Health Care and Associated Professions (Indemnity Arrangements) Order 2014

Baroness Brinton Excerpts

Monday 30th June 2014 Grand Committee

[Baroness Cumberlege (Con)]

I declare an interest as a fellow of the Royal College of Obstetricians and Gynaecologists, a vice-president of the Royal College of Midwives and a patron of the National Childbirth Trust and Independent Midwives UK. I have other interests that are in the Lords’ register. I thank my noble friend for introducing this statutory instrument so clearly and for meeting the noble Lord, Lord Hunt, and myself, when we discussed the issue of independent midwives.

Draft statutory instruments are not usually a very gripping subject, but this one is because it affects the livelihood of so many people. It is therefore being introduced as an affirmative resolution. Not many statutory instruments, when enacted, will ensure that a professional is denied the right to practice—denied their livelihood. However, I start from the premise that every practitioner should have professional indemnity insurance. Some independent midwives are possibly the only group reluctantly acting without it but not only do they recognise the need for it, they want it and are prepared to go to great lengths to achieve it. This statutory instrument has concentrated minds and focused on the practicalities to achieve it, and from that point of view I welcome it.

It has been a struggle because insurance bodies draw no distinction between midwifery care and obstetric care, and of course the service given by each profession is very distinct. Obstetric treatment is very often a high risk activity, whereas midwife care is much less so. Successive Governments have adopted a policy that women should have choice—choice in healthcare but particularly choice in maternity services. This policy has been very widely welcomed by the Royal College of Obstetricians and Gynaecologists, the Royal College of Midwives and the National Childbirth Trust, which have listened to women and have fought fairly long and hard to achieve this choice. All the evidence that they and others have gathered shows that women and their partners want choice. After all, there is nothing more important in life than giving life and bringing up the next generation.

Over the years, choice has been eroded thanks to the closure of maternity units, but in some places midwife-led units or birth centres have replaced them. They are often under threat as well. I welcome midwife-led units because they are another form of choice but I regret the diminution of home births because that is a choice denied. I ask my noble friend: how many home birth services in the NHS are on temporary hold and how many have closed? I know that they are very detailed questions and I would welcome a written reply if that suits my noble friend better than responding now. I am asking these questions because Independent Midwives UK provides for home births. That is a government policy and one that has been strongly endorsed by NICE. Independent Midwives UK provides continuity by a named midwife throughout antenatal care, birth and postnatal care—another government policy. Throughout the NHS this has proved to be pretty unachievable because community midwives are drawn into the acute services whenever there is a shortage, and because there is frequently a shortage it happens frequently.

The department’s new definition of continuity is co-ordination. A named midwife should co-ordinate the care, as my noble friend said previously. We should ask women what they think. Is co-ordination the same as continuity? Of course it is not, when in extremis women cannot even get their co-ordinator on the telephone 24/7 but they can with an independent midwife. Do they build a relationship with the co-ordinating midwife, assisting at that seminal moment of giving birth? No, because she is not there; she is too busy co-ordinating.

Independent midwives in all their forms—as social enterprises, employee-owned organisations, provident industrial societies with “bencom” status and so on—want to provide choice, continuity and care for women both in the independent sector and for the NHS. They are based in their communities and many provide services for vulnerable women, asylum seekers, those with mental health problems and so on, on a pro bono basis, but like the rest of us they cannot live on fresh air. They are seeking commissions with clinical commissioning groups. They are working towards direct referrals from GPs who welcome the continuity of knowing the midwife responsible for a mother who needs advice and support. Can my noble friend suggest ways in which the Government could support independent midwives, who are the professionals who not only support the Government’s policy but are the professionals who actually carry it out?

The NHS mandate, which sets the agenda for NHS England and which my noble friend and his ministerial colleagues shape, is an opportunity to ensure that alternative choices are there for women and their partners. Will he encourage the ministerial team to focus on this issue and enable independent providers of services to thrive, thereby enhancing government policies, giving women choice and providing the continuity that they seek?

In closing, I pay tribute to the Nursing and Midwifery Council, which has taken a very measured view of this statutory instrument, has listened and has tried to meet the needs of all concerned, amending its guidance as necessary. I look forward to my noble friend’s reply, in writing if necessary.

[Baroness Brinton (LD)]

My Lords, I completely endorse all the points made by the noble Baroness, Lady Cumberlege, and I am glad that there has been some give from the council to try to move this difficult issue forward.

I want to make a slightly different point. In these febrile days, when everything in the EU is damned, it is most welcome that this regulation comes from a new directive that is going to give patients across the EU the security of knowing that there will be indemnity and insurance available in every state. It may not be directly comparable but there will be something there. I am pretty sure that this will not hit the headlines but I see it as a major benefit to those of us who travel in Europe, as well as those coming to the UK. It is the sort of thing that is completely hidden from the headlines; it should not be.

On the difficult issue of indemnity insurance for midwives, I have been wondering, having come late to this debate, whether or not there is scope for NHS England, the regulatory councils and the insurance councils to try to work better together. The financial services industry talks frequently about the problems of insuring a very small service. This clearly is that, and it does not fit into an ordinary framework. Yet the midwives have been through exactly the same training as their counterparts elsewhere in the NHS and I am sure that clinical commissioning groups will demand that they have insurance cover. That is absolutely right. Therefore, the problem is in looking at this small cohort of midwives rather than seeing them as part of the greater group who have qualified under the same professional regulation.

I ask the Minister whether discussions will continue to ensure that no one could be denied service simply because they may not fall neatly into one of the categories. Again, I congratulate the Nursing and Midwifery Council on at least trying to find a solution to this difficult problem but it should not be said, as it is in paragraph 8.3 of the Explanatory Memorandum, that there is a balance that has to be made here and, as it affects only a few people, we should perhaps be prepared to let it go. I do not believe that we should.

[Baroness Emerton (CB)]

My Lords, I have one or two points to make. It is not very often I disagree with the noble Baroness, Lady Cumberlege, but we really have to focus on the safety of mother and child.

I am talking about independent midwives only, not the whole directive, because I support the directive. I think there is a problem in that the midwifery profession generally is the most regulated of the nursing professions. They are required to be relicensed every year. They are under a supervisory midwife. They are, if anything, more supervised than the nursing profession. I chaired the professional conduct committee of the previous regulatory body and the midwifery cases that came forward were, in the main, where things went wrong with independent midwives. Mistakes are made—I am sure we all accept that—but the problem is that very often they lack support out in the community.

In a situation where things go badly wrong, there is the issue of who is going to pay the compensation to the mother or baby who has to be cared for for many months or even years. The other noble Baroness—I am afraid I cannot remember her name—said that we ought to be looking at something to help the independent midwives, but how do we help a very small group among a very large number of midwives and try to support them when very often the compensation is enormous?