Marsden Wagner was my friend and teacher. I first met him when he testified in my (and Mary Sullivan’s) defense in a court case in British Columbia in 1986. When we asked him to testify, he requested that we send him our notes and chart from the case. He, then, took those notes to a physician and a midwife in Europe, where he lived at the time, and asked them to review our paperwork. He didn’t tell them that the baby had died of an unforeseen complication, shoulder dystocia, right at the end of the birth process. The notes ended minutes before the complication. Both of his chosen practitioners said to him “We would not criticize what the midwives have done from these notes.” That was when he became part of our defense team.
In the years following, he and I had many reunions at midwifery conferences. We ended up on the same plane going to one conference and I remember telling him how much I admired him and how important his work was. He replied, “Gloria, you and all the women who actually go to the births, are the ones that I admire. You keep me going and I stand in awe of you.” I was so touched by that acknowledgement. Another time, at a conference he said something that has helped me through many tough places in my career. He said “I’m only in this movement because it’s a parade that I can dance in. If you can’t enjoy this work, don’t do it.” He wasn’t passionate about birth in a suffering way. . . he loved babies and he wanted to move obstetrics in an intelligent direction that would serve all of humanity, and he had fun with the journey.
I share this article from the Lancet with the young midwives of today. A lot of what Marsden contributed is in books and journals and might not be easily found on the internet. This is a historical perspective on a dark period of persecution of midwives that continues to this day. I want to keep his perspective alive for future generations. Thank you for your life of service, dear Marsden, Gloria Lemay
Reprinted from ‘The Lancet’ – Vol 346 (1995): 1020-1022
A global witch-hunt
5 years ago a midwife working in the University hospital in Uppsala, Sweden, told the chief of obstetrics that she was going to assist occasionally at home births. Although he was angry, he could not stop her since home births attended by a midwife are not unlawful. Nevertheless, the pressure from the hospital doctors became so unpleasant that, after a while, she felt she had no option other than to resign from her hospital post. Her independent practice flourished, although she was unable to get any local doctor to back her up or even give her occasional advice. She was denied hospital privileges and was unable to follow labouring women to hospital if the planned home birth needed transfer. She had no perinatal deaths and encountered no problems with the families she served. Yet, in 1994, the chief of obstetrics asked the local government authority to investigate her practice.
There is a global witch-hunt in progress – the investigation of health professionals in many countries to accuse them of dangerous maternity practices. This witch-hunt is part of a global struggle for control of maternity services, the key underlying issues being money, power, sex, and choice. The investigation often leads to a public court, a medical review board, or a health insurance review board. Over the past 10 years I have been asked to consult, and in some instances testify, in twenty cases in ten countries – a very small proportion of the actual cases. In the USA alone: “Though no one knows how many out-of-hospital midwives have actually been charged, we have reports of legal altercations involving more than 145 out-of-hospital midwives in 36 states” (1)
Whilst the profession of the accused in my twenty cases includes obstetrics (Austria, Italy, UK), general practice (Australia, New Zealand), and midwifery (Canada, France, Germany, Italy, Sweden, UK, USA), the striking thing is that, of the accused, 70% were midwives and 85% were women.
Bringing a health professional before a court of review board is the last and most extreme sanction for professional deviances. In the cases I am familiar with, other sanctions have included loss of hospital privileges (Australia, Canada, France, Italy, Sweden, USA), refusal of insurance companies to provide malpractice insurance (USA), and refusal of insurance companies or governments to reimburse certain practices such as home births or alternative birth centres (Australia, New Zealand, Germany, USA).
In the twenty cases, all of the accused have one thing in common; at least some of their practice is not mainstream. In other words, what they do is not what the local doctors in authority most commonly do. For example, of the twenty accused, fifteen practised home births, three practised in alternative birth centres, and two were doctors in hospital practice. All of the midwives were in independent practice. Orthodox maternity care providers are seldom brought to review boards but, in the USA and Britain, over 70% of obstetricians have been sued one or more times by parents. Unorthodox providers are rarely sued by parents but are now being brought to review boards or public courts by the medical establishment.
Irrespective of the country, certain methods are commonly used by the obstetric establishment to accrue evidence against the accused. For example, in most cases, the doctors notify the legal authorities only after a perinatal death. One death, even if not preventable and not the result of any mistake, suddenly negates years of impeccable statistics. This is in stark contrast to what happens when an orthodox doctor is involved in a perinatal death in the hospital – there may be a hospital review committee meeting behind closed doors but it will not come to the attention of the public or legal authorities. After 25 years of successful practice, an obstetrician in Rome who favours the Leboyer approach had a perinatal death. She was immediately sued after other doctors told the family that the death was due to the “soft” methods used at birth. 10 years ago midwifery was illegal in Canada but the obstetricians knew there were a few midwives managing home births. The medical establishment waited until there was a death during a home birth in Toronto, and then immediately went to the provincial prosecutor claiming it was a preventable death. The midwife who assisted at the home birth was taken to court.
