From: John_Krauser@baud.matra.com.au (John Krauser)
Subject: Global Witch Hunt
28 Oct 1996 06:26:45 GMT

Reprinted from 'The Lancet' - vol 346 -- article on the world-wide opposistion to Independent Midwives and Domiciliary Birth Services (home-based materntiy care).

 A Global Witch-Hunt
Marsden Wagner, MD

Five 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 Laboyer 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 independant 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 judged 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 independant 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.

Marsden Wagner, MD

	Please write to me Faith Gibson at goodnews@best.com
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