. The fundamental test is Bolam which, over time, has been effectively modified or clarified by other case law that must be considered. This case law includes Whitehouse, which was the case from which Bolam gained such importance, having been adopted by the House of Lords (Montgomery 2002: 172). In Whitehouse it was determined that cases must be judged according to the practices of the day of the incident, not those of the time of the hearing. Wilsher created protection for those in training and Maynard reinforced the `body of opinion' but determined that there could be more than one such opinion, compliance with any of which would be defence against negligence. This position could lead to some questionable opinions that could stand in the way of justice. Then came Bolitho, which appears to remind us of the basic tenets of Bolam but creates greater opportunity for judges to be discerning about expert opinions. Kennedy and Grubb (1998: 171±2), long-term critics of Bolam, felt that Bolitho might have been the slippery slope to it being undermined. They had been concerned about the power of the medical profession in determining what should be its legal duty, feeling that the court should `set a legal test which is less deferential to professional practice' (Kennedy & Grubb 1994: 321). The findings in Bolitho gave them cause to believe that a decrease in medical power in the courts was coming and this certainly appears to be the view of Lord Woolf (2001: 9). However, Montgomery (2002: 175) has doubts regarding its impact, stating that, while the court's judicial power has been strengthened, the judges choose not to use it. A belief still held by some doctors and midwives is that doctors bear the accountability for all obstetric and midwifery practice. Fortunately, the myth is gradually being dispelled, but not everyone has full understanding of the accountability of the midwife. More recently qualified midwives have no doubts in this regard, as ethics and law have been essential components of pre-registration education for many years now. It is also included in many post-registration education programmes as well, but not all midwives who trained before the inclusion have undertaken such programmes or attended specific study days. Some obstetricians have used this flawed belief to stand in the way of midwifery advances, particularly midwife-led care. The midwives in question, however, have thought that they could plead that certain errors were made by obeying the instructions of a doctor (or a more senior midwife), even those of an obstetric SHO, who is far less experienced in the specialty than any midwife, including one who is newly qualified. Midwives cannot be deemed to be not responsible for an error on the grounds of `(S)he told me to . . .'. If the midwife obeys the instruction it is accepted that she thought it was the right thing to do, therefore she is accountable for it. If she thought the instruction was wrong, then she had no business following it. For instance, if a doctor ordered a midwife to rupture the membranes in a labour where there is a high presenting part, the midwife should politely refuse to do so. She should explain about the high head and the possibility of a cord prolapse. If the doctor, regardless of seniority, insisted that the procedure be undertaken, the midwife should report the situation to the midwife in charge. If the midwife in charge supported the doctor, then the initial midwife should contact a supervisor of midwives, as the woman and her fetus are being put at risk. If the instruction related to something less risky but the midwife felt that it was not good

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practice, she should still decline involvement; her Rules and Codes, while encouraging co-operation with medical colleagues, do not expect her to do so at the expense of high standards of practice. This position holds in civil and professional law, as evidenced by the removal from the Professional Register of a midwife in 1999. She not only failed to challenge the unsafe practice of an obstetric registrar or seek advice from other sources, but continued to increase syntocinon, according to his instructions, despite obvious fetal distress (Rosser 1999: 4).

Expert witnesses As is obvious from what has been discussed so far, expert witnesses play a major role in any claim for negligence in health care. While it is usual to have at least one called by each side in large claim cases, their role is supposed to be independent. Their duty is to help the court, not the plaintiff or defendant directly, using their expertise to explain technical matters, regardless of who is paying them (Grainger, Fealy & Spencer 2000: 106). A way of reducing any engagement bias might be to have a single joint expert, although this situation usually only occurs in small claims. In complex cases involving contention, where expert evidence and opinion are required, such as midwifery/obstetrics, it is thought more suitable to have separate appointments (UK Register of Expert Witnesses 2000). In a case involving a claim for intrapartum negligence leading to cerebral palsy, the judge managing the case had ordered joint instruction of expert witnesses. However, the claimant appealed and the decision was overturned (Simms v. Birmingham Health Authority [1999]). Although midwives tend to associate legal matters with fact rather than opinion, as drummed into them with regard to writing statements, expert witnesses are expected to express opinion, based on experience and available evidence related to the time of the events in question. The expert midwife's report must follow a specified format, laid down in Part 35 of the Civil Procedure Rules (1998), which came into force in April 1999, following publication of the Woolf Report (1996). This report recommended reforms of civil procedures and led to the Civil Procedure Act 1997. The reforms related to expert witnesses were for courts to exercise discretion with regard to the need for any expert evidence, if necessary limiting the number of experts involved and determining that all evidence be in written form only (Grainger, Fealy & Spencer 2000: 108). Under the new civil procedures, management of a case involves the court deciding the areas for which it requires evidence. Written or oral evidence from an expert cannot be used without permission of the court (O'Hare, Browne & Hill 2000: 411). Once requested, the expert's report must: . . . . . .

address the court; detail her qualifications; list the literature and other references that she relied upon; indicate any tests she used or observed; summarise the range of opinions and justify her conclusions; have a statement of understanding and compliance with her duty to the court;


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. contain a declaration of truth regarding the content (O'Hare, Browne & Hill 2000: 416). Selection of the appropriate expert is essential. It was stated earlier that the expert must be from the same professional specialism but, in addition, some experts specialise in specific aspects of care, such as shoulder dystocia. Access to textbooks and policies of the day would be important. In the future, NICE guidelines will be essential documents to be accessed by expert witnesses in health care cases. In the case of the cord prolapse described earlier, an expert witness would need to consider what was occurring in practice, but also what was being taught at the time. If the case had occurred in 1982, as opposed to 2002, what differences would there be? There would be no difference in the expectation that the midwife would keep her fingers in situ or change the woman's position so that gravity could help in reducing pressure on the cord. The only difference would relate to whether or not facial oxygen should be given to the mother. Current practice takes account of the fact that giving extra oxygen to the mother, while possibly harmful to her, does nothing to improve the fetal condition, as the level of oxygen is not the problem, it is the fact that it cannot pass through to the fetus. In the 1980s, however, and until much later in some units, it was still given as routine practice; `routine' being the problem, rather than midwives and doctors being critically analytical of their practices. The oxygen issue raises an interesting point. Let us consider the hypothetical situation of the position in reverse. Imagine that in 1982 oxygen was not given in cases of cord prolapse; however, later research indicated that it could prevent death or damage to the fetus so that, in 2002, it was considered good practice. According to the ruling in Whitehouse, the case must be judged in accordance with practices in 1982, when oxygen was not given. The `body of opinion' would support the action of the midwife and she would not be found guilty of negligence. However, if we return to real rather than hypothetical practices, the practice at the time was to give facial oxygen, so would a midwife be found to have been negligent by not giving it, even though it has since been recognised that it would have done no good? It is possible that some units had abandoned this practice at that time, so there could be a `body of opinion' that supported the midwife. It is debatable whether someone would be deemed negligent for not taking action that has since been abandoned. If they were, then the case would be heading for appeals at the highest level if necessary. If the claim of negligence was upheld, it might still fail with regard to causation.

Causation In the case of the cord prolapse (Case study 5.1), it would be easy to identify that Sylvia had a duty of care to Angela and it is probable that any expert witness would state that her actions were inappropriate, thus establishing that negligence had occurred, in that the duty of care had been breached. The next consideration is whether that breach was the cause of the harm or injury as claimed; that is, but for Sylvia's inappropriate action, would the baby have suffered brain damage? It is

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only where such a link can be proved, on the balance of probabilities, that compensation will be awarded. Discussion in a coffee-room would probably indicate that most practitioners would believe that cause and effect was obvious; however, it may be more difficult for Angela's lawyers to prove that causal link. There could have been antenatal reasons for the baby's damage but, in view of the nature of cord prolapse, the damage might have been caused already, before Sylvia confirmed the situation. In which case, even if she had followed expected procedures, perhaps the baby would have been damaged anyway. The difficulty in proving a causal link was evident in the case of Wilsher v. Essex AHA (1987), as discussed earlier, where the final decision was that, as there are many causes of retrolental fibroplasia in very preterm babies, it could not be proven that the doctor's negligence was responsible. Another case that demonstrates the difficulty clearly is the case of Barnett v. Chelsea and Kensington Hospital Management Committee [1969]. Three night watchmen went to the hospital casualty department at about 08.00 h. They had all been vomiting after drinking tea, and one, Mr Barnett, was ill enough to need to lie down. The nurse contacted the casualty officer, who was himself ill, and told him about the three men. He did not attend them but suggested that they go home and, if necessary, see their own doctors. Later that day Mr Barnett died. It was found that he and the others had arsenic poisoning. Mrs Barnett sued for damages. The casualty officer did have a duty of care to Mr Barnett, from the time he was notified by the nurse, but also in terms of his responsibilities within the casualty department. The court decided that he breached that duty by failing to see Mr Barnett and admit him to the hospital; therefore he was negligent, as in the case of Bolitho. Nevertheless, Mrs Barnett lost the case because the judges failed to accept a link between the failures of the doctor and Mr Barnett's death. Arsenic poisoning is rare and it would have been impossible to obtain the antidote, even if an accurate diagnosis had been made. Mr Barnett's death was, therefore, ascribed to the poisoning rather than the negligence. There are times when the link between the damage someone has suffered and a negligent act is very apparent and this applies in midwifery and obstetrics, as in any other specialty. A vaginal pack left in situ thus causing infection, a swab left in the abdomen during a caesarean section or a baby injured at delivery by a scalpel or episiotomy scissors are so clearly incidents that should not have happened that the court will readily recognise the causal link. In other cases it is for the plaintiff to prove the link, on the balance of probabilities, between the negligent action or omission and the damage that occurred. In Wilsher v. Essex AHA [1987] the parents claimed that their preterm baby's retinal damage was caused by the negligence of the Trust, through the paediatricians. Negligence and causation were proved in the initial court and the decision was upheld in the Court of Appeal. However, the House of Lords ordered a new trial. This time it was established that there were a number of causes of retrolental fibroplasia, especially in preterm babies, therefore causation was not proved. There are particular circumstances in midwifery and obstetrics that make it more difficult to define the causal link. Many of the cases involve the fetus sus-


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taining the alleged damage rather than the woman. Much of the care and monitoring of the fetus is indirect as it occurs through the woman. Courts are, therefore, often required to make a judgment about whether a fetus has been damaged by a very specific act or omission or set of circumstances. The judgment is based only upon indirect observations or by looking backwards from the time of birth, or even some time afterwards, and determining whether a child's condition was caused by those circumstances.

Clinical issues in labour associated with causation The courts currently place emphasis on the examination of labour records and CTG tracings when trying to decide whether there has been negligence on the part of the midwife. Indeed, one of the most common reasons for cases to be brought has been failure to monitor the condition of the fetus in labour. Some doubts were raised, however, about the link between events occurring in labour and subsequent brain damage. Sir Donald Acheson, Chief Medical Officer at the time, presented a lecture in 1991 where he discussed the possibility that much subsequently diagnosed brain damage could be the result of events taking place antenatally, rather than in labour. This idea gained strength among doctors and midwives. Whether recognition of the influence of antenatal care and management is having any impact by decreasing litigation or whether it is just diverting the legal emphasis towards the questioning of care in pregnancy will probably not be known for some time. The courts have been influenced by varying interpretations of the CTG when making a judgment. However, there has been growing clinical controversy over the interpretation of these graphs, particularly where the monitoring is not accompanied by fetal blood analysis. The extent to which CTG abnormalities can be linked to fetal compromise is now much less certain. The growing unrest regarding electronic fetal monitoring in labour, and the fact that it appeared to lead to greater intervention, was eventually recognised and the NICE produced evidence-based guidelines for this practice in 2001. Such monitoring has now been reduced, with greater emphasis on intermittent monitoring by Pinard's stethoscope or hand-held Doppler, in low-risk cases. In addition, most units have better training in the interpretation of CTGs, often by the use of computer packages and multidisciplinary discussions relating to the appropriateness of action taken based on CTGs. These improvements should play their part in reducing problems, but also in creating greater clarity when CTGs are used as evidence in court.

Compensation Having determined that the negligence caused the harm or injury, the court then has to decide on the amount of damages to be paid to the plaintiff. In determination of the amount, the court will take account of actual loss incurred by the plaintiff, plus predicted loss where appropriate. What it does not seek to do is determine an amount that seems appropriate punishment to the negligent body. A tariff has been developed with regard to the personal injury aspect of a claim, to

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enable consistency of awards. In addition, there would be payment for pain and suffering and loss of amenity, plus loss of actual and future earnings, as appropriate (Montgomery 2002: 187). Damages in the case of a child with cerebral palsy will be in millions of pounds whereas, in the case of a baby being stillborn, other than general damages, there will only be bereavement damages, which amount to £7500 (Dimond 2002: 199). If part of the cause of the harm relates to the woman's actions or inactions, then compensation will be reduced if contributory negligence is determined, for instance, if the woman fails to give information that is of relevance to her care or that of her baby, perhaps relating to her medical history or maybe drug addiction, or if she fails to follow instructions and that failure leads to harm (Kennedy & Grubb 1998: 416).

Vicarious liability In most cases used in this chapter, the defendants have been the health authorities rather than a named professional, although the professionals involved would have given evidence and felt the impact of the accusations and investigation. The reason for this position is the doctrine of vicarious liability, by which the law can hold one person or institution liable for the actions of another. The most common form of vicarious liability is that of an employer being held responsible for the negligent actions of employees, in the course of their employment. This doctrine has arisen from public policy, as employers are in a better position to pay the compensation than the individual employees. However, a patient could still choose to sue an individual, instead of or along with the relevant Trust, health authority or practice; they would not get double compensation but might get satisfaction in other ways. The NHS accepts vicarious liability, thus indemnifying its employees for negligent acts or omissions. Since the first days of the NHS, this indemnity has been in place for midwives and nurses, although it was not until January 1990 that it was extended to doctors employed by the NHS. Hence cases heard before this date were for malpractice against the individual, such as Mr Jordan in Whitehouse. Prior to this date all doctors had to have professional indemnity insurance. However, although the hospital doctors are covered by the NHS, GPs are self-employed and therefore not covered; they still require cover by the medical defence unions. The same position holds for independent midwives; as they are not employed by anyone there is no-one to be vicariously liable for them. Although covered by vicarious liability in most situations, professional indemnity insurance is still required for employed midwives and provided for most of them through the RCM. This indemnity is very important in case a woman chooses to sue the individual separately for malpractice or to provide cover for events outside their employment, such as the Samaritan acts discussed earlier. It is a particular issue for independent midwives, who have no vicarious liability cover and for whom the RCM had to withdraw cover because the general membership were not in favour of increasing their premiums to cover the very high costs of the few. When the NMC produced the Code of Professional Conduct (2002), it was advised by its lawyers that personal indemnity insurance should be a condition of practice. This suggestion caused concern for the Council and for some practitioners. A


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consultation exercise was conducted and the result was that the Council will add clauses related to this topic in the next edition of the Code, recommending indemnity cover, rather than insisting upon it (NMC 2003). The 1990 legislation required NHS Trusts to meet the costs of any damages awarded against them out of their own budget, by raising regulated loans, or through the Clinical Negligence Scheme for Trusts (CNST), which is outlined below. As stated above, claims could be in the millions for some midwifery or obstetric claims. For this reason a concern was raised that Trust boards might exercise an employer's right of indemnity where, theoretically, it could claim against the negligent employee because of a breach of contract. Midwives were particularly concerned as they work in an area of high litigation costs and might have found that successful claims would raise their professional indemnity insurance payments to unacceptably high levels. The NHS has agreed not to exercise this right (Montgomery 2002: 197); however, staff could still be disciplined and possibly dismissed for proven negligence, which constitutes a breach of contract. In order for vicarious liability to be established in a case of negligence, it has to be determined that an employee, acting in the course of her duty, was responsible for the negligent act or omission. There are two particular issues here, the first being what constitutes an employee. Basically, anyone holding a standard contract, full time, part time, fixed term or bank, is an employee. There has often been contention regarding midwives working through agencies and who covers them for vicarious liability. Regardless of the type of contract they hold, they should be covered by the Trust for the shifts undertaken there. According to Lord Denning, in Roe v. Ministry of Health [1954]: `. . . the hospital authorities are responsible for the whole of their staff . . . whether they are permanent or temporary, resident or visiting, whole-time or part-time . . . The reason is because . . . they are agents of the hospital to give the treatment. The only exception is [professionals] employed by the patient himself.' This ruling indicates that if the Trust does not want to cover the agency midwife then it should not engage her in the first place. The only exceptions to the rule are people employed by the woman, such as an independent midwife, private doctors or an alternative therapist, whom she might choose to have with her during her labour, either in hospital or at home. A similar situation applies to certain honorary contracts as to agency staff, but not all. An independent midwife, or a midwife being allowed to undertake care of a friend or family member in a unit in which she is not employed, will have an honorary contract for the care of the named person only. This contract will rarely include vicarious liability. However, student midwives and midwifery educationalists who are linked to NHS Trusts to work with students and trained staff should have honorary contracts that provide vicarious liability for carrying out relevant NHS care, in line with Trust policies. Consideration also needs to be given to midwives who undertake antenatal clinic care as part of their role as practice nurses. Where this is the expectation of the GP, the midwife fulfils the PREP requirements for remaining on the effective Register as a midwife and notifies her intention to practise to a supervisor of

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midwives each year, she is covered for vicarious liability by that GP (or group practice). The GP should be fully aware of his responsibilities in this situation, but he may have to increase his medical insurance to cover her. However, if that same midwife, while able to practise by dint of the same conditions of registration and notification, undertakes such care because it suits her, or she feels it would be helpful, it is probable that the GP would not cover her actions. She would then be liable to possible action for malpractice, whereby she would be in a similar position to that of an independent midwife. It would appear that most people in the maternity services are covered, so it could be difficult to determine how a non-employee could cause the harm. A few moments' thought should bring to mind a number of occasions when visitors have been found to be tampering with equipment, not with any malice intended but thinking that they are helping. There have also been occasions when plugs have been removed from sockets in order to plug in a radio or something else, perhaps with the intention of replacing the original plug very soon but then it was forgotten. It could also be that an off-duty midwife visits a friend in another maternity unit and, because the staff seem frantically busy, undertakes a task in order to assist them and her friend, but makes a mistake. The second issue relating to establishing vicarious liability involves àcting in the course of her duty'. It is generally understood that this phrase encompasses working within the individual's job description, according to the rules of the employers, and within the laid-down policies and procedures. For midwives, it also involves working within the Rules and Codes of the NMC. Therefore, if a midwife has used her clinical judgement and acted outside the policies, as long as she has acted within her sphere and scope of practice, she would be covered as acting within the course of her duty. There have been many concerns in the past regarding cover for midwives who work beyond the end of a normal shift. Before Changing Childbirth (DH 1993), responses from managers to this issue were often conflicting. If it suited a midwife to stay on duty to continue the care of a woman, usually in labour, and there were sufficient midwives to cope with the workload at that time, managers often stated that midwives could not stay as they `would not be covered'. However, if it was thought that the remaining staff could not cope adequately, perhaps because someone went off sick at the last moment, or the unit was particularly hectic at that time, managers would ask, or even demand, that midwives stay until the situation calmed down or until agency staff arrived. This was a situation of double standards that bewildered many midwives and really related more to finances than vicarious liability. After Changing Childbirth, when continuity of care and carer was being promoted, it suddenly became feasible, and even encouraged, for midwives to extend their shifts. In fact, even before 1993, midwives were covered, because they were carrying out the business of the Trust.

Clinical Negligence Scheme for Trusts (CNST) As stated above, once the legislation created NHS indemnity for hospital doctors, the Trusts were expected to meet the costs of any damages awarded against them. As the awards for obstetric cases could be in millions of pounds, such claims


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would seriously affect the budget and, therefore, the continued provision of services. In 1994 the CNST was established in England to cover claims occurring from 1 April 1995 and the scheme is administered by the NHS Litigation Authority (NHSLA). The other UK countries have developed their own methods of dealing with the claims (CESDI 2001: 101). In the English system, Trusts can opt into the scheme and pay a determined premium in order to achieve financial cover, as an insurance scheme. In order for a Trust to keep its contributions as low as possible, there are certain standards that must be achieved. Originally there were ten core standards that applied to all areas of any Trust, but there was an additional standard for highrisk areas, of which maternity services was one. In view of the fact that significant claims, in number and cost, relate to maternity services, separate standards have now been developed for this area. This initiative was requested by the maternity services and supported by the DH's objective of achieving a 25% reduction in obstetric risk by 2005 (DH 2000: 86). The new maternity services arm of the scheme covers all obstetric and midwife-led services during pregnancy, labour and the puerperium, including obstetric anaesthetics and all neonatal services (NHSLA 2002: 2). In the new document there are eight core standards, each comprising assessment criteria by which member Trusts are assessed. The maternity services in each member Trust must be assessed àt least once in any two-year period'. There are three levels of assessment and achievement of the different levels permits a different level of reduction in premiums. The initial assessment is at level one, then assessment at levels two and three are at the request of the Trusts themselves. If they fail to achieve level one then they will be assessed annually. Trusts have to undertake assessments in numerical order and they cannot undertake more than one per financial year, although they can request interim guidance visits. The maternity services standards are as follows. (1) (2) (3) (4) (5) (6) (7) (8)

Local arrangements and accountability for implementing clinical risk management are clearly defined. The maternity service proactively uses internal and external information to improve clinical care. Women are informed by competent professionals of all aspects and options concerning their treatment and care, and there are clearly documented systems for management and communication between professional staff. There are clear procedures for the management of general clinical care. There are management systems in place to ensure the competence and appropriate training of all professional staff. A comprehensive system for the completion, use, storage and retrieval of health records is in place. Record-keeping standards are monitored through the clinical audit process. A clinical risk management system is in place. Maternity services must provide safe care for mothers at all times (NHSLA 2002: 14±18).

It is no surprise that the expectations of clinical governance relate closely to these standards.

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Rights and limitations All women have the right to sue their attendants if they have possibly suffered as a result of negligence. They may find that their lawyer will advise against doing so because of the potential difficulty of proving a breach of duty of care, or establishing causation, or because the extent of the suffering would not attract sufficient monetary damages to warrant it. While severe physical damage, such as paraplegia due to an error with an epidural, will attract considerable damages to cover the cost of future care and loss of earnings, emotional damage attracts much less recompense. Lawyers will balance the level of potential damages against the complexity of the case when giving a woman advice. Seeking legal redress is expensive and the financial support system has changed since the Access to Justice Act 1999. The Legal Services Commission has established a Community Legal Services fund to replace the former Legal Aid scheme and insurance cover is used to cover expenses, should the case be lost. If the case is won and costs are to be paid by the other side, then the insurance premium will be included in the costs (Dimond 2002: 6). The financial situation can be a deterrent to the public accessing legal services, although the current advertising of `no win, no fee' services may attract more access. Only living people have rights in law. Normally they cannot sue or be sued before they are born or after they have died. Thus a case cannot be brought to redress the loss of life for the victim, only for the loss suffered by the relatives. No damages relating to expectation of life will be paid for a stillborn baby or one who dies shortly after birth, although the parents will be able to claim for their emotional suffering. Until the mid-1970s this principle was absolute and applied equally to the fetus even if it could be proved that negligence in pregnancy caused an injury that would affect him for the rest of his life. Victims of the thalidomide tragedy would not have been able to sue even if they could have proved all the elements of negligence, as they were not alive when the women took the drug. All payments subsequently made were ex gratia and a result of the public campaign on their behalf. The thalidomide tragedy did, however, draw attention to the flaw in the law which barred these children from seeking legal recompense and, as a result the Congenital Disabilities (Civil Liability) Act 1976 was passed for England, Wales and Northern Ireland. This Act established the right of the child to claim compensation for someone's negligent actions if he is disabled as a result of that negligence before his birth. The Act does not go so far as to establish a primary responsibility to the fetus. Instead, it states the principle that if there is a duty of care to either parent and a breach of that duty of care, which affects the person's ability to have a normal, healthy child, harms the fetus, he will then have the right to sue. This right is contingent on him surviving, as if he dies there is no disability. Any claim after his death would be by the parents for bereavement damages. There are exclusions in the Act. The child may not sue his mother for causing harm through drug or alcohol abuse or smoking. The only claim that can be made against his mother is if she has been negligent while driving a motor vehicle and is covered by insurance. In addition, he cannot sue his parents if both of them, or the mother alone, knew of a preconception risk, although he may still sue his father if


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the father knew of the risk and the mother did not. The Act states the standard of professional care that is expected, which is in line with Bolam. `The defendant is not answerable to the child, for anything he did or omitted to do when responsible in a professional capacity for treating or advising the parent, if he took reasonable care having due regard to the then received professional opinion applicable to the particular class of case; but this does not mean that he is answerable only because he departed from received opinion.' (Congenital Disabilities (Civil Liability) Act 1976, section 1(5)) People do not have unlimited time to take action. Under the Limitations Act 1980, a person has three years in which to submit a claim for negligence. This three-year period starts from the date of the harm or injury being sustained, or from the first date of the claimant's knowledge of it. However, there could be a situation where someone has been taking prescribed medication for many years and later he discovers that a problem that he has developed during that time has possibly been caused by the drug. Applying the three-year rule from the time of original prescription would mean he was time barred and this would be an injustice. In midwifery, it could be some time before a woman finds out the seriousness of her injury or the suspected cause. For instance, a woman who sustains pelvic floor damage during childbirth may not be aware of the severity of the problem at first. She may think that pelvic floor exercises and the involvement of an obstetric physiotherapist will correct her problems. However, if a year or two later she is told that she will be permanently incontinent or she is still unable to resume sexual intercourse, she may choose to seek compensation. The three years will run from the time she first knew of the seriousness of the problem. While the Limitations Act 1980 allows for a delay in determining the cause of a problem, or the recognition of its severity, it would appear that the woman must show that she has sought appropriate, timely advice, as the following case indicates. Following the birth of a baby in 1960, a woman suffered dyspareunia and pain during normal daily activities; however, she was too embarrassed to seek help to determine the cause. In 1983, five children later, she discussed the problem with a female GP. Gynaecological investigation and surgery was undertaken over a period of 11 years, with no cause found. In 1991, an X-ray identified a 2-inch piece of surgical needle, apparently left in her tissues when the needle broke during perineal suturing by a doctor, following her first birth. However, she was not told about the needle until 1994, during an orthopaedic review. The court ruled that, as she was aware of the pain following the first birth, she should have realised that it was connected to that episode of care and sought medical advice. It was determined that the prolonged episode of gynaecological investigation was not negligent in failing to detect the problem, as the woman did not give a full picture of her symptoms. Also, in 1991, the orthopaedic specialists could not be expected to relate their findings to gynaecological problems. (Alice Maud Fenech v. East London and City Health Authority [1999]). Congenital disabilities could take a long time to be diagnosed and it could take even longer for the parents to realise that there was a possible causal link with an

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event in pregnancy or labour. Even if they do realise it, they may choose not to take any action until they realise the financial consequences related to the care of their child. If they have taken no action by the day before his 18th birthday then the young person himself, now an adult, has until the day before his 21st birthday to submit a claim. This gives him the same three-year limit as any other adult, as a child is deemed not to have knowledge of the potential cause of his disability. However, if a person is of unsound mind, that is, he is incapable of running his own affairs and this includes arrested or incomplete development of mind (Mental Health Act 1983), time will not run out for him. If his condition persists, an action can be brought in his name at any time during his lifetime. This would certainly apply to babies who are brain damaged.

Withholding and withdrawing treatment An area of great concern for some practitioners relates to the withholding and withdrawing of life-prolonging treatment. This topic is loaded with ethical issues, which will not be expanded upon here. However, it also creates anxiety with regard to possible civil claims of trespass and negligence, perhaps even criminal charges of manslaughter for death occurring from a failure to treat (Montgomery 2002: 461) and a breach of Article 2 of the Human Rights Act 1998. In midwifery, it is possible to have a child-bearing woman in a condition whereby consideration might be given to withholding or withdrawing treatment, such as following a road traffic accident or a major cerebral incident due to disease or error. However, this is fortunately rare. What is not so rare is the incident occurring in neonatal care. Most cases occur with regard to very preterm babies, although these are not the only cases. Many preterm babies are born these days, partly because the advances in neonatal care provide the option of early delivery where the condition of the woman or the fetus is deteriorating. Also there has been an increase in multiple births, especially following assisted conception, which may give rise to preterm labour. More of these babies can survive birth and, because of the advances in neonatal care, more live on beyond the first day or so. However, the prognosis is not always good, particularly where cerebral haemorrhage has occurred, and the continuation of care must be discussed. Certain general principles apply, regardless of whether it is a woman or a baby whose care is in question. There have been a number of publications dealing with this major issue and the latest guidelines were published by the General Medical Council (GMC) in August 2002. The treatments in question are those that are lifeprolonging and can range from artificial nutrition and hydration to highly technical and invasive methods. One of the guiding principles in the document is that prolonging life should be in the patient's best interests and should not be excessively burdensome. In a cost±benefit analysis, the benefit of the treatment should outweigh the costs in terms of pain, suffering and risks of further harm or injury. In acute illness, there would usually be no question about what is in the patient's best interests but where a condition is deemed hopeless, as in persistent vegetative states, or where death is an inevitable consequence of the condition, the questions should be asked. In obstetric cases, the woman is unlikely to be in a situation where she can


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express her own wishes, but there may be evidence of an advance directive as to the course of action that she would want to be followed if such circumstances arose. If an advance directive is deemed valid, that is, it was an informed decision made by a competent person, then it would be legally binding. Such a situation occurred in Re AK (Competent adult: refusal of medical treatment) [2000]. In this case, a young man of 19 years, who suffered from motor neurone disease, had asked to have his ventilator turned off should he lose the ability to communicate. Two weeks after reaching that point the health authority sought a High Court declaration on the lawfulness of following his instructions. The Court ruled that the cessation of ventilation would not be active euthanasia, but the withdrawal of invasive treatment for which they no longer had the patient's consent and thus cessation was lawful. This view has been upheld when such cases have been examined under the Human Rights Act 1998. What the law will not allow is the active taking of life, which would always lead to criminal charges, as with Harold Shipman, even at the patient's request. In another case concerning motor neurone disease, the patient, Diane Pretty, wished to die before reaching a certain stage of suffering that was inevitable in this disease. By law she had the right to commit suicide (Suicide Act 1961) but, because of the effects of the disease, she was unable to do so without assistance. As it is a criminal offence for someone else to assist in this process, she sought permission through the courts for her husband to be pardoned in advance and, therefore, enabled to help her at the appropriate time. She took her case through the whole system, ending at the European Court of Human Rights (ECHR) (Pretty v. UK [2002]), arguing that she was a victim of a breach of Articles 2 and 3 of the Human Rights Act 1998. The ECHR ruled that these Articles did not protect the right to die, so her case failed. The only way for a change of this nature to occur is in primary legislation. With a neonate there would usually be at least one parent who could make decisions for the baby although there could be a situation where the woman is a single parent and she is in a life-threatening condition herself. Decisions made regarding the neonate's care must also be with a view to `best interests'; it is important that it is the best interests of the baby, not her parents or professional carers. While it can be very compelling to maintain a baby on life support because the parents have still got hope, the rights of the baby are paramount. The Royal College of Paediatrics and Child Health outline two situations in which it would be legally acceptable to withdraw life-prolonging treatment from a neonate. The first is `No Hope/Chance', where the treatment cannot improve the condition of the baby, it just delays death. The second is the `No Purpose Situation', where the expected quality of the child's life is such that it would be presumed to be intolerable (RCPCH 1997: 20). The child and the family must all be treated with dignity and respect throughout the process. Although the final decision is the responsibility of the consultant in charge of the case, it would be usual to have a case conference to determine future actions. Such a conference would include all staff involved in the baby's care plus close family. The views expressed by those at the conference should assist the doctor to make his decisions. However, in the event that there are significant differences in views, particularly between the staff and the relatives, legal advice should be sought, as

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the case may require a court ruling. All discussions and decisions made must be fully documented. It is sometimes felt that withholding the treatment in the first place is morally more justifiable than withdrawing it later. However, sometimes the initiation of early treatment is essential to give time for proper consideration. As there is no legal obligation to provide treatment that is not in the best interests of the patient, there is no legal difference with regard to withholding treatment in the first place, or withdrawing it later (GMC 2002: para 19). Another concern often expressed is with regard to provision of nutrition and hydration and great debate has taken place as to whether it constitutes care or treatment. The distinction is important, as if it is care, it must be offered and cannot be withdrawn without the consent or express wish of the patient. In the case of Airedale NHS Trust v. Bland [1993], it was determined by Lord Goff that artificial nutrition and hydration constitute treatment and where that treatment is deemed `futile', it is lawful for it to be discontinued. Similar rulings were made in NHS Trust À' v. Mrs M and NHS Trust `B' v. Mrs H [2000], where both cases involving persistent vegetative state were considered in the one hearing. It is understandable that carers will find it difficult to support such decisions; however, the woman or the baby, once life support has been withdrawn, will still need good care in their dying minutes, hours or days, as will the families. The GMC has determined that doctors can exercise a conscientious objection and withdraw from continuing care, having ensured that there is a suitably qualified replacement to take over. Whether this same objection would be allowed for midwives, under point 2.5 of the Code of Professional Conduct (NMC 2002), is debatable.

Wrongful birth and wrongful life Claims for wrongful birth have been made when a woman becomes pregnant following surgery for sterilisation of either herself or her partner. Some claims have been made as a breach of contract, but judges have ruled that there can be no warranty for such medical procedures (Kennedy & Grubb 1998: 12.92±3). It has followed that such claims can only be made through the tort of negligence, where the plaintiff would have to prove that it was a doctor's negligence, rather than a biological accident of nature effectively reversing the process undertaken. The doctor's duty only extends to the patient and their spouse or known partner. There have been varied responses to claims for damages in such situations, with judges disagreeing in different cases. Judge Jupp ruled out costs related to the child because, among other things, the birth of a child is à blessing and an occasion for rejoicing' (Udale v. Bloomsbury Area Health Authority [1983]). Whereas Judge Pain, in Thake v. Morris [1986], recognised that the birth of a baby, although healthy, was not always a blessing. In McFarlane v. Tayside Health Board [1999], it was determined that parents could not claim for the costs of raising a healthy child as this was too remote from the personal injury itself. Then, in Kerry Roberts v. Bro Taf Health Authority [2001], and other cases, general damages were awarded for the admitted negligence causing failed sterilisation, plus further damages for the extra costs related to the child being disabled, beyond those which would be incurred by a normal child, therefore still upholding the principle of the McFarlane ruling. A


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similar ruling occurred in cases of failure to diagnose pregnancy: Groom v. Selby [2000], Greenfield v. Flather and Others [2001], also in a case where the pregnant woman was wrongly advised following failure to diagnose rubella: Hardman v. Amin [2000]. Claims for wrongful life, on the other hand, occur when the child claims that it should never have been born. In 1982 the case of McKay v. Essex Area Health Authority, the claim was brought in the name of a child claiming that she should not have been born. Her mother had been tested for rubella antenatally and told that she had not been infected. She subsequently gave birth to the daughter who had severe disability related to rubella. The court determined that there could be no duty towards the fetus to cause its death. The principle of wrongful life was rejected as contrary to public policy and there appears to be no sign of this position changing (Kennedy & Grubb 1998: 12.67).

The compensation system The system for achieving compensation in the UK, as described above, depends upon the plaintiff proving that someone has been at fault in order to get compensation. The advantage of such a system is that negligence of a named health care professional is made explicit, as is the name of the employing NHS organisation, and this can act as a powerful mechanism for at least maintaining professional standards. However, the need to prove fault can polarise the two sides in a case, with both relying heavily on expensive expert witnesses and prolonged legal argument to prove or disprove alleged facts, although the changes in the Civil Procedure Rules are intended to greatly improve the process. The system can also be a `lottery' for the plaintiff with no guarantee that compensation will be awarded. Compensation can be more dependent upon the skills of the lawyers than upon her actual needs. In the case of Whitehouse v. Jordan and Another [1981], Stuart Whitehouse was 11 years old when the final judgment was made in the House of Lords and, in the end, he had no compensation. Yet he was severely brain damaged and had great needs. One possible solution to the dilemma, which has been discussed for a number of years, is to move to a `no fault' system. In such a system all that has to be proved is that a medical accident has occurred and compensation will be awarded. Despite a move by doctors to support such a scheme, the National Health Service (Compensation) Bill 1990 failed to achieve a second reading in the House of Commons in 1991. Much of the dissent appeared to relate to the proposed mechanism of the scheme itself, rather than the principle (Montgomery 2002: 212). Perhaps this fact will leave the possibility open for another attempt in future years.

Summary This chapter has considered the midwife's accountability, in civil law, for her practice. Application of the duty of care and discussion about the assessment of appropriate standards of care, with examples of relevant cases used in legal

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judgment, should enable midwives to reflect on past practice and consider a suitable approach to future practice. Such consideration should result in less anxiety for the midwife and safer standards of practice for women and their babies. While not discussed in this chapter, it is essential to consider the points made in the previous chapter with regard to record keeping. Just as the Ombudsman must rely on records to determine events, so do the courts in determining events from a legal perspective. Clear, contemporaneous records are a midwife's best evidence of events and discussions. If the evidence is poor, so is the defence.

Reader activity . Consider some clinical practices from your first year as a qualified midwife; were they different from current practice? Why have the changes occurred? . Read your local policies and guidelines for care. When were they updated last? If you are working with outdated policies consider what a court would make of a claim for negligence. Approach the supervisors of midwives or the Head of Midwifery to alert them to the position. . Ask your Head of Midwifery Services to discuss the latest CNST report with you or your team. . Approach your Trust's legal department to determine the types of midwifery or obstetric cases that they have had to deal with in recent years.

References CESDI (2001) 8th Annual Report. Maternal and Child Health Research Consortium, London DH (1993) Changing Childbirth. Report of the Expert Maternity Group. HMSO, London DH (2000) An Organisation with a Memory. Report of an Expert Group on Learning from Adverse Events in the NHS. The Stationery Office, London Dimond B (2002) Legal Aspects of Midwifery, 2nd edn. Books for Midwives, Edinburgh GMC (2002) Withholding and Withdrawing Life-prolonging Treatments: Good Practice in Decision-making. GMC, London Grainger I, Fealy M, Spencer M (2000) The Civil Procedure Rules in Action, 2nd edn. Cavendish Publishing, London Kennedy I, Grubb A (eds) (1994) Medical Law, 2nd edn. Butterworths, London Kennedy I, Grubb A (eds) (1998) Principles of Medical Law. Oxford University Press, Oxford Kennedy I, Grubb A (eds) (2002) Medical Law, 3rd edn. Butterworths, London Montgomery J (2002) Health Care Law, 2nd edn. Oxford University Press, Oxford NHSLA (2002) Clinical Negligence Scheme for Trusts: Clinical Risk Management Standards for Maternity Services. NHSLA, London NMC (2002) Code of Professional Conduct. NMC, London NMC (2003) Briefing on Council Meeting on 16 January 2003. NMC, London O'Hare J, Browne K, Hill R (2000) O'Hare & Hill Civil Litigation, 9th edn. Sweet & Maxwell, London RCPCH (1997) Withholding or Withdrawing Life Saving Treatment in Children. RCPCH, London


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Resuscitation Council UK (2000) The Legal Status of Those Who Attempt Resuscitation. Resuscitation Council UK, London Rosser J (1999) Struck off ± the midwife who obeyed doctor's orders. Practising Midwife; 2(4): 4±5 Symon A (2001) Obstetric Litigation from A±Z. Quay Books Division, Mark Allen Publishing, Salisbury Symon A (2002) Expert witness reports ± repositioning midwifery. MIDIRS Midwifery Digest; 12(2): 155±8 UK Register of Expert Witnesses (2000) Your witness. Newsletter; Issue 20: 6 Woolf LJ (1996) Final Report: Access to Justice. HMSO, London Woolf LJ (2001) Are the courts excessively deferential to the medical profession? Medical Law Review; 9(1): 1±16

Statutes/SIs Access to Justice Act 1999 Civil Procedure Act 1997 Civil Procedure Rules 1998 Congenital Disabilities (Civil Liability) Act 1976 Human Rights Act 1998 Limitations Act 1980 Mental Health Act 1983 National Health Service (Compensation) Bill 1990 Suicide Act 1961

Cases Airedale NHS Trust v. Bland [1993] AC 789 Alice Maud Fenech v. East London and City Health Authority [1999] 1 LLRM 35 Barnett v. Chelsea and Kensington Hospital Management Committee [1969] 1 QBD 428 Bolam v. Friern Hospital Management Committee [1957] 2 All ER 118, [1957] 1 WLR 582 Bolitho v. City & Hackney Health Authority [1997] 4 All ER 771 Donoghue v. Stevenson [1932] AC 562, 599 (HL) Greenfield v. Flather and Others [2001] 4 LLRM 143 Groom v. Selby [2000] 2 LLRM 39, [2000] 1 LLRM 1 (CA) Hardman v. Amin [2000] 10 LLRM 498 Hunter v. Hanley [1955] SLT 213 at 217 Kerry Roberts v. Bro Taf Health Authority [2001] 4 LLRM, 182 (QBD) Lucy Reynolds v. North Tyneside Health Authority [2002], 10 LLRM 459 McFarlane v. Tayside Health Board [1999] 1 LLRM 1 (HL) McKay v. Essex Area Health Authority [1982] QBD 1166 Maynard v. West Midlands Regional Health Authority [1985] 1 All ER 635 (HL) NHS Trust À' v. Mrs M and NHS Trust `B' v. Mrs H [2000] 1 LLRM 28 Pretty v. UK [2002] 2 FCR 97 Re AK (Competent adult: refusal of medical treatment) [2000] 58 BMLR 151 Roe v. Ministry of Health [1957] 2 All ER 131 Sansom v. Metcalfe Hambleton and Co. [1995] Law Society Gazette, 4 February Simms v. Birmingham Health Authority [1999] 7 LLRM 382

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Thake v. Morris [1986] QBD 644 Udale v. Bloomsbury Area Health Authority [1983] 2 All ER 522 Whitehouse v. Jordan and Another [1981] 1 All ER 267, [1981] 1 BMLR 14 (HL) Wilsher v. Essex Area Health Authority [1988] 1 All ER 871, [1998] AC 1074 (HL)

Chapter 6

Consent and Refusal

Consent has only been considered as an issue since the Nuremburg trials and has only been taken seriously since the early 1970s. However, in current practice, all health care professionals are expected to be fully conversant with the principles of consent and refusal related to investigation, care and treatment. Indeed, professional bodies produce codes of practice and conduct for their practitioners that specifically include this issue. However, many cases reported on in the 1990s and early 2000s (e.g. St George's Healthcare NHS Trust v. S [1998], DH 2001a,b) suggested that either many professionals did not understand the relevant ethical and legal principles or they chose to ignore them. Of particular importance to midwifery were the cases of ènforced' caesarean section and the public enquiries related to the retention of human tissues, in Bristol (DH 2000) and Liverpool (DH 2001b), which will probably have ongoing repercussions with regard to requests for postmortem examination and tissue sampling of fetuses and neonates. In response to the national outcry following these and other cases, the Department of Health issued a number of guidance documents that clearly indicate the ethical and legal position across all aspects of care, whether related to assistance with dressing, performing major surgery or anything in between. The first documents, the Reference Guide to Consent for Examination or Treatment (DH 2001c) and 12 Key Points on Consent: The Law in England (DH 2001d), were published in March 2001 and covered the general principles, plus the pathways of accountability should a practitioner fail to obtain valid consent. In July of the same year, patient guidance documents were produced to inform the public of their rights with regard to consent. Then, in the November, four further documents were produced for health care professionals. Good Practice in Consent Implementation Guide: Consent to Examination and Treatment (DH 2001e) included a model consent policy and consent forms for four categories of patient: . . . .

those able to consent for themselves; those consenting on behalf of a minor; for both of the above but where ìmpairment of consciousness' would not occur; for adults who lack capacity to consent for treatment.

The remaining three documents produced in 2001(f,g,h) covered issues related to working with different groups of people: . Seeking Consent: Working with Children . Seeking Consent: Working with Older People . Seeking Consent: Working with People with Learning Disabilities.

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There is no need for a separate document related to midwifery practice. The expectation is that practitioners will apply the principles of the relevant documents to the specific case in hand. Most women, most of the time, can consent or refuse for themselves; however, in cases of temporary or permanent incapacity or where dealing with minors (child-bearing minors or neonates), the principles in appropriate documents should be followed. These issues will be discussed further, later in the chapter. According to Lord Donaldson, in Re W (Minor: medical treatment) [1992], there are two purposes in seeking consent: one is clinical and the other is legal. The clinical purpose relates to gaining co-operation from the individual and developing their belief in the proposed treatment, which should be achieved through the information giving and counselling process leading up to the person's decision. Failure of the professional to undertake this process properly could lead to a claim of negligence if any harm ensues. The direct legal purpose of consent is: `To provide those concerned in the treatment with a defence to a criminal charge of assault or battery or a civil claim for damages for trespass to the person.' Unlike a claim for negligence, a claim for trespass, or the tort of battery, does not require proof of harm. The fact that wilful touching has taken place without consent or, worse still, following actual refusal is sufficient to bring a claim. However, the touching must relate to care or treatment in a proper sense; fatuous cases relating to a supportive arm around the shoulders of a distressed person would not be considered.

Adults According to the DH, consent is only valid if given: `. . . voluntarily by an appropriately informed person . . . who has the capacity to consent to the intervention in question' (2001a: 4). Therefore, any midwife attempting to gain consent from a woman should contemplate whether that woman has the capacity to give consent and whether she has received sufficient information, with time to consider and discuss it, on which to base her decision. When consent is given, the midwife also needs to consider whether that consent was given voluntarily or under duress. The legal test for capacity to give consent is in three parts, known as the Re C Test (Thorpe J: Re C (Adult: refusal of medical treatment [1994]). The test requires that the woman should be able to understand and retain information related to the proposed investigation, care or treatment; she should believe what she has been told; and she should be able to balance the information in order to make her decision. The first part of the standard is straightforward but it is important that we give the information in understandable terms, not in professional jargon. The second part, however, appears a little strange: why would the woman not believe what she had been told? Consider the woman with a fetus presenting by the breech, whose obstetrician has told her on a number of occasions that he feels she should have a caesarean section, because he believes this method of delivery is

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safest for a breech presentation. She decides to hold out for a vaginal birth but during the labour he tells her that progress is not good or the fetal heart rate indicates distress, so he again advises a caesarean section. This woman may feel that he is just continuing the pressure for her to acquiesce to his wishes, rather than believing that there is a real problem. On the other hand, a woman may have an obstructed labour but refuse caesarean section and, when told that her baby could die without intervention, she might indicate that she believes what she has been told but still does not want to consent to surgery. The final part of the standard is where the woman has to be able to consider the risks and benefits of the proposals and make a decision. In order for her to do this, she must have been given the information that relates to the risks and benefits associated with the proposed course of action. In the UK, unlike the USA, it is not necessary to give information about every known risk. The legal standard is that `. . . the patient is informed in broad terms of the nature of the procedure which is intended' (Judge Bristow). This statement was made in the case of Chatterton v. Gerson [1981] and was, in effect, upheld in the case of Sidaway v. Bethlem Royal Hospital Governors and Others [1985]. In the House of Lords, Lord Scarman favoured the USA's system of informed consent; he stated that the duty was to inform patients of `material risks' that a reasonable person might hold to be significant (the prudent patient test). However, the eventual judgment was that the information given should be in accordance with the Bolam Test; in other words, what a reasonable professional would deem to be important. In this case, a number of expert witnesses stated that they would have given the same information as the surgeon in question, hence creating a body of professional opinion that supported him. Critics of the Sidaway ruling suggest that, while it has not positively promoted the continuation of paternalism and therapeutic privilege in medicine, it has not been instrumental in encouraging a patient-centred approach (Jones 1999: 104, Kennedy & Grubb 2000: 3.138). While supporting the `broad terms' approach to providing information, the court did agree, however, that should the patient ask specific questions about risks, the professional must answer truthfully. If failure to provide sufficient information results in a person consenting to a course of action that causes harm or injury, then a claim for negligence could be made. Such a situation occurred in Carole Gay Ogilvy Chester v. Fari Afshar [2002]. Here the High Court and the Court of Appeal held that the doctor's failure to adequately warn his patient of the risk of paralysis, following lumbar disc removal, caused her to undergo the operation that caused the harm. Having determined that a woman has the capacity to consent to treatment (as does a man), it is also established that she has the right to withhold her consent, by refusing care or treatment if that is her wish. There seems to have been an assumption, however, that a different approach could be used with regard to pregnant women. Midwives and doctors for many years appeared to believe that the woman had to consent to investigations and treatment for the sake of her fetus. In fact, much of what we subject a woman to in pregnancy and labour is in the interests of the fetus, with the assumption that it is also in her interests, as she would want to do all she could to ensure the safety and well-being of her baby. Use of the term `baby' is probably at the root of the problem, in that it gives a

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personality to this unborn parasitic creature, the fetus. In most cases this terminology is not a problem and it probably plays an important part in developing acceptance of the born baby into the family. However, in some cases, for various reasons, women do not want to be subjected to certain behaviours, investigations, examinations or treatments because it does not fulfil their own needs or beliefs. If practitioners used the term `fetus' in professional discussions, as opposed to `baby', when talking with the woman and her family, they might be able to focus more clearly on the fact that the woman has rights that do not apply to the fetus. A case of interest in this field is Re F (In utero) [1988]. A 36-year-old woman, nomadic in lifestyle, suffering from severe mental illness and drug abuse, went missing in late pregnancy. The local authority was concerned for the future child's welfare and sought orders to find her, determine where she should live and ensure that she attended the hospital. The judges, while sympathising with the local authority, unanimously rejected the application. They declared that there was no legal basis for making a fetus a ward of court, as it had no legal rights and such an order would override the rights of the mother. The issue of maternal versus fetal rights arose again and was dealt with in the infamous caesarean section cases, indicating that the position has not changed. In one of them, Tameside and Glossop Acute Services Trust v. CH [1996], Judge Wall reasserted the belief held by the judges in Re T (Adult: refusal of medical treatment) [1992] when he stated that: À mentally competent patient has an absolute right to refuse consent to medical treatment for any reason, rational or irrational or for no reason at all, even where that decision will lead to his or her death.' This assertion of a woman's rights to refuse treatment is useful when the situation requires consideration of the woman alone, perhaps a postnatal woman refusing a blood transfusion despite having experienced a major postpartum haemorrhage. There is also the possibility of someone requesting that a treatment is stopped, as with the patient in Re B [2002], where a quadriplegic woman requested that her ventilator be switched off; she was refusing to continue with a life-prolonging treatment. In this case, Dame Elizabeth Butler-Sloss stated that the court was not deciding whether Miss B should live or die but whether she had the capacity to make that decision for herself. As stated above, midwives and doctors have often felt unable to accept that such a right applies to a pregnant woman, particularly one in labour, at term. It is for this reason that some of the ènforced' caesarean section cases occurred, whereby the professionals felt that surgery was necessary to save the fetus from harm or death. Informal professional discussions throughout the country indicated that many midwives were not aware that the fetus has no legal rights while still in utero. Of those who were aware, there were many who felt that the fetus has moral rights that require health professionals to act on its behalf, even against the rights of the woman. It was therefore of great importance to the maternity services, and to women, when the Court of Appeal ruled in Re MB (Medical treatment) (1997).

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`The law is, in our judgement, clear that a competent woman who has the capacity to decide may, for religious reasons, other reasons, or for no reasons at all, choose not to have medical intervention, even though . . . the consequence may be the death or serious handicap of the child she bears or her own death . . . The court does not have the jurisdiction to declare that such medical intervention is lawful to protect the interests of the unborn child at the point of birth.' The judges also declared at this time that the ruling made in the first of these controversial cases, in 1992, was wrong. While this decision could not affect the outcome for that particular woman, it did prevent that case being used to inform judgments in future similar cases. The 1997 decision was further supported in the Court of Appeal ruling in another caesarean section case, that of St George's Healthcare NHS Trust v. S [1998], where it was stated that: Àn unborn child is not a separate person from its mother. Its need for medical assistance does not prevail over her rights.' In the cases indicated above, the relevant Trusts sought approval from the courts to undertake procedures that the women did not want to undergo. No doubt the doctors and Trust lawyers were concerned about possible repercussions, if harm or death had occurred by upholding the wishes of the women. Based on the more recent Court of Appeal rulings, the only way that doctors could request permission from the courts in the future, to effectively overrule a woman's decision, is if they can prove that she is incompetent to make that decision. Such proof would preferably be in the form of a psychiatrist's assessment. It would not be unreasonable to assume that, in life-threatening situations, midwives would feel pressured to try to persuade a woman to accept the proposed course of action. They might use the term `persuasion' to describe their attempts to change the woman's mind but what is persuasion? Is it: . being instrumental in encouraging someone to follow a course of action that we think is appropriate? . the encouragement of an individual to change their mind? . gently insisting that someone play the game according to our rules? Each of these descriptors equates to coercion and while we need to ensure that the woman has all the necessary information, we should not delude ourselves that `persuasion' is acceptable. The issue of coercion, or duress, is very important as it could later nullify the apparent consent of the woman. The woman could perceive that she was under pressure and compelled to agree to some course of action by a professional or a family member. This situation can occur when midwives and doctors are acting paternalistically, when they feel that they know what is best for the woman. Midwives appear more able to recognise coercion when the pressure is exerted by the woman's partner or a family member, perhaps because the pressure in these cases is often encouraging the woman to decide against what the professional view would be. Some relationships appear to be abusive, with partners dictating to women what care they can have, where the woman can have the baby and whether or not she can call a midwife when labour starts. In other cases, partners or family

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members may exert pressures regarding religious beliefs. One such case was that of Re T (Adult: refusal of medical treatment) [1992]. A pregnant woman had been in a road traffic accident and was visited by her mother, who was a Jehovah's Witness (JW). T then told staff that she would not have a blood transfusion if it became necessary, although she was not a JW herself. Five days later a caesarean section was performed; T had signed the appropriate form refusing blood but had not read it or discussed the implications of her decision. T became critically ill and the doctors sought a court ruling with regard to the blood transfusion. Judge Ward granted that it would not be unlawful to administer the blood under the circumstances. It was decided by the initial court and the Court of Appeal that T had made her decision based upon the undue influence of her mother. Refusal of treatment based on religion or conscience would also be covered by Article 9 of the Human Rights Act 1998. There is a tendency to think of labour situations as being those where most pressure might be exerted, particularly by professionals when they are in fear of a poor outcome, usually related to the fetus. However, verbal reports from students, midwives and women suggest that antenatal screening is another area where pressure is exerted. Sometimes it appears that the pressure on women relates to the pressure on midwives and doctors to meet the government's screening targets. In other cases, it appears to be the practitioner's deeply felt belief that screening is essential that causes them to pressurise some women to conform. Written consent is obtained for major invasive treatment, such as surgery, but it would not be appropriate to seek this form of consent for every aspect of care or treatment that involved touching. Implied consent is the commonest method of women indicating their willingness to comply with the proposed actions. Such consent is considered evident when, for instance, the woman rolls up her sleeve for her blood pressure to be assessed or a blood sample to be taken. There are many other aspects of care where this form of consent is used, but it is important that midwives avoid taking implied consent for granted. The fact that the woman attends the clinic or allows herself to be admitted into hospital does not mean that she automatically consents to every proposed course of action. Her actions may appear to imply consent, but they may be based on her impression that she has no choice. It is important to realise that refusal can also be implied. Various aspects of body language can indicate a woman's reluctance to comply with the professional's wishes. This form of refusal can be very important, particularly when a woman cannot communicate by speech. Consent, or refusal, can also be obtained verbally or in writing, known as express (or actual) consent. As already indicated, surgery usually requires written consent and different Trusts require written consent for other invasive procedures, such as epidural analgesia. Verbal consent can be used in urgent situations or in situations where written consent would be impractical. For instance: A woman is in the second stage of labour, the fetal head is on the perineum but the fetal heart rate has dropped to 60 beats per minute and is not recovering. The midwife feels that an episiotomy is advisable to expedite delivery. It is an

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invasive surgical procedure for which she must obtain consent. The woman has the capacity to consent or refuse but is clearly not in a position to record her wishes in writing, if that is the policy in that unit. Verbal consent would be valid and should be recorded in the notes at the earliest opportunity. In law there is no difference in the importance of these methods of obtaining consent, the only difference being in the initial ease of proving that consent has been given. However, as stated above, evidence of a signed consent form is not worth the paper it is written on if the woman can prove that she was under duress or if practitioners were economical with the truth. Despite this fact, to date, most judgments have not accepted that battery has occurred, except in cases where consent had been expressly withheld, in other words the patient refused the investigation, care or treatment, as in two of the caesarean section cases. The general reasoning of the courts seems to have been that the motives of health care professionals were sound, in that they would be acting in the best interests of the patient (Kennedy & Grubb 2000: 3.03). This view does not take account of paternalism in practice; therefore, it does not respect the ethical principle of autonomy, which the legal principle of consent should uphold. Lord Goff, in his ruling in Re F (A mental patient: sterilisation) [1990], appears to have addressed this point by indicating that the fact that it is medical treatment does not absolve the practitioner from acquiring consent prior to touching. In some circumstances it is impossible to approach the gaining of consent in the manner indicated above, where full information is given with time for the woman to consider her options and make an informed decision. In emergency situations, such as shoulder dystocia, cord prolapse or severe haemorrhage, there is no time for detailed discussion. All that can be achieved in such situations is that the woman is told of the problem and the recommended action, while practitioners are undertaking that action. If the woman states clearly that she refuses the course of action, then it must be stopped and further explanation given, despite the urgency. It would be unlawful to undertake a caesarean section for a cord prolapse, for instance, if the apparently competent woman was adamant that she did not consent, despite having been told the probable outcome without the intervention. However, if she appears to accept the action at the time then, after the event, claims for battery, the doctors would have a defence of acting out of `necessity'. The same defence would hold for action taken when a woman was unable to give or withhold consent, such as in cases of eclampsia, unconsciousness or following extreme reaction from narcotic analgesia. It would not be reasonable to say that normal drowsiness following administration of a drug, such as pethidine, rendered the woman incapable of making a decision. Most women are easily rousable and can make competent decisions. However, occasionally a woman will be sufficiently sedated by the drug to render her incapable of understanding the implications of the situation, in which case urgent treatment could be carried out. In any claim for battery in such cases, the Bolam Test would be used to determine whether the action taken was in line with professional standards. The court would expect to see evidence that the professional has assessed the competence of the woman, rather than automatically making a paternalistic decision; therefore, once again, good record keeping is essential.

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It is not possible for anyone to give consent for treatment for another adult. Therefore, the practice of asking husbands or others deemed to be next of kin to give consent in any of these situations is unlawful. Midwives may find themselves in situations where women have refused essential care or where they are not competent to make a decision, especially in a temporary situation; they should seek the support of a supervisor of midwives, also a senior obstetrician if not already involved (UKCC 1999). In cases where women are already known to lack the capacity to give or withhold consent, such as some women with learning difficulties or certain psychiatric disorders, it does not automatically mean that they cannot be treated. Where emergency treatment is required for such women, the defence of necessity can be relied upon. In the case of non-urgent treatment, however, decisions must be shown to be in the best interests of the woman. An area of care that always requires the High Court to make a decision, rather than the doctors or relatives, is that of requested sterilisation for learning-disabled individuals. This position was determined by Lord Griffiths in the case of Re F (A mental patient: sterilisation) [1990], referred to above. F was a 36-year-old woman with a mental capacity of a small child. She was in voluntary residential care and formed a sexual relationship with a male patient. In the view of the doctors, it would not be in the woman's best interests to become pregnant. Her mother sought a declaration that it would not be unlawful to perform a sterilisation. The case was eventually decided in the House of Lords, where it was said that the courts could not consent to treatment for an adult but that a court could declare the lawfulness of a proposed operation, which they did in this case. Such an operation must be in the best interests of the patient and in keeping with the Bolam Test. It is important to reinforce the fact that it is the best interests of the person concerned, not those of the carers, be they family or professionals. There have been a variety of other cases in this area. In Re X (Adult sterilisation) [1998], it was again decided that sterilisation of a 31-year-old woman was in her best interests as the real risk of pregnancy could lead to a frightening situation for her with possible resulting psychological trauma. However, in Re S (Adult patient's best interests) [2000], the Court of Appeal ruled against sterilisation and hysterectomy for a 29-year-old woman, as the evidence was clear that alternative methods were in her best interests. In the case of Re ZM and OS (Sterilisation: patient's best interests) [2000], the court ruled that a subtotal hysterectomy was in the best interests of a 19-year-old woman. Sterilisation in this form was not just to prevent pregnancy, but also to resolve the woman's menstrual difficulties. While these cases all relate to the sterilisation of women, there has been a case of a request to sterilise a man: Re A (Male sterilisation) [2000]. In this case the man was 28 years old, living with his mother. She was concerned that her state of health might render her unable to care for him in the future, in such a way as to prevent him causing a pregnancy. It was thought that sterilisation would result in him requiring less supervision and providing him with more freedom. The original court decided that the man himself was not at risk of pregnancy, but was at risk of sexual infections. It was not, therefore, in his best interests to undergo a surgical

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procedure, nor to receive less supervision the effect of which could put him at risk. The Court of Appeal upheld this view. Although the Mental Health Act 1983 provides for detention and treatment of some patients with mental illness, without following the usual consent process, the treatment must be related to the mental illness. In the case of St George's HealthCare NHS Trust v. S [1998], a woman was detained under section 2 of this Act because she refused what was considered to be life-saving treatment, a caesarean section for severe pre-eclampsia. She was transferred for emergency obstetric care and the Trust applied to the High Court for a declaration to allow them to perform the caesarean section, which was given. It was later determined that there was no mental disorder and she was competent to make decisions. In the Court of Appeal it was determined that the Mental Health Act 1983: `. . . cannot be deployed to achieve the detention of an individual against her will merely because her thinking process is unusual, even apparently bizarre and irrational and contrary to the views of the overwhelming majority of the community.' The original court had not been properly informed, in that the woman had not been represented, despite having instructed a solicitor. This case determined that in future cases, the patient must always be represented, unless there is refusal of representation (Dimond 2002: 109). The judges stated that an application for a High Court declaration when the patient was competent `would be pointless'. In the case of someone incapable of engaging in the consent process, evidence must be presented as to the incompetence of the patient. This latter expectation should serve to protect the public from a doctor's unfounded declaration of incompetence, albeit with the person's best interests at heart.

Minors As discussed above, competent adults have an absolute right to give or withhold consent for investigation, care and treatment. In England, Wales and Northern Ireland, adulthood is deemed to start from the age of 18 years, whereas in Scotland legal capacity is reached at 16 years (JISC 2003: 5). Therefore, people under the age of 18 and 16 respectively appear not to have an absolute right in this regard. However, in England, Wales and Northern Ireland, adolescents between 16 and 18 years have been given this same absolute right with regard to diagnostic investigation, care and treatment, again based on competence as judged for an adult. This determination is enshrined in the Family Law Reform Act 1969, the Act that lowered the age of majority from 21 to 18. The wording of such statutes is very important when a court ruling is being sought and this point is evident with the interpretation of this Act. Scrutiny of the wording has determined that there are areas of medical activity for which such a minor does not have the absolute right of an adult to give consent by themselves. These areas include donation of blood or organs, as it would not be for diagnosis or treatment of the minor himself (Nolan J: Re W (Minor: medical treatment) [1992]). Such activity would need to be dealt with as for minors younger than 16 years.

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Until 1986 consent by parents or others with parental powers was always required for children and adolescents younger than 16 years. A change occurred following the eventual ruling in the case of Gillick v. West Norfolk and Wisbech Area Health Authority [1986]. This case was based on a mother's concern that the government was to allow contraceptive advice and treatment to be given to girls under 16, if it was in their best interests, without parental consent, therefore making it unlawful in her view. The case and its rulings see-sawed through the courts until the House of Lords; here they ruled that it was lawful in cases where the girl was competent to make such decisions. The judgment went beyond that of contraceptive advice and encompassed the principle of minors' consent in general. Judge Scarman stated: `Parental right yields to the child's right to make his own decisions when he reaches a sufficient understanding and intelligence to be capable of making up his own mind on the matter in question.' Of course, the young child cannot understand the implications of medical treatment but the Gillick judgment rejects age as an impediment to consent, suggesting that the understanding of the individual should be the determinant. This view was then enshrined in statute, in the Children Act 1989. It could be assumed that less difficulty arises in maternity care, as even the youngest of our clients has reached puberty; therefore, we are not facing the same dilemmas as other health fields. However, puberty is a mark of physical development, not mental development, as evident in those with learning disabilities. We cannot even consider that if she was competent enough to decide to have sexual intercourse, then she is sufficiently competent to make all health care decisions. Very young women may not make a conscious decision to engage in sexual activity, it may just happen without them weighing up the costs and benefits. We also know that they can be coerced and abused. In most cases where an underage girl presents herself for antenatal care or where she arrives on delivery suite in labour, having concealed the pregnancy, at least one parent is available should their consent be necessary. However, their presence can sometimes create difficulties in that, should the midwife assess the young woman to be competent to make her own decisions, there could be conflict if the parent feels that they have the right to decide. There can be great diversity within this underage client group, not only between those of 11 and those of nearly 16 years but even within the same year band. Each case must be viewed separately and `Gillick competence' assessed for each decision, as the individual may be competent to consent for some aspects of care, while perhaps not sufficiently competent for decisions with far-reaching consequences. The test for `Gillick competence', derived from the judgment, involves three stages. (1) (2) (3)

Does she understand the situation that she is in? Does she understand the options open to her, once they have been explained? Does she understand the possible consequences of these options?

