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Anyone want to put in their 2 cents about how DEM Licensing has helped or hurt Traditional Midwifery???
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History of Midwifery and Licensure
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What has "hurt traditional midwifery" is the continuing refusal of some midwives to realize that 1) there is no such thing as "alegal"; 2) unless midwives are either regulated or specifically exempted from their states' medical and nurse practice acts, they *are* subject to criminal prosecution; 3) states do have the legal right to regulate those who provide maternity care services to citizens; and 4) midwives who are not regulated by administrative law are being "regulated" by criminal prosecution.
What has "hurt traditional midwifery" is the inability of families to find midwives without "knowing someone who knows someone" and the inability to afford them when their health insurance won't cover a midwife-attended homebirth.
What has "hurt traditional midwifery" is the myth that regulation is going to somehow transform previously non-interventive midwives into some hyper-medicalized ubermidwives who wield a syringe, an IV bag, and a doppler with equal facility.
And finally, what has -- and continues -- to "hurt traditional midwifery" is the failure to recognize that states that regulate every other professional from embalmers to nail technicians to wrestling officials are somehow going to sit back and watch while midwives continue to attend homebirths without regulations, without standards, and without accountability.
If "traditional midwifery" is to be preserved for our daughters, it will be by recognizing the need to work with the state in order to keep what is best about midwifery while at the same time acknowledging the state's need (and right) to regulate.
Valerie
Illinois
Originally Posted by fourgrtkidos  Anyone want to put in their 2 cents about how DEM Licensing has helped or hurt Traditional Midwifery???
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What has "hurt traditional midwifery" is the inability of families to find midwives without "knowing someone who knows someone" and the inability to afford them when their health insurance won't cover a midwife-attended homebirth.
What has "hurt traditional midwifery" is the myth that regulation is going to somehow transform previously non-interventive midwives into some hyper-medicalized ubermidwives who wield a syringe, an IV bag, and a doppler with equal facility.
And finally, what has -- and continues -- to "hurt traditional midwifery" is the failure to recognize that states that regulate every other professional from embalmers to nail technicians to wrestling officials are somehow going to sit back and watch while midwives continue to attend homebirths without regulations, without standards, and without accountability.
If "traditional midwifery" is to be preserved for our daughters, it will be by recognizing the need to work with the state in order to keep what is best about midwifery while at the same time acknowledging the state's need (and right) to regulate.
Valerie
Illinois
well I have been at this a long time- over20 years- and am also familiar with Gail's imput- she lives in Oregon where the midwives put together their own voulentary standards and testing, before there was licensing ( some mws could easily meet those standards and the gals in very rural areas of the state could not- including get in the number of supervised catches, maintain the amount of peer review and other things).There were also atleast 2 factions when it came to licensing and luckily that there were enough midwives both for and against licensing that they hashed out the law in a good way so it was not manditory- it was also done in the 80's when natural birth was at peak- so everything went fine-for Oregon. you can Compare that to say New Mexico- where most of the midwives are licensed and where they have been able to change the medicade requirements to include LMs but it does not require malpractice insurance-- both are busy midwifery states--Or to a state like Iowa or Indiana where mws are hard to find and are being prosicuted - I have a friend in Iowa right now who's daughter would like to have a home birth-- she called me- no I will not go- they can come here- or maybe find a midwife who covers 100's of miles and who knows if this is a good midwife that they would really want or just someone they have to put up with....
as far as midwifery care do I think that things are different than they were in the 80's yes- is it all changed because of licensing no- clients expectations for example in the 80's I might see one in several hundred women who would want an ultrasound in pregnancy- now almost every single homebirth client expects and wants to have atleast one ultrasound-- GBS must be addressed, and tons of other things, not only have clients but midwifery students are different as well-- midwives as mothers and women along with clients and their expectaions more than outside rules alone have controlled how midwifery is practiced-the emotional background in all of this there is a bigger baseline of fear and this creates more conditionality to the process -- as much as i would like to be soothing, I also do not want to be condesending either- and if there is one thing I have seen is across the board women are more afraid than ever about many many details having to do with pregnancy- knowing more has unleashed a pandora's box of worries on modern women-and traditional midwives may not have enough tools to completely address these problems, unfortunately-
personally I prefer that the practice of women serving women in birth be legal.
