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Chappell on Midwives and Regulation

2 Feb, 17 | by Iain Brassington

Richard Yetter Chappell has drawn my attention to this – a blog post in which he bemoans the Nursing and Midwifery Council’s rules about indemnity insurance, and the effects that they’ll have on independent midwives.  (I’d never heard of independent midwives – but an IM – according to Independent Midwives UK – is “a fully qualified midwife who has chosen to work outside the NHS in a self-employed capacity”.)  In essence, what’s happened is that the NMC has ruled that the indemnity cover used by some IMs – around 80, nationwide, according to some reports – is inadequate; these 80 IMs (out of 41000!) are therefore barred from working.

I’ve got to admit that this seems like a bit of a storm in a teacup to me.  For sure, there may have been infelicities about the way that the NMC handled its decision.  That may well be unfortunate, but it may not be all that much to get excited about.  However, Chappell makes two particularly striking points.  The first is his opening claim, in which he refers to this as “a new low for harmful government over-regulation”.  Well, it’s not really government overregulation, is it?  It’s the NMC.  Governing bodies are not government.  And whether it’s overregulation at all is a moot point: we need more information about what the standard is by which we should assess any regulation.  That leads us to the second striking thing that Chappell says, to which I’ll return in a moment.  Whether it’s harmful is also a moot point.  I mean, it may be true – as he points out – that the decision will have an undesirable impact on the relationship between some women and their chosen midwife.  But that won’t tell us anything about whether the policy is desirable all told.  It’s certainly not enough to warrant calling it “unethical” – and to dub something unethical is not a moral argument.

The second striking thing is this:

It’s arguably wrong for the law to require indemnity insurance of independent midwives at all: The costs are of course passed on to clients, and it’s not obvious what legitimate interest the state has in forcing expectant parents to pay for such cover.  I understand that in previous decades clients of independent midwives could just sign a waiver indicating that they wished to have midwifery care without such indemnity cover in place.  I would prefer to still have that option.  So I think the law is wrong.

That seems to me to be somewhat questionable.  The cost being passed to clients strikes me as being neither here nor there: if you choose a non-NHS midwife, them’s the breaks.  And as for the legitimate interest the state has in forcing expectant parents to pay for the cover: well, again, there’s a lot being smuggled in under cover of the word “legitimate”.  It might be paternalistic of the state to require this; but unless you think that all paternalism is so self-evidently wrong as not to require further argument to that effect, there is more that can and should be said.  It might be that paternalism is at least sometimes wholly justified, and that this is one such case.

But even if you are a fundamentalist about paternalism, it strikes me that allowing women to waive indemnity cover misses an important aspect.  Admittedly, I’m not up to speed on indemnity insurance or – frankly – midwifery; but it strikes me that there’s at least two parties in a natal context whose welfare might be seriously jeopardised by a mistake: the mother, and the child(ren) being born.  Therefore there’s at least two parties who may have an interest in whether or not the midwife is indemnified.  A waiver may be foolish, but if you’re only being a fool to yourself… well, fine.  Signing a waiver on behalf of the child-to-be, though, seems to be qualitatively different.

On top of that, one might want to know more about the context of the waiver.  Chappell points out that there’s  a relationship between midwife and woman that’s important to preserve.  Fair enough.  But, given the woman’s investment in the relationship with a particular midwife – and for much of Chappell’s position to be compelling, we have to accept that it’s a relationship of a certain sort, with rather a significant investment from the woman – may it not be the case that even if she does sign a waiver, she does so in a Hobson’s choice sort of context?

Or have I missed something important in all of this?

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  • Hi Iain, thanks for sharing my post. I do think you’re missing some important points.

    First, I think it is unduly dismissive to suggest that because IMs are few in number (compared to the 41k NHS midwives), it is somehow not important if they are unjustly deprived of their livelihoods, and their current clients (several hundred women) have their birth plans severely disrupted without due reason. To suggest that this is “not much to get excited about” seems rather uncompassionate. (Personally, I think it entirely reasonable to be upset that my wife may not get the maternity support that we were expecting. And it is certainly reasonable for our midwives to be upset that regulators are depriving them of their livelihoods.)

    Now, of course we need to assess whether the NMC’s decision was indeed unjust (unethical, constitutive of “over”-regulation, etc.), which requires some attention to the particular details of the situation.

    I outlined several reasons in my post for thinking that it was unethical. In particular, I flagged (i) the significant harms of disrupting women’s birth plans during what is already potentially a very anxious time in their lives, resulting from the NMC’s needlessly rushed implementation of their decision; (ii) the decision on its merits is straightforwardly wrong as its harms so drastically outweigh the benefits: it reduces women’s autonomy (esp. access to continuity of care and the option of a homebirth, as NHS midwifery care does not offer the former and is often unable to facilitate the latter due to staffing shortages) without any corresponding benefits that could justify these harms; and (iii) the NMC is violating its own guidelines (in overriding the judgments of practitioners and their indemnifiers regarding what kind of indemnity cover is appropriate to their practice).

    You haven’t really engaged seriously with these considerations, except to suggest that “maybe” these harms are all justified somehow (?).

    So, let’s try to advance the analysis a bit. What might justify the harms? The NMC claims that they are acting in the service of “public safety”, suggesting that we clients of IMs are in an “unsafe” position if we can only sue our midwives for a large amount, rather than an even larger amount, in the event that we are feeling litigious following a mistake being made during labour. But this is patently absurd. To have a greater degree of indemnity cover just isn’t that important. It doesn’t actually protect us from anything bad happening, after all.

    This is further explained in my follow-up post: http://www.philosophyetc.net/2017/01/medical-indemnity-protection-or.html

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