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House of Assembly - Fifty-Second Parliament, Second Session (52-2)
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HEALTH PRACTITIONER REGULATION NATIONAL LAW (SOUTH AUSTRALIA) (RESTRICTED BIRTHING PRACTICES) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 25 September 2013.)

Dr McFETRIDGE (Morphett) (12:17): I indicate that I am the lead speaker for the opposition on this bill. We will not be amending it; we will be supporting it as is.

The DEPUTY SPEAKER: You have unlimited time.

Dr McFETRIDGE: I will not take the house's time as extensively as I did when I spoke about the first changes to national law in this place back on 25 May 2010 (I think it was the first week of this new parliament) having looked at some 38 pages and after 3½ hours of describing how the national law was consistently inconsistent.

What we are seeing here again is an amendment to a national law which I understand other states and territories have not yet supported. Like the bill with paramedics that was just introduced, I hope there is a national agreement because we do need to have national agreement on these very important issues. I see that there is a bill in the other place to introduce national registration of veterinary surgeons. Of course, that is of vital interest to me, being a registered veterinary surgeon.

This particular bill was brought about because of some extremely tragic circumstances, where there were a series of deaths of babies at birth, or shortly after birth. These births were at home and they were under circumstances which would normally be perfectly acceptable or normal but, like everything associated with human medical practice, there are variations and there are some risks. We need to make sure that everybody is aware of those risks.

We need to make sure that people are protected from themselves in some cases, from their own ignorance, but also from people who overestimate their own abilities. This bill is about restricting birthing practices and limiting the actual birthing process—the three stages of labour: the contractions, the birth and the delivery of the placenta afterwards—to registered medical practitioners and registered midwives.

I will say that I was born at home and my mother had a midwife attending her, and she had two doulas. Doula is a modern term for a birthing assistant, but back in the day when I was born the two doulas were my Aunt Dora and my Aunt Glenda. They were not so much assisting my mother as being out the back, because the doctor had apparently examined my mother and looked at the circumstances in which she was going to birth to me. He had said that the bed was too low, so the two doulas (the women slaves) were out the back digging up bricks to jack the bed up. It was January in England and it was snowing, so they were slaving away digging up bricks, not assisting my mother.

My father was off getting the doctor, and dad fell off his bike twice riding through the snow to get the doctor. By the time the doctor arrived, the midwife had done her job. I was the third son to my mother and all the births were quite uncomplicated. My older brother Ian was 11 pounds, so mum obviously had good child-bearing hips. I was quite a bit smaller than that, so I popped out like shelling peas. So, I do recognise the value of midwives, and certainly having watched the programs on the ABC about midwives and the circumstances that they have worked under in times gone past.

Under the national law, with the recognition of nurses and midwives as being a particular section of the national law, midwives are a particular speciality of the nursing profession. Doctors do not just call themselves doctors: they are cardiologists, orthopaedic surgeons and general practitioners. It is the same with nurses: we have general practitioner nurses, but we also have specialist nurses and I would say without any doubt at all that the role of midwives is a specialist occupation within the nursing profession. I think that view is backed up by most people in the medical professions, whether it is nursing, medical or midwifery.

This law reinforces the need to make sure that we do recognise midwives as being the professionals that they are. It recognises the need to have restricted services being provided by people who know what they are doing, not well-meaning people—I would certainly never call them amateurs, but their training and expertise perhaps is not as broad as they think it is. When it comes to the crunch, when a serious issue arises or an emergency procedure is required, you do not want people who are clearly out of their depth or overestimate their own abilities. As we have seen in the Coroner's report, that results in completely tragic circumstances.

It is great to have the choice to have a midwife at home, but in the case of my two children—and there is nothing better than being at the birth of your own children—my son Lachlan was born at Glenelg Community Hospital. He was 10 pounds, six ounces. He was a big baby. I think he was the third biggest baby born at that hospital at that stage. He was a forceps delivery. He was what is known as a macrosomal baby or, in other words, a big baby. It took a lot of traction to get him out and Dr Richard Bowering did a great job on a cold, wet Saturday night.

He had to leave his family at home to come and deliver my son. That would not have happened at home with a midwife. My daughter Sahra was born at Attadale hospital in Perth. When she was being delivered by my wife, Dr Quek, the attending doctor, very quickly noticed that her umbilical cord was wrapped around her neck. Had he not intervened very quickly and cut that umbilical cord, she could have suffered a hypoxic episode and ended up with cerebral palsy.

I am very conscious of the fact that it is horses for courses. If women make the choice to stay at home and use the services of a midwife and of doulas, they need to be well educated. To that extent, since 2007, the South Australian government has produced a comprehensive booklet of some 25 pages. It is about policy for a planned birth at home. This is about people involved in our public health system but also there is very good information here for women who want to make that choice about having their baby at home and the things that you need to be aware of. In the first couple of pages of this document there is policy for a planned birth at home in South Australia. It was put out on 4 July 2007 and it states in the preamble:

The woman's wishes for childbirth should be respected within the framework of safety and clinical guidelines. The autonomy of pregnant women is protected in both law and jurisprudence, and it is the duty of health professionals to accommodate that autonomy in as safe a manner as possible for both the woman and the baby.

This is also in the United Nations declarations and also in the National Health and Medical Research pronouncements in 1992 and 1995.

The qualification for a woman to have a birth at home, according to this document, is that the woman can be supported to give homebirth only if she fits the criteria of a low-risk singleton pregnancy—in other words, that is one baby and not twins—and the qualified practitioners are confident and competent to assist. I also understand that that extends to a cephalic presentation—in other words, the baby's head is coming first, as it would in most cases, not a breech birth, as it was in one of these tragic cases that the Coroner investigated.

The document also goes on to outline a long list of contraindications as to why a woman who is giving birth should consider not having that birth outside of a hospital facility. They are about the obstetric history, medical history and also the home environment, including not being more than 30 minutes from a support health unit. Unfortunately, it also lists in here any history of domestic violence or recreational drug use, which is becoming more and more of an issue in coping with those circumstances outside the actual medical or obstetric history of women who are giving birth.

It is a good document and I recommend that everybody should read it. It is absolutely vital that women who are giving birth—and not just the women but their families and partners—should be well informed and well educated, and must understand that there are significant risks associated with what is, in most cases, a fairly straightforward procedure. However, there are significant risks associated with it and the resulting outcomes can be absolutely tragic, not only for the baby suffering disabilities and, in some cases, death but also for the parents in having to live for the rest of their lives with the memory of a child who died at birth, or living with a child who suffered through an episode resulting in lifelong disabilities. It is important to emphasise and re-emphasise that point because the people involved—the about-to-be parents or parents having their second or third child—must understand that risk; they really must.

I mentioned the word 'doula' before—doulas are also known as labour coaches. These women help pregnant women go through the processes of labour and help them to deliver their babies with some psychological support. What happens, though, is there are cases (as outlined in the Coroner's report) where an unregistered midwife who was acting as a doula or birth coach or labour coach, according to the Coroner's report, was undertaking actions, observations and I think interventions that would and should only be done by a registered midwife and/or a medical practitioner. This led to the tragic circumstances which brought about this bill today.

I cannot emphasise enough the need to make sure that parents know the background of the medical practitioners they are dealing with, the midwives they are dealing with and knowing that they have experience with homebirth, but also these other groups. We put through national law to regulate the registration of medical practitioners back in 2010 and we have since changed the Health Complaints Commission legislation to try to regulate unregistered health practitioners but we still see there are loopholes. Even with all our best attempts, we have to come back and introduce this sort of legislation. The Australian College of Midwives believes that this legislation is a step in the right direction. I will read sections of a letter sent to me on 20 September by the Australian College of Midwives, and they say:

Firstly, we recognise the importance of this piece of legislation in its intent to safeguard the public, in particular birthing women...this legislation as too localised, limited and short-sighted in its view, particularly if other states and territories are not going to adopt similar legislation.

I would be interested to hear from the minister about what is happening with the other states and territories on this becoming national legislation. The letter then continues to say:

...midwifery practice needs to be clearly defined in its scope as care across the continuum of antenatal, labour and birth and postnatal care. The current proposed legislation only covers birth.

The letter then continues:

...to engage in the practice of midwifery, which should entail the whole scope of practice of midwifery. In its current form, the proposed legislation would allow for unregulated practitioners to provide maternity care in the ante- and post-natal periods.

They also point out that, in their opinion, 'the wording around the medical practitioner's specific qualifications needs greater clarity'. The college gives general support to the legislation, and certainly there may be some need to come back and amend and change it if we find there are loopholes. Looking at the wording of the legislation itself, in clause 4, section 123A—restricted birthing practices, it says:

(1) A person must not carry out a restricted birthing practice unless the person—

(a) is a medical practitioner; or

(b) is a midwife;

I would have thought that that should have said 'registered medical practitioner' and 'registered midwife', unless there is something else I have missed in the legislation. I thought the whole point of the legislation was to ensure that these people are not only capable of doing what they are doing but are also registered to carry out the practice as well. The only exception to all of this, of course, is in subsection (f), which specifies when that person:

(f) is rendering assistance to a woman who is in labour or giving birth to a child, or who has given birth to a child, where the assistance is provided in an emergency.

'Restricted birthing practice' means an act that involves undertaking the care of a woman by managing the three stages of labour. As I have said before, that is during the labour contractions, during the actual birth of the baby and afterwards when the contractions subside and the placenta is passed.

There is much more to paediatrics, neonatal care and obstetrics and gynaecology than just helping somebody relax. It is a lot more than that. I could not get my wife to relax when she was giving birth to our two kids, and I think it would take the wisdom of perhaps another woman to appreciate what women are going through when they are giving birth. It is an absolute miracle, and to ensure that is carried out in circumstances that are as safe as possible is what this legislation intends. I hope we do achieve that for everybody and we are able to avoid the tragic circumstances outlined in the Coroner's report. With that, I support the bill.

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (12:32): I rise to speak on the Health Practitioner Regulation National Law (South Australia) (Restricted Birthing Practices) Amendment Bill 2013, and I do so as a member of the house and as the shadow spokesperson for women.

I will disclose any potential conflicts of interest upfront. I have had two singleton births, both in the former Queen Victoria Hospital, which was, initially, a private hospital in this state and later became a public hospital. Now, sadly, a portion of it has been relocated and renamed Victoria House at the Women's and Children's Hospital. It provided not only an environment for the delivery of many thousands of happy and healthy babies but also a high standard of care for acute intervention that is required for some of the more complicated births. It has certainly had an outstanding history in the provision of high-standard services.

I thank the member for Morphett for outlining the opposition's position that we will be supporting this bill. There are several aspects, however, that I wish to indicate my disappointment with. Let us start on the positive. In his second reading, the minister had indicated that this legislation emanates from the very disturbing findings of the Deputy State Coroner in mid-2012, where three babies had died in preceding years. It is fair to say though that, in those circumstances, each of those deaths arose out of planned homebirths.

These are not circumstances where they were necessarily in an emergency or were without some forethought. What I thank the minister for is that, in introducing the response to these findings, he referred to SA Health's policy for planned birth at home in South Australia which sets out various definitions and circumstances in which it is not recommended, etc. He confirmed that the phrase 'precluded women giving birth at home' is not suggesting that the government is opposed to homebirths. I agree with him on that and I thank him for clarifying that.

I think it is important that we maintain in South Australia that women should have a choice as to where they deliver their children; I certainly do and I think I am supported by other members on this side of the house. It would not be beyond the knowledge of most of those in the house that, over the last 100 years, we have actually moved from a position where women deliberately decided in the early part of the 20th century not to have children in hospitals. In fact, they were seen as places of disease and infection and the last place that women would attend to have a baby was in hospital care. There was a preference for that to be in their home.

Secondly, we have members of the community who wish to have their children outside of a hospital environment and some of those are in our own Indigenous community. Some do attend hospitals, such as the unit in the Port Augusta Hospital. It is not uncommon for women who are members of our Indigenous community to deliver their baby and leave within hours of the delivery safely with their babies, because it is not an environment of choice for a number of women. We maintain the position that that is a decision that is with the parents—obviously, in many circumstances, particularly the mother. We would like to think that that is in consultation with the parents in the circumstances where that opportunity is there. That is a couple's decision or a mother's decision and we respect that.

We have gone through an era where a hospital is seen as a place of surgical intervention. The aspects of anaesthesia, the inventions and discoveries in respect of infection control and the like have all been instrumental in giving women the opportunity to give birth in a hospital environment or a birthing clinic or unit environment. I think it is fair to say that most of our premier birthing facilities in hospitals have developed a variety of services for women to have their births in the least intrusive and clinical environment as possible. Some of the birthing units we have in our public and private hospitals are excellent in making provision.

Dr McFetridge: Loxton.

Ms CHAPMAN: The member for Morphett mentions the facility at Loxton, and I agree: I have seen that facility and it is excellent. In my own area, the birthing facilities at Burnside Memorial Hospital are, again, excellent facilities, so it is not exclusive to the independent or public sector. I think that those who are providing hospital services have learned the importance of recognising the need to be flexible and to provide a variety of services.

Just recently, my third granddaughter was born at Burnside and I had an opportunity to view the facilities there. It is always nice to know that your grandchildren will be born in your own electorate—that is great—but, nevertheless, what is important is that they—

The Hon. J.J. Snelling: Do they get automatic membership of the Liberal Party?

Ms CHAPMAN: In fact, almost every baby I know of who is born in my electorate gets a letter inviting them to understand that they will be voting in 18 years' time and urging them to be kind to their mother. So, yes, I do welcome the birth of all children, but it is especially precious when it is your own family, of course.

I think the Lyell McEwin facilities, similarly, have recognised the importance of having the mother's partner, other support person or member of family, or indeed other members of family, able to come into birthing clinics or facilities that are welcoming of that option. I cannot say it is something that I would rush to—having other children present during a birth—but one of the reasons I think that a number of women choose to have home births is to enable them to make this a celebration at a family level.

Whilst I do not do it, it does not mean that this is not something that other women and families want to have in that environment. But, to be able to have other members present, to be able to have an environment of calm, with or without water and all the other options that are provided, we think is important, and so I thank the minister for clarifying that.

One aspect that is of concern to me is why it is necessary to proceed with legislation of this sort in the absence of there being some national agreement about what is happening in this space. It may be that there are other jurisdictions that are not inclined to try to reach some consensus as to what rules should apply, and I would certainly like the minister to outline in his response what the state of play is there.

It is fair to say that, when health practitioners have been corralled into a national consensus, the progress of legislation in that area was without incident for many professions, difficult for some and almost impossible for others. If I put them in those categories, in the latter category we had a major problem with the advance of psychologists reaching some consensus on they would fit within a national framework.

On the other hand, we had goodwill and intent to have a national framework for opticians, for example, but even with that I recall that South Australia kept its own particular provisions for the prohibition of issuing of plano lenses (these are cat's eyes and coloured lenses that apparently young girls use and like to have) without having some prescription. So, sometimes jurisdictions have particular circumstances that have been identified that need specific provision and there is not national consensus. In this category, nursing and midwifery had a fairly tumultuous period of development, and I remember being involved in those debates.

One aspect that has been raised by Marijke Eastaugh, Vice President of the Australian College of Midwives (SA) Branch in her letter to members of parliament—and this correspondence has been referred to by my colleague the member for Morphett—is the reference to midwifery in the same breath as nursing. I think it is fair to say some offence is taken at that, so when we come to look at the whole of the provisions as we see the development of the national scheme, we hope that the government will take notice of the request for independent recognition.

The second aspect is that, as a result of the government deciding to proceed with this legislation, as a penalty is imposed for certain conduct as a kneejerk reaction to the decisions that were handed down by the Deputy Coroner, we are ending up with a bill that is somewhat confined to the at-birth period. The bill provides, in particular, for it to be an offence for any person to carry on a restricted birthing practice, which essentially is defined as involved in the undertaking of care of a woman by the managing of the three stages of labour or childbirth and not the antenatal or postnatal interventions.

