Home birth legal issues

The case of Hungarian Midwife Agnes Gereb has lessons for us all.  The two year jail sentence is essentially a punishment for practising home birth.  Agnes was an obstetrician who focused on listening to women and providing for their needs.  Her small antenatal groups led her to work as a midwife with homebirth for thirty years with around three and a half thousand births.  This expertise appears to have made her a target for the established status quo of doctor led births in hospitals.

Freedom for Birth (2012) is a documentary film made about the alleged injustices of the Hungarian judicial system against Dr Gereb.  Now there is a movement called Freedom for Agnes Gereb (Facebook 2018).  

On 9th January 2018 the Hungarian Supreme court confirmed the earlier two year jail sentence given in January 2012 for reckless endangerment causing injury and death.  This is in addition to the four years house detention and time already spent in jail. This judicial process started in 2010. Those eight years demonstrate a questionable approach to justice.  (The old legal maxim ‘slow justice is no justice’ reminds us that fair process requires reasonable time scales without unfair delays.  

UN Convention on Human Rights

Delays can be a form of cruel and unusual punishment.  This would breach Article 3. Unfair Process is a breach of Article 6.  The home detention and jail sentences may be breaches of Article 8 Right to Private and Family Life.  Yet whatever UN articles are breached or rulings from the European Court of Human Rights (ECHR) in Strasbourg the Hungarian judicial system appears to ignore the international community.  Will this benefit Hungary or will it become further isolated from the world of rational respectful thinking?

The Ternovoszky v Hungary 2010 ECHR ruling essentially stated that a woman has a right to choose how and where to give birth and that each country must provide homebirth as a realistic option.  The treatment of Agnes Gereb would suggest this has not been implemented and has discouraged other practitioners. Current homebirths in Hungary are with a handful of courageous midwives and doulas.  Some women are opting for unassisted births to avoid traumatic hospital births.

Similar reactions occurred in other countries following a clamp-down on homebirth.  There are anecdotal reports of unassisted birth increases in the UK following the Regulators decision that the Independent Midwives (IMUK) were not adequately indemnified.  The declared desire to keep women safe by the UK regulator, like the Hungarian authorities, led to increased unsafe birth experiences of women birthing alone at home some with resultant complications.  

Critics of the state control in the UK and Hungary say there are double standards with unfair restrictions and demands on home birth practitioners whereas there are daily breaches of women's rights and lack of respect for a truly informed process of consent and refusal in government hospitals in both countries.  (This information is verified to this author from reliable midwifery and other sources in both countries).

Professional Indemnity insurance

There are now other indemnity insurances available to UK Midwives including ‘My Midwife & Me’ which along with Neighbourhood Midwives have governance structures to satisfy the legal requirements.  The premiums are significantly higher than previous yet the cover is increased from five to ten million pounds (MM&M) and fifteen million with the new insurance product by UK Private Midwives. This raises the question of what is adequate indemnity and could there be an alternative to escalating compensation?

The two models that are envied appear to be the Swedish (Rapid Response) and the New Zealand (Aotearoa) models.  The latter includes a no fault compensation scheme with a focus on rapid learning from adverse events instead of purely entrenched legal fear-based defence.

How can Midwives better defend and protect themselves from unfair allegations?

Questions raised from the Hungarian case for UK Midwives are about how to defend and protect themselves from allegations and unfair processes that can be politically motivated.  

The Albany Practice in South London faced similar unwarranted investigations and predetermined judgements resulting in its closure.  With exemplary safety statistics (like Agnes Gereb) it appears that the death of one baby can be used as an excuse for political interference that would not be applied to state-run hospitals.

When a death occurs at or any time after a birth, it can be investigated as a potential manslaughter.  Negligent Manslaughter is defined in the case of an anaesthetist (Adamako):

a breach of a duty of care which causes death through gross negligence which the jury considers to be criminal and was a substantial cause of the death.

