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

1 Determine the circumstances in which and the procedure by means of which midwives may be suspended from practice.

2 Require midwives to give notice of their intention to practise to the local supervising authority in the area in which they intend to practise (in addition, if midwives practise in an emergency outside their normal authority they have to notify the new health authority within 48 hours).

3 Require registered midwives to attend courses of instruction in accordance with the rules.

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:

1 that the defendant owed the person harmed a duty of care

2 that the defendant was in breach of that duty

3 that the breach of duty caused reasonably foreseeable harm

4 that the claimant has suffered harm recognized in law as compensable.

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).

In one case, the House of Lords defined the duty of care owed at common law (that is, judge-made law) as being:

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.

(Donoghue v. Stevenson, 1932)

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’.

(Bolam v. Friern Hospital Management Committee, 1957).

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.

(Whitehouse v. Jordan, 1981)

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.

(Maynard v. W Midlands Regional Health Authority, 1985)

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.

(Bolitho v. City and Hackney Health Authority, 1997)

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).

Midwives who decide that, in the light of the specific circumstances of a case, a procedure or protocol or guideline is not entirely appropriate, should ensure that clear documentation is completed including all the circumstances and reasons for the inappropriateness of the guideline, so that their practice can be seen to be justifiable against the standard of the reasonable practitioner.

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:

You are personally accountable for actions and omissions in your professional practice and must always be able to justify your decisions. You must always act lawfully, whether those laws relate to your professional practice or personal life.