It used to be the case that every woman in the UK had a right to a home birth service, which meant that the local Health Authority was obliged to provide a midwife or doctor to attend her home birth when the woman called saying she was in labour. However, in the last couple of years it has been discovered that the legal situation has changed.
Women in the UK still have a right to a home birth, insofar as there are no laws forcing a woman to go to hospital to give birth - so every woman has the right to insist that she is staying at home to have her baby. If she chooses to refuse hospital admission, or treatment, then she cannot be compelled to go to hospital if she is mentally competent. The law, and professional guidelines, covering such situations were clarified in the late 1990s after several cases of forced caesarean sections, and this is discussed in detail in another article, 'Can a mother be forced to attend hospital?'. In this respect at least, the right to give birth at home is absolute.
What is disputed is the Health Authority's obligation to provide a home birth service - an attending midwife - to women who want to give birth at home. Most of us do not simply want an assurance that we cannot be dragged to hospital against our will, after all.
The duty of health authorities to provide a home birth service was specified in the National Health Service Acts of 1946 and 1949, and was implicit in the next Act, in 1968. However, the 1977 National Health Service Act states only that:
Section 3 (1) It is the Secretary of State's duty to provide throughout England and Wales, to such extent as he considers necessary to meet all reasonable requirements:
d) Such..facilities for the care of expectant and nursing mothers and young children as he considers are appropriate as part of the health service.
This serious reduction in the rights of users of the National Health Service apparently occurred without much debate, and with little comment from the media. In fact, it was not even noticed by most people working in the maternity services until 1999, when an article in 'Practising Midwife' magazine drew attention to the situation [1]. It has been suggested that, if this change in the law took place without sufficient debate, it could be the subject of a judicial review. However, this would be a complicated and costly process.
It is government policy that the NHS should support women who plan a home birth. For example, Parliamentary Under-Secretary of State for Health, Lord Hunt of King's Heath said:
“I certainly hope that when a woman wants a home birth, and it is clinically appropriate, the NHS will do all it can to support that woman in her choice of a home birth” [2] and:
“The Government want to ensure that, where it is clinically appropriate, if a woman wishes to have a home birth she should receive the appropriate support from the health service. At the end of the day, it must be the woman's choice.” [2a]
The government claims to support choice in the maternity services generally; in the same debate, Lord Hunt said:
“We are fully committed to the principle of high quality, women-centred maternity care that offers greater choice, continuity of care and control to women....”
Apparently reading from the same crib sheet, Yvette Cooper, Parliamentary Under-Secretary of State for Health, later claimed in the House of Commons that:
“There has been real progress towards the provision of a safer, more personal, woman-centred maternity service that offers women greater choice, continuity of care and control” [3]
If the government really is committed to “choice, continuity of care and control” in the maternity services, then support for home births seems vital.
It is highly unlikely that the Secretary of State for Health would ever consider it 'appropriate' that a health authority refused to provide a midwife service for home births. If a mother who had met with such a blanket refusal was prepared to pursue matters, presumably the Secretary of State for Health could be asked to intervene.
If your health authority is refusing to offer you a home birth service, the Secretary of State needs to know that women in your area are not being supported in their childbirth choices. Catherine McCormick is responsible for midwifery services and has specifically asked for women having difficulty arranging a home birth to contact her, as apparently the Department of Health is looking for evidence on this matter. Address letters to Catherine McCormick, Department of Health, Room 419, Wellington House, 133-135 Waterloo Road, London, SE1 8UG or email catherine.mccormick@doh.gsi.gov.uk
It may help to complain to your Member of Parliament, and send copies of the letter to Yvette Cooper at The Department of Health, Richmond House, 79 Whitehall, London SW1A 2NL. Alternatively, you can email the Department of Health on dhmail@doh.gsi.gov.uk
A detailed discussion of the legal issues surrounding home birth can be found in 'Is there a legal right to a home confinement?' by Professor Bridgit Dimond [4]. The article explains that, generally, users of health services do not have an absolute right to insist that a particular service or treatment should be provided. Cases are discussed in which patients have sought judicial reviews of the health authority's decision to deny them a specific treatment or service. Generally the courts have upheld such refusals to provide treatments if the health authority was able to argue that it would not be an effective use of their resources. However, such arguments may not apply to home births.
