The current situation in Australia will remain, with eight jurisdictions—six states and two territories—regulating the practice of nursing and midwifery until the National Registration scheme is implemented. Although similarities exist between the states and territories, there are also differences. The names of the Acts and governing bodies vary from jurisdiction to jurisdiction (see Table 13.1). It is not possible to provide a comprehensive review of all the legislation in the area in a chapter such as this; midwives are therefore encouraged to familiarise themselves with the legislation in the jurisdiction in which they practise.

Table 13.1 Statutes regulating the practice of nursing and midwifery in Australia

State/Territory	Name of the Act	Board/Council
Australian Capital Territory	Health Professionals Act 2004	ACT Nursing and Midwifery Board
New South Wales	Nurses and Midwives Act 1991	Nurses and Midwives Board of NSW
Northern Territory	Health Practitioners Act 2004	The Nursing and Midwifery Board of the Northern Territory
Queensland	Nursing Act 1992	Queensland Nursing Council
South Australia	Nursing and Midwifery Practice Act 2008	Nursing and Midwifery Board
Tasmania	Nursing Act 1995	Nursing Board of Tasmania
Victoria	Health Professions Registration Act 2005	Nurses Board of Victoria
Western Australia	Nurses and Midwives Act 2006	Nurses and Midwives Board of WA

Section 4(1) of the Nurses and Midwives Act 1991, NSW defines ‘professional misconduct’ as ‘unsatisfactory professional conduct of a sufficiently serious nature to justify the removal of the nurse’s name from the Register or Roll’. Unsatisfactory professional conduct is defined in the Nurses and Midwives Act 1991, NSW section 4(2). For the purposes of this Act, ‘unsatisfactory professional conduct’, in relation to a nurse or midwife, includes any of the following:

(a) any conduct that demonstrates that the knowledge, skill or judgment possessed, or care exercised, by the nurse or midwife in the practice of nursing or midwifery is significantly below the standard reasonably expected of a nurse or midwife of an equivalent level of training or experience,

(b) the nurse’s or midwife’s contravening (whether by act or omission) a provision of this Act or the regulations,

(c) the nurse’s or midwife’s failure to comply with an order or determination made or a direction given under section 48, 55 or 64 or with a condition of registration or enrolment,

(d) the nurse’s or midwife’s failure without reasonable excuse to comply with a direction by the Board to provide information with respect to a complaint under this Act against the nurse or midwife,

(d1) a contravention by the nurse or midwife of section 34A(4) (Power of Commission to obtain information, records and evidence) of the Health Care Complaints Act 1993,

(e) any other improper or unethical conduct relating to the practice of nursing or midwifery.

The onus of proof is on the board or council to prove the allegation against the nurse or midwife according to the civil standard of proof, which is on the balance of probabilities.

The purpose of a disciplinary hearing is not to punish the nurse or midwife, but to protect the public. While many nurses who appear before a disciplinary tribunal no doubt consider the process punitive, that is not its main purpose. While an aggrieved patient may notify the board or council of the alleged misconduct, the hearing does not provide for a compensation payment to the patient. Should a patient wish to be compensated for the loss incurred, a civil action must be brought through the courts. The boards or councils have the power to set up an independent committee of inquiry, which conducts a hearing into the alleged misconduct. The names of the committees, procedures and composition of the committees hearing the disciplinary matter varies, but each jurisdiction provides for a process designed to protect the public by ensuring that nurses and/or midwives are fit to practise. Some proceedings are open to the public.

While the procedure and composition of the committees investigating the alleged misconduct vary from jurisdiction to jurisdiction, most are informal. However, a hearing is governed by rules set out in the relevant legislation and incorporates the principles of natural justice. The main principles are that the accused must know of the allegations, and must be able to state their case, and that ‘no one may sit in judgement of another who has a vested interest in the outcome’ (McIlwraith & Madden 2006, p 16). Following a disciplinary hearing, a right of appeal exists within the respective legislation. By way of example, a breach in the rules of natural justice would give a midwife the right to appeal to another judicial body according to the specific legislation.

Impairment issues

In recognition of impairment issues where a midwife may suffer from a mental disorder or substance abuse, the appropriate action may be not to discipline (providing a disciplinary matter has not also occurred) but to support the midwife with other actions. Some boards and councils have separate committees to deal with disciplinary and impairment matters.

