(originally published in March 2020)
EDIT: The bill proposal was withdrawn later in 2020 by the proponent and it is unclear what are the plans going forward, whether it will be re-submitted at some point in near future.
The bill has five parts. First part is the bill itself, comprising of 25 sections. The other four parts list the changes of other current legislation that this proposal brings.
The five parts of the bill are followed by the explanatory memorandum which itself has two parts. General part A serves as an explanation as to why this new law needs to be introduced, outlines the bill in relation to other effective legislation and provides an assessment of different aspects of the bill. And special part B further explains each of the 25 sections of part one of the bill.
Wording of the explanatory memorandum is crucial because it tells us about the motives for introducing the bill and suggests what to expect if the law becomes effective.
I would like to list some of the worrying features of the bill. Further below you can read informative translation of the explanatory memorandum. I have highlighted those parts which deserve special attention.
- Being registered vs being a member of the Chamber
The Chamber membership is two-track. A midwife has to be on the Chamber’s register to be allowed to practice, but being on the register does not mean she is a member of the Chamber. To become a member, a higher fee has to be paid yearly.
Being on the register is mandatory so why doesn’t membership come with it? Without membership the midwife has no right to influence any decisions made about the whole profession. The higher fee will no doubt discourage a lot of midwives to become members and some will not be able to afford it at all because a fee also has to be paid yearly to just stay on the register.
- Requirement for a three years long supervised practice and an exam with the Chamber in order to become autonomous
A registration with the Chamber allows a midwife only to practice under direct supervision. To become autonomous, a midwife has to sit a qualifying exam with the Chamber after having worked full-time under supervision for three years.
Why is current university education insufficient? And if it is, shouldn’t it be looked at first to identify where it is lacking and be improved?
And what about those midwives who cannot work full time due to their health, family situation or any other reason? Should they never be allowed to become autonomous practitioners?
The explanatory memorandum does not touch on this at all but at the same time it claims that possible discriminatory effects of the law have been considered and none were found. Then I suggest that the authors did not really look properly or do not know what discrimination is.
It is said in the same section of the bill that the required supervised practice period can be reduced to one year by the Examination Committee Chairwoman’ s decision under conditions which will be later specified by the Chamber.
Why is the supervised practice period not set as one-year straight away then? The explanatory memorandum gives us an answer, if we read carefully. The three year long full time supervised practice is being introduced in relation to the “homebirth phenomenon.” In other words, it is actually aimed at the midwives who want to work in community. The one year period of supervised practice will be for midwives who wish to work in hospital settings.
- Restricting homebirth care to a yet unknown set of rules
Special attention needs to be paid to the fact that the authors of the bill explain that the “phenomenon of homebirth” as they call it, needs to be dealt with and this law will serve as a tool for it. In the text they describe midwives as illegal practitioners who disguise intrapartum care as emergency care so that they can look after women birthing at home.
The state doesn’t allow provision of midwifery care in homebirth, but that does not stop women wanting to give birth at home, of course. And for women, it is fully legal. Midwives naturally feel that they have to uphold their professional ethical duties and some therefore provide care during homebirths despite the risk of penalisation and prosecution as otherwise these women are left to birth on their own.
Looking further into part B of the explanatory memorandum, we can read that the purpose of this law is to make hospital midwifery stronger so that parents do not chose homebirth and if they still do, midwives can provide intrapartum care at home but only according to a standard of care (which shall be later created by nine members of the Chamber Board) and if according to the standard the woman falls in the “high risk” category, care provision at home by a midwife is forbidden.
- No requirement for consultation while creating regulations
Here I would like to tell you that there is no requirement in the bill for the Chamber Board to consult anybody while creating professional regulations and standards of care. Not midwives, not service users, nobody.
Czech Midwifery Chamber Bill
Unofficial translation for informative purposes (pages19-29 of the original document)
Original document: https://www.senat.cz/xqw/xervlet/pssenat/original/93872/78732/85312?fbclid=IwAR2RlhS5_YsmnyY1S8e-047be37X9rSJLX7plRjbEqBVpMUXqK-ZkhB3tPg
A. General part
1. Assessment of current legislation, reasons for proposing legislation changes and overall explanation of the necessity of the newly proposed law.
