In July, the Department of Health announced that it will be changing the regulatory system for midwives. What impact will this long-overdue reform have on patients and on midwives themselves?
The current system for regulating midwives is different from that of all other health care professionals.
Doctors and nurses, for example, have a relatively simple regime. Each profession is regulated by a single regulatory body (such as the GMC or NMC), which is responsible for upholding standards in that profession.
This includes investigating allegations against registered health care professionals and the power to prevent them from practising if they are found to be not fit to do so.
As well as being regulated by the NMC, midwives have hitherto been subject to an extra layer of regulation, known as statutory supervision.
There is a Local Supervising Authority (LSA) in each of the four UK countries. LSAs, through LSA Midwifery Officers (LSAMOs), supervise midwives in their area. All complaints or incidents about midwives are reported to LSAMOs, who report to the NMC on an annual basis.
The LSAMOs conduct their own investigations into complaints (in addition to any investigation by the provider, such as the NHS Trust). The LSA can directly impose a sanction and can refer a midwife to the NMC.
Concerns with this system were highlighted in the 2013 investigation into failures in maternity care at Morecambe Bay. The report stated that “The Local Supervising Authority system for midwives was ineffectual at detecting manifest problems at the …Trust”, and it was considered that this was “not unique to this Trust”.
Jeremy Hunt has rightly recognised that the system of local regulation is no longer fit for purpose. It is based on a model established in 1902 when midwives worked as independent practitioners.
Given that today only a very small number of midwives operate as independent midwives, a more streamlined regulatory regime is indeed overdue.
The changes proposed by the Department of Health will bring the regulation of midwives into line with other health care professionals by separating supervision and regulation.
The NMC’s current responsibility for statutory supervision will be removed and the NMC will instead have direct control of regulatory decisions about midwives. The removal of the additional tier of regulation will mean that the NMC has sole responsibility for investigating complaints against midwives and deciding whether to remove them from the register.
This must surely be a good thing.
The purpose of regulating health care professionals is to protect the public, and regulatory bodies must take responsibility for this.
The current system for regulating midwives effectively allows part of the NMC’s responsibility to be “outsourced” to LSA/LSAMOs. This means that there is a lack of independent oversight. There is also a potential for conflict given that the current model relies on regulation by peers, rather than by an independent regulatory body.
The NMC is, of course, not infallible, but it is preferable for the investigation and adjudication of fitness to practise cases to be undertaken by an independent body and for decisions about a midwife’s fitness to practise to be made by a panel of the NMC (which will include both professional and lay members) rather than by an individual professional.
The current system of two parallel investigations (one by the LSA and one by the provider, such as an NHS trust) is confusing for the public: it is difficult for service users and their families to understand the dual processes.
The reforms should mean that there is greater consistency and transparency for the public, patients and healthcare professionals. It should also mean that allegations are considered and action is taken more quickly by the NMC.
It will remain to be seen whether there is an increase in NMC referrals when the changes come into effect. However, if the reforms mean that issues that affect patient care are dealt with more quickly, efficiently and fairly, it can only be a change for the better.
Lucy Williams is a regulatory lawyer specialising in the healthcare sector at Kingsley Napley LLP and can be reached on firstname.lastname@example.org