When the Midwifery Council receives a notification about you, it decides which of three routes under the Health Practitioners Competence Assurance Act 2003 (the HPCA Act) the concern belongs on: competence, health or conduct. It writes to you with the concern, asks for your written response by a date, and then decides whether to close the matter, order a competence review, refer the matter to its health process, or appoint a Professional Conduct Committee. While a matter is open it can suspend your practising certificate or place conditions on it. Call NZCOM or your indemnity insurer the same day, obtain the records, do not alter them, do not contact the woman or whānau without advice, and reply before the date with a response written against the record and the Code of Conduct that shows what you have done since.
Where a notification comes from
A notification can come from a woman or her whānau, a colleague, an obstetrician, a maternity unit, a court or another agency. Two are mandatory under the HPCA Act. An employer must notify the Council when a midwife resigns or is dismissed for reasons relating to competence (section 34), and a practitioner or employer who believes a midwife may be unable to perform the functions required for practice because of a mental or physical condition must notify the Registrar (section 45). A complaint to the Health and Disability Commissioner reaches the Council when the Commissioner refers it.
The process is the same whether you are a Lead Maternity Carer or employed by a maternity unit; what differs is who holds the records and whether an employment process runs alongside. The Council's letter states the concern, the route, what is enclosed, what it wants from you and the date. Write the concern out in your own words; that is the sentence your response has to answer.
Complaints after a birth
A concern about a midwife can follow a poor outcome for a woman or pēpi: a delayed consultation or referral, a reading not acted on, a decision about place of birth, a transfer, or communication with whānau during and after the birth. The Health and Disability Commissioner assesses a complaint of that kind under the Code of Health and Disability Services Consumers' Rights, can ask you for a response and the record, and can obtain expert midwifery advice. Where the complaint raises a question about competence or conduct the Commissioner notifies the Council, which decides its own route. A coronial inquiry or an ACC treatment injury claim can run at the same time. The guide to how an HDC complaint reaches your Council covers that path, and the guide to what an HDC breach finding means covers what follows a finding.
Where more than one process is open, the responses have to be consistent with each other and with the record, so one adviser reads all of them. A poor outcome is not of itself a departure from the standard; the Council measures what you observed, decided, consulted on and recorded against the information you had at the time.
The three routes
Competence. If the concern is that your practice may not meet the Standards of Competence, the Council can order a competence review under section 36 of the HPCA Act. Reviewers look at records, interview you and colleagues, can observe your practice and report to the Council. After it, the Council can find that the standards are met, set a programme with a supervisor and a timeframe, or place conditions on your practising certificate. The guide to what a competence review involves covers the review and how to prepare.
Health. If the concern is that a mental or physical condition may affect your ability to practise, the Council's health process applies: an examination can be required, undertakings accepted and conditions recommended, separately from conduct. The guide to the health process under the HPCA Act explains it.
Conduct. If the concern is about behaviour, the Council can appoint a Professional Conduct Committee under Part 4 of the Act, which investigates, gives you its proposed findings to answer, and recommends an outcome or lays a charge before the Health Practitioners Disciplinary Tribunal. The guide to how a Professional Conduct Committee process runs covers it.
What the Council measures you against
The Council assesses conduct against its Code of Conduct and competence against the Standards of Competence for midwives. The Code covers partnership with the woman and whānau, informed choice and consent, cultural safety and Te Tiriti o Waitangi, privacy and confidentiality, professional boundaries with a woman, her whānau or a colleague, honesty, and work with colleagues and other services. The Standards cover assessment, planning, care through pregnancy, labour, birth and the weeks after, consultation and referral, and professional responsibility. The Referral Guidelines for consultation with obstetric and related services are read with them where a concern is about a consultation or a transfer. A letter, a report or a charge names the part that applies; answer in the same terms.
What happens, step by step
- The letter arrives. The Council sends you the concern, the material and a date. Call NZCOM or your indemnity insurer that day and secure the records: your own if you are an LMC, the unit's by written request if you are employed.
- You respond in writing. Facts from the record with the times of each observation, consultation and referral, your reasoning at the time, what fell short, what you have done since, and what you have understood. The guide to how to write a response to a Council notification gives the structure.
- The Council decides the route. On your response, the records and any further enquiries it decides whether to close the matter, write to you with advice, order a competence review, refer the matter to its health process or appoint a Professional Conduct Committee.
- The review or investigation runs. Reviewers report to the Council. A Professional Conduct Committee gathers documents, can interview you and witnesses, and gives you its proposed findings before it decides.
- You are heard before any order. Before the Council sets a programme, imposes conditions, or makes an interim order, it tells you what it proposes and lets you respond in writing or in person.
- The outcome is decided and reviewed. The Council records its decision, tells you what appears on the register, and sets when conditions or a programme will be reviewed. A charge laid by a Committee goes to the Tribunal.
Interim suspension and conditions
While a Professional Conduct Committee investigation is open, section 69 of the HPCA Act lets the Council suspend your practising certificate or place conditions on it if it is satisfied that is needed to protect the public, and it can make an interim order while a competence or health matter is open. You are heard first. A midwife who has arranged a second midwife at every labour and birth, and shown that in writing, gives the Council a reason to choose conditions over suspension. The guide to interim suspension and conditions on practice covers the risk test and how an order is lifted.