Given the evidence that home birth is both safe for normal births, and cheaper than hospital birth, it would be hard for a health authority to argue that providing a home birth service was not in the woman's best interests, or that it was not an effective use of resources. So, if a woman sought a judicial review of a health authority's refusal to provide a home birth service, she might well be in a good position. Professor Dimond concludes:
"In theory, there may well be a legal right for the woman to insist upon a home confinement, if she can show that it is in her best interests and that the resource implications are in the NHS's favour."
The problem is that, for this to be put to the test, a woman has to be prepared to seek a judicial review of her health authority's decision to refuse her a home birth service. Until someone is found to bring a test case, and the money is found to fund it, we cannot be sure. AIMS is keen to hear from any mothers who have been refused a home birth service, and who are interested in pursuing matters further.
It is perfectly legal to give birth alone, unassisted - ie with no midwife in attendance - whether this was accidental, or deliberate. Some women choose this option because they cannot get the sort of non-intrusive, supportive midwifery care they require. For others, giving birth unassisted is a positive choice which they believe to be best for them and their babies. I do not wish to either promote or condemn planned unassisted birth; the aim of this section is simply to inform. For links to sites advocating unassisted birth, see [6] below.
It is illegal for anyone other than a UK registered midwife or doctor to 'attend' a woman in labour except in an emergency. This means that if it can be proved that the birth partner intended to act as a midwife, he (or she, but 'he' is used here for simplicity) may be prosecuted. The birth partner may even be liable to prosecution if he was present at the baby's birth, even if he was in another room at the time. Some have suggested that 'present' means in the same room, but it could be interpreted as 'nearby'.
In the one case in recent years where such a prosecution has been successful, the baby's father, Brian Radley, had stated explicitly to the health authorities that he intended to act as a midwife for the birth, and this statement of intent helped the prosecution's case. His wife was told by the health authority that, if she called a midwife, the midwife would arrive and immediately call an ambulance to take her to hospital. Mrs Radley had vowed never to enter the hospital again after she received poor treatment during there when having her first baby. Given the health authority's unsupportive attitude, the Radleys felt that conducting the birth themselves was their best option. Brian Radley was fined £500, but his fine was paid by a doctor who was appalled at the way this couple had been treated by the medical profession. [7]
The threat of planning an unassisted home birth is sometimes used by mothers bargaining with unhelpful authorities. Booking a home birth can turn into a game of nerves, with the health authority insisting that it will not send a midwife. If the mother calls while in labour and states that she will not (or cannot) go into hospital, and requests a midwife, they would almost certainly send a midwife if the mother stood her ground. To date, as far as I have been able to ascertain, there have not been any cases where a midwife was not sent when the mother requested one in this situation. However, few women want to engage in this sort of debate while in labour.
Consider the situation where a mother called while in labour and refused to go into hospital, but the health authority did not send a midwife, and the mother gave birth alone. If the baby or mother suffered harm as a result, then the health authority could presumably be sued for failing to provide the expected level of care. However, it could also be argued that there was contributory negligence from the mother, since it was reasonably forseeable that harm might occur if she gave birth without medical supervision. This would reduce any liability of the health authority. So, while health authorities should bear in mind that they might be vulnerable to negligence claims if they failed to send a midwife, there are limitations on the likely extent of their liability.
The regulatory body for midwives is the UKCC (United Kingdom Central Council for Nurses, Midwives and Health Visitors). This organisation holds the register of midwives who are allowed to practise in the UK, and sets standards and advises on professional conduct. It has no power over health authorities, but individual midwives are answerable to it, as the UKCC considers allegations of misconduct.
In June 2000, the UKCC issued a position statement which was supposed to clarify midwives' responsibilities - Supporting women who wish to have a home birth [5]. Unfortunately the position statement is unclear and somewhat ambiguous.Midwives should be competent to attend home births and should support women who want them:
6.".... It is the Council's expectation that a practising midwife will be competent to provide midwifery care in any setting and that women who wish to have their baby at home can be supported to achieve this by a midwife who is able to practise within the home environment. The Council supports women having choice in the method and place of birth "
If the health authority refuses to act upon a woman's decision to give birth at home, it is apparently not the individual midwife's responsibility:
14. "...A midwife would not be in breach of her professional duty if unable to attend a woman requesting a home birth by reason of her employer's decision not to provide such a service."