The proposed law establishes Czech Midwifery Chamber, a self-governing professional organisation.
The purpose of establishing the Chamber is above all:
- strengthening midwifery as a profession and making it more prestigious
- increasing interest in the profession as currently it faces decreased interest
- emphasising specific autonomous role of the midwife in the healthcare provision system
- improving the quality of midwifery care through unifying care guidelines and recommendations and rules for care provision
- protecting patients through unified supervisory regulation over the quality of midwifery care and consultation provision
- improving pregradual education and continuous practice development in midwifery through a professional organisation
The foundation of the provision is derived from other chambers established in line with the Czech Medical Chamber, Czech Dental Chamber and Czech pharmacology Chamber Act, no. 220/1991, while considering longstanding practical experience with functioning of the chambers established by this act. The wording of a more recent legislation no. 85/1996 establishing another important professional organisation – the Czech Advocacy Chamber was also taken into consideration. Foreign legislation, mainly Austrian, served as an inspiration, moreover experience with Slovakian legislation was also taken into consideration.
The important difference between current medical (or pharmacology and dental) chamber and this new chamber is a two-track membership. Joining the Chamber’s register is a condition for practising as a midwife. But registration itself does not give the midwife a right to vote or to be elected into the Chamber’s bodies. But the registering midwife does not have to pay the membership fee (only a regular lower fee to support functioning of the Chamber).
The right to vote and to be elected is gained by becoming a member of the Chamber. The membership is voluntary and there are no special requirements in order to gain it other than being on the Chamber’s register.
Registering as a midwife only allows practising under direct supervision. In order to work without supervision, the midwife has to pass a qualifying exam. She can sit this exam after having practised for three years.
The Chamber has similar rights as the Medical Chambers. Mainly the right to participate in the preparation of laws concerning midwifery care provision, a right to issue professional regulations within the boundaries of the powers conferred and within its set objectives, and disciplinary power over all registered midwives.
Unlike the Medical Chamber, regional organisations of the Chamber are not being established. This is due to a lower number of midwives and in order not to burden the Chamber’s budget.
One of the secondary objectives of the proposed law is reacting to the phenomenon of the so called homebirths. Despite all efforts of obstetricians and other doctors to warn about the associated dangers, a low but non-negligible number of these births is constantly observed. Based on the basic human right of privacy, the judicature of European constitutional courts and courts of Human Rights deduce mother’s right to choose such birth also when weighing the potential limitation of the child’s right to health. Existing Czech law allows homebirth in keeping with this generally accepted legal opinion. Nevertheless provision of health care by midwives in these situation is prohibited, except giving first aid. But it is difficult to distinguish and to prove the difference between giving first aid and providing labour care during offence proceedings. Midwives started to take advantage of this in order to legalise health care provision in homebirth. Therefore there is currently no available tool to effectively regulate them.
The law proposal reacts to this situation by providing a base and support of a professional organisation to hospital midwives for further improvements of their care so that less parents incline to birthing in home environment and choose hospital birth. The proposal also wants to strengthen accountability of independent midwives for the same purpose, so that hospitals are not worried to sign contracts with them. The Chamber will also give a better negotiating power to midwives in promoting other types of birthing facilities, in which they would have more independence, which however comes with more accountability, mainly centres of midwifery care within maternity hospitals. These should satisfy a major part of clients who would otherwise opt for a homebirth. In extreme circumstances, this proposal should allow that birth of children, whose parents despite all above said choose a homebirth could happen with a presence of a midwife, but a midwife who is experienced, has been examined, is guided by clear standards and can be subject to disciplinary action.
Before being brought to the legislative process, this proposal had been discussed at round table events with the presence of the representatives of all three midwifery societies (Czech Society of Midwives, Czech Chamber of Midwives, Union of Midwives).
