Chapter 9 Law and the midwife
Learning Outcomes
After reading this chapter, you will be able to:
This chapter includes an introduction to the Courts and how laws are made. It explores the key legislation that affects the practice of midwifery and provision of maternity care services.
Introduction to the law: the courts and how laws are made
The courts (Fig. 9.1)
In addition to the court system outlined above, there are Coroners Courts and various administrative tribunals that also administer the law, for example, Employment Tribunals.
Since devolution, Northern Ireland, Scotland and Wales are able to enact their own statutes within specified areas.
Classification of the law
The most common distinction made is between criminal and civil law. A criminal offence is where the law (statute or common law – see below) forbids a particular activity which can then be followed by criminal proceedings against the accused. The prosecution must establish beyond reasonable doubt the guilt of the accused. In the Crown Courts, if the accused pleads not guilty, a jury will hear the case and determine guilt or innocence.
Civil proceedings take place between individuals and organizations in order that one party can obtain a remedy (for example, an injunction forbidding the other party to act in a particular way) or compensation. In civil courts, the standard of proof is ‘on the balance of probabilities’.
Some actions may give rise to both civil and criminal proceedings. Thus, touching a person without the person’s consent may be both a trespass to the person (which is a civil matter) and also constitute the criminal offence of assault or battery.
Another distinction in law is that between private and public law:
Some statutes may cover both areas: thus, the Children Act 1989 has some sections that deal with matters of a private nature; others deal with public issues, such as the role of local authorities in child protection.
Sources of the law
The law recognized in this country derives from two main sources:
Legislation
Britain is obliged as a member state of the the European Union (EU) to ensure that EU Directives and Regulations are enforced in this country, and appeals can be made to the European Court of Justice.
In the UK, when legislation is proposed, the usual practice is for a consultation paper to be issued (known as a Green Paper). Following consideration of the feedback, a White Paper is then issued setting out the Government’s intentions. The contents of this White Paper are incorporated into a Bill which is then passed through the various stages of Parliament and, when agreed by both House of Commons and House of Lords, is signed by the Queen. The Bill then becomes an Act and comes into force on a date set either in the Act itself or at a later date set out in a Statutory Instrument. The Act of Parliament may provide for the delegation to Ministers and others of powers enabling detailed rules to supplement the Statute to be enacted. These are known as Statutory Instruments or secondary legislation. They must be placed before Parliament before coming into effect.
Common law
Decisions by judges in courts create what is variously known as the common law, case law or judge-made law. The decisions of the courts create precedents which may be binding on courts below them in the court hierarchy. This is called the doctrine of precedent. Thus, decisions of the Supreme Court (replacing the House of Lords in its judicial format) are binding on those courts below it, but not itself; and decisions of the Court of Appeal are binding on itself and those courts below it.
The doctrine of precedent relies on a recognized system of reporting of judges’ decisions, which ensures certainty over what was stated and the facts of the cases. The decisions are recorded in law books such as the All England Law Reports or the Weekly Law Reports. Every case is identified by the year it was heard, the volume number and page number. For example, the case of Bolam v. Friern Hospital Management Committee is cited as [1957] 1 WLR 582. This means that it was reported in 1957, in the first volume of the Weekly Law Reports at page 582. It is also reported in other series such as the All England Law Reports.
The main principles which are set out in a case are known as the ratio decidendi (reasons for the decision). Other parts of a judge’s speech which are not considered to be part of the ratio decidendi are known as obiter dicta (things said by the way). Only the ratio decidendi are directly binding on lower courts, but the obiter dicta are said to be ‘persuasive’ because they may influence the decision of judges in later court cases. It may be possible for judges to ‘distinguish’ the current case under consideration from previous cases and not follow them on the grounds that the facts are significantly different.
The Human Rights Act 1998
The European Convention for the Protection of Human Rights and Fundamental Freedoms (1951) provides protection for the fundamental rights and freedoms of all people. The UK is a signatory, as are many European countries which are not members of the European Union. Thus, Norway is a signatory to the European Convention on Human Rights but not a member of the European Union. The Convention is enforced through the European Court of Human Rights, which meets in Strasbourg. However, following the passing of the Human Rights Act 1998, since 2 October 2000 most of the articles are directly enforceable in the UK courts in relation to public authorities or those exercising functions of a public nature. Of particular significance in healthcare are:
Other articles may also be relevant to the rights of patients and employees.
Under the Human Rights Act 1998, judges have a duty to refer back to Parliament for its consideration, legislation which they consider is incompatible with the rights set out in the European Convention. Parliament can then decide if that Act should be changed. The existence of a right to take a case for violation of rights to the courts of this country does not prevent a person taking a case to the European Court in Strasbourg. Further information including guidance and the latest cases can be obtained from the Ministry of Justice website (www.justice.gov.uk). Organizations exercising functions of a public nature are obliged to recognize and implement rights as set out in the Articles. Section 145 of the Health and Social Care Act 2008 provides for the provision of certain social care to be seen as a public function. Section 145 states that:
(1) A person (“P”) who provides accommodation, together with nursing or personal care, in a care home for an individual under arrangements made with P under the relevant statutory provisions is to be taken for the purposes of subsection (3)(b) of section 6 of the Human Rights Act 1998 (c. 42) (acts of public authorities) to be exercising a function of a public nature in so doing.
Midwives rules and the code of professional conduct
The statutory system of the regulation of nursing, midwifery and health visiting set out in the Nurses, Midwives and Health Visitors Act 1979 (as amended by the 1992 Act) went through radical changes following a review of the statutory bodies (JM Consulting 1998) and the revised Health Act (1999) and Orders (2002). In April 2002, the Nursing and Midwifery Council (NMC) was established and has revised much of the guidance originally provided by the UKCC. This includes the Midwives rules and code of practice. Codes of practice are complementary to the rules but, unlike the practice rules, do not have the force of law. Midwives are also expected to comply with the NMC Code of Professional Conduct: standards for performance, conduct and ethics (NMC 2008a) and other guidance from the NMC. Every midwife should ensure that they have copies of all the relevant NMC guidance which is available online from the Nursing and Midwifery Council (www.nmc-uk.org/). Box 9.1 indicates the purpose of the Midwives rules, which are set out under Statutory Instruments, and Box 9.2 sets out the midwife’s responsibility and sphere of practice.
Box 9.1
Aims of the Midwives Rules as set out in Article 42 of the NMC Order 2001
Box 9.2 Rule 6
Responsibility and sphere of practice
Supervision
Midwives are the only group of health professionals to have a statutory system of supervision. Appointed by the local supervising authority, the supervisor of midwives has clear statutory responsibilities in relation to the positive promotion of a high standard of midwifery practice, and the protection of the public. In 2006, the NMC published standards for the preparation and practice of supervisors of midwives and, in 2007, standards for supervised practice of midwives. In 2008, the NMC replaced the ENB publication on midwifery supervision with its own Modern supervision in action: a practical guide for midwives (NMC 2009).
Litigation
In 2007–08, 5470 claims of clinical negligence and 3380 claims of non-clinical negligence against NHS bodies were received by the NHS Litigation Authority (which is a Special Health Authority responsible for handling both clinical and non-clinical negligence cases on behalf of the NHS in England). There were 16,959 ‘live’ claims as at 31 March 2008 and it paid out £633,325 million in connection with clinical negligence claims. Of the 45,404 cases dealt with by the NHS Litigation Authority (NHSLA) since its creation in 1995, 9477 (21%) were for obstetrics and gynaecology, but looking at the total value of £6.5 billion, £3.3 billion was spent on obstetrics and gynaecology cases. So, 20% of the cases accounted for 50% of the expenditure, which is explained by the very high cost of obstetric claims (www.nhsla.com/home). The NHSLA estimates that its total liabilities (including claims not yet reported to it) are £21.06 billion. In an effort to reduce the costs of clinical negligence claims, the NHS Redress Act 2006 was passed to establish an alternative route for compensation to be paid without necessitating action in the civil courts. It remains to be seen whether it will become an effective alternative to legal action through the courts.
Negligence
What is negligence?
Negligence is the most common civil action, brought in situations when the claimant alleges that there has been personal injury, death, or damage or loss of property. Compensation is sought for the loss which has occurred. To succeed in the action, the claimant has to show the following elements:
Duty of care
The law recognizes that a duty of care will exist where one person can reasonably foresee that his or her actions and omissions could cause reasonably foreseeable harm to another person. A duty of care will always exist between the health professional and the patient, but it might not always be easy to identify what this includes. Where there is no pre-existing duty to a person (for example, an existing professional and patient relationship), the usual legal principle is that there is no duty to volunteer services (that is, perform a ‘good Samaritan’ act). The NMC recognized that there may be a professional duty to volunteer help in certain circumstances in the code published in 2002 (but not included in its revised code of 2008) (NMC 2008a).
