Questions about professional indemnity insurance for midwives

Questions asked in the Senate Community Affairs Committee in February by Senator Rachel Siewert have shone some light on the changes midwives are facing as a result of the federal government's maternity reform. The complete Hansard is available. I have selected excerpts below (in italics) for comment.

Under the maternity reform package that has now passed both houses of Parliament, midwives will be required to have collaborative arrangements with doctors in order to be eligible for the government's insurance product which will be linked to Medicare, prescribing and ordering tests.

The doctors are not *required* to reciprocate. The logical question that arises is, will the requirement of collaborative arrangements with doctors allow the doctors to control or veto midwifery practice?

This is not a far-fetched notion. Even today, before any of these reforms come into effect, some doctors refuse to provide services, such as ordering blood tests, if they know a woman is planning homebirth attended by a private midwife. Women have been told by their GPs that the GP is not willing to accept the 'risk', from an indemnity point of view, of collaboration with a midwife. Midwives who try to make collaborative arrangements with local hospitals, establishing transparent and seamless processes for referral and transfer to hospital care when appropriate often face barriers and difficulties.


The questions asked by Senator Siewert, and the responses by the Department of Health and Ageing (DOHA) are very useful for those midwives who are trying to understand how these reforms will impact on our ability to practise midwifery, and what changes we may be incorporating into our professional lives in the coming year.

It is clear from the Hansard excerpts below that some insurance providers would refuse to cover obstetricians or GPs whose collaborative arrangements with uninsured or 'underinsured' (ie no cover for homebirth) midwives. This is fairly logical, and will potentially put a stop to the midwife's efforts to comply with the law.  
Reforms that give with one hand and take away with the other are of no use to anyone.


The actuarial advice to the Department is interesting, being based on "the historical data relating to claims experience of obstetricians in Australia." Perhaps they could think of no better comparison. But it would be similar to comparing the risk associated with employing a swimming instructor to guide your child in developing skill in the water, with the risk of major surgery on the child. 


Hansard Page: CA 118

Senator Siewert asked:

When the Department asked medical indemnity insurers whether an insured doctor would remain insured if they have a collaborative arrangement with a midwife, even if the midwife is not insured for home births, can you give us the process that you have used, the questions that you asked and their response.

Answer:

Prior to Ms Huxtable’s letter to the Committee Secretary on 21 January 2010, the Department had spoken to four of the five medical indemnity insurers in Australia who insure doctors. The Department has since received written advice from all five insurers that a doctor collaborating with a midwife will not result in a doctor's medical indemnity policy becoming 'void'.

The five medical indemnity insurers were asked to respond to three questions.

1. Would a medical indemnity policy issued by your insurer to a member/insured respond on behalf of the insured in the event of a claim against the insured in relation to an incident that involved collaboration with a midwife?
All insurers responded "Yes"; with most noting that this would be to the extent that their insured was liable and was acting within the scope of practice covered by the policy.

2. Has your MDO and/or insurer advised any insured(s) that their policy would not respond if a claim involved collaboration with an uninsured midwife? If so, what is the reason for the policy not responding?
Four of the five insurers responded "No". The fifth has responded to two member queries. The insurer’s answer is at Attachment A.

3. Has your MDO and/or insurer advised any insured(s) that their policy would not respond if a claim involved collaboration with an underinsured health professional (including an underinsured medical practitioner)? [Note: 'underinsured' refers to a situation where an insured is not insured for the full scope of his/her practice, and where the insured actually provides services in relation to his/her full scope of practice during the period of cover.]
Four of the five insurers responded "No."

The fifth responded as follows:
“Members are certainly advised that they must select the appropriate practice category, retroactive date, make accurate declarations of risk history etc. Members who are acting as supervisors/trainers are advised that they must have the appropriate qualifications/training and experience for the nature of their practice and select the appropriate practice category for the training/supervision they are providing. Trainees providing health services under the supervision of a trainer rely on the indemnity of the trainer and are advised of the expectation that their trainer/supervisor must have the appropriate qualifications, training and experience and indemnity for that role. That advice is provided because if not then they are in effect “underinsured”. The situation of anticipating underinsurance however does not normally arise (and hasn’t previously to my knowledge) because underinsurance is not usually known until after the event and usually at the time the claim is made.