Perinatology department of the Czech medical Society of Jan Evangelista Purkyne and European Midwives Association endorsed this law proposal.
Midwifery profession is one of the professions regulated by European Union Law and this proposal takes this fact into consideration.
2. Assessment of concordance with the Constitutional Order of the Czech Republic.
The proposed legislation is in concordance with the Constitutional Order of the Czech Republic.
3. Assessment of compatibility of proposed legislation with European Union regulations, judicature of the bodies of European Union or general principles of European Union law and with the legislative intention and regulation proposals of the European Union.
The issues are partially addressed in section 6 of directive 2005/36/ES of the European Parliament and of the Council of 6th July 2005 on the recognition of professional qualifications. The proposed legislation is not in conflict with this or any other EU regulation, judicature of the EU courts, nor with general principles of European Union law.
4. Assessment of compatibility of the proposed legislation with international treaties which are binding for the Czech Republic.
The legislation concerned in this proposal has no relation to any international treaties which are binding for the Czech Republic. The legislation touches the issue of right to privacy guaranteed among others by the Convention for the protection of human rights and fundamental freedoms. The European Court for Human Rights judged in proceedings no. 28859/11 and 28473/12 whether this right was affected and the court urged Czech legislators to “keep the relevant provisions under constant review, reflecting medical and scientific developments, while fully respecting women’s reproductive health rights, especially by securing adequate conditions for patients as well as health care workers in maternity hospitals across the country.” The proposed legislation takes this recommendation fully into account.
5. Expected economic and financial impact of the proposed legislation on state budget and other public budgets.
The proposed legislation will have an impact on the budget of the Ministry of Health in tens of thousands and lower hundreds of thousands CZK. This legislation makes the Ministry responsible for organising the founding assembly of the Midwifery Chamber.
6. Expected economic and financial impact of the proposed legislation on business environment in the Czech Republic, social impacts, including impact on families and specific citizen groups impacts, namely socially disadvantaged persons, persons with health disabilities and ethnic minorities and environmental impacts.
The proposed legislation will not have any particular impact on the environment, business environment, social impact including impact on families and specific citizens groups. Establishing the Chamber will not have a considerable negative impact on midwives. It is assumed that the fee contribution to Chamber’s functioning, paid yearly by all midwives, will be set so that it does not have a significant impact on their incomes. Only Chamber’s members will pay a membership fee and the membership is additional and voluntary.
7. Assessment of the impacts of the proposed legislation in relation to protection of privacy and personal information.
The Czech Midwifery Chamber established by this law proposal will process personal data. By law the Chamber will maintain a list of midwives, will keep records of visiting midwives and a list of its members and keep other records relating to qualifying exams and disciplinary procedures.
8. Assessment of the current situation and proposed legislation in relation to anti-discrimination and equality of men and women.
The legislation concerned has no relation to equality of men and women and anti-discrimination.
9. Assessment of the risks of corruption.
Due to the content of the legislation, no risks which could lead to corruption were found.
10. Assessment of the impact on the State safety and defence.
The legislation concerned is unrelated to safety or defence of the State
B. Special part
About the first part
About § 1
The opening provision establishes the Czech Midwifery Chamber as a legal entity. The Chamber is a self-governing professional organisation of all midwives.
About § 2
The provision entails a basic list of rights and responsibilities of the Chamber. Apart from responsibilities listed from a) to e) well known from other professional chambers, the Chamber is also authorised to negotiate indemnity insurance on behalf of midwives, needed mainly when practising autonomously, and is authorised to negotiate contracts with health insurance companies (essential for community care) and cooperation contracts with health care providers (essential for continuity between institutional and community care). In all cases, midwives will have the advantage of the support of a professional organisation, which will help them to hold a better negotiating position than they would have as individuals. The option of negotiating these contracts individually without the Chamber’s participation is not affected.
The rights of the Chamber are analogous to other professional chambers. It is mainly the right to participate in creation of relating legislation, right to issue professional regulations and carrying out disciplinary procedures against midwives.