You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who then in law is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.
Breach of duty
Determining the standard of care
In order to determine whether there has been a breach of the duty of care, it will first be necessary to establish the required standard of care. The courts have used what has become known as the ‘Bolam Test’ to determine the standard of care required by a professional. In the case from which the test took its name, the court laid down the following principle to determine the standard of care which should be followed:
The standard of care expected is ‘the standard of the ordinary skilled man exercising and professing to have that special skill’.
The Bolam Test was applied by the House of Lords in a case where negligence by an obstetrician in delivering a child by forceps was alleged:
When you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not … is the standard of the ordinary skilled man exercising and professing to have that special skill. If a surgeon failed to measure up to that in any respect (clinical judgement or otherwise) he had been negligent and should be so adjudged.
In this particular case, the House of Lords found that the surgeon was not liable in negligence and held that an error of judgement may or may not be negligence. It depends upon the circumstances.
This standard of the reasonable professional man following the accepted approved standard of care can be used to apply to any professional person: architect, lawyer, accountant, as well as those working in health. The standard of care which a practitioner should have provided would be judged in this way. Expert witnesses give evidence to the court on the standard of care they would expect to have found in the circumstances before the court. These experts would be respected members of the profession of obstetrics and midwifery, possibly a head of a department or training college, and lawyers would look to the leading organizations of individual professional groups to obtain recommended names.
Reflective activity 9.2
Consider any incident of which you are aware, when harm (nearly) occurred to a woman or baby. What potential hearings could take place as a result of this harm and what would have to be shown to secure a conviction/guilt/liability?
In a civil action, the judge would decide in the light of the evidence that has been given to the court, what standard should have been followed.
The standards at the time of the alleged negligence apply; not the standards at the time of the court hearing. This is significant, since many cases take several years to come to court, in which time standards may have changed. Reference is made to literature and procedures which applied at the time of the alleged negligence to establish if a reasonable standard of care was followed.
Experts can of course differ. A case may arise where the expert giving evidence for the claimant states that the accepted approved standard of care was not followed by the defendant or its employees. In contrast, the expert evidence for the defendant might state that the defendant or its employees followed the reasonable standard of care. Where such a conflict arises, the House of Lords has laid down the following principle:
It was not sufficient to establish negligence for the plaintiff (that is, claimant) to show that there was a body of competent professional opinion that considered the decision was wrong, if there was also a body of equally competent professional opinion that supported the decision as having been reasonable in the circumstances.
The determination of the reasonable standard of care was considered by the House of Lords in the case of Bolitho v. City and Hackney Health Authority, when it was stated that:
The court had to be satisfied that the exponents of the body of opinion relied on can demonstrate that such opinion has a logical basis. In particular in cases involving, as they often do, the weighing of risks against benefits, the judge, before accepting a body of opinion as being responsible, reasonable or respectable, will need to be satisfied that, in forming their views, the experts had directed their minds to the question of comparative risks and benefits and had reached a defensible conclusion on the matter.
The use of the adjectives ‘responsible, reasonable and respectable’ (in the Bolam case) all showed that the court had to be satisfied that the exponents of the body of opinion relied upon could demonstrate that such opinion had a logical basis.
It would seldom be right for a judge to reach the conclusion that views held by a competent medical expert were unreasonable.
Rule 35 of the new civil court proceedings sets out the duties of experts and assessors. There is a duty to restrict expert evidence to that which is reasonably required to resolve the proceedings. The Rules can be accessed on the website for the Ministry of Justice (http://www.justice.gov.uk/civil/procrules_fin/index.htm).
Government documents (Department of Health 1997, 1998, 1999, 2000) have placed increasing emphasis on standard setting, clinical governance and effective risk management. The National Institute for Health and Clinical Excellence (NICE – www.nice.org.uk), the Care Quality Commission (www.cqc.org.uk – which has replaced the Healthcare Commission) and National Service Frameworks (NSF) are leading to more guidance on standards to be achieved in all departments of a hospital and in community care. They are described in more detail later in this chapter and in Chapters 3 and 7. It is anticipated that these standards will be incorporated into the Bolam Test of reasonable professional practice. Practitioners are expected to follow the results of clinical effectiveness research in their treatment and care of patients. Patients are able to use these national guidelines to argue that inadequate care has been provided in their case, as a result of which they have suffered harm.