Although unlikely, it is possible to have a 12 year old who passes this test, while a 15 year old may not. It would be just as lawful to act on the wishes of the 12 year old as to seek parental decisions for the 15 year old. Record keeping in these

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situations is obviously important. Having applied the three stages of the test, it is important to indicate them all in the records, indicating your opinion with regard to each of them, related to the aspect(s) of care discussed. It is not sufficient to write `Gillick competent' alone. Once competence is established and recorded, the young woman's consent ± implied or express ± has the same weight in law as that of a competent adult. If her consent can be accepted, then it should follow that her refusal must be upheld also but that is not necessarily the case. Having made its stance with regard to minors' consent, the law does not seem able to allow refusal in all cases. It would be accepted for aspects of care and treatment that were not life threatening, but for major decisions, such as the need for a blood transfusion or caesarean section, a refusal could be overturned by a parent or by seeking a court ruling (Montgomery 2002: 291±2). Another area for debate in midwifery care relates to the young mother's ability to give or withhold consent for her baby. Midwives are often troubled as to who they should approach for consent in these cases, especially as the young mother's parent(s) will not be present every time a decision needs to be made. The competence principle applies here too, with an assessment required for each decision. However, as with an adult parent refusing treatment felt to be essential, if consent is not forthcoming from the mother or her parent, then doctors would seek a judicial ruling in the best interests of the baby. In emergency situations, treatment through necessity would obviously apply. With regard to parental consent for babies, academically interesting cases, although emotionally desperate for the parents and professional carers, arise with the birth of conjoined twins. While the uptake of ultrasound scanning and the possibility of termination for serious fetal abnormality reduce the incidence of this anomaly in much of the UK, there appears to be an increase in the number of cases coming to the UK from other countries, for specialist treatment. All conjoined twins could present ethico-legal dilemmas to some extent, but they are minimised if the parents and medical team agree on what action to take. They are minimised further if the decision to separate is made based on a good prognosis for both babies. A number of cases have been reported in the media, shortly after the birth and again following separation, whatever the outcome. However, to date, none have received as much coverage in the UK and internationally as the babies known as Mary and Jodie (Re A (Minors) (conjoined twins: separation) [2000]). To a great extent this has been because agreement has been reached between doctors and parents and the courts have not been involved. It is likely that all readers will be familiar with the plight of the Attard family in this case and the dilemmas faced by their team of carers and the legal personnel, especially the judges who had to make the final decisions. However, for the sake of completeness, here is a brief outline of the situation. `Mrs and Mrs Attard, a Maltese couple, travelled to Manchester for specialist treatment following discovery of conjoined twins in utero. They were joined at the abdomen, with fusion of the lower ends of their spines and spinal cords, and a shared bladder and aorta. Mary had a non-functioning cardiopulmonary system, circulation being achieved by Jodie's heart only. Also, Mary had only a

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primitive brain with abnormal neurological function. Jodie, on the other hand, was stronger, with functioning systems. The parents wanted to leave nature to take its course, with no surgical intervention. The result could have been that Jodie would eventually suffer heart failure from serving two bodies, in which case both babies would die, probably within six months to two years. There was also the possibility that Mary might die, resulting in the need to consider emergency separation, which would be far from ideal and Jodie's condition could have deteriorated in the meantime, reducing her chances still further. The alternative was for separation to be attempted, in which case Mary would die immediately, as she did not have the vital systems to maintain life; her lifeline literally would be cut during the separation. It was thought that, accepting the risks of surgery, Jodie would probably survive and live a relatively normal life, albeit with possible minor disability.' (Sheldon & Wilkinson 2001: 201±2) The parents had strong religious convictions and could not consent to surgery that would result in Mary dying in order for Jodie to live. The hospital's position was that it did not want Jodie to eventually die in order to prolong, for a short time, the doomed life of Mary. The early prognosis was that, without separation, both babies would die within three to six months (Craven 2000: 5). Therefore, in the best interests of Jodie, the NHS Trust took the case to the High Court for a ruling as to the lawfulness of the proposed separation, on 25 August 2000. Mr Justice Johnson recognised the plight of the parents but ruled in favour of separation for the sake of Jodie. He addressed the issue of separation causing the death of Mary. While he upheld that active killing would never be acceptable, he effectively accepted the description of one of the doctors, that Jodie was Mary's `life-support machine'. Separation then could be viewed in the same light as withdrawing life support in a `no hope' situation (RCPCH 1997: 20), but with the added bonus of saving Jodie's life. There was discussion throughout the media as to whether separation could be deemed murder of Mary, as clamping the artery that provided her circulation would be premeditated. There were counter-arguments that failure to separate them could be deemed manslaughter of Jodie, by not taking action to save her life. The parents and the Official Solicitor for Mary took the case to the Court of Appeal in early September and, after days of evidence and debate, the decision to separate was made on 22 September. After immense ethical and legal debate, and great soul searching, the end result was based on the balance of interests of the two girls. It was decided that Jodie's prospects of a normal life expectancy, against Mary's inevitably `doomed' and `fatally compromised' life, led the judges to rule that separation would be lawful in family law. The Attorney General's office was consulted with regard to the position in criminal law. It was decided that, although Mary had a right to life equal to that of Jodie, the invasion of her body and resulting death could be justified out of necessity (Court of Appeal). The action would result in `the lesser of two evils': the essential outcome for any true dilemma. The separation took place in November 2000. As expected, Mary died in theatre and Jodie recovered well. Her parents were able to return to Gozo with her in June 2001. According to Sheldon and Wilkinson (2001: 202) one of the consultant surgeons stated that:

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`She has come on really well, better than expected, everything works and everything is where it should be, as it is in a normal baby. There are no plans for further surgery and we are confident she will have an excellent quality of life.' A documentary programme on television followed this family from before the separation to when Jodie was living her life in Gozo. She appeared to be a normal, happy infant and her parents appeared delighted with her, although she will undoubtedly be a constant reminder of Mary. Whether that will be a positive or negative factor, only they will be able to tell. For some people who were opposed to the separation, feeling that the parents' views should have been upheld, the fact that Jodie has a normal life will justify the decision to separate. However, for others, the end will never justify the means. As already stated, this case created great debate in the fields of ethics and law, to which no real credit has been given here. Readers who wish to review the debates would find the appeal case itself particularly interesting, a reference for which is indicated at the end of the chapter. In addition, among other material, you might find the six papers from a workshop held in Keele University, which I attended, interesting. These papers were published together in one edition of Medical Law Review; Volume 9, No 3, Autumn 2001.

The choice of home birth While home birth is not directly a consent issue, it could be deemed to be an issue of refusal; that is, refusal of hospital care, at least until such time as something occurs that makes it necessary or advisable. However, as stated above, the woman could not be forced into a course of action that she did not want to accept. In the document Modernising Maternity Care: A Commissioning Toolkit for Primary Care Trusts in England, developed by the National Childbirth Trust, Royal College of Midwives and Royal College of Obstetrics and Gynaecology (2002: 8), it states that government policy is to `support and extend' the choice for home birth and under `minimum requirements' it suggests that: `. . . all women should be encouraged to discuss options . . . Where home birth is chosen, appropriate arrangements should be made . . .' (p20). Nowhere does it state that home birth should not be included in the options, nor does it state that women need a doctor's permission. Civil law is generally underpinned by ethics; therefore, if we decide that a woman has the moral right to home birth, we must consider whether that means that she has the legal right. There is no statute that declares a woman's right to home birth; however, according to the National Health Service Act 1977, facilities for maternity services should be in accordance with what the Secretary of State (SoS) deems appropriate within the NHS. As stated earlier, the current SoS has stated that home birth should be an option; therefore, that suggests that currently the law supports the woman's right. However, presumably this is a fluid situation, depending on the people in power at the time (Jones 2003: 127). There is nothing in statute that outlaws home birth. Although there is case law to

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support the fact that we cannot force a woman to come into hospital for care or treatment, as yet, there is no case law to indicate what position the courts would uphold. It seems reasonable to think, however, that if a relevant case were being heard by a judge, (s)he would consider what is stated in the National Health Service Act 1977. This Act would direct him/her to the most recent declaration by a SoS prior to the time of the home birth being requested. If it was found that the SoS had stated that home birth should be an option, then the judge would surely have to rule that the option of home birth was a legal right at the time (Jones 2003: 127). However, Dimond (2002: 84) points out that past cases indicate the courts' reluctance to decide against the SoS on resource issues. It is possible that a case could be brought in future under the Human Rights Act 1998. Article 3, regarding ìnhuman or degrading treatment', and Article 8, regarding `private life and family', seem to be the most logical options (Jones 2003: 128), particularly with regard to respect for human dignity and privacy and reproductive rights. The BMA (2001: 329) has suggested that women requesting home birth are disadvantaged and disabled by professionals creating barriers to their requests/aspirations and that the human rights approach could be appropriate for them. We know that clients cannot demand particular treatments; however, it appears that many women are managing to demand caesarean sections, despite the risks and costs. Home birth is not even a treatment, it is a type of care; the position could be seen as a form of discrimination in the eyes of the law. It could also be argued that high-risk women have the right to opt for home birth. Again, it would need to be a fully informed decision. Part of the information would have to be that, although they are viewed as high-risk cases, the care that they could be offered at home is low risk only. No one can force a woman to accept hospital care and, although such cases are very stressful for the midwives and their supervisors, it would be morally wrong to deprive her of the professional help that would be available to other women. The alternative could be that the woman is forced down the illegal road of arranging for an inappropriate person to assist her to give birth, in order to achieve what she wants. Although the Nurses, Midwives and Health Visitors Act 1997 ceased to function on the implementation of the Health Act 1999, the clause regarding àttendance by unqualified persons at childbirth' still exists, in the Nursing and Midwifery Order, Part IX, section 45. It maintains the position that it is an offence for someone other than a midwife or medical practitioner to assist in childbirth, unless in an emergency. While there are many aspects of care for which a midwife needs to obtain consent before undertaking them, those that cause the greatest concern appear to be antenatal screening and invasive procedures during labour. In the case of antenatal screening, there is a lot of information that should be given to the woman. She should have time to think about what has been discussed and to read relevant literature before making her decisions. However, certain tests need to be carried out at specific stages of pregnancy and, if the woman is late in seeking antenatal care, there might not be sufficient time for adequate consideration. In the case of procedures during labour and birth, it has to be accepted that labour is not the best time for a woman to receive information and make decisions. This statement does not intimate that a labouring woman is incompetent to make decisions, but that she does not have much time to contemplate the information

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and in what time she does have, she is usually concentrating on her labour. In most cases in midwifery, there is plenty of time for women to be given information and for them to consider their preferences during pregnancy. Many midwives encourage the use of birth plans, in order that women can think about their preferred care and make choices. Their decisions are, therefore, recorded for all staff to see and, depending on how they are written, can be considered to be a form of advance directive, if the need arises, as long as the decisions are informed. A birth plan should not be taken as the final consent to treatment. For example, the woman may state that she does not want artificial rupture of the membranes (ARM) in labour. Her stance should be supported, but she must always have the opportunity to change her mind and the midwife is responsible for keeping her informed of any alteration in circumstances, which might lead to such a change being made. If ARM is indicated, perhaps because the fetal heart rate is causing some concern and fetal blood sampling is indicated, then the situation should be discussed with her, in order for her to reaffirm her refusal or change her mind and give consent. It is unwise to rely upon consent given some time in advance of the procedure that is indicated. While the ground can be prepared earlier, the consent itself should be sought as close to the procedure as possible. Thus the birth plan should be seen only as a guide to the woman's potential consent or refusal.

Research Although the discussion above relates to consent for investigation, care and treatment, it must be remembered that all the points apply equally to research. Consent, based on adequate information, is essential for any research involving people or their body parts and tissues. Failure to give sufficient information about risks could lead to a claim for negligence, should the subject sustain any harm or injury. Also, a claim for trespass or battery could be made for procedures carried out without the subject's consent. The public could be forgiven for being more cautious, sceptical or suspicious of research projects, following the Bristol and Alder Hey enquiries in 2000 and 2001. However, publication of the Research Governance Framework for Health and Social Care (DH 2001i) means that all health and social care professionals should now be more alert and informed with regard to the need for informed consent in virtually all aspects of biomedical research. Compliance with the research governance framework, by all organisations, will be monitored by the DH.

Summary There are two areas of law concerned with consent: battery, or trespass to the person, which relates to undertaking care or treatment; and negligence, with regard to failing to give adequate information on which the person can make an informed decision. Midwives must ensure that they seek consent for any investigation, care or treatment. The process must include giving sufficient information,

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with discussion and explanation as required, plus time for contemplation and decision making, unless in an emergency situation. In an emergency, treatment by necessity is lawful unless it is in opposition to the known wishes of the patient. The right to consent does not depend on age or status but on mental competence; acting without the consent of the person is unlawful. Consent is valid, whether implied or express, as long as there has been no coercion. When caring for adults who lack the capacity to consent, treatment must be justified as being in their best interests. In the case of an incompetent minor, proxy consent should be sought from the person holding parental rights. Ensuring that an appropriate process for obtaining consent is established and adhered to is good practice not only from an ethical point of view but also from a risk management perspective.

Reader activity . Consider the child-bearing woman's journey through midwifery care. Make three separate lists of aspects of care where a midwife should gain consent, under the headings of: implied, verbal and written. With honest reflection on your own practice, are there any adjustments that you should make in your future practice? . List the aspects of care that you undertake for the neonate, then indicate those for which you should seek consent from a parent. . Determine your plan of action should you be faced with a woman who refuses advised care or treatment for herself or her baby. . Consider how you would deal with the next pregnant minor, in each stage of the child-bearing process. . Ensure that you have a working knowledge of the DH and NMC documents relating to consent.

References BMA (2001) The Medical Profession and Human Rights. Handbook for a Changing Agenda. Z Books in association with BMA, London Craven N (2000) Daily Mail, 26 August, p5 DH (2000) Bristol Royal Infirmary Inquiry, Interim Report: Removal and Retention of Human Material. Central Office of Information, London DH (2001a) Learning from Bristol: The Report of the Public Inquiry into Children's Heart Surgery at the Bristol Royal Infirmary 1984±1995. The Stationery Office, London DH (2001b) The Royal Liverpool's Children's Inquiry Report (Alder Hey). The Stationery Office, London DH (2001c) Reference Guide to Consent for Examination or Treatment. DH Publications, London DH (2001d) 12 Key Points on Consent: The Law in England. DH Publications, London DH (2001e) Good Practice in Consent Implementation Guide: Consent to Examination and Treatment. DH Publications, London DH (2001f) Seeking Consent: Working with Children. DH Publications, London DH (2001g) Seeking Consent: Working with Older People. DH Publications, London

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DH (2001h) Seeking Consent: Working with People with Learning Disabilities. DH Publications, London DH (2001i) Research Governance Framework for Health and Social Care. DH Publications, London Dimond B (2002) Legal Aspects of Midwifery, 2nd edn. Books for Midwives, Edinburgh JISC (Joint Information Systems Committee, Legal Information Service) (2003) Duty of Care in Further and Higher Education. www.jisc.ac.uk/legal/duty_of_care.html Jones MA (1999) Informed consent and other fairy stories. Medical Law Review; 7(2): 103± 34. Jones SR (2003) Ethico-legal issues in home birth. RCM Midwives Journal; 6(3): 126±8 Kennedy I, Grubb A (2000) Principles of Medical Law, 3rd edn. Oxford University Press, Oxford Montgomery J (2002) Health Care Law, 2nd edn. Oxford University Press, Oxford NCT, RCM, RCOG (2002) Modernising Maternity Care: A Commissioning Toolkit for Primary Care Trusts in England. NCT, London NMC (2002) Code of Professional Conduct. NMC, London RCPCH (1997) Withholding or Withdrawing Life Saving Treatment in Children: A Framework for Practice. RCPCH, London Sheldon S, Wilkinson S (2001) On the sharpest horns of a dilemma: Re A (Conjoined Twins). Medical Law Review; 9(3): 201±7 UKCC (1999) Court Authorised Caesarean Sections: Court of Appeal Guidelines. Registrar's letter 10/1999. UKCC, London

Statutes/SIs Children Act 1989 Family Law Reform Act 1969 Health Act 1999 Human Rights Act 1998 Mental Health Act 1983 NHS Act 1977 Nursing and Midwifery Order 2001 (SI 2002 No. 253)

Cases Airedale NHS Trust v. Bland [1993] 1 All ER 821, [1993] 12 BMLR (HL) Bolam v. Friern Hospital Management Committee [1957] 2 All ER 118, [1957] 1 WLR 582 Carole Gay Ogilvy Chester v. Fari Afshar [2002] LLRM 305 (CA) Chatterton v. Gerson [1981] 1 All ER 257 Gillick v. West Norfolk and Wisbech Area Health Authority [1986] CLR 113 (HL) Re A (Male sterilisation) [2000] 1 FLR 549 (CA) Re A (Minors) (conjoined twins: separation) [2000] 4 All ER 961, [2000] 10 LLRM 425 (CA) Re B (Consent to treatment: capacity) [2002] TLR, 26 March Re C (Adult: refusal of medical treatment) [1994] 1 All ER 819 Re F (In utero) [1988] 2 All ER 193, [1988] Fam 122 (CA) Re F (A mental patient: sterilisation) [1990] 2 AC 1 Re MB (Medical treatment) [1997] 2 FLR 426 Re S (Adult: patient's best interests) [2000] 2 FLR 389 (CA)

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Re T (Adult: refusal of medical treatment) [1992] 9 BMLR 46 (CA) Re W (Minor: medical treatment) [1992] 4 All ER 627

Re X (Adult sterilisation) [1998] 2 FLR 1124 Re ZM and OS (sterilisation: patient's best interests) [2000] 1 FLR 1124 Sidaway v. Bethlem Royal Hospital Governors and Others [1985] 1 All ER 643 (HL) St George's HealthCare NHS Trust v. S [1998] 3 All ER 673 (CA) Tameside and Glossop Acute Services Trust v. CH [1996] 1 FLR 762

Chapter 7

Use and Abuse of Information

Midwives have access to a great deal of information during the course of their work. For clinical midwives the information relates to child-bearing women, their babies and often other members of their families. They also have information about colleagues and the Trust or authority by whom they are employed. Midwifery managers may have less involvement in client information, but more with regard to staff and the employer. Educationalists have information about students, whether pre- or post-registration, and about individuals and practices in possibly more than one Trust or authority. In the case of supervisors of midwives, in addition to information related to their area of practice and possibly some specific clients, they will often have more personal knowledge of their supervisees than even the manager. Regardless of their areas of practice and specific roles and responsibilities, all midwives should be aware of the need to maintain confidentiality and privacy (NMC 2002: 5). Within this topic there is obviously a major ethical component, but that will not be discussed here, as such discussion can be found elsewhere (e.g. Jones 2000); rather, this chapter will consider the law related to the use and abuse of personal data.

Record keeping in practice The contemporaneous clinical record made by the health professional of the information, advice, care or treatment given is one of the most effective ways of protecting the practitioner and her employer from legal actions. This point has been indicated with reference to professional conduct, complaints to the Health Service Ombudsman and legal claims of negligence and battery. However, fear of having to justify oneself in any of these arenas should not be the guiding principle of good record keeping. There should be a more positive approach, with consideration of creating a clear picture for the `need to know' reader. Such readers would include the woman herself or, more usually, other health care professionals responsible for aspects of care, who need to review her clinical situation with a view to changes in condition, diagnosis and treatment, or continuity of care. Record keeping features in the Code of Professional Conduct (NMC 2002: 3.5, 4.4. 8.3), and the NMC endorsed the more detailed document, originally written by the UKCC (1998a), Guidelines for Records and Record Keeping. In this latter document, the text of which is written as to the individual practitioner, it is stated that:

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`The quality of your record keeping is also a reflection of the standard of your professional practice. Good record keeping is a mark of the skilled practitioner, whilst careless or incomplete record keeping often highlights wider problems with the individual's practice.' (p7) Midwives have been heard to lament that this statement is unfair, that they are good midwives but there is no time to write copious notes. This view suggests that these midwives do not understand what is required of them or why. `Copious notes' are certainly not required, as this would suggest that there is too much padding. They need to be full enough to create a true picture of discussion, events or incidents, but also concise, so that essential information is not lost. The expectation of the professional body with regard to what constitutes good patient or client records is that they should: . be factual, consistent and accurate; . be written as soon as possible after an event has occurred, providing current information on the care and condition of the patient or client; . be written clearly and in such a manner that the text cannot be erased; . be written in such a manner that any alterations or additions are dated, timed and signed in such a way that the original entry can still be read clearly; . be accurately dated, timed and signed, with the signature printed alongside the first entry; . not include abbreviations, jargon, meaningless phrases, irrelevant speculation and offensive subjective statements; . be readable on any photocopies; . be written, wherever possible, with the involvement of the patient or client or their carer; . be written in terms that the patient or client can understand; . be consecutive; . identify problems that have arisen and the action taken to rectify them; . provide clear evidence of the care planned, the decisions made, the care delivered and the information shared (UKCC 1998a: 8). The standards of record keeping expected in the Code and Guidelines indicated above are also reinforced in the Midwives Rules (UKCC 1998b: Rule 42). Although the above list states that the information should be factual and not contain irrelevant speculation, it is sometimes important to include opinion. For instance, a midwife might have spent ten minutes explaining the antenatal screening tests available to a woman. At what appears to be the natural end to the discussion, the midwife might feel that the woman does not understand all that has been discussed. She should provide the available written information for the woman to read, or someone else if the woman is unable to read it for herself (she might not disclose this fact), in preparation for the woman's next antenatal appointment. The midwife should record, as sensitively as possible, her opinion that the woman did not appear to fully understand the information at that time and that the usual written information had been given. This information is important, in order that whoever attends the woman at that next visit is aware that understanding would need to be further assessed prior to undertaking the tests.


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Another situation where opinion could be important is where a woman thinks that she might be in labour. On examination, the midwife may determine that cervical changes have occurred but be of the opinion that labour has not started. The midwife should record the facts and her opinion prior to the woman returning home or being transferred to an antenatal ward or, in the case of community practice, before the midwife leaves the woman's home. Of course, the reverse could be the case. The midwife may not detect any obvious cervical changes but, based on other criteria, be of the opinion that labour had started; again, the opinion should be recorded. Returning to the point about midwives feeling that the statement regarding the fact that poor records might indicate poor practice is unfair, a lot depends on their view of the purpose of records. If all midwives viewed records in the positive light of being necessary for the welfare of the woman and baby, rather than to `cover their backs', they would view them as being as important as certain observations or aspects of care. Rarely would a midwife fail to undertake necessary observations, give advice or undertake essential care; however busy the midwife, time would be made. Therefore, a midwife who understands the positive reasons for record keeping would treat it in the same light as these other activities and make time to do it properly. The statement considers the point from the reversed perspective, suggesting that someone who does not maintain good records might not maintain good practice. Where recordings of care are kept as separate data items, such as a CTG trace, it is important to ensure that all the information is congruent rather than conflicting; this is particularly the case with the timing of events on each item. Particular care should be taken with the CTG trace if electronic fetal monitoring is used. Any automated timing that shows on the trace should be checked at the beginning of the trace and frequently throughout the labour in cases where continuous monitoring is used. Also, the paper speed should be set at 1 cm per minute. When significant treatments are carried out, such as abdominal or vaginal examination, administration of medication such as pethidine or epidural top-ups, these should be indicated on the trace. Also, if another midwife or a doctor is asked to observe the trace for an opinion, they should sign the trace as well as the fact being entered on the labour record. Midwifery records should show any decisions made regarding clinical management and not just the treatments and observations that are carried out. Clinical decisions may range between deciding to do nothing but observe closely and deciding to alter the management or summon medical aid. When clinical notes are being scrutinised so that a statement can be written, or where a report is required for the purposes of a child protection or potential legal or professional conduct case, difficulties in interpretation can occur. The difficulties often arise because: . two different records have conflicting information; . it is difficult to determine the actual sequence of events during the clinical management; . there are gaps in the observations; . adverse observations may be recorded or there is an indication that the

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management of the case has changed, but there is no record of the clinical decision that the midwife has made; . it is not possible to ascertain from the signatures who carried out the care or the observations; or . the use of non-standard abbreviations leads to a lack of clarity.

Data Protection Act 1984 Basic principles of data protection have been employed since 1987, when the Data Protection Act 1984 came into force. This Act governed the obtaining, processing, purpose, security and timespan of holding, disclosing and accuracy of data or information. It also gave the right of access, and correction of inaccurate data, to the individual to whom the information relates. One exemption under the Act allowed for the holding of personal data for historic, statistical or research purposes, provided that it was not used in a damaging or distressing way and had not been obtained unfairly. Another exemption to the provisions of the Act was introduced by the Data Protection (Subject Access Modification) (Health) Order 1987. This order restricted access to health information that might have caused serious harm to physical or mental health, or to that of another individual, or where it might reveal the identity of another person.

Access to Health Records Act 1990 The passing of the Data Protection Act 1984 created an anomaly. While people whose medical records were held on computer could have access to them, freedom of access to manually held records was not a statutory right. To correct the anomaly, the Access to Health Records Act 1990 was passed, coming into force in November 1991. This Act built upon the 1984 Act, bringing together all the statutory requirements for access to medical records. The purpose of the Act was to give a person or his authorised representative the right to apply to see his health record, or any part of it, in whatever form the record was held. It covered any record made by a professional listed in the Act, which included midwives, but it only applied to records made after 1 November 1991. Access to an earlier record could only be permitted if it provided clarity for a later entry. When applications were made to see health records, subject to statutory exemption, the record or relevant part of the record had to be made available. If the record was made within 40 days of the application, it had to be made available within 21 days; if it was made more than 40 days before, then the time limit was within 40 days. A fee could be charged for the process, not exceeding that laid down in statute. Also, the patient was at liberty to request a copy to be made of the records and a charge could be made to cover the cost of such copying. This Act allowed for the same exclusions that were originally described under the Data Protection Order 1987. Records could be withheld if the applicant was a minor and would not understand the nature of the application and if it was thought that the application was without the patient's consent. Partial exemption


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was granted if, in the opinion of the holder of the record, the information may have caused serious harm or if it identified a third party who had not consented to the access. A duty was imposed upon a health service body to consult with the relevant health service professional if an application to have access to the medical record had been made, the purpose of this consultation being to determine whether an exemption was applicable. In midwife-led care or where part of the record had been generated by a midwife, it was likely that the midwife concerned would be the professional consulted. This Act was not confined to health service activity. An application could be made to see the records of an independent midwife. The midwife would have been advised to discuss the application with her supervisor of midwives, particularly if she believed that for some reason part or all of the record should be withheld. Any decision to withhold information should have been recorded in a statement, giving the reasons for doing so. Where the applicant considered the health record to be inaccurate, she could apply for a correction to be made. If the holder of the record agreed that it was inaccurate, the Act allowed for the record to be corrected. If the holder disagreed, she indicated the area of disagreement in the record. If a midwife was required to alter her clinical records, she should have consulted with her supervisor of midwives, requesting her to witness the changes in the notes, in case of future scrutiny of them. The change should have been dated, timed and signed according to the actual amendment, to prevent the change from being misconstrued at a later date. The midwife should have maintained a personal account of the reason for the change. The Act also required that the notes be made available in a form that would be intelligible to the patient. If they were not, the professional would have been asked to rewrite them or write explanatory notes so that they could be understood. This would have applied particularly to the use of abbreviations, including those used in a derogatory manner (FLK ± funny-looking kid). It also would have applied to illegible handwriting; therefore, it was better to write notes clearly and comprehensively in the first place, rather than have to rewrite them later. Following the passing of the Human Fertilisation and Embryology Act 1990, as assisted conception centres had to comply with the legislation, it was necessary for the government to protect the anonymity of gamete donors, while still upholding the right to access of personal information. This need resulted in the Access to Health Records (Control of Access) Regulations (1993) SI 1993 No. 746, Regulation 2 of which stated: Àccess shall not be given under section 3(2) of the [Access to Health Records] Act to any part of a health record which would disclose information showing that an identifiable individual was, or may have been, born in consequence of treatment services within the meaning of the Human Fertilisation and Embryology Act 1990.'

Data Protection Act 1998 In 1998 a new Data Protection Act was passed, in order to bring the UK into line with the European Directive 95/46/EC (Dimond 2002: 216), some sections

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coming into force with immediate effect, others to be phased in according to the SoS. This Act repeals the whole of the Data Protection Act 1984 and, in effect, much of the 1990, except with regard to records of deceased persons, as the new Act makes no provision for such cases. Minor amendments have been made to the Access to Health Records Act 1990, to bring it into line with the new Act with regard to the meaning of `health professional' (s69), the charging of fees (s7(2)(b)) and an exclusion in line with Regulation 2 from the 1993 SI (Schedule 15(13)). The new Act lays down eight principles of data protection. (1)

(2) (3) (4) (5) (6) (7) (8)

Personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless ± (a) At least one of the conditions in Schedule 2 is met, and (b) In the case of sensitive personal data, at least one of the conditions in Schedule 3 is also met. Personal data shall be obtained only for one or more specified and lawful purposes, and shall not be further processed in any manner incompatible with that purpose or those purposes. Personal data shall be adequate, relevant and not excessive in relation to the purpose or purposes for which they are processed. Personal data shall be accurate and, where necessary, kept up to date. Personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes. Personal data shall be processed in accordance with the rights of data subjects under this Act. Appropriate technical and organisational measures shall be taken against unauthorised or unlawful processing of personal data and against loss or destruction of, or damage to, personal data. Personal data shall not be transferred to a country or territory outside the European Economic Area unless that country or territory ensures an adequate level of protection for the rights and freedoms of data subjects in relation to the processing of personal data. (Schedule 1, Part 1)

It must be remembered that these principles relate to all aspects of people's lives, not just health care. Midwives need to understand them with regard to their application to midwifery care but also from their own personal points of view, for example as consumers or employees. As members of society, they have rights regarding the òbtaining, holding, use or disclosure of . . . information' (the Act) relating to themselves and their families. Here is a brief explanation of these principles. Principle 1 requires that data subjects, i.e. the people to whom the information relates, should not be misled into giving information for a purpose other than what is expected or has been explained. The reference to Schedule 2 relates to conditions relevant to the processing of `personal data', including consent of the subject, aspects of contracting, fulfilling legal obligations and purposes of justice, and protecting the subject's interests. It also includes `the purposes of legitimate interests pursued by the data controller or by [others] to whom data are disclosed'. The data controller is the holder of the information and the statement sounds somewhat vague and wide ranging. However, this inclusion is not allowed if it


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adversely affects the subject's rights, freedoms or interests. The reference to Schedule 3 relates to conditions relevant to the processing of `sensitive personal data'. This Schedule includes a number of clauses, among which is one related to medical purposes, by a `health professional' or a person with a `duty of confidentiality' equivalent to that of a health professional, such as a health care assistant (Sch 3(8)). Sensitive data would include details of racial and ethnic origin, religious beliefs, political activity, health status, criminal convictions or sexual preferences, unless of relevance to the situation. In midwifery some of these details would be of importance in order to provide appropriate care and services. Having determined, as in the first principle, that there is lawful justification for obtaining and processing data, principle 2 covers the use to which it is put. The only purpose(s) for which it can be used is that to which the subject consented. For instance, it is not lawful to use information gained in a midwifery booking history as a later source to promote a method of contraception. From the employment perspective, it is not lawful to provide staff details to a mail order firm. Principle 3 addresses the type and quantity of data. Obviously there must be sufficient data for the stated purpose(s), but it must not be in excess of actual need or be irrelevant to the purpose(s). It is not acceptable to obtain information because of possible future relevance or in case it might be necessary. Principle 4 relates to accuracy and currency. Inaccurate data can mislead people who need to access the information, leading to errors in investigations, decision making, care and treatment ordered. Also, there are times when changes need to be made, which could be as simple (but important) as a change of name or address or it could be the recording of results of investigations. Errors could have significant effects in midwifery practice. The data controller would not be held responsible if the subject had given incorrect information in the first place. Principle 5 is self-explanatory; it requires that data controllers do not keep information beyond what would be considered a reasonable length of time. Midwifery case notes, as discussed in Chapter 5, must be kept for 25 years as they could be of benefit to the woman or the child in later years, as well as the health service organisation. This length of time would be totally unacceptable where a retailer, for instance an electrical goods supplier, had a one-year financial agreement with a customer. In the case of midwives, or student midwives, certain information would need to be kept for perhaps five years beyond the completion of their employment or training, in order to produce references as requested, again for the benefit of the individual, not the institution. However, it would not be appropriate to keep information about unsuccessful applicants for jobs or courses for such long periods of time; in these cases it should be no longer than four months (Scriptographic Publications 2001: 8). Principle 6 recognises specific rights of data subjects, failure to observe which would be unlawful. These rights include: . access to information held about them, unless there is exemption under section 7 of the Act; therefore a woman can seek access to her maternity records, perhaps where she feels that there has been negligence; . prohibition of initial data processing or removal of existing data, where substantial harm or distress could be caused to the individual or another. This right

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only exists in the absence of lawful processing as laid down in Schedule 2 (see principle 1 above). There could be a situation where a midwife discovers, by chance, not directly from the woman, information relating to her partner or the father of her baby that could be distressing. If the midwife records this information without the woman's consent and the woman finds out, she could seek removal of it; . prevention of the use of the data for direct marketing; . written requests to data controllers to amend, block or remove data deemed to be in breach of principles 2 and 4 above; . written requests to data controllers that important decisions, related to the subject, should not be based on the processing of automated data alone. Such situations could occur in selection procedures for jobs. Principle 7 is about security of access to information by people other than the controller or subject; also, security to prevent loss or damage. Access should be on a `need to know or use' basis only and it is essential that effective security measures are in place to prevent unauthorised access. One of the past problems in health care seems to have been an acceptance that any health care professional has access to records, regardless of whether there is a genuine need for that access. An area that should be considered is the audit of records. While it is a useful tool within supervision and other aspects of clinical governance, it could be argued that the person undertaking the audit does not have a `need to know or use' the confidential information, in the strictest sense. The auditor's purpose is not to check the content of the records with regard to the individual's data but with regard to professionals' signatures, legibility of writing, labelling of pages and so on. However, the confidential information is available to them. As for loss or damage, a situation such as the Ombudsman's case outlined in Chapter 4, where records were possibly deliberately destroyed, would be in breach of this Act and therefore likely to face a lawsuit. Principle 8 is only likely to occur in midwifery when a pregnant woman moves between countries and needs to take relevant information with her. In such a situation the woman will be in control of the information and will probably deliver it by hand to the carers in the new country of residence, thereby indicating implied consent to the transfer. The information is then entrusted to personnel in the other country by the woman, not by a UK organisation or individual professional. In 1999, a system was established that should provide the necessary framework with regard to principle 7: the appointment of Caldicott Guardians (NHSE 1999). The purpose of these identified senior professionals within NHS organisations is to take responsibility for guarding patient information. While they are unlikely to be found standing guard over the medical records departments of their establishments, they are responsible for ensuring appropriate protocols are in place and for monitoring their operation and effectiveness. The appointment of these Guardians, a quality initiative, was stimulated by the recommendations of the Caldicott Committee (1997), when it reported on the management of confidential patient information in the NHS, but also fulfils a purpose under the Data Protection Act 1998 and Article 8 of the Human Rights Act 1998, regarding respect for privacy. In


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2002, a similar system was established in councils with social services responsibilities (DH 2002). This step was essential, particularly following the passing of the Health and Social Care Act 2001, which enabled the government's aspiration that health and social care should work together more closely, in order to provide a `seamless service' where needed by the public. Part 5, section 60, of the Health and Social Care Act 2001 also includes a section on patient information. In particular, it enables the SoS to make regulations to deal with provision and processing of information, without consent, in exceptional circumstances. The Act provides a number of safeguards to protect the interests of individuals. One is the establishment of the Patient Information Advisory Group, the views of which must be considered by the SoS before submission of draft regulations. The final safeguard is that the consent of both Houses of Parliament is needed for any proposed regulations in this field (section 61).

Disclosure of confidential information As can be seen from the outline of relevant statutes, midwives have a duty to protect the personal information of the women for whom they care. This does not mean that there can never be a situation in which information can be disclosed. What it does mean, however, is that we should be able to justify our disclosure. Unless an instruction to the contrary is given, there is implied consent to the passage of information between relevant professionals involved in current care, usually through the case notes or verbal referrals. If it is thought necessary to disclose information beyond this boundary, in the best interests of the woman or her baby, or when the woman has made an explicit statement that certain information is confidential, the first action should be to seek the woman's permission. If the disclosure can be justified to the woman, she will probably give consent but this does not mean that the midwife can then tell everybody, only the people who have a need to know with regard to direct care or decision making. If the woman refuses to consent to disclosure, then the midwife must determine the importance of it. For instance, would it just be helpful or is it essential for the care of the woman or her baby that we consider breaching her right to confidentiality? Remember, the fetus has no rights, so a breach of the mother's rights is unlikely to be justifiable in law. If it is considered essential to disclose information, the midwife should inform the woman that she has a professional responsibility to seek advice from a supervisor of midwives, who is also bound by a duty to protect information. If the information is then to be passed on to another individual or agency, the woman must be told that this is the case, with a reason given to her and documented in the case notes. There are other situations when midwives must disclose information. One situation occurs on a regular basis and is probably not even considered from the perspective of disclosure: notification of births and stillbirths. There is a great deal of personal information contained on birth notification forms, either paper or electronic versions, yet we do not seek consent from the mother before sending them to the Registrar of Births, Marriages and Deaths. We do not seek consent because it would be futile; we are legally bound to comply with such requirements.

