California Midwives & Physician Supervision: 1876 to 2013 ~ part 1 (of 5)

Please note — The information in this 5-part series is vital to attempts to amend the LMPA, whether by midwives, organized medicine or the Medical board.

Due to the important nature of the material I have posted draft versions of all 5 parts and every part needs additional attention. Anyone who wished to take this on (for one or all 5 parts) can email me at faithgibson at mac dot com. After I confirm your credentials, I’ll be happy to provide administrative privileges you can access and edit the material via WordPress on the internet.

You don’t need anything other than a computer, web connection, to be a good speller and have modest editing skills.

Part 1 (of 5): The Legislative History of California Midwifery Laws & the Licensed Midwifery Practice Act of 1993

Legislation creating the first state-regulated practice of  direct-entry midwifery practice (traditional non-medical, non-nurse practitioners was passed in 1917. This traditional (non-nurse, non-medical) discipline of midwifery included a Medical Board-approved curriculum that specified the same 165 hours of didactic education in obstetrics and hygiene as medical students, plus a specified period of clinical training. Midwives credentialed under this provision held an active license to practice midwifery in California until the last of these midwives retired in 1981.

In 1993 language in the LMPA repealed the 1917 provision. Like the original midwifery law, the LMPA identifies midwifery as distinct from the practice of medicine, stating that: “the holder of a licensed to practice midwifery is not authorized to practice medicine or surgery”. However, the LMPA modernized the traditional practice of midwifery by incorporating specific midwifery training and authorization for the use of a limited & specified number (7) of preventive and emergent drugs. This is not qualitatively different than the authorizing legislation of other categories of non-physician practitioners.

The LMPA defines the contemporary practice of traditional (non-medical, non-nurse) midwifery in California – physiologically-based care of pregnancy and normal childbirth in an essentially healthy childbearing population. This category, also known as ‘direct-entry’ midwifery, describes an educational pathway and comprehensive training program that directly teaches the body of knowledge and technical skills of midwifery without requiring the student to first become a nurse or be simultaneously trained in both nursing and midwifery.

However modern midwifery education does includes training in the many of the same technical and medical skills that are jointly shared by the medical, nursing and other healthcare professions. This include monitoring vital signs (maternal blood pressure, pulse, fetal heart rate, etc), starting IVs and giving injections. These skills are consistent with the LMPA, which authorizes LMs to use a specific list of prophylactic and emergent drugs and associated medical supplies. The 1993 licensing law includes the same scope of practice, a modern curriculum and clinical training as the nurse-midwifery practice act and defines that legal status of licensed midwifery practice to be “equivalent, but not identical,” to nurse-midwifery.

Midwives licensed under the Act are also trained to recognize signs of complications in pregnant and laboring women, unborn fetuses and newborn babies. In event of  a complication, or if requested by the mother, the LMPA requires that LMs transfer the childbearing woman or neonate to the care of a medical doctor for evaluation or treatment.

Midwifery ~ neither a ‘lay’ practice or a medical profession

The LMPA and all other midwifery-relative statutes make it clear that licensed midwifery is neither a ‘lay’ practice — what the W.H.O. calls ‘traditional birth attendants’ — or a sub-set of allopathic medical practice (drugs and surgery), which would put LMs into the category known as ‘physician-extenders’, such as physician assistants and nurse-practitioners.

‘Healing Arts’ statutes passed by the California legislature from 1876 to the present never defined care during normal childbirth (the universal definition of midwifery) to be a medical activity that was delegated by an MD to the midwife, nor was assisting a woman during normal childbirth identified as an activity restricted to those with a license to practice medicine. From 1876 to 1917, the words “childbirth”, “midwife” and “midwives” do not appear in anywhere in the Healing Arts legislation.

History of the 1917 Provision

The first provision for the state-certification of midwives was introduced in 1917 as part of an amendment to the 1913 Medical Practices Act. This provision also included a ‘grandmother’ clause for certifying currently practicing midwives and an educational curriculum and other qualifications for the state-certification of future midwives. However, this statutory scheme did not restrict the practice of midwifery to state-certified midwives, nor did it define assisting a woman during a normal childbirth to be any form of unauthorized practice of medicine or identify the lay or unlicensed practice of traditional midwifery to be illegal.

Penalties introduced by the 1917 provision were to prohibit midwives from using drugs or surgical procedures, such as forceps and reaching up into the uterus to remove an adherent placenta, and to punish any failure to make a timely referral to an MD for a laboring woman or newborn with one of the complications listed in the statute. These and other stipulated activities were formally deemed to be an illegal practice of medicine that would result in the revocation of the midwife’s state-certification (equivalent to a modern license).

In essence the 1917 statute legally established the categories of ‘boy toys’ (practice of medicine) and ‘girl toys’ (practice of midwifery) and plainly marked the former as off-limits to midwives. This was reiterated in the language of the 1917 provision — language also included in the 1974 nurse-midwifery act and the 1993 LMPA,  stating that “a license to practice midwifery does NOT authorize the the holder to practice medicine or surgery”

This legal status of midwifery established in the 1917 provision remained in effect until 1976, when a stare decisis — Latin for a binding decision by the State Supreme Court that ‘creates’ law via their interpretation — ruled that the unlicensed practice of midwifery was henceforth defined as an illegal practice of medicine, and therefore a criminal offense in the state of California. That ruling, known as the Bowland Decision, is the source of the Medical Board’s policy that identifies lay practice of midwifery as an illegal activity.

The LMPA clearly states that the holder of a license to practice midwifery is not authorized to practice medicine and surgery. This establishes midwifery as a professional discipline in its own right that is qualitatively different from the surgical specialty of obstetrics and puts midwifery in a legal category known as a “distinct calling”.

Historically the midwifery profession has had its own unique history, a discipline-specific educational curriculum that includes a clinical training component, an enumerated scope of practice, and its own standard of care that is distinct from the practice of medicine. The scope of practice and the educational requirements for training in the 1993 LMPA define licensed midwifery as having a legal status that is “equivalent but not identical” to the profession of nurse-midwifery.

Since full implementation of the law in 1996, approximately 27o midwives have been licensed, with about 125 LMs actively providing OOH birth services in 2011, the most recent years that statistics are available. By comparison, there are over a 1,000 certified nurse midwives (CNMs) who are licensed under the 1974 nurse-midwifery practice act. CNMs in this state are generally employed in clinics, doctor’s offices, birth centers, and hospital-based midwifery services. Due to the physician supervision issue, it’s rare for California nurse-midwives to provide out-of-hospital (OOH) birth services.

Under the regulatory authority of the LMPA, the Medical Board adopted a standard of practice for licensed midwives in March of 2006 that is consistent with providing professional midwifery care to healthy women in OOH settings. Since 2007 annual reports for all licensed midwives have been complied and published by the Officie of State-wide Health Planning and Development (OSHPD). During 2011 California LMs provided prenatal care to over 3,400 women and attended approximately 2,600 PHB.

The normal spontaneous birth rate for childbearing women attended by California LMs is 92%, with 7% Cesarean section rate among those women who were transfered to the hospital before or during labor. Premature birth rates for California mothers receiving prenatal care from LMs is under 1%, while the overall rate in the US is 12%. The reduced numbers of premature babies and Cesarean deliveries lowers the cost of medical care, which results in a substantial saving to the State’s Medi-Cal program. (get accurate numbers for all categories from last yrs LMAR and other references)

link to part 2: