Midwifery Today Community

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A doula is an entirely different profession from midwifery.  The sticky wicket is that usually a doula performs no clinical skills: no taking of fetal heart tones, no blood pressure readings, no vaginal exams ... nothing clinical.  If you do those things, you could be hauled in for practicing medicine without a license or practicing midwifery without a license.  Of course, even if you're a midwife and do those things in a state where midwifery is legal only if you're a CNM, you could be hauled in for the same reasons, too.  I'm certainly not an attorney and don't even play one on TV but I don't think a piece of paper saying, "I'm not a midwife. I'm a doula!" is going to fly in a legal situation.  Now certainly there are instances where midwives who are flying under the radar go into a transport situation or other situations and they say they're a friend of the family or a doula, but that's different than what you're saying I do believe.

Now ... ahem ... some people might say that you need to put on your big girl panties and if you're a midwife, stand tall and be a midwife regardless of what the law says.  This is a belief about women's rights, birthing families' rights, civil rights, etc.  So rather than dodging and a-peepin' and a-hidin', many midwives feel that they need to be honest and open about what they're doing and that this is the way to change things.  Obviously others think that they need to hide and still others are somewhere in between.

Any other thoughts on this, ladies?

 You are right on all counts.  A midwife pretending to be a doula "for legal purposes" is not going to convince anyone.  What the State generally looks at is what you are doing, NOT what you call yourself.  And if you are doing things that are reserved to the practice of medicine or nursing, you are subject to prosecution for practicing medicine/nursing without a license.

But do they go out looking for these people?  Surely it would only come to light if something went wrong?

If i really WAS a doula and i attended a mum who delivered suddenly and before we could get proper medical care i would still do everything i possibly could to help her in an emergency, how would the authorities (assuming my help madeno difference and the baby or mother died) know if it was the first time i'd given emergency assitance or the 300th?

I agree in principle that it's better to be out there and open about being a midwife, but i know for example in Scotland, where independant midwives are completely legal (though all are uninsured, and currently insurance is deemed a recommendation and not a requirement to practice by the UK midwives' govering bodies) there are still only 6.  In the whole country of 2.5million women.  I can only imagine if it WERE to be outlawed in some way those would be VERY VERY big big-girl pants to fill.

worstfriend:

But do they go out looking for these people?  Surely it would only come to light if something went wrong?

If i really WAS a doula and i attended a mum who delivered suddenly and before we could get proper medical care i would still do everything i possibly could to help her in an emergency, how would the authorities (assuming my help madeno difference and the baby or mother died) know if it was the first time i'd given emergency assitance or the 300th?

I agree in principle that it's better to be out there and open about being a midwife, but i know for example in Scotland, where independant midwives are completely legal (though all are uninsured, and currently insurance is deemed a recommendation and not a requirement to practice by the UK midwives' govering bodies) there are still only 6.  In the whole country of 2.5million women.  I can only imagine if it WERE to be outlawed in some way those would be VERY VERY big big-girl pants to fill.

 It is certainly most likely to come to light only if something goes wrong, but that is not a truism.  In the late 90's, the Illinois Department of Professional Regulation went on an undercover midwife hunt.  An investigator posing as a potential client called many of us looking for information, and eventually almost a dozen midwives received Cease and Desist Orders.  To this day we still have no idea what instigated that investigation -- there had been no bad outcomes, no transports, and no client complaints.

If you really are a doula who gets caught with a precipitous delivery, you may be ok -- it happens.  On the other hand, one of the many who received a Cease and Desist Order in Illinois was a doula who was assisting a client prior to a planned hospital birth.  The baby came more quickly than anyone expected, the doula caught the baby, and the family transported to their planned hospital.  Even though all was well with both mother and baby, and it had NOT been a planned homebirth, the doula was ordered to Cease and Desist the Unlicensed Practice of Medicine.  On the other hand, if you are a midwife who is pretending to be a doula "for legal reasons," you are likely to run into trouble in a couple of different areas.  First, the State really isn't too fooled by such things.  A string of accidental "oops" homebirths attended by a doula translates pretty easily into "underground midwife."  Second, it does a disservice to the reputation of those who actually are doulas.  Doulas are under enough pressure already without the medical professional and the public thinking that they also routinely catch babies at home.

I agree with the previous poster.  If you want to be a midwife, get the knowledge and experience you need to be a good midwife, and BE A MIDWIFE.  Assume midwife responsibilities and midwife accountability.  In some places that includes the risk of civil/criminal prosecution.  Someone who wants to be a midwife in an illegal state has to deal with that.

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Are you in HI already? If so, why not start attending local midwifery meetings and groups and talking with midwives so that you know the scoop in the actual state?

 Ah well...the thing is this -- there is NO such thing as "alegal."  The whole concept of "alegal" is one that has been invented by midwives who want to believe that what they are doing is really not outside the bounds of the law.  It is a comforting fiction.  But if midwifery is neither licensed by the State, nor specifically exempted from the medical/nurse practice acts, a midwife is subject to criminal prosecution for simply practicing midwifery.  That hardly puts her "outside the scope of the law," which, in theory, is what "alegal" would mean.

As to a "well-written informed consent/release of liability document," what sort of protection are you seeking?  Protection against criminal liability for practicing midwifery?  Protection against civil liability?  Perhaps you could be a bit more specific.

And finally -- as mentioned previously, the unavailability of a midwifery license does not make it ok to practice midwifery in a state where midwives are not exempt from the medical/nurse practice acts.  Depending upon the whims of the State, you may or may not get caught, but the State's momentary unwillingness to prosecute a midwife should NOT be interpreted as an indication that midwifery is not illegal.

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Jennifer Remeika:

Valerie, would you mind specifying what a medical/nurse practice act is? How would I find that out( for a specific state)?

The medical and nurse practice acts are the portions of state law that address the licensure and regulation of physicans and nurses.  These laws define the practice of medicine and nursing, specify the requirements for licensure as a physician or nurse, list the legal consequences of practice without a license, and a great deal more.  There are a variety of ways to find the medical and nurse practice acts for a specific state.  You might try a good search that includes the terms "statute" "medical practice act" "hawaii."

This is so confusing. I was initially thinking just to talk to someone in the government/state about the laws, but I asked a midwife working for NARM first who told me that would not be a good idea because it would alert them to the midwives. That alone is a red flag to me but I know that midwives are practicing there. Yes I have talked to quite a few of them and it seems as though collectively they don't really know their status. I have heard alegal but some midwives think they will be just fine if an issue arise because they say it's not specifically illegal.

That is an argument that has been tried (and has failed) in many other states.  The legal reality is that if midwifery is not licensed in a state, and it is not exempt from the provisions of the state's nursing/medical practice acts, it is NOT LEGAL, and it is unlikely that they will be "just fine." 

 Other midwives are scared that without legislation they will never really be protected. 

They are correct.

So midwives will be midwives. And I doubt that I will decide not to move to hawaii and practice midwifery because of that, unless it is a real risk that we are unprotected.

And that is clearly your choice.  It should be clearly understood, however, that the fact that midwives have practiced without State interference for a long period of time (in Illinois it was years before the State began its crackdown) does not imply safety.  All it means is that the State has not had a sufficient motive to track down and prosecute midwives.  That could change with one bad outcome.

Again, is a well written informed consent release of liability document that is written/looked over by a knowledgeable lawyer going to protect me from criminal liability, from civil liability and any other liability that could come up? Or is it just a piece of paper with little value other than informing the parents what we are and "please don't get upset if something unexpected happens, because it's rare"

In short, no.  A "well written informed consent release of liability document" is not going to protect you from criminal liability for practicing nursing/medicine without a license.  If the State finds that you are doing things that are reserved to licensed nurses and/or physicians, and that you are not licensed as a nurse and/or physician, you are subject to criminal prosecution.  It simply isn't going to work to have some paper that says "well, I am not really a midwife -- I am a doula."  To the State, if it walks like a midwife and quacks like a midwife, it is a midwife, and will be prosecuted accordingly.

As to civil liability, a midwifery client cannot sign away her right to sue you for malpractice. 