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We would also be legally bound to disclose information if ordered by a court, unless we wished to be in contempt of that court and perhaps go to prison for the privilege. Other aspects of practice requiring such compliance by the midwife include cases of maternal death, stillbirth (again) and neonatal death. In these instances information must be notified to the Confidential Enquiry into Maternal and Child Health (CEMACH, formerly CEMD and CESDI). With regard to child health, midwives currently only work with babies in the neonatal period, i.e. up to 28 days old. The exception to this rule is where they work in neonatal units, where babies are often cared for to an older age. Notifying the national body of enquiry also involves a lot of personal information being included in the forms; however, the cases are anonymised later, with all identifying information destroyed. The other area where disclosure might be justified is if it is deemed to be in the public interest, but it is very difficult to define this term. Child protection would come under this heading, as would drug trafficking or threats of violence against individuals. Midwives must be careful that they do not act without advice from a supervisor, as their view of the public interest might not match the legal position. The supervisor could seek advice from the Trust's legal department before agreeing to disclose the information initially by verbal communication and later in a statement or report.

Writing a statement There are many situations in which it may become necessary for a midwife to write a statement. It could be that the midwife is concerned about a future complaint. This concern may not be because she has done something wrong but perhaps someone else has or there might have been an unavoidable incident or a near miss or a client or her relative has been dissatisfied with some aspect of care or treatment. It could also be related to a child protection issue. In many cases it is probable that an incident form or risk management report form has been completed, but a full statement made as near to the incident as possible, signed and dated, is more valuable than one made at a later date. If the statement, once written, is not requested by a manager or supervisor of midwives, then the midwife can store it safely at home, perhaps in her professional profile, in readiness for any future request. Inevitably, however, there will be occasions when statements are requested from everyone concerned with a particular case, often following complaints by the public or by other members of staff or where a legal action is brought against the Trust. As indicated in Chapter 5, this could be beyond 21 years after the event(s), therefore, unless the midwife made a timely statement for just such an eventuality, she will have to rely almost totally on the records made at the time. In order to determine what should be included in a statement, it might be easier to call it a `statement of fact', as that is all that should be included ± facts, not opinions or speculation. The facts that should be included are as follows. . Date and time of making the statement. . Your name, position, qualifications and length of experience at the time of making the statement.


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. Date and time of the incident. . Your name, position, qualifications and length of experience at the time of the incident. . A full description of the facts surrounding the incident: (a) client's essential details (b) what happened? (c) what did you do and when? (d) who else was involved? What did they do and when? State names and designation as necessary. . If you wrote a statement at the time of the incident, refer to it and attach it firmly. . Sign the statement (preferably once it has been word-processed), adding the date and time of signing, but only when you are happy with its content.

Writing reports There are many reasons why midwives might be required to write a report; the more senior the midwife, the greater the variety of reports she may be required to write, or the need for reports may be more frequent. The variety would include management reports on investigations into clinical incidents, complaints or legal claims of negligence or battery by a member of the midwifery staff. A supervisor of midwives may also need to write reports on investigations of clinical incidents or the conduct of a midwife. Midwives in senior positions might also undertake the role of expert witness, as discussed in Chapter 5, and therefore are required to write reports having analysed a case outside their own Trust. There are obviously other types of reports, but those stated are of most relevance to the content of this book. In each of these cases similar principles apply: production of a proper document with a front sheet, contents page, numbered and headed pages for the body of the report and an appendix if appropriate. The content should include the following information.

Introduction . State your name, position, qualifications and length of experience at the time of writing the report. If the report is as an expert witness, your up-to-date curriculum vitae will be required in the appendix. . State the purpose of the report and the intended readership. . Summarise the case and summarise your conclusions; the detail will appear in the main body of the report.

Body of the report . State the issues to be addressed. . State the facts as determined by your investigation. This section would be similar to a `statement of fact', with the addition of identification of sources of

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information and references used; for example, NMC documents or published research relevant to an area of practice under scrutiny. . State the range of opinion held about the issue(s), then give your opinion (use the first person) of the issue(s), with reference to the facts that helped you to formulate that opinion. In short, answer the question `why?' with `because'. . End the main body with a `statement of truth', confirming that you have written the report based on your professional knowledge and honest belief of the facts. Sign and date it, also print your name. If the report is made as an expert witness, a `statement of compliance' is also required, relating to your duty to the court as an independent witness, even though you might have been engaged by one or other party in the case.

Appendix . Your CV if necessary. . A glossary of terms if the report might be read by people who might not understand the terminology used. . A list of references or sources used. Having written a report, it is then important to leave it and return to it at a later point, even just a few hours, rather than sending it to the intended recipient immediately on completion. On careful reading of it, after doing something else, it is possible to identify aspects of the report that require further attention, such as correction of spelling or grammar, expansion of certain points for greater clarity. Attention to detail is vital if the report is to be considered a document of professional importance; it also reflects on the professionalism of the reporter. Hurried scanning of a completed document often results in the writer reading what she thinks she has written, rather than what is really there.

Summary This chapter started by considering the principles of record keeping in practice, in line with the expectations of professional bodies, the courts and the NHS complaints system. It then covered the relevant legislation and current initiatives intended to promote the good practice expected by that legislation. The next stage was to consider the principles of turning recorded information into statements of fact and the development of reports, which interpret some of the records in line with available evidence. As indicated earlier in the chapter, the quality of a midwife's records could be seen to mirror the quality of her practice. Therefore, the impression she creates is literally in her own hand.

Reader activity . Identify the Caldicott Guardian (CG) for your Trust. . Read your local policy on protection of patient records. If there is anything unclear or ambiguous, raise it with the CG or with your supervisor of midwives.


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. Undertake an audit of maternity records in your clinical area. If you are a community midwife who only has access to the patient-held records, you could arrange to do this activity in the postnatal area of the local maternity unit. Do the records conform to the expectations of the NMC and the Data Protection Act 1998? Discuss the outcome with your supervisor of midwives. . Determine how the woman's information is protected during audit (such as yours in the previous activity) and research. Find out whether there is a midwife on your Local Research Ethics Committee and on your Trust's Research and Development Committee.

References Dimond B (2002) Legal Aspects of Midwifery, 2nd edn. Books for Midwives, Edinburgh DH (2002) Implementing the Caldicott Standard into Social Care. HSC 2002/003. The Stationery Office, London Jones SR (2000) Ethics in Midwifery, 2nd edn. Mosby, Edinburgh NHSE (1999) Caldicott Guardians. HSC 1999/012. NHSE, Leeds NMC (2002) Code of Professional Conduct. NMC, London Scriptographic Publications (2001) Employees' Guide to The Data Protection Act. Scriptographic Publications, Alton, Hampshire UKCC (1998a) Guidelines for Records and Record Keeping. UKCC, London UKCC (1998b) Midwives Rules. UKCC, London

Statutes/SIs Access to Health Records Act 1990 Access to Health Records (Control of Access) Regulations (1993) SI 1993 No. 746 Data Protection Act 1984 Data Protection Act 1998 Data Protection Order 1987 Data Protection (Subject Access Modification) (Health) Order 1987 Health and Social Care Act 2001 Human Fertilisation and Embryology Act 1990 Human Rights Act 1998

Chapter 8

Aspects of Law Related to Reproduction and Child Protection

This chapter focuses on the main provisions of some of the legislation related to reproduction and child protection. There is a tendency for the public to think of midwives as just `delivering babies'. More enlightened people, especially the more satisfied users of the maternity services, will recognise that midwives have a major role to play in antenatal and postnatal care as well. However, it should be realised that midwives can potentially be involved in all aspects of child bearing, such as: providing advice to women who are planning a pregnancy or trying to prevent one; counselling and providing advice or care for women choosing to end a pregnancy; supporting women or couples during infertility investigations or assisted conception treatment; during a spontaneous pregnancy or one following successful treatment; during labour or elective caesarean section and during the postnatal period, whatever the outcome. Also, where the pregnancy results in the birth of a live baby, the midwife is involved in the care and protection of that child, usually up to 28 days. Within the aspects of care included in the previous paragraph, there can be complicated combinations. For instance, a woman may give birth to a baby where the intention is for the baby to be adopted. In such a case there will be the need to provide postnatal care for the biological mother, neonatal care for the baby and, possibly, support for a foster family or potential adoptive family during the baby's first month of life. After the initial period, these aspects of care might be carried out by midwives in different geographical areas. A similar situation could also occur where there is a surrogacy arrangement. For midwives to undertake care in such varied, sometimes complicated arenas, they need to keep abreast of the legislation relevant to the aspects that might affect them or the women and babies for whom they have a duty of care.

Assisted conception and artificial reproduction For many years the field of medical science has tried to develop increasingly more reliable methods to assist couples, and more recently single women, to bear children. Initially the techniques were intended to assist the couple to conceive with


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their own gametes. However, more recent techniques also involve the use of donor gametes or embryos, surrogate mothers or various combinations of them all. The first acknowledged successful case of in vitro fertilisation (IVF) was in 1978 and the non-scientific world was astounded. Such developments raised ethical concerns that led to the establishment of a committee in 1982, chaired by Dame Mary Warnock DBE, which resulted in the Report of the Committee of Inquiry into Human Fertilisation and Embryology (the Warnock Report) (DHSS 1984). Societal values were rocked again in the mid-1980s when cases of surrogacy hit the news. The media featured dramatic scenes of a baby being taken from a surrogate mother in the USA, because she had changed her mind and wanted to keep the baby. In the UK there was the case of Re C (A minor) [1985], known as the `Baby Cotton case', where the surrogate mother contracted with an American couple and was inseminated with the husband's semen. When the couple came to take the baby back to the USA, the local authority made the child a ward of court and requested a ruling on the child's future. The judge ruled that, based on his view of the best interests of the child, the American couple could take the child back to the USA. However, he expressed his concerns about the commercial aspects of the case, as money had been given to the surrogate mother and an agency had been involved in the arrangement. This position was in conflict with what was lawful in the case of adoption, where no financial arrangements were allowed. The Warnock Report (1984) had made recommendations regarding surrogacy, which included the regulation of it, prevention of commercialisation and the necessity for the arrangements to be unenforceable. However, it was the Cotton case that led to urgent Parliamentary action and the passing of the Surrogacy Arrangements Act 1985, making commercial surrogacy illegal in the UK, but it did not state that arrangements were unenforceable. The Act allowed for altruistic surrogacy, through a private arrangement not an agency, with payment of expenses only. Midwives and doctors assisting in the arrangements, in the normal course of their professional involvement, would not be guilty of a criminal offence unless they contravened the terms of the Act. However, it is probable that most midwives were not aware of the legality of surrogacy until very recent times, perhaps because there were few cases or, quite possibly, most cases were not declared during the midwife's involvement. In 1990, this Act was amended by section 36 of the Human Fertilisation and Embryology Act, in line with the earlier Warnock Report's recommendation, by the inclusion of a section stating that the arrangement was unenforceable. Hence, the woman bearing the child could not be forced to release the baby, nor could the commissioning couple be forced to take the baby. In any case of dispute, courts would have to decide in the best interests of the child. In 1997, Margaret Brazier, Professor of Law, led a small team in reviewing surrogacy. In October 1998 the report was presented to Parliament: Surrogacy. Review for Health Ministers of Current Arrangements for Payments and Regulation (Brazier, Campbell & Golombok 1998). With regard to payment, the report recommended that only `genuine expenses associated with pregnancy' should be covered, with details of such expenses established prior to creating the pregnancy. The report lists the following àllowable expenses' in paragraph 5.25:

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Maternity clothing Healthy food Domestic help Travel to and from hospital clinic Telephone and postal expenses Overnight accommodation Childcare to attend hospital clinic

Counselling fees Legal fees Life and disability insurance Medical expenses Ovulation and pregnancy tests Insemination and IVF costs Medicines and vitamins

In addition to this list, the report includes reimbursement of the loss of earnings, but only for the difference between what the actual earnings would have been and the statutory benefits received. Evidence of actual loss is required and potential earnings cannot be considered (para 5.26). With regard to regulation, the report proposed three options. (1) (2) (3)

Extension of the role of the Human Fertilisation and Embryology Authority (HFEA). Creation of a new licensing authority. Registration by Departments of Health.

The third option was the committee's preference and would require the development of a Code of Practice, which could also be referred to in the guidance issued by the HFEA and professional bodies. In view of the committee's findings, it also recommended the development of a new Surrogacy Act, to incorporate its other recommendations. The new Act would replace the original and section 30 of the Human Fertilisation and Embryology Act 1990 (HFE Act), which deals with Parental Orders. At the time of writing there has been no new legislation in this field, nor has there been the publication of any form of Code of Practice. A midwife's duty of care, in the case of surrogacy arrangements, is to the surrogate mother, that is, the woman bearing the child, and then includes the baby once born. The wishes of the surrogate mother are paramount and only when she has given permission for the commissioning couple to take, or be involved with, the baby, does the midwife have any duty to them. The duty then is to inform, advise and support them in the care of the baby during the neonatal period. Appropriate transfer arrangements must be made to a midwife and health visitor in the couple's area of residence, to ensure that care, screening and health surveillance can continue. Maintaining confidentiality for all parties is very important and disclosure should be on a `need to know' basis. The notification of birth must be completed with the surrogate's details, as she is legally the mother. If she is a married woman and her husband was in agreement with the arrangements made, then he is the father until the legal transfer of parental rights takes place. In all other cases the father would be recorded as ùnknown', regardless of whose gametes have been used to create the baby. Giving parental rights to a gamete donor, even if it is one of the commissioning partners, could infringe the rights of the legal mother (Jones 2000: 139). The legal process for the commissioning couple depends on the form of surrogacy that was undertaken. If the genetic make-up of the baby comes from either or both of the partners, then they can apply to the court for a Parental Order, which enables the child to be treated as if born within a marriage. The application must be made within six


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months of the child's birth, with the child in their custody, living in the UK, Channel Islands or Isle of Man, and with the consent of the surrogate parent(s) (HFE Act, s30). In cases of surrogacy where gametes from either commissioning partner have not been used, the couple must apply for an Adoption Order to acquire parental responsibility. In the interests of coherence, the legislation related to surrogacy, which was the area of earliest regulation in this field, has been kept together and attention will now be given to the major legislation.

Human Fertilisation and Embryology Act 1990 As already stated, in 1982 the Warnock Committee was charged with examining all aspects of assisted reproduction. The report, published in 1984, was lengthy and detailed but its main recommendation was that legislation should be passed to set up a statutory licensing authority, which would regulate matters related to infertility services and research. During the ensuing years between this report and the Royal Assent for the eventual legislation, an Interim Voluntary Licensing Authority was established, in order to begin the process of regulation to negotiate the ethical minefield. With the passing of the Act in 1990 came the order to establish a statutory regulatory body: the Human Fertilisation and Embryology Authority (HFEA). Section 8 of the Act states that the HFEA's general functions were to: (a)

keep under review information about embryos and any subsequent development of embryos and about the provision of treatment services and activities governed by this Act, and advise the Secretary of State, if he asks it to do so, about those matters; (b) publicise the services provided to the public by the Authority or provided in pursuance of licences; (c) provide, to such extent as it considers appropriate, advice and information for persons to whom licences apply or who are receiving treatment services or providing gametes or embryos for use for the purposes of activities governed by this Act, or may wish to do so; and (d) perform such other functions as may be specified in regulations. The `treatment services' referred to in (c) above are defined in section 2(1) as: `medical, surgical or obstetric services provided to the public . . . for the purpose of assisting women to carry children.' Advice and guidance is produced in a Code of Practice for the professionals, updated as required, and information for the public is produced in the form of leaflets and videos. The Act states further, in 2(3), that: à woman is not to be treated as carrying a child until the embryo has become implanted.' Therefore, the successful transfer of separate gametes or the creation of embryos does not count as a pregnancy. As with spontaneous conception, pregnancy is

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determined by successful implantation. Destruction of gametes or embryos, therefore, does not equate with abortion in the legal sense, although it is accepted that some individuals would consider there to be a similarity from an ethical standpoint. Ethical concerns regarding assisted reproduction are many, but they will not be addressed directly in this book (see Jones 2000, Chapter 9). Techniques for assisted reproduction continue to develop, but there remain restrictions to what can be performed lawfully in the UK. For instance, despite what is happening in other parts of the world, UK scientists are prohibited from creating hybrids and chimeras involving human gametes. They are now permitted to undertake research on embryonic stem cells, supported by the Human Fertilisation and Embryology (Research Purposes) Regulations 2001. This legislation has extended the purposes for which research licences can be granted, now including the pursuance of knowledge regarding the development of the embryo and serious disease, and including the application of that knowledge. However, the scientists remain prohibited from continuing the process into creating human clones (Human Reproductive Cloning Act 2001). Despite the existence of what appears to be sound regulation, there have been legal challenges that have caused concern to the public. One case, that of R v. Human Fertilisation and Embryology Authority, ex p Blood [1997], revolved around the issue of using sperm from the dead husband when there was no documented evidence of his consent, a stipulation in Schedule 3 of the Act. Not only was there no consent for the use of his genetic material, but there had been no consent for the collection of his sperm in the first place; he was comatose and dying of meningitis at the time. Diane Blood was eventually allowed to take the gametes to another country where artificial insemination was successful, on two occasions, resulting in two live births. There have been other challenges also, related to the desire of couples not suffering from infertility to utilise techniques to produce children who could serve as donors for siblings with serious illness. The outcome of these challenges has varied. Apart from attempting to regulate the specialty of assisted conception, the law also features in cases of misadventure. One such case involved a white-skinned couple where the woman gave birth to black-skinned twins, as a result of the wrong sperm being used in the technique. According to the HFE Act 1990, regardless of the source of the gametes, the woman who has given birth to the child(ren) is the mother. Two couples were devastated and a judge had to decide which couple should have parental responsibility for the children. At that time the judge ruled that the children should remain with the legal mother and her husband: Mr and Mrs A. However, a further development took place in a later judgment, again by Dame Elizabeth Butler-Sloss, in the High Court (Leeds Teaching Hospitals NHS Trust v. Mr A and Others [2003]). In this case, following detailed submissions by all the counsel involved, it was declared that the other man, Mr B, is the legal father. The children will remain with Mr and Mrs A but, in order to re-establish parental rights as a couple, they will need to apply for a Parental Order. This ruling appears to be in conflict with the Human Fertilisation and Embryology Act 1990. However, it was decided that the error that was made effectively nullified the consent of all parties, therefore the relevant sections of the 1990 Act did not apply. Interestingly, the error might never have been discovered had the skin colour not been different.


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According to a newspaper article, written by a man who appears to be an experienced doctor in this field, mistakes and poor practice happen all the time and stricter controls are needed (Lee 2002). It is probable that stricter control might be achieved by improved application of the Act, rather than major amendments. Part of the role of the HFEA is to propose new policy as new techniques, concerns or challenges arise. Consultation documents are produced with a view to gaining nationwide opinion. In 1993, consultation on sex selection was undertaken, with the result that it was deemed acceptable in cases of serious sex-linked disease. In 1994 there was consultation on acceptable sources of ovarian material. The document sought opinions regarding the potential use of ovarian material from live women, dead women and dead fetuses, in the treatment of infertility and the field of research. The response at the time was the acceptance of the use of any source of material for research, but only a live source for the creation of babies. A more recent consultation involved payment to donors, which appears to be continuing as the research has shown there to be a negative impact on potential donors, particularly men (McLaughlin et al. 1997). Since then a consultation document has been prepared to reconsider people's views regarding sex selection for any reason and the possible methods that could be used (HFEA 2002a). The result of this consultation has not yet been published, at the time of writing this book. The HFEA, as well as seeking consultation and submitting reports to the government, is a body that responds to consultation by others. A case in point is Donor Information: Providing Information about Sperm, Egg and Embryo Donors, where the views of the public were sought with regard to maintaining the anonymity of gamete or embryo donors. In the document, the questions posed related to whether children conceived in the future by the use of donated material should, eventually, have access to identifying information. The HFEA response was published in July 2002 (HFEA 2002b), recommending to the DH that, in future, donor anonymity should be removed. It recommends also that counselling guidelines should be developed to deal with this issue when patients are considering using donated material, also for dealing with eventual requests for information from the offspring.

Abortion The Abortion Act 1967 started its process through Parliament as a Private Members' Bill. The final Act stated the general circumstances under which abortion could be performed lawfully. In view of the fact that the Infant Life Preservation Act 1929 protects the life of the viable fetus and at that time viability was considered to be 28 weeks of gestation, abortion was only lawful prior to 28 weeks. In the 1980s, largely due to advances in neonatal care, there was widespread opinion that the point of viability should be lowered. In some quarters there was also the view that the upper time limit for abortion should be lowered. With the passing of the HFE Act 1990, the opportunity was taken to amend the Abortion Act 1967. The Abortion Act 1967 (as amended) has retained the necessity for all termi-

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nations of pregnancy (TOP) to take place in NHS premises or establishments licensed for the purpose. Also, there still must be the signatures of two registered medical practitioners to indicate the need for the TOP, unless it is being undertaken in an emergency to prevent serious harm to the woman. The major changes relate to the time limit, which was reduced to 24 weeks of gestation in cases where: `. . . the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family.' [s1(1)(a)] However, the other circumstances listed in which TOP would be lawful had no stated time limit, therefore permitting TOP at any gestation for these reasons: `(b) that the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman; or (c) that the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated; or (d) that there is substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.' In the circumstances of (b) and (c) above, such as cases of severe pre-eclampsia or other serious medical conditions, the intention would be to do the best for the fetus and then the baby, once born. However, the intention in (d) would be that the fetus should not survive, despite the gestation. This position has caused concern for many people. Indeed, it was reported by Baroness Cox (1991) that a bishop who had taken part in the debate later admitted that he had not understood the implications of clause (d). The concerns of the public are also evident in some practitioners within the midwifery services (Jones 2000: Chapter 8), but not just with regard to the late gestation termination of fetuses with possible or actual abnormalities. Some maternity services have extended their sphere of responsibility to cover all aspects of pregnancy-related care, including TOP at any gestation. In other services, maternity and gynaecology are managed together and midwives are occasionally required to work in gynaecology wards. Also, in the community, midwives may already be providing antenatal care for a woman when she decides that a TOP is necessary. Midwives are educated in the support required for women in the circumstances of stillbirth or neonatal death, thus suggesting that they are in a unique position to support a woman undergoing pregnancy loss through TOP. However, not all midwives feel able to offer care and support during the process of TOP, whatever method is used, as they feel morally compromised. The Abortion Act 1967 (as amended) maintained section 4, regarding conscientious objection, which was included in the original Act to acknowledge the moral or religious views of practitioners: (1)

(2)

Subject to subsection (2) of this section, no person shall be under any duty, whether by contract or by any statutory or other legal requirement, to participate in any treatment authorised by this Act to which he has a conscientious objection . . . Nothing in subsection (1) of this section shall affect any duty to participate


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in treatment which is necessary to save the life or to prevent grave permanent injury to the physical or mental health of the pregnant woman. In Scotland, a statement on oath in court is the recommended proof of conscientious objection. However, this is not the case in England and Wales, where the onus is on the midwife to notify her manager of her objection, in writing, prior to a situation where she wishes to be exempt from the care of a woman who is to undergo TOP. The NMC (2002, c8) indicates that a conscientious objection should be reported to appropriate personnel at the practitioner's earliest convenience. Dimond (2002: 418) interprets this clause to mean that it should be disclosed at interview; however, this was not the position held in the agreement between the DH and the health professions at the time of the amendment of the Act. The agreement, which applies equally to nurses, midwives and doctors, is that no mention of abortion duties should be included in the advertisement but, where relevant, it should be in the job description (Morgan & Lee 1991: 178). Only if it is included in the job description can the issue of professional intention be raised by members of the panel. It also must be recognised that people's views can change; a midwife could be willing to participate when she first takes up post but later feel the burden of moral compromise. This position must be respected. Notification prior to an actual case prevents the claim of discrimination against a particular woman and also enables managers to organise their staffing appropriately. However, if the midwife has an objection then it must apply to any case of TOP. It would not be acceptable to agree to care for one type of termination, for instance late gestation for fetal abnormality, while objecting to another, such as early gestation for `social' reasons. Midwives who exercise this right must be prepared to advise and provide all aspects of care for the woman prior to commencement of the procedure and again in what is, effectively, the postnatal period. They cannot be compelled under an assumed duty of care to be involved in any aspect of the process, as stated in s4(1) above. However, s4(2) above clearly indicates that, should an emergency occur, such as haemorrhage or cardiac arrest, the midwife must act as she would for any other woman. The whole position regarding conscientious objection to participation in abortion was positively reiterated in Parliament in September 2002, when the SoS was questioned as to whether it was `his policy to respect' such objections (Hansard 2002). One of the major issues for women and midwives, with regard to late termination, is the probability that the later the gestation, the greater the likelihood of a live birth. The Ethics Committee of the Royal College of Obstetricians and Gynaecologists (RCOG 1998: 17) stated that an obstetrician has a duty to prevent fetal suffering during TOP, at whatever gestation. It also recommended that feticide be undertaken for any TOP from 24 weeks onwards. In this case the fetus would be dead at birth. Verbal reports from midwives across the UK suggest that this recommendation is not always followed; also, many TOPs of earlier gestation result in live births, especially from 20 weeks. The report also states that, if feticide has not been undertaken, then the paediatrician has a duty to provide care appropriate to the condition of the baby if born alive. Unfortunately, the same verbal reports include the fact that paediatricians often refuse to attend at the time of birth, even when signs of life are reported. This situation leaves midwives in a

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vulnerable position, as their duty of care to such a baby is the same in law as for any other live-born baby. The fact that the intention was for the baby not to survive does not relieve them of the duty to undertake normal resuscitative measures if required and transfer the baby for neonatal care as appropriate. The Infanticide Act 1938 states: `. . . anyone assisting in the commission of an act, or acquiescing in an omission resulting in the death of a child born alive, may be charged with murder.' Having reduced the time limit for most terminations, the government proceeded to amend the law with regard to the definition of stillbirth, by enactment of the Stillbirth Definition Act 1992. The effect of this Act was to reduce the gestation from 28 weeks to 24. This reduction determined that a fetus born dead from 24 completed weeks of pregnancy was a stillbirth and not a spontaneous abortion. Its birth was then recognised in law through the process of registration. By default, the definition of antepartum haemorrhage (APH) also changed, with the weeks reduced to 24. If the birth of a dead baby between 24 and 28 weeks was no longer an abortion, bleeding from the genital tract at that gestation could no longer be deemed a threatened abortion but an APH. Concern has been shown, depending on with which side of the abortion debate people have an affinity, with regard to the Human Rights Act 1998 and abortion, particularly Article 2: Right to Life. People who are ethically opposed to abortion hoped that this article would see an end to abortions, particularly those considered `social'. Others who are not opposed to abortion have been concerned that services would be at least restricted. However, the terms of clause 1 of the article, the only part that could apply, includes the term èveryone' which itself relates to `persons'. In law, the fetus is not deemed a person and therefore is not protected by this Act. Indeed, prior to this Act, a case was taken to the European Court of Human Rights where a man hoped to prevent his estranged wife from having an abortion (Paton v. UK [1980]). The Commission determined that a fetus could not be considered in isolation of the pregnant woman (Wadham & Mountfield 1999: 64). The gestation of this fetus was less than ten weeks; it would be interesting to contemplate whether consideration could be given, possibly with a different decision being reached, where the fetus was viable. A possible situation could be where a woman requests a TOP for cleft lip and palate, in a pregnancy of later gestation. A decision under this Act, made in favour of the fetus, could have far-reaching effects for pregnant women in the UK, where currently the fetus has no rights until born alive. Effectively, the clock would be turned back to before the landmark caesarean section cases and some women could find themselves forced into various actions or inactions for the sake of a viable fetus. The position in Northern Ireland (NI), with regard to abortion, is fraught with difficulties. Neither the original nor the amended abortion legislation applies there, with the Offences Against the Person Act 1861 and the Infant Life Preservation Act 1929 protecting against, or preventing, abortion. However, according to Hughes and Kaufman (2001), abortion does take place in NI, for instance in cases of fetal abnormality, àt the discretion of the medical profession', but not within any express legal framework. Whatever one's views of the practices in NI, it must be realised that midwives are placed in vulnerable positions. If they


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are requested to care for a woman undergoing an abortion agreed by doctors, they are not entitled to exercise a conscientious objection if they feel that they will be morally compromised. There is no abortion legislation to permit the abortions to take place, therefore there is no opt-out clause. There is, of course, the question of whether they are aiding and abetting in criminal activity, but that argument will not be continued here. The Family Planning Association in NI applied for a judicial review regarding the provision of abortion services. The judgement was handed down in July 2003, with Justice Kerr stating that, as abortion is already legal in NI ìn certain circumstances', no change in law is required. The status quo remains.

Adoption The law on adoption is set out in the Adoption and Children Act 2002, which repealed the Adoption Act 1976, except Part 4 and paragraph 6 of Schedule 2. These sections relate to the meaning and status of adoption, the consequent conferment of citizenship and property rights. In the new Act these aspects are covered in Part 1, chapter 4, but the reason for not repealing the original section is to protect the children already adopted under that Act. The new Act has three parts. Part 1 provides the legal framework for adoption; Part 2 amends certain aspects of the Children Act 1989 and Part 3 establishes the Adoption and Children Act Register, among other miscellaneous items (DH 2002: para 21). In addition, many other Acts are amended, including the Adoption (Scotland) Act 1978, and the Act ensures compatibility throughout the British Isles. It should also be noted that Article 12 of the Human Rights Act 1998, Right to Marry and Found a Family, will include adoption. Adoption severs the legal relationship between a child and its birth parent(s), although, in some cases, social contact may continue. Such a situation is more likely to occur with the older child, rather than with a baby. Adoption creates a new legal relationship between the child and its adoptive parent(s), as if the child were born to the adopter(s) (s67(1)), with all parental responsibilities passing to them through an Adoption Order. The overriding principle in any adoption process, in line with the principles of the Children Act 1989, is that the child's welfare, throughout his life, is paramount (s1(2)). Consideration must be given to the child's background with regard to religion, race, culture and language; presumably, in the case of a newborn baby, some of these aspects may vary in the degree of importance, language for instance. To ensure that the child is protected, the legislation is very detailed in how and when adoption can take place and by whom. In the current social climate in the UK, adoption occurs in many varied situations: by members of birth families; within step-parent situations; by an existing parent to legitimise a birth; following surrogacy where the baby is not genetically connected to the commissioning couple; by single people or couples not related to the child. In reality, midwives will be involved with only one aspect of adoption, that of babies placed for adoption as neonates, for whatever reason, but from a number of possible perspectives:

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. care of child-bearing women during pregnancy, labour and the puerperium, who choose to place their babies for adoption, for whatever reason; . care of the babies of these women from birth until transfer to the foster parents, or prospective adoptive parents in direct placements, usually in a different area from where the birth mother lives; . care of babies being placed for adoption, in the care of foster parents or adoptive parents, having been born outside their locality, to a maximum of 28 days; . provision of information and advice to foster parents or prospective adoptive parents where direct placement occurs. Midwives do not need to know all the intricacies of each possible type of adoption; however, they need to have some basic knowledge related to those where postnatal separation of mother and baby occurs. Although very few babies are placed for adoption, and even fewer directly with prospective adoptive parents, some understanding of the process is needed in order to support the relevant pregnant women and prospective adoptive parents. It is also possible that prospective adoptive parents might request to attend preparation for parenting sessions, held by midwives in their area, prior to the placement of a baby. The previous legislation on adoption was nearly 30 years old and, despite being amended to some extent by the Children Act 1989, carried with it societal values from the era in which it was written. At that time prospective adopters were mostly couples, especially for young babies. They had to be married to each other, both over 21 years old, unless one of them was a birth/natural parent, in which case only one of them had to be of this age. Prospective adopters could be single, if at least 21 years old, although this was rarely the case for newborn babies. The `child' to be adopted had to be less than 18 years old, unmarried and not previously adopted. The Adoption and Children Act 2002 made a controversial passage into statute, by making changes that reflect the make-up of modern society, thus opening up possibilities for children in need of new families. The new Act continues to allow for adoption by married couples and single people, but it also makes way for adoption by unmarried couples, regardless of their sexuality (ss49±51; s68(3)), `living as partners in an enduring family relationship' (DH 2002: para 344). The age restrictions of the prospective adopters still apply but where one partner is the natural parent, (s)he must be at least 18, while the other partner must be at least 21. The applicant(s) must be resident in the British Isles, having been continuously resident somewhere within the British Isles for at least one year. The Act also allows for a òne-person' application of an unrelated child from someone who is still legally married but there are qualifying criteria to be met. The applicant must be living separately from his/her spouse, in the expectation of this being a permanent situation, or the spouse must be untraceable. These conditions are stipulated as, if there is a married partner on the scene, the application would have to be from the couple and both would need to be assessed for suitability as adoptive parents. However, in the case of one partner suffering physical or mental ill health to the extent that s/he is unable to make an application, the case would be considered (s51(3)). In the case of a natural parent wishing to adopt their own child, in order to take on all parental responsibility, an Adoption Order will only be made in certain


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circumstances (s51(4)). These circumstances include where the other natural parent is dead or untraceable or there is no other `parent', as in the case of certain fertility treatment. In such cases it would be unreasonable to withhold an order, in an otherwise suitable case, because the usually required consent would not be obtainable. This section of the Act does provide for other anomalous situations where justification can be made for lone-parent adoption, the reason for which must be recorded (s51(4)(c)). The age restriction related to the person being adopted is still 18 years, although orders can still be made up to the age of 19 in cases where application was made prior to the relevant birthday, but not completed until afterwards. In the new Act, a further change provides for children to be adopted more than once (s46(5)). All local authorities must provide an adoption service that offers advice, provides social service functions and may act as an adoption society or agency. There are also private and charitable adoption organisations that arrange the adoption, acting as intermediaries between the parties, ensuring that the legal requirements are met and, most importantly, ensuring that the child's interests are protected. Adoption societies make adoption arrangements; they may also provide support services for all key people involved in the process, as expected of a local authority. All such organisations must be registered with the appropriate body in each country. Both local authorities and registered societies may be called adoption agencies, where full adoption services are provided. When the adoption of a child is to take place, the agency has two methods of placing him. Either it must ensure that it has the consent of the child's birth parent(s) to the placement (s19) or the local authority must apply to the court for a placement order, to place the child without parental consent. This new process is intended to promote earlier decision making than was previously the case, thus creating more stability and security for children and prospective adopters, while also protecting the birth parents. In fact, to prevent delay in the placement and adoption processes, the court is charged with setting out a timetable that must be adhered to. Parental consent could be for placement with identified prospective adopters, as would be the case following surrogacy where neither commissioning parent was genetically linked to the baby. It could also be for placement with prospective parents selected by the agency. In either case, the consent for placement may also include the consent to future adoption, known as advance consent. In such a case the parent can declare that she does not want any further involvement with the process, such as being informed when an application for an Adoption Order is made. In all cases of adoption, unrelated to Care Orders, consent can be withdrawn. A Placement Order is linked to a Care Order and can only be applied for by a local authority and only in the case of a child suffering or being at risk of significant harm. A Care Order must be in place already or circumstances must be such that the court would make an Order. If the court is satisfied that all preconditions have been met, then the child can be placed with prospective adopters chosen by the agency. The Placement Order is valid until an Adoption Order is made, unless there has been reason to revoke the Order. Babies can be placed at any time from birth, with the agreement of the parent(s), but no formal consent or Placement Order can be sought until they are six weeks

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old (s18). During this six-week period parental responsibility for the baby remains totally with the birth parent(s). The process of freeing a baby or child for adoption has been repealed in England and Wales, although not in Scotland and Northern Ireland, but those children freed under the previous Act are secure during the transition period. Following the acquisition of consent or Placement Order, a baby placed with prospective adoptive parents is the responsibility of the agency concerned. In the case of prospective adopters, parental responsibility will usually pass to them, although the agency may place some restriction on the extent of such responsibility. The birth parent(s) also retain parental responsibility until an Adoption Order is made (s25). Once a baby is placed for adoption, the prospective adopters would need consent from each parent, or from the court, to take the baby out of the country for more than four weeks, thus allowing for holidays, or to use a different surname. If a baby is placed in local authority foster care of some sort, only an authorised person can remove him. Once a baby is placed with prospective adopters, only the adoption agency has the power to remove him. Thus the baby cannot be removed by a parent or relative. However, in the absence of a Placement Order, or an application for one, the parent(s) can request the return of the baby and the agency must comply within seven days of the request. A prospective adopter who fails to facilitate the return of the baby within the time limit could face up to three months' imprisonment or a fine, or both. To apply for an Adoption Order, following placement by an adoption agency, the baby must have lived with at least one of the prospective adopters for ten weeks, which is a reduction of three weeks from the requirement of the previous Act. Where the applicant is the partner of a parent of the baby, residence with both partners must be for six months. Where the applicants are the local authority foster parents, the residential requirement is one year. In all other cases, such as interfamily applications, residence must be for three years in the preceding five. During the placement period appropriate agency representatives must observe the interactions between prospective adopters and the baby/child, in the home setting. The agency is responsible for submitting to the court a report, based on ministerial prescription, with regard to the prospective adopter(s)'s suitability. The Adoption and Children Act Register will be set up to identify children available for adoption and people assessed as suitable prospective adopters. The register will cover England and possibly include Wales and Scotland. The intention is to provide information that might assist in placing children where a local match has not been possible. On reaching the age of 18 years, an adopted person has the legal right to request access to his original birth certificate, showing the name and address of the birth mother at the time of registration (s60). The Registrar General is charged with maintaining a Register of Adopted Children and an Adoption Contact Register. The second of the two is in two parts: the first part contains information about the adopted person who is willing to be traced by birth relatives; the second part contains information about adult relatives of the adopted person who are willing to be traced. Regulations are to be formulated with regard to the provision of counselling services for adopted people who wish to use them. Such services may


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be required with regard to accessing information but also to consideration of using that information to trace birth parents. Adoption agencies will probably be required to secure this provision.

