Part 3 ~ Comparison of ACOG Opinions #166 & #214 + SB 1479 w/ Post-AB1308 Medical Board “Practice Guidelines” in 2014

by faithgibson on February 18, 2018

in 21st Century Healthcare in US, AB1308, new regs & new legislative efforts

https://tinyurl.com/ydcmxlkv

 ACOG Committee Opinions #166 and #214, the 2000 Amendment (SB 1479) to the LMPA of 1993 and the midwifery Standard of Care ~

Limitations imposed by AB 1308 in 2013 that repealed the standard of care and statutorily denied ‘patient autonomy’ and ‘self-determination’ to essentially healthy childbearing women

The Standard of Care for California Licensed Midwives (SCCLM) was legislatively authorized by Senate Bill 1950 in the year 2002, adopted by the MBC in September 2005 and formally approved and published as a legally-binding regulation by the Office of Administrative Law (OAL) in March 2006.

The licensed midwife who compiled the final version of the Standard of Care in 2004 used ACOG Committee Opinions #166 and #214 as a guide for developing the legal principle that defined childbirth-related consent (i. e., that no one can touch or treat a competent adult without the adult’s informed consent) –when developing Section V of the Standard – The Responsibilities of the Licensed Midwife and the Client’s Right of Self-determination.

The result was these two short statements that defined the ethical and legally-binding relationship between professional midwives and California childbearing families from March 6th, 2006 to January 1st, 2014.

They read:

Responsibilities of the Licensed Midwife

With respect to the care of a client with a significant risk factor as identified by the client-selection criteria in section IV, other science-based parameters or physical examination, the licensed midwife shall recommend that her situation be evaluated by a licensed physician who has current training and practice in obstetrics.

Client’s Rights to Self-Determination

In recognition of the client’s right to refuse that recommendation, as well as other risk-reduction measures and medical procedures, the client may, after having been fully informed about the nature of the risk and specific risk-reduction measures available to her, make a written informed refusal.

If the licensed midwife appropriately documents the informed refusal in the client’s midwifery records, the licensed midwife may continue to provide midwifery care to the client consistent with evidence-based care as identified in this document and the scientific literature.

In addition to the ACOG Opinions, the “Intent” language in SB 1479 was also used to craft this ‘state of the art’ description of the legal duties of the LM and the legal rights of the client. SB 1479, which is the second amendment to the LMPA, provided a ‘legislative remedy’ that addressed a problematic ruling in a California Supreme Court ‘Stare Decisis” case in 1976.

In Bowland v. Municipal Court, the Supreme Court noted that California childbearing women had no established right to make decisions about the type of care they received during pregnancy and childbirth. The opinion went on to say that the State Legislature had “never gone so far” as to acknowledge that, as a class, healthy childbearing women had the right to choose “the manner and circumstances of normal childbirth”.

In the year 2000, the second amendment to the LMPA addressed this issue by legislatively acknowledging, for the first time, that essentially healthy childbearing women had, in essence, a right to choose the manner and circumstance of their normal childbirth. This amendment to the LMPA put into black-letter law the relevant theories of “Patients’ Rights” in regard to normal childbirth.

This identifies the lawful right of competent adults to receive relevant information about their health status and any possible, probable or diagnosed medical conditions or complications; after due consideration of these facts, an adult can either consent or decline treatment and other medical services or negotiate a compromise arrangement. This human right is not negated simply because of one’s female gender and pregnant condition, even if an obstetrician sincerely believes that he or she knows better than you what is best for you.

As referred to earlier, Gabee’s “Obstetrics: Normal and Problem Pregnancies” (2nd edition), chapter 42 on the “Legal and Ethical issues in Perinatology” defines “consent” in relation to healthcare as:

“A fundamental premise of Anglo-American law … that no one can touch or treat a competent adult without the adult’s informed consent.” p. 1342.


