Purpose of the Bill

The Midwife Professional Indemnity (Commonwealth Contribution) Scheme Amendment Bill 2024 (the Bill) proposes to amend the Midwife Professional Indemnity (Commonwealth Contribution) Scheme Act 2010 (the Act) to expand the existing Midwife Professional Indemnity Scheme (MPIS) to enable the Commonwealth Government to pay 100% of eligible claims for relevant intrapartum services provided outside of a hospital.

Background

Key terms

Antenatal covers the period spanning conception to the beginning of labour.

Intrapartum care covers the period from onset of labour to delivery of the newborn.

Postnatal (perinatal) spans from birth of the newborn to 6-8 weeks after delivery.

Midwives work in partnership with women providing antenatal, intrapartum and postnatal care. Midwifery is a regulated profession under the Health Practitioner Regulation National Law (National Law), overseen by the Nursing and Midwifery Board of Australia (NMBA). Only qualified and registered practitioners can call themselves a midwife.

The National Law regulates 16 health professions in Australia, including midwifery (see Health Practitioner Regulation: a quick guide for further information).

Privately practising midwives are midwives who practise the midwifery profession in a private capacity. They can be sole practitioners, work in partnership models, operate their own business and/or attend homebirths as the second health practitioner. They can also be employed by a private midwifery business, contracted by a private business or practise in a voluntary capacity. Privately practising midwives who are credentialled with a health service can also provide private midwifery care to a woman who is admitted to the health service. Whilst providing private midwifery services in this capacity they are not employees of the health service.

Endorsed midwives are experienced practitioners able to work at an advanced level of practice. For example, endorsed midwives can prescribe certain medicines, provide services attracting Medicare rebates and offer comprehensive antenatal, intrapartum and postnatal care including the ability to admit women into hospital and provide care on their own authority. Endorsed midwives require 5,000 hours of clinical practice as a midwife and must have completed an NMBA-approved program of post-graduate study leading to endorsement for scheduled medicines. Endorsed midwives are the only midwives with access to the MPIS  (per the Midwife Professional Indemnity (Commonwealth Contribution) Scheme Rules 2020).

Birthing on Country models are designed to provide continuous, culturally safe care to an Aboriginal and Torres Strait Islander person who is pregnant or a person pregnant with an Aboriginal and Torres Strait Islander child. They may be community based, provide for inclusion of traditional practices, and value Aboriginal and/or Torres Strait Islander as well as other ways of knowing and learning.

Professional indemnity insurance provides financial protection to both medical practitioners and patients in the event of an adverse event caused by negligence. Since the early 2000s, the Australian Government has implemented a range of financial and regulatory measures to support the medical indemnity insurance industry.

There is demand for alternatives to hospital birth

Australian maternity services are delivered through a mix of public and private services. While most births in Australia occur in hospital (97% in 2022), some women, given the opportunity, would prefer to labour and birth in their own home or a location other than hospital. There are some publicly funded home birth programs in Australia. Women may choose to engage a privately practising midwife to support them through pregnancy, birth and/or the postnatal period.

As at September 2023, there were 380 midwives insured under the existing MPIS and 104 privately practising midwives providing private homebirth in Australia (p. 6).

The current Midwife Professional Indemnity Scheme covers antenatal and postnatal care by privately practising midwives

The Midwife Professional Indemnity Scheme (MPIS) was introduced in 2010, following the passage of the Midwife Professional Indemnity (Commonwealth Contribution) Scheme Bill 2010 (see associated Bills Digest).

Through the MPIS, the Commonwealth Government provides a financial contribution to eligible insurers who provide indemnity to eligible privately practising midwives.

The MPIS currently provides coverage for antenatal and postnatal care, but generally not out-of-hospital intrapartum care, including homebirths.

An indemnity insurance exemption for intrapartum services is due to expire

For the protection of the public, registered health practitioners regulated under the National Law are generally required to have appropriate professional indemnity insurance.

Since 1 July 2010, privately practising midwives have been operating under an exemption that allows them to provide intrapartum services for women planning to have home births without indemnity insurance. Section 284 of the Health Practitioner Regulation National Law currently allows an exemption due to the unavailability of suitable insurance products. For the exemption to apply, midwives in private practice are required to demonstrate that they meet all obligations in the NMBA’s Safety and quality guidelines for privately practising midwives. The temporary exemption has been extended numerous times.

The exemption is currently set to end on 30 June 2025. The Department of Health and Aged Care reports jurisdictions have previously opposed making the current exemption permanent, instead agreeing on the importance of a national solution that provides an appropriate indemnity insurance product (p. 2).