However, regardless of the health authority's views, it seems that in some situations the midwife still has a duty to attend provide care to a woman planning a home birth (emphasis mine in the extracts below):
16. "...the midwife should not refuse to continue to provide care for a woman on the basis of where the woman wishes the birth to take place."
17."...If mutually acceptable alternative arrangements cannot be agreed, the midwife should not withdraw care, thereby potentially placing the woman at risk of delivering unattended."
Even if the Trust says that it will not provide a home birth service, the midwife should not leave a labouring woman unattended at home:
7. "...While the employed midwife has a contractual duty to her employer, she also has a professional duty to provide midwifery care for women and would not wish to leave a woman in labour at home unattended, thus placing her at risk at a time when competent midwifery care is essential. "
14." ..In an emergency situation, the midwife has a professional responsibility to provide midwifery care to the best of her ability...."
This means that, if a mother refuses to go into hospital, the midwife should continue to care for her. If she does not, she could face investigation for misconduct. It seems that, in an emergency situation (eg where a mother is in labour and refusing to go to hospital), a midwife cannot simply refuse to attend a home birth, regardless of her employer's policy.
Beverley Beech from AIMS says:
Telephone calls to AIMS reveal that a common tactic is to lull the woman along until she is around 38 weeks and then tell her that if she goes into labour 'within the next two days, between 9pm and 9am or on specific days when 'Nellie' is not on duty, she will have to come into hospital because of staff shortages.
AIMS suggests that the woman immediately writes to the director of midwifery services relating what she has been told and informing the director that she has no intention of going into hospital in those circumstances; the director has had x months to sort out staffing issues, and if she has any problems she can always give a contract to an independent midwife. It is not for Mrs X to resolve the problems by taking the additional risk of giving birth in hospital.
A sample letter to use in such situations is available on the AIMS website.
For a comprehensive guide to the NHS complaints procedure, see the AIMS publications AIMS' Comments on the NHS Complaints Procedures and 'Making a Complaint About Maternity Care' - details on the AIMS publications list.
The Health Service Ombudsman can investigate complaints about the failure of a health authority to provide services to which you may be entitled. If you are interested in making a complaint, Beverley Beech of AIMS has had some dealings with the Ombudsman and can advise.
You have the right to remain at home for the birth, even if that is against medical advice and unattended. If you call upon a midwife to attend you at home while you are in labour, she has a professional duty to care for you, and it is unlikely that the health authority would want to take the risk of leaving you unattended if you stand your ground. Occasionally women who have booked a home birth call when in labour and are told that no midwives are available, so they will have to go to hospital. In fact, if you continue to refuse to go into hospital in this situation, it is likely that a midwife will come out to you.
The government believes that health authorities should support women who choose home birth where it is clinically appropriate, but there is no accepted definition of what is 'clinically appropriate'; the definition varies among health authorities, and sometimes appears to change according to how keen the health authority is to get a woman into hospital. In future, a judicial review of a health authority's refusal to provide a home birth service may re-establish an explicit legal right to such a service. In the meantime, if you encounter any difficulty booking a home birth, stand your ground, contact your local home birth support group and AIMS, and write to the Department of Health.
[1] Home birth: where does the buck stop? by Jilly Rosser, Practising Midwife, 1, 12, 4-5.
[2]House of Lords debate on maternity services, Hansard 12 Jan 2000 : Column 743:
[2a] Hansard 20 Dec 2000 : Column 734
[3] House of Commons debate on maternity services, Hansard 19 April 2000: Column 223WH
[4] 'Is there a legal right to a home confinement?' by Professor Bridgit Dimond, British Journal of Midwifery, May 2000 (Vol 8 No 5).
[5] United Kingdom Central Council for Nursing,
Midwifery and Health Visiting
'Position Statement - Supporting women who wish to have a home
birth', 30th June 2000
A detailed critique of the UKCC statement, by Beverley Beech, is available on the AIMS website.
[6] You can read about unassisted childbirth on Laura Kaplan Shanley's Bornfree! website (http://freebirth.com)
[7] The Brian Radley case is mentioned on the Bornfree! site - scroll down to 'Why Mrs Andrews wants to be in at the birth'. and also in the Association of Radical Midwives home birth archives.
The ARM archive page includes more discussion of unassisted birth, and what constitutes 'attending' a birth.
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This page updated 25 October 2000
Home Birth Reference Page - www.homebirth.org.uk
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