The Federal Government has just announced it will extend the exemption to the law requiring independent midwives to hold professional indemnity insurance in order to provide home birth services.
How crazy is this, and how has it come about?
And why can’t medical practitioners get away with this?
Since 2010, legislation has required everyone practising obstetrics — and, in fact, all healthcare professionals — to hold professional indemnity (PI) insurance.
However, the exemption for midwives was simultaneously introduced because midwives were unable to obtain this form of insurance.
According to a recent statement from Assistant Health Minister Ged Kearney, this exemption is for the benefit of midwives and the women in their care.
Really? Without insurance, the injured have limited, if any, access to compensation.
Right from the outset, I must state that the following comments are not designed in any way to be derogatory of the women who choose to have home births — whether their decisions to do so are ideological or cultural — or their attending accoucheurs.
Home births and midwifery have been around a lot longer than hospitals and obstetricians.
There may be a place for home confinement in low-risk pregnancies, but we know that when things go wrong during a delivery, they can go wrong very quickly, and the consequences can be traumatic and significant for all concerned.
Note, the above exemption covers only confinements, and does not extend to pre- and post-partum care, for which insurance is available.
The need for PI insurance
Before 1970, the need for PI insurance was not great because patients rarely sued their doctors. Those days are long gone.
The litigation explosion commenced in the US in the early 1970s and quickly jumped the oceans to the UK, Australia and the rest of the world. Patients started exercising their right to seek compensation for their losses.
Now, the concept of insurance is that a (hopefully) large group (aka ‘the pool’) of clients pay small premiums to insurers to cover the (hopefully) small risk of claims. The insurers invest the premium income and return (hopefully) most of it to the insured to settle their claims.
However, the wheels fall off this scenario when the group of clients seeking insurance is small, the members belong to a low-income group, and the cost of the settlement of their class of claims is high.
This is the situation facing the midwives and commercial insurers who are reluctant to become involved — at least without government subsidies.
Many years ago, when faced with the same problem, midwives sought the right to admit their private clients/patients to public hospitals, under the name of the admitting obstetrician of the day, and to have that practitioner indemnify them for any claims that might arise.
This idea didn’t get off the ground, with the MDOs stating they wouldn’t participate in this caper.
Our government, fearful that obstetricians and midwives might not arrange PI insurance and in fact might “go bare” of insurance, thereby denying the injured parties access to compensation, introduced legislation to require all practitioners to hold PI insurance — as part of their registration requirements.
Clearly, this does not cover unregistered practitioners.
The government’s exemption for midwives is necessary because the pool of midwives has been unable to obtain this sort of insurance — their craft group is small and the potential cost to insurers is disproportionately large.
What it means for patients
So, what does this mean to the women and their babies who might sustain injuries during home births when assisted by independent midwives?
Clearly, they could sue their midwives, but the likelihood of the midwives having access to sufficient assets or funds to cover the consequent litigation, and the settlement of the claims, is remote.
Women considering home deliveries have to accept both the risks of delivery — for them and their babies — and the fact that they will not have access to compensation if something does go wrong.
I would hope the midwives have watertight consent forms at the ready and understand that no patient can sign away their right to litigation.
Dr Lilienthal is a GP and medicolegal adviser in Sydney, NSW.