About § 3
The provision newly makes it mandatory for midwives to be registered in order to practice in the Czech Republic territory. This is in addition to currently effective conditions in the Non-medical Healthcare Professionals Act, no. 96/2004. A person registered in the midwifery register will be considered a midwife and will be allowed to practice as a midwife either while employed by a health care provider or independently, will come under the Chamber’s disciplinary authority, will be allowed to consume her rights and will have to oblige the responsibilities stipulated by § 7 of this law and will come under the Chamber’s disciplinary authority.
A midwife does not become a member of the Chamber by the act of registration and does not therefore gain the right to vote and be elected to the Chamber’s bodies and does not have to pay the membership fee. These rights are acquired by being accepted as a member of the Chamber, based on submitting a voluntary application.
About § 4
This provision regulates the right of foreign midwives to practice in the Czech Republic territory. A visiting midwife can practice according to the effective provision no. 96/2004, The Non-medical Healthcare Professionals Act. The only addition is that The Ministry of Health has to inform the Chamber that the midwife is practicing and the Chamber has an obligation to inform the country of origin about potential complaints. If the country of origin does not deal with a complain sufficiently, the Chamber can take an equivalent of a disciplinary measure.
Settled midwives will newly be registered with the Chamber. In the case of taking a disciplinary measure against a settled midwife, the Chamber will inform the country of origin.
Specialist professional competence of midwives, introduced by this law as a condition to practising autonomously without supervision will be assessed according to § 73, paragraph 3, letter a), point 2, of The Non-medical Healthcare Professionals Act no. 96/2004.
About § 5
According to § 2 the Chamber maintains a register of its members, register of midwives and keeps a record of visiting midwives in an extent necessary for its functioning. According to § 5 it provides the information about the register and records of visiting midwives to the Ministry of Health as requested and in a limited extent also to the public. The public can ascertain via remote access whether a midwife is on the register and therefore is allowed to practice and whether she has passed the qualifying exam.
About § 6
The provision regulates striking midwives off the register, which results in losing the right to practise as both employed and independent midwife. When an independent midwife is struck off the register, the Chamber will inform the regional authority which had licensed her practice and/or her employer. The Chamber will collect information about midwife’s employer as part of the records about professional competence according to § 7 paragraph 2, letter e) and § 9 paragraph 1, letter c). The provision also regulates termination of the Chamber membership.
About § 7
This provision regulates the rights and responsibilities of midwives and moreover the rights and responsibilities of the Chamber’s members. Midwives have equal access to further education and supervision organised by the Chamber and to the expert consultancy provided. The main responsibility of the midwife is above all expert midwifery practice in compliance with its ethics and by means which are set by laws and professional regulations.
About § 8
Membership rights and responsibilities entail the right to vote and to be elected into the Chamber’s bodies and the duty to pay membership fees.
About § 9
The provision outlines a list of conditions of the professional competence, which each midwife is obliged to fulfil during the entire time of her registration, based on § 7, paragraph 2, letter. e). These conditions include participating in continuous professional development, participating in expert supervision and keeping a record of professional competence.
About § 10
One of the autonomous competencies that midwives have is conducting a delivery. With regards to the need of deep knowledge and experience necessary for this activity, this law newly requires that midwives pass a qualifying exam in order to be allowed to practice without direct supervision. Midwives can sit this exam after having completed a period of professional practice, providing evidence of professional competence and after having paid a fee for the qualifying exam.
About § 11
The period of professional practice is set as three years long and must be performed within six consecutive years, any practice prior to that is not being considered. The duration of the period of practice can be reduced by the decision of the chairwoman of the Examination Committee. The conditions under which the practice period can be reduced will be set out by an implementing regulation.
About § 12 to § 15
These provisions deal with the bodies of the Chamber. Assembly, Board, President of the Chamber, Disciplinary Committee, Audit Committee and Examination Committee are being established. The supreme body of the Chamber is the Assembly which all members can participate in (but not the midwives who are only registered with the Chamber and are not its members). The Assembly, which will be held at least every two years mainly creates core professional regulations and elects members of all other bodies. The Board is the statutory body, represented by the president of the Chamber.