as far as midwifery care do I think that things are different than they were in the 80's yes- is it all changed because of licensing no- clients expectations for example in the 80's I might see one in several hundred women who would want an ultrasound in pregnancy- now almost every single homebirth client expects and wants to have atleast one ultrasound-- GBS must be addressed, and tons of other things, not only have clients but midwifery students are different as well-- midwives as mothers and women along with clients and their expectaions more than outside rules alone have controlled how midwifery is practiced-the emotional background in all of this there is a bigger baseline of fear and this creates more conditionality to the process -- as much as i would like to be soothing, I also do not want to be condesending either- and if there is one thing I have seen is across the board women are more afraid than ever about many many details having to do with pregnancy- knowing more has unleashed a pandora's box of worries on modern women-and traditional midwives may not have enough tools to completely address these problems, unfortunately-
personally I prefer that the practice of women serving women in birth be legal.
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You make some excellent points. To me, the bottom line is this: It serves no one's best interests when midwives must defy the law in order to practice midwifery.
Valerie
Illinois
Originally Posted by mwherbs personally I prefer that the practice of women serving women in birth be legal. |
Valerie
Illinois
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I agree. Maybe I do have a different perspective being in Oregon, but I think midwives should absolutely be legal but not be subject to mandatory licensing. We recently had this issue come up in our state (and was short-lived, thankfully) about revisiting the issue of voluntary licensure and the midwives in the state, licensed and unlicensed, both were very outspoken in their strong support of keeping licensing voluntary. I really do feel like Oregon's legislation should be ideal for states in regards to regulating midwives.
Originally Posted by mwherbs personally I prefer that the practice of women serving women in birth be legal. |
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Perhaps, but Oregon (and Utah) are pretty significant exceptions. The voluntary licensure that was acceptable in those states is simply NOT going to work in the vast majority of states. For most midwives the choices are to either accept mandatory regulation or risk criminal prosecution as an unlicensed midwife.
Valerie
Illinois
Originally Posted by Lennon I agree. Maybe I do have a different perspective being in Oregon, but I think midwives should absolutely be legal but not be subject to mandatory licensing. We recently had this issue come up in our state (and was short-lived, thankfully) about revisiting the issue of voluntary licensure and the midwives in the state, licensed and unlicensed, both were very outspoken in their strong support of keeping licensing voluntary. I really do feel like Oregon's legislation should be ideal for states in regards to regulating midwives. |
Valerie
Illinois
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I have to wholheartedly agree - but I also feel that any restrictions from protocols that limits a family's choice is in no one's best interest.
Originally Posted by Valerie To me, the bottom line is this: It serves no one's best interests when midwives must defy the law in order to practice midwifery. Valerie Illinois |
I have to wholheartedly agree - but I also feel that any restrictions from protocols that limits a family's choice is in no one's best interest.
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This is what I am struggling with. If I accept Florida License..... I accept and agree to practice under the law and rule governing the license. This means I "have" to be very intervention and hands on oriented..... if I am going to practice according to the law and rule. I am not sure I am very comfortable with it.
On the other hand I do not want to practice illegally, without a license. My family needs me at home, not in jail.
I wish we would have pushed the national MANA, CPM..... and not caved for state Licensure.
Originally Posted by pamamidwife I have to wholheartedly agree - but I also feel that any restrictions from protocols that limits a family's choice is in no one's best interest. |
On the other hand I do not want to practice illegally, without a license. My family needs me at home, not in jail.
I wish we would have pushed the national MANA, CPM..... and not caved for state Licensure.