In 2008, the four Royal Colleges – Midwives, Obstetricians and Gynaecologists, Anaesthetists, and Paediatrics and Child Health – co-operated in the preparation of a single, comprehensive document setting out 30 standards for maternity care. The document is available on the website of the Royal College of Obstetricians and Gynaecologists (http://www.rcog.org.uk/womens-health/clinical-guidance/standards-maternity-care).
Communication – between professionals, departments and with patients – is crucial to a reasonable standard of care. This is particularly important where one person is designated as the key worker on behalf of the multidisciplinary team. However, the Court of Appeal has stated that the courts do not recognize a concept of team liability and it is therefore for each individual professional to ensure that his or her practice is in accordance with the approved standard of care (Wilsher v. Essex Area Health Authority, 1986). Professionals should not take instructions from another professional which they know would be contrary to the standard of care that their profession would require. Failure to follow up a cytology report led to compensation being paid to the dead patient’s husband (Taylor v. West Kent Health Authority, 1997). This is supported by the NMC Code (2008a) which states that:
Has there been a breach of the duty of care?
Once it has been established in court what the reasonable standard of care should have been, the next stage is to decide whether or not what took place was in accordance with the reasonable standard – that is, whether there has been a breach of the duty of care or not. Evidence will be given by witnesses of fact as to what actually took place. Clear comprehensive documentation will be an important element in determining the facts of what took place. In a case where it was alleged that there had been negligence by a registrar following a forceps delivery, which led to damage to the anal sphincter, the court applied the test of the reasonable standard of care at the time of the birth and found the defendant not to be liable (Starkey v. Rotherham NHS Foundation Trust, 2007).
Causation
The claimant must show not only that there was a breach of the duty of care, but that this breach of duty caused actual and reasonably foreseeable harm to the claimant. This requires:
Factual causation
There may be a breach of the duty of care and harm but no link between them. In the case of Barnett v. Chelsea Hospital Management Committee (1968), a casualty officer failed to examine patients who came to the A&E department, when they were vomiting very badly. However, the widow of one was unable to obtain compensation, since it was established on the facts that because the man was suffering from arsenic poisoning, he would have died even if reasonable care had been provided. The breach of duty by the doctor therefore did not cause the man’s death.
The onus is on the claimant to establish that there is this causative link between the breach of the duty of care and the harm which occurred. In the case of Wilsher v. Essex Area Health Authority (1988), the claimants failed to establish that excess oxygen (resulting from the placing of a catheter to monitor oxygen in the vein, rather than in the artery) had caused the retrolental fibroplasia suffered by the baby. The House of Lords ordered a new hearing on the issue of causation, because excess oxygen was only one of five factors which might have caused the blindness. The parties then agreed to a settlement.
In a case where a baby suffered brain damage, an allegation that a midwife was negligent in failing to call a registrar an hour earlier to consider a caesarean section succeeded. The court held that this failure had led to the delay in deciding a caesarean delivery was appropriate. The court also held that the registrar was also negligent in failing to recognize the change in contraction patterns (Khalid v. Barnet and Chase Farm Hospitals NHS Trust, 2007).
Reasonably foreseeable harm
The harm which might arise may not be within the reasonable contemplation of the defendant, so that even though there is a breach of duty and there is harm, the defendant is not liable. This is because a negligent act may set off a ‘chain reaction’ of consequences and the courts have decided that there should be some limit on the liability of the defendant. For example, a midwife may have delayed in referring a woman for advice from an obstetrician and thus been in breach of her duty of care to the woman, but because of underlying medical problems suffered by the woman, the harm which arose was not reasonably foreseeable by the midwife.
No intervening cause which breaks the chain of causation
It may happen that any causal link between the claimant’s breach of duty and the harm suffered by the client is interrupted by an intervening event. For example, an independent midwife contrary to the reasonable accepted practice may have arranged to take a woman in labour in her car, but as a result of a road accident for which the midwife was not responsible, the woman suffered injuries and the baby was stillborn. The road accident would be seen as an intervening event which broke the chain of causation.

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