In Part II, Kristin Beckedahl explores the political debate that surrounds the fundamental human rights issue of where and with whom a woman chooses to birth her baby.
Although currently shrouded by uncertainty – due to national legislation, ongoing reforms and changing frameworks – homebirth within Australia is alive and well. In a handful of capital cities around the country, pregnant women who are categorised as ‘low-risk’ have access to limited places on publicly funded community homebirth programs. The midwives who work within these programs are often employed by their State’s Health Department. Also within the community (and the focus of this article), are midwives in private practice. These midwives are engaged by families, at their own cost, to provide invaluable continuity of care across the pregnancy, birthing and postnatal periods. However, by preserving and supporting a woman’s agency and her right to choose where and with whom she births her baby whilst ensuring the safest practices to do so, these midwives concurrently become personally vulnerable to litigation and, ultimately, the loss of their livelihoods.
This article will explore four contentious issues that are placing homebirth in jeopardy. These include the scrapping of indemnity insurance for midwives attending homebirths, the federal government’s lack of support for midwives’ autonomy, enforced collaboration frameworks between midwives and doctors and the increasing rise in free birth.
In Part I of this two-part article (in the Summer edition), I shared my personal homebirth story from 7th February 2009. Later that year, on 7th September, whilst breastfeeding in the same lounge room in which I had home-birthed my daughter seven months prior, I watched emotive media reports on the television. More than 2,000 homebirth supporters from all over Australia had braved the drenching rains in Canberra to congregate on the lawns of Parliament House at what had been termed the ‘Mother of All Rallies’. This rally was a vocal response to the Commonwealth Government’s Maternity Services Review (MSR) Report and the Health Minister’s announcement that medical indemnity insurance would not apply to homebirths – effectively making them illegal under new national registration laws, which took effect 1 July 2010. This change in the law was seen as a huge injustice to both private practising midwives and consumers. It also resulted in midwives being treated unfairly as they became the only health professionals denied indemnity insurance, despite a $500m support package provided for medical practitioners since 2001.
‘By preserving and supporting a woman’s agency, and her right to choose where and with whom she births her baby whilst ensuring the safest practices to do so, these midwives concurrently become personally vulnerable to litigation and, ultimately, the loss of their livelihoods.’
1. INDEMNITY INSURANCE
Let’s backtrack three months to June 2009. The Rudd government introduced national laws requiring midwives to hold professional indemnity insurance as a condition of practice as members of the National Midwifery Register. In other words, all midwives in private practice must hold registration – and indemnity insurance – to be legal practitioners. It sounded like a safe, reasonable requirement. The problem was that in 2001 with the collapse of insurance giant HIH – the only insurance product for midwives for homebirth was withdrawn. This occurred not because there had been claims but because the global insurance market had seemingly deemed it not worth the risk. Why insure a small, fragmented group of midwives who provided primary maternity care for less than 0.5 per cent of Australia’s mothers and babies when one claim could cost the insurer far more than the total revenue generated by the product? Essentially, the risk-benefit equation was not in the insurer’s favour. So since that time, private midwives have been practising without insurance.
In November 2010, through government reforms, there was a small breakthrough with insurance for midwives in private practice. Although soon after, two serious flaws were called to be corrected in the Midwife Professional Indemnity (Commonwealth Contribution) Scheme Act 2010. Insurance became available, but it was for prenatal and postnatal care or birth in a hospital with that private midwife, but it did not cover the labour or birth occurring at home. Under the government’s policy and Medical Insurance Group Australia (MIGA), midwives needed to be assisting in more than 30 births per year and also needed to have at least three years of professional post-graduation experience before they were eligible to access the insurance scheme. The birth quota might be realistic in metropolitan Australia for a midwife to give assistance in more than 30 births a year, but in regional Australia, many midwives are fully employed in doing a range of pre and postnatal support but do not assist in more than 30 births a year. Therefore, under this MIGA scheme, they are not insurable because they do not reach the eligibility quota of 30 births a year.
Fast forward to the end of the two-year exemption period on June 30, 2012, and the deadline for the exemption was again extended, to June 30, 2013. In other words, the problem remains the same; if midwives require insurance to stay registered (and able to practice legally), and no insurance company steps forward with relevant policies, then where does that leave these midwives and the families that choose to employ them? The bottom line is that home birth is not going away, and women will continue to autonomously choose homebirth, and it must be funded and indemnified like all medical births are.
2. GOVERNMENT’S LACK OF SUPPORT
As a result of these new national laws, up to 200 midwives in private practice faced de-registration from July 2010, and if they continued to work, they risked fines of up to $30,000 and the loss of their livelihood. However, following a distinct lack of interest from insurance companies, then Health Minister Nicola Roxon announced a two-year exemption from holding indemnity insurance for midwives in private practice who cannot obtain cover for attending home births. Although welcomed by midwives and consumers, the exemption was viewed as a reprieve only. A lasting solution was avoided and is still outstanding.