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The professionalization of healthcare during the late nineteenth century had far more of an impact on traditional midwifery than licensing ever has. Midwives in urban areas throughout the Northeast and Midwest and in various southern states started being subject to regulation as early as the turn of the 20th century, and the majority of midwives who immigrated to the US from Europe (who made up a large percentage of the midwives practicing outside of the South) were educated in formal schools of midwifery and had been subject to government regulation there.
So the "tradition" of apprenticeship-based midwifery practiced outside of government-sanctioned educational and regulatory systems and handed down to subsequent generations of midwives hasn't been a reality in the US since the early 20th century. As Jennifer Block points out in an excellent new book called, Pushed: The Painful Truth about Childbirth and Modern Maternity Care, very few of the direct-entry midwives who revived the profession in the late '60s and early '70s actually learned their skills from a traditional midwife, since there were virtually none left by that point in US history.
And the reason why any type of direct-entry midwifery was all-but-extinct by the mid-20th century isn't because formal educational requirements, licensing or regulation had eliminated it. The exact opposite is the case-it's because midwives were excluded from the movement towards professionalization, which was what the earliest regulatory programs for them had been intended to achieve and which was based on the standardization, regulation and, eventually, the licensure of healthcare practice.
Allopathic physicians led this movement, and instead of following the European model and including midwives in the effort to professionalize healthcare, they not only excluded them but intentionally developed and passed medical practice acts to establish a monopoly that made all non-allopathic providers, from midwives to homeopaths to bonesetters, illegal.
Practitioners that survived this movement, such as chiropractors and podiatrists, did so by fighting for inclusion in the state-by-state licensure system that emerged as the mechanism for professionalizing healthcare and by passing laws that provided for a legal definition of their profession as distinct from medicine, an exemption from the medical practice act and regulation via licensing boards as opposed to via the criminal courts.
Direct-entry midwifery, traditional or otherwise, has long been shaped, transformed and reconfigured both by state-sanctioned regulation and by sweeping historical changes that were far beyond the ability of midwives to control and that altered the development of and the practices associated with virtually all non-allopathic healthcare traditions in the US. Licensure of healthcare practice is the direct result of those historical changes and, whether we like it or not, it's here to stay. So midwives have the choice to use it as an avenue to protect the legal status of traditional practices (which they've succeeded in doing in many states) or they can continue to be subject to state control via the criminal courts.
Two really good books for any geeks like me who are interested in this history are The Social Transformation of American Medicine by Paul Starr (which looks at how the movement to establish a monopoly for allopathic medicine affected all sorts of traditional practices) and Midwifery and Childbirth in America by Judith Pence Rooks.
Katie Prown
Legislative Chair
Wisconsin Guild of Midwives
So the "tradition" of apprenticeship-based midwifery practiced outside of government-sanctioned educational and regulatory systems and handed down to subsequent generations of midwives hasn't been a reality in the US since the early 20th century. As Jennifer Block points out in an excellent new book called, Pushed: The Painful Truth about Childbirth and Modern Maternity Care, very few of the direct-entry midwives who revived the profession in the late '60s and early '70s actually learned their skills from a traditional midwife, since there were virtually none left by that point in US history.
And the reason why any type of direct-entry midwifery was all-but-extinct by the mid-20th century isn't because formal educational requirements, licensing or regulation had eliminated it. The exact opposite is the case-it's because midwives were excluded from the movement towards professionalization, which was what the earliest regulatory programs for them had been intended to achieve and which was based on the standardization, regulation and, eventually, the licensure of healthcare practice.
Allopathic physicians led this movement, and instead of following the European model and including midwives in the effort to professionalize healthcare, they not only excluded them but intentionally developed and passed medical practice acts to establish a monopoly that made all non-allopathic providers, from midwives to homeopaths to bonesetters, illegal.
Practitioners that survived this movement, such as chiropractors and podiatrists, did so by fighting for inclusion in the state-by-state licensure system that emerged as the mechanism for professionalizing healthcare and by passing laws that provided for a legal definition of their profession as distinct from medicine, an exemption from the medical practice act and regulation via licensing boards as opposed to via the criminal courts.