What you can do now
- Get advice the same day. NZCOM, or your indemnity insurer. Tell them the route, the date, and whether the HDC, ACC or a coroner is also involved.
- Get the records and keep them as they are. The maternity record, the partogram, consultation and referral records, messages, and any guideline you were working under.
- Write the response against the record and the Standards. Times, observations, decisions and consultations in order, with page references; reasoning at the time; what fell short; what you have done since; what you have understood.
- Start remediation before you reply. Supervision, a review of your consultation and referral decisions with a senior colleague, and courses completed with dated certificates. Completed steps are evidence; intended steps are promises.
The outcomes
At the first stage the Council can take no further action, write to you with advice, or send the matter down one of the three routes. After a competence review it can find that the Standards are met, set a programme, or place conditions on your practising certificate. On the health route it can accept undertakings or impose conditions. A Professional Conduct Committee can recommend no further action, counselling, a competence review or conditions, or lay a charge before the Health Practitioners Disciplinary Tribunal. The Tribunal can cancel or suspend registration (suspension for up to three years), impose conditions, censure, fine and award costs, and its decisions are published; the guide to a Health Practitioners Disciplinary Tribunal hearing describes what it weighs. Conditions can appear on the public register.
Where remediation fits
The part of a Council matter you control is what you have done since the concern was raised, and courses completed before your response goes, with dated certificates attached, are evidence of it. Ethics for Midwives and Professionalism for Midwives are written against the Midwifery Council's Code of Conduct and Standards of Competence, so a certificate from either answers a concern framed in the Council's terms. Dealing with a Complaint or Investigation covers how to engage with the Council's process and an HDC complaint together, and Remediation for Fitness to Practise covers how to build the plan the Council reads.
Each course is NZ$200, takes 2 CPD hours, is self-paced with immediate access, and ends with a dated certificate issued by Healthcare Ethics Courses that you can submit to the Council or put in your remediation plan. The remediation courses for midwives facing a Midwifery Council investigation are on one page, and the Council and Board investigation process explained shows where each course sits. The guide to showing insight and building a remediation plan explains how to present the certificates, and the guide to what happens after a notification to any Council or Board gives the whole HPCA Act process.
Sources and further reading
- Midwifery Council: the Code of Conduct, the Standards of Competence, and the Council's pages on concerns, competence and health.
- Health Practitioners Competence Assurance Act 2003: sections 34, 36, 45 and 69 and Part 4 on Professional Conduct Committees and the Tribunal.
- Health and Disability Commissioner: the Code of Health and Disability Services Consumers' Rights and how a complaint about maternity care is assessed.
- Health Practitioners Disciplinary Tribunal: published decisions involving midwives and the weight given to insight and remediation.
Frequently asked questions
A complaint about a birth has gone to the HDC. Will the Midwifery Council also act?
It can. The Health and Disability Commissioner assesses the complaint under the Code of Health and Disability Services Consumers' Rights and can ask you for a response and obtain expert midwifery advice. The Commissioner notifies the Council of a complaint that raises a question about competence or conduct, and the Council can then decide on its own route, which can include a competence review. A coronial inquiry or an ACC treatment injury claim can run alongside. NZCOM or your indemnity insurer will help you keep the responses consistent.
Does it matter whether I am an LMC or employed?
The Council's process is the same for both, measured against the same Code of Conduct and Standards of Competence. What differs is who holds the records and who else is involved. An LMC midwife holds the woman's record and arranges her own supervision; an employed midwife's records are held by the maternity unit, and the employer can run its own process and must notify the Council if the midwife resigns or is dismissed for reasons relating to competence. Advice before you write to anyone applies to both.
Can the Midwifery Council suspend me before it decides anything?
Yes. While a Professional Conduct Committee investigation is open, section 69 of the HPCA Act lets the Council suspend your practising certificate or place conditions on it if it is satisfied that is needed to protect the public, and it can make an interim order while a competence or health matter is open. You are entitled to be heard first. A midwife who has already arranged supervision for the part of practice concerned and shown that in writing gives the Council a reason to prefer conditions.
What does the Midwifery Council expect in my written response?
An account of the facts from the record with page references, including the times of observations, consultations and referrals, your reasoning at the time against the Referral Guidelines and the Standards of Competence, a plain acknowledgement of anything that fell short, what you have done since with evidence, and what you have understood, written in the terms of the Code of Conduct. A level tone, respect for the woman and whānau whatever the complaint says, and nothing your adviser has not read.
Should I write to the woman or whānau after a notification?
Not without advice. A conversation or letter after a poor outcome can be the right thing and can be read by the Council as insight, and open disclosure is expected under the Code of Rights. The wording, the timing and whether it happens at all while a process is open are questions for NZCOM or your indemnity insurer, because a letter written without advice can read as an attempt to influence a complainant. Ask before you write, and keep a copy of anything you send.