Child protection Whether a child stays with its birth parents, as in the majority of cases, or is placed for adoption, it is still a vulnerable being and worthy of respect and protection. Midwives are well placed to assist in protection by education and support of families, particularly in the community. They are also able to observe interactions, note attitudes and areas of concern, not just with the baby but with any child in the household, and bring them to the attention of appropriate authorities. It must also be remembered that the term `child' covers all minors, from birth to their 16th birthday; therefore, pregnant girls under 16 are also covered by child protection services. Current initiatives have included an increased role for midwives with pregnant teenagers, to ensure that they receive adequate support, advice and information with regard to all aspects of health promotion. It is hoped that such initiatives will provide better outcomes for these mothers and their babies. Child protection policies are developed by Area Child Protection Committees (ACPCs) and at the heart of all child protection policies, procedures and guidelines is the welfare of the child. These committees were set up by the collaboration of the Department of Health, the Home Office and the Department for Education and Employment, which resulted in the publication of the document: Working Together to Safeguard Children (DH, HO, DfEE 1999). The ACPCs involve representatives of all relevant agencies and professions, in order to provide cohesive services that aim to protect children from all forms of abuse (DH, HO, DfEE 1999: 33). Sometimes, during high-profile cases of tragedy related to children, it is difficult to see how the welfare of the child was paramount. Such cases suggest that their care, or lack of it, has been in breach of Article 3 of the Human Rights Act 1998, Prohibition of torture, which states: `No one shall be subjected to torture or to inhuman or degrading treatment or punishment'. Yet the services that should have protected them let them down. However, in the first report of what is to be an ongoing triennial inspection of the safeguarding of children, against standards set by the Social Services Inspectorate (2002), it states that despite the pressures experienced by local agencies `. . . in the vast majority of individual cases . . . children were protected from risk or further harm'. Child abuse takes many forms: physical or emotional neglect, physical violence, psychological abuse or sexual abuse. Sometimes midwives can recognise warning signs that indicate the possibility of a child suffering or being at risk of significant harm. If midwives have concerns about an existing child, they have a responsibility under the Code of Professional Conduct (NMC 2002: 5.3) to report their concerns to an appropriate person, having indicated to the parent(s) that they need to do so. Such a person could be their supervisor of midwives or the relevant health visitor, but maternity services usually have a senior midwife, often a supervisor, designated as the Named Midwife for Child Protection. This midwife would have

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greater working knowledge of policies and procedures than many other clinical midwives; she would also have links with identified people in social services. In cases where there is already concern for a child, or children, the midwife will undoubtedly be concerned for the welfare of the baby once born. However, there could be other cases where there is no other child but the home circumstances lead the midwife to believe that the baby will be at risk. In either of these cases, the midwife can request a prebirth child protection conference, which she will attend. In all cases good record keeping is essential and statements or reports will need to be written. In some cases the local authority will apply for a Care Order for the baby, in accordance with the Children Act 1989, and possibly a Placement Order, depending on the circumstances. If the baby is separated from its mother, then the situation will be similar to that described for adoption, above. However, the separation will not have been by choice, therefore the attitude of the birth parent(s) might require a very different approach from practitioners; their rights must be considered also. An interesting but sad case was reported in the Bulletin of Medical Ethics in October 2002 (pp9±11). In 1998 a baby was born to a woman who was considered, on previous history, to be suffering from Munchausen (by proxy) syndrome. The local authority sought and served an Emergency Protection Order on that day and the baby was placed with foster parents; the authority pursued proceedings for care and adoption. The parents had legal support through Legal Aid but, for different reasons, the father gave up his case and the mother's representative withdrew from her case. In order to prevent a delay that might have an adverse outcome for the baby, the mother was not permitted to take time to engage further legal representation. Court approval for adoption was given and the child was eventually placed when she was 16 months old; the parents had not been granted an appeal against the decision. Having exhausted the legal process in the UK, the parents took the case to the European Court of Human Rights under Articles 6 and 8 of the Human Rights Convention. The court found, under Article 6, that the procedures appeared unfair and prevented the parents from putting their case effectively. Under Article 8 the court ruled that the parents had been seriously disadvantaged by the lack of legal representation; compensation and costs were awarded. The court also found that, despite representation, the child's rights were breached by the failure to ensure representation for her parents.

Summary This chapter has indicated some of the major legislation related to the pursuance and achievement of parenthood. The Human Fertilisation and Embryology Act 1990 regulates the achievement of assisted conception, including surrogacy, while aiming to protect against what most of society considers morally unacceptable practices. Not every woman wants to become pregnant and some women who are initially pleased to be pregnant, sometimes having undergone infertility treatment to achieve it, choose not to continue the pregnancy. These situations are governed


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by the Abortion Act 1967 (as amended). The other method of achieving or extending parenthood is by adoption and that is governed by the Adoption and Children Act 2002. Then, once they are born, children need to be protected and the Children Act 1989, further updated by the latest adoption legislation, aims to do this.

Reader activity . Access the HFEA website (www.hfea.gov.uk) to see if there are consultations in progress; if so, request the document and take part in the process. . Determine the policy in your trust for dealing with late TOP for fetal abnormality. Is feticide undertaken? If so, at what gestation? Does a paediatrician attend if requested? . Find out how many adoption agencies function in your area. Contact them to determine the number of young babies placed for adoption each year across their geographical areas. . Identify the Named Midwife for Child Protection in your Trust. Ask to see the current policy for child protection and identify any areas where you could improve your practice. . Find out what services are available in your area for pregnant minors. Is there a named midwife with specific responsibility for these young people?

References Brazier M, Campbell A, Golombok S (1998) Surrogacy: Review for Health Ministers of Current Arrangements for Payments and Regulation. Report of the Review Team (Brazier Report). The Stationery Office, London Cox, Baroness (1991) Ethical issues for nurses. Nursing; 4(34): 20 DH (2002) Explanatory Notes: Adoption and Children Act 2002. The Stationery Office, London DH, HO, DfEE (1999) Working Together to Safeguard Children. A Guide to Inter-agency Working to Safeguard and Promote the Welfare of Children. The Stationery Office, London DHSS (1984) Report of the Committee of Inquiry into Human Fertilisation and Embryology (Warnock Report). HMSO, London Dimond B (2002) Legal Aspects of Midwifery, 2nd edn. Books for Midwives, Edinburgh Hansard (2002) 19 September, Col 369W. Parliament, London HFEA (2002a) Sex Selection: Choice and Responsibility in Human Reproduction. HFEA, London HFEA (2002b) Response to the Department of Health's Consultation on `Donor Information: Providing Information about Sperm, Egg and Embryo Donors'. HFEA, London Jones SR (2000) Ethics in Midwifery, 2nd edn. Mosby, Edinburgh Kerr J . KERC3985, QBD (Judicial review). Lee S (2002) Revealed: the great IVF scandal. Daily Mail, November 29, pp24±5 McLaughlin EA, Day J, Harrison S, Mitchell J, Prosser C, Hull M (1997) Recruitment of gamete donors and payment of expenses. Human Reproduction; 12: 1842±4. Morgan D, Lee RG (1991) Blackstone's Guide to the Human Fertilisation and Embryology Act 1990. Blackstone Press, London

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NMC (2002) Code of Professional Conduct. NMC, London RCOG Ethics Committee (1998) A Consideration of the Law and Ethics in Relation to Late Termination of Pregnancy for Fetal Abnormality. RCOG Press, London Social Services Inspectorate (2002) Safeguarding Children: A Joint Chief Inspectors Report on Arrangements to Safeguard Children. DH, London Wadham J, Mountfield H (1999) Blackstone's Guide to the Human Rights Act 1998. Blackstone Press, London

Statutes Abortion Act 1967 Abortion Act 1967 (as amended) Adoption Act 1976 Adoption and Children Act 2002 Adoption (Scotland) Act 1978 Children Act 1989 Human Fertilisation and Embryology Act 1990 Human Rights Act 1998 Infanticide Act 1938 Infant Life Preservation Act 1929 Offences Against the Person Act 1861 Stillbirth Definition Act 1992 Surrogacy Arrangements Act 1985

Cases Leeds Teaching Hospitals NHS Trust v. Mr A and Others [2003] LLRM 151 (QBD) Paton v. UK [1980] 3 EHRR 408 Re C (A minor) [1985] FLR 846 R v. Human Fertilisation and Embryology Authority, ex p Blood [1997] 2 WLR 806

Chapter 9

Aspects of Employment Law

Most midwives are employees, mainly within the NHS but also through agencies and private establishments; a small number are self-employed as independent midwives, working alone, in pairs or in groups. Employment law relates to all employed persons and is not specific to midwifery; this chapter, therefore, provides a summary of the main provisions of the current law, as stated in the Employment Act 2002. As midwifery is a female-dominated profession, with working women being a reasonable proportion of its clientele, midwives may be particularly interested in the law on sex discrimination, although other forms of discrimination are also included.

The contract of employment A contract exists between an employer and employee once an offer has been made and accepted, whether or not it is in writing; the principles of the contract rely upon common law rather than statute. The employer has the right to expect the employee to do his job; in return the employee has the right to expect fair treatment by the employer, including reasonable payment for his work. A contract exists from the day when an employee begins work, and any terms and conditions agreed upon should form part of that contract. If either party breaks the terms of the contract, the aggrieved party can sue for breach of contract. Such legal action can be a very expensive way of seeking redress so it is not commonly used. The statutory provisions of the Employment Rights Act 1996 and the Employment Act 2002 are additional to these common law principles. Employees are entitled to receive a written statement of the main terms and conditions of their employment, within two months of starting the job. This principle statement should include: . the names of employer and employee; . the date when the specific employment began; the date when continuous employment began (thus allowing for a change of job, e.g. within the NHS); . the scale and rates of payment and whether weekly or monthly; . the hours of work; . holiday entitlement, including public holidays; . terms and conditions related to sickness or injury; . pension rights and schemes;

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. length of notice to be given or received regarding employment termination; . job title and/or description; . place(s) of work and employer's address. In addition to these inclusions, further items could be added or given separately, as long as they are received within the two-month period: . the length of any fixed-term contract; . any collective agreements that apply to the post; . details of any requirements to work outside the UK. The collective agreements that apply to the NHS have been made by the Whitley Councils. There are general conditions that apply to all NHS workers and further agreements made by functional councils for specific groups of workers. The agreements relating to midwives are made by the Nursing and Midwifery Staffs Negotiating Council. Until the passing of the NHS and Community Care Act 1990, these agreements applied in all NHS establishments. This Act enabled the newly formed NHS Trusts to develop their own terms and conditions of service, although they are not bound to do so. As a result there is now a varying pattern in terms and conditions within the NHS. Some Trusts still use the national agreements in their totality, some have developed their own terms including new pay scales, while others have used a mixture of the national agreements and their own terms to form unique employment contracts. Added to this greater flexibility of contract terms, the national agreements are now often enabling agreements rather than binding terms. That is, they outline possible entitlements, but then leave it to the local employer to decide whether to implement them. In 2003 the General Whitley Council and the functional Whitley Councils were replaced by an NHS staff council. It has responsibility for NHS terms and conditions of employment and for overseeing the new pay system (O'Sullivan 2003: 18). In addition to a contract and statement of particulars, employees also have the right to: . . . . . . . . . . .

an itemised payslip; belong to a trade union; reasonable time off with pay for trade union duties, if a union official; time off with pay for health and safety representatives to fulfil their duties; time off for public duties, such as being a justice of the peace, or a school governor for a local education authority or grant-maintained school; maternity, paternity or parental leave; reasonable time off to look for work when made redundant; give or receive notice of termination of employment; receive written details of the reason for dismissal, if requested; not to be unfairly dismissed; redundancy payment after a qualifying period of employment.

With regard to disciplinary and grievance procedures, the new Act (2002) compels employers to comply with the new system covering both areas, by way of the Statutory Dispute Resolution Procedure.


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Statutory Dispute Resolution Procedure Where there are grounds for considering disciplinary action or dismissal, employers must follow the appropriate procedure, as laid down in Schedule 2, Part 1 of the Employment Act 2002. The standard procedure includes three steps. (1)

(2)

(3)

Statement of grounds for action and invitation to meeting This step requires the employer to write to the employee, (a) stating the reasons for considering action and (b) inviting her to attend a meeting to discuss the matter(s). Meeting The employer must hold the meeting before action is taken, except where suspension is required. Having notified the employee of the grounds for the meeting, there must be sufficient time given for the employee to consider her response. The employee is expected to make every attempt to attend the meeting. Following the meeting, the employer must inform the employee of the decisions made and of the right to appeal against them. Appeal The employee must inform the employer if she wishes to appeal and, in such a case, the employer must arrange another meeting, where possible chaired by a more senior person than the first meeting. The second meeting does not have to take place before the disciplinary action or dismissal takes place. Again, the employee is expected to make every attempt to attend the meeting. Following the meeting, the employer must inform the employee of the final decision.

There is also provision in the Act (2002) for a modified, two-step procedure for dismissal, which omits the first meeting. (1)

(2)

Statement of grounds for action In this case, the employer writes to the employee stating the alleged misconduct, the basis for determining that misconduct had occurred and the decision to dismiss her. The letter must also include the right to appeal against the decision. Appeal This step is the same as for the standard procedure.

The forms of disciplinary action that can be taken are staged at different levels of severity. Each employer will have their own written procedure but usually the policies follow a similar pattern: . . . .

verbal warning first written warning (some have a second written warning) final written warning dismissal (some have suspension first).

Although the first stage is a verbal warning, there has to be something in writing in the file, and sent to the employee, to record the fact that it has taken place. Where written warnings are given, the letter must state the length of time that they will be active on the file, for instance six months or one year. At the end of that time they

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are `spent' and the employee's record is clear. However, if misconduct is proved again during the active time of a warning, then the next stage would be invoked, to the point where dismissal would occur. Although it is usual to move through the levels of discipline, it is not compulsory. If an employee's conduct warrants a more severe punishment then that is acceptable; in cases of gross misconduct a final warning or dismissal can be the penalty for a first offence. Where the conduct of an employee has been investigated following a complaint from a patient or client, the Trust must write to inform her of the outcome of the investigation and action taken to prevent a recurrence. As discussed earlier, dissatisfaction with the handling of the complaint could ultimately lead to an Ombudsman's investigation. Whenever an allegation of malpractice or misconduct is made with regard to midwives, the midwife manager has a major role to play. It is usually the midwife manager who will make the first contact with the midwife and will then form the link between her and the legal advisers and general management. The midwife is likely to be very upset that a complaint has been made and anxious about the process of dealing with it. Although the manager has the responsibility to make sure that statements are obtained, she can also offer support and informal counselling to the midwife. The manager should assist in obtaining the clinical notes and a copy of the complaint. She should also facilitate the midwife in meeting with her union representative, in order for her to obtain outside, unbiased help. The local steward may be asked to give some direct support, especially if the midwife has to go to court; the steward should be given time off for this duty. If there is more than one discipline involved, the midwifery manager may be required to act as the co-ordinator. Because of her possible pivotal role in the process, she should be aware of the probable actions to be taken and, if necessary, should also arrange to see the legal advisers so that they can advise her of how the case might proceed. Sometimes a case depends on evidence of staffing levels and other related management procedures, such as the way in which a theatre is obtained for caesarean section. In these circumstances, the manager may be required to give a statement and appear as a witness as part of the employer's case. The procedures for the other side of dispute resolution, that is grievance from an employee, are dealt with in a similar way to discipline. The difference is that the aggrieved employee commits the problem(s) to paper and sends it to the employer. Again, there is a standard three-step and a modified two-step procedure. The new Act prevents employees from taking cases to tribunals if they have not exhausted the internal procedures first.

Wrongful dismissal Under common law, the relationship between an employer and employee is that of two parties who have entered a contract. If either party refuses to recognise the contract or fails to meet the terms of the contract, the other party may claim breach of contract and claim damages in the civil courts. Effectively, this course of action was the only remedy open to employees who were summarily dismissed, having not committed any misdemeanour to warrant such action, but they were often in a weak position and it was rare for them to receive recompense. It was because of


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this unsatisfactory situation, with frequent exploitation of employees, that the first employment protection legislation was introduced in 1971. Common law remedies, although available, are rarely used. Occasionally, when an employee has been dismissed, application is made for an injunction to stop or delay the dismissal. Such an injunction is usually used to enforce a proper period of notice to allow the employee time to invoke the statutory processes. Also, very occasionally, an injunction can be sought to stop an employer from changing a substantive term of the contract unilaterally.

Unfair dismissal Employees' rights on dismissal are, as with the other rights in this chapter, covered by the Employment Rights Act 1996 and the Employment Act 2002. An employee who has been employed full or part time under the meaning of the Acts has the right not to be unfairly dismissed. If a dismissed midwife believes that her dismissal was unfair, then she may apply to an employment tribunal (ET) to seek redress. The application to the ET must normally be made within three months of the date of dismissal, unless there are exceptional circumstances, accepted by the ET, that prevent the employee from meeting the deadline. The ET usually consists of a panel of three members: a legally qualified chair plus two people appointed by the Secretary of State, one representing employers and one representing employees (Labour Research Department (LRD) 2002: 8). The panel will consider whether the principal reason for the dismissal was fair and whether it should have resulted in dismissal or a lesser form of sanction (Employment Rights Act 1996, s98). For the dismissal to be deemed fair it must relate to the employee's: . . . .

capability or qualification(s) for the job; conduct; redundancy; or legal restriction which prevents employment.

All but redundancy could apply to a midwife, as the current picture with regard to numbers of midwives suggests that such cutbacks are not likely in the foreseeable future. The first point would include the issue of competence. If a midwife, despite all efforts through the routes of supervision and management, proves to be incompetent, then she could be dismissed. Where an incident, or more than one, indicates misconduct and the disciplinary process has been followed, then dismissal may be the necessary end result. It is possible, also, that dismissal may be deemed appropriate where other stages of the procedure have not been used, for instance, in cases of gross misconduct of any kind. With regard to legal restrictions, there could be a situation where a visa or work permit is not renewed. Also, if a midwife was removed from the Professional Register, it would be fair to dismiss her as she would no longer be able to practise legally and, therefore, could not fulfil her contract. In any situation related to disciplinary action, midwives should ensure that they seek support and assistance from their union representative. If an ET finds that the employee has been unfairly dismissed it may make one of two orders, on the instruction of the employee: either for reinstatement or re-

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engagement (Employment Act 2002: Ch 2). Reinstatement requires that the employee be treated as if she had not been dismissed, with regard to benefits, rights and privileges. Re-engagement requires re-employment according to terms set down by the ET. In deciding these terms, account is taken of whether the employee contributed to the dismissal in any way. For instance, if a midwife was dismissed for misconduct, as a first offence, and the tribunal felt that dismissal was too harsh a penalty, they may order re-engagement but accept that the midwife had acted in a way to have caused the employer to take some action, albeit the wrong action. In either case, there may be the need for some compensation to cover loss of earnings. If the employer fails to comply with an order, then further recompense would be determined, at either a basic or compensatory rate, as appropriate to the circumstances.

Discrimination in employment There are many forms of discrimination in society and they all have been mirrored in the course of employment, either directly or indirectly. Direct discrimination occurs where an employee is treated less favourably than one or more others, but it is also possible that indirect discrimination can occur. Such discrimination would occur if provisions, criteria or practices were imposed to the detriment of a particular claimant or to the detriment of a larger proportion of women or where the impositions were unjustifiable. The law currently aims to prevent discrimination on the grounds of gender, race, nationality, disability and transsexuality. By December 2003, legislation will further prohibit discrimination on grounds of sexual orientation and religion. Then by 2006 the government must produce legislation related to ageism, dictated by an EU Directive (LRD 2002: 71).

Movement towards gender equality In 1970, the Equal Pay Act was passed requiring that men and women who are employed in like work should receive the same pay and conditions of service. However, this Act did not redress the balance of remuneration as had been hoped, mainly because a woman had to compare her position with men undertaking substantially the same job. This expectation ignored one of the main difficulties faced by women: they were employed in low-paid `women's work', for which there were no comparators. Secretaries, for example, were almost exclusively women and so were unable to question the wage differentials between them and male colleagues of similar status doing different work. In 1974, a challenge to this position was launched by referring to a section of the Treaty of Rome, Article 119, which stated: Each member state shall . . . maintain the application of the principle that men and women should receive equal pay for equal work. Following on from that Treaty, the Sex Discrimination Act 1975 made it generally unlawful for an employer to discriminate on grounds of gender or marriage. There are some limited exceptions, but when this Act was passed it was not felt that


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midwifery should be an exception. Although it took some pilot schemes and there were some original restrictions, it was the passing of this Act that opened the profession to men. This Act also set up the Equal Opportunities Commission (EOC), which had responsibility for monitoring sex discrimination and giving advice and active support to people in discrimination claims. These people were usually, but not exclusively, women. In 1997, following the production of an EU Code of Practice in 1996, the first EOC Code of Practice was published, to be updated as appropriate. Although the Code provides guidance and is not compulsory, the failure of an employer to follow the guidance could well act against him with a tribunal. The Employment Act 2002, s42, amends the Equal Pay Act 1970, in that it provides for a different approach to claims of unequal pay. Where an employee suspects that she is not receiving equal pay, she can present her employer with a questionnaire, developed by the appropriate SoS, to ascertain relevant information. Where employers refuse to comply with the questionnaire procedure, it will be inferred by tribunals that the claimant is right (LRD 2002: 48). There is a tendency to consider gender discrimination as applying only to women, as this was historically the case. However, if a man considers himself to be discriminated against, then his case would be considered in a similar way. In addition, as the twentieth century was about to close, the government considered the need to protect transsexuals from direct discrimination. Secondary legislation was published in the form of the Sex Discrimination (Gender Reassignment) Regulations 1999.

Discrimination on grounds of race The Race Relations Act 1976 makes it generally unlawful for employers to discriminate on grounds of race, skin colour, nationality, citizenship or ethnic origins. This Act was amended in 2000 and a greater responsibility was placed on public authorities, not only to avoid discrimination, but to positively promote race equality. They now have to publish their equality schemes and, if they employ more than 150 members of staff, they have to monitor the numbers and types of grievances, disciplinary actions and dismissals; also appraisals and training must be monitored. An audit of the statistics could indicate where there have been possible cases of direct discrimination. The responsibility for monitoring the effectiveness of the legislation lies with the Commission for Racial Equality (CRE), which has also issued codes of practice for employers. As with gender equality, indirect discrimination with regard to aspects of race, as listed above, can also occur where an employer's impositions are unjustified or prove to be to the detriment of a particular applicant, employee or specific group(s) of people.

Discrimination on grounds of disability Discrimination on grounds of disability, without justification, is outlawed by the Disability Discrimination Act 1995, which is being phased in over a number of years. By October 2004, across the UK, businesses employing less than 15 people, plus police, prison, fire and armed services, will be brought into line (Disability

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Rights Commission 2002: 25), with the removal of the exemption that currently exists for those employers. From an employment point of view, the Act covers all aspects from recruitment to continued employment and the onus is on the employer to justify any direct discrimination. Employers are expected to undertake assessments and make all reasonable adjustments, including obtaining necessary equipment to assist the employee to undertake her work. In a midwifery situation, it might be possible for a qualified midwife to undertake specific duties only in order to accommodate a disability that has arisen through injury or disease. In 2001 the Special Educational Needs and Disability Act (SENDA) was passed, amending the Disability Discrimination Act 1995 to include education. This Act protects students from the beginning of the admissions process. It also places the onus on educational establishments to anticipate that there always will be a number of students with disabilities, for whom supportive action will be necessary. The implementation of the Act was staged. Fair treatment was expected by September 2002, reasonable adjustments were required by September 2003 and building alterations by September 2005. This Act takes account of the fact that people with disabilities have the same need for education as able-bodied people, to provide them with qualifications to enable them to seek employment. An application for pre-registration midwifery education and training may prove successful for individuals with certain disabilities, but not for all. In order to qualify as a midwife, the individual must be able to undertake and prove competence in all aspects of midwifery care. Any disability, therefore, must be such that the applicant is still capable of undertaking all aspects of care at a competent level.

Rights to leave and pay in parenting situations The Employment Act 2002 has amended the Employment Rights Act 1996 with regard to maternity, paternity, adoption and parental leave and pay. For the first time, from April 2003, adoptive parents have been able to claim leave with pay, in the same way as biological parents, with one partner taking the maternity rights and the other the paternity rights. These new rights are in addition to the provision for parental leave, whereby parents have the right to take up to four weeks of unpaid leave per year, up to a maximum of 13 weeks, in the child's first five years of life.

Maternity leave and pay (Employment Act 2002, Ch 2) Amendments to maternity leave have resulted in most women being able to claim 26 weeks of leave with pay, plus a further period of up to 26 weeks of unpaid leave. The type of maternity payment to which a working woman is entitled will depend upon her length and type of employment. Women who have worked continuously for their employers for 26 weeks by the time they are into their 25th week of pregnancy, therefore not already pregnant at the time of commencing that employment, earning at or above the Lower Earnings Limit, will be entitled to Statutory Maternity Pay (SMP). SMP is paid at two different rates: for the first six weeks the woman receives 90% of her average weekly earnings; the remaining


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leave is paid at the standard rate, which is reviewed each year. Certain employers may have schemes that provide greater benefit to pregnant women, but what is described here is the minimum expectation. In all cases, the woman must give 28 days' notice of her intended commencement of paid leave, which has increased from the previous requirement of 21 days. For working women who do not qualify for SMP, such as the newly employed, the self-employed or those who leave their employment between 25 and 29 weeks into their pregnancy, Maternity Allowance (MA) is available. To qualify, they must have been employed or self-employed for 26 of the 66 weeks ending with the expected week of birth. Again there are two rates of MA, determined by their normal level of earnings. For women earning at or above the Lower Earnings Limit, the payment is the same as the standard rate of SMP throughout the 26 week period. For women earning below that limit, but at least £30 per week, the payment is 90% of the average weekly pay, up to a reviewed and stated maximum.

Paternity leave and pay (Employment Act 2002, Ch 1) The Act provides an entitlement for qualifying fathers to receive two weeks of paid leave in order for them to care for the mother and/or child(ren). The leave can be taken as two consecutive weeks or two separate complete weeks, at any time up to 56 days from the birth (live or still). In the case of adoption, the 56 days commence on the day of placement. The entitlement is per pregnancy or placement, not per child; therefore, it is not increased in the case of multiple pregnancy or placement. Employment qualifications are similar to those that relate to the pregnant woman. The rate of pay will be either 90% of average weekly earnings or the reviewed and stated weekly rate, whichever is the lesser.

Public Interest Disclosure Act 1998 Midwives should be well aware of the need for confidentiality within ethical practice, not only related to individual clients but to the employing Trust. However, breaching confidentiality is deemed acceptable if it can be justified as being truly in the interest of the public. For some years there were major anxieties with regard to employees raising concerns, where they felt that patients or clients were at risk, because employers failed to take action regarding health and safety issues. The Public Interest Disclosure Act 1998 was produced in order to protect the individual `whistle-blowers' from being disciplined or victimised for taking appropriate action. The Act does not, of course, give licence for employees to breach confidentiality in an unprofessional manner; it dictates what will be considered a `protected' or `qualifying' disclosure and to whom it can be lawfully made. 43B (1) In this Part a `qualifying disclosure' means any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the following ± (a)

That a criminal offence has been committed, is being committed or is likely to be committed.

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(b)

That a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject. (c) That a miscarriage of justice has occurred, is occurring or is likely to occur. (d) That the health and safety of any individual has been, is being or is likely to be endangered. (e) That the environment has been, is being or is likely to be damaged. (f) That information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed. Section 43 goes on to indicate to whom disclosures can be made in various circumstances. Generally it expects that disclosures will be made to employers at an appropriate level, or designated people. It also takes into account the fact that it could be an employer who is thought to be responsible for the problem leading to disclosure. If a midwife is concerned regarding anything that would be considered to be within the categories of `qualifying disclosure', then she should approach her line manager in the first instance. If she feels that no action has been taken, or if her concerns relate to her line manager, then she should approach the manager at the appropriate level, even if this means reporting to the chief executive. It would be acceptable to gain support from her supervisor of midwives, as appropriate confidentiality should be assured within that professional relationship.

Summary This short chapter has included outlines of a number of aspects of updated employment law about which midwives should have some knowledge. Most midwives are employed; therefore, from a personal point of view it is important for them to know their basic employment rights as how else will they know if those rights are being breached? It could also be important to know what the new statutory procedures are with regard to discipline and grievance, including unfair dismissal. Everyone should know about the different aspects of discrimination, not only with regard to discrimination against ourselves but in order to avoid or recognise discrimination against others. It is also important to know that, should a situation arise where `whistle-blowing' seems the appropriate way forward, the law will protect employees if they act in good faith, in an appropriate manner. The information about maternity, paternity, adoption and parenting leave, plus payment in the first three, could be important to midwives on a personal basis. In addition, it is certainly of importance for midwives in the community and antenatal clinic or ward settings, where women may ask for information or clarification. While there are other agencies that can give detailed information, it is right that women should expect midwives to have a general knowledge of rights and benefits. While the general rights only change through primary or secondary legislation, the actual sum of benefits payable may change on annual review. Therefore, community and clinic midwives, in particular, should try to keep abreast of changes.


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Reader activity . Check your contract of employment and your job description; are you fulfilling what they expect of you? Is your employing Trust fulfilling what is expected of it? Do you need to negotiate for them to be amended or updated? . Find out the name and contact details of your union steward. . Check the discipline and grievance procedures in the Trust; have they been updated to meet the requirements of the single Statutory Dispute Resolution Procedure? . Obtain copies of leaflets from the Benefits Office and Maternity Alliance to determine what information is available to prospective parents. . Consider the categories of `qualifying disclosure' listed above. Have there been any situations where you would have been justified in `whistle-blowing'?

References Disability Rights Commission (2002) Annual Review 2001±2002. DRC, London Labour Research Department (2002) Law at Work. GMB, London O'Sullivan S (2003) Agenda for change: RCM briefing. RCM Midwives Journal; 6(1): 18±20

Statutes Disability Discrimination Act 1995 Employment Act 2002 Employment Rights Act 1996 Equal Pay Act 1970 NHS and Community Care Act 1990 Public Interest Disclosure Act 1998 Race Relations Act 1976 Race Relations (Amendment) Act 2000 Sex Discrimination Act 1975 Sex Discrimination (Gender Reassignment) Regulations 1999. Special Educational Needs and Disability Act 2001 Treaty of Rome 1974

Chapter 10

Application to Midwifery Practice

The intention of this chapter is to discuss three cases, considering the possible actions and outcomes through the accountability routes of the profession, the law and employment. Each case is real, selected from a vast quantity of cases brought to my attention by midwives, students or supervisors. Details have been altered sufficiently to limit recognition but not to detract from or embellish the original case. The cases will be dealt with as if they occurred in 2002, referring to the practice and regulations at that time (Whitehouse), with discussion about what could happen, as opposed to what did. When dealing with professional conduct and employment, there will not be a step-by-step description of the stages of investigation but rather emphasis will be placed on the issues and possible outcomes. Although it is possible for one person to carry out the supervisory and managerial investigations, as long as the midwife is aware that the findings will be used in both cases (NMC 2002a: 4:2.3.2), this is not the ideal situation. In the discussions that follow, I will assume separate investigations in order to maintain separation of the roles. When dealing with legal aspects, there will be discussion of general principles, with the briefest of reference to major cases already discussed in previous chapters; any cases not previously included will be fully referenced.