Direct-entry midwifery, traditional or otherwise, has long been shaped, transformed and reconfigured both by state-sanctioned regulation and by sweeping historical changes that were far beyond the ability of midwives to control and that altered the development of and the practices associated with virtually all non-allopathic healthcare traditions in the US. Licensure of healthcare practice is the direct result of those historical changes and, whether we like it or not, it's here to stay. So midwives have the choice to use it as an avenue to protect the legal status of traditional practices (which they've succeeded in doing in many states) or they can continue to be subject to state control via the criminal courts.
Two really good books for any geeks like me who are interested in this history are The Social Transformation of American Medicine by Paul Starr (which looks at how the movement to establish a monopoly for allopathic medicine affected all sorts of traditional practices) and Midwifery and Childbirth in America by Judith Pence Rooks.
Katie Prown
Legislative Chair
Wisconsin Guild of Midwives
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Because someone jumped on me in another thread, I'll put my qualifiers up front. I'm not an expert, just a MI resident, who is not trying to beat you in a debate but seeking greater understanding.
I live in MI and have described lay midwifery as "alegal". I had to fight with an out-of-state health insurance company to prove DEMs were not illegal. In the early 1900s or 19teens (I don't remember it was 11 years ago I did the research) a Detroit DEM was brought up on charges of practicing medicine without a license. Rather than make a ruling immediately, the judge requested an opinion for the State Attorney General who ruled that the standard scope of midwifery did not constitute the practice of medicine which was the treatment of disease and injury through medicines and surgery. The State Attorney General's written opinions carry the weight of legislative law like MI State Supreme Court rulings, so long as they're not overturned by the federal Supreme Court.
Since MI doesn't have any laws on the books legalizing or prohibiting midwifery, I considered it as alegal as walking my dog on Sundays. Based on my description would you consider MI midwifery "alegal", "legal and unregulated", or something else entirely?
Before anyone corrects me I'll admit MI does have legal accommodations for CNMs BUT they are legalized specifically as nurses with an additional endorsement, not as midwives.
~BV
Originally Posted by Valerie What has "hurt traditional midwifery" is the continuing refusal of some midwives to realize that 1) there is no such thing as "alegal"; 2) unless midwives are either regulated or specifically exempted from their states' medical and nurse practice acts, they *are* subject to criminal prosecution; 3) states do have the legal right to regulate those who provide maternity care services to citizens; and 4) midwives who are not regulated by administrative law are being "regulated" by criminal prosecution. |
I live in MI and have described lay midwifery as "alegal". I had to fight with an out-of-state health insurance company to prove DEMs were not illegal. In the early 1900s or 19teens (I don't remember it was 11 years ago I did the research) a Detroit DEM was brought up on charges of practicing medicine without a license. Rather than make a ruling immediately, the judge requested an opinion for the State Attorney General who ruled that the standard scope of midwifery did not constitute the practice of medicine which was the treatment of disease and injury through medicines and surgery. The State Attorney General's written opinions carry the weight of legislative law like MI State Supreme Court rulings, so long as they're not overturned by the federal Supreme Court.
Since MI doesn't have any laws on the books legalizing or prohibiting midwifery, I considered it as alegal as walking my dog on Sundays. Based on my description would you consider MI midwifery "alegal", "legal and unregulated", or something else entirely?
Before anyone corrects me I'll admit MI does have legal accommodations for CNMs BUT they are legalized specifically as nurses with an additional endorsement, not as midwives.
~BV
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Just my two cents here:
I have read the very well written pamphlet, Witches, Midwives, and Nurses by Barbara Ehrenstein. It describes how the AMA went to every state legislature and outlawed midwifery by requiring licensure.
When I had my first baby in CA and was looking for a home birth attendant, I discovered that CA had laws and tests and requirements for a midwife to be licensed, but that the test had not been proctored since the early 1940s, so any midwives were retired, from out of state, or dems practicing outside of the law. You can verify this in Immaculate Deception, 1973 by Susanne Arms.