 

Relevant Excerpts of AGOG’s Ethics’ Committee Opinions:

ACOG’s Committee Opinion #166 on “Informed Refusal” notes that:

“Almost universally, informed consent laws have been liberalized … from the relatively paternalistic “professional or reasonable physician” standard to the “materiality of patient viewpoint” standard.

In the “patient viewpoint” standard, a physician must disclose … the risks and benefits that a reasonable person in the patient’s position would want to know in order to a make an “informed” decision.”

ACOG Opinion #214 on “Patient Autonomy: The Maternal-Fetal Relationship states that:

  • … medical knowledge has limitations and medical judgment is fallibleExisting methods for detection … are not always reliable indicators of poor outcome, and there is often insufficient evidence for risk-determination or risk-benefit evaluation

 

  • The role of the obstetrician should be one of an informed educator and counselor, weighing risks and benefits ….and realizing that tests, judgment and decisions are all fallible.

 

  • Abiding by the patient’s autonomous decision will provide the best care for the pregnant woman and the fetus in most circumstances.

 

  • In the event of an emergency … the obstetrician must respect the patient’s autonomy, continue to care for the pregnant woman, and not intervene against the patient’s wishes regardless of the consequences.

ACOG Committee Opinion #214 also identifies serious negative consequences when a patient’s autonomy is violated, stating that:

  • A woman is wronged and may be harmed, whether physically, psychologically or spiritually.

 

  • The patient’s subsequent loss of trust in the healthcare system may reduce the health care provider’s ability to help her and may deter others from seeking care.

 

  • There may be other social costs associated with this violation of individual liberty.

Senator Liz Figeroa, author of the first 3 amendments to the LMPA ~SB 1479 (2000), SB 1950 (2002, and SB 1638 (2006),


SB 1479
 included a “Legislative Intent” section that acknowledged, as a matter of California state law, that childbirth was a normal aspect of biology and not a medical disease. It also identified physiological management — the supportive, non-interventive practices that are a fundamental aspect of community-based midwifery as a non-allopathic discipline that is clearly distinct from obstetrical medicine.

According to the California Legislature,
the midwifery model of care 
includes:

  • informed choice
  • continuity of individualized care
  • sensitivity to the emotional and spiritual aspects of childbearing
  • monitoring the mother throughout the childbearing cycle including
    her physical, psychological, and social well-being
  • providing individualized education, counseling, and prenatal care
  • continuous hands-on assistance during labor and delivery
  • postpartum support
  • minimizing technological interventions
  • identifying and referring women who require obstetrical attention

 

AB 1308 ~ Deletions and Additions to the LMPA
as they affect the California Licensed Midwife’s scope of practice and Standard of Care for Midwives

( Note – the excerpt below is just a section in a 14-page document; there are many other, usually small deletions and additions throughout the Standard of Care/Practice Guidelines as posted on the MBC’s website)

@@@@

In 2013, the original “Standard of Care of California Licensed Midwives” (SCCLM) was repealed by AB 1308, including Section V.

In December of 2013, the Medical Board of California (MBC) formally deleted the SCCLM from the Board’s website, because AB 1308 was to take effect on the 1st of January 2014.

However, at the December 5th meeting of Medical Board’s Midwifery Advisory Council, its members unanimously requested that the Medical Board make an unofficial version of the SCCLM available on the Board’s website as a helpful reference for California LMs.

The MBC agreed to develop an informal version that was to be known as “Practice Guidelines”. These new ‘Guidelines’ reflected the many deletions and additions in AB 1308, including drastically altering the Responsibilities of the Licensed Midwife and deleting in toto the Client’s Right of Self-determination (gone like the wind!)

A senior member of the MBC staff (Curt Worden) explained to the Advisory Council and members of the public that the informal ‘Guidelines’ did not have any statutory authority, and therefore would not have any legal standing. This meant the principles it described and its recommendations of “best practices” for community-based midwifery can no longer be used to defend a midwife’s practice in a disciplinary hearing or other legal situations.