The penalty process is one where there is a prohibition on a person doing this, with a penalty of a fine of up to $30,000 or imprisonment for 12 months if that person does so and they are not a medical practitioner, a midwife, a student carrying on the restricted birthing practice in certain circumstances, or in an approved program of study or clinical training. I am paraphrasing that but, in essence, that is the position, and with a specific provision to protect against a defence if, in fact, there is a rendering of assistance in an emergency.

So, if a child is being born in the back of a taxi, a taxi driver might come to the rescue and provide that assistance, and they may have no training or, indeed, probably much experience in the delivery of children, but they may well provide some assistance to the mother. We see that situation from time to time, and we usually see the happy stories of those occasions published in the paper but, inevitably, the nature of babies coming when they are ready, rather than when everyone else is ready, means that that will happen from time to time.

Having a process where we introduce a regime of an offence for persons rendering assistance without being qualified, or exempt in those circumstances, is fairly narrow. That has also attracted some criticism from the Australian College of Midwives, and I think that that is fair criticism.

One can only hope that if the minister is able to give us some update on the progress of the national scheme there might be some enhancement of how that would be attended to at the national level rather than us proceeding to deal with it in this rather narrow manner. Suffice to say, the Australian College of Midwives' correspondence confirms their position rather than just indicating an agreement to the legislation. They specifically say, and I quote:

The proposed legislation has been hastily assembled as a direct response to the Deputy Coroner's Findings and Recommendations in June 2012. We would urge that it not be passed in haste, but that a full and considered response to wider maternity care issues is undertaken. Rather than simply targeting unregulated practitioners providing labour and birth care, these issues currently include; the need for increased midwifery continuity of care and services; the need for increased access for eligible midwives to collaborate with health care facilities; recognising the need for women to have individualised maternity care needs met with the safe practice guidelines; and the need for specific midwifery representation of the Departmental level.

Notwithstanding that, the opposition will support the progress of this bill, and we look forward to having some report as to the more comprehensive resolution of these matters by the minister.

The Hon. J.J. SNELLING (Playford—Minister for Health and Ageing, Minister for Mental Health and Substance Abuse, Minister for Defence Industries, Minister for Veterans' Affairs) (12:51): I thank members for their support of the legislation. The legislation before the house closes an anomaly in the Health Practitioner Regulation National Law that provides for the protection of title but not the practice. The national law only prevents a person from taking the title, or leaving others to believe they are a midwife: it does not prevent any person from performing the clinical duties of a midwife under a different job title.

The legislation will restrict birthing practices, defined as the management of the three stages of labour and childbirth, to a registered midwife or medical practitioner, or a student under supervision of these practitioners. It is these practitioners who have the clinical education and training to provide birthing services within the accepted safety and quality framework for their professions. Under this legislation it will be an offence for any other person to be designated as the primary caregiver during labour and childbirth. A penalty of up to $30,000, or 12 months' imprisonment, will apply. No penalty will be issued to the woman giving birth.

This legislation is in the interest of public safety to ensure that birthing services are restricted to a registered midwife or medical practitioner. While this restriction will only apply in South Australia, I am hopeful that work at the national level to provide for the greater regulation of midwifery and maternity services will result in nationally consistent laws being adopted across all states and territories. The government could wait for the outcome of this work, but it is concerned about the length of time that the process will take. In the meantime, unregistered health providers could continue to provide birthing services in the state.

The Australian College of Midwives has written to me and other members of parliament with some concerns about the legislation. I would like to take the opportunity to respond to these concerns for the benefit of members here and in the other place. The college has indicated the legislation is too localised and limited, particularly if other states and territories are going to adopt similar legislation, and that it does not fulfil the Deputy State Coroner's recommendation.

At its June 2013 meeting, the Standing Council on Health requested advice on options to provide for the greater regulation of midwifery and maternity services. I am pleased that the former commonwealth minister for health and medical research was able to get this matter on the national agenda after South Australia's earlier attempt in August 2012. The drafting of this legislation to only cover intrapartum care, or the birthing process, addresses the immediate risk to the South Australian public of unregistered health practitioners providing birthing services. It does not cover the antenatal or postnatal periods of the woman's pregnancy, which the Australian College of Midwives believes should also be protected.