Another ploy is to scrutinise obstetric patients records connected with the accused looking for possible mistakes. This method was used against doctors in London, Vienna, and Melbourne. With midwives, a common method is to accuse them of practising medicine without a license. Sometimes local law-enforcement officers (police) will arrest the accused individuals, search their records, cause them to spend money on legal assistance, and then just before the court date, drop the charges. Such a strategy creates fear in all those in that community who might deviate from orthodox practice.
Once the case is brought before a court or review board, other methods are commonly adopted. Threats may be used to pressure local doctors who are perceived to be sympathetic to the accused so they will be too afraid to testify. A local doctor in the Toronto case mentioned above informed me that he was told he would lose his hospital privileges if he testified on behalf of the accused midwife. Because the defence lawyer in this case could not find a local doctor to testify, the lawyer turned to me because I am a physician and perinatal scientist with many years experience as a specialist in maternity services in the World Health Organisation.
The local professor of obstetrics usually testifies for the prosecution, and the testimony is based on what the professor believes to be acceptable practice rather than on the scientific evidence. Attempts are made by the prosecution to prevent outside experts from testifying. For example, a judge in a court in Vienna would not allow me to testify because I was a “foreigner”, and in Sicily a judge would not allow me in the courtroom except when I gave testimony for the defence, although a local professor of obstetrics, who testified for the prosecution was allowed in the courtroom at all times. Moreover, tribunals, especially if they are medical or insurance review boards, usually try to forbid the public or media from being present. In London in the 1980s. Mrs. Wendy Savage, an obstetrician, caused an enormous upheaval when she demanded – ultimately successfully – a public hearing. (2)
The results of these cases have been mixed. The circumstances of the trial affect the chances that the accused will win the case. The accused who comes before a public court with a jury has the greatest chance of winning. The chances are progressively less with a public court with a judge, then a medical review board open to the public and the media, and finally a closed medical review board. If the accused is allowed to bring in experts to testify, including those from other countries, the chances of winning are higher. If the case has media coverage and the accused has visible media support, again there is a better chance of winning, as was the case with Mrs. Savage and the California and Toronto midwives.
If the accused loses, that often means losing the possibility, at least temporarily, of continuing to practise. Apart from the great personal losses entailed there is an impact on the health professionals. Midwives in that country feel threatened in their independent practise rightly fearing loss of medical backup and/or hospital privileges. Doctors are afraid to support midwives or to go along with the wishes of their patients when the requests are outside mainstream policy – eg, water births. Women in that community therefore lose the freedom to choose among a broader set of options for giving birth.
Conversely, investigation of independent midwives and unorthodox doctors, with a possible board hearing or court case, can sometimes have the opposite effect, leading to solidarity among midwives and between midwives and unorthodox doctors, and women, irrespective of whether the accused wins or loses. The trial of the midwife in Toronto began with a process which resulted in the eventual legislation of midwifery in the province of Ontario. Similarly, the case of Mrs. Savage in London brought about a re-examination of the medical review board system. In a case I was involved with in California, the state board of medical quality assurance recruited the local police to assist them in organising an entrapment operation, arrested a breastfeeding midwife, took her infant away, and threw her in jail because a local obstetrician accused her of practising medicine without a license. In another case, as reported by Korte,’ “In 1994, the 13-year-old daughter of a California midwife was kept on the floor at gunpoint while law enforcement personnel searched for evidence of a midwifery practise. Such harassment and many trials of midwives in California eventually led to new state legislation strengthening midwifery.”
Nevertheless, there is no apparent slowing of the global witch-hunt. In the 1980s, the German society of Obstetrics and Gynaecology demanded that their government abolish the law requiring the presence of midwives at all births, and in 1990 the same society wrote to their national government demanding that home births be outlawed. This plea failed and the society has now turned to Lander (state) governments with the same demands. In 1994, there were attempts in France to forbid independent midwives from entering the hospital when a home birth patient had to be transferred. Last year also saw the first attempt in Sweden to bring an independent midwife to tribunal.