I am a CPM with a current license btw, but this will be my first time regularly practicing in this country. It's such a pain. Much easier in other countries.

No doubt.

So  there is no such thing as alegal? how do i find out for sure, if the HI midwives are unsure, and I shouldn't contact the government.

No, there is no such thing as alegal.  This is not a matter of opinion, it is a matter of law and of logic.  Think it through (and suggest that the HI midwives also think it through) -- if a midwife is subject to criminal prosecution for practicing midwifery, how can she be "alegal"?  True "alegal" status should mean that there is no law applicable to midwives, but we know that isn't true.  Midwives throughout the U.S. have been prosecuted under their state's nurse/medical practice acts.

What is to be done? women are seeking midwives, midwives are taking clients. babies are coming out. If I had no family i might not mind suffering in jail as a martyr midwife like elena ermakova (if worst comes to worst), but I want to make sure that although i will probably never have an issue, it cannot become an issue. It would be iresponsible of me to put my kids and husband in the situation of risk. That shouldn't prevent me from practicing. I want to know what other states have done to overcome this. 

Many midwives continue to practice in spite of the legal danger, and many of them practice without any legal issues.  Others are prosecuted, with all the accompanying legal hassle and expense.  Each midwife has to decide whether the risk is worth it.  The most important part of that decision is a clear understanding of the legal risks in a particular state.

How are you other midwives practicing in states unlegislated (25 of them) and not running into problems (criminal and civil)? Is your informed consent protecting you? Are you just all very lucky (now I know that this is preposterous because SOMETIMES, outcomes are unexpected).

Thanks for your responses so far! please keep them coming!

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Jennifer Remeika:

So exhaustively(literally) I read the medical and nurse practice acts for hawaii

HRS Chapter 457 - Nurses

Hawaii Revised Statutes Chapter 453-Med & Surgery

Nowhere does it mention midwives, pregnant women, attending births/labors....

So...... is it okay for midwives to practice there? Maybe I was not looking for the right thing since this is my first medical and nurse practice act. 

Actually it left me a little confused. Where do midwives stand in Hawaii? Any idea Valerie?

Any idea anyone else? any Hawaii midwives want to comment?

thanks

 First of all, it is greatly to your credit that you took the time to read Hawaii's nursing/medical practice acts! 

But what you (and others in states where midwives are not licensed) really REALLY need to understand is that it doesn't matter that the nurse/medical practice acts don't prohibit the practice of direct-entry midwifery, or even DEFINE what it means to practice midwifery.  What you have to look at is the specific acts that are reserved by law to the practice of licensed physicians or nurses.  Then ask yourself whether an unlicensed midwife is doing those things when she practices midwifery.  For example, the nurse practice act you linked to includes these actions as those done by licensed nurses:

"observation, assessment, development, implementation, and evaluation of a plan of care, health counseling, supervision and teaching of other personnel, and teaching of individuals, families, and groups in any stage of health or illness"

Does this seem like something midwives might do?  Of course.  But the state can also use this to show that anyone who does these things -- even if she calls herself a midwife and claims to be "alegal" -- is practicing illegally as an unlicensed nurse or physician.  I understand how silly that seems -- after all, "teaching of individuals" is limited to nurses and doctors?? -- but that is just the argument that was used by the Illinois Supreme Court in denying the right of midwives to practice.  In fact, at one point during the oral arguments before that Court, it was suggested that Lamaze teachers should all be registered nurses!

I am not suggesting that unlicensed midwifery practice in Hawaii will inevitably lead to criminal prosecution.  It may very well not, and even in Illinois we have midwives who (so far) have been untouched by the law.  But much depends on serendipity, the mood of the local State's Attorney, the political climate in your state regulatory agency, and -- of course -- the presence or absence of any bad outcomes or consumer complaints.

What I have meant to say throughout this thread is that there is NO SUCH THING as "alegal."  Unlicensed midwives do NOT practice "outside of the law," and as long as they are subject to criminal prosecution, however remote that possibility may seem at any given moment, they do not practice safely.

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Jennifer Remeika:

Valerie, I'm hoping you have an opinion to offer?

Heh...for better or worse, I generally have an opinion!

