California College of Midwives

Below is a very lengthy excerpt of my letter to MBC staff Curt Worden, providing crucial background information for the August 7th “Interested Parties” meeting.

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Unfortunately, I am unable to attend the scheduled Interested Parties meeting scheduled later this week.  I expect someday professionals and members of the public will be able to provide information and ask questions via Skype or other 2-way communication technology.

In the mean time, all I can do is provide these ideas in writing, so the MBC staff will know that members of the California College of Midwives have the following concerns and requests.

I’m sure that CAM members have voiced many of the same concerns and are interested in similar solutions.

Pertinent Background Information about LM hospital transfers/EMS transports:

A. Receiving OBs at the hospital frequently tell the transferring LM that they don’t want to see or read the midwife’s labor or other intrapartum records, and are only interested in the mother’s prenatal lab work and ultrasound reports.

B. Receiving OBs at the hospital tell the LM that federal HIPPA regulations protecting ‘patient confidentiality’ prohibit them from even looking at the mother’s mfry chart. While the laboring woman is herself only a few few away and the physician (if s/he believed it necessary) could easily get verbal or written consent, this option is NOT considered.

C. Even though a receiving OB has taken a report from the LM and fully viewed the patient’s chart, the NICU doctors and nurses usually have no direct information about the mother’s pre-admission mfry care, the birth or other factors relative to the baby’s situation.

In more than one instance, NICU staff and perinatologists repeatedly remarked to both parents that their baby’s problem was directly the result of not planning or not having a hospital birth. This lack of accurate information makes a difficult situation even worse for the parents, and yet a totally painless and effective solution can easily be provided were this problem to be formally acknowledged.

D. CCM members and other CA LMs quite reasonably want to read the hospital’s MBC LM-transfer report to be sure it correctly reflects the actual facts of the case.

A hospital transfer report filled out by a physician who previously refused to read the transferring midwife’ chart does not have a complete or accurate picture of mfry care provided, or knowledge of the actual circumstances of the case. This is a very unsatisfactory situation, especially when the name and license # of the LM are included on the documents sent to the California Maternal Quality Care Collaborative (CQMCC).

AB 1308 stipulated that all these LM hospital reports be copied and provided to the CMQCC. It must be noted that this organization is a Stanford University-hosted NGO, and not in any way an agency of California government. The office staff of the CMQCC do not currently have any legally-stipulated responsibilities relative the protecting identify of the LM, or for that matter, any other aspects of the information provided to them in copies of the MBC’s LM Transfer reports.

In light of these factors, CCM members request the following 4 actions by the MBC:

1. An article in the Action Report identifying the legal responsibility of the receiving physician to, at the very least, familiarize him or herself with the content of the transfering LM’s intrapartum chart.

While information in the mother’s prenatal chart is some what useful, in general it has little to do with the actual facts of the labor. However, knowledge of the intrapartum chart is necessary to provide crucial information on antecedent issues, and/or the proximal medical conditions that necessitated an intrapartum transfer of care or EMS transport.

The mother’s intrapartum chart is only a few pages (or less) in length. The legal obligation to provide clinically appropriate care should be enough of a reason for the attending OB to review the midwife’s labor or birth records prior to making treatment decisions. In event of malpractice litigation associated with a subsequent ‘adverse event’, I hate to have to swear under oath that as the attending obstetricians, I hadn’t bothered to read the LM’s intrapartum record before I ordered potentially risky medical treatments or performed major surgery of the laboring woman.

However, it is also absolutely necessary that the physician who will later be filling out the MBC’s Intrapartum Hospital Transfer Form (if different than the receiving MD) also review intrapartum records, even if it was the baby who required transfer after being born at home.

Any thing less than this is a failure of ‘due diligence’ on the part of the MD providing care and/or the MD who subsequently makes the official report as required by the California Legislature when it passed AB 1308.

2. A legal opinion by the Board’s own Counsel and/or the AG’s office as to whether a reasonable-person interpretation of the federal HIPPA regulations prevents hospital OBs from looking at a mfry client’s intrapartum chart.

I must note here that personnel for EMS also produce and provide legal records outlining the facts of the EMS hospital transport. This applies equally to childbirth-related as well as all non-obstetrical emergencies. This includes the time notified, time of arrival, assessment of the medical situation, emergent care provided by EMTs, etc. In regard to laboring women, these records are universally transmitted verbally upon arrival at the ER and again to the receiving OB in the OB department.

A hard-copy of theEMS report is also included in the patient’s hospital chart. Attending physician are legally responsible for knowing the facts about pre-hospitalization treatments by EMS and other pertinent information in the EMS patient-care record.

Any legal ruling by the MBC or AG relative to the implications of HHIPA would need to reconcile facts about the current customary sharing of EMS information with hospital personnel and the same process of verbal and written information as shared by the LM under very similar circumstances.

3. We also ask that the LM involved in a hospital transfer be able to access a copy of the hospital report submitted to the MBC.

At the very least, we should be able to read the report about a transfers of our client after its filled with the MBC. If the information provided was inaccurate, this allows us to to provide corrective information by contacting the individual physician personally or in writing. A written copy of corrective information should also be sent to the MBC and included as an addendum to that particular transfer report.

4. We ask that the LM’s name be redacted before copies of the MBC’s LM Hospital Transfer reports are forwarded to the CMQCC.

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I am attaching a copy of the CCM’s new hospital transfer form for LM {by clicking on the link below, it will automatically download to your computer. You can be opened by clicking on the title in your “Downloads” folder

CCM form_hosp-tranfer-transport_August-2014.

It was designed to provide specific information about the circumstances prior to and during an elective hospital transfer or EMS transport. It provides specific metrics about the lengths of the various stages of labor, and other information to help the staff better understand the mfry care received prior to the client or baby developing issues of concern. It also provides the proximal reason/s requiring hospitalization and access to the facts used to decide when and how to transfer.

This CCM form will become a permanent part of the client’s record, but in some emergency situations the LM will not be able to complete the report before the mother or baby’s hospital admission. However the midwife should easily be able to finish this handwritten form after the mother or baby’s care is taken over by the hospital. At that point, a copy of it will also be provide to the OB staff and added to the client’s record of midwifery care. This is also how EMS emergency transport records are handled.

In addition, we believe that the baby’s hospital chart should have a copy of the LM’s pre- & intra-transfer report. This would provide the NICU staff and physicians with access to factual information and, one hopes, reduce the likelihood of an inappropriate “rush to judgment” as noted above (issue C).

In Conclusion:

We feel strongly that all the pertinent facts surrounding a hospital transfer are necessary in order to fully understand the situation. Full knowledge of the facts are equally necessary before any conclusions of legal merit (such as a designation of substandard, negligent or incompetent care by an expert reviewer/expert witness) can be reached on the quality of the care provided by the Ca LM relative to a specific hospital transfer.

MBC LM-client hospital transfer reports may be used by MBC employees, consultants and expert reviewers to determine the ‘merit’ of a complaint lodged against an individual LM. Considering the possible legal impact of these documents, our organization considers it a matter of legal ‘due diligence’ that any professional who has the authority and responsibility to report LM-client hospital transfers obtained full information prior to filing such reports.

In addition, we see nothing in the legislative language of AB 1308 that would prevent the MBC from redacting the name and license number in LM-client hospital transfers before providing copies to the CMQCC. Therefore we ask that the LM names and license numbers be electronically deleted or physically redacted before any of these records are electronically forwarded or mailed to the CMQCC.

On behalf of CCM members and the childbearing families we serve, we respectfully ask that the MBC as the regulatory agency for Ca LMs carefully consider the four enumerated requests, and if at all possible implement them in association with the Board’s duties pursuant to AB 1308.

The contents of this email should also be provided to any MBC-DCA attorneys scheduled to provide legal council to the Board during the August 7th Interested Parties meeting, and the August 14th meeting of the Mfry Advisory 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)

The original (1917) California licensing provision for direct-entry midwives did a splendid job of modeling language for highly effective and ethical legislation for the practice of tradition (i.e., non-medical) midwifery in our State.

Each use of a critical word or phrase was followed, in the very next sentence, by a specific and expanded definition of the word, phrase or idea denoted in the law. This left no doubt in the reader’s mind as to what was intended by the legislative language.