The consultation process undertaken with industry groups and the public on the Deputy State Coroner's recommendation was supportive of legislation to protect the public from unregistered health practitioners. However, the submissions received identified there were a number of other health practitioners, not all of whom are registered, who may provide services to women during the antenatal and postnatal periods. Restricting services provided during the antenatal and postnatal periods to a registered midwife or a medical practitioner could potentially restrict the range of services available to women, particularly those living in rural areas.

The decision not to include antenatal and postnatal care under this legislation has not been taken lightly. It does not detract from the importance of women receiving information based on well-founded evidence and practice during the antenatal stage to help them make informed decisions about safe birthing options for their babies.

The Australian College of Midwives has also raised concerns with the references in legislation to the nursing and midwifery profession. The college believes that midwifery has a very clear and defined scope of practice that is distinct from the practice of nursing. I do not disagree with the college on this matter.

The reference to nursing and midwifery reflects the name of the profession as it is defined under the health practitioner regulation national law. The Nursing and Midwifery Board of Australia has been established to regulate the nursing and midwifery profession. The board does this by maintaining a register that includes two separate divisions—one for nurses and one for midwives—and issuing a series of registration standards, codes and guidelines that nurses and midwives must follow.

Some of these registration standards, codes and guidelines apply to both nurses and midwives, while others have been developed specifically for nurses only or midwives only. I understand the college's argument that midwifery should now be recognised as a distinct profession. However, the reference in the legislation before parliament reflects the terminology in the national law. For this bill to recognise midwifery as a separate profession, it would require a significant change to the governance arrangements established at the national level and the unanimous support of the Standing Council on Health.

The intergovernmental agreement that established the National Registration and Accreditation Scheme requires a review of the operation of the scheme after three years. This review will commence in the first quarter of 2014, and the terms of reference approved by the Standing Council on Health include an examination of the governance arrangements of the national scheme. I have suggested to the college that the recognition of midwifery as a separate profession is more appropriately considered as part of a national review rather than through this legislation.

The reference to the nursing and midwifery profession does not imply that nurses will be able to perform the duties of a midwife. The bill before parliament specifically refers to a registered midwife being able to provide a restricted birthing practice; there is no reference to a nurse providing these services.

As a registered practitioner, a nurse must adhere to any standards, codes or guidelines developed by the Nursing and Midwifery Board of Australia. The Code of Professional Conduct for Nurses in Australia states:

Nurses are aware that undertaking activities not within their scopes of practice may compromise the safety of persons in their care. These scopes of practice are based on each nurse's education, knowledge, competency, extent of experience and lawful authority.

A breach of this code may constitute either professional misconduct or unprofessional conduct. Under this code you would not expect a nurse to provide birthing services, unless it was an emergency, as they do not have the necessary education and training. A similar code is in effect for medical practitioners, which is why this legislation does not restrict the birthing services to those medical practitioners with only qualifications in obstetrics. A medical practitioner with the necessary education and training will be able to provide birthing services; those without could only do so in an emergency.

The form of this legislation has been subject to careful consideration and consultation since the Deputy State Coroner handed down his recommendations. The legislation should not be considered in isolation from the work at the national level to consider increased regulation of midwifery services, the work that SA Health has commenced on credentialling nurses and midwives that would allow eligible privately practising midwives access to public hospitals, and the provision of information to the public to support them in making safe birthing choices.

I would like to thank all the officers who have assisted in the development of this legislation: parliamentary counsel, Richard Dennis, and from the department, Kathy Ahwan and Julie Brown, both of whom are in the chamber today to assist me. I commend the bill to the house.

Bill read a second time.

Third Reading

The Hon. J.J. SNELLING (Playford—Minister for Health and Ageing, Minister for Mental Health and Substance Abuse, Minister for Defence Industries, Minister for Veterans' Affairs) (12:59): I move:

That this bill be now read a third time.

Bill read a third time and passed.


[Sitting suspended from 13:00 to 14:00]


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