The Nurses and Midwives Act 1991, NSW contains the following definition:

4A Meaning of ‘suffer from an impairment’

For the purposes of this Act, a person is considered to suffer from an impairment if the person suffers from any physical or mental impairment, disability, condition or disorder which detrimentally affects or is likely to detrimentally affect the person’s physical or mental capacity to practise nursing or midwifery. Habitual drunkenness or addiction to a deleterious drug is considered to be a physical or mental disorder.

Under section 69(2) of the Nurses and Midwives Act 2006, WA certain conditions may be placed on a midwife’s registration, the registration may be suspended, or the midwife may be required to undergo counselling.

Mutual recognition legislation

Prior to the introduction of mutual recognition legislation, a nurse or midwife who wished to practise in another state or territory had to apply for registration. Each case was assessed individually and required the submission of evidence of registration in the first state. Mutual recognition legislation, first introduced by the Commonwealth in 1992 and subsequently adopted by the states and territories, has in part facilitated the process of registration from one state to another but is well short of a national registering authority. The main principle of the legislation is that a person registered in one state is entitled to be registered in another state for the equivalent occupation (section 17 Mutual Recognition Act 1992 (Commonwealth [Cth])). If any conditions are placed on practice, or the registration of a nurse or midwife is cancelled or suspended in one state following a disciplinary hearing, the person’s registration in another state is similarly affected. However, the other state may vary or waive any conditions set in the first state if this is considered appropriate given the circumstances (section 33 Mutual Recognition Act 1992 (Cth)). With the implementation of the national registration scheme it will no longer be necessary to register in each state and territory.

All states and territories have trans-Tasman mutual recognition legislation allowing for registration of nurses and midwives moving between Australia and New Zealand.

Midwifery regulation in New Zealand

Nurses Act 1977

The Nurses Act 1977 was the governing legislation for nurses and midwives in New Zealand until 2003 and it established the Nursing Council of New Zealand as the statutory body. It was the role of the Nursing Council, among other things, to regulate registration of local and overseas nurses and midwives, issue annual practising certificates, approve educational programs, and investigate and hear complaints against nurses and midwives as part of its disciplinary function.

The regulation of midwives was transferred from the Nursing Council to the Midwifery Council of New Zealand as a result of the Health Practitioners Competence Assurance Act 2003 (HPCAA). This legislation repealed the Nurses Act 1977, and other healthcare professional legislation, and established the Midwifery Council as the responsible authority to regulate the practice of midwifery.

Nurses Amendment Act 1990

Before considering the HPCAA in more detail, it is useful to briefly reflect on the enactment of the Nurses Amendment Act 1990, as the passing of this Act represented a major victory for midwives and women in New Zealand. Prior to this Amendment Act, the requirement for a doctor to oversee maternity care and be present at every birth meant that women were limited in the type of care they could access. Women who wanted to birth at home struggled to find a doctor willing to attend the birth. The 1990 Amendment Act removed the medical monopoly on maternity care and as a consequence enabled greater choice for women about who cared for them during pregnancy and birth, and where they gave birth.

For midwives, the advantages accompanying the Amendment Act were equally significant. As a profession, midwifery regained its professional autonomy and midwives were given a socially mandated right to practise independently of medical practitioners and medical oversight. In her introduction to an information booklet for providers, the Honorable Helen Clark, then Minister of Health, stated:

Statistics reflect the benefit of a commitment to natural childbirth, of continuity of care of the client and the rejection of unnecessary intervention. The majority of women have been socialized to perceive birth as an illness. The challenge of this legislation is to change this perception. (Department of Health 1990, p 1)

This was a socially and internationally unique statement. It represented an affirmation by government of the importance of natural childbirth and provided a statutory recognition that midwives were appropriate caregivers for women experiencing normal birth.

The Amendment Act also enabled midwives (through changes to other legislation) to provide a full range of maternity services, including the right to order laboratory tests and ultrasound scans, to prescribe drugs for antenatal, intrapartum and postnatal care, including the controlled drug pethidine, to refer clients to specialists, and to admit women to public hospitals under midwifery care.

The Amendment Act enabled experimental midwifery education programs to be established and paved the way for direct-entry midwifery education, which is now the most common route to midwifery registration in New Zealand. The Amendment Act was also a key step in the attainment of pay equity for midwives. This equity was reinforced through a ruling of the 1993 Maternity Tribunal, which stated that general medical practitioners and midwives provided the same level of maternity care and should be paid the same amount for providing that service.