The midwives I had were licensed in two other states. The doctor I had had a ND and DC license.
I have read the very well written pamphlet, Witches, Midwives, and Nurses by Barbara Ehrenstein. It describes how the AMA went to every state legislature and outlawed midwifery by requiring licensure.
When I had my first baby in CA and was looking for a home birth attendant, I discovered that CA had laws and tests and requirements for a midwife to be licensed, but that the test had not been proctored since the early 1940s, so any midwives were retired, from out of state, or dems practicing outside of the law. You can verify this in Immaculate Deception, 1973 by Susanne Arms.
The midwives I had were licensed in two other states. The doctor I had had a ND and DC license.
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Okie dokie.
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First, you might want to read the last chapter of From Calling to Courtroom. It was written by Gera Simkins, and contains some very interesting, Michigan-specific information.
Second, "alegal" has no practical meaning. Black's Law Dictionary defines "alegal" as "outside the sphere of the law." But midwives who are subject to prosecution under a state's medical and/or nurse practice acts are hardly "outside the sphere of the law." "Alegal" is a nice word. I used it -- and defended its use -- for years. But it is used by midwives who want to reassure themselves that what they are doing isn't really illegal and that they aren't really in danger of criminal prosecution. It is false security, as has been discovered in many states.
As to your century-old Attorney General opinion, while Michigan AG opinions "are binding on state agencies and state officers...[they are]not precedentially binding on the judiciary." http://http//www.michbar.org/journal...=14&volumeID=4
That is to say, a court could most certainly convict a midwife of practicing medicine or midwifery without a license, in spite of the AG opinion. AG opinions may be persuasive in such cases, but given the age of the opinion combined with changing medical and political attitudes in the past hundred years, it is not likely to be very persuasive.
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Walking your own dog on a Sunday afternoon is hardly in the same category as providing midwifery care to a paying client. You seem to be making the assumption that because there are no specific laws which prohibit either dogwalking or midwifery, that both are exempt from any control by the state. Your analogy is flawed. A midwife provides services to a wide variety of other people, generally for a fee, and performs acts that are generally reserved to the practice of either medicine or nursing. In Michigan, those acts include "the diagnosis, treatment, prevention, cure, or relieving of a human disease, ailment, defect, complaint, or other physical or mental condition, by attendance, advice, device, diagnostic test, or other means, or offering, undertaking, attempting to do, or holding oneself out as able to do, any of these acts. " (from the MI Medical Practice Act). If a midwife performs those acts without either a license to do so, or a specific exemption from the Medical Practice Act, she is subject to criminal prosecution.
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I believe your description is flawed, for the reasons I have mentioned above. But I would describe midwives in Michigan as "unlawful." They are neither regulated by the state, nor exempt from the Michigan Medical/Nurse Practice Acts.
Valerie
Illinois
~BV[/QUOTE]
Originally Posted by bryonyvaughn Because someone jumped on me in another thread, I'll put my qualifiers up front. I'm not an expert, just a MI resident, who is not trying to beat you in a debate but seeking greater understanding. |
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| I live in MI and have described lay midwifery as "alegal". I had to fight with an out-of-state health insurance company to prove DEMs were not illegal. In the early 1900s or 19teens (I don't remember it was 11 years ago I did the research) a Detroit DEM was brought up on charges of practicing medicine without a license. Rather than make a ruling immediately, the judge requested an opinion for the State Attorney General who ruled that the standard scope of midwifery did not constitute the practice of medicine which was the treatment of disease and injury through medicines and surgery. The State Attorney General's written opinions carry the weight of legislative law like MI State Supreme Court rulings, so long as they're not overturned by the federal Supreme Court. |
Second, "alegal" has no practical meaning. Black's Law Dictionary defines "alegal" as "outside the sphere of the law." But midwives who are subject to prosecution under a state's medical and/or nurse practice acts are hardly "outside the sphere of the law." "Alegal" is a nice word. I used it -- and defended its use -- for years. But it is used by midwives who want to reassure themselves that what they are doing isn't really illegal and that they aren't really in danger of criminal prosecution. It is false security, as has been discovered in many states.