About § 16
Disciplinary power over all registered midwives is executed by the five members of the Disciplinary Committee. To minimise the possibility of conflict of interests, a member of the Disciplinary Committee cannot be at the same time a member of the Board or the Audit Committee. The Committee is authorised to investigate breaches of the midwives’ responsibilities outlined in law provisions, professional regulations or disciplinary measures, which either the Chamber finds out about or is notified about. If the Chamber concludes that the midwife committed a disciplinary offence, it will take disciplinary action against her. This can be a warning, a corrective measure (for eg. a training or therapeutic counselling), a fine up to three times the monthly salary, a suspended striking-off the register or striking-off the register. An appeal against the Disciplinary Committee’s decision can be filed with the Audit Committee. Its decision can be disputed in court under the provision of the Code of Administrative Justice.
About § 17
The five-member Audit Committee monitors the functioning and management of the Chamber. It handles appeals against other Chamber’s bodies decisions. It is also authorised to suspend decisions of the President, Vice-president or Chamber’s Board should they be in conflict with legislation or Chamber’s regulations.
About § 18
The Examination Committee has nine members. The chairwoman appoints three-member senates responsible for holding qualifying exams for midwives.
About § 19
To assure minimal balance in votes between employed and independent midwives, their right to hear and be heard, a safeguard is being established in form of a mandatory representation. It is ordered that there are always at least two employed and two independent midwives among the elected members of the bodies.
About § 20
This provision concerns the management of the Chamber. It prescribes that the Chamber has to abide by its yearly budget and limits the Chamber’s own economic activities so that they are always in compliance with the purpose of the Chamber.
About § 21
The Chamber is authorised to create professional regulations. These become effective after their announcement in the bulletin published on Chamber’s websites. The professional regulations are monitored by the Ministry of Health. The Ministry of Health is authorisedto challenge a regulation in court if it is believed to be unlawful.
About § 22
In view of the specific situation in midwifery where most persons practising are women, the law proposal does not use the traditional generic masculine. This does not affect the personal scope of the law which applies to midwives – women as well as midwives – men.
About § 23
Subsidiary application of the Administrative Procedure Codeis established. It is admissible to take legal action in Administrative court against the Chamber’s bodies appeal decisions, for example in matters of disciplinary measures applied.
About § 24
In order to protect the recipients of this regulation, fulfil their legitimate expectation, right to privacy and right to run a business, it is proposed as a transitional provision, that the duty to pass a qualifying exam as a condition to working autonomously without direct supervision only applies to midwives who have not yet practised by the date by which this law becomes effective. Midwives who are already practising will be awarded the qualifying exam pass by this law without having to fulfil any further criteria. They will have to register with the Chamber and an appropriate vacatio legis period will be set for this purpose.
The provision furthermore orders the Ministry of Health to organise a founding assembly of the Czech Midwifery Chamber. In view of the special concept of membership, in which not every midwife should become a member, a condition to pay a fee of 1000 CZK is set for the participants of the founding assembly.
About the second part
In connection to the Czech Midwifery Chamber Bill, changes are made in related provisions of the Non-medical Health Professionals Act. Provisions about midwives’ duty to be registered with the Chamber prior to starting to practise and in other justified situations have been added.
Midwifery profession is being transferred to chapter 2, section II. This means that in order to practise without direct supervision there is a new requirement to obtain specialised professional competence first. That means completing a period of professional practice and passing a qualifying exam in line with the Czech Midwifery Chamber Act. The Chamber will set a regulation which will list the competencies a midwife can carry out without direct supervision before gaining specialised professional competence.
The Ministry of Health is allowed to provide information about disciplinary measures against a healthcare practitioner to other EU member states.