If midwives do not practice safely in places where licensing is unavailable, would you just simply recommend turning away clients? 

First of all, I want to be absolutely clear that when I refer to midwives practicing "safely," I am referring to the practice of midwifery without the fear of criminal prosecution for simply practicing midwifery.  I do not believe that licensure is necessary in order for midwives to provide competent care.  I am discussing legal "safetly," not clinical "safety."

As to whether I would recommend turning away clients in states where licensure is unavailable...that is not my decision to make.  Each midwife must decide for herself what risks she is willing to take in order to provide care to birthing families.  Some midwives in illegal states may continue to practice as a form of civil disobedience, and I absolutely respect that.  But civil disobedience requires that we understand the risks and willingly accept the consequences of choosing to disobey the law.  If I recommend anything, it is that anyone who practices midwifery in unregulated states should understand the law regarding her actions.

I have a hard time believing that our only truly 'safe' options are to just not practice or wait for all the midwives to agree to begin the legislative process. There must be another option, right? Or isn't there?

There is not another option.  To repeat my mantra, in states where midwives are neither regulated nor exempt from the nursing/medical practice acts, they are subject to criminal prosecution.  WILL they be prosecuted?  Perhaps.  Perhaps not.  But they ARE subject to criminal prosecution for violating the nursing or medical practice acts of their states.

For example in Hawaii, the majority of midwives there do not want to be legislated, so I guess the question I'm asking is:

What would you do if you were a CPM (that was not a nurse) wanting to practice in Hawaii, "safely"?

I did practice as an illegal midwife in Illinois for almost twenty years.  Part of that was as a CPM.  Part of it was as an RN.  None of it was as a legal Certified Nurse-Midwife.  For much of that time I understood the illegality of what I was doing (after I came to understand that there was no such thing as "alegal") and saw what I was doing as civil disobedience.  I practiced openly, and I openly defied the State of Illinois.  In response to a Cease and Desist Order, I wrote to my state regulatory agency, essentially telling them that I was going to continue to practice midwifery until they could show me that law that decreed that I could not.  After years in courtrooms and administrative hearing rooms, men at the door flashing badges and subpoenas, countless legal pleadings and thousands of dollars in legal fees, I lost. 

So what would I do?  Well, as you can see, this is not a theoretical legal question for me.  I have lived it.  I have done it. 

Jennifer and Valerie,

good discussion going on here, sorry to be late to this thread, I have been attending many mamas this last couple weeks (oh boy do I have a great birth story to share, which I will on another thread) and I miss some of the threads as they go up or my eyes are blurry when I get on the computer.

I am a traditional midwife in a non midwifery regulated state, Hawaii.  I live a very full midwifery life. I serve my community and my community contains many many parents who want homebirths.  I know the risks but I will not bow to the fear of what if's and disregard my purpose here on this planet.  Most midwives on these islands do not want to pursue legislation.  We have seen what happens in other states that have struggled forward (?) and obtained licensure for their homebirthing midwives and the way we have it here is an alternative to opening that can of worms, so to speak.   There is an element of freedom to serve that comes with this and it is not for everyone, that is sure.  We do not recieve third party reimbursement but then we are free to do pro bono if we like or trade for our services.  My beliefs are not that important in this dicussion however and Valerie is correct.  Before 1999 it was illegal to attend a homebirth.  That law was repealed and no other offical law has been assingned to midwifery practice.  Since then the state has not prosecuted any midwives and there have been fetal deaths at home.  There is no fear of transport, we do no have to hide, we can obtain birth certs and newborn screenings. I carry O2 and hemmorage preventatives.  I can suture.  I have personally experienced  a fetal demise at birth and know how honorably everyone was treated, my self included..  I love the way I am serving families here.  It utilizes all my gifts.  I truly, truly believe in the community regulation of it's midwives.  If you are not a skilled and conscientious midwife you will not be asked to attend births, Period.  But, this discussion is not about my beliefs.  Valerie is right. 

Yet, even in a heavy regulated state midwives are at risk, are they not?  It is all about the individual and what each midwife is willing to risk.  Historically we have always been adored and persecuted but homebirthing has thrived.