The High Court has today upheld the Nursing and Midwifery Council’s position in a long-running dispute over indemnity arrangements for independent midwives.
As a result, of the ruling, the midwives have lost their application for a judicial review to take place into a decision by the regulator that put their registration at risk.
“In my judgment, this was a proportionate and lawful step for the registrar to take”
Following a three-day hearing, a senior judge has agreed with the NMC that indemnity arrangements previously relied upon by some members of Independent Midwives UK (IMUK) was inappropriate.
Since 2014 it has been a legal requirement that all registered healthcare professionals have an indemnity arrangement in place, which sparked an initial investigation into IMUK by the NMC.
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This time last year, the regulator’s registrar concluded that some IMUK members were relying on an insurance scheme that had inadequate funds to settle any potential clinical negligence claims.
The midwives involved were members of Lucina, which was a not-for-profit private company wholly owned by its members who also had to be members of IMUK.
Members of IMUK and Lucina were eligible to join Lucina’s discretionary professional indemnity scheme. There was an annual subscription fee of £750, plus £400 per birth attended.
It provided member midwives with indemnity cover against damages arising from successful negligence claims made against them, in their capacity as sole traders.
“I was clear that the indemnity arrangement relied upon by some independent midwife members of IMUK was inappropriate”
Cover was provided for ante-natal, intrapartum and post-natal care. It was not an insurance policy, and so there was no contractual obligation to meet a claim.
Benefits were paid at the “sole and absolute discretion of the board” of Lucina, and were expressly limited by reference to the total funds available to the scheme. Aside from that, there was no financial limit on the benefits payable.
The NMC concluded that the cover provided was not appropriate and said IMUK members would be removed from its register by 10 January 2017 unless they signed a declaration that they would not rely upon the scheme for attending women in childbirth, and that they had appropriate alternative cover in place. All members of IMUK gave the signed declaration.
But, in March this year, IMUK filed a legal challenge against the NMC, arguing that its stance on professional indemnity was preventing the organisation’s 80 members from attending births.
Further legal manoeuvrings between the two sides followed, with permission given to apply for a judicial review in May. High Court hearings were held on 18 and 19 October, and also 15 November 2017, but the final judgement was not announced until today.
“We believe that women deserve real continuity of care, respect and informed choice”
In reaching her decision, Ms Justice Lang said the NMC’s decision was lawful, fair and proportionate and that she was right to treat the protection of the public as her overarching concern.
The NMC had said the indemnity arrangements did not provide appropriate cover for midwives attending births, as it would be unable to meet a claim for catastrophic injury such as cerebral palsy.
Where harm was caused by the negligence of a midwife, substantial damages may be awarded to reflect the fact that some of the injuries suffered at birth may leave babies with permanent physical and mental disabilities requiring a lifetime of care, noted the regulator.
The judge recognised that, while the risk of a high value claim was low, the risk was real and the nature of the risk was very severe, highlighted the NMC.
Backing the NMC’s original action, Ms Justice Lang said: “In my judgment, this was a proportionate and lawful step for the registrar to take, bearing in mind the risk to the public of the midwives continuing to practise on a self-employed basis with inappropriate cover.
“She limited the scope of the declaration to higher risk intrapartum maternity care, enabling midwives still to rely upon the Lucina scheme for lower risk ante-natal and post-natal care,” she said.
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Responding to the judgment, NMC chief executive and registrar Jackie Smith said: “The Judge clearly recognised that the NMC conducted a thorough and fair investigation and took the appropriate action to protect the public.
“We have a responsibility to make sure that all women and their babies are provided with a sufficient level of protection should anything go wrong,” said Ms Smith.
“I was clear that the indemnity arrangement relied upon by some independent midwife members of IMUK was inappropriate and did not provide the level of protection that women and their families need,” she said. “I’m pleased that the judge agreed with this decision.”
She noted that it had been a legal requirement since 2014 for all healthcare professionals, including nurses and midwives, to have an indemnity arrangement in place.
“The government brought in this requirement to ensure that there was adequate redress for women and families in the event of damage or injury caused by any failings in midwifery care,” she added.
In a statement published on its website, IMUK said it was “devastated” and expressed its “deepest sadness” to its members in the wake of the High Court ruling.
“Sadly, we must accept that decision since we don’t have the resources to take this legal action any further and the advice is that it is unlikely to be successful,” it said.
“We believed strongly in our case against the NMC, which was why we brought this judicial review,” it said. “We believe that women deserve real continuity of care, respect and informed choice – including being able to choose their midwives.”
It added: “We also believe that the future lies in creating an insurance product for midwifery care that is women centred, that does not restrict women’s choices and that is ideally owned and run by women for women so that it is affordable for as many women as want it.
“IMUK will now evaluate the ideas and options available to us and develop these for the new year,” said the statement.