Health Care and Associated Professions (Indemnity Arrangements) Order 2014

Baroness Cumberlege Excerpts

Monday 30th June 2014 Grand Committee

[The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)]

My Lords, in July 2010 the four UK health departments accepted the recommendations of the Finlay Scott review, which recommended that all regulated healthcare professionals should be required to hold appropriate insurance or indemnity cover as a condition of their registration when carrying out work as a regulated healthcare professional.

The Government are committed to requiring all practising regulated healthcare professionals to hold indemnity or insurance cover, and have been for some time. The Government are also required to implement Article 4(2)(d) of the EU directive on patients’ rights in cross-border healthcare, which reinforces that direction of travel and further commits us to legislation. The purpose of this policy is to ensure that people have access to appropriate redress in the unlikely event that they are negligently harmed during the course of their care. All patients should have that by right. The overwhelming majority of regulated healthcare professionals will be unaffected by the proposals because they already have insurance or indemnity cover. For employees in the NHS or independent sector, cover is already in place because of an employer’s vicarious liability for the negligent acts or omissions of their employees. Personal cover is required in relation only to self-employed practice.

The order makes provision that all practising regulated healthcare professionals must hold an appropriate insurance or indemnity arrangement as a condition of their registration—and, in the case of medical practitioners, a licence to practise—with the relevant regulatory body. It will be for individual healthcare professionals to assure themselves that appropriate cover is in place for all the work that they undertake. Unless healthcare professionals, who are practising or intend to practise, can demonstrate to the satisfaction of the regulatory bodies that such arrangements are or will be in place, they will be unable to be registered as a healthcare professional and will be unable to practise. I commend this order to the Committee, and beg to move.

[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.

--- Later in debate ---

[Earl Howe]

My Lords, I am grateful to all noble Lords who have spoken. I shall endeavour to answer all questions that have been put to me as fully as I can. To the extent that I cannot, I shall of course write to noble Lords after this debate.

The centre of attention in noble Lords’ contributions has been independent midwives. Independent Midwives UK is the body which has expressed most concern about the regulations. I am the first to say to my noble friend Lady Cumberlege that continuity of care and service in the NHS is important, and that is part of the mandate to NHS England. We fully accept the value of independent midwives. NHS England will refresh the maternity commissioning guidance to CCGs over the summer to support the plurality of providers and to help social enterprises get NHS commissions.

However, as my noble friend is aware, we are dealing here with self-employed, independent midwives. It is therefore important to look at the factors which pertain to that group of people in particular. My noble friend suggested that the order effectively puts certain independent midwives, the self-employed practitioners, out of business. I do not see it in that way at all. We recognise that self-employed independent midwives may be required to change their governance and delivery practices to comply with an indemnity policy, and it is for the individual practitioner to determine a suitable operating model under which they are able to continue to practise. Social enterprises are the obvious route to that.

The suggestion that independent midwives have not received the fullest attention from officials in my department is seriously misplaced.

[Baroness Cumberlege]

I have never said that. The department has really helped independent midwives keep up to date with what has been going on. Nor am I opposed to the order. I said earlier that I start from the premise that every practitioner should have professional indemnity. Perhaps the noble Baroness, Lady Emerton, did not hear that.

[Earl Howe]

I fully accept my noble friend’s statement on that score. It has been said that the Government have not been sufficiently supportive of the attempt by IMUK to overcome these obstacles, and I welcome my noble friend’s recognition of those efforts.

Independent Midwives UK made an application, as my noble friend knows, for government funding for its proposal. That was considered, but the conclusion reached after independent expert advice was that the proposed insurance model was not feasible and would not provide long-term protection to pregnant women.

Alongside that, we were mindful that the creation of any government scheme specifically for Independent Midwives UK would effectively position the Government as the underwriter of the independent sector. My noble friend is as aware as anyone of the sensitivity of that. That would have undermined any private sector solution, which in turn would reduce the onus on midwifery service providers to demonstrate financial responsibility in what is undoubtedly a high-risk area of clinical practice—that is, it would reduce the onus on them to be responsible for showing an underwriter the appropriate steps being taken to mitigate risks. So, for a number of reasons, we were not able to take those proposals forward.

