“Conflict is opportunity”
This article will focus on the problems facing midwives. It will show how we can protect ourselves in a culture of blame.
I have been practising midwifery and providing legal support to midwives since 1990. I see the cost and heartache from many unnecessary cases. This contrasts with the sense of empowerment when a midwife finds effective support. Some cases lead to suspension, dismissal or other sanctions imposed on a midwife. Many midwives simply choose to walk away. This article will show how we can support ourselves and others more effectively by using legal knowledge combined with the courage to act.
We all know of cases against colleagues or ourselves. Some were unjustified, others showing the imbalance and abuse of power by others (usually Employers, and Regulators which is the NMC or LSAMOs). For example; where a minor error or safety concern is magnified, false allegations may be made, or, being treated less favourably (due to some form of discrimination), or, when a whistle-blower is sanctioned, or a midwife scapegoated for system failures et cetera.
We are all interrelated in our lives (Rogers). Our professional relationships are with consumers, communities, other healthcare professionals whom all interrelate with us. This quality of midwives ‘being with women’ brings not only compassion but also strength as we work together acknowledging the inherent power in our interrelatedness. We need to stand up for ourselves and each other to enable a stronger professional group in midwifery.
We already know that we achieve more support by meeting together and sharing ideas, counselling each other, by listening and reflecting on ideas that we have, providing research and narrative evidence, (this is effectively formalising the coffee room conversation). Our Continuing Professional Development (CPD) also helps provide a robust defence by demonstrating how we are reasonable and competent practitioners. Engaging in Professional Supervision will also show how we are proactive participants reflecting on, and developing our professional skills. But what else can we do and how can we be proactive?
Key Areas of Risk for Midwives
1. Employment problems
Bullying in professional relationships
Investigations, suspension, dismissal etc.
2. Registration problems
(disciplinary investigations, suspension, sanctions)
3. Consumer Complaints
4. Clinical negligence claims
5. Threat to loss of personal and professional reputation
Listen and given the other party a sense of being actively listened by verifying what you understand. Then show how you will put this into some form of action. Acknowledging their position may be enough. Offering an apology, if appropriate, can de-escalate a conflict.
This recognises the other parties’ power to have a voice and an impact on us. If this is the consumer, they want to participate in their care and need to feel empowered. If this is the employer or regulator they require reassurance that certain actions will be taken. Initial listening and some agreement is essential to then gain momentum which can be used to negotiate details in your favour.
The key is to show how our actions are reasonable. No more, no less, just reasonable. That means that another midwife would likely have done what we did or did not do in the circumstances. Showing our rationale will increase our credibility as a competent practitioner. We are all part of a professional body of knowledge (established in the Bolam Test Case). We do not all have to agree. If a court made a judgment against one it would also be made against the body of professional knowledge and opinion. Therefore, courts are generally reluctant to make judgments against medical or midwifery opinion unless the care did not meet the threshold for common sense or logical analysis (see Bolitho case) when evaluating the risk benefit analysis. A court can determine what is reasonable (see Marriott v West Midlands HA).
Use Open questioning: How, Who, Why, What, Where, When for any challenges or complaints. This will elicit more useful information that you can more easily clarify and resolve. Give objective information to others applying the facts to the situation with these six questions. (Information given should be more about what the listener wants to hear than what the teller wants to tell). Edit out emotional responses, (save this for trusted friends and colleagues).
‘Hope for the best, plan for the worst’. Be mindful of the unknown possibilities such as unexpected events which present without warning. Prepare for all consequences including professional and clinical issues. This simply means acting reasonably with a rationale and a plan. Show how you use communication with others to demonstrate that you are a collaborative practitioner (this can still be radical practice if you find another to support your view).
There is constant clear evidence for the failures of the regulatory authority*. This growing body of academic opinion and case law is useful to any future nurse or midwife facing professional or legal actions. Their precedents can be used by other Registrants to show how the courts will support them against unfair NMC processes. This may deescalate malicious or falsified actions early.
When the NMC decides a case in favour of a midwife, this might then be useful for a claim against those who brought the complaint. It would help to provide evidence of malicious falsehood and assist in a claim for compensation (and costs) for defamation owing to the loss of personal and professional reputation. Investigating those who abuse their positions of power e.g. management, LSAMOs and others who are on the Professional Register can lead to formal complaints to the NMC against those individuals. The fact that they have made a complaint against a midwife does not stop them from being investigated. This may reduce vexatious complaints.
Problems with the NMC
The NMC often get things wrong. It frequently abuses registrants with lengthy cases and fails to follow any rules of natural justice or even its own regulations. Courts have viewed NMC judgements as unsafe and overturned NMC decisions (as in the cases of Rosser and Duthie, see also Becky Reed and Clare Fisher cases). Courts have also viewed NMC processes as unreasonable, unsafe and therefore unlawful. The NMC is a political institution. Amazingly, the NMC has been rewarded with greater public funding through the government, despite these or because of these failings. That is political. Therefore, midwives need to be political in finding solutions. When dealing with the NMC it is essential to document everything clearly. All correspondence and calls needs to be dated and timed. This can be useful evidence if the NMC fails to respond reasonably. Complaints and appeals need to be copied to your MP (including opposition party MPs) who can also ask questions directly to the NMC and even in the House of Parliament on your behalf. This will raise awareness of the issues and work in favour of all midwives. Public bodies such as the NMC must only act within their power. If they abuse their power or act beyond it ‘ultra vires’ they are guilty under public law. Successful actions here include: misfeasance in a public office, breach of statutory duty and negligence. The threat of these actions may encourage a party to engage with you directly or via mediation.
