My Letter to Ruth Haskins, MD ~ MBC’s Mfry Committee 2005 ~ Three non-negotiable principles for adoption of a Ca LMs’ standard by the MBC

by faithgibson on July 15, 2014

in AB1308, new regs & new legislative efforts, Info ~ Medical Board Members, Midwifery Council

August 9th, 2005

Members of the California College of Midwives’
believe the three principles identified below
are non–negotiable.

ONE: The basic human and constitutional right of healthy, mentally competent adult women to make the full range of health care choices that fall within a normal pregnancy, labor and birth cannot be bargained away by either midwives or obstetricians.

The right of healthy women is directly acknowledged in the LMPA amendment (SB 1479) intent language which includes the following statements:

“Childbirth is a normal process of the human body and not a disease. Every woman has a right to choose her birth setting from the full range of safe options available in her community.”

An excellent yardstick for this concept is that portion of ACOG’s abortion policy that identifies the ethical premise of autonomy and respect for women in regard to reproductive decisions and the right to receive care relative to those decisions.

This reads:

“Informed consent is an expression of respect for the patient as a person; it particularly respects a patient’s moral right to bodily integrity, and to self-determination regarding sexuality and reproductive capacity and to the support of the patient’s freedom within caring relationships.”

Additional sources that articulate these ethical foundations include ACOG’s published policies in regard to informed refusal and conflicts in the maternal-fetal relationship.

Supporting those policy statement is the District of Columbia appellant court decision in an ACOG case that identified the constitutional right of the childbearing woman to be absolute unless there is a legal finding of:

“truly rare and exceptional circumstances”

That definition clearly establishes as a facet of professional ethics and as a point of law that it is the mother herself who determines the type of care she will voluntarily agreed to receive or decline. That assumes that her professional caregivers will provide good counsel under the principles of informed consent / informed refusal.

These ethical principle are predicated on the legal and constitutional autonomy of the childbearing family,  AND fact-based case law determining that medical practice is NOT infallible.  Under these intertwined legal finding, recommended risk reduction measures (ex. prophylactic hospitalization) for healthy women with normal pregnancies must always and only be implemented with the consent of the parents.

In regard to the most contentious issue between the midwives and ACOG — post-Cesarean labor and birth — the American Academy of Family Physicians (AAFP) recently published new recommendations regarding vaginal birth after cesarean (VBAC). AAFP policies differ significantly from the current recommendations of the ACOG, and do a particularly good job of describing the difference of opinion for midwives as well as family practice physicians.

The AAFP points out that ACOG policy suggests that one rare obstetrical catastrophe (e.g., uterine rupture) merits a level of resource that has not been recommended for other rare obstetrical catastrophes (e.g., the risk of uterine rupture or acute fetal distress associated with routine use of Pitocin to induce or augment labor, shoulder dystocia, abruptio placenta, cord prolapse) that are as much or even more frequent complications.

The AAPF notes that the current risk management policies across the United States, which restricts a trial of labor after a previous cesarean section, appear to be based on malpractice concerns rather than on statistical and scientific evidence.

One of the biggest limiting factors for hospitals are ACOG’s VBAC policies, especially the requirement that a surgical team to be immediately available. As a result of this ipso facto standard by ACOG, over 50% of California prohibit healthy women who want and should have access to a VBAC to have a normal labor in their hospital.  In these institution, there is no choice — a laboring woman with a previous CS who is in labor (even if she is pushing) will be given general anesthesia and an ’emergency’ repeat Cesarean will be perfumed on her unconscious body.

This obviously protects obstetricians, but it leaves women with limited and often unsatisfactory options, such as driving 50- to 100 miles while in labor in order to reach a hospital that ‘permits’ VBAC. Surely being alone in the backseat of a family car, miles from any medical services, while in active labor as a previous C-section mother, is not safer or better for her or her baby. However if there is an emergency, no obstetrician or hospital can be sued for a tragic outcome, since the mother was not under MD care, or physical present in their hospital.

When families are left with no hospital-based option to avoid an unwanted and medically-unnecessary repeat cesarean section, they are forced to choose between the Devil and the Deep Blue Sea. Practically, that means either an unattended OOH birth or a midwife-attended labor at home.

This physician-centric focus on the risk of malpractice litigation brought about by ACOG’s policies creates an asymmetrical burden of risk that falls unfairly on the childbearing woman. The mother/baby couple is exposed to the actual pain and potential harm of medical and surgical interventions in order to reduce the risk of a lawsuit against the obstetrician.

This unilateral risk-shifting policy by ACOG is deeply offensive and certainly not consistent with either scientific principles, the ethical premise of medicine “In the first place do no harm”. It also ignores the legal requirement to obtain voluntary and fully informed consent. This is an unacceptable situation.

In regard to the category of risk-reduction, it is the traditional role and function of the professional midwife to be an “educated observer with emergency response capacity”. The midwife’s lawful presence is itself a risk-reduction strategy for childbearing parents who have, with fully-infored consent, declined prophylactic medicalization.

Any state laws, MBC regulations or ACOG policies that forces women into unattended births denies them the protective services of an educated observer with emergency response capacity, which is the most succinct definition of professionally-trained community midwife. This denies both mother and unborn or newly born baby the life-saving emergency interventions of a childbirth professional, who either has the technical skills needed to avert an emergency, or recognizes the need to trigger EMS via the 911 system to immediate transport mother or baby to the medical services only available in a hospital.

Disrupting or disallowing access to these life-preverving is both unethical and unconstitutional.

TWO: Clear acknowledgement that “normal” as used in the LMPA refers to all states of health in which an associated complication is only a potential risk and not a present-tense reality.

Under this principle, ‘normal’ incorporates the principle of irreducible risk-status, that is — all other responses merely exchange one type of potential risk for another type of potential risk, or it otherwise adds risk, rather than subtracting it.

This principle, which is also a part of the CCM’s standard-of-care protocols, requires that the professional midwife identify any and all potential risks associated with a specific client’s general health and/or her current pregnancy and subsequent childbirth.

Any client with circumstances that rise above the native background risk for normal childbirth must be informed of that fact, and provided with the quality and quantity of factual information that would allow them to reasonably determine an appropriate course of action for themselves. While not necessarily recommend or promoted, this includes the right of informed refusal. Fully-informed parents can legally decline  to employ additional medical evaluations or services at that particular time and under those specific circumstances.

Examples include families who live a long way from emergency medical services, or either mother or unborn baby have a risk factor that is identifiable prenatally, such as so-called ‘big babies’, VBAC, post-dates with normal NSTs and AFI, etc.

Where appropriate, the professional midwife would also recommend medical evaluation and/or transfer to a medical care provider. 

No standards of care policies, or other protocols, are acceptable that potentially make criminals out of midwives for providing care to healthy mothers exercising their right to declined the prophylactic medicalization of their normal pregnancy.

THREE: Any articulated standard of care document must include a black-letter stipulation stating that:

“the following standard of care document is not meant to replace the clinical judgment of the licensed midwife.”

The original title for the CCM document was “characteristics of clinical competency”.

It is informative, rather than prescriptive. The document does NOT claim to describe the one and only way that care can be provided.

These characteristics of competency, now entitled CCM “Standard of Care”, simply record the responsibilities of the licensed community midwife and identify acknowledged methods for competently meeting those responsibilities during pregnancy, labor, birth and the postpartum/postnatal periods.

Those principles and technical skills are consistent with physiological (i.e., non-medical) management, which constitutes the traditional discipline of midwifery.

In the CCM Standard of Care, the majority of caregiver responsibilities and activities those responsibilities generate are described as ‘recommendations’. There are no routine ‘requirements’ that must be performed regardless of the specific needs of the moment and real time desires (or consent) of the persons directly involved.

The only exception to the above principles is the same as the language recognized by the DC Court of Appeals in the ACOG ruling — an emergency situation that rises to the level of  a “truly rare and exceptional circumstance[s]

In all non-emergent circumstances, parents continue to have the right to decline, under the principles of ‘informed refusal’, the recommendations and interventions being offered by the LM. It must be noted here that caregiver activities perfumed on mother or baby without informed parental consent legally constitutes battery.

In order for the CCM Standard of Care to accurately reflect standard midwifery practice in California, and the evidence-based science associated with modern, competent practice, these background principles must be acknowledged within the document.

The language recommended: “the following standard of care document is not meant to replace the clinical judgment of the licensed midwife” is one way to achieve that necessary safeguard to the consumer and to the practitioner.

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Excerpts from historical sources (URL for citation key below)

“ ….. the ideal obstetrician is not a man-midwife, but a broad scientific man, with a surgical training, who is prepared to cope with most serious clinical responsibilities, and at the same time is interested in extending our field of knowledge.

No longer would we hear physicians say that they cannot understand how an intelligent man can take up obstetrics, which they regard as about as serious an occupation as a terrier dog sitting before a rathole waiting for the rat to escape.” [Dr J. Whitridge Williams, M.D. 1911-B]

“Obstetrics is held in disdain by the profession and the public.. The public reason correctly. If an uneducated women of the lowest class may practice obstetrics, is instructed by doctors and licensed by the State, (birth attendance) certainly must require very little knowledge and skill —surely it cannot belong the science and art of medicine.” [Dr. Joseph DeLee, MD, p.117; 1915]

“The midwife is a relic of barbarism. In civilized countries the midwife is wrong, has always been wrong. The greatest bar to human progress has been compromise, and the midwife demands a compromise between right and wrong. All admit that the midwife is wrong.” [1915-C; DeLee, MD. p. 114]

“In states where the midwife is practically unknown, it should be seen to that the Medical Practice Law excludes the possibility of midwives practicing within the limits of the state.

In states where the midwives are not forbidden by law and are numerous, a well organized license and regulation system should control those in practice.

Outline for them the minimum standard for their cases and enforce at least this standard by taking away the licenses of those who violate the law. Renew the old licenses every year and issue NO NEW ONES. Thus the midwives will gradually be excluded from practice by their own incompetence and by the lapse of time.” [1911-C, p. 209]

“…the best argument for a state law, namely, because a midwife once convicted of a crime would afterwards be disqualified to practice by reason of said conviction. First catch your rabbit.” [1907, Dr. Mabbott; American Journal of Obstetrics]

“It is quite possible by strict educational requirements, by imposing certain qualification as to the experience and training, AND IN OTHER WAYS, to restrict the practice of midwifery to such a degree as to amount to practical abolition. Such a method is necessarily more slow than direct abolition. It can be carried out, … according to the forms of law.” [1911-E, p. 225]

Management of ‘complicated’ midwifery cases by German midwives in 1911:

“the midwife … must notify a physician in writing …or communicate personally over the telephone. And the physician must in such case respond at once, unless actually engaged on a case that requires his immediate attention, when he must so communicate to the midwife or messenger. Should the midwife or the physician fail to follow these laws, (they both) are subject to punishment.” [1911-C, p. 203]

~… “(S)upervising the midwife,… and not only that but a medical profession forced by law to respond to the call of the midwife in trouble.”[1911-C, p.208]

~ “Then too the physician when called to such a case is far from being as careful as if it had been his case from the beginning, for it is so easy to say that had he been called earlier ‘all would have been well’”. [1911-C, p. 205]

For a response to the above, in the fewest possible words, Dr. P.W. van Peyma, of Buffalo, New York, (after 40 years of experience working with midwives) makes the point best in his 1915 comment:

“The essential difference between a midwife and a physician is that (physicians) are free to hasten delivery by means of forceps, version, etc. …

The present wave of operative interference is disastrous. …

The situation would not be improved by turning (the patients of midwives) into the hands of such medical men …..

This, in my experience, results in more serious consequences than any shortcomings of midwives.

…Time is an element of first importance in labor, and the midwife is more inclined to give this than is the average … physician.”

Citations Key for above reference stated as a year & followed by a dash and letter of the alphabet. For example, the citation “1911-B” refers to
“The Midwife Problem and Medical Education in the US by Dr. J. Whitridge Williams, which was published in 1911 the Transaction of the American Society for the Study and Prevention of Infant Mortailty (TAASPIM)

Key to quotations & brief excerpts by obstetricians in the early 20th century, expressing their viewpoint on midwives. This characterizes how they saw the economic and philosophical conflict between their new speciality of obstetrics as a surgical discipline, and the traditional of physiological management of normal childbirth used by midwives since Time Immemorial (earliest records are 5,000 year-old Egyptian hyrogliphics)

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