Written Testimony-Sunset Review: Do midwives ‘perform deliveries’ plus controversy over mfry assistants ~ part 1

by faithgibson on March 1, 2013

in Info ~ Medical Board Members, Mfry Student Issues, Physician Supervision Issues

The following is an excerpt from my written testimony submitted for the California Legislature’s record relative to the Sunset Review 2013. Feel free to use any part of this in your own written (or oral) testimony.

The first hearing will be March 11th, but that will NOT be the end of the -midwifery-related activities of the Sunset Review Committee. I don’t know what the deadline is but it probably won’t be until sometime in April. If you haven’t already, please submit written testimony ASAP.

The background material quoted below is from MBC Sunset Review document under New Issues, page 16  (Appendix I):

….. concern revolves around the use of “assistants” by a licensed midwife and the duties the assistant may legally perform. It has been brought to the attention of the Board that licensed midwives use midwife assistants. Currently, there is no definition for a midwife assistant, the specific training requirements or the duties that a midwife assistant may perform.

Some licensed midwives only use another licensed midwife as an assistant. Other licensed midwives use a midwife student who is enrolled in a recognized midwifery school and who has an official agreement with the student and midwifery school to provide clinical training to the student midwife. Other licensed midwives use someone who may or may not have formal midwifery training and/or someone that the licensed midwife has trained.

The duties that a midwife assistant performs vary from midwife to midwife.

Some midwife assistants only setup the birthing area prior to the baby being born and then cleanup the birthing area after the baby has been born. Some midwife assistants also hand supplies to the midwife during the delivery of the baby. Other midwife assistants (unlicensed individuals and not an official midwife student) actually assist the midwife with the birth of the baby.

Current statute and regulations do not address the use of a midwife assistant, the need for formal training or not, or the specific duties of an assistant.

Current statute does not provide a licensed midwife with the authority to train or supervise a midwife assistant who is actually assisting with the delivery of an infant.

The issue of a midwife assistant is not an issue that can be addressed with regulation with the current statutes that regulate the practice of midwifery. The issue of the midwife assistants should be addressed with legislation.

My Testimony In Response

Appendix I of the MBC Sunset Review states that: The issue of the midwife assistants should be addressed with legislation.

I do not agree with the Board’ assessment. I believe their conclusion is the result of a misunderstanding, in which the difference between the childbirth practices as a part of the practice of medicine and those associated with the lawful practice of midwifery in the State of California was not fully understood.

The LMPA already provides authority for LMs to manage the intrapartum (labor, birth, PP + newborn), which includes her legal responsible for the actions of others who are present and ‘assisting’ the midwife to carry out her formal role as a primary-care practitioner, and also helping the labor woman/new mother/new baby.

* Present authority already include the ability to have mfry students assist them with clinical care AND to have non-student, non-credentialed ‘lay’ persons help the mother and the midwife with non-clinical care and non-medical tasks.

* Nothing in the LMPA restricts who may be present at a normal childbirth in a non-medical setting or otherwise proscribes/prohibits who may ‘assist’ either the mother or the birth attendant. It is a principle of constitutional democracy that all activities are lawful UNLESS they are prohibited or proscribed by statute. In this case, no such limitation exists.

* No new legislation is needed that would create an additional classification of mfry provider and the licensing of ‘Mfry Assistants’. California citizens would not benefit from attempts to statutorily define what ‘helpers’ may do when present at a midwife-attended labor and birth in non-medical setting.

* Bottom line: How an LM makes use the assistance of enrolled mfry students and non-credentialed ‘helpers’ during an OOH birth is part of her professional exercise of clinical judgement.

As the licensed professional, the midwife is the place where the buck stops. As a part of her official duties, she is directly responsible for seeing that no one is assigned duties that include performing unauthorized acts or engaging in the illegal practice of medicine.

If she were to fail in that duty, it is she who could or would be charged with unprofessional conduct or in some instance, the more serious crime of aiding and abetting the unauthorized practice of medicine. 

Continue to Part 2 ~ BACKGROUND & CONTEXT:  How to distinguishing between the lawful assistance of professional and midwives during normal childbirth, and the obstetrically-based surgical procedure of  ‘performing a delivery’ or assisting at a “delivery” as customarily defined within the medical model.  

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