In the 2009/10 budget package: ‘Providing More Choice in Maternity Care – Access to Medicare and PBS for Midwives’, the Federal Government again ignored or side-stepped homebirth – the main practice area of private midwives and the main choice that women called for in the submissions to the review. Preference was given to the development of collaborative models under obstetric control, which often exclude midwifery-led primary maternity care options.
In May 2010, Australian Greens Senator, Lee Rhiannon, drew attention to serious obstructions to maternity reform when announcing the passage in the Senate of a motion calling for immediate action on the obstacles facing midwives in private practice.
“Roadblocks frustrating women’s right to choose a range of birthing arrangements need clearing … It is time governments across Australia joined together to enable midwives to properly do their work,” Rhiannon said.
3. ENFORCED COLLABORATIONS
Although the government also opened up the Medicare Benefits Schedule (MBS) to midwives (which allows women to claim rebates for particular care), only a small proportion have become Medicare providers. To qualify for these rebates, midwives must enter into collaborative agreements (as per Determination 2010) with doctors, but doctors, as a general rule, do not support the initiative. Thus, even though the reform package intended to provide ‘more choice in maternity care,’ it actually enables doctors to veto midwives’ ability to provide Medicare rebates to a woman in her care. As there is no requirement or onus on doctors to sign a collaborative arrangement, women have, in many instances, experienced doctors refusing to collaborate with midwives as the MBS intended. Some midwives virtually lobbied every obstetrician in their State to sign a collaborative arrangement – but to no avail.
Hannah Dahlen, Associate Professor of Midwifery at the University of Western Sydney, acknowledged the small progress but continues to push for reform as the past president and current national media spokeswoman for the Australian College of Midwives.
“Yes, there have been some successful collaborative arrangements with obstetricians, which we must celebrate and continue to embrace when they are achievable, but on the whole, with less than 150 midwives taking up eligibility in two years and less than 100 of these claiming Medicare and a tiny number of these claims being for birth care, we have demonstrated the arrangements, as we strongly argued in 2010, won’t work.”
Joy Johnston, a midwife in private practice in Victoria and Acting-President of the Australian Private Midwives Association (APMA) says;
“Obstruction to midwives being able to properly do our work include medical dominance and insurance. A culture of medical dominance in maternity care today is so deeply ingrained that few are aware of it. For example, until as recently as 1995, Victorian Midwives Regulations required supervision of midwives by doctors. A midwife was required to have a doctor’s permission to carry out a vaginal examination of a woman.”
In July 2012, midwives were given the opportunity to get approval as PBS prescribers with the commencement of the first accredited course in administering scheduled medicines, the Graduate Certificate in Midwifery at Flinders University in Adelaide.
“The milestone is long overdue as midwives in private practice have been wanting prescribing rights since the 90s, if not before,” says Jen Byrne, the acting coordinator for midwifery programs at Flinders. For some, it felt like another bureaucratic hoop to jump through, as many have been practising competently for years. It will show that midwives are autonomous practitioners who can look after women in their own right, and women won’t need to double dip by visiting GPs for various scripts and tests. This way, the midwife decides on the basis of her knowledge and scope of practice what medications to prescribe, store and administer,” says Byrne. Most of those enrolled are eligible midwives who will study part-time, juggling their private practices and other commitments over two semesters of online study and portfolio submission.
Dahlen insists that doctors and governments simply do not understand that women will continue to give birth at home regardless of whether health authorities sanction it or not.
“Every time women start marching for homebirth, the government says, ‘Let’s give them birth centres’, but they don’t expand their birth centres or even build them in some states, so very few women can use them, and some women just don’t want to birth in a birth centre,” says Dahlen. “We absolutely need more birth centres, but they are not the whole answer, and they will not take away the issue of home birth. Women will continue to do what they want – exercising their right to choose – and if there’s not a professional around, they will do it anyway.”
Homebirth advocates are seriously concerned that these new laws may drive homebirth ‘underground.’ With such limited access to homebirth services, the result may be women birthing without a qualified maternity professional, also known as free birth. Women will continue to choose homebirth regardless of the legal or regulatory framework surrounding midwifery practice, and other women will heed their call for support if the maternity care system fails to support them to give birth at home. Midwives Australia spokeswoman, Liz Wilkes, says that as a result of the legislation, midwives qualified for homebirth are also withdrawing their registration and acting as ‘birth attendants’, delivering babies outside of the health system, ungoverned by safety regulations or standards of care. “As an organisation, we think this is extremely problematic.
There are no standards, there is no quality or safety, there’s nothing. If it gets to the point where there are no registered people providing care in a particular area, women are then forced into a situation where if they want to birth at home, the only option is an unregulated care provider.” Wilkes says she knows of 10 midwives who have withdrawn their registration to work as birth attendants in the past year.
“This is just the tip of the iceberg,” she says.
