Independent midwives: liability cover

Yesterday the High Court, in R (Beety & Ors) v Nursing and Midwifery Council, dismissed an application for judicial review of a decision of the Registrar of the Nursing and Midwifery Council (“the Registrar”) that a discretionary indemnity arrangement covering members of an organisation of independent midwives was not “appropriate” for the purposes of article 12A of the Nursing and Midwifery Order 2001 (“the Order”).

CMS (and the authors) acted for the successful party, the Nursing and Midwifery Council (“NMC”).

The NMC is the statutory regulator of nurses and midwives in the UK. Its principal functions are to establish and maintain professional standards for nurses and midwives, with the overarching objective of protecting the public. The NMC is required under the Health Care and Associated Professions (Indemnity Arrangements) Order 2014, which implements EU Directive 2011/24, to ensure that nurses and midwives have appropriate indemnity arrangements in place.

The Claimants applied for judicial review of a decision of the NMC's Registrar, dated 20 December 2016, that an indemnity arrangement providing cover to members of Independent Midwives UK was not “appropriate” for the purposes of article 12A of the Order. That article provided that a practising nurse or midwife must have “an indemnity arrangement which provides appropriate cover”, defined further in article 3 of the Order as “cover against liabilities that may be incurred in practising as such which is appropriate, having regard to the nature and extent of the risks of practising as such”. A practising nurse or midwife who fails to comply with Article 12A of the Order may be refused registration with the NMC or removed from the register or may be subject to a charge of impairment of fitness to practise by reason of misconduct.

The relevant indemnity arrangement was a discretionary professional indemnity scheme for the benefit of members of Independent Midwives UK. The scheme provided member midwives with indemnity cover against liability for damages arising from successful negligence claims made against them. Under the relevant scheme Rules, benefits were paid at the “sole and absolute discretion of the Board” and were expressly limited by reference to the total funds available to the scheme, which was funded by fees paid by members.

The application for judicial review was based upon grounds that the Registrar’s decision was essentially vitiated by error of law and/or fundamental error of analysis and/or was unreasonable, by reason of:

1. the Registrar’s reliance on expert advice that was said to be inadequate and flawed; and/or
2. the Registrar’s failure to give the Claimants/scheme operators time to produce further expert analysis or response; and/or
3. the Registrar's misapplication of the statutory test by failing to take proper account of the “nature and extent of the risks of practising”; and/or
4. infringement of the Claimants' rights to pursue self-employed practices in the UK, under Articles 49 and 56 of the Treaty on the Functioning of the European Union and Articles 15 and 16 of the EU Charter on Fundamental Rights, denying also women access to independent healthcare services, contrary to Article 35 of the EU Charter on Fundamental Rights.

The Judge held that:

• The Registrar was required, when applying the statutory test to the question of whether or not the midwife Claimants had “appropriate cover for practising”, to exercise judgment and her conclusions could only be found to be unlawful on public law grounds (including proportionality). The Claimants’ attempts to insert their own conditions or criteria into the statutory test (including assumptions and modelling based upon the Solvency II insurance regime) and then criticise the Registrar for not applying them, were misconceived since those conditions or criteria were not to be found in the domestic legislation or the relevant Directive;
• The Registrar plainly did consider both the nature and the extent of the risks of the practices, as required by the statutory test. She accepted that the risk of a high-value claim was very low but nonetheless it was real, not theoretical, and found that the nature of the risk was very severe. She concluded that the scheme did not currently have recourse to sufficient assets or reinsurance to pay one large claim, or even several smaller claims, and therefore the cover was not appropriate to meet the liabilities that might be incurred. On the evidence before the Registrar, including evidence that the scheme was a new scheme with very modest projected net assets in its early years, the absence of affordable insurance cover in the market, and expert advice that was obtained by both the scheme and the NMC, this was a reasonable conclusion;
• The Claimants’ submission that the Registrar was required to inform IMUK members of the precise level of cover which she would find to be appropriate was based upon a misunderstanding of the statutory scheme. There was no obligation on the Registrar to provide guidance to registrants on the appropriate level of cover for their individual practices;
• It was an exaggeration to say that the Registrar’s decision was a disproportionate limitation on the EU rights claimed. Midwives practise outside the NHS in the private sector in a number of different ways and midwives were able to continue to provide services as independent midwives notwithstanding the decision. Whilst the decision did prevent independent midwives, absent other arrangements, from continuing to provide intrapartum maternity care unless or until they could obtain appropriate indemnity cover, this was justified on proportionality grounds, bearing in mind the risk to the public of the midwives continuing to practise with inappropriate cover;
• Other EU rights sought to be invoked were not engaged because of the well-established principle that a self-employed professional has no tradeable goodwill that amounts to a possession. Even if such rights were engaged, the interference in relevant property rights caused by the Registrar’s decision was justified and proportionate.

Comment

A key aspect of the Claimants’ case was their argument that, to find that the subject matter scheme was not “appropriate cover for practising”, the Registrar was required to inform IMUK members of the precise level of cover which she would find to be appropriate. The Judge in this case found that there was no obligation on the Registrar to provide guidance to registrants on the appropriate level of cover for their individual practices. A converse conclusion would have had potentially wide ranging impact, requiring healthcare regulators to specify what level of indemnity should be held by each of its registrants.

Further reading

R (Beety and Others) v Nursing and Midwifery Council [2017] EWHC 3232 (Admin).