Wednesday, August 24, 2011

Mandatory reporting

There is a great deal of discussion and some dismay in the world of private midwifery, since we learned that a 'mandatory reporting' notification was made of a midwife who was deemed to be practising without insurance.

We understand that this midwife was in a public hospital with a woman who had planned homebirth. After transfer of care to the hospital, the midwife continued in a supportive role with the woman: the usual practice in Australia when women transfer from planned home birth to hospital care.

A midwife is, by the root meaning of the word, and by definition, with woman - not with a particular setting (home/hospital), or with a desired outcome (natural birth), or with a model of care. A midwife's commitment is to the woman.

The Health Practitioner Registration National Law 2009, and linked State and Territory legislation, require registered health practitioners and employers to notify the regulatory agency AHPRA, which in turn notifies the Nursing and Midwifery Board of Australia (NMBA). Notifiable conduct includes matters that are clearly in the public interest, including allegations of working while intoxicated by alcohol or drugs, allegations of sexual misconduct, allegations that the [midwife] is putting the public at risk of substantial harm due to an impairment or departure from accepted professional standards. ... [see full text here]

The issue of notifiable conduct in the example outlined above requires a huge stretch of credibility, which I do not think will be upheld in any legal challenge. The notification is based on an extremely narrow definition of 'Practice', taken from the NMBA website, Frequently Asked Questions (FAQ):
4 May, 2010  Recency of Practice FAQs  Q1. What is ‘Recency of Practice’?  A. This means that a practitioner has maintained an adequate connection with, and recent practice in, the profession since qualifying or obtaining registration. Q2. What is meant by ‘Practice’? A. Practice means any role, whether remunerated or not, in which the individual uses their skills and knowledge as a nurse or midwife. For the purposes of this registration standard, practice is not restricted to the provision of direct clinical care. It also includes working in a direct non-clinical relationship with clients, working in management, administration, education, research, advisory, regulatory or policy development roles, and any other roles that impact on safe, effective delivery of services in the profession and/or use of their professional skills.
This definition of 'Practice' is contained in the NMBA Recency of Practice Registration Standard and clearly does not apply to insurance requirements. If it did you would expect it to be in the professional indemnity insurance registration standard but it is not.  [added later] Note: This definition of Practice also appears under 'Definitions' at the AHPRA website.

Dear fellow-midwives, we need to carefully consider the 'Mandatory Reporting' rules.
  • that the person who reports you needs to have formed the belief that you, the midwife, have placed the public (your client) at risk of substantial harm due to practising midwifery in a way that constitutes a significant departure from accepted professional standards. 
  • that a midwife has a duty to the woman, and must weigh up the impact any potential harm to the woman that she may not get an insurance payout if she sues you, because you have no insurance, against the other potential harm that she may face if you abandon her. 
I say we have strong grounds to defend ourselves.  We will surely be able to argue that such a notification is vexatious. We have advice from the nursing union ANF Vic that making a notification that is vexatious or not in good faith may expose the notifier (registered health professional or employer) to proceedings for defamation. A notification not made in good faith is "not protected from civil, criminal and administrative liability" (Mandatory Reporting: A guide for ANF members). Please see my blog  and the APMA blog for further information and discussion on this important matter.

Your comments are welcome. 

1 comment:

Joy Johnston said...

A midwife wrote:
"The facade of 'its about safe birth and creating families' has dissolved and now it's a war.

"I don't want to fight a war about professional dominance. I am a woman. I birthed my babies with strength and power and love just as they were first created. I want to enable other women to know this."