However, we explored a number of routes. One was that a corporate body should be formed that would be eligible to join the clinical negligence scheme for trusts, although that would not cover non-NHS work. We made funds available via our Social Enterprise Investment Fund to support the development of social enterprise solutions where the market does not offer affordable indemnity to individuals. That was not seen as a viable route either, although a new social enterprise called Neighbourhood Midwives was set up through that route and is now offering maternity care in the private sector with appropriate indemnity cover in place. Its business model is a 100% employee-owned mutual providing management and support to small, community-based neighbourhood practices.

My noble friend Lady Brinton asked about the insurance sector. From the start of the discussion in 2010, dialogue has been in progress with the Association of British Insurers, individual insurers and insurance brokers, who have indicated that insurance would be available for corporate bodies employing midwives to deliver NHS or non-NHS services. It would be necessary for corporate bodies to demonstrate the robustness of their governance systems to provide adequate assurance to an indemnifier. Where providers can demonstrate safe outcomes as well as good risk management processes, this would affect the price that was quoted, making it more affordable. There are also other factors that can be varied, depending on the appetite for financial risk, and which can reduce the price, such as excess provisions. This concurs with the independent research commissioned by the NMC and the Royal College of Midwives that suggests that independent midwives would be able to obtain insurance as employees within a corporate structure. As I say, some independent midwifery providers have secured insurance by fulfilling the above principles.

I heard my noble friend Lady Cumberlege say that the order effectively deprives certain individuals of the right to work. I do not share that view. The right of an individual to practise their profession is not an absolute right; the state may impose certain conditions provided by law that an individual must satisfy in order to practise their profession. Those conditions should be both proportionate and justifiable.

The bottom line here is that we believe it is unacceptable, as the noble Baroness, Lady Emerton, emphasised, for individuals not to have recourse to compensation where they suffer harm through negligence on the part of a registered healthcare professional. The NHS constitution in England reinforces this by including,

“the right to compensation where you have been harmed by negligent treatment”.

In requiring all practising regulated healthcare professionals to hold an indemnity arrangement as a condition of registration, the order does not make the practice of independent midwifery illegal—far from it. Midwifery outside the NHS will still be accessible in the ways that I have already described. I note that Independent Midwives UK is advertising insurance as a benefit of its membership, so I wonder whether any self-employed midwives will in fact have to stop practising.

My noble friend Lady Brinton hit the nail on the head when she expressed her welcome for the EU directive and the principles that underlie it: that all patients across the EU should be treated by healthcare professionals who have insurance or indemnity cover.

The noble Baroness, Lady Emerton, touched on the issue of compensation. As she knows, compensation for negligence can be very high indeed. It is for this reason that the Royal College of Midwives no longer offers insurance. Its scheme was stopped after an issue involving an independent midwife.

If we distil the arguments to their most basic, the implication behind a number of criticisms of this order is that choice in natal care should trump other considerations. I am afraid that the Government take a different view. Our policy is that patients should have recourse to redress if they are harmed, and the most cost-effective and proportionate way of achieving that is by requiring all practising regulated health professionals to hold appropriate cover.

Having said that, we lay great emphasis on choice, as my noble friend is aware. The policy set out in Maternity Matters: Choice, Access and Continuity of Care in a Safe Service, published in 2007 but endorsed by the current Government, aimed to introduce by the end of 2009 four main areas of choice in maternity. The choices are: how to access maternity care, whether via a GP or directly through a local midwifery service; the type of antenatal care—depending on the circumstances, midwifery care or team care with midwives and obstetricians; the place of birth, depending on the circumstances, supported by a midwife at home or in a free-standing midwife-led unit in a hospital, or supported by a maternity team including obstetricians in a hospital; and where to access postnatal care, at home or in a community setting.

I hope my noble friend will concede that maternity has been a major focus for the current Government. We have invested heavily in training additional midwives. There is a record number in training at the moment. We have invested large sums in improving and refurbishing birthing units, as well as introducing specialist mental health midwife training so that every birthing unit will have a specially trained clinician available by 2017. This is a major part of our agenda.

I think I have said as much as I can in answer to questions. I will, however, respond in writing to the points that I have not adequately covered, including my noble friend Lady Cumberlege’s question about how many home births might be on hold or suspended as a result of this order. I beg to move.