–>KEY to legislative changes in the wording in the Standard of Care/Practice Guidelines as it was crafted by MBC staff at Dec 5th, 2013 Midwifery Council meeting

A strike-thru identifies mandatory deletions in the original (SCCLM) document by the MBC’s staff in their effort to be sure the new  “Practice Guidelines” were in compliance with AB 1308

RED = additional restrictions based on AB 1308.

 


     MEDICAL BOARD OF CALIFORNIA

     May 2014

    PRACTICE GUIDELINES
FOR CALIFORNIA LICENSED MIDWIVES

    @@@@

V. RISK FACTORS IDENTIFIED DURING THE INITIAL INTERVIEW OR ARISING DURING THE COURSE OF CARE

DELETED VERSION, replaced by AB1308 –> Responsibility of the Licensed Midwife

With respect to the care of a client with a significant risk factor as identified by the client selection criteria in section IV, other science-based parameters or physical examination, the licensed midwife shall recommend that her situation be evaluated by a licensed physician who has current training and practice in obstetrics.

DELETED, no replacement by AB 1308 –> Client’s Rights to Self-Determination

In recognition of the client’s right to refuse that recommendation, as well as other risk-reduction measures and medical procedures, the client may, after having been fully informed about the nature of the risk and specific risk-reduction measures available, make a written informed refusal.

If the licensed midwife appropriately documents the informed refusal in the client’s midwifery records, the licensed midwife may continue to provide midwifery care to the client consistent with evidence-based care as identified in this document and the scientific literature.

Post-AB 1308 VERSION of the: “Responsibility of the Licensed Midwife”

With respect to the care of a client who deviates from a normal pregnancy as identified by the client selection criteria in section IV or other science-based parameters, the licensed midwife informs the client that her situation must be evaluated by a licensed physician who has current training and practice in obstetrics and gynecology.

If the physician determines that the client’s condition or concern has been resolved such that the risk factors presented by a woman’s disease or condition are not likely to significantly affect the course of pregnancy, the licensed midwife can continue to provide primary care.

The client should further be informed that unresolved significant risk factors will limit the scope of the midwife’s care to concurrent care with a physician, regardless of whether the woman has consented to care or refused care by a physician. {!!!}

It is recognized that the client has the right to refuse the recommended referral; however, pursuant to the law, the licensed midwife cannot continue care. {!!!}

The licensed midwife will document refusal of the referral in the client’s record. (bold emphasis added)


Faith’s COMMENTARY:

In a side-by-side comparison, this material speaks for itself — AB 1308 is illogicalpaternalistic and profoundly unconstitutional. AB 1308 is out of integrity with ACOG’s own practice standards and ethics, as Committee Opinions # 166 and #214 attest to in the clearest terms.

AB 1308 throws the rights of childbearing under the bus, an act ACOG itself acknowledges in Opinion #214 “,  as a “violation of individual liberty”.

 

AB 1308 was negotiated by lobbyists for the surgical specialty of obstetrics and gynecology. The product of those negotiations is an unconstitutional double standard by the ‘special interests’ of organized medicine and it’s political machine that continues to specifically violate the individual liberty of healthy childbearing families while acknowledging the concepts of ‘informed consent’ and ‘individual liberty’ in relation to women who choose their own obstetrical services.

Could this “disguised restriction” on the services of midwives (generally illegal under NAFTA) also be a restraint of trade that is part and parcel of an organized campaign to eliminate, or at least disadvantage, a class of economic competitors?

I believe these quotes are more than enough to establish the validity of these observations:

*ACOG* Opinion #166 — “Almost universally, informed consent laws have been liberalized … from the relatively paternalistic “professional or reasonable physician” standard to the “materiality of patient viewpoint” standard.”

AB 1308 is specifically paternalist as defined by their very own words.


*ACOG* Opinion #166 — In the “patient viewpoint” standard, a physician must disclose … the risks and benefits that a reasonable person in the patient’s position would want to know in order to a make an “informed” decision.”

AB 1308 says in black-letter law that childbearing women who choose to receive their maternity care from a Ca LM do not have the right of “informed consent”, which also would include the right to decline unwanted obstetrical consultations without losing access to the safety net of professional midwifery care.


*ACOG* Opinion #214 … medical knowledge has limitations and medical judgment is fallibleExisting methods for detection … are not always reliable indicators of poor outcome, and there is often insufficient evidence for risk-determination or risk-benefit evaluation

AB 1308 does exactly the opposite of ACOG’s own ethical standards.  Instead of admitting that “medical knowledge has limitations and medical judgment is fallible, it claims the obstetrical profession is 100% perfect, 100% of the time, and goes on to translate this irrational concept into black letter law.

AB 1308 boldly (shamelessly!) insists that obstetricians are the only appropriate decision-makers, the only people on Planet Earth that can (and should) legally determine what is “best” for childbearing women — especially those who are so foolish as choosing the care of a licensed midwife instead of an obstetrician and furthermore, are planning an OOH birth.


*ACOG* The role of the obstetrician should be one of an informed educator and counselor, weighing risks and benefits ….and realizing that tests, judgment and decisions are all fallible.

Bingo — everything discussed above, plus the idea that members of the obstetrical profession (a) don’t really like the role of informed educator and counselor — takes too much time and there is no billing code for is, so its a money loser, and (b) obstetricians (at least those who belong to ACOG) think obstetrical medicine is infallible, and that any test, judgment, or decision made by an obstetrician is likewise infallible


*ACOG* Abiding by the patient’s autonomous decision will provide the best care for the pregnant woman and the fetus in most circumstances.

I admit to being particularly nutty about this one. ACOG Opinion #214freely  acknowledges that: “Abiding by the patient’s autonomous decision will provide the best care for the pregnant woman and the fetus in most circumstances” then it turns around and sponsors AB 1308, which says in plain English:

  • the midwife must inform the client that her situation must be evaluated by a licensed physician who has current training and practice in obstetrics and gynecology.

 

  • … informed that unresolved risk factors will limit the scope of the midwife’s care to concurrent care with a physician, regardless of whether the woman has consented to care or refused care by a physician.

 

  • It is recognized that the client has the right to refuse the recommended referral; however, pursuant to the law, the licensed midwife cannot continue care.

In the context of AB 1308, ACOG’s ethical statements leave me speechless!


*ACOG* Opinion #214 also identifies serious negative consequences when a patient’s autonomy is violated, stating that:

A woman is wronged and may be harmed, whether physically, psychologically or spiritually.

The patient’s subsequent loss of trust in the healthcare system may reduce the health care provider’s ability to help her and may deter others from seeking care.

There may be other social costs associated with this violation of individual liberty.

I can only say “duh!”, since this is so self-evident.

Gabee’s Obstetrics’s comments on “Forced Cesareans” on page 1336-37, put the icing on this cake by saying:

“Obstetricians should refrain from performing procedures** that are unwanted by a pregnant woman. … inappropriate reliance on judicial authority may lead to undesirable social consequences, such as the criminalization of non-compliance with medical recommendations.

{** (this would include mandatory ‘evaluations’ by an OB and putting women into the position of having to choose between highly medicalized hospital services and either a lay-midwife attended or an unattended labor and birth)

In 1990, The District of Columbia Court of Appeals, in a strongly worded opinion, essentially adopted the ACOG as law, holding the decision of pregnant women must be honored in all but:

extremely rare and truly exceptional circumstances“.  (emphasis added)

How the limitations imposed by AB 1308 affect the LMPA and its previous amendments

Unfortunately, the unjustified and unconstitutional AB 1308’s assault on mothers and midwives does not stop with the egregious violation by ACOG of its own ethical guidelines but violates the principles established in the LMPA itself.