Health Practitioner’s Competence Assurance Act 2003

Prior to the HPCAA, there were 11 recognised autonomous healthcare professions in New Zealand; each being regulated by their own governing body under separate pieces of legislation. Midwives were regulated, in a legal sense, under the auspices of the Nursing Council of New Zealand, which in turn derived its authority from the Nurses Act 1977. The introduction of the HPCAA established four new autonomous healthcare professions and their respective councils, including the ‘profession of midwifery’ and the ‘Midwifery Council’ (section 114 HPCAA). It is perhaps the world’s first, if not only, legislation that recognises midwifery as completely separate from nursing and medicine in terms of regulation. This sea-change came about partly because of political acceptance that childbirth was not an ‘illness’ but a natural and normal life event; that many midwives in New Zealand were already practising independently under a ‘continuity of care model’; and that midwives were a cohesive workforce that was professionally well supported through bodies such as the New Zealand College of Midwives.

All governing bodies of all healthcare professions are now termed ‘responsible authorities’ (section 2 HPCAA). Each responsible authority is ‘appointed in respect of the profession’ to be ‘responsible for the registration and oversight of practitioners’ of its particular profession. All responsible authorities must operate under the same provisions and procedures of the HPCAA to ensure there is ‘a consistent accountability regime for all health professions’ (section 3 HPCAA). The principal purpose of the Act is ‘to protect the health and safety of members of the public by providing mechanisms to ensure that health practitioners are competent and fit to practise their professions’ (section 3 HPCAA). It is the legal obligation of the Midwifery Council to promote the Act’s purpose when carrying out its activities. The Midwifery Council website (listed in the online resources at the end of this chapter) contains detailed information on its functions.

Midwives or those seeking to be midwives are accountable under various sections of the HPCAA, and it is recommended that practitioners or those seeking to practise obtain a copy of the legislation and have a working knowledge of its main provisions, as it is the primary legislative framework for the profession. An overview, which is not intended to be exhaustive, of some of the HPCAA’s provisions that affect midwives is set out in Box 13.1.

Box 13.1 Overview of the HPCAA

Key

HDC – Health and Disability Commissioner

HP – healthcare practitioner

HPDT – Health Practitioners Disciplinary Tribunal

PC – Practising Certificate

PCC – Professional Conduct Committee

RA – Responsible Authority

Section of the HPCAA

7. Criminal offence to claim to be an HP if not registered (fine up to NZ$10,000)

8. Prohibition against practising unless HP has Annual Practising Certificate issued by RA

9. Criminal offence to practise a ‘restricted activity’ without authority (fine up to NZ$30,000)

11–12 Requirement that RA consult, then prescribe scope of practice and qualifications for scope of practice including for overseas HPs coming to New Zealand, and that RA publish such information on the internet

15–16 May register HP who is ‘fit for registration’ (see section 16); has qualifications and is competent

16. Meaning of ‘fit for registration’

22. RA may authorise limited scope of practice of individual HP or impose conditions or supervision

23. RA registering or declining to register an HP

26–33 Issuing, declining or placing restrictions on a PC; surrendering PC

34. Describes only reason whereby one HP may notify RA of belief that another HP may pose a risk of harm to the public i.e. ‘practising below required standard of competence’

36. The circumstances under which RA may review HP’s competence

38. The various orders that RA can make following review of competence—that HPs undergo competence program; or sit exam/assessment; or have conditions placed on practice; or be counselled or assisted

39. The circumstances where RA may order on short notice that HP’s PC be suspended or have conditions imposed

41. MC authorised to establish a re-certification process

42. Obligation on HPs to make clinical records available to RA if requested on competence review or re-certification program

44. Criminal offence for any person to improperly disclose any information obtained from competence review or re-certification (fine up to NZ$10,000)

45. Obligation imposed on HP to notify RA if HP believes another HP is unable to perform professional duties due to mental or physical condition

47. et seq Process for RA and HP where HP’s health condition (under section 45) is in question—intended to be supportive of midwife

54–63 Describes purpose and rules governing Quality Assurance Activities

64. Requirement that RA forward to HDC any complaint alleging that the practice or conduct of an HP has affected a healthcare consumer

65. Requirement that RA consider what action to take when HDC refers complaint to RA concerning an HP

66. et seq Sets out the disciplinary process—referral of complaints and notices of convictions to the PCC for investigation/hearing

67. If HP has been convicted of certain types of offences, then court must notify RA of same—includes all offences potentially carrying term of imprisonment of over 3 months (whether or not HP actually imprisoned), plus other specified acts

80. Specifies the various determinations and recommendations a PCC can make following a hearing, including that a charge be brought against the HP before the HPDT