The language in AB 1308 (2013) that currently requires LMs to transfer pregnant or laboring women, or their neonates, for “any time the c’lient’s condition deviates from normal” fails, by this standard, to define its terms in a meaningful way.

My suggestions for this critical ‘fix’ for AB 1308 (either ‘clean up’ legislation or regulation):

While we cannot replace the specific word “deviates” itself, the legal purpose of regulations is to give more specific guidance to the intent of the black-letter law. Additional modifying language would protect mothers from being arbitrarily medicalized for trivial reasons (or LMs begin prosecuted for failure to transfer for clinically insignificant reasons).

To do this we need to modify

This unconstitutionally “broad” and non-specific concept should be amended by adding (or defining in regulation) the words ‘pathological, or clinically significant or other vocabulary that indicate that immedicate transfer of care is to be based on a truly serious medical problem that is clinically significant — that is, substantially likely to have a negative influence on the wellbeing of mother or baby during the pregnancy, labor, birth, postpartum or neonatal period.

While we cannot replace the word “deviation”, this modifying language might work, since the legal role for regulations is to give more specific guidance to the intent of the black-letter law.

However,  we must be prepared to push hard for this important correction. ACOG, CMA and CAPPLI can be counted on to scream bloody murder, since the unmodified words “any deviation from normal” is the clearly crown jewel of their newly expanded control over the licensed practice of directly entry mfry in California.

It would be interesting to ask Saras Vedam, as an academic and head of the British Columbia College of Midwives, what she makes of the legal burden inherent in the phrase “any deviation from normal” as applied to the entire landscape of pregnancy and childbirth. For example, it would be nice to note in regulation that minor deviations would call for careful or additional watching on the part of the midwife, but would not trigger referral or transfer of care unless they developed medical significance.

2. Append to the the word: “significant medical” to “condition”. Following the word ‘condition’, add: “that is likely to influence the normal progress of labor, the safe completion of the birth, or represents a serious risk to the health and wellbeing of the new mother or neonate”.

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I’ve was busy writing Saturday’s rant on Section 2052, and today’s historical info, so I won’t get to read web files for the other historical material until tomorrow or the next day.

While I can plainly see that we have been out-manueved, I do believe in miracle and don’t think that all is lost.

I do however want to state again that it is a tactical error for the citizens of California (esp. childbearing parents and taxpayers!) to leave my experience with the Medical Board and the Legislature, my accumulated knowledge and scholarship, out of the political and legislative loop.

However, I’m planning to live long enough to see the words “a California licensed physician and surgeon with training and experience in midwifery” used as the legislatively determined standard for MDs who are called on to make legally binding decisions on the practice of midwifery (either need or timing of transfers of care, or determining if a disciplinary case should be filed or when testifying in LM standard of care cases).

ciao ^O^

============================= Topic #1 (of 2) ================================

How the history of obstetrical supervision connects to the contemporary predicament created by AB 1308:

The extreme restrictions on the practice of direct-entry (non-nurse) mfry originally intended by the CMA in 1993 LMPA were designed to be imposed on each individual LMs by her specific obstetrician supervisor. This is why the LMPA did not include a ‘standard of care’ or code of ethics.

This strategy was a legally successful 3-act play. This is how ACOG accomplished in 3 seemingly unrelated steps what it could not have achieved in one bold (and obvious) move.

ACT ONE, invented in 1974, was that obstetricians negotiated the political aspects of California’s first licensing law for nurse midwives. However, these individuals were representing the national agenda of ACOG, and NOT California midwives representing the needs of the California families.

However, this was a new form of midwifery practice that had little in common with the legacy practice of midwifery under the original 1917 direct-entry mfry provision, which had been repealed in 1949 (SB 966), which made the CNM law seems more distant from current direct-entry mfry than it really was.

The new nurse midwifery law allowed organized medicine to define the ‘modern’ and lawful practice of nurse-midwifery to be a medicalized discipline under the control of the medical profession, to be provided under obstetrically-defined parameters.

The goal of controlling mfry practice was implemented by mandating that nurse-midwives practice ONLY under obstetrician supervision.

As an aside, I must interject here that nearly everyone else involved in this 1974 legislation, including legislators, reporters, as well as others laypersons hearing of this decision, were not at all displeased by the arrangement. They accepted a mandated relationship btw midwives and obstetricians as a workable, commonsense arrangement — a safety feature that would guarantee quick access (a ‘stepping stone’) to appropriate and timely medical services for women receiving care from nurse midwives.

Unfortunately, the absolute control ceded to the obstetrical profession over the profession of midwifery was used to successfully erect both legal and practical stumbling blocks. These barriers to practice for CNM continue to the present day (note pending case against nurse-midwives with a OOH practice for the CNMs failure to have a supervising physician). The consequence is greatly reduced or in some cases, completely blocking access to midwifery care for families seeking out physiologically managed labor and birth.

In point of fact, the only thing the supervision provision has actually achieved was to prevent OOH CNMs and PHB LMs from qualifying for reimbursement under Medicaid-MediCal rules for low-income families (50% of all births in California). By preventing CNMs and LMs from providing the far more cost-effective mfry care to healthy women in low-income families, the obstetrical profession by default make sure taxpayers paid the ever-so-much higher cost of highly medicalized hospital care for this same healthy population.

With only the rarest of exceptions, all California obstetricians practice obstetrics under ACOG-generated policies and standards of practice. ACOG’s policies were in turn mirrored in the restrictive policies and prohibitions generated by the med-mal carriers. Together these two factors made sure that normal childbirth services for healthy women remained in the medical domain of hospitals and obstetrically-originating policies and protocols. As a conventional practice of obstetrics, which is both a surgical specialty and a hospital-based disciple, this meant that at a practical level, nurse-midwives were restricted to providing birth-related care only in a hospital setting or birth center that meet with ACOG’s approval.

Within the medical profession, it was expected that any obstetrician who agreed to be a supervisor would, as loyal and astute ACOG fellows, create the usual written protocols defining the rules for his CNM’s ‘physician-extenders role. Generally that would require any CNM practicing under supervision to immediately to consult, refer or transfer the care of ANY pregnant or laboring women who manifested ANY ‘deviation’ from “normal”, which would be the usual protocol defining care rendered by a physician extender/mid-level practitioner. Her authority as an independent entity (like a kid left home by himself on Sat. afternoon) would only apply to the totally “normal” aspects of reproductive biology. All other permutations of events require notifying the ‘higher ups’ (in business, this would be called your “supervisor”) so that critical decisions at make by those with a higher pay grade.

Just how much of an obstetrician-centric perspective this is can be discerned from the lack of any reference to such criteria in regard to the newborn. Obviously, requiring midwives to consult or refer to pediatricians was not seen by ACOG as the role of the obstetrical profession. Requiring midwives to refer a baby to a “physician and surgeon trained in obstetrics and gynecology” would make everyone laugh.

However, it useful to understand how obstetrical supervision occurs against a compelling but virtually invisible backdrop that sets the tone for obstetrics-centric policies and standards of practice. In important structural ways this creates a situation for an obstetrician-supervisor similar to the legal role of lawyers. Attorneys in the US also have the duel role of both representing their clients and also being designated as “officers of the court”. They are legally obligated to constrict their behavior to conform with court protocols as that reflect judicial custom and California Bar Association rules. This can represent a conflict of interest between the attorney’s duty to represent the interests of their client, and his own need to protect his interests — that is, the ability to continue practicing his profession.

Like attorneys, obstetricians also have a duel role that unless carefully adhered to can create career-threathening tsunami for them. An obstetrician who is out-of-sync with ACOG rules and policies runs the risk that other obstetrician will NOT agree to testify on their behalf in a legal case claiming negligence or incompetence. In medicine, the legal definition of ‘competency’ is defined by the testimony of other physicians who practice the same medical or surgical specialty. What they say will determine whether or not the defendant did or did not follow the ‘usual and customary’ standard of care. If the answer is no, the doctor will most often lose any such med-mal case.

These ‘customary” patterns of obstetrical practice have aggregated over time, and reflect both historical and contempary definitions and other policy and practice-related conclusions by the American College of Obstetricians and Gynecologists as an organization that lobbies for the interests of obstetricians.

