The High Court has today (12 December) upheld the Nursing and Midwifery Council’s (NMC) controversial decision on indemnity arrangements for independent midwives.
The decision made by Mrs Justice Lang DBE means that independent midwives will continue to banned from practising while using indemnity cover from the private company Lucina Ltd.
Four independent midwives applied for the judicial review of the NMC’s decision from 20 December 2016 into the indemnity arrangement between Lucina and members of Independent Midwives UK (IMUK), which was deemed as not ‘appropriate’.
Lucina had been providing indemnity cover to up to 80 midwives from the IMUK since 2015, but the NMC claimed that the company had inadequate funds to settle serious negligence claims like catastrophic injury, such as cerebral palsy due to negligence by a midwife.
The judge recognised that while the risk of a high value claim was low, the risk was real and the nature of the risk was very severe.
In light of the NMC’s decision, IMUK members, including the judicial review claimants, were informed that they would be removed from the NMC register by 10 January 2017 unless they provided a signed declaration that they would not rely upon the Lucina scheme for any aspect of their practice, which involved attending women in childbirth, and that they had appropriate alternative cover in place. All members of IMUK gave the signed declaration.
The Royal College of Midwives withdrew indemnity cover from independent self-employed midwives in 1994; the Medical Defence Union stopped providing cover after 2002; while the Royal College of Nursing provided antenatal and postnatal cover, but not the higher risk intrapartum cover.
The Flaxman review commissioned by the NMC and the Royal College of Midwives in 2011 concluded that independent self-employed midwives could only viably secure insurance by becoming an employee of a social enterprise or corporate structure entity.
The judge noted that before changing the rules about mandatory indemnity requirements, the Department of Health cited a 2005 case in which harm was caused to a mother and child by an independent midwife, resulting in permanent disability for the child and reconstructive surgery for the mother. The midwife had not informed her client that she had no cover, and as she had no assets, any attempt to seek redress in court would not have resulted in compensation to mother or child.
Mrs Justice Lang concluded that ‘despite the real difficulties which self-employed independent midwives face in obtaining appropriate cover, the registrar was required to treat the protection of the public as her overarching objective’.
‘In this difficult case, the Registrar had to assess a number of competing opinions, which were necessarily based on incomplete and uncertain evidence. After giving careful consideration to her decision, I did not consider that it disclosed any error of law,’ the review says.
‘She found that Lucina did not currently have recourse to sufficient assets or reinsurance to pay one large claim, or even several smaller claims, and therefore the cover was not appropriate to meet the liabilities that might be incurred.’
NMC chief executive and registrar Jackie Smith said: ‘The Judge clearly recognised that the NMC conducted a thorough and fair investigation and took the appropriate action to protect the public.
‘We have a responsibility to make sure that all women and their babies are provided with a sufficient level of protection should anything go wrong.
‘I was clear that the indemnity arrangement relied upon by some independent midwife members of IMUK was inappropriate and did not provide the level of protection that women and their families need. I’m pleased that the Judge agreed with this decision.’