84. et seq Sets out the process for the laying and hearing of charges before the HPDT

95. Criminal offence to breach a name or other suppression order of the HPDT (NZ$10,000)

101. Specifies the various disciplinary orders the HPDT can make, including cancellation or suspension of registration; supervision; practice upon conditions; fine up to NZ$30,000; censure; and/or payment towards costs of the legal proceedings

136. Requirement that RA maintain a public register

172. Criminal offence to knowingly make false declaration or false representation to RA, HPDT or PCC (fine up to NZ$10,000)

OTHER STATUTES THAT PROTECT PUBLIC SAFETY

Complaint procedures and professional negligence in Australia

Unlike New Zealand, Australia does not have a no-fault liability scheme to compensate injured clients. Following an adverse event, a client may choose to seek redress in a number of ways. They may go directly to the healthcare provider, which may be an institution or midwife. Alternatively, they may sue the midwife in negligence or they may take their grievance to a healthcare complaints authority.

Professional negligence

Negligence is part of tort law, which seeks to compensate persons injured through an act or omission of another. The purpose of this is to put the person in the position they would have been in had they not been injured (Forrester & Griffiths 2005).

Civil liabilities legislation has been enacted in the states and territories in response to the so-called medical insurance crisis (Skene 2008). Legislation now provides for a statutory basis for the principles of negligence, which were based on common-law principles. In negligence, the plaintiff must prove that a duty of care was owed, that there was a breach in the duty of care—that is, the standard of care fell below that of an ordinary reasonable midwife given the circumstances—and that the damage or injury was a reasonably foreseeable consequence of that breach.

There is no question that a midwife owes a client a duty of care. To successfully argue otherwise would in most cases be extremely difficult. Lord Atkin, in the now famous case of Donoghue v Stevenson [1932], established to whom a duty of care is owed.

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 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] AC 562 at 580)

The statutory duty of care is identified in section 5B of the Civil Liability Act 2002, WA; similar provisions exist in other jurisdictions within Australia.

Section 5B

(1) A person is not liable for harm caused by that person’s fault in failing to take precaution against a risk of harm unless—

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known);

(b) the risk was not insignificant; and

(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things)—

(a) the probability that the harm would occur if care were not taken;

(b) the likely seriousness of the harm;

(d) the social utility of the activity that creates the risk of harm.

Once a duty is established, the plaintiff must prove that the midwife breached her duty of care or that it was her fault that the injury occurred. The test used to establish a breach is one of reasonableness. The standard required of a midwife is an objective test according to what a ‘reasonable midwife’ would or would not have done in the circumstances. In determining whether the standard has been met, the court will consider not only expert evidence but various documents such as appropriate statutes, hospital policy and the midwife’s case notes.

To prove causation the plaintiff must prove that the breach of duty by the defendant caused the injury. In other words, it cannot be too remote. The traditional test in Australia has been the ‘but for’ test—expressed as ‘would the plaintiff’s injury or loss have occurred “but for” the defendant’s negligent act or omission’ (Skene 2008). Civil liabilities legislation now requires a factual causation; that is, whether the harm was caused by the negligence and whether ‘it is appropriate to extend the scope of the tortfeasor’s (defendant’s) liability to the harm so caused (scope of liability)’ (s5C Civil Liability Act 2002, WA).

The plaintiff always bears the onus of proof, according to the civil standard of proof; namely, on the balance of probabilities (s5D Civil Liability Act 2002, WA).

Health complaints authorities in Australia

Each state and territory has an independent healthcare complaints body, set up under specific legislation to deal with complaints about healthcare providers and services (see Table 13.2). The healthcare complaints authorities are in recognition of an increase in patients’ rights (McIlwraith & Madden 2006) and in acknowledgement that it may not be appropriate to take every grievance through the courts.

Table 13.2 Australian health complaints authorities

Legislation	Complaints body
Human Rights Commission Act 2005, ACT	Human Rights Commission
Health and Community Services Complaints Act 1998, NT	Health and Community Services Complaints Commission
Health Quality and Complaints Commission Act 2006, Qld	Health Quality and Complaints Commission
Health and Community Services Complaints Act 2004, SA	Health and Community Services Complaints Commission
Health Complaints Act 1995, Tas	Health Complaints Commission
Health Care Complaints Act 1993, NSW	Health Care Complaints Commission (HCCC)
Health Services (Conciliation and Review) Act 1987, Vic	Health Services Commissioner
Health Services (Conciliation and Review) Act 1995, WA	Office of Health Review

An aggrieved patient may choose not to purse litigation through the courts. The process is time-consuming, expensive and stressful whether or not the case proceeds to court. An alternative means of resolution is through a healthcare complaints authority, where the patient can make a complaint about the healthcare provider. The legislation varies from jurisdiction to jurisdiction, but in general the aim of the legislation is to provide an independent body for the resolution of complaints between healthcare consumers and providers.

The complaint must allege that the healthcare service provider acted unreasonably in one or more areas, such as: not providing a healthcare service; in the manner of providing a healthcare service; denying or restricting the user’s access to the records kept by the healthcare provider; in disclosing or using the user’s health records or confidential information or in the fee charged (s25 Health Services (Conciliation and Review) Act 1995, WA). There is an expectation that the patient will have attempted to resolve the issue with the healthcare provider before making a complaint (s30 Health Services (Conciliation and Review) Act 1995, WA).

The commissioner or director of the healthcare complaints authority has the power to investigate and conciliate a matter arising from a complaint. For a matter to be conciliated requires the consent of both parties. If appropriate, the matter can be referred to the registering authority of the professional involved for investigation (s32 Health Services (Conciliation and Review) Act 1995, WA).

Complaint procedures and professional negligence in New Zealand

The New Zealand legal system was founded on the English legal system, following both its Westminster style of government and adopting the English ‘common law’ (also known as ‘judge made law’). As a result, and up until 1974, medical malpractice litigation was the only legal redress for citizens’ monetary claims against healthcare professionals, and was based on the common-law tort based on a duty of care. Australia, which also followed the English model, continues to have a similar system based on tort law. In 1974, New Zealand replaced the tort-based system with a government-funded ‘no-fault’ compensation system operated by the Accident Compensation Corporation (ACC).

The ACC regime, however, required (and still requires) proof of some physical or mental injury and, in the absence of such injury, consumers were not generally enabled to complain about service quality until the introduction of the Health and Disability Commissioner Act 1994. Now, in New Zealand, it is the statutory right of every consumer of a healthcare or disability service to complain about a provider in any form appropriate to the consumer according to the Code of Health and Disability Services Consumers’ Rights (the Code). Accordingly, every healthcare provider must also have a complaints procedure that complies with the Code. The healthcare professional concerned is required to ‘facilitate the fair, simple, speedy, and efficient resolution of complaints’. Towards that end, the midwife must follow a timetable for response and consideration of the complaint. The midwife must also inform the consumer of any internal and external complaints procedures, including the availability of the Health and Disability Commissioner (HDC) and independent advocates appointed under the Health and Disability Commissioner Act 1994. (The full text of the Code is set out in Box 13.3, later in this chapter.)

Box 13.2 NZCOM advice on responding to a complaint

If you are involved in a case in which you may be held to account for your practice, the following steps, from the NZCOM booklet ‘Unexpected Outcome?’ (2008b), are advised for members. Non-members and Australian midwives may wish to adapt the steps to their particular circumstances.

• Contact the NZCOM Legal Advisor at the earliest possible opportunity and before you provide any written information to any agency.

• The clinical records are vitally important—review them immediately after the event, and as soon as possible make additional notated retrospective entries if necessary. Always date and sign your entries and identify them as retrospective. Ask your colleagues to review the records for you.

• Write down your detailed reflections (thoughts) and account of the case as soon as possible after the case in a separate private record. Sign and date this record and keep it in a safe place.

• Seek the support of your colleagues so you can take time out if you need to and have additional support in your practice for as long as you need it.

• Seek the support of your family and friends to make sure you get the necessary emotional support.

• Ensure that the woman receives ongoing midwifery care.

• Consider any NZCOM Resolutions if the family wants assistance to resolve any issues.

• NZCOM provides a professional framework, systems and structures to support you.

• Consider taking an NZCOM Special Review of the case; or review with peers, that is other health professionals.

• It may be some time (if at all) before you are held to account for your practice in relation to this case.

The most common areas of complaint against midwives relate to poor communication; poor documentation; lack of informed consent; failure to recognise and act on deviations from normal, particularly with respect to fetal heart patterns and failure to progress; and failure to refer women to a specialist in a timely and appropriate manner. These same themes occur in obstetric or maternity complaints across almost all international jurisdictions.

