A doula is defined by the Oxford English Dictionary (Online) as ‘a woman who gives support, help, and advice to another woman during pregnancy and during and after the birth.’  An agency that provides training for doula’s has noted that students have raised legal concerns about their role in emergencies.  My correspondent says:

The main 2 questions we had were:

Specifically discussing doulas who are working with women and babies and an obstetric or neonatal medical emergency arises.

  1. What are the legal concerns for doulas in this area (of attending to women and babies in emergencies)?
  2. What can doulas do to mitigate the risks?

Some of the sorts of questions/comments related to these 2 questions, that I have seen and heard include:

  1. Can you define the possible civil and criminal concerns a doula may have when caring for a woman in an emergency?
  2. Can a doula be charged for practising midwifery without a license?
  3. If an emergency arises and the doula is the only one in attendance is she protected by the good Samaritan law? Is there anything she can do that will cause this to be void?
  4. What about if a doula is with a woman and at some point, something goes wrong (or birth is imminent), and the woman refuses to leave to the hospital/ call an ambulance/ get help. is the doula liable?
  5. Ad a doula gains experience (even though she is not medically trained) she may notice when things are “not quite right”, and women often call them with every ache and pain, does she have a legal obligation to encourage the woman to seek help with her care provider?

The following are a list of things suggested by various people to minimise the risk of a doula being sued or charged with a criminal offence if she is with a woman during an emergency/ a woman experiences a poor outcome. I wonder if any

  • Calling for help (000)
  • Have a contract defining their role
  • Have the partner catch the baby if there is birth before arrival
  • decline/return payment
  • verbally state to the women “I am no longer acting as your doula but as a concerned friend”
  • Have the woman write a clear birth plan with their intention to birth in a hospital/ birth centre / with a registered midwife at home.

The first thing to note is that there aren’t hundreds of cases involving Doula’s which might suggest that the legal risks are few but they are clearly not non-existent.  Being involved with childbirth is an emotional issue so when things go wrong, the parents are often motivated to seek legal redress. The risk of being subject to a complaint is 50% higher for obstetrician-gynecologists compared to GPs (Bismark MM, Spittal MJ, Gurrin LC, et al, Identification of doctors at risk of recurrent complaints: a national study of healthcare complaints in Australia, BMJ Quality & Safety Published Online First: 10 April 2013. doi: 10.1136/bmjqs-2012-001691).

I infer from the questions and some research that doulas do indeed receive training and charge for their services in which case they are operating in trade and commerce for the purposes of the Australian Consumer Law.  That means that the services must ‘be provided with acceptable care and skill or technical knowledge and taking all necessary steps to avoid loss and damage’ (https://www.accc.gov.au/consumers/consumer-rights-guarantees/consumer-guarantees#consumer-guarantees-on-products-and-services).

A doula entering into a contract with a client must owe that client a common law duty to act with reasonable care and skill.  It follows that even if we can’t define what it is, there must be in every case a standard of care that can be defined as the care that a ‘reasonable’ doula would provide in all the circumstances. No doubt if the response of a doula was to be subject to legal inquiry, it would be midwives and doctors who would be called to comment on what was ‘reasonable’. Doula’s may, as paramedics have, find that it is not members of their own discipline that get to comment on what they should have done (see my commentary on Lithgow Council v Jackson [2011] HCA 36 (October 5, 2011); Ambulance Service v Neal (January 29, 2009) and ‘Ambulance Service of NSW v Worley; further legal lessons for the emergency services’ (2007) 5(2) Journal of Emergency Primary Health Care (continued as the Australian Journal of Paramedicine) Article 990235).

Let me then consider the questions:

  1. What are the legal concerns for doulas in this area (of attending to women and babies in emergencies)?

The principle legal concern is that if the birth goes wrong and the child or mother suffers an injury someone will allege that the doula failed to act as a reasonable person with her training and knowledge should have.  And that this in turn caused the damage to the child or mother.  If successful that would see the doula liable in negligence for amounts that no person could pay from their own assets.  Without insurance, the doula may find her home and other assets at risk.

  1. What can doulas do to mitigate the risks?

The obvious answer is do what every other health practitioner does and that is get insurance. That is easier said than done.  Since midwives have had the right to private practice they have had difficulties obtaining professional indemnity insurance (which should communicate what a high risk business it is) – see Nursing and Midwifery Board of Australia, Media Statement: PII exemption extended to 31 December 2016 for midwives in private practice (17 June 2015).  Further details of professional indemnity for midwives, what it covers and why it’s important, can be found in the Nursing and Midwifery Board of Australia Guidelines for professional indemnity insurance arrangements for midwives (June 2013 updated April 2016).   Doulas are not midwives but that does not mean that they are not at risk if they conduct their business without insurance.

Let me then turn to the subsidiary questions.

  1. Can you define the possible civil and criminal concerns a doula may have when caring for a woman in an emergency?

The civil concerns are noted above. If a doula is negligent and uninsured (and assuming she is acting in her own practice and not as an employee of a medical or other practice) then all her assets are at risk.  In terms of criminal concerns, if a doulas conduct can be described as ‘gross negligence’ then there could be criminal liability if the baby or mother died.

In Victoria, a coroner recommended that a midwife be referred to the Director of Public Prosecutions for possible prosecution over the way she managed the emerging crisis during a home birth (Inquest into the Death of Caroline Emily Lovell (24 March 2016)).  A doula is unlikely to find herself in that position if she is working with a midwife but if she is working alone then a similar consequence, in the wrong circumstances, is indeed possible.

2. Can a doula be charged for practising midwifery without a license?

No, because there is no such offence.  The Health Practitioner National Law does not define the scope of practice of health professionals (with the exception of some procedures that only registered dentists, optometrists or chiropractors can do, see ss 120-123).  The prohibition is on using the protected titles, so a person cannot call themselves a midwife unless they are a registered midwife (s 113).

There is one exception to this rule.  The various health tribunals can make orders regarding a registered or formerly registered health practitioner. In particular if a midwife (or other health professional) is found to have engaged in professional misconduct and an order is made to cancel their registration, the tribunal can also order that they do not practice any other form of health care.  In Health Care Complaints Commission v Abad (No 2) [2009] NSWNMT 30 the Nurses and Midwives Tribunal confirmed that the legislation allowed them to make an order that a nurse could not practice as an assistant in nursing (a non-registered role) during his period of de-registration.  In the course of reaching their decision the Tribunal noted the Minster’s second reading speech when he was introducing legislation to amendment the Nurses and Midwives Act 1991 (now repealed) and the Health Care Complaints Act 1993 allowing for prohibition orders.  At that time the Minister said (emphasis added):

There are also concerns about practitioners who, due to serious misconduct or incompetence, have been deregistered from a health profession but who, nonetheless, continue to practise in unregistered fields. The most obvious examples of that are deregistered medical practitioners or psychologists who set themselves up to practise under titles such as psychotherapist or counsellor. Deregistered physiotherapists, chiropractors and osteopaths may set up under the title of remedial masseur, and deregistered midwives may set up under the title of doula or birth attendant.

Midwives have been prohibited from acting as doulas during their period of de-registration – see Health Care Complaints Commission v MacGregor [2016] NSWCATOD 86 and Health Care Complaints Commission v Sheldrick (No 2) [2017] NSWCATOD 24).  A doula who was subject to an order that was made when she or he was deregistered as a midwife would be committing an offence if they then practiced as a doula contrary to that order.

Further in NSW and South Australia there is a code of conduct that applies to unregistered health practitioners – see Public Health Regulation 2012 (NSW) Schedule 3 and the South Australian Code of Conduct for Unregistered Health Practitioners Made under the Health and Community Services Complaints Regulations 2005.  Without going through the provisions section by section the Health Care Complaints Commission in NSW, and the Community Services Complaints Commissioner in South Australia, can receive complaints and no doubt prohibition orders can be issued to stop practitioners from continuing their practice. Again it would be an offence to work contrary to any such order.

3. If an emergency arises and the doula is the only one in attendance is she protected by the good Samaritan law? Is there anything she can do that will cause this to be void?

