A group of independent midwives have filed a legal challenge against the Nursing and Midwifery Council in a dispute over professional indemnity that is preventing them from attending births.
Legal proceedings were served on the NMC by Independent Midwives UK (IMUK) on 17 March, which claimed the move was to “ensure women can access the care and support they need at the most important time of their lives”.
Members of IMUK who have not secured alternative indemnity provision to that disputed by the NMC are currently unable to attend clients during labour.
“This continues to have a devastating impact on our members’ livelihoods”
The group of self-employed midwives argue they provide a “vital alternative choice for women” during a time when the NHS is “facing a crisis in midwifery services”.
They highlight that they are trained to “exactly the same standards” as NHS midwives and work to support women with the “very best evidence-based care on a one-to-one basis”.
Their application for a judicial review follows an NMC decision in January that IMUK, which has around 80 members, was using an inappropriate indemnity scheme.
An investigation by the regulator in December concluded that IMUK members were relying on an insurance scheme that had inadequate funds to settle any potential clinical negligence claims – a point disputed by IMUK, according to one of its representatives.
Since 2014 it has been a legal requirement that all registered healthcare professionals have an indemnity arrangement in place.
In a statement on the legal challenge, IMUK said the NMC had ruled that its indemnity scheme was no longer sufficient, despite it having been “deemed suitable by two independent actuaries”.
“We believe that the NMC’s registrar made the correct decision in this case”
The organisation also highlighted that it had chosen to use an indemnity product that “mirrors the scheme used by the NHS”.
“This [NMC] decision is not based on evidence nor on our previous safety record,” it said. “We have never received a complaint regarding our indemnity cover from either a client or another midwife.”
It added that, since January, it had been “doing everything” it could to put in place alternative arrangements to ensure its clients could “still safely enjoy the birth experience of their choice”.
But it said: “As things stand, our members have been ordered by the NMC not to attend clients in labour, which has affected over 100 women. This continues to have a devastating impact on our members’ livelihoods and robs women of their right to choose how and where they give birth.
“The impact of this ruling extends far beyond IMUK members and their clients. It undermines and threatens the entire midwifery profession and the rights of women to choose how they give birth,” said IMUK.
“We have been advised that this ruling is unlawful and an urgent legal challenge has been filed; the court is being asked to look at whether what the NMC has done is lawful and to rule that our indemnity cover is appropriate,” it stated.
“A number of women now believe their only choice is to give birth without any medical assistance”
In response, an NMC spokesman confirmed that an application for judicial review has been made “in relation to a recent decision by the NMC’s registrar about the appropriateness of the indemnity arrangements relied upon by midwife members of the organisation Independent Midwives UK”.
He reiterated that, in December 2016, the NMC had found that the indemnity scheme used by independent midwife members of IMUK was ”inappropriate”.
“The NMC’s investigation found that in the event of a claim for damages for a range of situations including catastrophic injury such as cerebral palsy, the scheme would not have sufficient funds to pay,” he said.
He added: “We believe that the NMC’s registrar made the correct decision in this case after proper and thorough consideration of the information available. As legal proceedings are now underway, it would be inappropriate to provide any further comment on this matter.”
Speaking on IMUK’s attempt to bring a judicial review against the NMC, the human rights in childbirth charity Birthrights said it supported the actions of the independent midwives.
Independent midwives begin legal challenge against NMC
Source: Gabrielle Hall
Its chief executive Rebecca Schiller said: “We believe that the NMC’s decision has breached the rights of midwives to practise their profession and women to choose their care provider.”
Ms Schiller said she had previously told the NMC that she did not believe that its actions in relation to the IMUK had been those of a “responsible regulator”.
She claimed the NMS’s decision was already having “very damaging consequences” and that it had “jeopardised the safety of hundreds of women and babies”.
“Faced with the absence of any comparable NHS service in their area, or following previous traumatic experiences with local maternity services, I know of a number of women who now believe that their only choice is to give birth without any medical assistance,” said Ms Schiller.
She added: “The nature of this decision is also in direct opposition to the positive direction of current maternity policy, which has recognised how fundamental women’s decision-making and autonomy is to safe, quality services.”