The issue of professional indemnity insurance (PII) as a condition for practice has been hotly debated over the years. Although some professions required its registrants to have indemnity insurance, nursing and midwifery did not. PII did, however, feature on the Nursing and Midwifery Council (NMC) agenda in 2002, but the lack of affordable insurance for independent midwives resulted in notable divisions in the debate. Nevertheless, discussions continued and in 2008, the Code was revised.
The Code recommended that all nurses and midwives should have PII when advising, treating or caring for patients or clients. It acknowledged employer's vicarious liability but made clear that this did not normally extend to activities undertaken outside the registrant's employment. Nor did it cover independent practice of any sort and it was the individual registrant's responsibility to establish their insurance status and take appropriate action (NMC, 2008).
The thorny issue of the lack of affordable insurance for independent midwives was addressed by a caveat that where vicarious liability was not available, the registrant should obtain adequate PII—but if this was not possible, as in the case of independent midwives, women in their care must be fully informed of this fact and its implications in the event of a claim for professional negligence (NMC, 2008).
This seemingly helpful but indeterminate position provided a partial resolution but remained unsatisfactory and contentious. As long as independent midwives were unable to obtain affordable indemnity insurance the problem appeared intractable.
In 2010, the four UK Health Administrations commissioned an independent review of insurance or indemnity as a condition of registration (Finlay Scott, 2010). In response to the review, the Departments of Health in each UK country gave their support to the legislative changes, the coordination, cooperation and communication required, the need for public awareness and market issues, which would be taken forward on a case-by-case basis (DH, 2012).
Finlay Scott identified that there were some groups who could not obtain affordable cover in the market. The reason for this was not the quality of the care they provided, but the number of individuals involved, which were too small to allow the risk to be pooled and enable an affordable premium.
He went on to state that in the absence of a solution, they would be unable to secure or retain registration; and in spite of providing good quality and valued services could not practise.
In 2011, the UK Government signed a new EU Directive on the application of patients’ rights and cross-border health care (Directive 2011/24/EU). It required all member states to ensure ‘systems of professional liability insurance, or a guarantee or similar arrangement … appropriate to the nature and the extent of the risk, are in place for treatment provided on its territory.’
Finlay Scott (2010) had suggested that governments may need to intervene when the functioning of the market does not, or cannot, provide an affordable solution. Unsurprisingly, this did not happen and it would appear that our current Government, while clearly supporting an increase in private health care involvement within the NHS, was unwilling to extend this privilege to independent midwives.
Consequently, the RCM and NMC jointly appointed Flaxman Partners Ltd. to explain the reasons for the non-availability of PII for independent midwives. In light of the recommendations in the Scott report and the implications of the impending EU Directive, they determined that individual midwives could not be insured and that social enterprise schemes might offer a solution. This response has resulted in the creation of a small number of businesses in which midwives work as part of a single entity, whose indemnity arrangements allow them like the NHS, to accept vicarious liability for their employees (Flaxman Report, 2011). They also identified that neither insurance companies nor the Government had any appetite for providing PII for independent midwives.
On the 17 July 2014, The Health Care and Associated Professions (Indemnity Arrangements) Order came into force. This order introduces a new requirement for all health professionals to hold appropriate indemnity arrangement. In law, this is essential in order for them to practise and provide care. While the arrangement does not need to be individually held by the nurse or midwife, it is their responsibility to ensure that appropriate indemnity cover is in force (NMC, 2014).
So what does this mean for our profession, is PII blinding us to the realities of what this means for mothers as well as midwives? IM UK has after considerable effort, negotiation and commitment, managed to obtain PII for its membership. Yet this was no sooner in place, than the NMC instigated an audit of compliance. This is reasonable when change of this magnitude has been introduced, but it is apparent that this is not being uniformly applied across the register. Indeed, it has specifically targeted IM UK, and so PII might not be about our profession coming of age, but coming under control. It is a question that needs asking but I suspect neither the DH nor the NMC will consider that in introducing PII, they are denying women access to non-NHS midwives and denying them choice. This may result in some choosing to birth alone and midwives lost to the profession. None of this will make women or birth any safer.