Response: Safety and Quality Framework guiding Midwifery Care provided by Privately Practising Midwives attending homebirths from Homebirth Australia

25 May 2010

How can a woman's human and common law rights be eroded by the Quality and Safety Framework?

Despite making written and verbal representations regarding established legal rights of women, the QSF fails to reflect the significance of these rights.  The QSF states

"The framework is written to ensure safe, quality care of the woman and her baby choosing to birth at home with a privately practising midwife.  Women considered appropriate for inclusion in this option of care are women with a singleton pregnancy, cephalic presentation, at term and free from any significant pre-existing medical or pregnancy complications.  Further to this, distance and time to travel to an appropriately staffed maternity service should be considered when assessing appropriateness for this option of care."

 And then

"The framework builds on existing effective practices and relationships.  It is not intended as a document which is exclusionary. It does, however, articulate parameters of midwifery led care as a mechanism to balance the priorities of women's choice and quality and safety of maternity care to deliver positive outcomes for mothers and babies".

 These statements contradict one another and will very much act as an exclusionary document.  Homebirth Australia estimates that as many as 50% of homebirths would not meet the above criteria.

 Homebirth Australia suggests the following statement:

Quality and safety is a central feature of this framework. The right of women to informed consent is acknowledged as is a health professionals right to provide clinical information and advice.  Health professionals have a responsibility to provide balanced information and to be confident that information is understood.  Women have a responsibility todemonstrate they understand this information and to articulate ongoing decisions.

Homebirth Australia understands that this document and the approach from Government will be risk adverse.  This approach does not however need to come at a cost of removing established rights of women.  It would be prudent to address the fact that a growing number of women with what most obstetricians would consider a 'risk factor' are choosing homebirth and will continue to do so.  If this is understood and articulated there is a much better chance to develop understanding and appropriate clinical pathways for consultation and referral. By ignoring or shunning the women that make these choices we risk underground practice and birth without a skilled attendant.  Homebirth Australia does not support women being put in this position and hopes that government will accept this approach as part of a risk adverse strategy.

In the case of rural and remote Australia it seems perverse logic to accept that current options are 'safe' for women (removal from their families and the risk of road side birth whilst travelling in labour) while the care of a registered midwife at home is seemingly less
safe.

Duty of Care Protection for Midwives

Whilst the right of informed consent for health consumers has legal precedent, 'Duty of Care' protection for midwives is not established in Australia.  This has
led to many unnecessary incidents and deepened the chasm between midwives providing homebirth care and other health professionals, namely obstetricians.  By ignoring this government further exposes itself to possible allegations of preventing access to registered health professionals for homebirth care and thus safety.

As part of the face-to-face consultations Homebirth Australia raised this with Dr Oats.  His understanding and empathy was refreshing.  Dr Oats stated clearly that as a practicing obstetrician if he advised a woman to have a caesarean section and she refused and there was a poor outcome as a result his registration would not be 'on the line'.  For a homebirth midwife the same is not true, currently if they continue to provide care (even after they have advised and documented clinical advice against homebirth) they face the real prospect of disciplinary action and de-registration.  This document has not addressed this very real concern.  Homebirth Australia hopes the Nurses and Midwives Board of Australia (NMBA) does not take the same approach.

It is positive to see the Australian College of Midwives guidelines for consultation and referral cited as a critical document.  Homebirth Australia understands that the guidelines recommend certain conditions for midwifery care.  The revised edition however has a clear pathway for women who make choices that fall outside of the guidelines.  As a participant of the revision process, Homebirth Australia notes the main reason for this pathway was as a result of midwives being targeted for providing care to women with obstetric risk factors, primarily vaginal birth after caesarean.

The multi- disciplinary committee was unanimous in its desire to protect midwives and women by providing a clear pathway (including documentation requirements).

Homebirth Australia does not support a melding of the ACM and RANZCOG guidelines.  RANZCOG has a policy of not supporting homebirth.  The vast majority of its fellows would never have attended a homebirth, nor is there a depth of experience of supporting women across the many hours of labour (and with it a strong understanding a labour physiology). 
Homebirth Australia understands the importance of co-operation with obstetricians, anaesthetists and paediatricians, but co-operation and collegial relationships does not equate to dictating who can do what and where.  This approach has to date prevented positive working relationships and on too many occasions impacted on safe practice.

Homebirth Australia's submission in March outlined the relevant common law and human rights conventions surrounding women's health.  Please find them attached again this time as an appendix.  Homebirth Australia asks that they are acknowledged and utilised in the final version of the QSF provided to the NMBA.

HOMEBIRTHAUSTRALIA - MAY 2010

International Conventions

The Convention of the elimination of all forms of discrimination against women (CEDAW) declares [1]

Article 2

States Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women and, to this end, undertake:

(d) To refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation;

(e) To take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise;

(f) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women;

Article 12

1. States Parties shall take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those related to family planning.

2. Notwithstanding the provisions of paragraph I of this article, States Parties shall ensure to women appropriate services in connection with pregnancy, confinement and the post-natal period, granting free services where necessary, as well as adequate nutrition during pregnancy and lactation.

Common Law Rights in Australia

The often-quoted passage from the decision of Cardozo J, in the case of Schloendorff v Society of New York Hospital1, clearly articulates the principle that-

"Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without the patient's consent, commits an assault."[2]

Forrester provides the following analysis

"As an example, if a competent adult patient refuses treatment it will not be a defence for the health professional to argue the treatment was given with the intention of
improving the patient's condition. In addition, a competent adult patient is not obliged to explain or justify the basis for their refusal nor provide any reasons as to why they have made their decision."[3]

[1]United Nations (1979) The Convention of the elimination of all forms of discrimination against women.  http://www.un.org/womenwatch/daw/cedaw/cedaw.htm

[2] 1 (1914) 211 NY 125 at 126

[3] Kim
Forrester "Refusal of treatment and absolute right of the patient or client"
The Queensland Nurse, April 2007 pp10-11