The majority of midwives, not surprisingly perhaps, find being the subject of a complaint stressful and, in line with how other healthcare professionals react, may commonly experience such feelings as shame, guilt, anger and depression and fear as to the consequences to them both professionally and financially. A complaint can take months if not years to be resolved, and the same complaint may receive multiple airings or investigations under different jurisdictions—all adding to the responsibilities for the midwife concerned. While the legal processes themselves may create professional responsibilities (such as the need to consult lawyers, draft written statements, attend meetings or appear in court), providing that appropriate professional indemnity insurance is in place and legal advice sought at an early stage, it is important to put the potential consequences into perspective. Figures from the New Zealand College of Midwives’ 2008 Annual Report (NZCOM 2008a), which comprise statistics for over 90% of the midwifery workforce including most self-employed practitioners, indicate the number of cases dealt with by the legal section to be small in relation to the number of midwifery transactions occurring:

• 2006–2007: 107 cases

• 2007–2008: 116 cases.

Of the 1292 complaints received by the HDC for the year ended June 2008 in respect of all 15 healthcare professions, only 100 led to a formal investigation of which 59% were found to be in breach of the Code (HDC 2008). In the period 2004–2008, two midwives had charges of professional misconduct proven against them; neither, in the event, was de-registered. As is often the case in professional negligence claims, matters will often only become this serious when the healthcare professional practises in isolation; is not an active member of a professional organisation such as NZCOM; has not ensured that professional indemnity cover is maintained; or does not accept or recognise the nature of the problem and seek collegial or legal assistance. Without minimising the effect of complaints on a practitioner, and recognising that there are instances where unfortunate outcomes may ensue if the practitioner is not well guided and represented, the medico-legal environment in New Zealand can still be said to be relatively benign, compared with that in many countries. Certainly, it is the opinion of the Office of the Health and Disability Commissioner that:

[There is a] growing recognition in New Zealand and internationally that patient safety is best promoted by focusing on the systems that contribute to adverse events, and learning from mistakes. Rather than seeking to ‘name, blame, and shame’ individual practitioners (in disciplinary or court proceedings), the new approach has been to ‘compensate and rehabilitate injured patients (under the treatment injury’ cover provisions of the revised accident compensation legislation), attempt to resolve complainants’ concerns (by informal meetings, involvement of patient advocates, and formal mediation in a few cases), and prevent recurrences by recommendations to improve individual and system performance. Practitioners have been encouraged to ‘openly disclose’ their mistakes. Legal protection for approved ‘quality assurance activities’, together with a generally benign approach of health sector employers and regulatory authorities, should give practitioners reasonable confidence that they will not be punished for their mistakes. (HDC 2006)

Most midwives will seek legal advice when they first become aware of a complaint, or when they anticipate that a complaint may arise. Prompt notification of complaints is a condition of most professional indemnity insurance policies, to ensure that the complaint is appropriately managed from an early stage. Low-level resolution of the complaint is the preferred outcome for any provider. Resolution avenues such as prompt and appropriate direct communication, the NZCOM Complaints Resolution Service or the nationwide Health and Disability Advocacy Service should be considered.

Legal standards of care

Standard of care—civil cases

The general standard is variously described as whether the care was ‘adequate’ or what the majority of midwives would consider as ‘reasonable care in the circumstances’. What is ‘adequate’ or ‘reasonable’ in any given situation may give rise to debate. Deciding bodies such as the HDC, Coroner and ACC are not usually clinically qualified to assess the appropriateness of care and they will often refer such questions to individual experts. The Midwifery Council has its own expertise, however, and does not need to seek outside opinion. It is generally the case that expert midwives will comment on midwifery care; however, obstetric opinion is sometimes taken into account or followed. Tensions can sometimes arise when midwifery and obstetric experts disagree on what is ‘reasonable care’, as was highlighted in 2008 by the HDC when, in a case involving a remote rural birth, he stated:

It seems that obstetricians (who take a risk-averse, interventionist approach) and midwives (who take a less interventionist approach, to allow the normal physiological process of labour to proceed) do not agree on what is reasonable care in this type of situation. The differing philosoply and practice is evident in the approach to key issues in this case, including the frequency of fetal heart monitoring (given the long labour and the presence of meconium-stained liquor) and the timing of the decision to transfer to secondary services… It is a curious situation where ACC accepts that the midwife’s delay amounted to ‘poor practice’, but midwifery advisors describe the same care as ‘reasonable’ and ‘close and appropriate’. (HDC 2008b)

The Commissioner chose to accept the expert midwife’s opinion in this instance, but that may not always be the case and Coroners still regularly refer to obstetric opinion in cases involving midwives.

The primary references for determining whether care was reasonable are: