A Global Witch-Hunt
An editorial by Marsden Wagner MD, MSPH appearing
in the Lancet, Volume 346 Oct. 14, 1995, pages
1020-1022.
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"
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.
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 medial care".'
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 outside 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."
'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."
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.
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