About the third part
About § 5
The Healthcare Services Act newly defines midwifery care among types of healthcare (preventative, diagnostic, treatment, etc.). Midwifery care had so far been listed under nursing care, and it was not being taken into consideration that pregnancy and childbirth are specific situations which are unlike other medically treated situations usually physiological and not pathological. As such they need to be treated in a particular way, which is practically manifested in a higher level of autonomy for midwives when looking after pregnant and labouring women (for example conducting physiological births autonomously) and is legally manifested by having a separate definition of this specific type of care.
The definition of this type of care is also necessary for further proposed changes in § 10 of the Healthcare Services Act (see below)
About § 10 and § 11
The proposer of this bill reacts to the homebirth phenomenon. Despite all efforts of obstetricians and other doctors to warn about the associated dangers, a low but non-negligible number of these births is constantly observed. Based on the basic human right of privacy, the judicature of European constitutional courts and courts of Human Rights deduce mother’s right to choose such birth also when weighing the potential limitation of the child’s right to health. Existing Czech law allows homebirth in keeping with this generally accepted legal opinion. Nevertheless provision of health care by midwives in these situation is prohibited, except giving first aid. But it is difficult to distinguish and to prove the difference between giving first aid and providing labour care during offence proceedings. Midwives started to take advantage of this in order to legalise health care provision in homebirth. Therefore there is currently no available tool to effectively regulate them.
The law proposal reacts to this situation by providing a base and support of a professional organisation to hospital midwives for further improvements of their care so that less parents incline to birthing in home environment and choose hospital birth. The proposal also wants to strengthen accountability of independent midwives for the same purpose, so that hospitals are not worried to sign contracts with them. The Chamber will also give a better negotiating power to midwives in promoting other types of birthing facilities, in which they would have more independence, which however comes with more accountability, mainly centres of midwifery care within maternity hospitals. These should satisfy a major part of clients who would otherwise opt for a homebirth.
The object of this point are those extreme cases of childbirth, when parents despite all above said choose a homebirth. This provision allows that the birth can happen with a presence of a midwife, but a midwife who is experienced, has been examined, is guided by clear standards and can be subject to disciplinary action.
The standards of care issued by the Chamber in form of professional regulations should among other things define, when pregnancy and birth are not physiological, or rather when they are high risk (for example a multiple pregnancy in a first time mother). If the situation falls under this category, provision of midwifery care in home environment is prohibited.
Because the implementing provisions which define the minimal technical and material equipment necessary in healthcare institutions do not apply in care provision within patient’s home environment (§ 11 par. 5 and 6 the Healthcare Services Act, provision no. 92/2012 about the requirements for minimal technical and material equipment in healthcare institutions and in community care), it is assigned to the Ministry of Health to issue an implementing regulation about the minimal equipment a midwife has to carry when providing care in the patient’s own social environment.
Requirements for ensuring staffing for midwifery care in patient’s home will be added to the appropriate regulation (appendix 8, provision 99/2012 about requirements for ensuring minimal staffing levels when providing healthcare) by the Ministry of Health, based on the current law provisions.
About § 14 and § 16
Given the new condition to be on the midwifery register, law provisions about appointing a professional deputy and awarding licences for healthcare provision will be changed accordingly.
About the fourth part
The Health Insurance Act is being changed so that it allows midwives to provide healthcare services without prior indication by a doctor. With this change the lawmaker aims to strengthen community care so that midwives can diagnose pregnancy autonomously and so that midwives can provide healthcare without prior indication by a gynaecologist to women who are pregnant, are giving birth or are in postpartum period. These changes are brought to rectify insufficient transposition of the Directive 2005/36/ES of the European Parliament and of the Council, which requires the member states to allow midwives in their territory to diagnose pregnancy autonomously among other things.
Following on from listing midwifery care among types of health care in the Health Services Act, this type of care is being added on the list of types of care covered by health insurance in the Health Insurance Act.
About the fifth part
An appropriate vacatio legis period is set together with deferred effectiveness of the provisions requiring registration in the midwifery register as a condition to practising as a midwife. This will ensure continuity of practice for currently practising midwives who will have enough time to ensure their registration in the Chamber’s midwifery register.