The witch-hunt is part of a global struggle for control of maternity systems and there are several key issues, one of which is economic. An obstetrician in private practise in Des Moines, USA, told me that he and the other obstetricians in that city were determined to close down the only alternative birth centre, staffed by midwives, because “it is stealing our patients” (Shortly after this remark, the only doctor in the city willing to back up the alternative birth centre retired and, since no other doctor would provide such support, the centre had to close.) As birthrates fall, the competition for pregnant patients increases, especially in countries largely reliant on private medical care; and as more and more countries move towards pluralistic health care systems with private practice, maternity care becomes more competitive. However, in the face of increasingly limited economic resources, governments and insurance companies are becoming more and more concerned with the waste associated with high-technology, high-intervention obstetrics. It is much more difficult for obstetricians to defend this expensive type of practice when midwives and a few doctors are meanwhile showing that a much less expensive type of maternity care is equally safe. The witch-hunt is an attempt to display lack of safety among the competitors.
A second issue is the control of maternity services. Until recently, government regulations in most countries have given medical doctors a monopoly in providing health services. Medical licensure represents “a social tolerance for a monopoly in return for a promise of social benefit in the form of competent and dedicated medical care”.'(3) But this monopoly can easily be abused, especially behind closed doors. The issue becomes one of peer control versus accountability to the public. In medical board reviews of professional behaviour, if the medical profession can make secret judgments on the accused, the doctors have absolute control of their monopoly, and there is the possibility of abusing the system for professional gain.
On the other hand, in a public court in which a judge makes the final decision, there is a danger that the judge, as part of power elite in the community, will be more influenced by another member of the same elite-the local professor- than by a midwife or even by outside scientific opinion. From my experience in the courtrooms in Sicily and Vancouver, where the judge made all decisions, the judge and the local professor of obstetrics testifying for the prosecution in both places made no attempt to hide that they knew each other well and that they shared their annoyance that the defence had brought in a foreign expert. But if the public court uses a jury to make the final decision, there is a greater possibility that the midwife or outsider will be listened to. There is a great difference between unorthodox doctors and midwives being judged by orthodox doctors and judges or being judge by the public – and that is why it is so important to have a medical review board open to the public.
Fortunately the pendulum is swinging, at least in some places, with the coming of quality assurance systems that include public accountability of health care and health care professionals. Maternity services are in the forefront of the controversy over peer control and public accountability because birth, like death, is a deeply personal social and family event and does not fit the doctors disease model. So today the medical monopoly of maternity services is coming into question and the witch-hunt is one means of reasserting the orthodox doctor’s control
Choice and freedom for health care consumers are at issue here. In the USA and UK, consumers of health care have been asserting themselves for some time. The health consumer movement is slowly coming to continental Europe but it is still almost non-existent in central and eastern Europe. This lack of freedom of consumer choice is illustrated by a statement in an article about home birth, published in 1994 in a German journal of obstetrics and gynaecology: “It remains to be tested in law whether the infant has legal claims, independent of the mother, to the best possible standard of safety in obstetrics.” (4)The claim is made that the obstetrician must protect the best interest of the fetus by overriding any woman’s choice not approved by orthodox obstetricians. As pluralistic health care systems increase in Europe, so will consumer choice; the witch-hunt is one way of limiting that freedom of choice.
Choice and freedom for healthcare providers are also at stake here. There is considerable peer pressure to conform because deviations may threaten the legitimacy of supremacy of a standard of practice based on opinion rather than evidence. It is no coincidence that 90% of the accused in my sample were involved in homebirth or alternative birth centres. It is important to distinguish between the quality assurance function and the witch-hunt function so that the courts are not inappropriately used for professional gain. When making that distinction in a particular case, think about who might gain from a successful prosecution; is the evidence brought against the accused scientifically based ?
Whilst tribunals may have a declared function to weed out true incompetence and protect the public in the cases I describe the real function was to punish deviant professional behaviour that could threaten the income, practise style, prestige, and power of mainstream doctors.
For example, the time and effort spent recently by the California state board of medical quality assurance trying to prosecute independent midwives might have been better spent pursuing incompetent doctors. A recent review of state medical boards in the USA showed that most states have a long way to go before “they are even beginning to seriously protect their residents from doctors who are incompetent, sexually abuse patients, or otherwise have serious problems that interfere with delivering high-quality medical care in a compassionate way” (5)
Another issue is the two-hundred-year-old struggle of doctors to control midwifery. It is no coincidence that 70% of the accused in my sample are midwives, all in independent practice where they are not under the immediate control of doctors. Fear of being investigated by authorities is a strong deterrent to independent midwives.
Solutions begin with increasing the public’s awareness of the witch-hunt and its basis in political not medical issues. As quality assurance systems develop in health care, public accountability must be built in. There should be no closed doors in health policy making, in health service delivery, or when the behaviour of health professionals is being judged. The evaluation of professional behaviour must be based on deviations from practice based on scientific evidence rather than on deviations from peer-controlled opinions of what constitutes good practice.