Home Birth and the Law

Jonathan Montgomery

25 March 2006

Women’s Rights

• Birth rights and the NHS– The nature of ‘rights’– Present, past and future

• Relationships with professionals

• Challenging the mythology of obstruction

Two Models of Rights to Services

• Provider Based– Duties to provide

services

– Accountability for decision-making

– Institutionally shaped

• Public service model

• Women-centred– Rights to services

– Vindication routes

• Consumer choice & market model

Birth Rights: NHS Care

‘a comprehensive health service designed to secure improvement(a) in the physical and mental health of the people…(b) in the prevention, diagnosis and treatment of illness.’

Including ‘facilities for expectant mothers’

(National Health Service Act 1977)

Duties or Rights?

• the NHS has to provide only what is ‘necessary’ to meet ‘reasonable requirements’

• English judges think – resource allocation is for parliament – clinical priorities are for doctors

A Lost Legal Right to Home Birth

• National Health Service Act 1946, s 43– Obligation to secure provision of certified midwives

• NHS (Amendment) Act 1949, s 22– ‘services in their homes or certified midwives before

and during childbirth…’

• Health Services and Public Health Act 1968, s10– Enough midwives to provide

‘all services reasonably necessary’ ‘in their homes’

– No specific mention of births

Reconstructing ‘Rights’: Maternity NSF

• range of ante-natal, birth and post-birth care services available locally constitutes real choice for women (including home births)

• Local options for midwife-led care will include midwife-led units in the community or on a hospital site, and births athome for women who have been appropriately assessed

Draft NHS Act 2006

Clause 3(1) ‘… such services and facilities for the care of pregnant women…as [the Secretary of State] considers are appropriate as part of the health service.’

What if it was …

‘… such services and facilities for the care of pregnant women…as [the Secretary of State] considers are appropriate as part of the health service (including support for birth at home).’

Women’s Rights: Relationships with professionals

• To veto proposed care– withhold consent– if competent

• To refuse to go to hospital

• To discharge themselves from hospital

• To non-negligent advice and care

Capacity to Consent

• comprehension of nature, purpose and effects of care (or refusing it)

• weighing it up so as to make choice

• right to choose irrationally

• problems of fluctuating capacity

Mental Capacity Act 2005 s 3• Capacity unless unable to

– Understand relevant information• Including foreseeable consequences

– Retain that information– Use or weigh that information in making the

decision– Communicate decision (by any means)

• Fluctuating capacity

So What About the Baby?

• Usually a false conflict

• Legal rights through the mother

• Cannot override competent woman’s choice in interests of baby

• Persuasion not coercion

The Midwife’s Role

• To respect women’s rights

• To act as a responsible midwife– to assess and advise on care– to deliver proper care (including declining to

act unprofessionally)– to refer emergencies abnormalities

outside current sphere of practice

Outline of Negligence Law

(1) Responsibility for ‘victim’ of mishap

(‘duty of care’)

(2) ‘Standard of care’ not met

(3) Injury caused by lapse in care

The Bolam test

a doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art

GP Maternity Services

• What do GPs actually undertake to do?– GP contract does not cover birth itself even

with ‘additional’ maternity service clause– Emergency services ‘essential’

• The standard of care– ‘battle conditions’– delegation & referral (transfer)– ‘GP obstetricians’ ?

The Litigation Myths

• Litigation is increasing: not true

• Litigation is a financial problem: misleading– Collective & individual exposure

• The law forces poor practice: not true

• Home births are more risky: not true

0

1000

2000

3000

4000

5000

6000

7000

8000

96/7 97/98 98/99 99/00 00/01 2001-2002

2002-2003

2003-2004

Claims Reported to NHSLA

Source: Hansard Written Answer 28 June 2005

012345678

96/7 97/98 98/99 99/00 00/01 2001-2002

2002-2003

2003-2004

Provision for Clinical Negligence (£bn)

Source: Hansard Written Answer 20 July 2005

% of doctors by grade who would insist on EFM in certain circumstances (Symon 1998)

0

20

40

60

80

SHO

Reg

SG

SR

Cons

% of midwives (by grade) who would insist on EFM under certain circumstances (Symon 1998)

0

10

20

30

40

50

60

70

80

E

F

G

H

I

Manager