No place like home

It is a little-known fact that independent midwives in the UK and Ireland currently practise while uninsured because they cannot access PII. But a recent decision over the Channel could soon change all that.

The EU Council of Ministers has adopted a directive on the application of patients' rights in cross-border healthcare. One provision of this is that cross-border medical tourists shall receive treatment in accordance with union legislation on safety standards. With article 4.2(d) requiring member states to ensure that systems of professional liability insurance are in place for treatment provided on their territory, it will make a big difference to the way private midwifery care is provided in the UK and Ireland.

States have 30 months in which to implement the directive. The effect of article 4.2(d) will have one of two possible consequences: either the UK and Ireland will ensure that these providers are somehow included in existing PII schemes in the future '“ for example those in the public sector '“ or their midwifery regulators will have to make it a condition of registration that midwives are insured, thereby expelling the uninsured from the profession. Article 45 of the Nursing and Midwifery Order 2001 makes it a criminal offence for an unregistered practitioner to attend a birth, save in an emergency.

The rhetoric of choice permeates maternity care nowadays. Many women value the continuity of care which an independent midwife offers. By contrast, while some NHS trusts provide a home birth service, they ration it by screening out women deemed high risk. Yet some women choose to give birth at home against advice. Can women argue that that they have a human right to a home birth under article 8 of the European Convention on Human Rights (the right to respect for private and family life)?

This seems to be a difficult argument. The convention does not guarantee a right to healthcare, as such, still less to particular forms of healthcare. Yet last December in Ternovszky v Hungary (67545/09), a Hungarian woman won a case before the European Court of Human Rights because she was denied the option of a lawful home birth service. Hungarian law provided that a health professional who carried out activities within his or her qualifications without a licence, or carried out such activities in a manner which is not in compliance with the law or the licence, was punishable with a fine.

Balancing act

The European court found a violation of Ms Ternovszky's rights under article 8 because Hungarian law was unclear about whether healthcare professionals could legally attend home births. It found that Hungarian law was prone to arbitrariness when it should be accessible and foreseeable to enable people to regulate their conduct. In the context of home birth, while a state has a wide margin of appreciation in how it chooses to regulate in this sphere, it had to strike a proper balance between societal interests and a woman's article 8 rights.

The ruling states: 'In the context of home birth, regarded as a matter of personal choice of the mother, this implies that the mother is entitled to a legal and institutional environment that enables her choice, except where other rights render necessary the restriction thereof. For the court, the right to choice in matters of child delivery includes the legal certainty that the choice is lawful and not subject to sanctions, directly or indirectly.'

Hungary has now passed a law which, according to reports, will permit home births provided that birth attendants have a prescribed level of experience, and that women 'declare in advance that if the leading birth assistant or the paediatrician finds that hospitalisation is necessary, they will accept it without opposition'.

This sounds like a kind of binding advance directive. It is unclear where it leaves a pregnant patient's right to change her mind, or to refuse advice. One wonders what the sanctions for opposition might be, if any.

Other rights

Proponents of home birth and of women's choice will argue that Ternovszky favours enabling women's choice. But there is a possible sting in the tail: the court's observation that choice may be restricted 'where other rights render necessary the restriction thereof'. Whose rights might these be?

To date, the court has declined to decide whether unborn babies are 'others' protected by article 8.2 (see the Grand Chamber ruling in A, B & v Ireland (25579/05) last December).

Possibly, the court in Ternovszky had in mind the wider interests of patients generally. It seems unlikely that women in the UK could invoke this ruling to argue that they should continue to receive services from uninsured midwives, contrary to EU law. Equally, the ruling appears premised upona reasonable woman making reasonable choices, rather than one persisting in a home birth against professional advice.