How to survive and thrive as a midwife:
Be proactive with early documentation. (Get documents witnessed and signed by others e.g. colleagues or consumers to verify events). This is particularly useful following long conversations regarding risks and benefits analysis (e.g. home breech birth).
Collect verification and evidence for any potential situation.
Expert witness reports by other peer midwives can assist in stating that a midwife’s actions were reasonable in their view. This can be any midwife.
Challenge the challengers. Do this where their process is unfair e.g. failing to follow proper process, failing to work within agreed time limits, or going outside their powers e.g. breaching privacy or human rights. This leads to:
Counter-claim. Make a Personal Grievance or formal written complaint both to the offending body, employer, NMC and outside it e.g. to an ombudsman or similar independent organisation. Involve your Member of Parliament (MP) for awareness about how the public bodies, e.g. NHS or NMC are performing. Go outside the organisation / Employer / NMC, to another e.g. Care Quality Commission, Health and Safety Executive if required and let that organisation contribute to finding solutions. Making a legal claim is possible and can rebalance the power between the parties. The actions include:
Employment Actions (unfair or constructive dismissal, discrimination, less favourable treatment, failing to follow procedures, grievances et al)
Breach of Contract
Torts (Wrongs) include:
Malicious falsehood (statements),
Misfeasance in a public office
Breach of Statutory duty
Negligence (causing harm e.g. to reputation and financial loss)
Personal Injury (e.g. diagnosed depression from the negligence)
Other wrongs can be challenged in court
Share information and work collaboratively with others e.g. unions, colleagues who may have similar experiences to draw upon. Use Social Media wisely.
Use Professional Supervision to show how you engage in Professional Reflection and continuous professional development.
Make Reflective Practice notes to demonstrate how you are a reasonable and credible practitioner (and potential witness).
Ask for help. Get counselling. Offer to support others.
Let go of the process. This cultivates non-attachment to suffering and is essential for survival. Shift to a positive perspective through “Accepting what is, then seeing the good”. There is always some good to focus and build on.
Mediation is a useful softer option to engage in conversation with others. They may need the stick of suggesting litigation as a hard option for them to engage with the carrot of mediation.
Simply knowing your rights and asserting them with informative rebuttal of any falsified allegations will empower your position and help you find closure. Ask yourself how you want to look back on this from a better future then create it now.
Duthie v NMC  EWHC 3021 (Admin) Re IM UK Midwife wins case v NMC
Bolam v Friern Hospital Management Committee  2 All ER 118, p 121-122
Bolitho v City and Hackney HA 4 All ER 771 (HL) p 779 (establishes reasonable standard of care in medical negligence cases. This is where a midwife can use an expert witness report to show they acted reasonably within a body of knowledge)
Crawford Adjustors v Sagicor General Insurance (Caynman) Ltd (2013) 3 WLR 927 Malicious prosecution can now be applied to civil cases.
Reynolds v North Tynbeside HA 2002 Lloyds Rep Med 459 (QBD) regarding a midwife’s failure to perform a vaginal examination on admission to hospital which would have detected cord prolapse.
Wisniewski (A Minor) v Central Manchester HA  PIQR p 324, Lloyds Rep Med 223 (CA) re failure by midwife to do VE “The risks of not acting were too great
and the downside very small”.
Carl Rogers On Becoming a Person (2011) Client Centred Therapy (New Ed 2012) and A Way of Being 1995.
Joseph Stulberg, The Middle Voice: Mediating Conflict Successfully, 2nd ed. (Florida State University Press 1997). This was between labour and delivery nurses and midwives in California.
Lao Tzu Tao Te Ching translated by Gia-Fu Feng and Jane English. Vintage 4th Ed 1997.
McClean A (2002). ‘Beyond Bolam and Bolitho’, Medical Law International, March 2002 5: 205-230.
Roger Fisher, William Ury (1981). Getting to Yes, Penguin.
Ron Paterson (2012). The Good Doctor, Auckland University Press.
Sun Tzu (1963).The Art of War, Translated by Samuel Griffith, OUP.
William Ury (1993). Getting Past No, Bantam Books
Paul Golden RM RN BA Law PGCEA (PGCert Mediation)
Paul is a Midwife Mediator and Educator. He works clinically as a midwife and neonatal nurse in the UK and NZ. He offers his mediation skills and specialises in healthcare, employment and family law.
He gives support, advice and legal services also offering Professional Supervision.
Contact him at www.mandalalaw.com or email firstname.lastname@example.org
Note: a similar article was provided to ARM Journal September 2014. This article is differentiated due significant changes in editing and content.