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In 1935 the then Lord Chancellor, Viscount Sankey, delivered a judgment and coined a phrase which has become famous - 'Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt.' In fact this principle has always been so strongly observed in English Law that until the beginning of this century the accused was not allowed to give evidence himself - in case he damned himself from his own lips - it was always the job of the prosecution to prove his guilt, not the accused job to prove his innocence. There are two other `golden threads' which make up the Common Law of England and the concept of `natural justice' and those are that the accused has a right to know what s/he is charged with - and that s/he should have a right to be heard, a right to clear his/ her name by giving his/her side of the story. I am becoming increasingly concerned about these principles of justice as they apply to midwives. In our Professional Conduct Machinery there is room for all these principles to be upheld - but in practice these principles are being ignored to the detriment of several midwives - who like any other member of the English public is entitled to justice. To start at the beginning - any member of the public or profession may report a midwife for alleged professional misconduct to the Investigating Committee of the English National Board, but in practice the whole process is usually initiated by the midwife's Supervisor of Midwives. To digress for a second - the role of the Supervisor of Midwives is a facet of our profession which we really need to be addressing. The Supervisor of Midwives is seen as `Guide, Counsellor and Friend' to the midwives over whom she has supervision. When she is actually acting as guide, counsellor and friend her role is supportive and that of the `wise and experienced' mentor to the midwives in her care. She is also there to ensure that the public are being offered care of a satisfactory and safe standard. She is not there as the relentless critic of every midwife under her control. All other professionals have two professional relationships - their relationship with their client and their relationship with their professional body. We midwives also have these professional relationships - but in addition we have a third person who can intervene in this relationship - the Supervisor of Midwives. Many midwives see the supervisor as the `safeguard' of our profession and there is no doubt that having the role of supervisor enacted in statute has helped the profession against some of the greater excesses of the Griffiths reforms - but what about our profession? Is the role of supervisor really helpful to us professionally? Is this extra tier in our professional relationship a support or a heavy weight dragging us back from being truly professional? Infantilizing us? Are we the only professionals who need a `nanny' to make sure that we don't harm Josephine Public? And what about Josephine Public'? Is she really being protected from incompetent midwifery by the Supervisor of Midwives? In some cases the answer must be `yes', but is this only because we have supervisors when any member of the public can report a midwife'? Are all midwives who are not professionally up to scratch in front of the Professional Conduct Committee? The answer has to be `No', and in fact it could be seen that in practice the reverse happens - that the midwives who speak out and who are less able to be `controlled' because they practise outside the normal system appear to be under much greater threat of being involved in professional disciplinary actions than their more submissive counterparts. The other worrying factor of the professional disciplinary machinery of nurses, midwives and health visitors is that the practitioner can have an unblemished professional record, can have been an excellent clinician all her working life and as the result of one inadvertent slip can be struck off the register. The injustice of this was pointed out by Lord Justice Watkins VC recently when a school nurse, Elizabeth Hefferon appealed to the High Court against the decision to strike her off the register by the UKCC Professional Conduct Committee after one inadvertent slip - freely admitted at the time. The High Court quashed her striking-off and highly criticised the procedures of the Professional Conduct Committee. To return to my initial hypothesis - that natural justice may be being denied to midwives - A midwife may be suspended from practice by her Local Supervising Authority on the advice of the Supervisor - can deprive her of her professional identity, deprive her of her livelihood - without ever having spoken to the midwife concerned, without ever having corresponded with the midwife concerned and without ever having given her an opportunity to give her side of the story. If the midwife is suspended from practice the case against her must be reported to the Investigating Committee of the English National Board, she will receive a letter from the Investigations Department as will any midwife who has been reported to the English National Board - `Information has been received at the Board containing allegation(s) of misconduct against yourself', but what are the allegation(s)? Is it one or twenty? Is it a case the midwife conducted three weeks age or a woman she delivered ten years ago` What are the charges she is being asked to answer? Here is the other aspect of the procedure which I suggest contravenes all concepts of natural justice - it can be WEEKS before she knows the charges against her, the swore of Damocles hangs over her head, daily she awaits its drop. Another aspect which causes concert is the conduct of the Investigating Commit tee - the case against the midwife (who by now had an opportunity to hear the case against her and to give a written reply) is perused by the Investigating Committee - who feel quite at liberty to add extra charges - despite the fact that the midwife is not present nor is her representative, to answer the additional charges. All the charges can now be taken to the Professional Conduct Committee which is conducted like a court "Save as aforesaid and where provided in these rules all proceeding before the Conduct Committee shall take place in the presence of all parties thereto who appear therein and shall be open to the public..." (16(2) - this is all very well but have you ever tried to gain access to a Profession al Conduct Hearing? You have to write and apply for tickets before being allowed access. Are the tickets given out fairly? Are certain names not sent tickets? If access is only by ticket, can it really be said that the hearing is open to the public? Professional Conduct Machinery is the responsibility of the profession - how responsible are we being with ours? Reference 1. The Nurses, Midwives and Health Visitors (Professional Conduct) Rules 1987, Approval Order 1987, Statutory Instrument No. 2156 from HMSO. Summer, 1988 |
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