We have previously examined the regulatory and insurance frameworks permitting unregulated and uninsured midwives to perform intrapartum services (deliver babies) against a background of cases where negligence during home birth had left families without remedies. In this article, we take a look at what has changed in the regulatory and insurance framework two years on.

Insurance

Professional indemnity insurance is a prerequisite to a health care professional (including a midwife) obtaining registration with AHPRA.

Whilst midwives in the public system who attend home births are generally indemnified by the hospital or health service they are working for, the situation is different for privately practising midwives.

In Australia private midwives are unable to obtain professional indemnity insurance for home births, meaning that (without intervention) those who elect to provide home birth services would be unable to be registered with AHPRA (and would fall outside the reach of the regulatory regime).

To address this gap, a temporary exemption was created under section 284 of the Health Practitioner Regulation National Law which allowed midwives to perform intrapartum services in home settings despite being uninsured. The exemption has recently been extended to December 2019.

Queensland Health partnered with the Australian College Of Midwives (ACM) to develop a Midwifery Practice Scheme. To date ACM has published The ACM Birth at Home Midwifery Practice Standards and the ACM Transfer from Planned Birth at Home Guidelines. The ACM Scope of Practice for Midwives in Australia is anticipated in the near future. It is hoped that the development of these standards will assist midwives who adhere to the scheme obtain cover for home births in the future.

Regulation

An additional difficulty with the current regulatory situation is that it permits unregistered midwives to offer home birthing services. This has lead to situations where midwives who have surrendered their registration (as a result of Board investigation or personal choice) have been able to continue to practise home births. Once unregistered however, they fall outside the reach of AHPRA and the Board.

To overcome this situation, South Australia enacted the Health Practitioner Regulation National Law (South Australia) (Restricted Birthing Practices) Amendment Act in 2013 in response to a number of poor maternal and child outcomes at the hands of unregistered midwives. This legislation makes it an offence for unregistered midwives to perform midwifery services, punishable by up to 12 months imprisonment or fines of up to $30,000.

The other states are yet to follow South Australia’s lead, with the consequence that some families electing to birth their babies at home are doing so in an unregulated and uninsured environment.

The very serious potential consequences arising from this situation were recently examined by Victorian Coroner Peter White in relation to the death of Caroline Lovell (COR 2012/0293). Coroner White found that various acts and omissions by two midwives caused or substantially contributed to Ms Lovell’s death following her home birth.

During the AHPRA investigation following Ms Lovell’s death, one of the midwives surrendered her registration. Coroner White commented that the “fact that she testified that she is now seeking employment as an unregistered midwife in her own words, to offer assistance to the mother, who catches the baby with her own hands, is a matter of concern that should be immediately addressed.”

Coroner White highlighted that the current National Midwifery Guidelines do not deal separately with homebirths, and found that the current regulatory framework was insufficient to ensure that the midwives who cared for Ms Lovell carried out their duties appropriately.

Coroner White considers that the provision of planned home birthing services should be restricted to “properly trained and accredited midwives (and medical practitioners) only” to ensure that women are able to make informed choices regarding where, and in what circumstances, they give birth. In support of this, he formally recommended that the Health Department and AHPRA develop a regulatory framework for privately contracted midwives working in home settings. His recommendations also extended to the Nursing and Midwifery Board developing requirements for mandatory clinical competency and clinical experience standards for midwives assisting with home births and that these requirements be actively monitored.

This article is part of our August 2016 edition of HealthFiles. You can read the full version of HealthFiles here.