That is not the situation here as it is now understood that midwives currently do not have any medical indemnity insurance for home births.”
Attachment A
Response from an insurer to questions about doctors collaborating with midwives

Question 2

Has your MDO and/or insurer advised any insured(s) that their policy would not respond if a claim involved collaboration with an uninsured midwife? If so, what is the reason for the policy not responding?
I understand that the insurer has been contacted by 2 members in relation to midwife queries.

The first contact (some months ago) concerned a hypothetical situation requesting the insurer’s views on the scenario and the level of cover afforded by the Insurance Medical Indemnity Insurance Policy in such a situation.

The Underwriting Committee reviewed the scenario and in response to the questions asked advised that;

 There is a general requirement that members have the appropriate recognised qualifications, training and experience for the health services they provide.

 The insurer’s Constitution at 1.2 details Objects of the Company and states at 1.2(c) “to promote honourable and to discourage irregular practice”.

 The medical indemnity insurance policy does not cover independent contractors and in the event of a claim in relation to the actions of an uninsured health service provider, any associated/related health practitioner could also be named in proceedings even if due only to the fact that they held indemnity insurance.
Consequently, it was the view of the Committee that the scenario put forward (where an injured mother or baby may not have access to compensation) did not meet the insurer’s requirements under its Constitution. The Committee observed that on this basis it would not seem appropriate for a member to be involved. The Committee also observed that there was no appropriate practice category for the nature of practice proposed (which was not shared care as defined and not obstetric practice).

The Committee stated that based on the scenario presented that if a member notified the insurer that they were to become involved in such practice (such notice being a requirement under 5.1.5 of the Insurance Policy), that it is likely that the insurer would give notice in accordance with 12.2.2 of the Insurance Policy (where the insurer asks the policyholder to cease a practice and if they do not do so, cover will cease for that practice after 14 days).

The Committee observed that the above would not apply to actual good Samaritan or emergency matters where there is no expectation/anticipation of a member’s involvement in the care of the patient.

Member contact 2 (this week). In summary the member held a “General Practice - consultations and office procedures (non-procedural) practice category. GP’s in that practice category who meet the general requirements of appropriate recognised qualifications, training and experience are permitted to provide shared ante-natal care. As required under shared care the member had referred the pregnant patient early to hospital to book in and had continued to provide care appropriate for shared ante-natal care on that understanding.

The member wrote to us because it had subsequently come to their attention that the patient had not presented the referral/booked-in to hospital and apparently intended to have a midwife assisted homebirth.

The member was advised that;
 their current practice category was no longer appropriate (as they were no longer providing shared-care as defined)
 if there was an intention to continue to provide ante-natal care outside of the shared-care requirements permitted under their current practice category
 that they needed to provide the insurer with documentation showing that they had the appropriate recognised qualifications, training and experience for any expanded ante-natal role and

 members who met the qualification, training and experience requirements for management of pregnancy outside of shared-care arrangements normally selected an Obstetrics category.”


Hansard Page: CA 119

Senator Siewert asked:

Could you provide us with the data on which the actuarial assessment was based that assisted the Department to work out the cost of the Commonwealth supporting indemnity insurance for midwives, particularly midwives who are practising in hospitals and the numbers of births and dangers thereof. Also tell us if state by state is relevant information.


Answer:

The assessment by the Australian Government Actuary was based on the historical data relating to claims experience of obstetricians in Australia. Other matters were factored in, including the key assumptions listed below.

The Actuary’s analysis assesses actuarial and financial risk, rather than the clinical risk of dangers of birth. The actuarial analysis was prepared at a national level and the Actuary was not asked to undertake state by state analysis, as the small number of midwives would not have led to meaningful analysis.

Key assumptions were:

Number of eligible midwives 196 midwives in 2010-11, rising to 712 midwives in 2013-14
Average claim size $227,000
Percentage of claims over $1 million 7%
Number of claims per 1,000 births 1.1 claims
Full time caseload of each midwife 40 births per annum
Claim inflation rate 6%
Claim discount rate 6%