Kay Kay was a primigravid woman, at term, who was a refugee from the Eastern bloc. Her understanding of English was reasonable. She arrived in the labour ward at 18.15 h complaining of irregular, lower abdominal tightenings and spontaneous rupture of the fetal membranes. Clear liquor was draining. On Kay's admission, Midwife X asked if she could perform a vaginal examination (VE) to assess whether Kay was in established labour and, if so, to determine the progress made. Kay refused, despite an explanation that she appeared to understand, and the midwife accepted her refusal, documenting the discussion and Kay's decision in the case notes. During the evening, Kay's tightenings appeared to progress to proper contractions and they became more regular. By the shift handover at 21.15 h, Kay was experiencing two contractions in ten minutes. The fetal heart had been reactive, with good variability, and there had been no deviations from the normal. There had been no antenatal complications, the fetal head was two fifths palpable and Kay was considered to be of low risk and suitable for midwife-led care. Midwife A took over her care. Contd.


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Kay Contd. At 22.20 h, the fetal heart on the cardiotocograph (CTG) was still within normal parameters for the baseline and variability, with accelerations evident. Midwife A noticed that Kay seemed a little more unsettled with her contractions and discussed the issue of a VE with her. Kay again refused and the midwife went on to insist that she should undertake the procedure. She proceeded to open the VE pack and put on her gloves. Kay reacted by shouting `NO'; she proceeded to wrap a blanket around her lower half and lock her legs together. Midwife A stated that Kay should allow her to do a VE; if she did not then assistance would be requested from another midwife who `would not stand for her silliness'. Midwives B and C both entered the labour room and, after verbal exchanges, they proceeded to take the blanket from Kay and restrain her legs and upper body whilst a VE was performed by Midwife A. The second-year student midwife, present throughout, was told to assist with holding Kay's legs but, horrified at what she was observing, she refused and stood away from the bed. The VE was unsuccessful as Kay was moving so much. It was recorded that a VE was performed with consent but it had not been possible to determine cervical dilatation. After the VE Kay cried intermittently throughout the night and she `curled up in a ball' whenever anyone went near her. She appeared very distressed and she had red marks on her legs where the midwives' hands had restrained them from moving. Kay went on to deliver at 07.15 h the following morning. She had a normal vaginal birth of a female infant with Apgar scores of 9 and 9.

In order to consider the possible outcomes, it is useful to consider the most likely route(s) of any complaint. In this case the woman herself might complain: to a supervisor of midwives if she knows of their existence, to a manager in the Trust or she might seek legal action from the outset. However, she is a refugee; therefore, it is unlikely that she would know the procedure for complaint, unless she asked someone in the hospital or an official who oversees the refugees in her community. It would be fairly safe to say that she would not complain or seek legal action, especially if she has a history of being physically abused before or since fleeing her country. It is possible that either or both of the midwives called in to help the attending midwife might speak to their own supervisor, if they felt coerced into the action, but it is unlikely. The most likely route of a complaint is through the student, who observed the whole event but refused to take an active part. She could report the incident to a supervisor, a manager or, as often happens, to a lecturer at the university. Commonly, the person of choice is the personal tutor or the lecturer who teaches the ethico-legal aspects of her midwifery course. Whichever avenue the student chose to take, it is probable that a manager or educationalist would notify a supervisor of midwives, for an investigation to take place regarding professional conduct.

Professional conduct This case is complex in that there are four midwives and a student involved and it is important to consider their individual involvement. There should be a supervisor allocated to the investigation and each midwife should be supported by her

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own or another supervisor. In the case of the student, she can gain support from her personal tutor but she should also have support from a supervisor; she may already be allocated to one for all or part of her course. A supervisory investigation will centre on the individual's conduct with regard to practice issues, not with regard to disciplinary action for breach of contract. Assuming that the case, as outlined, was corroborated by the investigation, the main issues relate to consent, abuse of a labouring woman and record keeping. These issues will be considered within the relevant sections of the Code of Professional Conduct (NMC 2002b) and the Midwives Rules and Code of Practice (UKCC 1998a), as the midwives are accountable individually to the NMC in accordance with these documents. The student, however, is not accountable until she becomes registered. As Midwife X appears to have acted appropriately she will not be considered further, other than to indicate what she did correctly. The Code clearly informs midwives that: 1.2 As a registered . . . midwife, you must: . protect and support the health of individual patients and clients . . . . act in such a way that justifies the trust and confidence the public have in you . uphold and enhance the good reputation of the profession. Midwives A, B and C appear guilty of failing to protect the woman's physical and emotional health and they have provided good reason for Kay not to trust and have confidence in midwives in the future. In failing in the first two points, they have also acted in a way that could tarnish the reputation of the profession. 2 As a registered . . . midwife, you must respect the patient or client as an individual. None of the three midwives respected Kay's preferences in her care, nor did they protect her dignity or focus on her needs; their actions must be considered to be abusive to Kay. No-one had the right to remove the blanket, force open her legs, as they must have done, restrain her legs and upper body, then proceed to perform an intimate examination. She was left with evidence of physical and emotional trauma. These actions would be totally unacceptable for any woman but what of the woman who has suffered physical and/or sexual abuse in the past, as a child or in a violent relationship with a partner or as a refugee (Bentham 2003: 75)? According to the document Practitioner±Client Relationships and the Prevention of Abuse (NMC 2002c: 6), each midwife could be charged, professionally, with physical and psychological abuse. Midwife A could possibly be charged with verbal abuse for making `demeaning' and ìntimidating' comments, as she spoke of `silliness' and threatened Kay with her reference to another midwife. It is also probable that Midwife A could be charged with sexual abuse. Although it is accepted that VEs are performed on women by midwives, it has to be with the woman's consent and, although the procedure was presumably not carried out for any sexual gratification of the midwife, it would be seen as abuse of a sexual nature from Kay's perspective. 3 As a registered . . . midwife, you must obtain consent before you give any treatment or care.


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As indicated in Chapter 6, every competent person has the right to give or withhold consent for any form of care, investigation or treatment. There was no suggestion that Kay was incompetent to make decisions or that her understanding of English provided a barrier to making decisions. In fact, Midwife X, in the earliest encounter, had accepted that Kay was competent to refuse the examination as explained to her and she had documented her decision. As stated previously, she acted appropriately. Midwife A, on the other hand, appears to have gone through the process of explanation, received a refusal but decided to continue. If she felt that Kay was incompetent to make decisions, then she should have sought medical assistance, as appropriate professional assessment of competence would have been necessary, in case instrumental or surgical intervention was required later. If she felt that Kay did not fully understand then she should have sought assistance with interpretation. If no interpretation facility was available for Kay's first language, then speaking slowly in common terms, plus the use of non-verbal communication, should continue. Even with written or verbal consent, if the woman makes it obvious verbally or from her body language that she has changed her mind then it must be viewed as a refusal. Intervention should only be considered in the best interests of the woman and, even then, only reasonable force may be used. The midwife presumably wanted to assess cervical dilatation prior to offering analgesia. In many situations this might be seen as good practice, with the woman's consent, as it would provide her with more information on which to base her decisions. However, it is not essential to do a VE as, regardless of the dilatation, we do not have the right to withhold analgesia. If the request is too soon after a previous administration of pethidine (or other drug), then Entonox and non-invasive techniques could be used to supplement what had already been given, until the next administration was due. Therefore, the VE was not in Kay's best interests. Midwives B and C were called in to assist Midwife A to undertake the procedure. From the manner in which Midwife A referred to one of them, more or less as someone who would not stand any nonsense, there is the suggestion that she was in a senior position. If that was the case, she should have recognised the situation for what it was and stopped the procedure from taking place. If the other midwife was in a junior position, it is possible that she felt intimidated by one or both of the midwives and felt compelled to assist them. However, each of the three midwives was accountable for her actions or omissions with regard to the issue of consent and refusal. In the case of Midwife A, it was an action, undertaking the VE against express refusal, both verbally and non-verbally. In the case of B and C it was their inaction in that they did nothing to prevent the VE taking place (their physical actions will be considered later). The same could be said of the student midwife, but it would be unrealistic to think that, short of creating a scene and throwing herself between Kay and the midwives, she could effectively have prevented it. Also, students are in a vulnerable position. Although their limited knowledge is not a factor in a case like this, they are obviously concerned that, if they disagree openly with a midwife's action, it will be held against them in the assessment of their practice. As indicated, the midwives each played their part in breaching this code with

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regard to their failure to uphold Kay's autonomy, by not accepting her refusal of the VE. Their actions were not in her best interests. 4 As a registered . . . midwife, you must co-operate with others in the team. This section of the code includes the need to keep accurate records. Such records are for communication and continuity of care but they also serve to create a picture of events and provide evidence of actions and omissions. In the eyes of the NMC their quality reflects the standard of the practitioner's practice (UKCC 1998b). In this particular case, no-one recorded the actual events in the case notes, only the student recorded them in a personal notebook; she then formulated her notes into a statement as soon as she went off duty. Midwives B and C could be said to have omitted to make any record of extreme events in which they had taken part. They might have felt that they had been working as a specific team during these events, with Midwife A responsible for the overall care and records. However, this section of the code makes it clear that each member of the team maintains accountability for their own conduct (4.5). Midwife A was guilty of an action; she falsified her records by stating that a VE was conducted `with consent', apparently a blatant lie. 6 As a registered . . . midwife, you must maintain your professional knowledge and competence. Either these midwives acted in full knowledge that their actions were unlawful or they failed to maintain their knowledge of the law with regard to their practice, which is expected in clause 6.2. In addition, their actions were not suitable in their facilitation of the development of the student (6.4); on the contrary, they each demonstrated, through their relevant actions and inactions, how not to behave as a midwife. While negative learning is valid, it is not acceptable for women to suffer in order for students to gain experience. 7 As a registered . . . midwife, you must be trustworthy. Each midwife played her part in betraying Kay's trust; thus they could be seen to have brought the profession into disrepute, even if only to one woman. Sadly, Kay's experience might be relayed to other women in her community, thus creating fear and negative expectations for them. 8 As a registered . . . midwife, you must act to identify and minimise the risk to patients and clients. When Midwives B and C entered the room, they should have been aware that Midwife A's conduct was inappropriate and should have acted to prevent it from continuing. If they felt unable to stop Midwife A then they should have refused to participate, although it is probable that she could not have continued unaided. They should have sought help from a more senior person, even a non-midwifery manager on call for the hospital, and a supervisor of midwives, as there are managerial as well as supervisory issues involved.

Rule 40: Responsibility and Sphere of Practice In breaching the Code of Professional Conduct (NMC 2002b) in the manner indicated above, the midwives would also be seen to be in breach of the Midwives Rules


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and Code of practice (UKCC 1998a). Rule 40 relates to responsibility and sphere of practice and the relevant clauses of the Code expect that a midwife will focus on the needs of the mother and baby. It expects that autonomy will be upheld and that, where a woman rejects the advice of the midwife, a supervisor of midwives should be informed, documentation should be undertaken and care continued to the best of the midwife's ability. However, refusal of a VE, when the woman and fetus appear well and all other observations and examinations suggest that labour is progressing, does not need to be notified to a supervisor. What would be expected is that the woman's refusal would be accepted and recorded, as by Midwife X, and optimum care would continue. Only when difficulties arise, such as a deteriorating condition in either mother or fetus, when medical assistance would be summoned anyway, does the supervisor need to be informed. Having investigated the matter and found the midwives to be in breach of the Code of Professional Conduct (NMC 2002b) and the Midwives Rules and Code of Practice (UKCC 1998a), the supervisor must decide what action to take. Midwife A appears to be guilty of more offences than B and C, but they were all apparently guilty of misconduct. It might be that none of the midwives have been known to be guilty of misconduct in the past. Also, there could be personal circumstances that have made one of them behave uncharacteristically, but it is unlikely that all three would be able to plead such mitigating circumstances. It is also difficult to imagine that personal circumstances would affect an otherwise sound midwife to the extent that she could behave so badly. Professionally, this is a serious offence and the investigating supervisor would need to liaise with the LSA midwifery officer. Abuse of women is an offence for which midwives can be removed from the Professional Register; therefore, it is possible that the LSA officer would report the case to the NMC. If she feels that any one of the midwives is a danger to the public, then she will suspend her from practice and possibly request the NMC to consider an interim suspension from the Register. Suspension from practice would apply to all midwifery areas, NHS or private, within the boundaries of that LSA. Suspension from the Register is for up to one year with three monthly reviews and applies to anywhere where NMC registration is required. If the Investigating Committee (IC) found that there was a case for consideration of removal from the Register but the midwives admitted their misconduct and showed remorse, then a likely outcome would be a caution of 1±5 years (Nursing and Midwifery Order 2001: 29(4/5)). If one or more of them refused to accept that she acted wrongly, then their case would probably be forwarded to the Conduct and Competence Committee (CCC), with a view to removal from the Register, where the burden of proof has been `beyond reasonable doubt', as in a criminal court. In 2003, the NMC decided in principle that a change to the civil standard should be made, so that the burden of proof became òn the balance of probabilities' (NMC 2003). In 2001±2, 32% of all proven charges against nurses, midwives and health visitors were for the various forms of abuse of or theft from patients or clients (UKCC 2002: 12). Fortunately, very few cases relate to midwives, but even one is too many. If the LSA officer advised that local action would be more appropriate, then an individual programme of education and training, built around set learning outcomes over a stated period of time, would be organised for each midwife by her supervisor and agreed by the LSA officer. In this particular case, the programme

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should include aspects of ethics and law, interpersonal skills, record keeping, plus physiology and management of labour with emphasis on assessing progress in the absence of VEs. It might also be useful to organise some form of study related to women who have suffered abuse of any kind.

Aspects of law If Kay were to contemplate taking civil legal action against the Trust, to be compensated for the way she was treated by the midwives, then negligence and trespass to the person (tort of battery) are the areas to be considered. With regard to negligence, discussed in Chapter 5, Kay would have to prove on the balance of probabilities that the Trust, by way of any or all of the midwives, failed in its duty of care. She would have to prove that this failure resulted in harm or injury, if damages are to be paid. Also, as indicated in Chapter 6, in health care practice it is generally not lawful to purposefully touch a patient or client without their express consent: written, verbal or implied. The burden of proof would be on Kay to show that trespass had occurred, but not that harm had been caused. In this case the touching includes the VE and the manual restraint, as Kay was not in a position where restraint was required to protect her from harm. There would be no difficulty in proving the existence of a duty of care for any of the midwives. Midwife A was the allocated midwife, along with the student, and Midwives B and C accepted a duty of care when they attended in response to Midwife A's request for help. The first point to be proved, in accordance with the Bolam Test, is whether the duty of care was breached; that is, did the midwives comply with the standard of the day (Whitehouse)? It is highly unlikely that any midwife would admit to such practice as being the acceptable standard. However, should an expert witness be so bold, it is likely that the judge would determine `that such a body of opinion was unreasonable, irresponsible, illogical and indefensible', as did Mr Justice Gross, in Lucy Reynolds v. North Tyneside Health Authority (2002), in line with Bolitho. The student did not act unlawfully but, should there be a move to suggest that she was guilty of an omission, in not trying to prevent the action or seeking other assistance, then Wilsher would apply, with regard to her training status. It is probable that Kay would succeed in proving that the Trust, through vicarious liability, had been negligent. Kay would then need to prove that the negligence caused the harm. In this case the harm complained of could be excessive pain on VE plus psychological trauma. Many women find VE uncomfortable and even painful, particularly during labour. However, the degree of pain that could be caused by performing the VE in these circumstances could well equate to the pain experienced by an adult female victim of sexual abuse. The psychological trauma caused could also be similar to that of such victims. If Kay could provide sufficient evidence of such trauma, some of which could include the student's description of Kay's behaviour and demeanour following the incident, then it is possible that causation would be proved and damages awarded against the Trust. Midwife X had initially sought informed consent to conduct a VE; she accepted Kay's refusal and documented the situation in the case notes. Midwife A, however, told Kay what she wanted to do and, despite express verbal refusal and very


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obvious non-verbal refusal, she decided to continue with the procedure. When she was unable to continue unaided, she sought assistance to restrain Kay and then carried out a futile procedure, as no information was determined on VE, because Kay was moving to try to prevent the examination. There surely can be no clearer message of Kay's refusal. Midwives B and C may state that they were just carrying out the wishes or orders of Midwife A but in law, as within the profession, no-one can pass on accountability to someone else. The moment the midwives started to restrain Kay they were, in effect, indicating their agreement with the action. If they did not agree, then their course of action should have been to refuse to take part and to try to prevent the trespass. Midwife A would probably plead that she needed to undertake a VE, in order to assess labour and plan the remaining care, for the benefit of the mother and fetus. However, there were no signs of deviation in the maternal or fetal condition so there were no grounds for acting out of necessity and performing a trespass was certainly not in Kay's best interests. Even if it was thought to be in the best interests of the fetus, a VE should not have been carried out without Kay's consent. As indicated in Chapter 5, the Court of Appeal has ruled that a woman cannot be forced to undergo procedures for her own sake or that of the fetus. It is, therefore, probable that a judge would rule in favour of Kay. With regard to the Human Rights Act 1998, this case could be considered under Article 3, Prohibition of Torture, as her treatment could be considered to be ìnhuman' and `degrading'. If such action were to be taken outside a maternity setting, it might well be deemed to be actual `torture'. It surely cannot be validated just because it took place in a delivery suite, by employed midwives. Again, it is probable that a judge would rule in favour of Kay. In addition to civil proceedings, it seems possible that criminal proceedings could also be brought against the midwives. Actual assault and battery was committed by Midwives B and C, in their forceful restraint of Kay. In the case of Midwife A, for the reasons indicated earlier, there could be a charge of sexual assault. In criminal cases the burden of proof is `beyond reasonable doubt' and, if Kay was able to prove her case against any or all of the midwives, they would then be reported, automatically, to the NMC. In such a situation, the NMC would accept that the facts had been proved and the case would bypass the IC and go directly to the CCC.

Employment If Kay is going to complain, then it is likely that she will do so to a manager in the Trust, rather than a supervisor of midwives. However, if the supervisor is the first person to hear of the incident, then it would be reasonable to notify the appropriate manager if her initial investigation indicates that there is a prima facie case of misconduct. Such knowledge will prepare the manager for the possible receipt of a complaint or a writ of intended legal action. Ideally, a managerial investigation should be carried out separately from a supervisory investigation. It would not be proper for the supervisor to impart her complete investigation to a manager, as midwives may have spoken in confidence to the supervisor about issues that they would not wish disclosed to a manager. A managerial investigation will focus on the individual's conduct with regard to

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their contract; whether it was in keeping with the reasonable expectations of the Trust and, for a midwife, would usually include compliance with NMC rules and codes. It is possible that the manager will want to suspend the midwives from duty, with pay, during the course of the investigation. This decision would be made if it was thought that other women might be at risk of treatment that is without consent or is abusive. Some managers might decide that suspension is safer in any case, as the midwives might be too stressed to function properly during the investigation. Suspension from duty would only apply to areas of that particular Trust. Midwives who undertake bank or agency work in other Trusts could continue to do so. If the investigation determined that any of the midwives were guilty of misconduct, then the manager would determine the level of disciplinary action required. The decision would be based on the seriousness of the case and the employee's disciplinary history. It is probable that all three midwives would be found guilty of misconduct. If we assume that none of them have active warnings on record, it is possible that the conduct of B and C would be deemed serious enough for at least a first written warning, if not a final written warning. Midwife A was guilty of more offences and it is possible that she would receive a final written warning or even be dismissed. In each case, if the midwives were retained on roll, then the manager may be content with the programme of updating determined by the supervisor or she may insist on something in addition, such as sessions on `customer care', which could assist with the updating on interpersonal skills.

Susan Susan, who was gravida 2 para 3, had booked for a home birth, having had a successful home birth with her second child. Labour started at term and she contacted the midwife at 08.00 h on the day in question, having had regular contractions every five minutes since 06.30 h. The named midwife was off duty but her team colleague, Elaine, was on call. Elaine, a midwife with a lot of experience of home birth, attended at 08.30 h and determined that labour was well established: the cervix was thin, well applied to the head, which was at the ischial spines, 4 cm dilated; the membranes were bulging. The uterine contractions had increased to three in 10 minutes, lasting for at least one minute, and Susan requested pain relief. Elaine administered 100 mg of pethidine intramuscularly and stated that she needed to leave for a while as she had `something to do'. Susan was concerned and highlighted the fact that her previous labours had been fairly short. Elaine then gave Susan's husband a mucus extractor, `just in case', and explained how to use it. Elaine left and returned over an hour later, just in time to relieve the anxious husband of assisting with the birth, still wearing her coat, as the head was about to crown. The next day, on her return, the named midwife, who had been the attending midwife for the second child, asked Susan how she felt about her labour. The couple told her what had happened and she looked at the labour notes. The details of the labour, provided above, were recorded. There was one recording of the mother's vital signs and there was one recording of the fetal heart rate, just prior to an entry about administration of pethidine at 08.40 h. The next entry was timed at 09.55 h and stated `rapid progression to a spontaneous vaginal delivery of a live girl', then the rest of the details of the delivery and the baby. No formal complaint was received.


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As stated, no complaint was made by the couple, but the case will be discussed as if all three routes of accountability were accessed and the investigations supported the facts as given.

Professional conduct Regardless of whether the couple wished to complain, the named midwife should have reported the incident to a supervisor of midwives. The main issues in this case appear to be the compromised safety of the mother and baby and record keeping. As in the previous case, the Code of Professional Conduct (NMC 2002b) and the Midwives Rules and Code of Practice (UKCC 1998a) will be used as a basis for discussing the case. 1.2 As a registered . . . midwife, you must: . protect and support the health of individual patients and clients . . . . act in such a way that justifies the trust and confidence the public have in you . uphold and enhance the good reputation of the profession. Although there was a satisfactory outcome, in that neither the mother nor the baby sustained any physical damage, they had not been adequately protected, in that they were both at risk of being unattended for the birth. Both parents were abandoned and anxious at a time when they could have felt secure with a midwife's presence. It is possible that the effect of the incident would be to reduce the couple's trust and confidence in midwives, which could create a problem if Susan had any future pregnancies. If they related the events to family members, friends or neighbours, then their trust and confidence could be shaken also. Any such situation could damage the reputation of the profession. 4 As a registered . . . midwife, you must co-operate with others in the team Elaine did not involve any other midwife who could have covered for her while she was away. Therefore, it could be said that there was no other team mate with whom to co-operate. However, this section includes record keeping as a form of communication. In this case, the need to review what had occurred would be necessary if a complaint was made or a lawsuit filed. The lack of records indicates a lack of care and would be very damning of the midwife. 8 As a registered . . . midwife, you must act to identify and minimise the risk to patients and clients. Rather than minimising risks, Elaine created them. Susan had a history of having two short labours previously and she was in established labour, having progressed to a thin cervix of 4 cm dilatation, after just over two hours of contractions, with fetal descent evident. It should have been presumed that the labour would not be long and, in any case, that she would need midwifery support from that point on. The midwife certainly should not have administered narcotic analgesia and then left her client; she should have been present to observe Susan and the fetus after such administration. There was a real risk that the baby could be `born before arrival' (BBA) or, in this case, `return' of the midwife. Although the husband had been present for the

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previous two births, he could not be expected to know what to do to help his wife and baby in such circumstances. If it were considered suitable for women to be left alone to give birth, then there would be no need for midwives. If it were deemed suitable for husbands to àttend' their wives in childbirth, then it would not be a criminal offence for them to choose to do so, as discussed previously. Elaine put both the mother and baby at potential risk of unaided birth; this cannot be in the best interests of either of them.

Rule 40: Responsibility and Sphere of Practice (UKCC 1998a) Clause 1 of this rule states the responsibility of a midwife to provide care in any or all stages of the child-bearing experience. In this case the care was required in labour but was virtually absent during the first and early second stages. Although the labour was short, the lack of care was avoidable, as Susan had summoned midwifery assistance and had indicated her previous history. The physical assessment indicated a strong possibility of another short labour. It was not that the midwife was called too late or that the labour was so rapid that it occurred before even the prompt arrival of a midwife. Elaine's focus should have been on the needs of Susan and the fetus (clause 9). If she had urgent business to attend to, finding that Susan was not in a condition to be left unattended, she should have requested relief by another midwife; but she should have remained with Susan until the other midwife arrived. She certainly should not have left her with her husband potentially acting as her substitute, as indicated in clause 38.

Rule 41 Administration of Medicines and Other Forms of Pain Relief This rule does not state explicitly that women should not be left unattended after administration of a narcotic drug in labour. However, it does indicate in clause 1 that midwives must be trained in the use of the particular drug. It would be usual for a midwife to be taught that narcotics would normally be used once labour was established; then, once the drug had been administered, the woman should not be left without access to immediate midwifery assistance. A woman under the influence of a narcotic drug is at risk of falling and sustaining major injuries if she should try to walk to the bathroom, for instance. In hospital, if the midwife has left the room, there is a system for calling assistance. In the community, a midwife would have a mobile phone or radio communication, but it might not be immediate enough for potential problems in this situation. Clause 24 of the Code indicates that midwives should comply with local policies relating to administration of controlled drugs. The policy would probably state that the midwife should remain in attendance after such drug administration in the community setting. In addition to the possible problems related to the woman, consideration should be given to the baby, should she be born within a short period after administration of a narcotic drug. A midwife needs to be prepared for possible respiratory depression in the baby, whereby she may not breathe spontaneously after birth. Administration of an antidote and possibly oxygen might be needed, therefore the midwife needs to be there.


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Rule 42: Records As the labour was short, it would not be expected that copious notes would be written. However, there should have been records of observations of the maternal and fetal physical conditions and the maternal psychological condition, such as how she was coping, in addition to aspects of care, or potential care, discussed. These aspects of care should at least have included episiotomy and management of the third stage of labour. As stated in the previous case, the guidance document on record keeping, published originally by the UKCC (1998b: 7), indicates that the NMC considers `The quality of [a midwife's] record keeping is a reflection of the standard of [her] practice'. In the case of Elaine, there was little recorded in the notes because there was little observation and care undertaken, as she was not there. However, she did not indicate that she had left Susan unattended professionally. If questioned about her records, she would either have to admit to having left, therefore admitting her failure to give appropriate care, or she would have to give the impression that she was there, in which case she would have to answer for her lack of documented care. During the investigation, the supervisor of midwives would interview Elaine and require a written statement, in addition to the couple and the midwife who attended the next day. Elaine might admit that the facts as stated were correct or she might deny the length of absence; she would be unlikely to deny any absence. If she denied the length of absence then her records, along with the report of her assisting with the birth in her coat, would not support her statement. If she admitted the facts as given, then she would be expected to give an explanation. There could be no acceptable professional reason for her absence but there might be personal circumstances that would be put forward as mitigation. Another possibility is that Elaine did not see any problem with her actions; perhaps she had not considered that Susan's labour showed signs of rapid progress and perhaps she did not take account of Susan's report on her previous labours. Whatever Elaine's response, if the facts were proven then there would be a case to answer and action would be taken, regardless of the fact that no apparent harm or injury had been sustained by mother or baby. If Elaine's practice had never given cause for concern, she realised that she had acted inappropriately and perhaps her personal circumstances had affected her judgement on that day, then it is probable that local action would be taken. Any necessary action to assist Elaine with her personal circumstances should be taken first, perhaps a period of sick leave or unpaid leave, depending on the problem. Once this is dealt with, probably a period of supervised practice would be arranged, mainly in the hospital setting, to ensure adequate supervision. Whatever the reasons for Elaine's lapse in conduct, it was serious and not appropriate for supported practice. To protect Elaine's reputation with her colleagues, it could be said to be a period of updating arranged between Elaine and her supervisor, with only the named assessors being aware of the close supervision. Probably in conjunction with a midwifery educationalist, preferably one who is also a supervisor, appropriate learning outcomes should be set at the beginning of the stated length of time. Emphasis would be put on care in labour, administration of drugs and record keeping, both from practical and theoretical perspectives. As she would be

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supernumerary, time could be allocated for accessing appropriate libraries and reading. Elaine's attendance at appropriate study sessions could be arranged: perhaps in-house events or sessions with others at the partner university or other appropriate study days. The suggested programme would have to be approved by the LSA officer in advance. If Elaine did not accept that her practice was inappropriate on that day, then the situation may call for stronger action. Perhaps, in her normal practice, she would leave a woman during the first stage of labour, if she was not properly established in labour, especially if she was a primigravid woman. In which case she should state when she would return and give contact details in case she was required beforehand. If her actions on that day were in line with her normal practice, then she failed to recognise the signs of progress and history of short labours in Susan's case. It would, therefore, be appropriate to follow a programme of supervised practice as already outlined. However, when the parents were anxious about her leaving, she did not state that she thought the birth would not be for some hours; on the contrary, she gave them a mucus extractor and told the father how to use it, thus giving the impression that the birth could occur in her absence. Such action suggests that she knew what she was doing. It appears that Elaine knew what she was doing and it is possible that this situation could have occurred before; records might even show that she had attended a number of BBAs. Also, it is likely to happen again if she could not accept the potential problems. If this is the case then she must be considered unsafe to practise, particularly in a community setting. In this case, the LSA officer would probably suspend her from practice within the boundaries of that LSA and notify the IC. If Elaine was known to undertake bank or agency work in another LSA, then the officer would recommend interim suspension from the Register. If Elaine's failure to accept that her actions were wrong continued, then the IC would probably refer her to the CCC and the end result could be removal from the Register. If a midwife fails to accept her wrongdoing, then she is not likely to change her practice so mothers and babies in her care will be at risk. If, by the time the IC reviewed the case, Elaine could see the errors that she had made and be remorseful, then the IC may issue a caution, rather than forwarding the case to the CCC.

Civil law In this case it appears that no harm or injury was sustained by the mother or baby so it could be assumed that no action would be brought. However, it is possible that both of the parents suffered psychological damage from being left with a rapidly progressing labour and no midwife, where there was the distinct possibility that birth would occur with no professional assistance. In fact, that is almost what did happen, as the head was about to crown as Elaine returned, resulting in her assisting with the birth while still wearing her coat. One can only imagine the anxiety caused, particularly to the husband at this stage, as he would be faced with the responsibility of helping his baby into the world and ensuring that she was breathing. Susan would probably have been focused on the need to push her baby out, but she could have been desperately


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trying to hold her back in the hope that the midwife would arrive in time. Such situations do occur, when a midwife cannot arrive in time, but it is usually that labour has progressed so quickly that it was impossible for a midwife to get there. In those circumstances anxiety levels must be high but it is no-one's fault. In Susan's situation, it was avoidable. We will assume, for the sake of discussion, that the parents are claiming for psychological damage, perhaps in the form of continued nightmares of their baby being stillborn for want of appropriate resuscitation. They will need to make application to the court within three years of the event (Limitations Act 1980), as there is unlikely to be a delay in associating the problem with the labour and birth. The parents will need to prove that the Trust, in the person of Elaine, was negligent in its care of Susan and that the negligence caused them to suffer the stated damage. The burden of proof is on the balance of probabilities. There would be no difficulty in proving Elaine's duty of care to Susan. She attended the labour initially, proved by her signature in the records, she said she would be back and she did not hand over the care to another midwife or doctor. Although the husband was not a patient or client, it is obvious that the professional relationship during this episode of care involves him directly; therefore, it could be considered that the duty of care extended to him in this case. It was foreseeable that her actions or omissions could adversely affect him from a psychological perspective (Donoghue). The next stage would be to consider whether Elaine breached that duty of care, which would be judged by considering what the normal standard of midwifery care would be in similar circumstances (Bolam). An expert witness would probably consider it highly unlikely that any Trust's guidelines would suggest that a midwife who is in attendance on a woman who is well established in labour, in the community, should give pethidine and then leave her unattended. If the woman is well established in labour then her condition and that of the fetus should be monitored frequently, therefore the midwife needs to be with her. In one of the midwifery textbooks of the time, with regard to home birth, it states that the midwife should ensure a safe environment to facilitate the physiological processes. It suggests that it be done by `. . . listening, watching, thinking, picking up cues and responding' (Leap & Heptinstall 1997: 441), which cannot be achieved if the midwife has absented herself. If the woman is in need of pethidine, then she is in need of midwifery support, regardless of the dangers of leaving her professionally unattended. An average midwife would be expected to know such principles of care. She would also be expected to recognise that rapid progress was taking place and, in conjunction with a history of short labours, that another short labour was probable. Not only would a midwife need to remain present to ensure that the birth itself was conducted safely, but the fact that birth could occur within a short time of pethidine being given should indicate that the baby's respiratory system could be depressed (Telfer 1997: 421). In such a situation an antagonist to pethidine, naloxone hydrochloride, and possibly oxygen might be required. These outcomes are foreseeable to an average midwife. The expert witness would also criticise the lack of care and record keeping during the short labour; Elaine's minimal records provide evidence of inadequate care and record keeping. The Trust's lawyers would be entitled to call their own expert witness (Maynard), if permitted by the judge managing the case (Civil Procedures Act 1997).

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However, it is highly unlikely that a midwifery expert witness would support Elaine's actions in leaving a labouring woman at home, in the circumstances described, or in giving the mucus extractor to the husband with instructions. Even if the reason for leaving had been a labour call from another woman, Elaine's duty was to Susan first and she should have notified another midwife of the other case. If the expert witness did support Elaine's actions, the judge could consider whether such action was reasonable and responsible (Bolitho). In addition to their own witnesses, the barristers for both sides would refer to cases, if available, where judicial judgments had been made that support their respective cases. It is probable, however, that the Trust would be found guilty of negligence through Elaine's actions and omissions. Having proved negligence, Susan and her husband now have to prove causation; that is, but for the actions or inactions of Elaine, they would not have suffered the psychological harm. They would need to provide medical evidence that they have suffered the harm. Without such evidence the case would probably not have been taken up, as the sole purpose, in the eyes of the law, is to seek compensation; without harm or injury there can be no compensation, therefore there can be no case. If the evidence proves that the harm exists, then it must be proved that the negligence caused the harm. Is it likely that they would have suffered psychological harm if the midwife had been present, from her initial point of arrival, until the baby was born? If she had been there throughout, then there would have been no reason for the parents to be any more anxious than any parents might be during labour. It is not usual for parents to report ongoing psychological problems of this nature following normal labour and birth so the harm is probably directly related to the events. If the judge accepts this view, rather than the position that would be posed by the Trust's barrister, then compensation would be awarded.

Employment The manager might receive a complaint from Susan and her husband or from the named midwife. If the initial investigation suggests that there is some truth to the allegations, then she is likely to suspend Elaine from duty, pending full investigation. It would not be appropriate to leave her in the community, unsupervised, if there are serious doubts about her safety, yet suddenly bringing her into the hospital to work could be traumatic for the midwife and cause others to speculate. Suspension can be seen to be judging a midwife as guilty before the case has been thoroughly investigated but that is not the intention. Public confidence in the safety of the maternity services requires that, where there is possible unsafe practice, action must be taken to prevent further problems while a full investigation takes place. Also, it can be protective of the midwife, as it must be difficult to concentrate fully on your work if you know that you are under investigation. The time and space also provide greater opportunity for a midwife to see her supervisor and her union representative for support. Elaine's contract of employment would expect her to conduct her practice in accordance with Trust policies and guidelines and the NMC rules and codes. As a community midwife, she would be expected to maintain safe practice, keeping in mind the essential differences related to working in different settings, includ-


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ing clients' homes, rather than in acute settings with immediate availability of assistance. Whereas in a hospital labour ward it might be justifiable to leave the woman's room for short periods after giving pethidine or where labour was progressing well, especially where a midwife is caring for more than one woman, this is not the case in the community. Even in hospital, however, a midwife attending a labour such as Susan's would usually try to remain with her unless there was an experienced student present or she was relieved by another midwife. It is probable that the manager would find Elaine guilty of misconduct. Having done so, she would then check Elaine's record to see if there was an active disciplinary record on file. If the record was clear then a written warning might be given as the case probably requires more than a verbal warning. If there are warnings already on file, then the next level of discipline would be in order. If Elaine had an active final warning on record, this case could result in dismissal.

Daniel Daniel was born at 14.15 h, at 38 weeks gestation, weighing 2600 g, following a normal labour and birth. He had not managed to breast feed immediately after delivery, which was thought to be due to pethidine administered to his mother during her labour. He and his mother were transferred to a mixed antenatal and postnatal ward, during the late shift. During the late shift, Midwife 1 was responsible for the care of Daniel and his mother. She had identified that Daniel had the appearance of a baby small for gestational age (SGA) and, by helping and supporting his mother, for whom this was a first child, she had tried to encourage him to breast feed. After several attempts this was achieved at 20.00 h and was recorded on the feed chart and in the case notes. At 21.30 h Midwife 1 transferred the care to Midwife 2, with a verbal report in addition to the records made, which emphasised that Daniel had only fed once and would need to be fed during the night. She also stated that, although the mother had breast fed once, she would require assistance. The following morning care was transferred back to Midwife 1. The handover was very brief and Midwife 1 had to enquire about Daniel's feeding. Midwife 2 stated that the mother had not requested assistance during the night, so she assumed that he must have fed. At 08.00 h Midwife 1 asked the mother about Daniel's feeding and she stated that he had not fed during the night; he had slept. The last feed to be entered on the feed chart was at 20.00 h, by Midwife 1. The midwife tried to get Daniel to feed but he was too drowsy, his skin was dry and jaundiced, his axillary temperature was 358C and his blood sugar was 0.8 mmol/L. While awaiting the arrival of the paediatrician a bottle feed was attempted but Daniel was too drowsy to suck; he was given a tube feed which he vomited. He was transferred to the neonatal unit (NNU) for intravenous (IV) fluids and, because his drowsiness was described as `semi-conscious', a brain scan, lumbar puncture and full infection screen were ordered. He responded to IV antibiotics and hourly feeds and was returned to the ward after four days. Two years later, Daniel is delayed in his development. It has been suggested to the mother that the retarded development could be related to his problems in the early neonatal period (i.e. the first seven days of life).

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The two previous cases were related to midwives involved in labour care, which is the area that most people associate with litigation. This case, however, serves to remind us that we are just as accountable after birth, for the care of the baby as well as the mother. The format of discussion will follow a similar pattern as for the previous cases and, again, assumptions will be made about complaints and actions, and confirmation of the facts, in order to allow discussion.

Professional conduct A complaint to a supervisor of midwives could come through Midwife 1, the paediatrician dealing with the problem, a manager to whom the paediatrician complained or even the mother. Two midwives had responsibility for the care of Daniel between his arrival on the ward during the late shift, on the day he was born, and the time he was transferred to the NNU. Midwife 1 appears to have done what could be expected of her during the first evening, except perhaps for assessing the blood glucose level. She persevered with attempts to get him to feed and had been successful before going off duty. She recorded the feed on the feed chart, the difficulties experienced in the case notes and she reported verbally to Midwife 2. The next morning she remained alert to the previous day's problems with Daniel, in that she specifically enquired about his feeding when a spontaneous report was not forthcoming. Having found that no action had been taken by Midwife 2, she immediately followed up on his feeding with the mother. Her actions in dealing with Daniel, who was in a poor condition, were appropriate: she assessed his condition, summoned medical aid and, in the meantime, tried all that she could to get a feed into him. Midwife 2, however, presumably failed to understand the implications of what had been reported to her about Daniel. Even if she had not understood the implications herself, she had specifically been told that he would need to be fed during the night. She had clearly not observed him during the night, nor presumably spoken to his mother, as she would have become aware of his deteriorating condition and the fact that he had only been fed once since birth. Despite having a specific report on his condition at the beginning of the night shift, even handing over to the same midwife in the morning did not stimulate her to comment on his feeding until asked directly. As in the previous cases, the Code of Professional Conduct (NMC 2002b) and the Midwives Rules and Code of Practice (UKCC 1998a) will be used as a basis for discussing this case. 1.2 As a registered . . . midwife, you must: . protect and support the health of individual patients and clients . . . . act in such a way that justifies the trust and confidence the public have in you . uphold and enhance the good reputation of the profession. Midwife 2 did not protect the baby in this case. She did not consider his most basic needs, despite having been properly informed of difficulties already experienced and the fact that he appeared to be SGA, suggesting that he lacked fat reserves. She also failed to protect and support the mother in that she did not approach her to try to help with waking and feeding Daniel. Making no attempt to assist with feeding,


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therefore doing nothing to prevent him becoming ill, certainly did nothing to prevent anxiety in his mother, which would almost certainly be caused by his transfer to NNU and by the invasive tests and treatments required. Failing to undertake basic care of a baby could damage the trust and confidence of the public and damage the reputation of the profession ± assuming that the mother was aware that it was a failure on the part of a midwife. For the sake of the discussion, it is being assumed that the mother realised the shortcomings of the staff, even if she was not aware of which midwife was particularly responsible. However, in reality, as she would have been aware of the care given by Midwife 1, she might just blame herself, thinking that she was a poor mother for not feeding her baby, even though he had not woken. This reaction could be damaging to her confidence as a mother and her relationship with her son. 2 As a registered . . . midwife, you must respect the patient or client as an individual. Point 2.2 clearly indicates that the midwife should `promote and protect the interests . . . of patients'. Daniel's interests were not served by Midwife 2, nor were those of his mother, in that her interests would no doubt have included maintaining the health and well-being of her son. It could be said that Daniel's mother should have known that he needed to be fed during the night. However, her knowledge of a baby's needs might have been very limited or she might have believed that he did not need feeding if he did not cry. Society in general seems to place great emphasis on babies sleeping through the night; Daniel's mother might have thought that she had been lucky that he had done so, not realising the implications for him. She might have understood better if Midwife 2 had attempted to get him to feed and had spoken to her about it. 4 As a registered . . . midwife, you must co-operate with others in the team. As stated previously, this section includes effective communication (4.3) and record keeping (4.4). Despite the clear handover that Midwife 2 received the night before, she did not communicate with regard to Daniel's feeding until directly asked by Midwife 1; even then her response indicated poor care. What would have been the situation if Midwife 1 had not been on duty that morning, if it had been a midwife returning from days off who knew nothing about Daniel? It might have taken a lot longer for him to be seen by a midwife as, based on the handover report, there appeared to be no concerns. Delay in assessing him would have led to a further delay in treatment and the outcome could have been much worse. It seems unlikely that any purposeful records were made about Daniel by Midwife 2. She had no idea of his condition and whether he had fed, therefore any records would either be false or worthless. 6 As a registered . . . midwife, you must maintain your professional knowledge and competence. It is questionable as to whether Midwife 2 was knowledgeable and competent. It would appear that she failed to understand the implications of what she had been told, but was that due to a lack of knowledge? Was she not competent in the care of babies with special needs or in the management of the ward, if indeed she had that

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responsibility? Had she not listened to what she had been told or was she so busy that she overlooked Daniel? Whatever the underlying problem might have been, she should have attended a first-day mother and baby at some point during the night. She should have assessed the mother with regard to pain, vaginal loss, urinary output and any needs that might be felt by a new mother. She should have assessed Daniel's cord for bleeding and whether he had passed urine and meconium, in addition to consideration of his feeding. If she had attended him for any of these assessments, she might have alerted herself to the lack of feeding or she might have detected that his condition was poor. 8 As a registered . . . midwife, you must act to identify and minimise the risk to patients and clients. If shortage of staff for the amount of work that was required, as opposed to failing to understand his needs, was preventing Midwife 2 from attending to Daniel, then she should have notified the manager holding the hospital bleep. She should also have recorded the situation through the critical incident or risk system and notified a supervisor of midwives. Shortage of staff is a managerial issue, but where it leads to the inability to care for an identified àt-risk' mother or baby, then a supervisor should be contacted for support. Failing to act appropriately in such a situation means that Midwife 2 was failing in her duty to all the women and babies on the ward, with regard to their care and safety. If she had taken adequate notice of the report on Daniel, he would have been one of her priorities and she would have kept him in mind when reporting the ward circumstances. She would certainly have ensured that she attended him at some point. Having confirmed the facts of the case, it is probable that the supervisor of midwives would determine that a period of supervised practice was required. She would seek approval from the LSA officer and ensure that appropriate assessors were appointed. A midwifery lecturer might assist in the setting of learning outcomes and identify appropriate study sessions for Midwife 2 to attend. Her programme should include care of mothers and `normal' babies in the early neonatal period, care of preterm and SGA babies, perhaps in a transitional care area, or in a special care baby unit. It should also include the principles of baby feeding, whether by breast or bottle.

Civil law The complaints through supervision and management probably would be received fairly soon after the incident. However, an action in law would not have been started until the child's developmental problems were determined as being related to the incident, in this case at the age of two years. It will be for the mother to prove, on the balance of probabilities, that the trust was negligent through Midwife 2 and that, but for that negligence, Daniel would not have become ill and suffered lasting damage. Proving a duty of care is not difficult, as the care of Daniel and his mother was handed over specifically from Midwife 1 to Midwife 2, who then became responsible for their care (Donoghue). Proving that a breach of that duty occurred requires consideration of the normal standards of care (Bolam). Hospital care for child-


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bearing women and their babies is a 24-hour service. Care does not stop when the offices close, nor should it stop when the night shift starts. Midwives, doctors and support workers continue to work through the night in accordance with the needs of the individual women and babies, albeit on lower staffing levels as the amount of more routine work decreases. As with the previous case, the barristers on each side would present their expert witnesses (Maynard), who would refer to the standards expected in 2002, when the incident occurred (Whitehouse) and refer to cases that support their stance. The Trust's stance might be that Daniel was a term baby, in good condition at birth, therefore requiring no specific care beyond that of other apparently normal babies. The feeding policy was probably to `feed on demand', of the baby not the midwives, therefore baby led as in many units. In this case the baby did not demand to be fed; therefore, he was allowed to sleep with the expectation that when he awoke he would be hungry and feed well. The Trust might also consider that the mother contributed to the problem by not alerting the midwife to the fact that Daniel had not fed since 20.00 h. The plaintiff's stance would be that, while Daniel was a term baby in good condition at birth, it is not good practice to leave a baby for 12 hours, having struggled to get him to feed once in six hours from his birth, without making some attempt to interest him in feeding. In addition, it had been recognised by Midwife 1 that Daniel appeared SGA; therefore, he had limited reserves of fat and glycogen to enable him to maintain his blood sugar level. In such a situation, Midwife 2 should have encouraged frequent feeding and should have assessed the baby's condition at each attempt. On assessment, she would probably have realised that he was not just sleeping but drowsy, with early jaundice developing, which is always an adverse sign, and a low temperature. Hypothermia results in an increased metabolic rate, therefore speeding up the use of any energy reserves and worsening any existing hypoglycaemia. She should have tested his blood sugar level, reported the situation to a paediatrician and tried to get a feed into him, as Midwife 1 did on taking up his care in the morning. His condition would have been dealt with earlier and perhaps its severity would have been minimised. With regard to the claim that the mother had contributed to the deterioration in Daniel's condition, she may well have suffered feelings of guilt for not realising what was happening to him. She might have felt that she had been a poor mother for not realising that he needed to be fed more frequently. However, her barrister would indicate that, as a first-time mother, tired after her labour, it was not surprising that she probably slept for most of the night, as Daniel did not wake her by crying. Also, as a first-time mother, informed about the baby-led feeding, she would not have understood the needs of her baby during those first 18 hours, whereas Midwife 2 should have been aware and should have acted. It could be said that Midwife 1 should have alerted the mother to the need for frequent feeding. However, having managed to get Daniel to feed at 20.00 h, and expecting that Midwife 2 would carry out appropriate care of mother and baby during the night, she probably felt that there was no need to worry the mother. Creating anxiety in the mother at this time could have been counterproductive in ensuring that Daniel fed well, as anxiety can interfere with the oxytocin reflex required to deliver the milk or, at this stage, colostrum to the baby.

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If we assume that the judge decides that the care was negligent, the next stage is for the mother to prove that the negligent care was the cause of Daniel's ill health and lasting problems. That is, but for Midwife 2 failing to care for him properly during his first night after birth, he would not have retarded development. He was diagnosed at two years of age but, by the time the case eventually gets to court, more time would have elapsed and a clearer picture of Daniel's disability and needs would be available. Daniel's hypoglycaemia was probably caused by him using up his reserves of glycogen and fat, then not taking in sufficient carbohydrate for his needs. Failing to ensure continued feeding, or failing to take appropriate action when feeding did not occur, could be the cause. However, other reasons must be considered. According to Johnston (1998: 93), SGA babies have a tendency to develop hypoglycaemia, with blood glucose levels of less than 2 mmol/L in the first 48 hours. Where the baby is symptomatic, and Daniel was extremely lethargic, it needs to be `treated vigorously to prevent brain damage'. Levene, Tudehope and Thearle (2000: 165) state that a normal neonatal blood glucose level should be considered to be 2.6 mmol/L, but that levels below this figure are not essentially damaging. According to their descriptions of major and minor symptoms, Daniel's condition does not completely correspond with the `major' description, but it does in part and he was in a worse condition than their description of the `minor' category. Babies with severe symptoms of hypoglycaemia have a poor prognosis, with neurodevelopmental damage, such as mental retardation, being probable in 50% of those who survive (Levene, Tudehope & Thearle 2000: 167). In the opinion of Midwife 1, Daniel was SGA; he lacked the reserves of a normal term baby and would be at risk of hypoglycaemia (Simpson 1997: 854) and hypothermia. Perhaps he suffered antenatal intrauterine compromise and either failed to lay down sufficient reserves or started to use them before birth. During labour the reserves are accessed by the fetus; if they are insufficient then fetal distress will occur. Daniel does not appear to have suffered fetal distress, according to the facts given, so it must be assumed that sufficient reserves were present, but perhaps they were nearly exhausted at the time of birth. As time passed, with his temperature dropping, Daniel's rate of glucose metabolism would rise, thus causing a drain on any carbohydrate still in his system. It was noted by Midwife 1, when she assessed Daniel in the morning, that he had become jaundiced. Physiological jaundice occurs in many babies around the third day, due to the essential destruction of red blood cells and the consequent need for conjugation of bilirubin. However, jaundice that occurs within the first 24 hours is not physiological and always requires investigation. Ascending infection acquired in utero is one cause of early neonatal jaundice, as the consequent haemolysis of red cells leads to an overload of bilirubin for the liver to deal with. The baby then needs sufficient carbohydrate for the liver to function effectively but Daniel was not feeding, therefore he was not supplying the necessary fuel. Daniel's condition was very poor at 08.00 h, worse than would be expected of a baby whose only problem was lack of feeding. It is not stated that infection was confirmed by the investigations, the results of which would be available to the lawyers and expert witnesses, but it does state that Daniel responded to the IV antibiotics and hourly feeds. Of course, he could have been responding to the


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feeds alone, but there is sufficient suggestion that infection might have been the major cause of his rapidly deteriorating condition. It is possible for infection, particularly meningitis, to cause permanent brain damage. According to Simpson (1997: 900), subtle signs of neonatal infection that should be recognised by midwives include lethargy, reluctance to feed, poor temperature control and jaundice, all signs exhibited by Daniel and noted by Midwife 1. So, was Daniel's retarded development the fault of Midwife 2 failing in her duty of care to Daniel during that night shift? If it was purely the lack of feeding that was the probable cause, then Midwife 2 would be responsible in that she made no effort to ensure that breast feeds were being offered to Daniel or that alternative feeding was considered. She did not monitor his condition with regard to lack of feeding and then report her findings. However, it is unlikely that her negligent actions in this regard would be found to be the cause of the harm. The evidence for the infection being the cause could be compelling and, on the balance of probabilities, it could be the cause of choice. However, if the infection was the cause of Daniel's ill health and then his lasting problems, although Midwife 2 did not assess him and seek paediatric assistance, she was not the cause of the infection. It is possible also that his condition might not have been identifiable much before she was due to hand over care. Certainly the jaundice might not have been identifiable until he was viewed in daylight. It is, therefore, probable that a judge would find that causation could not be proved. In addition, Trust expert witnesses would probably be able to prove that there are causes for mental retardation in infants that are not related to early neonatal care. Such evidence would cause doubt about the link between Daniel's neonatal condition and his retardation. In which case, it is again probable that a judge would find that causation could not be proved, as in Wilsher. It would appear that hypoglycaemia may have been the cause of the mental retardation but it is only a sign of another condition. In this case, it was probably the fact that Daniel was SGA with an infection that caused the lethargy and reluctance to feed. Daniel then entered the downward spiral of hypothermia and jaundice, which further exacerbated the hypoglycaemia and its effects. Midwife 2's inaction might have contributed to the condition and possibly prevented earlier treatment, but she was not the cause. If this is the belief of the judge, then damages would not be awarded.

Employment As already stated, this incident could be reported to the manager from one or more of a number of sources. The manager's initial investigation of the incident will determine whether or not Midwife 2 should be suspended from duty, pending full investigation. If the circumstances surrounding the case are that poor staffing was the underlying cause of the failure to care, then the manager may choose not to suspend. However, if there were no mitigating circumstances, then it is more likely that suspension would occur. If Midwife 2 was allowed to remain on duty, then it is likely that she might be asked to work day shifts during the investigation and perhaps for some time afterwards, for updating. If working day shifts immediately would cause child care problems, then suspension might be the only satisfactory

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option, as this midwife should not be left in a situation where there is limited staff until the investigation is completed. Regardless of the staffing situation, the manager is likely to determine that the expected standard of care was not provided for this mother and baby. Even if the lack of care was not the cause of the underlying problem, it certainly contributed to the severity of it. Earlier midwifery assessment of Daniel could have resulted in earlier paediatric assessment and treatment. At the time of this investigation, there would be no knowledge of the lasting problems that Daniel was to suffer so that would not have any bearing on the decisions made. This position is appropriate, as disciplinary decisions should be made on the midwife's conduct, with regard to her contract, not dependent on the severity of the outcome. Either she behaved appropriately or she did not; if she did not, then the discipline should be in keeping with the behaviour. It is possible that a minor error could result in a major adverse outcome, while a major error could result in a minor adverse outcome, or even a near miss. Therefore, the discipline should relate to the error, not the outcome. If this was Midwife 2's first offence and she was found guilty, then she might receive a verbal warning, but failing to care for a first-day mother and baby is a serious error so it is quite likely that a first written warning would be given. The manager would arrange for the midwife to work on day duty while undergoing her supervised practice. With reduced staff on night duty, it is very difficult to arrange for a midwife to be supernumerary and to receive the support and supervision required. If the manager felt that the lack of care had been, in part, due to staffing difficulties, then this would be taken into account. However, the midwife would then be judged on how she managed that situation; whether she notified appropriate people and recorded her actions and how she prioritised her workload under the circumstances. Training in this aspect of her practice might be arranged by the manager. If Midwife 2 had any active warnings on her record, then the next stage of the process would be invoked, which could of course be dismissal.

Summary This chapter has considered the actions and inactions of midwives in three separate cases. They have been considered as if they occurred in 2002 and discussed from the three routes of accountability: the profession, civil law (and criminal law in one case) and employment. The detail of the stages of investigations was omitted, with concentration on the principles and identified issues. I have suggested what the possible outcomes could be, based on my own judgement and, in the case of the law, without reference to more than the classic cases. Lawyers, of course, would refer to far more cases in their presentations; expert witnesses would refer to as much relevant literature as they felt was required. For any midwife found to be at fault in any of the routes of accountability, there may be implications for future employment or career progression. A midwife who has been removed from the Professional Register cannot work as a midwife unless and until she is successful in being restored to the Register. If she has a caution against her name then, for the length of that caution, she may find it difficult to get


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a post in another institution, as the manager should check her registration details before employing her. A midwife who is found guilty of negligence or dismissed from her employment for misconduct or malpractice may find it difficult to gain employment elsewhere. If she remains within the same Trust, then it might be difficult to achieve promotion at the rate that might have been expected.

Reader activity . Consider the three cases and see if you can argue a different outcome from those that I have suggested. . Consider any incidents that you are familiar with from your own Trust; analyse them from the same three possible routes of action. . Determine what action you would take if you found yourself involved in similar cases to those above, as the innocent midwife.

References Bentham K (2003) Maternity care for asylum seekers. British Journal of Midwifery; 11(2): 73±7 Johnston PGB (1998) The Newborn Child, 8th edn. Churchill Livingstone, Edinburgh Leap N, Heptinstall T (1997) Community midwifery and home birth. In: Sweet B, Tiran D (eds) Mayes' Midwifery. A Textbook for Midwives, 12th edn. BaillieÁre Tindall, London Levene MI, Tudehope DI, Thearle MJ (2000) Neonatal Medicine, 3rd edn. Blackwell Science, Oxford NMC (2002a) Preparation of Supervisors of Midwives. NMC, London NMC (2002b) Code of Professional Conduct. NMC, London NMC (2002c) Practitioner±Client Relationships and the Prevention of Abuse. NMC, London NMC (2003) Council Briefing (January). NMC, London Simpson C (1997) Small-for-gestational-age babies. In: Sweet B, Tiran D (eds) Mayes' Midwifery. A Textbook for Midwives, 12th edn. BaillieÁre Tindall, London Telfer F (1997) Relief of pain in labour. In: Sweet B, Tiran D (eds) Mayes' Midwifery. A Textbook for Midwives, 12th edn. BaillieÁre Tindall, London UKCC (1998a) Midwives Rules and Code of Practice. UKCC, London UKCC (1998b) Guidelines for Records and Record Keeping. NMC, London UKCC (2002) Annual Report 2001±2002. UKCC, London

Statutes Civil Procedure Act 1997 Human Rights Act 1998 Limitations Act 1980

Cases Bolam v. Friern Hospital Management Committee [1957] 2 All ER 118, [1957] 1 WLR 582 Bolitho v. City & Hackney Health Authority [1997] 4 All ER 771

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Donoghue v. Stevenson [1932] AC 562 (HL) Maynard v. West Midlands Regional Health Authority [1985] 1 All ER 635 (HL) Lucy Reynolds v. North Tyneside Health Authority [2002] LLRM 470 Whitehouse v. Jordan and Another [1981] 1 All ER 267, [1981] 1 BMLR 14 (HL) Wilsher v. Essex Area Health Authority [1988] 1 All ER 871, [1988] AC 1074 (HL)

Glossary

Assault: an apparent attempt to touch without permission, as perceived by the `victim' (trespass); if the intention is to inflict harm then it is a criminal offence. Autonomy: being self-governed, in control of one's life. Barrister: lawyer qualified to present a case in court. Battery: actual unlawful touching; in a civil case harm does not have to be proved; it could also be a criminal offence. Burden of proof: level of evidential proof required for the type of case ± balance of probabilities in civil courts, beyond reasonable doubt in criminal courts. Civil wrong: act or omission which results in detriment to another person. Clinical governance: a system of accountability for quality in national health care services. Clinical supervision: a system for support of clinical nurses by trained peers; there is no statutory power or control. Compensation: financial award to redress a civil wrong. Competence: legal capacity for self-determination; requires understanding and belief of the situation, along with the ability to use this knowledge to make a decision. Conjoined twins: uniovular twins born attached to one another following incomplete cleavage of the fertilised ovum. Consent: written, verbal or implied permission for proposed investigation, care or treatment. Defendant: in civil cases, the person or organisation being sued; in criminal cases, the accused person. Delict: term used in Scotland for a civil wrong, e.g. negligence. Direct discrimination: where one employee is treated less favourably than another/others. Duty of care: legal responsibility within a proven relationship (i.e. professional). Expert witness: person who professes to have expertise within a specific area and who represents a specific body of opinion. Hypoglycaemia: blood sugar level below the accepted norm. Independent midwives: non-NHS, self-employed midwives working singly, in partnerships or group practices. Independent review: review of a complaint along with the initial investigation and action, by a panel of people independent of the Trust and the complainant. Indirect discrimination: imposition of criteria, practices, etc. to the detriment of a person or specific group of persons. Interim suspension: temporary removal from the Professional Register.

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Glossary

Lawyer: a person qualified in law who is then able to undertake further training as a solicitor or barrister. Litigation: legal action. Material risks: the risks that a prudent patient would consider to be significant. Negligence: failure to comply with acceptable standards where a duty of care exists. Paternalism: acting in the belief that one knows what is best for the other person. Plaintiff: the complainant who takes legal action. Prima facie: òn the face of it'. Primary legislation: Acts of Parliament or statutes. Professional misconduct: conduct unbecoming of a midwife (or other). Risk identification: identification of possible negative consequences following an action, inaction or just the environment. Risk management: the prevention, or at least minimisation, of negative consequences from identified risks. Samaritan act: acting in an emergency where no duty of care exists. Secondary legislation: orders or regulations with equivalent legal force to the parent primary legislation from which they stem. Single joint expert: one expert providing an opinion to the court, effectively to serve both sides of the case. Solicitor: a lawyer, further trained in legal practice but not at the bar. Statute: an Act of Parliament, i.e. primary legislation. Statutory Instrument: see secondary legislation above. Supervised practice: an assessed period of education and training, approved by the LSA midwifery officer. Supervision of midwives: a statutory system for supervising the practice of midwives in order to promote and maintain safety for the public, which includes consideration of individual professional development. Supported practice: a period of education and training that is not formally assessed or approved by the LSA. Suspension from duty: removal from working as a midwife in the trust, by a manager, during a defined time or pending investigation of incidents. Suspension from practice: removal from working as a midwife, by the LSA midwifery officer, within the geographical boundaries of that LSA, pending investigation of alleged misconduct. Tort: a civil wrong, e.g. negligence, trespass. Trespass to the person: the tort of battery. Vicarious liability: responsibility held by an employer for the negligent behaviour of its employees. Wrongful birth: where a parent claims that a child would not have been born but for the negligent acts or omissions of medical staff. Wrongful life: where the child claims that it should not have been born.

Table of Bills/Statutes/SIs

Abortion Act 1967 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 149 Abortion Act 1967 (as amended) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150, 159 Abortion Act 1976 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Access to Health Records Act 1990 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134, 135, 136 Access to Health Records (Control of Access) Regulations 1993 (SI 1993 No. 746) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135 Access to Justice Act 1999 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104, 153 Adoption Act 1976 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153 Adoption and Children Bill 2001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Adoption and Children Act 2002 . . . . . . . . . . . . . . . . . . . . . . . . . 3, 153, 154, 156, 159 Adoption (Scotland) Act 1978 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153 Care Standards Act 2000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83 Children Act 1989 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2, 122, 153, 154, 158, 189 Civil Procedure Act 1997 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Civil Procedure Rules 1998 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 109 Congenital Disabilities (Civil Liability) Act 1976 . . . . . . . . . . . . . . . . . . 2, 44, 104, 105 Crime and Disorder Act 1998 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 12 Criminal Justice Bill 1998 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Data Protection Act 1984 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134, 136 Data Protection Act 1998 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135, 138, 143 Data Protection Order 1987 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134 Data Protection (Subject Access Modification) (Health) Order 1987 . . . . . . . . . . . . 134 Disability Discrimination Act 1995 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167, 168 Employment Act 2002 . . . . . . . . . . . . . . . . . . . . . . . 161, 163, 165, 166, 167, 168, 169 Employment Rights Act 1996 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161, 165, 168 Equal Pay Act 1970 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167 European Convention on Human Rights in 1950 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Family Law Reform Act 1969 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121 Health Act 1999 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 32, 33, 66, 67, 68, 126 Health and Social Care Act 2001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139 Health Professions Order 2001 (SI 2002 No. 254) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Health Service Commissioners Act 1993 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74 Health Service Commissioners (Amendment) Act 1996 . . . . . . . . . . . . . . . . . . . . . . . 74 Health Service Commissioners (Amendment) Act 2001 . . . . . . . . . . . . . . . . . . . . . . . 74 Hospital Complaints Procedure Act 1985 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 Human Fertilisation and Embryology Act 1990 . . . . . . . . 2, 4, 135, 146, 147, 148, 158 Human Fertilisation and Embryology (Research Purposes) Regulations 2001 . . . . . 148 Human Reproductive Cloning Act 2001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148 Human Rights Act 1998 . . . . xi, 8, 10, 11, 106, 107, 118, 126, 138, 152, 153, 157, 179 Infanticide Act 1938 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152

200

Table of Bills/Statutes/SIs

Infant Life Preservation Act 1929 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149, 152 Juries Act 1974 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 Limitations Act 1980 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105, 185 Maastricht Treaty 1992 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10 Mental Health Act 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106, 121 Midwives Act 1902 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Midwives Act (Scotland)1915 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Midwives Act 1918 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Midwives Act (Ireland) 1918 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Midwives Act 1926 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Midwives Act 1936 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 48 Midwives Act 1951 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 28 Midwives (Qualifications of Supervisors) Regulations 1997 (SI 1997 No. 1580) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50, 51 Misuse of Drugs Act 1971 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 40 Misuse of Drugs Regulations 1985 (SI 1985 No. 2066) . . . . . . . . . . . . . . . . . . . . . . . 40 National Health Service Act 1977 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32, 125, 126 National Health Service and Community Care Act 1990 . . . . . . . . . . . . . . . . . . 32, 162 National Health Service (Compensation) Bill 1990 . . . . . . . . . . . . . . . . . . . . . . . . . . 109 NHS Reform and Health Care Professions Act 2002 . . . . . . . . . . . . . . . . . . . . 32, 33, 68 NHS Reorganisation Act 1973 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50, 74 Nurses, Midwives, Health Visitors Act 1979 . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 29, 30 Nurses, Midwives, Health Visitors Act 1992 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 31 Nurses, Midwives, Health Visitors Act 1997 . . . . . . . . . . . . . . . . . . . 2, 5, 8, 32, 33, 126 Nurses, Midwives, Health Visitors Rules 1983 (SI 1983 No. 873) . . . . . . . . . . . . . . . 31 Nursing and Midwifery Order 2001 (SI 2002 No. 253) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 5, 8, 32, 33, 50, 52, 56, 57, 59, 60, 61, 126 Offences Against the Person Act 1861 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152 Prescription Only Medicines (Human Use) Order 1997 (SI 1997 No. 1830) . . . . . . . 41 Protection from Harassment Act 1997 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Public Interest Disclosure Act 1998 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169 Race Relations Act 1976 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167 Race Relations (Amendment) Act 2000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166 Scotland Act 1998 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Sex Discrimination Act 1975 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 166 Sex Discrimination Act 1975 (amendment of Section 20) Order 1983 (No. 1202) . . . 31 Sex Discrimination (Gender Reassignment) Regulations 1999 . . . . . . . . . . . . . . . . . 167 Special Educational Needs and Disability Act 2001 . . . . . . . . . . . . . . . . . . . . . . . . . 168 Stillbirth Definition Act 1992 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152 Suicide Act 1961 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107 Surrogacy Arrangements Act 1985 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 4, 145 Treaty of Amsterdam 1997 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Treaty of Rome 1974 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166

Table of Cases

Key to abbreviations used for: AC All ER BMLR CLR EHRR FCR FLR LLRM QBD TLR WLR

Law Reports, Appeal Court All England Law Reports Butterworth's Medical Law Reports Criminal Law Reports European Human Rights Reports Family Court Reports Family Law Reports Lloyd's Law Reports: Medical Law Reports, Queen's Bench Division Times Law Report Weekly Law Reports

