Contemporary History of the relationship Between California midwives, LMPA, Medical Board & Bowland Decision

Compiled from expert testimony provided on March 29th , 2006 by faith Gibson, LM CPM

The first area of interest is the implementation and administration of the licensed midwifery program by the Medical Board of California (MBC) from March 1994 to December 2004.

The second are the standard practices within the California community of the licensed midwives in response to policies established by the MBC; in particular the legal status of candidates for California midwifery licensing under the LMPA’s challenge mechanism and since 2002, midwifery students formally matriculated in midwifery training programs.

I am one of the few individuals in either the midwifery community or employ of the Medical Board who has been involved full-time in these legal and legislative issues prior to and continually since the passage of the LMPA. I have done extensive academic research on the history of the medical practice act and midwifery licensing laws in California and maintain an archival library on the topic. The major sources of documentation quoted here are California medical practice legislation from 1876 to 1993, microfilm copies of state legislature bill sets, official letters of legislative intent, daily newspapers of the era, medical periodicals and the copious records provided by the Directories of Licentiates published yearly by the Board.

I’ve been present at virtually 100% of the public meetings and major events relative to the implementation and administration the midwifery licensing program. I am called upon by Legislative staff or MBC staff members when they require information about customary practices of direct-entry midwifery or the administrative issues relative to licensing.
Institutional memory is a particular issue in regard to the MBC agency staff person assigned to the midwifery licensing program, as there have been 7 different employees in the first eleven years of the program, starting with Tony Arjil in 1994. The position was subsequently filled by Gloria Maceus, Gizzelle Biby, Kim Marquart, Teri Kizer, Susan Lancara and currently is assigned to Mr. Herman Hill*. During the first decade of the midwifery licensing program, the job went unfilled for long stretches. Employment of each of the six initial employees lasted only 6 to 18 months.

* Since the resignation of Mr. Hill in 2005 the job has been temporarily filled for a few months at a time by several MBC staff members and full time by Kathy Burns, Robin Jones, Abigail French and  Cheryl Thompson. Current the contact person is Susan Morrish, for a total of 12 MBC staff assigned to the midwifery licensing program over the 17 years that it has actively administered the issuing of midwifery licenses.

This high turnover and lack of continuity resulted in much confusion for both the MBC staff and for California midwives. In addition, there have been three different executive directors since 1994. As a result of my repeated requests, members of the Division of Licensing have pondered the possibility of a permanent ‘midwifery advisory committee’ for the last 5 years. However this issue was not acted on until the February 2006 quarterly board meeting, at which time it was decided that legislative authority would be necessary. At present no bill has been introduced which would authorize a permanent midwifery advisory committee that could conceivably develop a dependable source for institutional memory and evidence-based policy decisions.

In light of these circumstances, I offer the following background facts as a source of “institutional memory”. The majority of individuals who worked for the midwifery licensing program or participated in the Midwifery Licensing Implementation Committee are either still working for or are available to the MBC and should be able to corroborate the information provided by me. Audio tapes and written transcripts also exist for much of the material relative to the Midwifery Implementation Committee.

Historical Background:

The Licensed Midwifery Practice Act was signed into law in October of 1993. It repealed the 1917 direct-entry midwifery provision of the Medical Practice Act (AB1375-Gebhart Bil-/1917 Amendment to the 1913 Medical Practice Act) which had originally established educational qualifications and standards for the state-certified practice of direct-entry (i.e., non-nurse) midwives. The1917 physician-authors of the original midwifery statue were primarily concerned with setting criminal penalties for midwives who engaged in the unauthorized practice of medicine. The title of the 1917 enactment reads: “to add a new section …relating to the practice of midwifery, providing the method of citing said act and providing penalties for the violation thereof.”

In 73 years of non-medical midwifery practice (from 1917 to passage of the LMPA in 1993) there was a total of 217 California certified midwives. Only 3 disciplinary actions are recorded in the Directories of Licentiates from 1918 to 1950 and all three are for overstepping the identified non- surgical scope of midwifery practice established in the AB 1375 . Certified midwives Marie Caron (FX-83 -1918), Elena Rinetti (FX-97 -1918) and Caterina Reorda, a graduate of the Royal University of Turin (F-58 -1925) all had their licenses revoked or suspended for unprofessional conduct, citing “illegal operation” as the cause of action. It appears from the various documents of the era, including the Directories of Licentiates, that there were no prosecutions for the unauthorized or uncertified practice of midwifery before passage of the original 1917 provision and through out the 20th century until the Bowland case in 1974 — a total of 97 years (1876-1973).

In 1949, at the request of the Board of Medical Examiners, a bill was passed (SB 966) that repealed the application process for midwifery certification (Article 9) and eliminated the midwife classification from the list of certificates issued by the BME. The reason cited was a lack of applicants. Those portions of the midwifery provision defining the extent and the non-medical character of midwifery (Section 2140) and those concerning penalties for unprofessional conduct were left intact (section 2400-08). The 46 midwives who held valid licenses at the time were unaffected. No criminal penalties for lay or uncertified practice were stipulated in this revision. The last state-certified midwife under Article 24 declined to renew her license in 1990.

In the 32 years following the original passage of the 1917 midwifery provision, a qualifying midwifery training program in the state of California was never approved by the Medical Board. This meant that California residents were unable to meet the criteria for licensing. The midwifery provision did not stipulate any courses in professional midwifery itself, but rather mandated that midwifery students complete the same classes in anatomy, physiology, hygiene and sanitation and a 165-hour course in obstetrics taken from the medical school curriculum of physicians and drugless practitioners’ educational standards. Ironically, while mandating the same medicalized education as physicians, the provision itself forbid licensed midwives to utilizing the medical skills taught to them in these classes.

Because there were never any Board approved midwifery training programs, the only source for new applicants were medical students that had completed the obstetrical portion of a medical school curriculum or immigrants – primarily Japanese – who were licensed by reciprocity from one of Japan’s 27 midwifery schools. Due to WWII and the subsequent interment of the Japanese population, the source of new midwifery applicants virtually disappeared after 1942.

From 1949 to 1993, no licensing was available in California for non-nurse midwives. However, the practice of traditional midwifery was not statutorily prohibited in either the original 1917 statute or the 1949 repeal of the direct-entry midwife application, i.e., no provision in the original midwifery licensing law or its 1949 amendment created a public offense defined as ‘practicing midwifery without a license’. Under our form of government what is not expressly outlawed is legal.

A convention of licensing has always been exclusive entitlement in both title and scope of practice in the domain of one’s license. Unfortunately, midwives licensed under the 1917 provision did not enjoy this protection. Unlike the professions of medicine, nursing, dentistry, chiropractic and other allied healthcare disciplines, midwives have never been granted exclusive entitlement for the practice of the midwifery as a regulated profession.

The original midwifery statue was primarily concerned with setting criminal penalties for the use of drugs and “instruments” (i.e., primarily obstetrical forceps) by midwives. The midwifery provision prohibited the use of any “artificial, forcible or mechanical means”, as well as forbidding the use of instruments to penetrate or severe human tissue beyond the cutting of the umbilical cord. These activities were newly defined as an unauthorized practice of medicine and thus illegal if performed by a midwife (except as a medical emergency under section 2063). As for the entitlement issue, these same physician-authors quietly side-stepped the complexities that licensure created by not including exclusive entitlement language for midwives in the 1917 provision.

One practical reason for this oversight is that physicians and midwives share a common patient base – that is, both provide normal maternity care to healthy women. Were midwives to have been granted exclusive entitlement to their own scope of practice, it would have created the ‘unauthorized’ or illegal practice of midwifery. Physicians who also wished to provide normal maternity care to healthy women could be charged with the unlicensed practice of midwifery. This would have required that physicians either become additionally trained and licensed in the discipline of midwifery or that an equivalent midwifery curriculum be incorporated in the medical school education, thus granting exemption to the midwifery licensing law.

During the four decades between 1949 and 1993 the public demand for midwifery care continued on as before, though statistically insignificant as compared to obstetrical care. The 1949 passage of SB966 repealing the certificate classification of ‘midwife’ withdrew the opportunity for future midwives to become state-certified “professionals”, demoting them to the generic classification of “lay” practitioners deprived of professional rights such as employment opportunities, teaching positions and receipt of third-party payments. In the course of my research I could find no records indicating that the Board of Medical Examiners ever viewed the lay practice of midwifery as an illegal activity through out the 19th and 20th century until the Bowland case in1973.

Continued –> Contemporary Hx MBC & Midwifery Licensing ~ part 2 (of 3)