As to your century-old Attorney General opinion, while Michigan AG opinions "are binding on state agencies and state officers...[they are]not precedentially binding on the judiciary." http://http//www.michbar.org/journal...=14&volumeID=4
That is to say, a court could most certainly convict a midwife of practicing medicine or midwifery without a license, in spite of the AG opinion. AG opinions may be persuasive in such cases, but given the age of the opinion combined with changing medical and political attitudes in the past hundred years, it is not likely to be very persuasive.
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| Since MI doesn't have any laws on the books legalizing or prohibiting midwifery, I considered it as alegal as walking my dog on Sundays. |
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| Based on my description would you consider MI midwifery "alegal", "legal and unregulated", or something else entirely? |
Valerie
Illinois
~BV[/QUOTE]
get a law passed would be in the best interest of the women of your state-- even if what it looks like is licensing by choice like Oregon or Utah-- so that those who want to be licensed can be and those who don't - don't--- when I read the legal bit you posted if a mw were to attempt to stop a hemorrhage with pit- that could be illegal- what about resuscitation or doing blood work or using dip sticks-- ordering blood work usually has some fed laws attached and exemptions are permitted via state licensing ---
I have info basically a census published in 1932 on the number of midwives still practicing in different states -- 47,000 women were midwives and they only did about 15% of the births in the country- that number does reflect a big decline that started with registering or licensing of midwives starting around 1900-- the intent was never to maintain licensing when they inacted the laws but rather were used as a way to get rid of midwives by making a license unavailable -- so I also understand your concern about licensing being used against midwifery-- on the other hand allowing it to be illegal in any state is just not ok- we are women and even if others do not want to have a home birth we should all have the right to be attended or attend legally if we so choose--
for the longest time I was only for licensing like the one in Oregon- and thought that some how rules and regs would interfere with practice- and what I found was that for the most part choices consumers and mws make have to do with what they are comfortable with and not necessarily what the regs are- I have seen here on MDC a range of what is advised from recommending total hands off before something happens to sue her or put that mw in jail because she did not uphold standard of care .... what is a mw's position in all of this?- I bet that even in states where it is illegal to practice mws have changed their practice styles to match up closer to standard of care because of client feed back and interaction with other mws- as well as education.
I have info basically a census published in 1932 on the number of midwives still practicing in different states -- 47,000 women were midwives and they only did about 15% of the births in the country- that number does reflect a big decline that started with registering or licensing of midwives starting around 1900-- the intent was never to maintain licensing when they inacted the laws but rather were used as a way to get rid of midwives by making a license unavailable -- so I also understand your concern about licensing being used against midwifery-- on the other hand allowing it to be illegal in any state is just not ok- we are women and even if others do not want to have a home birth we should all have the right to be attended or attend legally if we so choose--
for the longest time I was only for licensing like the one in Oregon- and thought that some how rules and regs would interfere with practice- and what I found was that for the most part choices consumers and mws make have to do with what they are comfortable with and not necessarily what the regs are- I have seen here on MDC a range of what is advised from recommending total hands off before something happens to sue her or put that mw in jail because she did not uphold standard of care .... what is a mw's position in all of this?- I bet that even in states where it is illegal to practice mws have changed their practice styles to match up closer to standard of care because of client feed back and interaction with other mws- as well as education.
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I appreciate your thoughtful reply, Valerie, and hope you don't mind my asking a few more questions. What you say is new to me and I'm trying to wrap my brain around it.
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Thanks for the lead. I've never heard of the book and will request it via interlibrary loan once I'm done with finals.
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About ten years ago some special interests tried to rush through an amendment that would have made all nutritional counseling part of the practice of medicine, impacting many wholistic health care providers. Folks rallied and the amendment was soundly defeated.
