Protecting human rights in childbirth

Registered Charity Number 1151152

How to run a safe and rights respecting maternity service during a pandemic

Birthrights_COVID_decision_tree_updated version 2021 (1)

How can I run a safe and rights respecting maternity service during a pandemic?

We recognise that coronavirus has created unprecedented pressures for the NHS as a whole including maternity services.

The tool above sets out a process to support maternity service leaders to reach decisions which are rights respecting even in a pandemic.

All those affected by decisions need to be involved in making them. NHS England guidance states that Maternity Voices Partnership Chairs should be involved in decisions about temporary changes to maternity services, in addition to staff and partner organisations.

Step 1: what would it take to keep existing services running?

The first step is to consider what it would take to keep existing services running as they are. What are the pressures you are facing, and how could they be addressed?

For example, if there are staff shortages, could non clinical midwives be brought back into clinical roles? Could retired staff be brought back, or contracts offered to Independent Midwives?

Think as widely and as innovatively as possible before considering restricting current services. Bear in mind the evidence, for example on the benefits of out of hospital birth settings and continuity of care. Working collaboratively at Local Maternity System level could enable you to keep open services you couldn’t run on your own.

Step 2: what are my options for temporary changes?

If you do need to re-organise services, think logically and clearly about each of the possible options. Are they feasible in terms of staffing?  How will they affect the individuals using your service? And how far they will contribute to the aim of preventing the spread of COVID?

Consider any possible unintended consequences. For instance, you might assume that if home birth services are suspended then women will come into hospital but in practice there has been a significant increase in unassisted births in response to out of hospital services being withdrawn. Trusts/Boards still owe a duty of care to these women and need to be clear that they had no choice but to withdraw these services.

The impact of any change on BAME women, individuals who don’t speak English, women with additional needs and other marginalised groups should be explicitly considered.

Do consider the strength of the evidence. For example, the evidence for transmission of coronavirus via faeces during a water birth is very weak indeed, compared to the known benefits of water as a form of pain relief. As a result the RCM has said that wholesale withdrawal of water for pain relief/birth is not a proportionate response.

Step 3: Choose the most proportionate option

Decisions should be based on logical reasoning and evidence and should be “proportionate”.

You are looking to choose the option that restricts rights the least whilst still achieving the “legitimate aim” of protecting the health of others. It is important to note that this may not be the option that has the greatest effect on controlling the spread of COVID.

Step 4: Implement

Even when you have implemented any temporary changes to maternity services, you must look at exceptions on a case by case basis. Blanket policies that are applied to everyone are unlikely to be lawful. The Equality Act 2010 requires you to make “reasonable adjustments” for women with protected characteristics including disability, race, religion and sexual orientation. Remember that women from BAME backgrounds or other marginalised groups are already at greater risk of harm and so careful consideration must be given as to how service changes impact them.

As you clearly identified the reason for a temporary change in the first place, it will be much easier to know when the change should be reversed. Temporary changes should be reviewed regularly and de-escalation plans implemented as soon as possible.

Finally, communicate openly, transparently and honestly about the reasons for changes to services and what will trigger a review. Make sure women can access clear and up to date information online and through staff.  It is worth considering that not all women have access to phones or credit/data.

Frequently asked questions

Is withdrawing maternity services lawful?

The human rights framework is flexible enough to meet the challenges of coronavirus.  Article 8 of the European Convention of Human Rights and the Human Rights Act 1998 (which incorporates the ECHR into domestic law) gives individuals the right to family and private life, which includes the right to choose the circumstances of your birth. It also gives partners a right to be present at the birth of their child. However the rights stemming from Article 8 are qualified rights, which means that they can be restricted in certain circumstances.

Does coronavirus give health services the right to restrict these rights?

Article 8 rights can be restricted when there is a law which allows this, where there is a legitimate aim such as the protection of health of others, and where the restriction is necessary. “Necessary” means that the restriction is the minimum restriction required to achieve the aim; in other words, that the restriction is proportionate.

What makes a restriction proportionate?

A restriction is likely to be proportionate when a logical process (see above) has been gone through which looks at all alternative options for achieving the aim of controlling the spread of coronavirus, weighed up against the impact on all those affected.

Remember the starting point is that the rights of women and their partners should not be restricted, unless there is a good reason to do so.

Links to professional guidance

The Royal College of Obstetricians and Gynaecologists and the Royal College of Midwives have published a range of guidance for maternity healthcare professionals.

In addition NHS England have published guidance on the temporary reorganisation of intrapartum maternity care duing the pandemic.