AB 1308 has turned the ‘shield’ provided by the LMPA into a ‘sword’ to be wielded by organized medicine against the best interests of women as clearly established in SB 350 and SB 1479.

The purpose and Legislative Intent of the LMPA of 1993 (SB 350 by Senator Killea) and the 2000 amendment (SB 1470 by Senator Figuera) was to provide healthy childbearing families with access to access to high-quality, affordable and acceptable (as defined by the family) maternity care.

It was my honor to personally know and converse with Senator Lucy Killea a number of times during the long effort to pass a non-nurse midwifery licensing law. Senator Killea was passionate about the need for a modern, non-nurse (and not-medically dominated) licensing system for the direct-entry practice of traditional midwifery.

In particular, Senator Killea saw this as reducing the human tragedy and preventable expense to the MediCal program caused by the high rate of premature birth often associated with the inability of low-income families to find affordable and acceptable maternity care.

California Senator Lucy Killea, author of the Licensed Midwifery Practice Act of 1993 and our heroine!

Senator Killea was equally committed to creating a rational and legal option for ‘alternative’ (i.e. traditional!) care so childbearing families would be able to receive childbirth services from professionally-trained and state-regulated licensed midwives. This would eliminate, or at least greatly reduce, the number (and associated dangers) of unattended birth.

Senator Killea passed that Olympic torch on to Senator Figueroa. SB 1479 forever eliminated the spurious idea put forth in the 1976 Bowland Decision that healthy childbearing women in California did NOT have the right to control the “manner and circumstance” of normal childbirth.

Thanks to Senator Figueroa — a talented and tireless advocate for mothers and midwives — the definitions of midwifery originally proposed by a national consumer group (Citizens for Midwifery), which identified normal childbirth as a non-medical event, allowed the legal definition of childbirth as a ‘normal’ biological function (and not a medical-surgical one) to be incorporated into California Law.

Negating the Bowland Decision is more important than many of us can imagine, as the midwives criminally prosecuted in the Bowland case were charged with violating section 2052 of the B&P Code, which is the illegal practice of medicine. This statutory language prohibits practicing or holding oneself out to practice “any system or mode of treating the sick or afflicted in this state“.

Kate Bowland, Linda Bennet, and a third midwife were arrested for offering to support a normal biological process in healthy childbearing women, but they were criminally prosecuted for “treating the sick or afflicted“. In other words,  when midwives “hold themselves out” to be midwives, they are arrested for pretending to be doctors, and/or for doing something (in this case, attending a normal birth) that only MDs are legally authorized to do.

This crazy and factually inaccurate definition made the practice of non-medical midwifery a ‘crime‘ in 1973, when the Santa Cruz Women’s Health Clinic was raided and shut down, and its midwives (one of who was herself many months pregnant) carted off to jail in the middle of the night.

SB 1479 ended that archaic and illogical definition that equates tradition, non-medical midwifery to an illegal practice of medicine.  Midwives still “treat” women — that is, we treat them with compassion and respect, which is not an illegal practice of anything!

For decades to come, Senator Figueroa can personally take credit for providing all the citizens of Calfornia with this wonderful description of  “The midwifery model of care”.

According to the SB 1479, professional midwifery care by California licensed midwives includes:

  • informed choice
  • continuity of individualized care
  • sensitivity to the emotional and spiritual aspects of childbearing
  • monitoring the mother throughout the childbearing cycle including
    her physical, psychological, and social well-being
  • providing individualized education, counseling, and prenatal care
  • continuous hands-on assistance during labor and delivery
  • postpartum support
  • minimizing technological interventions
  • identifying and referring women who require obstetrical attention

Pssst! Pass this good news on to everyone who will listen ~ https://tinyurl.com/ydcmxlkv

~ Happy Birth Day ~

Photo Taken by Rosanna Davis, LM

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