Law and Ethics for Midwifery

Elinor Clarke

• Publisher: Taylor & Francis
• Year: 2015
• Print ISBN: 9780415675246
• eBook ISBN: 9781317428954
• Edition: 1
• Topic: Medicine
• Subtopic: Nursing

Legal and ethical competence is a cornerstone of professional midwifery practice and an essential part of midwifery training. Law and Ethics for Midwifery is a unique and practical resource for student midwives.

Written by an experienced midwifery lecturer, this text draws on a wide variety of real life case studies and focuses particularly on the core areas of accountability, autonomy and advocacy. Opening with two chapters providing overviews respectively of ethical theories and legislation, the book is then arranged thematically. These chapters have a common structure which includes case studies, relevant legislation, reflective activities and a summary, and they run across areas of concern from negligence through safeguarding to record-keeping.

Grounded in midwifery practice, the text enables student midwives to consider and prepare for ethical and legal dilemmas they may face as midwives in clinical practice.

Part I Theory

DOI: 10.4324/9781315691053-1

1 Introduction to Law and Ethics for Midwifery

DOI: 10.4324/9781315691053-2

Knowledge and understanding of ethics and law are paramount to the midwife working in all environments and throughout the world. The purpose of the book is to assist midwives to have an understanding of appropriate ethical, legal and professional frameworks for caring and supporting childbearing women and their families. Of particular importance is the emphasis on the links between theory and practice. It aims to help health and social care practitioners, and specifically pre-registration midwives, understand how ethical dilemmas which occur during clinical practice can be explained by ethical theories and principles and how legislation and litigation has contributed and shaped practitioners’ responses and actions.

Law and Ethics for Midwifery is not intended as a traditional textbook. This book is different in that it uses a case study approach (Stake, 1995). The intention is to identify relevant ethical and legal theory and principles, consider through the use of case study analysis an exploration of the ethical dilemmas and the legal implications faced by midwives, and explore the outcomes. The four spheres of accountability (Griffith et al., 2010: 1) are fundamental to the case study chapters. Clinical midwifery practice is a part of an increasingly complex maternity care that is not based solely on routine, guidelines or procedures. Midwifery is an art and a science and as such requires midwifery care to be ethical and lawful, as well as evidenced-based. Relationships between women and midwives are based upon trust and sharing of knowledge, these ethical aspects of the role of the midwife are fundamental to the maternity services. Each case study chapter (6–18) will identify ethical issues and legal aspects, and provide a case study followed by a practice check and useful websites. This case study approach is intended to maximise learning. The book is intended primarily for undergraduate student midwives, but students across health and social care disciplines and other healthcare professionals in clinical practice will be familiar with the specific dilemmas and the experiences identified.

The author has chosen to consider issues which are controversial (abortion and surrogacy); inherently troublesome (assisted reproduction, termination of pregnancy, surrogacy, emergency Caesarean section); and contemporary issues (vulnerable women, birth environment, Caesarean section on demand, criminality of home birth). Ethical and legal aspects (as opposed to clinical care) of midwifery practice are also addressed (medicines, records and confidentiality). Ethical issues will be mainly addressed from a principles-based approach, with the exception of Chapter 17 which will be from a virtues approach. Frequently, textbooks steer away from controversial and complicated issues due to the complexity of the situation or fear of controversy of addressing ‘sensitive’ issues. Those authors who do tackle controversial or troublesome topics often prefer to address theoretical concepts only. The combining of theory and practice facilitates understanding of ethical concepts and an appreciation of how different people may approach a situation (Jones, 2000a). Midwives have historically been brave and tackled difficult situations, supported women’s rights, fought for independence and found themselves to be different from other healthcare professionals. In many situations the midwife has been a lone voice in a variety of settings (social care, education, politics and finance). Law and Ethics for Midwifery should help midwives to raise ethical issues and support legislation which addresses the complexity of childbirth. There is a need to debate and discuss difficult or complex issues, to prepare midwives for the variety and complexity of the situations women and midwives experience throughout childbirth.

This book is intended to consider ethical as well as legal issues that are relevant to midwifery practice and to utilise a case study approach to enable the reader to develop understanding of the issues. Traditionally, a case study approach has helped midwives, doctors, midwifery and medical students to explore principles, pathology and skills surrounding childbirth. Clinical skills training has adopted a case study approach to emergency training or skills drills. Rayner et al. (2012) used a case study approach to explore maternity emergencies and critical illness. Students may find the case study to be an alternative learning tool, helping them to consider healthcare from different perspectives. The case is instrumental in enabling students to understand how ethical reasoning and different approaches may be adopted. Jones (2000a) suggested that undertaking discussion around constructed cases encourages additional student activity, enables ethical issues to be identified and possible actions to be taken. Case study analysis is a safe approach to explore complex issues. Some students will be familiar with a case study approach and this book adopts such an approach using ‘real’ incidents from clinical practice. All of the cases are based upon a real incident from clinical practice. The names, location and characters used in the case studies are fictitious to maintain the confidence of individuals, healthcare providers and health services. With regard to legal cases, these are in the public domain and their sources are attributed. The intention is to identify main theory, statute and principles and to then apply these to a clinical case (incident or experience). The author will provide illustrations of possible outcomes and identify relevant legislation and case law. It is recognised that the focus is UK centric; however, midwifery education and practice is informed by European Directives (EDs), which will be identified where relevant. It is not intended to provide an international legal approach at this time, although the author acknowledges the need for such an approach – maybe another book in the future? The learner will have the opportunity to reflect and evaluate their understanding. Throughout this approach professional regulation, conduct and performance will be considered and applied.

The development of law and ethics into the midwifery curriculum has been gradual. Student midwives currently undertake approximately 50 per cent of their programme (NMC, 2008b) in clinical practice and are exposed to and experience situations which challenge their own beliefs and attitudes, cause anxiety and trouble the students (ethical dilemmas). Clinical guidelines (NICE, 2014) increasingly control practice yet they may not be in keeping with a childbearing woman’s wishes or expectations. It is understandable that midwives feel caught between providing evidenced-based care (professionally considered to be the goal) and responding to pressures of individualised or personalised care. Traditional education and training does not necessarily address these dilemmas. Midwifery textbooks such as Mayes’ Midwifery (Sweet, 1982; Henderson and MacDonald, 2004) and Myles Midwifery (Fraser and Cooper, 2009) have identified midwifery regulation and rules. In 1994, Brigit Dimond published the first textbook specifically considering the legal aspects of midwifery, and further editions have followed (2002, 2006, 2013). Subsequently, Jones and Jenkins (2004) and Griffith et al. (2010) focused on the law and considered legal frameworks, while others (Jones, 2000a; Frith and Draper, 2004) identified ethical theory. In recent years midwifery interest in law and ethics has increased and been evident. Master’s courses in medical ethics have been popular with midwives, especially those which encourage multidisciplinary approaches. Midwives (Symon, 1998, 2006a,b,d; Clarke, 1993) have also written about legal issues, published in midwifery journals as well as other publications. The Royal College of Midwives (RCM), in conjunction with Bond Solon (www.bondsolon.com), run annual legal conferences which are well supported and attract midwives who are keen to engage in debate around the legal issues surrounding childbirth. It is timely that a midwife writes Law and Ethics for Midwifery using a combination of theory and practice. There is a need for discussion and consideration of ethical and legal issues by midwives. A major conference on Childbirth and the Law (November 2012) at the Royal College of Surgeons in Edinburgh was billed as ‘a series of presentations with case studies’ which was inspiring and thought-provoking, thus reinforcing the notion that a case study approach is an appropriate way to consider legal and ethical issues.

While this book does not purport to be able to prevent midwives being the subject of legal proceedings, its intention is to discuss the dilemmas and concerns that challenge midwifery practice. It may also serve as an alert to future concerns and dilemmas for midwives. The attempts to criminalise home birth in the Czech Republic and threat to prevent home birth in other countries cannot be ignored. With new processes for commissioning of health services in England, home birth may also be in danger if midwives are unable to maintain skills and promote choice.

Teaching undergraduate students for a large number of years has shown me that for many students legislation does not start off as an interesting aspect of midwifery education. Students may feel that they want a midwifery focus and fewer ‘other subjects’, and often the relevance of §1.2.32 of a specific statute escapes them. I would suggest that law and ethics is a midwifery focus as ethical principles form fundamental aspects of our relationship with childbearing women. Legislation has an application relevant to midwives, midwifery and the maternity services. As an educator, legal matters are significant; very often students still find legislation and legislative process difficult to learn or apply. Apathy and disinterest in law making is counter-productive. The argument here is that if you do not engage in debate and discussion, and contribute to the legislative process, how could you criticise legislation if it does not then reflect or uphold your views? Gardner (2012c) suggests that midwives should be getting out there and making a difference. Midwives can help change and influence legislation and guidelines, which in turn allows mothers and babies to continue to receive the best possible care. Laws must carry the consensus of the people (Symon, 2011). At the time of writing this chapter, the Health and Social Care Bill is being debated in Parliament. This new legislation will have significant effects upon all health and social care workers (as well as patients). The RCM, along with others, is calling upon the government to scrap the Health and Social Care Bill. The concept of ‘any qualified provider’ (AQP) is not considered by the RCM to be appropriate for maternity services (Popay, 2012). There is concern that an open market approach does not promote collaboration, may fragment services and destabilise the National Health Service (NHS). In these austere times, savings and efficiencies are important and no one is sure that AQP will be cost-effective or safe, responsive and high quality. Midwives must, and should, contribute to the debate in an attempt to achieve legislation which safeguards maternity services and midwifery care. The right to choose to have a baby at home has been a subject of concern. Symon (2011) suggests that it is necessary to also look to other countries, as an insular attitude will not help and situations (he uses the example of the threat to choices for childbearing women) are not so different from those of the UK. Engagement and participation in the discussion, debates and arguments are vital if midwifery is to ensure that legislation supports the needs of childbearing women. The legal landscape is constantly changing and all healthcare practitioners need to keep up to date with the legislation and engage, contribute and shape it.

It is against this backdrop that Law and Ethics for Midwifery is written. Having justified the necessity for a new text, consideration will now be given to the content and layout of the book.

The book is divided into two parts. Here, we consider the structure of each chapter; a background/contextualisation of the themes; and justification of a case study approach. Part I provides: basic theoretical concepts such as ethical theory, principles and values; an introduction to statute and statutory instruments; and the statutory framework for midwifery. The specific formats for the chapters in Part I are: pre-requisites for the ch...

Table of contents

• Cover Page
• Half Title Page
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Acknowledgements
• Table of statutes and statutory instruments
• Table of cases
• Preface
• List of abbreviations
• Part I: Theory
• Part II: Practice
• Appendices
• Glossary
• Bibliography
• Maternity services relevant reports
• Index