In relation to planned home birth, ACOG has proudly and loudly been on the public record since 1974 (also the year the CNM law was passed) as rejecting OOH birth as a location for childbirth services, and defining it an on-going series of official statements that such an activity was substandard, thus a potentially dangerous practice that it formally does not sanction.

Under the obvious impact of ACOG’s policy-setting function as sole arbiter of obstetrical practice as a surgical specialty, the willing participation of any obstetrician in PHB — either directly or indirectly — would be deemed by an ACOG member called to testify in a court of law, to be a ‘substandard and thus a negligent activity. This is the definition of medical malpractice.

That the obstetrical control of mfry by organized medicine keeps CNMs tethered to hospital (i.e. not independent) practice is born out by the extremely small number of nurse midwives (Kate Bowland excepted!) who were ever able or willing to provide OOH services in California during in the 40 years since the Nurse Midwifery Practice Act was passed.

The reason was simple — virtually no obstetrician in California was able or willing to supervise a CNM who provided care in OOH setting. This refusal or inability of obstetricians to provide this technically essentially legal service by obstetricians reflects two realities.

First and foremost is the historical distaste by the obstetrical profession for the discipline of midwifery, which for the last century as been seen as an inferior (even dangerous) service. Likewise, information about the non-medical or physiologically-based (i.e. non-medical) management of normal childbirth in a healthy childbearing population has been absent from the medical school curriculum in the US for at least the last 100 years.

Historically and in contemporary times, the majority of obstetricians have, as amply documented by their own published statements, believed that mfry licensing laws were unnecessary — that is, that the services of midwives were unnecessary. Further more they see all mfry licensing laws as ill-conceived — a dangerous step backward. Equally egregious, they experience midwifery as displacing their services, thus seeing midwives thru the lens of an economic competitor.

The second (and absolute) barrier to obstetrical supervision of midwives desiring to provide care in OOH settings are the prohibitive policies of the med-mal carriers. They do not permit insured physicians to supervise OOH midwives unless the doctor arranges for an expensive rider or ‘surcharge’ to their regular policy. This immediately and drastically increases the cost of the obstetrician’s liability insurance premium.

In addition, it is widely believed by obstetricians that if they associated professionally with OOH midwives, they risk losing their liability coverage. Since hospitals require doctors to carry med-mal coverage to quality for admitting privileges, lack of med-mal insurance would instantly put the obstetrician out of the birth business.

BACKGROUND MATERIAL:

Judge Cologne, J.D., an attorney, former CMA lobbyist and in 1994 was employed as chief lobbyist for CAPPI, made statements recorded during a 1994 MBC’s Implementation Committee meetings are highly revealing in this regard. Those present included myself, and approximately 20 other midwives (Maggie, Maria, Tonya Brooks, etc), several MBC employees, physician Board member Thomas Joas (an anesthesiologist appointed to chair the committee), the MBC’s legal counsel Anita Scuri, Joan Hall, lobbyist for the CMA and several consumers, including Tonya Brooks daughter and Todd Gastaldo, DC.

Judge Cologne began by noting that he had at one time been employed by the anti-trust division of the US Justice Department. As a result, he it was part of his job as a medical lobbyist to use his expertise in antitrust-related matters to advise and craft policies for his current and former employers (CMA and CAPPLI’s member med-mal carriers) to help them avoid being charged with violations of antitrust laws.

Judge Cologne assumed that the “lay” midwives present would be unfamiliar with ‘anti-trust’ laws, and so he provided a little tutorial, pointing out that organizations like med-mal carriers (who were regulated by the state) could not lawfully discriminate against a class or category of licensed healthcare providers, such as licensed midwives.

However, they could legally ‘protect’ themselves from behavior by physicians insured by their company that might be increase the likelihood of litigation and thus prove unprofitable to their company. He used the example of med-mal carriers all lawfully instituting policies that prohibit doctors from providing medical services in speciality or subspecialty that the doctor was not either board-certified, or could otherwise demonstrate appropriate formal education, clinical training, and the ability to demonstrate and document their competency in this non-standard type of medical care.

With that as background, he made it clear that med-mal insurance carriers could legally protect themselves against economic loss and that they genuinely believed that planned out-of-hospital childbirth services would inevitably result in lawsuit against the doctors they insured. Under these circumstances, their targeted actions disallowing participation in PHB by insured physician would not (as he defined the issue) violate antitrust laws.

Someone in the assembled group then ask him how this came about. He described being present when the boards of directors of the three California med-carriers (Doctors, Skippy and NorCal, which are all mutual companies owned by physicians, so their directors are also MDs) had discussed the issue of PHB subsequent to the 1993 passage of the LMPA. The consensus of opinion across the board members was that childbirth in any location other than a hospital was “dangerous” and should not be covered by the normal schedule of liability premiums.

Someone else in the group asked what kind of acutrial data was used by the members of these Boards to come to this conclusion, and he said readily said “none”, and quickly went on to explain that board members didn’t need any actuarial data, since the danger of PHB was so “obvious” and well-known.

He then returned to the issue of antitrust, and the proper relationship btw each med-mal carrier and the general category of license midwives practicing under physician supervision in California. While emphasizing again that liability insurers had an obligation not to discriminate, this did NOT mean that they could not increase the premiums they charged these obstetricians in an effort to prevent economic losses by the company.

Based on these opinions, med-mal carriers feared that obstetrician’s involvement in OOH birth (either to directly provide care or supervise another OOH attendant) deviated from the obstetrical standards (i.e., ACOG policies and guidelines) that “the courts” would interpret deviant behavior as malpractice and find an favor of the plaintiff, resulting in a big pay-out by the defending insurance carrier.

(Aside –> note NorCal’s1974 statement prohibiting insured physician from attending PHB)

Someone in the group asked if Judge Cologne knew how much of an increase in premiums this might be. He didn’t but stated it would probably double the cost, maybe more.

Another person asked about whether doctors that supervised midwives might loose their med-mal insurance.

He explained that that med-mal carriers, under the current definition of planned home birth as a dangerous activity prohibited by ACOG, could lawful considered the on-going participation in PHB by an insured obstetrician as reflecting poor judgment on the part of the doctor.

As a result, Judge Cologne opined that any physician qualified to supervised OOH midwives might well find his premiums jacked up to so high as to put him our of business, or have the carrier deny him coverage at the time of renewal.

End of hx material

Faced with the universal unavailability of obstetrical supervisors, the majority of CNMs were not willing to risk their license by being out of compliance with their licensing law.

[Aside#2: When the majority of California hospitals closed their midwifery services in the 1990s, it relegated the majority of CNMs to working as nurse-practitioners in physician offices and clinics.]

ACT TWO: In 1993, organized medicine was still king-of-the-hill when it came to lobbying the California legislation in 1993. They successfully insisted (over Sen Killea’s objections and better judgement) that the CNM law be virtually photo-copied into the LM licensing law. As a result the 1993 LMPA included the same (fatally-flawed) mandated physician supervision as applied to CNMs. This provision was widely considered by consumers, legislators and midwives to be unworkable, since the lack of access to obstetrical supervision was used by the medical profession to keep CNMs from practicing in OOH settings.

The major reason for a direct-entry midwifery “grass-roots” movement was the fatally-flawed nature of the 1974 Nurse-Midwifery Practice Act — specifically, the mandatory physician supervision provision, which made it impossible for CNMs to lawfully provide OOH care. This was the reason that many former nurses (me included) choose not to seek training and licensure as a nurse-midwife.

Since the ‘lay’ practice of midwives was the only other option left, and according to the Bowland Decision, lay midwifery was an illegal practice of medicine, groups of mothers and fathers, L&D nurses, childbirth educators and midwives (both lay and some CNMs) and others supporters of independent mfry began working in 1976 to get the law changed so that lay practice was not considered illegal (decriminalization) or a non-nurse licensing law passed.

Unfortunately, none of the six earlier bills had even gotten out of the Senate B&P committee. SB 350 by Senator Lucy Killea finally overcame that hurtle by agreeing to put the same physician supervision provision in the LMPA. She even got the CMA to state that if she would agree to put supervision into the LMPA, they (the CMA) would see that physician provided the legally-essential supervision. Of course, they could not and did not keep that promise.

Once the CMA removed its objection, the passed quickly. But everyone who worked on the legislation was justifiably discouraged that the new licensing bill contained the same old unworkable provision we had all labored so hard to eliminate. Our victory was a mixed bag.

