Is this the end of the road for Independent Midwives delivering babies at home?

Marcia C Persaud PhD, Barrister at Goldsmith Chambers (Temple) London reviews R (Beety and ors v Nursing and Midwifery Council) and ors [2017] EWHC 3232 (Admin).

1. Following the judgement of R (Beety and ors v Nursing and Midwifery Council) and ors [2017] EWHC 3232 (Admin), handed down on 12 December 2017, Mrs Justice Lang held that the Registrar’s decision to prevent midwives using Lucina Ltd to provide indemnity cover for their practice for intrapartum care was not unlawful.  She also held that the Registrar, having concluded that cover provided by Lucina was not appropriate, decided that Independent Midwives UK (“IMUK”) midwives relying upon the Lucina scheme for any aspect of intrapartum care (not antenatal and postnatal care) would be removed from the register unless they signed a declaration that they will not rely on Lucina for any such aspect of their practice. Mrs. Justice Lang found that was a proportionate and lawful step for the Registrar to take bearing in mind the risk to the public of midwives continuing to practice on a self-employed basis with inappropriate cover.
2. Justice Lang further stated [para 157]:

‘I accept that the Registrar’s decision prevented the midwife Claimants from continuing to provide intrapartum maternity care unless or until they could obtain appropriate indemnity cover, as the Lucina scheme could no longer be relied upon for this purpose. This did impact adversely on their existing practices and clients. However, I consider that this was justified on proportionality grounds, bearing in mind the risk to the public of the midwives continuing to practice on a self-employed basis with inappropriate cover. It was proportionate to limit the scope of the restriction to higher risk intrapartum maternity care, enabling midwives still to rely upon the Lucina scheme for lower risk ante-natal and post-natal care or under the Royal College of Nursing indemnity scheme.’

3. The Nursing and Midwifery Council (“NMC”) is the statutory regulator of nurses and midwives in the UK, established as a body corporate under article 3(1) of the Nursing and Midwifery Order 2001 (“the NMC Order”). Its principal functions are to establish and maintain professional standards for nurses and midwives (article 3(2)). Its overarching objective is the protection of the public (article 3(4)).
4. The Lucina scheme was a not-for-profit private company wholly owned by its members, who had been members of IMUK. It provided member midwives with indemnity cover against damages arising from successful negligence claims made against them as sole traders. The cover was provided for antenatal, intrapartum (i.e. care during labour) and postnatal care. Mr. Graham was a director and sole guarantor. Lucina could only put forward one guarantee in the sum of £250,000, which represented Mr. Graham’s assets, and backing the guarantee was his family home and his pension fund.
5. The Registrar’s fundamental concerns were that the Lucina scheme does not have sufficient financial resource to cover its liabilities having regard to nature and risks. However remote the risk of an intrapartum catastrophic event occurring, the scheme must have enough funds in place to ensure that they can meet the cost of the claim.
6. This case was brought by independent midwives (the Claimants midwives), who applied for judicial review of the decision of the Registrar of the NMC, dated 20 December 2016, that the indemnity arrangement providing cover to members of  IMUK by Lucina was not “appropriate” for the purposes of article 12A of the NMC Order and their registration with the NMC.
7. EU Directive 2011/24 (“the Directive”) requires each member state to put in place appropriate professional liability insurance, or a similar arrangement, for medical treatment provided on its territory. The Directive was implemented in the UK by the Health Care and Associated Professions (Indemnity Arrangements) Order 2014. It amended the NMC Order to add a new requirement for nurses and midwives to have indemnity arrangements in place.
8. Article 12A(1) of the NMC Order provides that a practising registrant must have “an indemnity arrangement which provides appropriate cover”. Paragraph (3) defines “appropriate cover” for a nurse or midwife as “cover against liabilities that may be incurred in practising as such which is appropriate, having regard to the nature and extent of the risks of practising as such”. A registrant who fails to comply with this requirement may be refused registration or removed from the register or may be subject to a charge of impairment of fitness to practice by reason of misconduct.
9. In the event, IMUK members, including the midwife Claimants, were informed that they would be removed from the NMC register by 10 January 2017 unless they provided a signed declaration that they would not rely upon the Lucina scheme for any aspect of their practice which involved attending women in childbirth (as opposed to pre-natal and post-natal care) and that they had appropriate alternative cover in place. All members of IMUK gave the signed declaration.
10. The Claimant midwives sought to challenge the Registrar’s decision by way of Judicial Review rather than an appeal on merits. Three grounds were pleaded.

(1) Error of law

10. The Registrar of the NMC misapplied the statutory test in article 12A(1) and (3) of the NMC Order 2001 by failing to take proper account of the “nature and extent of the risks of practising”.

(2) Breach of EU rights and Human Rights Act 1998

11. The Second Claimant, who was a German national, was exercising her rights under Articles 49 and 56 of the Treaty on the Functioning of the European Union (“TFEU”) and Articles 15 and 16 of the EU Charter on Fundamental Rights (“the Charter”) to pursue self-employed activities in the UK. The First and Third Claimants were exercising their EU rights to offer services to other EU nationals in the UK. Those rights were infringed by the NMC’s decision which prevented them from pursuing their self-employed practices.

(3) Failure to take account of material considerations and/or errors of fact

12. The Registrar failed to take into account relevant considerations when making her decision and/or made errors of fact.
13. It was noteworthy the Claimants’ skeleton arguments departed from the pleaded grounds and instead settled on (1) Error of law and Wednesbury unreasonableness and (2) Infringement of TFEU, the Charter, and A1P1.
14. Justice Lang allowed the late changes as they were closely related to the pleaded grounds and matters were fully addressed in the NMC’s skeleton argument.

Discussion

15. This case highlighted that indemnity insurance has to be appropriate to cover the risks of intrapartum care. Although the risk is low it remained a real risk especially if transfer, in an emergency situation, from home to hospital was delayed  The Registrar’s concerns were that should the independent midwife be sued in negligence, the client will not be properly compensated due to lack of financial means.
16. Historically, independent midwives sought indemnity cover from the Medical Defence Union, Royal College of Midwives and the Royal College of Nurses. However, The Royal College of Midwives withdrew indemnity cover from independent self-employed midwives in 1994; the Medical Defence Union no longer provided cover after 2002; the Royal College of Nursing offered an indemnity arrangement to self – employed midwives for ante-natal and postnatal care but not intrapartum care. The RCN capped the level of cover per claim to £3 million.
17. Therein lies the dilemma, the independent midwives can still use the Lucina Scheme for antenatal and postnatal care but not for intrapartum care, which is riskier. The IMUK argued that independent midwives provide continuity of care providing and developing effective communication with the mother, giving her responsibility for the choices to be made, the risk of a claim for negligence was greatly reduced, in comparison with an NHS delivery.
18. The question is whether patients’ choice for home births by independent midwives be eroded? Unless the risk identified is covered by a robust underwriter for independent midwives, he or she cannot provide intrapartum care.
19. Complete maternity care i.e. antenatal, intrapartum and postnatal care is provided by the NHS and private maternity hospitals, and women can choose to have homebirths under the NHS.

---