Since 2010, the Australian Health Practitioner Regulation Agency (AHPRA) has provided a specific exemption for privately practising midwives providing support for labour and birthing care in a home setting. In July this year, the exemption was extended until 2025.

In practical terms, the exemption means privately practising midwives are covered by professional indemnity insurance for the antenatal and postnatal care they provide but not for labour and birth. The rationale for this exemption is that there is currently no viable insurance policy available to privately practising midwives and to ensure accessibility for home birth.

I act for a family who elected to give birth to their first child at home. After thoroughly researching their options, they engaged two private midwives to assist them. Upon engaging the midwives, the parents were presented with a contract outlining the nature of the care being provided and situations in which transfer to a hospital would be indicated. Buried within this contract was a single-sentence clause stating that the midwives did not have insurance for labour and birth.

During the pregnancy, the mother was reassured that everything was progressing well and the baby was in a good position for birth. Ultimately, the mother laboured for many hours before it was identified the baby was in breech position (meaning the baby’s lower extremities had entered the pelvis first), and the labour was not progressing. The mother required transportation to a hospital, where it was identified that the baby was in distress, and an emergency caesarean section was performed. Sadly, the baby suffered a lack of oxygen during birth and has since been diagnosed with cerebral palsy.

It is arguable that if the breech position had been identified during the antenatal assessments, which should have involved palpation of the mother’s abdomen to determine the position of the baby, it would have prompted a transfer to a hospital under the midwifery contract and may have resulted in the baby being born without injury.

In a second scenario, a homebirthing mother requested to be taken to the hospital for pain management, and her request was declined. The mother suffered significant vaginal tearing and haemorrhaged, requiring transfer to the hospital and emergency surgery.

What I see as a clear outcome from speaking to the mothers in each of these scenarios is a lack of comprehensive informed consent, as it empowers parents to make educated decisions about their birthing experience. It should be an evolving, collaborative process that ensures that the birthing experience aligns with the parents’ preferences and values while prioritising the safety and wellbeing of both the mother and the baby.

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There can be no doubt that the wishes of the birthing individual are paramount when it comes to childbirth. However, in my experience as a medical negligence solicitor, I have seen an increase in cases where a patient is in a situation in which they have to make a decision, or are told of a decision being made on their behalf without complete knowledge of the options available to them, or the implications if something was to go wrong. One of the many implications is the personal financial responsibility against the midwives, which can be significant if the child or mother is permanently injured as a result of the care they receive.

Rachel Seager is a senior solicitor in medical law at Shine Lawyers.