Pertinent quote from transcript Sept. 1994 ~ speakers are Todd Gastaldo and Senator Killea: Joan Hall (CMA lobbyist) said after that ….. it wasn’t really legislative wisdom that changed it from a consultative relationship to a supervisoiral relationship. She said that it was the CMA, basically.

Senator Lucy Killea: ACOG and the California Medical Association. Yes, that was the only way we could …

Act 2.5 ~ a 20-year holding pattern:

There is little to gain from a blow-by-blow recounting of the ups and downs of physician supervision relative to LM practice during the 20 years following the implementation of the LMPA.

Suffice it it to say that:

(a) LMs, who for the most part only provide care in non-medical setting, were even less successful than CNMs in securing the legally-essentially supervision

(b) Unlike CNMs, the majority of LMs continued to practice even thought they were technically unable to comply with their licensing law.

LMs insisted that the legislative intent of the LMPA was that direct-entry midwifery care be available to childbearing families in California. With their own ears, they’d heard Sen Lucy Killea that the purpose of the LMPA was to “authorize

Pertinent quote from MBC transcript (?Jun 6 or Sept 1994) Senator Lucy Killea explaining why she carried the LMPA: I was trying to give the midwives, who are doing what they do best, despite the fact they don’t have the enabling legislation, I was trying to give them that enabling legislation.

Ca LMs generally believed that the licensing provision of the LMPA were designed to fill a critical need and the presence of licensed midwives as trained practitioners would make childbirth safer for women unable to afford, have access to, or personally unwilling to use hospital-base obstetrical services. Many of these women described their previous experience of laboring in a hospital as traumatizing and often refused to, as they put it: “return to the scene of crime”.

Women with previous bad experiences and strong feelings would instead choose to labor unattended in an OOH setting if denied the services of a trained midwife. Unfortunately, for women who have no risk-screening and prenatal care during pregnancy, an unattended birth, and no access to or uses of medical services in if an emergency arising during or following the birth, the mortality risk for their newborn is 20 to 40 times higher. The facts were simple — the provision of maternity services by LMs saved lives.

In 1999 the MBC brought disciplinary charges against a licensed midwife for practicing without a supervisor, the logical consequence of her inability to secure the cooperation of any obstetrician within a hundred mile radiance of the rural county where she lived and practiced. An obstetrician who testified during the hearing said he wouldn’t consider supervising midwives because he resented the economic competition.

After a five day trial, OAL Judge Roman ruled in favor of the midwife, upholding the right of LMs, after making a “good faith” effort was unable to secure a supervisor, to practice without a supervising physician.

The legal rational was based on the legislative “intent” language of the LMPA. He ruled that the Legislature, in authorizing the practice of direct-entry midwifery, as demonstrated by the bill’s own internal language, that childbearing women in California have access to trained midwives as part of a state-sponsored attempt to lower the infant mortality rate, as well as making cost-effective maternity care available to low-income families and those childbearing families who were seeking ‘alternatives’ to the routine medicalization of normal pregnancy and spontaneous childbirth in healthy women.

If obstetricians as an organized groups, systematically refused to assist Ca LMs in the goal by providing supervision, citing their distaste for OOH midwifery practice (Judge Roman used the word “hostility”) and associated economic barriers created by the med-mal carriers who claimed that physician supervision creates ‘vicarious liability” and is therefore prohibited under their standard contract, then it was lawful for individual LMs to make specific and alternative arrangements for medical services from non-supervisory physicians clients for each of their clients, in the event they required referral or transfer-of-care.

ACT THREE — After 20 years, ACOG finally decided that defining mfry as a medicalized discipline had not worked with LMs as it had with CNM. Furthermore, Judge Roman’s decision made it virtually impossible for ACOG to prevail on MBC to aggressively prosecuting LMs for practicing without physician supervisors, or to go to a Superior Court judge to secure an injunction against the unsupervised practice of midwifery by a licensed midwife.

Then the MBC itself chimed in, by admitting that supervision was obviously a failed strategy that had not worked in the previous two decades, and stating their intention to carry legislation to remove provision this from the LMPA as part of its Sunset Review omnibus legislation.

At this point, ACOG suddenly got busy and found a receptive legislature and developed a new, and from their standpoint, strategy better strategy for limiting the practice of midwifery. It would replace supervision by greatly restricting the LM scope of practice, while simultaneously mandating immediate referral or transfer of care for all ‘pre-existing conditions’ and all “deviations from normal” during pregnancy, intrapartum and postpartum.

Amendments to the LMPA introduced by AB1308 statutorily restricted (superseded) the original legislative authority for LMs. Originally the LMPA allowed LMs to provide care as long as progress met the definition of ‘normal’ and there was no present-tense complication. Under AB 1308, any pre-existing or current risk factor revealed or detected, and any ‘deviation from normal’ — indefinable words whose definition lies primarily in the eye of the beholder — requires the midwife to bail out and refer the client to an obstetrician.

Only if the pregnant woman can find, afford, and then convince a physician trained in obstetrics to make the type of statement required by the new law, will the LM be authorized to resume provide primary care. Basically the mother-to-be has no say in the matter and even if she is Christian Scientist or is otherwise covered by the religious exemptions clause (sec. 2063), she can never again received mfry care unless she is seen by an obstetrician, evaluated and the doctor is willing to declare that the particular situation in question is not likely to affect the labor or birth.

This allowed ACOG under AB 1308 to accomplish the goal that had previously failed, since the idea of physician supervision by individual obstetricians never allowed the obstetrical profession to successfully and uniformly control the actions of all LMs.

Immediately upon discovering or identifying some possible “deviation”, the midwife would have to refer the pregnant, laboring or pushing women to a physician with training in obstetrics and gynecology. Sine the newly written law which decrees referral or transfer of care to a physician trained in obstetrics and gynecology, it is silent about the referral of ‘deviations’ in a newborn.

Given that ‘deviation’ and ‘normal’ are such amorphous terms, the plain reading (or interpretation) of this law would mean the percentage of women who qualify (i.e. a perfect pre-pregnancy health record and no ‘deviations’ of any kind during each and every stage of pregnancy, labor, birth, and postpartum would be very small.

On a practical level, this essentially decrees that only clients with no risk factors at all will ultimately qualify for OOH mfry care by an LM, unless they are able get an obstetrician to authorize mfry care. This however, this is not be feasible during the labor and birth. Once the mother-to-be is transferred to the hospital, there will be no return to the physiologically-based of of her midwife.

Having the client or newly delivered mom experience anything that could possibly be described by even one obstetrician (i.e. the expert witness chosen by the Medical Board) as a ‘deviation will also make the LM the vulnerable to disciplinary action by the Medical Board each and every time there is a transfer of care. Again this is predicated on the fact the any physician who reads the record, and either is not professionally familiar with the practice of midwifery in a non-medical setting, or whose opinion about the issue of “deviation” from normal differs or contradicts that of the midwife, will trigger disciplinary action against that LM.

My take on these issues:

I dismissed (or missed) this as an ACOG strategy designed to hobble us as much as supervision had been intended to do. I believed that our standard of care was intended to remain in place, and we protective of us and our client’s rights of self-determination. Under those circumstances, we would remain as arbiters of referral and transfer of care in cases that did not involve breeches, twins, premature and post mature babies, or women with significant or substantive pre-existing medical conditions (i.e., X for breeches and twins, pretty much as before).

Personally, i trusted Shannon and Lorri (actually still do), but now believe they were only authorized to be a spokesperson for ACOG’s set-in-cement deal — take it or leave it — which mean absolutely NO modifying words to ideas such as “condition” and ‘deviation”.

They could not use their discretion (fueled by long-time empathy for midwives and the mothers we serve and I believe, a good heart) to subtly, judiciously, tweak the language so that determination of medical transfer remained within the realm of the LM’s clinical judgement (also being informed by the mother’s stated wishes and her right of self-determination), instead of an absolute black letter law that boxes us in before the fact, and second-guesses us after the fact. As was true of the lay practice of midwifery, this circumstance makes each LM just one hospital transfer and/or complaint by anyone (CMQCC, etc) away from being prosecuted.

If our current standard of care was repealed, or otherwise render moot, I, as stated before, believe that we have lost very important ground.

Equally important, we have utterly failed to gain the ground that makes mfry a truly independent profession — reasonable input and control over our own licensing laws, at a level that at least pretends to match the one enjoyed by other self-determining professionals.

As i mentioned earlier, I am looking forward to the day that our laws requires any physician legally involved in determining compliance “the” standard of care relative to midwifery (either practice or transfers of care issues, or determining whether a disciplinary case should be filed or if interrogating a LM or testifying about care provided by an LM, should identify that person as a:

“California licensed physician and surgeon with training and experience in midwifery”

Now that the stumbling block of prerequisite supervision has gone away, we have a chance —  for the first time in 39 year — to eliminate the undue influence that special interest groups have had over mfry licensing laws (1974 and 1993).

Since 1962 I have worked to protect the right of healthy woman to choose normal, physiologically-based childbirth practices and to be able to say “no” to involuntary medicalization of a normal labor and birth. Unfortunately medical schools in the US stopped teaching physiological management in the early 1900s. At this point in time, the professional trained, experienced and skilled in physiological management is midwifery. Only its practitioners can reliably provide an alternative to industrialized childbirth practices.

Constitutional laws in the United States need to recognize the right of healthy women women normal pregnancies to make this common-sense choice and for that choice to continue to have complementary relationship with obstetrical medicine so women who develop complication care receive appropriate medical care.

Unattended childbirth — with its 2- to 40-fold increase in neonatal deaths — is NOT an option, its an emergency.

I (and i hope the majority of other Ca LMs) identify safe and accessible maternity care for healthy women to include zero purposefully UNATTENDED labors. In conjunction with the general (or public) oversight of the mfry profession, we expect a logical system of  accountability of individual midwives for competent and ethical practice.

As founder of the California College of Midwives (state chapter of the Am. College of Community Midwives), I am 100% committed (along with all the other CAM and non-CAM activists) to keeping and/or transforming the LMPA so it always mirrors the dynamic (changing and changeable) needs of essentially healthy childbearing women with normal pregnancies.

This requires that our licensing law be a flexible instrument that structures the mfry profession so Ca LMs can meet the practical needs of women economically, safely and satisfactorily to all parties.

Many countries of the world that have hundreds of years of history with midwifery as an independent profession. In these countries, mfry licensing laws are structured in the public interest as a flexible instrument. They are designed to meet the practice realities of a normally dynamic biological, psychological and sociological process.  That is our goal as well.

In addition to formal mfry training, a professional scope of practice and standards that define safe and ethical care, laws developed in the public interest and designed to serve childbearing women must always provide for the informed consent/decline of the childbearing woman and the voluntary participation of the parents in all non-emergent medical care during normal pregnancy, childbirth and the care of their newborn.

One of the ways this is achieved is by including protocols that address the inevitable ‘exceptions, emergencies and extenuating circumstances in a manner that balances the needs and realities of all parties.

AB 1308 removed supervision from the LMPA, the licensed practice of midwifery in California will be restored as to an independent discipline.

Its obvious that all modern mfry legislation (1974 and 1993) was been heavily influenced by special interests. As a result, the modern nurse-midwifery law (1974) re-classified midwifery in California as a medicalized discipline under the control of the medical profession.

The CMA/ACOG authors of both mfry bills crafted them to provide a new type of physician-extenders practitioners — CNMs and LMs — that were expected to function under medical supervision as the employees of physicians. The 1993 LMPA copied the CNM law verbatim, also putting direct-entry into the category of a physician-supervised medicalized discipline.

We all hope and pray that AB 1308 will return  to the historic or ‘legacy’ practice of midwifery as an independent profession after 6 decades of being lost in the desert.

The immediate issue is how to structure midwifery as an independent discipline.

The following definitions and other information about autonomy comes from a course for undergraduate students in nursing, mfry and medicine at CUNY.edu. It is more directly relevant to the rights of women as maternity care patients, than to our professional rights as midwives.

However, the information is still very enlightening and helpful in understanding our own and our family’s right to make health and maternity care decisions for ourselves and our minor children. Also there is a lot of cross-over into midwifery when you realize how frequently the abridgment of such rights is instigated by medical providers who:

(a) believe without any actual proof that they know better what is good for YOU, than you, the individual, does

(b) is based on out-dated or inappropriate  medical treatments or protocols (e.g. bed-rest), and/or does not take into consideration the very real possibility of iatrogenic or nosocomial complications.

I’ve described this in other places as the idea that it is somehow “better” to suffer or die from OVER treatment than from UNDER treatment.  While a healthcare provider may (a big “if”) be less likely to get criticized or sued for over-treating a patient, it’s no less tragic to the patient to have suffered side-effects and complications from aggressive treatments or invasive procedures. Actually for many, it is even worse.

As for our situation as ‘liberated’ midwives — autonomous professionals — we can see that the fingerprints of ‘paternalism’ in limitation imposed by AB 1308 on our scope of practice that is actually a ‘once removed’ form of paternalism directed at childbearing women.

I’m not professionally harmed by not providing OOH care to a woman with a post-mature pregnancy, but then its not me, or my daughter or daughter-in-law whose being told that she must be induced, even thought she has very long cycles or other good evidence that her pregnancy is mis-dated, or possibly post-dates but not post-mature, and her baby is fine according to all the indicators of fetal well-being.

http://www.qcc.cuny.edu/socialsciences/ppecorino/MEDICAL_ETHICS_TEXT/Chapter_6_Patient_Rights/ISSUES_AUTONOMY.htm

Chapter 6 ~ Section 3 The Issue of AUTONOMY

Autonomy is to be recognized as a right for the self determined, rational agents who are independent and are capable of both a.) rational and b.) unconstrained decision making and acting accordingly.

a.) Rational if the agent can:

1. select the best means to a chosen end, i.e. to reason well and
2. to choose the appropriate ends.

Factors operating against rationality: emotions, laziness, pain, drugs, lack of intelligence (temporary or permanent) and training.

b.) Unconstrained – without constraints if both conditions are satisfied:

1. there is no lack of necessary element
2. there is no coercive force or use of threat

The Right of Self-Determination or Autonomy would include the right to refuse treatment, the right to participate in research or refuse it.  To exercise this right would require Informed Consent.

What of those who are not capable of both rational and unconstrained decision making and acting accordingly?     These would include:

• Comatose
• Brain Damaged
• Psychotic
• Mentally Impaired
• Drug Induced State

Then there would need to be someone to make decisions on behalf of those who are incapable.  These decision makers would become the proxy for persons who are, for whatever reason, incapable of doing so for themselves. They would exercise a proxy consent.  More of this in a subsequent section of this chapter.

Restrictions on Autonomy:

Some believe that there can be justifications for violations of the principle of autonomy.

There are four principles cited to justify restrictions on Autonomy:

1.  Harm Principle- stop an individual from causing harm to others
2.  Paternalism Principle-
   

   • Weak -to stop a person from self harm
   • Strong -to benefit a person

3.  Legal Moralism Principle- legislated morality to prevent harm or improve situations
4.  Welfare (Social Benefit) Principle- for the benefit of many others or for all

Examples of each principle:

• Harm- if a person has a highly contagious and life threatening disease that person could be confined against that person’s will
• Paternalism-weak- a person attempting suicide by ingesting poison could have the stomach cleared of the poison in the ER even though refusing treatment
• Paternalism-strong- a 22 year old person could have a gangrenous leg amputated even against a refusal of treatment
• Legal Moralism – children can be inoculated against disease despite their refusal and that of their parents

• Welfare- a person with a rare anti-body to a deadly incurable disease threatening the general population could be made to give a specimen of their blood or bone marrow or other tissue for the sake of the benefit of the entire society, e.g., seat belts, helmets, inoculation, organ donation

Paternalism :

Of all the threats to Autonomy, paternalism is the most prevalent within health care.  It exists as a tradition in some settings and with some providers of health care.  It has its defenders.

Paternalism is characterized by action taken by someone:

• to act to advance or protect the interests of a person
• to act as one thinks best for others regardless of their expressed wishes

“Paternalism is an especially touchy topic in the context of medicine because there are so many factors contributing to the paternalistic attitudes so often adopted by health care professionals:

• Patients are usually lay-persons with respect to medical care.

• Health care professionals have limited time to explain complicated physiological or psychological concepts to their patients.

• It is not clear that, even given the time, health care professionals generally would be able to provide adequate explanations, since such professionals are not usually teachers.

• Not every lay-person is capable of completely understanding all the issues involved in making a medical decision.

• Even if all the issues involved in making a medical decision can be adequately explained, health care professionals dislike being put in the position of having to defend their decisions from skeptical patients.

• Often, medical professionals must make decisions about what to disclose to others about a particular patient on the basis of what is best for the patient or in order to prevent harm to others.”

Outline by  Don Berkich,  University of Texas, Corpus Christi (by permission)

The conflicting moral dilemma in health care is between the autonomous wishes of the recipient of care and the paternalistic demands of the doctors. When should the demands of the recipient of care be granted, even if the decision would result in the certain death of the recipient of care ?

Paternalism is the interference with the liberty or autonomy of another person, with the intent of promoting good or preventing harm to that person. Examples of paternalism in everyday life are laws which require seat belts, wearing helmets while riding a motorcycle, and banning certain drugs. An action is paternalistic if its intent is to promote good or prevent harm to a person, the action is contrary to the current preferences of that person, and the action is a limitation of that persons autonomy.

Soft paternalism justifies actions contrary to the autonomy or liberty of a person when that person’s choices are non-voluntary or they need more time to reflect. Examples of this are when people suffer from mental incapacities and the parental disciplining a child (against their will). Hard paternalism justifies actions in cases even when the person is acting voluntarily (seat belts and helmet laws).

Forms of Paternalism:

• A. State Paternalism: laws and regulations:
  • Medical Practice Restrictions
  • Licensing
  • Drugs
  • Research Restrictions

   

• B. Personal Paternalism: individual acts

In the relationship of the health care provider to the recipient of care, the recipient of care surrenders some autonomy to the provider.  The questions are: How far does this surrender extend? How much decision making authority can be or should be surrendered, if any at all?

Paternalism usually involves:

1. Coercion more than the denial of freedom
2. Control of behavior
3. Interference with liberty,  e.g., lying to a dying mother

One essential feature of Paternalism in the sense that it is being discussed here is a violation of moral rules (rights).

Acts of paternalism would violate rules against:

• deception
• deprivation of freedom
• disabling or harming or killing
• causing pain
• manipulating consent

A Limited Defense of Paternalism Based Upon Utility

Someone acts paternalistically in order to protect autonomy where it might be destroyed if that person acts in a non-paternalistic manner. This is based upon a consideration of the consequences.

In all cases of attempting to justify paternalism there are two principles;

1. Burden of proof for going forward, or persuasion is with the authorities to demonstrate the consequences and potential harm or benefit to be achieved and the probabilities of each result.

2. Selection of the least restrictive alternative after all other alternatives (considering costs, inconveniences and time) are tried first.

For the utilitarians, one reason to violate a person’s liberty is for self protection and another reason would be to prevent harm to others. There would be no utilitarian justification to interfere with a person’s liberty for that person’s own good. This would not be sufficient reason or warrant to exercise compulsion by an individual or by society. It should be noted that acting to prevent harm is not Paternalism.

Acting against a person’s wishes in order to prevent harm is paternalism.  Acting to promote the good, even against the person’s wishes, is paternalism. Paternalism is the use of coercion to achieve a good for a person who does not recognize the good.  Question: Is the individual the best judge of that individual’s best interests? Who is the judge of one’s own welfare?   Paternalism would only be justified , according to John Stuart Mill, to preserve wider freedom. e.g., there are laws prohibiting slavery and contracts for indentured servitude.

READ: Claire Andre and Manuel Velasquez For Your Own Good in Issues in Ethics, Vol. 4, No. 2   Fall 1991 at   http://www.scu.edu/Ethics/publications/iie/v4n2/owngood.html

To choose is a GOOD that is separate from the good that is chosen.

READ: On Paternalism: by Peter Suber in Christopher B. Gray (ed.), Philosophy of Law:  An Encyclopedia, Garland Pub. Co, 1999, II.632-635.  http://www.earlham.edu/~peters/writing/paternal.htm

A Defense of Paternalism

Gerald Dworkin, Paternalism, The Monist, La Salle, IL., Vol. 56, No. 1.

READ: Dworkin’s Argument summarized by from Don Berkich of University of Massachusetts

at: http://www-unix.oit.umass.edu/~phil100/units/unit-07/lecture-01/dworkins_argument.html

“Dworkin does not draw a sharp distinction between weak and strong paternalism – and perhaps there is no sharp distinction to be drawn – he does argue that Mill was mistaken to reject paternalism. According to Dworkin, the wager view by which Mill justifies paternalism with respect to children can be extended to adults.

The Wager View: It is morally permissible to restrict the autonomy of children for their benefit since they are not fully rational and we bet (wager) that if they were, they would concur with our decisions.

But extending the wager view to adults requires that we assume that, if the adult were fully rational, the adult would concur with our restrictions on his or her autonomy. What this implies is that

1. Those who would restrict an individual’s autonomy bear the burden of proof-i.e., they must demonstrate that paternalism is justified. It is not required that the individual justify that paternalism is wrong, since paternalism is presumptively wrong.

2. In cases were paternalism can be adequately justified, the alternative which least restricts autonomy should be adopted over any other alternative.

Given these restrictions on paternalism, it is astonishing to realize the extent of unjustified paternalism on the part of the Federal and State Governments. For example, the so-called ‘War on Drugs’ and the prohibition of drugs for recreational use is morally illicit, since the government has clearly failed to adopt the alternatives which least restrict autonomy, even assuming it borne the burden of proof to justify the prohibition, which, to be sure, it has not.”

 – – Don Berkich of University of Massachusetts

===================================

Against Paternalism

Mill was opposed to Strong Paternalism: http://65.107.211.206/mill/ten/ch7b.html

http://65.107.211.206/mill/ten/ch7c.html

Cardinal Error of Paternalism: http://hem.passagen.se/nicb/pater.htm

The Kantian Categorical Imperative would NOT justify Paternalism. For Kant you can not treat a person as a means to an end even to their own ends. No one knows what the future consequences will be.  Informed Consent is not to be violated.

Could a person consent to have others force him to do something? e.g., Odysseus when he knew he would be tempted and overcome by sirens he had his crew tie him up and ignore his protestations until they were clear of the danger.  Could an ill person consent to have their decision making authority given over to someone else for decisions that they might then protest against?  Under what conditions and for what period of time?  What principles would make this morally justifiable?

Click here for access to document

Informed Consent Information & Waiver
for Clients of California Licensed Midwives ~ 2014

Licensed Midwifery Practice Act as modified by AB 1308 ~ September 12, 2013

This bill would, among other things, no longer require a physician and surgeon to supervise a licensed midwife.

The bill would require, if a potential midwife client fails to meet the conditions of a normal pregnancy or childbirth, as defined, but still desires to be a client, that the licensed midwife refer the woman to a physician and surgeon for examination. The bill would require the board to adopt regulations specifying certain of those conditions.

The bill would authorize the licensed midwife to assist the woman only if the physician and surgeon determines, after examination, that the risk factors presented by the woman’s disease or condition are not likely to significantly affect the course of pregnancy and childbirth.

The bill would require a licensed midwife to immediately refer or transfer the client to a physician and surgeon if at any point during pregnancy, childbirth, or postpartum care a client’s condition deviates from normal.

The bill would authorize the licensed midwife to resume primary care of the client if the physician and surgeon determines that the client’s condition or concern has been resolved, and to provide concurrent care if the client’s condition or concern has not been resolved, as specified.

Amended language of the LMPA under AB 1308

2508. (a) A licensed midwife shall disclose in oral and written form to a prospective client as part of a client care plan, and obtain informed consent for, all of the following (1) All of the provisions of Section 2507:

SEC. 2. Section 2507 of the Business and Professions Code is amended to read:

2507. (a) The license to practice midwifery authorizes the holder to attend cases of normal pregnancy and childbirth, as defined in paragraph (1) of subdivision (b), and to provide prenatal, intrapartum, and postpartum care, including family-planning care, for the mother, and immediate care for the newborn.

(b) As used in this article, the practice of midwifery constitutes the furthering or undertaking by any licensed midwife to assist a woman in childbirth so as long as progress meets criteria accepted as normal.

(1) Except as provided in paragraph (2), a licensed midwife shall only assist a woman in normal pregnancy and childbirth, which is defined as meeting all of the following conditions:

(A) There is an absence of both of the following [NO evidence of the following]

(i) Any preexisting maternal disease or condition likely to affect the pregnancy
(ii) Significant disease arising from the pregnancy

(B) There is a singleton fetus

(C) There is a cephalic (i.e., head down or “vertex”) presentation

(D) The gestational age of the fetus is greater than 37 0⁄7 weeks and less than 42 0⁄7 completed weeks of pregnancy

(E) Labor is spontaneous or induced in an outpatient setting

(2) If a potential midwife client meets the conditions specified in subparagraphs (B) to (E), inclusive, of paragraph (1), but fails to meet the conditions specified in subparagraph (A) of paragraph (1), and the woman still desires to be a client of the licensed midwife, …..

….. the licensed midwife shall provide the woman with a referral for an examination by a physician and surgeon trained in obstetrics and gynecology.

A licensed midwife may assist the woman in pregnancy and childbirth only if an examination by a physician and surgeon trained in obstetrics and gynecology is obtained and the physician and surgeon who examined the woman determines that the risk factors presented by her disease or condition are not likely to significantly affect the course of pregnancy and childbirth.

(3)The board shall adopt regulations … specifying the conditions described in subparagraph (A) of paragraph (1).

(c) (1) If at any point during a pregnancy, childbirth, or postpartum care a client’s condition deviates from normal, the licensed midwife shall immediately refer or transfer the client to a physician and surgeon.

The licensed midwife may consult and remain in consultation with the physician and surgeon after the referral or transfer.

(2) If a physician and surgeon 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 or childbirth, the licensed midwife may resume primary care of the client and resume assisting the client during her pregnancy, childbirth, or postpartum care.

(3) If a physician and surgeon determines the client’s condition or concern has not been resolved as specified in paragraph (2), the licensed midwife may provide concurrent care with a physician and surgeon and, if authorized by the client, be present during the labor and childbirth, and resume postpartum care, if appropriate.

A licensed midwife shall not resume primary care of the client.

(d) A licensed midwife shall not provide or continue to provide midwifery care to a woman with a risk factor that will significantly affect the course of pregnancy and childbirth, regardless of whether the woman has consented to this care or refused care by a physician or surgeon, except as provided in paragraph (3) of subdivision (c).

2508. (a) A licensed midwife shall disclose in oral and written form to a prospective client as part of a client care plan, and obtain informed consent for, all of the following:

(1) All of the provisions of Section 2507 (as above)

(2) The client is retaining a licensed midwife, not a certified nurse midwife, and the licensed midwife is not supervised by a physician and surgeon.

(3) The licensed midwife’s current licensure status and license number.

(4) The practice settings in which the licensed midwife practices.

(5) If the licensed midwife does not have liability coverage for the practice of midwifery, he or she shall disclose that fact. The licensed midwife shall disclose to the client that many physicians and surgeons do not have liability insurance coverage for services provided to someone having a planned out-of-hospital birth.

(6) The acknowledgment that if the client is advised to consult with a physician and surgeon, failure to do so may affect the client’s legal rights in any professional negligence actions against a physician and surgeon, licensed health care professional, or hospital.

(7) There are conditions that are outside of the scope of practice of a licensed midwife that will result in a referral for a consultation from, or transfer of care to, a physician and surgeon.

(8) The specific arrangements for the referral of complications to a physician and surgeon for consultation. The licensed midwife shall not be required to identify a specific physician and surgeon.

(9) The specific arrangements for the transfer of care during the prenatal period, hospital transfer during the intrapartum and postpartum periods, and access to appropriate emergency medical services for mother and baby if necessary, and recommendations for pre-registration at a hospital that has obstetric emergency services and is most likely to receive the transfer.

(10) If, during the course of care, the client is informed that she has, or may have, a condition indicating the need for a mandatory transfer, the licensed midwife shall initiate the transfer.

(11) The availability of the text of laws regulating licensed midwifery practices and the procedure for reporting complaints to the Medical Board of California, which may be found on the Medical Board of California’s Internet Web site.

(12) Consultation with a physician and surgeon does not alone create a physician-patient relationship or any other relationship with the physician and surgeon.

The informed consent shall specifically state that the licensed midwife and the consulting physician and surgeon are not employees, partners, associates, agents, or principals of one another. The licensed midwife shall inform the patient that he or she is independently licensed and practicing midwifery, and in that regard, is solely responsible for the services he or she provides.

(b) The disclosure and consent shall be signed by both the licensed midwife and the client and a copy of the disclosure and consent shall be placed in the client’s medical record.

(c) The Medical Board of California may prescribe the form for the written disclosure and informed consent statement required to be used by a licensed midwife under this section.

SEC. 4. Section 2510 is added to the Business and Professions Code, to read:

If a client is transferred to a hospital, the licensed midwife shall provide records, including prenatal records, and speak with the receiving physician and surgeon about labor up to the point of the transfer.  The hospital shall report each transfer of a planned out-of-hospital birth to the Medical Board of California and the California Maternal Quality Care Collaborative using a standardized form developed by the board.

Client Acknowledgment of Relevant Midwifery Laws

Section 2508 of the Business and Professions Code requires that a licensed midwife shall make the following disclosures in oral and written form.

According to the above section of law, clients of California licensed midwives are required to be informed about the pertinent laws regulating the community-based Out-of-Hospital practice of midwifery under the Licensed Midwifery Practice Act (LMPA) of 1993 and its subsequent amendments. This includes AB 1308, which went into effect on January 1, 2014.

As your midwife, I, _____________________________, Ca LM# ____, am required to communicate the following information to you:

CLIENT NAME: I,  ____________________________________________,  understand or state that my midwife:

•  provided relevant provisions of Section 2507 and 2508 to me earlier in this document
•  answered my questions about Sections 2507 & 2508 to the best of her ability
•  made the following statements about herself and the midwifery law available to me:

PRACTICE STATUS ~ {LM’s full name & title}

• is independently licensed by the Medical Board of California
• her license status (number #041 ) is current and unrestricted
• is not a certified nurse midwife
• does not practice under the supervision of a physician and surgeon

LOCATION OF SERVICES: 

• my midwife practices in out-of-hospital settings, including homes, birth centers and clinics
• does not have hospital admitting or hospital practice privileges

PHYSICIAN REFFERAL &/OR TRANSFER OF CARE:

• medical conditions identified during pregnancy that are outside the scope of practice for a licensed midwife will require my midwife to refer me to a physician and surgeon for consultation or transfer-of-care
• if a medical condition develops during labor, birth, postpartum or neonatal period, indicating the need for a mandatory hospital transfer of myself or my baby,  my midwife will initiate the transfer of care
• to facilitate the hospital transfer process, my midwife recommends that I pre-register at a hospital that provides obstetric emergency services and is the one to which I am most likely to transfer

PROFESSIONL LIABILITY ISSUES:

•  as an independent practitioner of midwifery, my midwife is solely responsible for the services she provides
• does/does not carry liability coverage for the practice of midwifery
• my midwife, and any physician and surgeon with whom he/she consults, are not employees, partners, associates, agents, or principals of one another
• many physicians and surgeons do not have liability insurance coverage for services provided to someone having a planned out-of-hospital birth
•  consultation with a physician and surgeon does not alone create a physician/ patient relationship or any other relationship with the physician and surgeon
• if  advised to consult with a physician and surgeon, my failure to do so may affect my legal rights in any professional negligence actions against a physician and surgeon, licensed healthcare professional, or hospital.

As a midwifery client of Ca LM #____  {client name} _____________________________________, I read and understand all the above statements to the best of my ability and understand that a copy of this signed Disclosure Form shall be placed in my midwifery chart.  Date _______________

Please continue to page #7.  Fill in the pertinent information AND sign the “Record of Medical Interface Arrangements for clients of California Licensed Midwives” as required by the Licensed Midwives Practice Act of 1993

Medical Interface Arrangements relative to pregnancy & childbirth
for clients of California Licensed Midwives

Client Name   _________________________________________ Date ________

Licensed Midwife ______________________________________ License #_____

(1) My plans/arrangements for medical/obstetrical consultation and/or non-urgent transfer of care during my pregnancy are as follows: ___________________________________________________________________________

(2) If elective obstetrical care during my labor, birth and the immediate postpartum becomes necessary, I’ve identified the following hospital and physician to provide such services: ___________________________________________________________________________

(3) My midwife and I have together identified arrangements specific to my geographical location for emergency care for myself, or my newborn baby during or after the birth: ___________________________________________________________________________

I have been informed of my right to check on the licensure status of any health care practitioner licensed in California. Physicians, Licensed Midwives and 18 allied health professions are licensed and regulated by the Medical Board of California (MBC). For information on Medical Board licentiates, call 1- 916 / 263-2382 or visit their web site at www.medbd.ca.gov/.

I’ve also been advised that I can report complaints about medical or midwifery care to the MBC by calling 1- 800 / 633-2322. Instructions and a complaint form are available on-line by visiting the MBC Internet site @ www.medbd.ca.gov/.

If the above named licensed midwife does not carry professional liability insurance 
(i.e. medical malpractice coverage), I have been informed of that fact.

Client Signature _________________________________  Date ____________

Midwife Signature ______________________________  Date__________

www.CollegeofMidwives.org                       2000 Medical Interface Form ~ updated 2014

ASIDE: I found a funny blooper in AB 1308 – a misunderstanding of the word “version”, which is a technical term that actually refers to “podalic” version — changing a vtx position to a breech during 2nd stage by reaching up in the mother’s uterus and pulling her baby out by its feet:

(e) The practice of midwifery does not include the assisting of childbirth by any artificial, forcible, or mechanical means, nor the performance of any version of these means.

Below are the positive statements of how the law will read (and work!) once all the legislative ‘strike-throughs’ are dispensed with.

I only included areas that had changes in them. I didn’t include text about topics that were uncontroversial — for example, our access to drugs and supplies or about the modification of the birth center law to include LMs.

Licensed Midwifery Practice Act as modified by AB 1308

SEC. 2. Section 2507 of the Business and Professions Code is amended to read:

2507. (a) The license to practice midwifery authorizes the holder to attend cases of normal pregnancy and childbirth, as defined in paragraph (1) of subdivision (b), and to provide prenatal, intrapartum, and postpartum care, including family-planning care, for the mother, and immediate care for the newborn.

(b) As used in this article, the practice of midwifery constitutes the furthering or undertaking by any licensed midwife to assist a woman in childbirth so as long as progress meets criteria accepted as normal.

(1) Except as provided in paragraph (2), a licensed midwife shall only assist a woman in normal pregnancy and childbirth, which is defined as meeting all of the following conditions:

(A) There is an absence of both of the following:

(i) Any preexisting maternal disease or condition likely to affect the pregnancy.

(ii) Significant disease arising from the pregnancy.

(B) There is a singleton fetus.

(C) There is a cephalic presentation.

(D) The gestational age of the fetus is greater than 37 0⁄7 weeks and less than 42 0⁄7 completed weeks of pregnancy.

(E) Labor is spontaneous or induced in an outpatient setting.

(2) If a potential midwife client meets the conditions specified in subparagraphs (B) to (E), inclusive, of paragraph (1), but fails to meet the conditions specified in subparagraph (A) of paragraph (1), and the woman still desires to be a client of the licensed midwife, …..

….. the licensed midwife shall provide the woman with a referral for an examination by a physician and surgeon trained in obstetrics and gynecology.

A licensed midwife may assist the woman in pregnancy and childbirth only if an examination by a physician and surgeon trained in obstetrics and gynecology is obtained and the physician and surgeon who examined the woman determines that the risk factors presented by her disease or condition are not likely to significantly affect the course of pregnancy and childbirth.

The board shall adopt regulations … specifying the conditions described in subparagraph (A) of paragraph (1).

(d) A licensed midwife shall not provide or continue to provide midwifery care to a woman with a risk factor that will significantly affect the course of pregnancy and childbirth, regardless of whether the woman has consented to this care or refused care by a physician or surgeon, except as provided in paragraph (3) of subdivision (c).  [page #6 – lines 10 thru 15]

NOTE — I was unable to figure out what paragraph (3), subdivision (c) referred to 

(c) (1) If at any point during a pregnancy, childbirth, or postpartum care a client’s condition deviates from normal, the licensed midwife shall immediately refer or transfer the client to a physician and surgeon.

The licensed midwife may consult and remain in consultation with the physician and surgeon after the referral or transfer.

2508. (a) A licensed midwife shall disclose in oral and written form to a prospective client as part of a client care plan, and obtain informed consent for, all of the following:

(1) All of the provisions of Section 2507.

(2) The client is retaining a licensed midwife, not a certified nurse midwife, and the licensed midwife is not supervised by a physician and surgeon.

(3) The licensed midwife’s current licensure status and license number.

(4) The practice settings in which the licensed midwife practices.

(5) If the licensed midwife does not have liability coverage for the practice of midwifery, he or she shall disclose that fact.

The licensed midwife shall disclose to the client that many physicians and surgeons do not have liability insurance coverage for services provided to someone having a planned out-of-hospital birth.

(6) The acknowledgment that if the client is advised to consult with a physician and surgeon, failure to do so may affect the client’s legal rights in any professional negligence actions against a physician and surgeon, licensed health care professional, or hospital.

(7) There are conditions that are outside of the scope of practice of a licensed midwife that will result in a referral for a consultation from, or transfer of care to, a physician and surgeon.

(8) The specific arrangements for the referral of complications to a physician and surgeon for consultation. The licensed midwife shall not be required to identify a specific physician and surgeon.

(9) The specific arrangements for the transfer of care during the prenatal period, hospital transfer during the intrapartum and postpartum periods, and access to appropriate emergency medical services for mother and baby if necessary, and recommendations for pre-registration at a hospital that has obstetric emergency services and is most likely to receive the transfer.

(10) If, during the course of care, the client is informed that she has or may have a condition indicating the need for a mandatory transfer, the licensed midwife shall initiate the transfer.

(11) The availability of the text of laws regulating licensed midwifery practices and the procedure for reporting complaints to the Medical Board of California, which may be found on the Medical Board of California’s Internet Web site.

(12) Consultation with a physician and surgeon does not alone create a physician-patient relationship or any other relationship with the physician and surgeon.

The informed consent shall specifically state that the licensed midwife and the consulting physician and surgeon are not employees, partners, associates, agents, or principals of one another. The licensed midwife shall inform the patient that he or she is independently licensed and practicing midwifery and in that regard is solely responsible for the services he or she provides.

(b) The disclosure and consent shall be signed by both the licensed midwife and the client and a copy of the disclosure and consent shall be placed in the client’s medical record.

(c) The Medical Board of California may prescribe the form for the written disclosure and informed consent statement required to be used by a licensed midwife under this section.

SEC. 4. Section 2510 is added to the Business and Professions Code, to read:

2510. If a client is transferred to a hospital, the licensed midwife shall provide records, including prenatal records, and speak with the receiving physician and surgeon about labor up to the point of the transfer.

The hospital shall report each transfer of a planned out-of-hospital birth to the Medical Board of California and the California Maternal Quality Care Collaborative using a standardized form developed by the board.

~~~~~~~~~~~~~~~~ LMAR ~~~~~~~~~~~~~

2516. (a) Each licensed midwife who assists, or supervises a student midwife in assisting, in childbirth that occurs in an out-of-hospital setting shall annually report to the Office of Statewide Health Planning and Development.

The board, with input from the Midwifery Advisory Council, may adjust the data elements required to be reported to better coordinate with other reporting systems, including the reporting system of the Midwives Alliance of North America (MANA), while maintaining the data elements unique to California. To better capture data needed for the report required by this section, the concurrent use of systems, including MANA’s, by licensed midwives is encouraged.

~~Revoke or suspend mfry license (all violations are also technically a crime) ~~

SEC. 7. Section 2519 of the Business and Professions Code is amended to read:

2519. The board may suspend or revoke the license of a midwife for any of the following:

(j) Failing to do any of the following when required pursuant to Section 2507:

(1) Consult with a physician and surgeon.

(2) Refer a client to a physician and surgeon.

(3) Transfer a client to a hospital.