For negligence to become criminal it must satisfy the higher burden of proof which is beyond any reasonable doubt. This is a suitably high threshold to usually keep those innocent reasonable mistakes out of jail.  It ought only be extreme gross negligence cases that can result in criminal convictions. In Finland’s recent first ever manslaughter convictions for the death of a baby at birth resulted in a small fine for the midwife and a larger fine for the doctor involved.   Whilst accountability is essential to continually improve maternity care it needs to be balanced against women's rights to chose and midwives ability to reasonably conduct their profession.

The UK case of manslaughter in maternity care (2016) was taken against the Anaesthetist after Frances Cappuccini died in 2012 following a Cesarean Section in Kent.  

“Unsafe and unfair to continue” [the trial]  Justice Coulson

There was significant negative prejudged publicity (including the Health Minister tweeting from the courtroom.  The judge was critical of the the tweet and ordered it be deleted). The jury was directed by judge that there was essentially no case to answer and the case dismissed.  However this does show a willingness by the State Crown Prosecution Service to consider negligent manslaughter in maternity care in the UK. An independent judiciary is essential to weigh evidence fairly (allowing expert witnesses for the defence unlike in Hungary) and to dismiss cases without evidence of gross negligence.

In Australia the manslaughter case continues against the homebirth midwife, Lisa Barrett (who deregistered herself to provide care to women who could not find anyone who would support their choices in childbirth).  Inevitably this included cases of twins and breech births where perceived risk rather than women's’ choices are the main consideration by maternity services. There are midwives, in the UK and elsewhere, who have deregistered to have greater freedom from the regulator and provide woman centered care as doulas.  

What are the lessons for midwives?

Reasonable records will demonstrate reasonable practice.  Recording times of events, decisions and crucial conversations will provide strong evidence of what took place.  Showing how practice is reasonable and safe requires referencing care to evidence based practice. There can be opposing views on what evidence is current or more reliable.  Intuitive decision-making may be entirely valid if the practitioner can demonstrate that they discussed risks (Montgomery).

Building strong inter-professional relationships will demonstrate collaboration and a body of knowledge (established by the Bolam case in 1957) that can be called upon for statements of support including expert witness statements, if the care given meets the logical analysis requirement (Bolitho 1997).

It may not be enough to only defend allegations but sometimes to engage with the accusers in a positive way to determine their motivations then to question and show these to any investigators.  Allegations require evidence. If there is no evidence then consideration can be given to whether the complaint could be dismissed as it is without merit.

Where an investigation continues to the detriment of the midwife then actions for breach of the Articles above along with civil claims for: falsified statements, malicious prosecutions, compensation for loss of income during investigations and other actions.  The key is to take action, to challenge and educate accusers and investigators with facts that show how reasonable and safe the midwifery practice is. Some suggest get political by being involved actively in the promotion of human rights.

Who makes complaints?  Those who have something to lose from the power and control they enjoy?  Professional jealousy? There are misguided, vexatious malicious complaints which can take time to answer and rebut.  These need to be challenged to reduce these allegations. Midwives may not naturally like to challenge as this could feel upsetting yet it is essential for their survival.  Redirecting the focus away from the midwife and onto the accusers can bring a shift in equalising the balance of power and how a case is perceived.

Midwives can share ideas nationally and internationally to find greater strength together.  Their legal arguments need to be rational, applying the law to the facts. Emotion can be used positively outside the legal arena, processing emotions safely in therapeutic relationships.  Strong self care can lead to increased survival rates for midwives who can manage to rebut unfair allegations from positions of strength.

References

Bolam v Friern Hospital Management Committee [1957], 1 WLR 582

Bolitho v. City and Hackney Health Authority [1996] 4 All ER 771  

Montgomery v Lanarkshire Health Board [2015] SC 11 [2015] 1 AC 1430 R v Adomako [1994] 3 WLR 288 HL