Midwives are either ceasing to practice – making it difficult for women to access this service – or are practising without insurance. However, if anything goes wrong, there is no recourse for negligence, and the midwife may face financial ruin. Homebirth Australia spokesperson Michelle Meares says;
“Overly restrictive legislation has meant that the number of private midwives attending birth in Australia has dropped from 200 midwives in 2009 to only 90 midwives in 2011. Some women are having to give birth at home unattended; some are being forced into hospital births they do not want. Regional and rural areas have also been significantly impacted.”
The other concern within the development of insurance models is it will only be available to those midwives who perform normal, low-risk birth at home and no vaginal birth after Caesarean (VBAC), twins, breech or any other obstetric complications. This opens up the concern that some women will be abandoned by the health system.
“What we are most concerned about is that women are going to be left without care providers. So women that choose to homebirth and that may have risk factors e.g. have had a previous Caesarean, are overweight, or are over a certain age, we’re concerned that those women will no longer be allowed to use a registered midwife if they choose to birth at home, and may instead choose to free birth” says Meares.
THE PATH OF REFORM
In August 2012, the Australian Health Ministers met for a meeting of The Standing Council on Health (SCoH). The Ministers agreed to yet another extension of the professional indemnity insurance exemption for privately practising midwives until June 30, 2015. This will mean that privately practising midwives will continue to be covered by the national registration and accreditation arrangements. This enables midwives providing homebirth services to have the assurance that they will not be forced to abandon women or face prosecution for violating registration requirements. In other words, homebirth midwifery will not become an ‘illegal activity.
The Commonwealth also agreed to vary the Determination of collaborative arrangements to enable agreements between midwives and hospitals and health services. This was the piece of legislation implemented in 2010 stipulating that private midwives needed to have signed agreements or referrals from doctors
“It does not solve the problems associated with the private patient status and who provides emergency medical care if required, but it opens the door for health services to try new and innovative solutions when trying to function within the boundaries of a funding system that it essentially designed for doctors and hence a very bad fit for midwives,” said Dahlen.
At The Childbirth and The Law Forum held in Sydney in October 2012, keynote speakers, panellists of women, doctors, midwives, lawyers and ethicists discussed the role regulation has in protecting the woman, unborn baby and health professionals.
“Regulating a childbearing woman’s body has serious ramifications and undoes hard-won battles our feminist forbears fought for, and the unintended consequences should give us cause for sober reflection. Where do we stop once we start, and who controls what is acceptable behaviour and what is not, and who has the ‘rights’ and who does not, and what is risky and what is not?” said Hannah Dahlen, Associate Professor of Midwifery.
Michelle Meares also spoke of the current situation; “Women make the choice to give birth outside a hospital with identified risk factors due to their profound dissatisfaction with the current maternity care system, and in some cases, because of previous hospital experiences that have left them deeply traumatised. Women and midwives who care for them are increasingly having to interact with the legal system during pregnancy and childbirth and are facing marginalization and discrimination. Some women are even being refused medical care from other health professionals due to their choice to give birth at home.”
Unequivocally, the safety of Australian women and babies must come first in maternity care reforms. Ensuring the workforce of midwives in private practice across Australia can continue to function efficiently and effectively is one of the most important things that can be done to ensure the safety of homebirth in Australia.
Full spectrum insurance must be found to protect women, babies and midwives. For instance, will midwives be uninsured if women develop risk factors during pregnancy or labour and choose to pursue a homebirth? Imagine a situation where a midwife is forced to walk out during birth because it is no longer deemed ‘low-risk’, and the woman refuses to go to the hospital. Such indemnity restrictions will not enhance safety.
At the time of writing, the hunt is still on to find insurance for homebirth services. “All efforts must be expended now to seek an insurance product, as it is not acceptable that this choice, one supported by evidence as having significant benefits for women when undertaken in an appropriate safety and quality framework, remains uninsured,” says Dahlen.
Both women and midwives deserve to have the protection insurance brings. We now must find a solution that protects women’s rights to choose their place of birth and enlist the services of skilled, regulated midwives. One thing is clear, home birth is not going away, and clearly, government denial will not resolve the issue. Although the number of women who choose to give birth at home each year in Australia is only small (less than 1 per cent), it does not diminish the fact that birth choice is a fundamental human right and women should be entitled to choose where and with whom they share the birth of their babies. The Australian College of Midwives is currently working with the Government to create a framework that provides effective insurance protection for midwives, affordable access to midwifery services for mothers and a regulatory framework that protects and respects all parties.
Let’s hope such respectful, collaborative care helps resolve this issue quickly to ensure Australian women have access to safe and supported homebirths.
Kristin Beckedahl is a Naturopath, Nutritionist, Childbirth Educator, Doula and mother of two. Her practice BodyWise BirthWise, focuses on naturopathy support for women’s health, fertility, preconception, pregnancy and postnatal health. http://www.bodywisebirthwise.com.au