On 4 February 2014 midwife Akal Kaur Khalsa was detained by Australian authorities while attempting to flee to New Zealand on a one way ticket and false passport. It appeared that she was attempting to avoid a $6.6 million default judgment entered in favour of Will Patterson in the New South Wales Supreme Court in October 2013. Will Patterson had developed cerebral palsy following a protracted and complex homebirth attended by Ms Khalsa. Ms Khalsa is uninsured.

In December 2012 the South Australian Coroner handed down its findings in relation to the deaths of 3 infants due to the alleged mismanagement of their birth by an unregistered midwife – Melissa Barnett (the Barnett inquest). Like Ms Khalsa, Ms Barnett was also uninsured. However, being unregistered, she was also outside the reach of the disciplinary procedure/sanctions open to the Australian Health Practitioner Regulatory Authority (AHPRA) and the Nursing and Midwifery Board (the board).

How has it come to pass that babies are being delivered by unregulated and uninsured practitioners? This article examines what is being done to address the situation.

Current regulatory position

Registered midwives are required to adhere to various Codes and Guidelines for home birthing. Ms Barnett had relinquished her registration as a midwife in early 2011. Although she alleged at the inquest that she subsequently only practised as a birthing advocate and was not providing clinical services, the Coroner found that Ms Barnett had relinquished her registration to enable her to practice outside the proscribed Codes and Guidelines.

In line with the Coroner’s recommendations in the Barnett inquest, the South Australian Minister for Health introduced the Health Practitioner National Law (SA) (Restricted Birthing Practices) Amendment Bill in September 2013. If passed, this will mean that only registered midwives or other registered medical practitioners will be permitted to perform birth related services. Financial penalties of up to $30,000 or imprisonment for 12 months will apply to any breach.

The insurance position

Presently, registered midwives in Australia performing services surrounding the management of labour and birth in private homes are unable to obtain professional indemnity insurance. To ensure that women still have access to a full range of birthing options, there is an exemption at s284 of the Health Practitioner Regulation National Law Act [The National Law] allowing midwives to perform intra-partum services even though this is currently an uninsured risk. Exempt midwives must seek fully informed consent from their patients, keep comprehensive records and secure a collaborative arrangement with a medical practitioner or private hospital.

The Board engaged PriceWaterhouseCoopers (PWC) to research how a suitable professional indemnity insurance product could be developed for this very small and relatively high risk market in Australia. The Board released the report in December 2013 and expressed its willingness to adopt the majority of PWC’s recommendations and to work with the federal government and insurance market to try and develop a commercially viable product.

Does this go far enough?

Although the proposed South Australian legislation will resolve the problem of unregistered practitioners performing homebirths in that state, unless other states move to introduce similar legislation, there will be no such protection elsewhere in Australia.

A failure to resolve the insurance situation prior to the expiry of the current exemption in mid-2015 is likely to leave many other children, like Will Patterson, without recourse to compensation if something goes wrong. It may also lead to an increased burden on the new NDIS as it is forced to fill the gap in insurance cover.

An urgent solution is clearly necessary to ensure that no other families find themselves in the invidious position of those in the Khalsa or Barnett cases.