The Australian Government recently informed stakeholders it intends to seek a final extension to 1 July 2026 to ‘provide reassurance to women and midwives that homebirth plans may continue without disruption during the transition [to new arrangements as set out in the Bill] and allow time for regulation and policies to be amended and implemented’. The extension must be agreed by state and territory governments.

Insurers remain unwilling to offer cover for intrapartum care outside of hospital

An approach to market for insurers to offer cover for low-risk homebirths and intrapartum care outside a hospital was not successful. Insurers report barriers include the difficulty in accurately quantifying risks due to lack of data and the small number of services currently being provided (p. 4).

Key issues and provisions

Government to pay claims for intrapartum services provided outside of a hospital

The Bill provides for an expanded MPIS that will support professional indemnity insurance coverage for:

• eligible midwives providing homebirth services
• eligible midwives providing intrapartum care outside of a hospital
• eligible entities employing or engaging eligible midwives to provide intrapartum care outside of a hospital (including Birth Centres) as part of Birthing on Country models of care.

The Commonwealth will contribute 100% of the cost of eligible out-of-hospital incident claims.

Rules will specify services eligible for coverage

The Bill provides for Rules to specify persons and services covered under the expanded Scheme. The Explanatory Memorandum explains:

The Government’s broad intent is to cover out-of-hospital intrapartum services where they are provided in compliance with the Nursing and Midwifery Board of Australia’s (NMBA) Safety and Quality Guidelines for Privately Practising Midwives (SQG) (p. 7).

The Safety and Quality Guidelines for Privately Practising Midwives set out the regulatory framework to support the safe, professional practice of privately practising midwives and were last reviewed in February 2023. They describe the regulatory and clinical governance requirements that privately practising midwives must comply with. For example, mandatory requirements include:

• obtaining informed consent from the woman in their care
• having a documented process for identifying, assessing, monitoring and evaluating clinical and environmental risks
• if providing homebirth services, being skilled and current in obstetric emergency management, adult basic life support and newborn resuscitation
• maintaining a documented referral pathway(s) to support timely and appropriate consultation and/or referral
• contemporaneously documenting and submitting required data as per state and territory and national perinatal data collection requirements
• holding, maintaining and complying with a documented incident management process.

Privately practising midwives must provide evidence of compliance with mandatory requirements and are subject to audit. Failure to comply is likely to result in disciplinary action by the NMBA. Under Part 8 of the National Law, the NMBA has a range of powers when dealing with breaches, including the power to take immediate action.

Government decided not to include a definition of ‘low-risk homebirth’

The approach originally proposed by the Government (and outlined in the Impact Analysis), was for the expanded MPIS to cover low-risk homebirth, based on a definition set by the Government (see p. 3).

During stakeholder consultation on a ‘low-risk homebirth’ definition, a number of stakeholders raised concerns the definition was overly restrictive. On 1 November 2024, the Department of Health and Aged Care informed stakeholders:

An alternative solution submitted by the Nursing and Midwifery Board of Australia (NMBA) and other stakeholder groups comprised utilising the current regulation framework, the NMBA Safety and Quality Guidelines for Privately Practising Midwives (SQG). This approach already provides a robust regulatory framework, that midwives must adhere to as part of their mandatory registration and regulation requirements and has a proven track record of safety to the public since its introduction to midwifery regulation in 2017. 
  
Government has approved this approach to link indemnity for homebirth under the Midwives Professional Indemnity Schemes to compliance with the SQG, so a definition of ‘low-risk’ will no longer form part of the Bill.

… This approach … reflects consultation feedback that raised concerns in relation to the original alternative proposal to instead develop a definition of "low-risk homebirth". Government agrees that by trusting midwives’ clinical judgment within their scope of practice, and leveraging these robust existing guidelines, we can effectively support homebirth care in a way that ensures public safety while avoiding the potential pitfalls of a restrictive definition.

Additional resources

Further discussion of the original proposal and subsequent change can be found in the following:

• R Fedele, ‘Privately practising midwives rally against potential restrictions to scope of practice’, Australian Nursing & Midwifery Journal, 23 July 2024.
• H Payne, ‘Doctors push back on home births’, Medical Republic, 21 August 2024.
• H Payne, ‘Midwives say home birth insurance limits autonomy’, Medical Republic, 26 August 2024.
• H Payne, ‘Midwife Homebirth insurance risk clause nixed’, Medical Republic, 6 November 2024.
• Home Birth Australia, ‘Professional Indemnity Insurance’.
• Australian College of Midwives, ‘ACM welcomes Homebirth Insurance Solution’, media release, 1 November 2024.