Health Care and Associated Professions (Indemnity Arrangements) Order 2014

Baroness Emerton Excerpts

Monday 30th June 2014 Grand Committee

[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?

[Lord Hunt of Kings Heath (Lab)]

My Lords, I am grateful to the noble Earl for his introduction to the order, following, as he said, the Finlay Scott review. The Opposition have no argument with the principle of the order, but I want to raise with the Minister some of the practical consequences of its implementation. The Government’s consultation states that about 4,200 self-employed nurses and therapists may be required to obtain indemnity cover. For most concerned, the insurance premium is modest. The Department of Health’s consultation estimate was that for nurses the insurance premium would be £195 per annum, and for therapists between £255 and £256 per annum. There should not be a problem with those practitioners being able to pay that premium, but we run into great difficulty when it comes to independent midwives.

I take the point made by the noble Baroness, Lady Emerton, that of course the safety of the mother and baby is paramount, and her point about the issue of professional support for independent midwives. I am sure that she would recognise that for some women, the support of an independent midwife is very important to them. Sometimes the reason why a woman will turn to an independent midwife is that they find that statutory services are either not prepared to help her to have a baby at home or are less than sympathetic. It would be a great pity if, as a result of the order, that very small group of professionals was unable to practise. The RIA accepts that affordable commercial cover is not available to independent midwives working as individuals. The consultation estimates that there would be an annual cost of indemnity cover of about £15,000 per individual independent midwife. There is no way that an independent midwife is likely to be able to pay that sum.

It is fair to ask the Minister whether he considers that independent midwives will be able to practise in future as a result of the order. I take the point that the noble Baroness, Lady Brinton, made, about the benefit of this EU regulation, but what an irony that the Conservative Party, in particular, with its histrionics about Europe and the extraordinary behaviour of our Prime Minister in the past few days, is now bringing in a European order that will put independent midwives out of business. I wonder whether the Government really recognise that. They may find that independent midwives are in fact no longer able to practise, and the Government may come in for considerable criticism as a result.

I was unimpressed by the response given by Dr Dan Poulter in another place. He has been very unsympathetic to the issue of independent midwives. That is a great pity. When this order was debated in the Commons a few days ago, I thought that the government response was weak, unsympathetic and gave very little comfort indeed. It is all very well talking about social enterprises in the Wirral as if that is an answer. Clearly, that will not be an answer for many independent midwives. The impact of agreeing to the order is that independent practitioners will not be able to practise any more. Either they will be forced to come into the NHS or they will simply not be available to women in future. I would like the Minister to give his assessment of what he thinks the impact of the order will be on those independent midwives.

Having read the Commons debate, I am not clear what happens to staff who provide care, sometimes complex care, independently but who are not a member of a regulated body. What about care assistants practising independently? The Minister said that where they are employed they are covered because of the vicarious liability of the employer, but I am not clear about those practitioners in the health and care field who provide services but who are not part of a regulated profession.

As a general principle, the Opposition support the order because it is eminently sensible, but the Government could have found a more sympathetic way to help independent midwives to be able to practise in the future. I for one am fearful that, as a result of the order, they will not be able to do so.