No, the good Samaritan legislation in every state is predicated on the basis that the person who steps up to help is there without an expectation of getting paid (see Good Samaritan legislation – a comparison (February 22, 2017)).  If the doula is operating a practice she is not a good Samaritan for the purposes of the legislation.  To put that another way, ‘Is there anything she can do that will cause this [protection] to be void?’ Answer yes, she can expect to get paid for her services.

4. What about if a doula is with a woman and at some point, something goes wrong (or birth is imminent) and the woman refuses to leave to the hospital/ call an ambulance/ get help, is the doula liable?

She will be if her response is not ‘reasonable in all the circumstances’ and that failure causes the baby or mother to suffer injury, loss or damage.  In the absence of specific facts I can’t say what might or might not be ‘reasonable’.

5. As a doula gains experience (even though she is not medically trained) she may notice when things are “not quite right”, and women often call them with every ache and pain, does she have a legal obligation to encourage the woman to seek help with her care provider?

She does if that is the ‘reasonable’ response. I would suggest every doula would say ‘I’m not a doctor, if you are concerned you should seek to discuss this with your doctor’.

Would any of these actions help:

  • Calling for help (000)

I’m a keen supporter of calling triple zero.  Even if the patient doesn’t want you to, calling the paramedics brings in a second opinion and if the doula and the paramedics are urging the mother to go to hospital that may persuade her that this is indeed the best option. If she wants to refuse their care as well, she can.

If there is no doubt that it is an emergency, call triple zero – see Paramedics and home birth midwives (April 1, 2016).

  • Have a contract defining their role

That will go a long way to defining what could or could not be expected from the doula and the limit of her services and expertise.  It won’t however excuse the doula from providing reasonable care within the terms of that agreement and her own knowledge and experience.

  • Have the partner catch the baby if there is birth before arrival

No, that won’t make any difference.  It may be worse if the circumstances mean that the baby should be ‘caught’ by someone with experience.

  • decline/return payment

No that would just add insult to injury if you thought that was somehow going to remove legal liability.  You may choose to decline payment as that is the decent thing to do if something has gone wrong and no doubt you don’t want to invoice a grieving family, but it would be legally irrelevant.

  • verbally state to the women “I am no longer acting as your doula but as a concerned friend”

No that would also be irrelevant.  You have entered into an agreement to provide whatever services you provide.  It would also be irrelevant for a midwife (registered or not) to say ‘I’m no longer acting as your midwife’.  A midwife who has chosen not to renew their registration but is practicing as a doula still knows what she knows and has the experience she has. She may identify an issue that a doula might miss but she can’t ignore it and say ‘today I’m only a doula’.   And consider a situation where a doula perceives something is not right and thinks ‘perhaps we need a doctor’ whereas the trained midwife, practising as a doula recognises the urgency and thinks ‘we need Intensive care paramedics here right now’ then it would be negligent for the midwife/doula not to call triple zero (given what she knows) even if it might not be negligent for the other doula, in the same circumstances, to try and contact an on call GP and wait for their arrival.

  • Have the woman write a clear birth plan with their intention to birth in a hospital/ birth centre / with a registered midwife at home.

I imagine that such a thing is considered good practice. Failure to adhere to good practice is axiomatically what negligence is.  But as I’m neither a doula nor a midwife I can’t comment further on that.

Conclusion

Context is everything.  What is ‘reasonable’ depends on all the circumstances.  Liability also depends on all the circumstances.  A doula who is employed in a practice that also employs midwives, who works in collaboration with the midwives and medical practitioners, who has a clearly defined scope of practice and the ability to call on others if and when the need requires probably faces minimial legal risk.  Even if there is negligence by the practice in the provision of maternity care it will be the employer that is vicariously liable for the negligence of its staff.  That would be a low risk practice.

A doula who believes that birthing is a perfectly natural process that has been over medicalised and practices on her own without the sort of protections listed above faces significant legal risks in the practice of her trade, not least because of the highly emotive nature of birthing particularly when things go wrong at the last minute.   It doesn’t mean a doula will be liable for every poor outcome or still birth – they are not all attributable to negligence, but this is a business where a poor outcome may lead to lengthy legal issues even if ultimately resolved in the doula’s favour.  The most significant protection would be insurance, if you can get it.