Airedale NHS Trust v. Bland [1993] 1 All ER 821 [1993] 12 BMLR (HL) . . . . . . . . . 108 Alice Maud Fenech v. East London and City Health Authority [1999] 1 LLRM 35 . . 105 Barnett v. Chelsea and Kensington Hospital Management Committee [1969] 1 QBD 428 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98 Bolam v. Friern Hospital Management Committee [1957] 2 All ER 118, [1957] 1 WLR 582 . . . . . . . 8, 89, 90, 91, 93, 95, 105, 115, 119, 128, 178, 185, 190 Bolitho v. City & Hackney Health Authority [1997] 4 All ER 771 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93, 94, 95, 98, 178, 186 Carole Gay Ogilvy Chester v. Fari Afshar [2002] LLRM 305 . . . . . . . . . . . . . . . . . . . 115 Chatterton v. Gerson [1981] 1 All ER 257 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115 Donoghue v. Stevenson [1932] AC 562 (HL) . . . . . . . . . . . . . . . . . . . . . 8, 86, 185, 190 Gillick v. West Norfolk and Wisbech Area Health Authority [1986] CLR 113 (HL) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122, 123 Greenfield v. Flather and Others [2001] 4 LLRM 143 . . . . . . . . . . . . . . . . . . . . . . . . 109 Groom v. Selby [2000] 2 LLRM 39 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109 Hardman v. Amin [2000] 10 LLRM 498 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109 Hunter v. Hanley [1955] SLT 213 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89 Kerry Roberts v. Bro Taf Health Authority [2001] LLRM, June 2002 183 . . . . . . . . . 108 Leeds Teaching Hospitals NHS Trust v. Mr A and Others [2003] LLRM 151 (QBD) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148 Lucy Reynolds v. North Tyneside Health Authority [2002] LLRM 470 . . . . . . . . 91, 178 McFarlane v. Tayside Health Board [1999] 1 LLRM 1 (HL) . . . . . . . . . . . . . . . . . . . 108 McKay v. Essex Area Health Authority [1982] QBD 1166 . . . . . . . . . . . . . . . . . . . . . 109 Maynard v. West Midlands Regional Health Authority [1985] 1 All ER 635 (HL) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93, 95, 185/6 NHS Trust À' v. Mrs M and NHS Trust `B' v. Mrs H [2000] 1 LLRM 28 . . . . . . . . . . 108

202

Table of Cases

Paton v. UK [1980] 3 EHRR 408 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152 Pretty v. UK [2002] 2 FCR 97 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107 R v. Human Fertilisation and Embryology Authority, ex p Blood [1997] 2 WLR 806 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148 Re A (Male sterilisation) [2000] 1 FLR 549 (CA) . . . . . . . . . . . . . . . . . . . . . . . . . . . 120 Re A (Minors) (Conjoined twins: separation) [2000] 4 All ER 961, [2000] 10 LLRM 425 (CA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123 Re AK (Competent adult: refusal of medical treatment) [2000] 58 BMLR 151 . . . . . 107 Re B (Consent to treatment: capacity) [2002] TLR, 26 March . . . . . . . . . . . . . . . . . . 116 Re C (Adult: refusal of medical treatment [1994] 1 All ER 819 . . . . . . . . . . . . . . . . . 114 Re C (A minor) [1985] FLR 846 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145 Re F (In utero) [1988] 2 All ER 193 [1988] FCR 122 (CA) . . . . . . . . . . . . . . . . . . . . 116 Re F (A mental patient: sterilisation) [1990] 2 AC 1 . . . . . . . . . . . . . . . . . . . . . 119, 120 Re MB (medical treatment) [1997] 2 FLR 426 (CA) . . . . . . . . . . . . . . . . . . . . . 116, 129 Re S (Adult patient's best interests) [2000] 2 FLR 389 (CA) . . . . . . . . . . . . . . . . . . . 120 Re T (Adult: refusal of medical treatment) [1992] 9 BMLR 46 (CA) . . . . . . . . . 116, 118 Re W (Minor) (Medical treatment) [1992] 4 All ER 627 . . . . . . . . . . . . . . . . . . 114, 121 Re X (Adult sterilisation) [1998] 2 FLR 1124 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120 Re ZM and OS (Sterilisation: patient's best interests) [2000] 1 FLR 1124 . . . . . . . . . 120 Roe v. Ministry of Health [1957] 2 All ER 131 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101 Sansom v. Metcalfe Hambleton and Co. [1995] Law Society Gazette, 4 February . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91 Sidaway v. Bethlem Royal Hospital Governors and Others [1985] 1 All ER 643 (HL) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115 Simms v. Birmingham Health Authority [1999] 7 LLRM 382 . . . . . . . . . . . . . . . . . . . 96 St George's Healthcare NHS Trust v. S [1998] 3 All ER 673 (CA) . . . . . . . 113, 117, 121 Tameside and Glossop Acute Services Trust v. CH [1996] 1FLR 762 . . . . . . . . . . . . 116 Thake v. Morris [1986] QBD 644 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108 Udale v. Bloomsbury Area Health Authority [1983] 2 All ER 522 . . . . . . . . . . . . . . . 108 Whitehouse v. Jordan and Another [1981] 1 All ER 267, [1981] 1 BMLR 14 (HL) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91, 95, 109, 178 Wilsher v. Essex Area Health Authority [1988] 1 All ER 871, [1998] AC 1074 (HL) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92, 93, 95, 98, 178

Index

abortion, 2, 7, 148±53 conscientious objection, 108, 150±51, 153 duty of care, 151±2 abuse, 6, 39, 56, 104, 116, 122, 131, 157, 173, 174, 177±8 accountability, xi, xii, 16, 35, 64±84, 93, 95, 103, 109, 113, 172, 176, 179, 181, 194, 197 accountable, 7, 19, 40, 44, 54, 64, 65, 71, 87, 95, 174, 175, 188 actions or omissions, 175, 185 Acts of Parliament, xii, 1±4, 8, 198 administration of medicines, 40±42, 182 adoption, xii, 2, 3, 145, 147, 153±7, 158±9, 168±70 agency, 156 contact register, 156 order, 147, 153, 154, 155±6 Register of Adopted Children, 156 society, 155 adoptive parents, 154, 156, 168 agency midwives, 38, 101, 102, 180, 184 antenatal care, 87, 99, 122, 126, 150 antenatal screening, 118, 126, 132 appeal(s), 8, 13, 16, 17, 18, 34, 60, 91, 92, 93, 96, 97, 115, 116±17, 118, 120±21, 124, 125, 158, 163, 179 civil court(s), 12, 13, 15, 54, 85, 164, 197 criminal court(s), 13±14, 18, 54, 177, 197 artificial nutrition and hydration, 106, 108 artificial reproduction, 144 assault, 12, 114, 179, 197 assisted conception, xii, 106, 135, 144±9, 158 child's welfare, 116, 153, 157 code of practice, 146±7 consent by husband, 120 Association for Improvements in Maternity Services (AIMS), 20 Association of Radical Midwives, 20 audit, 34, 35, 38, 43, 65, 67±8, 71, 82, 103, 138, 143, 167

autonomy, 20, 119, 176, 177, 197 baby, 15, 20, 44, 55, 69, 70, 73, 76±7, 78, 79, 81, 85, 86, 90, 92, 97±8, 100, 104±105, 106, 107±109, 115±17, 123, 125, 128, 133, 138, 139 balance of probabilities, 12, 98, 177, 178, 185, 190, 193, 197, 199 bank (midwives), 38, 101, 180, 184 barrister, 16, 17, 186, 191, 197 battery, xii, 114, 119, 127, 131, 141, 178±9, 197 best interests, 106, 107±108, 119±21, 122±3, 124, 128, 139, 145, 175±6, 179, 182 beyond reasonable doubt, 12, 177, 179, 197 Bill, 2±4, 7, 109, 199 development of, 3 Private Members', 7, 149 birth parents, 155, 157 birth plan, 127 Bolam test, 8, 91±3, 115, 119±20, 178 born before arrival (BBA), 15, 181, 184 brain damage, 88, 91, 94, 97, 99, 106, 109, 192±3 breach of contract, 101, 108, 161, 164, 174 Briggs Report, 29 burden of proof, 12, 177±8, 179, 185, 197 balance of probabilities, 12, 98, 177±8, 185, 190, 193, 197 beyond reasonable doubt, 12, 177, 179, 197 caesarean section, 70, 79±80, 90, 91, 98, 113, 114±119, 121, 123, 126, 144, 152, 164 consent for, 116, 117, 119 Caldicott Guardians, 138 cardiotocograph (CTG), 59, 70, 77, 78±80, 99, 133, 173 care order, 155, 158 case law, 2, 7±8, 95, 125, 126

204

Index

causation, 89, 94, 97, 98, 99, 104, 180, 188, 195 caution order, 60, 61 cerebral palsy, 90, 96, 100 Changing Childbirth, 7, 21, 102 child abuse, 157 childbirth, 7, 8, 20, 21, 26, 28, 31, 42, 44, 60, 87, 105, 125±6, 184 child protection, 133, 140, 144, 157±9 Area Child Protection Committees (ACPC), 157 child(ren), xii, 2, 13, 27, 44, 71, 72, 99, 100, 104±105, 106±107, 108±109, 113, 116, 117, 120, 122, 133, 137, 140, 144±7, 148, 149, 150±56, 157±9, 168±9, 174, 180, 187, 190, 193, 198 Adoption Contact Register, 156 welfare, 116, 153, 157, 158 choice, xii, 21, 41, 59, 70, 118, 125±7, 158, 173, 193 civil law, 11±12, 64, 74, 88, 109, 125, 184, 190, 194 civil liberties, 14 Civil Service, 19 civil wrong (tort, delict), 11±12, 108, 114, 178, 197±8 client, xii, xiii, 17, 19, 27, 54, 68, 69, 82, 87, 88, 122, 126, 131±2, 140±41, 161, 164, 169, 174, 176, 177±8, 181, 185, 187±90 clinical governance, xi, 64±83, 103, 138, 197 Clinical Negligence Scheme for Trusts (CNST), xi, 101±103, 110 clinical risk, 65, 103 clinical supervision, 51, 197 cloning, 7 Clothier clearance, 13 code of practice, midwife's, 5, 43±4, 51, 52, 174, 177, 181, 188 code of professional conduct, 5, 35, 100, 108, 131, 157, 174±7, 181, 188 coercion, 117, 128 Commission for Health Improvements (CHI), 67±8 Commission for Healthcare Audit and Inspection, (CHAI), 82 Commission for Racial Equality, 167 commissioning couple (surrogacy), 145±6, 153 common law, xi, 1, 7±8, 161, 164±5 compensation, 12±13, 44, 72, 85±6, 93, 98±100, 104±105, 109, 158, 166, 186, 197

competence Gillick, 122±3 practitioner, 33, 35, 38, 44, 51, 55±62, 67, 89, 103, 165, 168, 176±7, 189, 197 complaints, xii, 16, 34, 53, 57, 65, 72±82, 85, 131, 140±42, 188, 190 alleged misconduct (see misconduct) alleged negligence (see negligence) conditions of practice order, 60, 61 Confidential Enquiry into Maternal and Child Health (CEMACH), 72, 140 Confidential Enquiry into Maternal Deaths (CEMD), 72, 140 Confidential Enquiry into Stillbirths and Deaths in Infancy (CESDI), 72, 103, 140 confidential, 70, 72, 74, 138±40 confidentiality, 56, 85, 131, 137, 139, 146, 169±70 disclosure, 75, 136, 139±40, 146, 169±71 protected, 143, 169 qualifying, 169±71 whistle-blowers, xii, 169±71 duty of confidentiality, 137 conflict, 1, 8, 54, 56, 94, 102, 122, 133, 145 conflict of interest, 54 congenital disabilities, 2, 44, 104±105 conjoined twins, 123±5, 197 consent, xii, 4, 35, 107±108, 113±28, 134±9, 147, 148, 155±6, 173±4, 175, 176±9, 197 adults, xii, 113±21, 128 advance (adoption), 155 battery, xii, 114, 119, 127, 131, 141, 178±9, 197 birth plan, 127 coercion, 117, 128 competence, 119±28, 175 consent by husband, 120 consent to treatment, 115, 120, 127 Department of Health documents, 113 express consent, 178 husband, 120 implied consent, 118, 138±9 incompetence, 121 minors, xii, 114, 121±5, 157±9 necessity, 119±20, 123±4, 128, 145, 179 obtaining consent, 35, 119, 128 parental, 122±3, 155 refusal, 118 sterilisation, 108, 119±20 woman's consent, 123, 138, 174±5

Index written consent, 118 constitutional law, 14 contract of employment, 54, 88, 161, 171, 186 contributory negligence, 100 cord prolapse, 42, 90±95, 97±8, 119 Council for the Regulation of Health Care Professions, 33 courts, 8, 10, 13±19, 54, 57, 85, 89±90, 95, 96, 99, 107, 110, 117, 119, 120, 122±3, 126, 142, 145, 164, 197 Appeal, Court of, 8, 13±19, 91, 92, 93, 94, 98, 115, 116±17, 118, 120±21, 124, 179 civil division, 13±14 criminal division, 13, 15 civil, 13±15, 18, 54, 85, 164, 197 Coroner's, 14±15 County, 8, 13±14 criminal, 13±15, 18, 54, 177, 197 Crown, 13, 15 European Human Rights, 8, 10, 107, 152, 158 Justice, 10, 13 High, 8, 11, 13±14, 16, 18, 34, 60, 74, 107, 115, 120±21, 124 Magistrates', 13±15, 18 Queen's Bench Division, 13±15 critical incident, 56, 58, 65±6, 190 damages, 98, 99±100, 101±102, 104, 108, 114, 164, 178, 193 data controller, 136±8 data processing, 137 data protection, 134±9, 143 defendant, 12, 13, 45, 86, 93, 94, 96, 100, 105, 197 delict (civil wrong, tort), 11±12, 108, 114, 178, 197±8 disability, 44, 104, 106, 109, 124, 146, 166±8, 192 disciplinary hearing, 54 disciplinary policy, 16 discrimination, xi, 126, 151, 161, 166±8, 170, 197 disability, 166±8 gender, 166±7 race, 167 dismissal (see employment) dispute resolution, 16, 162±4, 171 documentation, 16, 70, 75, 78, 177 drugs, 40±42, 43, 89, 182, 183

205

administration, 40±41, 119, 133, 175, 180±83 controlled, 182 destruction, 40±41 patient group direction (PGD), 41 due regard, 59, 105 duties, 1, 43±50, 151, 162, 168 duty of care, xii, xiii, 69, 86±96, 97±8, 104, 109, 144, 146, 151±2, 178, 185, 190, 193, 197, 198 breach of, 12, 69, 86±7, 89±96, 97±8, 104, 178, 185, 190 of quality, 69 termination of pregnancy (TOP), 150±53, 159 vicarious liability, 93, 100±103, 178, 198 dyspareunia, 105 early day motions, 7 electronic fetal monitoring, 20, 72, 99, 133 embryo(s), 145, 147±9 emergency protection order, 158 emergency situations, 87, 119, 123 employee, xii, 16, 100±102, 136, 161±70, 180, 197, 198 employer, 16, 35, 54, 100±101, 131, 161±70, 198 employment, xii, 15±16, 28, 38, 49, 54, 74, 87±8, 100, 137, 161±71, 172, 179±80, 186±7, 193±5 contract of employment, 54, 88, 101, 161±5, 171, 174, 180, 186, 194 discrimination, xiii, 126, 151, 161, 166±8, 170, 197 direct, 166±8 indirect, 167, 197 on grounds of gender, 166±7 on grounds of race, 167 dismissal, 15±16, 162±7, 170, 187, 194 dispute resolution, 16, 162±4, 171 Employment Appeal Tribunal (EAT), 16 employment rights, 170 redundancy, 162, 165 re-engagement, 166 reinstatement, 165±6 rights and benefits, 170 terms and conditions, 161±2 tribunals, 15, 164, 167 unfair dismissal, 15, 162, 165±6, 170 wrongful dismissal, 164±5 English law, 1, 7±8 Equal Opportunities Commission (EOC), 167

206

Index

code of practice, 167 ethics, xi, 95, 125, 143, 151, 158, 178 European law, 1, 9±10, 13 Advisory Committee on the Training of Midwives, 10 decisions, 10 directives, 9, 10, 34, 40, 44±5 European Court of Human Rights, 8, 10, 107, 152, 158 European Court of Justice, 10, 13±14 recommendations, 9 regulations, 9, 26 evidence-based practice, 65 expert witness, 13, 89±90, 91, 93, 96±7, 109, 115, 141±2, 178, 185±6, 191±3, 194, 197 External Professional Advisor (EPA), 16, 75, 79 fast track, 13 fetal rights, 116 feticide, 151, 159 fetus, 2, 55, 59, 85, 95, 97, 98±9, 104, 106, 109, 113±18, 139, 149±52, 177, 179, 181±2, 185, 192 fitness for practice, 34 gender, discrimination, 166±7 General Medical Council (GMC), 67, 106, 108 general practitioner (GP), 14, 21, 32, 39, 41, 73, 100±102, 105 good character, 27, 59 government, 2, 3, 6±7, 10, 14, 17, 18±19, 20, 22, 30, 32±3, 39, 64, 68, 118, 122, 125, 135, 139, 149, 152, 166±7 policy, xi, 2±3, 6±7, 10, 13, 19, 20±22, 25 Green Paper, 2 grievance, xii, 72, 162, 164, 167, 170±71 group practice, 102, 197 guidelines, 5, 53, 64, 71±2, 83, 97, 99, 106, 110, 131±2, 149, 157, 185, 186 harm, 1, 2, 44, 66, 70, 71, 86, 88, 97, 99±100, 102, 104±105, 106, 114±17, 127, 134, 137, 150, 155, 157, 178, 183, 184, 186, 193, 197 Health Committee (NMC), 57, 60 Health Professions Order, 2, 33 Health Service Commissioner (Ombudsman), xii, 16, 72, 74±83, 85, 110, 131, 138, 164

External Professional Advisor (EPA) , 16, 75, 79 Internal Profesional Advisor (IPA), 75 Health Select Committee(s), 6, 21 Health Service (see also National Health Service), xi, 16, 29, 32±4, 36, 41, 50, 64±73, 74, 75, 82, 100±103, 109, 124, 138, 142, 150, 161±2, 177 home birth, xii, 20, 41, 44, 125±7, 180, 185 honorary contracts, 101 House of Commons, 3, 4, 19, 109 House of Lords, 3±4, 8, 13, 14±15, 17±19, 22, 92, 93, 94, 95, 98, 109, 115, 120, 122 human cloning, 7 Human Fertilisation and Embryology Authority (HFEA), 22, 146±9, 159 code of practice, 146±7 human rights, 8, 10, 85, 126, 158 Human Rights Act 1998, xi, 8, 10, 11, 106±107, 118, 126, 138, 152, 153, 157, 179 Article 2, 57, 106, 152 Article 3, 50, 126, 157, 179 Article 6, 11, 158 Article 8, 126, 138, 158 Article 9, 118, Article 12, 153 incapacity, 114 incompetence, 121 indemnity insurance, 100±101 independent midwives, 36, 42, 43, 100, 161, 197 independent review, 32, 72, 75, 78, 80, 81±2, 197 information, xii, 7, 12, 21, 31, 36, 43, 45, 48, 53, 59, 65, 67, 73, 75, 76±7, 83, 86±7, 100, 103, 114±19, 126±7, 131±43, 147, 149, 154, 156±7, 167, 169±71, 175, 179 birth plans, 127 giving, 114, 136 need to know basis, 131, 138±9, 146, 154 see also confidentiality informed choice, 59, 70 informed consent, 115, 127, 178 interim suspension, 37, 38, 56±7, 177, 184, 197 Internal Professional Advisor (IPA), 75 in utero, 2, 116, 123 in vitro fertilisation (IVF), 145±6

Index Investigating Committee (IC), 56, 57±8, 61, 177, 179, 184 investigation(s), 31, 38-9, 41, 43, 50, 54±9, 65, 68, 70, 73±82, 100, 105, 113, 114±16, 119, 121, 127, 137, 141, 144, 164, 172±5, 179±81, 183, 186, 192±4, 197, 198 management, 54±5, 65, 141, 165, 190 supervisory, 52±5, 70, 83, 85, 172, 174, 176, 179 job description, 102, 151, 171 jury, 15, 45, jury service, 45 judgement(s), 8±9, 10, 12, 15, 71, 74, 81, 86, 89, 91, 92, 99, 102, 109, 110, 115, 117, 119, 122, 183, 186, 194 justice, 10, 11, 14, 74, 95, 136, 170 Kennedy Report, 68 labour, 8, 27, 37, 39, 44, 59, 70, 72, 73, 76±7, 78±80, 85, 87, 88, 90, 91, 95, 99, 101, 102, 103, 106, 115±18, 122, 126±7, 133, 144, 154, 172±9, 180±88, 191±2 lawyer, 9, 12, 14, 15, 16, 98, 100, 104, 109, 117, 185, 192, 194, 197, 198 learning outcomes, 55, 177, 183, 190 legal actions, 131 battery, xii, 114, 119, 127, 131, 141, 178±9, 197, 198 negligence, xii, 8, 11, 12, 54, 71, 85±110, 114±15, 127, 131, 137, 141, 178, 185±6, 190, 195, 197, 198 legal personnel, xii, 17, 123 legal system, 1, 10, 15, 17, 54 civil law, 11±12, 64, 74, 88, 109, 125, 184, 190, 194 England, xi, 11, 16, 18, 25±32, 50±53, 55, 67, 74, 103, 104, 121, 151, 156 N. Ireland, xi, 11, 18, 28±30, 104, 121, 152, 153, 156 public law, 11, 13±14 Scotland, xi, 3, 11, 12, 17±18, 28±32, 74, 89, 121, 151, 153, 156, 197 structure, 11, 13, 22, 31, 33 Wales, 1, 3, 6, 11, 16, 18, 25±32, 67, 74, 104, 121, 151, 156 legislation, xi, xii, 1±7, 9±10, 12, 19, 22, 25±28, 31±40, 44, 45, 48, 67, 68, 101±102, 107, 135, 142, 144, 146±8,

207

152±3, 154, 158±9, 165, 166±7, 170, 198 litigation, xi, 12, 42, 69, 75, 85, 99, 101, 103, 188, 198 time limit, 134, 149±52, 156 writing a statement, 140 local action, 55±6, 177, 183 Local Supervising Authority (LSA), 27, 37, 38, 43, 50, 52±8, 177, 184, 190, 198 Maastricht Treaty, 9 Magistrates' Court, 13±15, 18 `Making a Difference', 33 male midwives, xiii, 31 malpractice, 100±102, 164, 195 management, xi, 15, 31, 35, 37, 42, 48, 51, 54±5, 65±70, 71, 73, 78, 82±3, 90, 96, 99, 103, 128, 133±4, 138, 140±41, 164, 165, 178, 183, 189, 190, 198 manslaughter, 85, 106, 124 material risk, 115, 198 maternity, (see also midwifery), xii, 6, 20±22, 28, 37, 44, 50, 55, 60, 64, 69, 80, 90, 92, 102, 103, 116, 122, 125, 137, 143, 144, 146, 150, 157, 162, 168±9, 170±71, 179, 186 Maternity Alliance, 171 Maternity Allowance, 169 maternity care, 20±21, 80, 122, 125 antenatal, 87, 99, 122, 126, 150 labour, 183, 188 neonatal, 87, 106, 144, 149, 152, 193 postnatal, 144 maternity leave (see also paternity leave), 37, 55, 168 maternity services, 6, 20±22, 92, 102, 103, 116, 125, 144, 150, 157, 186 mediation, 57, 60, 61 medical practitioner, 8, 15, 26, 31, 39, 44, 126, 150 medical records, 78, 134, 138 midwifery care (see also duty of care), 38, 72, 88, 123, 128, 136, 168, 185 Midwifery Committee, 5, 29, 31, 33, 40 midwifery education, 29, 101, 168, 183 Midwives Directive, 9±10 Midwives Rules, xi, 5, 27, 31, 35±43, 44, 51±53, 132, 174, 176, 181, 188 code of practice, 5, 43±5, 51±2, 174, 177, 181, 188 early versions, 27 Ministry of Health, 50

208

Index

minor(s) (consent to treatment), xii, 121±134, 157, 159 misconduct, xi, 16, 27, 30±31, 38, 43, 54±62, 71, 78, 163±6, 177, 179±80, 187, 195, 198 alleged, xi, 31, 39, 54±62, 85, 163, 198 action to be taken, 59, 62 Conduct and Competence Committee (CCC), 57±61, 177, 179, 184 Investigating Committee (IC), 56, 57±8, 61, 177, 179, 184 removal (from Register), 37±8, 56, 60±61, 96, 177, 184, 197, 198 restoration to the register, 27, 59±62 moral right, 116, 125 mortality, 13, 43 multi-track, 13

standard of care, 35, 89±96, 194 notification of birth, 139, 146 notification of intention to practise, 26, 31, 36±7, 43 Nursing and Midwifery Council (NMC), 5, 29, 33, 34±45, 52±62, 88, 100, 128, 131, 142, 143, 151, 174±7, 179, 180, 183, 186 membership, 11, 30, 34, 45

National Boards, 29±32, 53 National Childbirth Trust (NCT), 20, 60, 125 National Health Service (NHS) xi, 16, 29, 32±4, 36, 41, 50, 64±73, 74, 75, 82, 100±103, 109, 124, 138, 142, 150, 161±2, 177 Health Service Commissioner, 74 NHS Trust, 16, 32, 36±8, 41, 52±3, 64±70, 71, 72±83, 98, 100±103, 110, 117, 118, 121, 124, 131, 140±43, 159, 162, 164, 169, 171, 173, 178±80, 185±6, 190±95, 197, 198 vicarious liability, 93, 100±103, 178, 198 Whitley Councils, 162 (see also Health Service) National Health Service Litigation Authority (NHSLA), 103 National Institute for Clinical Excellence (NICE), 64±5, 71±2, 82±3, 97, 99 National Service Frameworks (NSF), 64 natural justice, 11, 14 near misses, 66, 69±70, 83 necessity, and consent to treatment, 119±20, 123±24, 128, 145, 179 negligence, xii, 8, 11, 12, 54, 71, 85±110, 114±15, 127, 131, 137, 141, 178, 185±6, 190, 195, 197, 198 Bolam test, 8, 91±3, 115, 119±20, 178 compensation, 12, 13, 44, 72, 85±6, 93, 98, 99±100, 104, 105, 109, 158, 166, 186, 197 contributory, 100 duty of care, xii, xiii, 69, 86±96, 97±8, 104, 109, 144, 146, 151±2, 178, 185, 190, 193, 197, 198

parental order, 146 parental responsibility, 147, 148, 154±6 Parliament, xii, 2±7, 17±19, 21±2, 29, 30±32, 68, 139, 149±51, 198 parliamentary questions, 7 early day motions, 7 parliamentary select committee(s), 6, 19±21 paternalism, 115, 119, 198 paternity leave, xii, 162, 168±70 Patient Advice and Liaison Service (PALS), 73 Patient Information Advisory Group, 139 patient (see also clients), xii, 14, 16, 27, 41, 49, 56, 65, 67, 68±70, 76, 78±80, 81±82, 94, 100±101, 106±108, 113±21, 128, 132, 134±9, 142±3, 149, 164, 169, 174±85, 188±90, 198 Peel Report, 21 persistent vegetative state, 89, 106±108 personal injury, 12, 99, 108 persuasion, 117 placement order, 155±6, 158 plaintiff, 12, 86, 92, 93, 96, 98±9, 108, 109, 191, 198 postnatal care, 144 Post-registration education and practice (PREP), xii, 37±8, 53, 60, 101 Practice Committees of the NMC, 57±9 Conduct and Competence Committee (CCC), 57±61, 177, 179, 184 Health Committee (HC), 57, 60 Investigating Committee (IC), 56, 57±8, 61, 177, 179, 184 practice, midwifery, xi, xii, xiii, 25±45, 50±62, 64, 69±70, 81, 83, 85±110,

obstetrician, 20±21, 39, 41, 44, 76±7, 79, 91, 95, 114, 120, 151 Ombudsman, xii, 16, 72, 74±83, 85, 110, 131, 138, 164 Orders in Council, 32 ordinary man, 89 Our Healthier Nation, 2

Index 114, 128, 131±3, 137, 140, 142, 159, 172±95 Practice Nurses, 101 precedent, 8±9 pregnancy, 8, 11, 27, 36, 39, 44, 85, 86, 91, 99, 103, 104, 106, 109, 115±16, 120, 122, 126±7, 144, 145±7, 150±52, 154, 158, 168±9 benefits, 146, 166, 170±71 employment rights, 170 PREP (Post-registration education and practice), xii, 37±8, 53, 60, 101 pre-registration students, 44, 56, 83 prescription only medicines, 40 primary legislation, 2±5, 31±2, 107, 198 privacy, 74, 126, 131, 138 Private Members' Bill, 7, 149 Privy Council, 5±6, 32±4 professional body, 15, 34±45, 54±60, 67, 72, 132 professional conduct, 11, 30±31, 35, 42, 54±61, 100, 108, 131, 133, 157, 172±7, 181±4, 188±90 professional indemnity, 100±101 professional law, 43, 48, 57, 88, 96 Professional Register, 5, 30±34, 56±62, 96, 101, 165, 177, 184, 194, 197 professional regulation, 2, 5, 27±32, 37±39, 67, 68, 74 protection of the public, 59 public interest, 6, 140, 169 public law, 11, 13±16 public safety, 38 puerperium, 27, 39, 103, 154 quality of care, 32, 65, 72, 82 Queen's Counsel, 17 race, discrimination, 167 Commission for Racial Equality, 167 reader activity, 22, 45, 62, 83, 110, 128, 142, 159, 171, 195 records, 40, 42, 44±5, 56, 59, 70, 75, 76, 78±80, 82, 99, 103, 110, 123, 132±3, 134±43, 176, 181, 183±5, 187±9 independent midwives, 42±3, 135, 161 record keeping, xii, xiii, 42, 70, 79, 82, 103, 110, 119, 123, 131±4, 142, 158, 174, 178, 181, 183, 185, 189 storage, 42, 65, 103 reflection, xii, 69, 128, 132, 183 refresher courses, 31, 53

209

refusal, care or treatment, 35, 113±28, 172, 175±9 register, professional, 5, 30±31, 33±34, 37±39, 56±62, 96, 101, 156, 165, 177, 184, 194, 197 removal from, 26, 28, 37, 38, 56, 60, 177, 184 (see also NMC) regulation(s), xi, 2, 5, 9, 26±34, 40±62, 65±8, 74, 135, 136, 139, 145±8, 156, 167, 172, 198 religious convictions, 124 Jehovah's Witness, 118 removal from the register, 26, 28, 37, 38, 56, 60, 177, 184 repeal, 2, 5, 32, 136, 153, 156 reports, 4, 6, 9, 13, 20, 60, 66, 70, 72, 74±83, 118, 141±2, 149, 151, 158 reproductive rights, 126 rescuers, 88 research, 7, 29, 50, 85, 97, 127, 134, 142±3, 147±9 residence, 138, 146, 156 responsible body, 89±96 restoration to the register, 27, 59, 60±62 resuscitation, 77, 79, 88±91, 185 return to practice, 38 rights, 1±2, 8, 10, 11, 14, 33, 40, 85, 104, 107, 113±17, 126±8, 136±9, 146, 152, 153, 158, 161, 165±6, 168, 170 risk management, xi, 65, 68±71, 73, 82, 103, 128, 140, 198 Royal College of Midwives (RCM), 20±21, 25, 33, 71, 100, 125 rupture of membranes (ARM), 76, 79, 127 safety, 38, 43, 51, 61, 66, 115, 162, 169±70, 181, 186, 190, 198 Samaritan act, 88, 100, 198 Saving Lives: Our Healthier Nation, 2 Scotland, legal system, xi, 3, 11, 12, 17±18, 28±32, 74, 89, 121, 152, 153, 156, 197 screeners, panel of, 57 secondary legislation, 2, 5±6, 9, 31±40, 45, 167, 170, 198 Secretary of State (SoS), 5±6, 19, 30±34, 67±68, 72, 125±6, 136, 139, 147, 151, 165, 167 Select Committee(s), 6, 19±21 sex discrimination, 29, 161, 167 sexual abuse, 157, 174, 178 single joint expert (witness), 13, 96, 198

210

Index

small claims, 12, 96 social services, 22, 157±8 solicitor, 16, 17, 121, 124, 198 sphere of practice, 39, 176±7, 182 standard of care, 35, 89±96, 194 Bolam test, 8, 91±3, 115, 119±20, 178 statement(s), xii, 9, 26, 42, 55, 75±8, 83, 94, 96, 115, 126, 132±3, 135, 136, 139±41, 142, 151, 158, 161±2, 163±4, 176, 183 of complaint, 75±8 writing, 140 statute, xii, 1, 2, 8, 25, 29, 121, 125, 134, 139, 154, 161, 198 Statutory Dispute Resolution Procedure, 162±4, 171 statutory instrument (SI), 5, 31, 32, 33, 35, 36, 40±41, 135±6, 198 statutory law, 1±2, 7, 9 Statutory Maternity Pay (SMP), 168±9 statutory supervision, xi, 27, 31, 33, 38, 51±3, 65, 67, 70 sterilisation, 108, 119±20 stillbirth, 27, 139±40, 150, 152 storage of records, 42, 65, 103 striking off order, 60±61 supervised practice, 55±8, 183±4, 190, 194, 198 supervision of midwives, xi, 31, 43, 48±57, 70, 198 Supervisor of Midwives, 15, 37, 41, 48±58, 62, 71, 83, 95, 120, 135, 139, 140±43, 157, 170, 173, 176±7, 179, 181±3, 188, 190 supported practice, 55, 183, 198 surrogacy, 2, 4, 144±7, 153±5, 158 suspension, 31, 37±9, 56±60, 163, 177, 180, 184, 186, 193, 197, 198 from duty, 38±9, 58, 180, 186, 193, 198 from practice, 26±8, 31, 37±9, 56, 58, 177, 184, 198 order, 6, 61

teenagers (as minors), 157 termination of pregnancy (TOP), 11, 150±53, 159 conscientious objection, 108, 150±51, 153 duty of care, 151±2 late gestation, 150±51 therapeutic privilege, 115 tort (civil wrong), 11±12, 108, 114, 178, 197, 198 treaties, 9±10 treatment, xii, 34, 35, 39, 41, 50, 67, 71, 72, 89, 101, 103, 106±108, 113±28, 131±40, 144±58, 161, 168, 174±5, 179±80, 189, 193±4, 197 Treaty of Amsterdam, 10 Treaty of Rome, 166 trespass, to the person, 11, 85, 106, 114, 127, 178±9, 197, 198 tribunals, 15, 164, 167 United Kingdom Central Council (UKCC), 5, 11, 30±44, 50±52, 59 unfair dismissal, 15, 162, 165±6, 170 unsafe practice, 57, 96, 186 vicarious liability, 93, 100±103, 178, 198 Warnock Report, 4, 145 welfare of the child, 116, 153, 157±8 Welsh Assembly, 6 White Paper, 2±3, 22, 32, 64, 66, 71 Wilson Report, 72 Winterton Report, 6 withholding and withdrawing treatment, xii, 106±108 Woolf Report, 12, 96 wrongful birth, 108±109, 198 wrongful dismissal, 164 wrongful life, 89, 108±109, 198

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