Back to this "alegal" thing. Let's imagine that state law regarding the practice of medicine explicitly stated the standard realms of nutritional counseling, dentistry, chiropractic care, and midwifery were excluded from regulation under the practice of medicine laws AND there were no other mention of midwifery or nutritional counseling in any other state laws. Would you say those practices were safely alegal, not practicing medicine without a license, or something else entirely?
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Please correct me if I'm wrong. We agree that the AG ruling has been the effective precedent for the last century in MI. Your saying because the AG ruling is so old and birth practices have changed so much, a reasonable judge could easily claim the AG ruling irrelevant and convict a DEM of practicing medicine w/o a license. If I got that right but missed a fine but important point please let me know.
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Is it the case that the MI Medical Practice Act defined the practice of medicine AFTER the AG ruling? If that's the case I can now see the problem. The AG ruling was from a time the scope of medicine was different than today.
That "or other physical or mental condition" is the problem. It's so blasted vague that school teachers, speech pathologists, massage therapist, post-partum doulas, heck, most people in caring professions could get caught up under that phrase. It creeps me out that it could give prosecutors permission to harass folks. I don't know if I feel better that prosecutors are accountable to the people by election or that they might start a witch hunt as a platform to get their names out there for lots of newspaper quotes before reelection.
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I don't have Black's Law Dictionary but M-W defines "unlawful" as illegal. Am I getting you right that you're saying all midwifery practices in MI are subject to prosecution if they are not CNM? If so is it only by the grace of the political climate that DEMs aren't being prosecuted today?
Thanks for your help with this. It might seem I'm being unreasonably picky about my dissection of your post but it is relevant to me. I've studied homeopathy for six years and want to sit for my CCH (private accreditation) testing. As homeopathy is not legislated in MI, I considered it safely "alegal" like lay midwifery. Learning more about the legality of midwifery could well change my stance on folks pushing for homeopathy licensure.
Thanks so much for you input.
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~BV
Valerie
Illinois[/QUOTE]
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Originally Posted by Valerie First, you might want to read the last chapter of From Calling to Courtroom. It was written by Gera Simkins, and contains some very interesting, Michigan-specific information. |
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| Second, "alegal" has no practical meaning. Black's Law Dictionary defines "alegal" as "outside the sphere of the law." But midwives who are subject to prosecution under a state's medical and/or nurse practice acts are hardly "outside the sphere of the law." "Alegal" is a nice word. I used it -- and defended its use -- for years. But it is used by midwives who want to reassure themselves that what they are doing isn't really illegal and that they aren't really in danger of criminal prosecution. It is false security, as has been discovered in many states. |
Back to this "alegal" thing. Let's imagine that state law regarding the practice of medicine explicitly stated the standard realms of nutritional counseling, dentistry, chiropractic care, and midwifery were excluded from regulation under the practice of medicine laws AND there were no other mention of midwifery or nutritional counseling in any other state laws. Would you say those practices were safely alegal, not practicing medicine without a license, or something else entirely?
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| As to your century-old Attorney General opinion, while Michigan AG opinions "are binding on state agencies and state officers...[they are]not precedentially binding on the judiciary." http://http//www.michbar.org/journal...=14&volumeID=4 That is to say, a court could most certainly convict a midwife of practicing medicine or midwifery without a license, in spite of the AG opinion. AG opinions may be persuasive in such cases, but given the age of the opinion combined with changing medical and political attitudes in the past hundred years, it is not likely to be very persuasive. |
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| Walking your own dog on a Sunday afternoon is hardly in the same category as providing midwifery care to a paying client. You seem to be making the assumption that because there are no specific laws which prohibit either dogwalking or midwifery, that both are exempt from any control by the state. Your analogy is flawed. A midwife provides services to a wide variety of other people, generally for a fee, and performs acts that are generally reserved to the practice of either medicine or nursing. In Michigan, those acts include "the diagnosis, treatment, prevention, cure, or relieving of a human disease, ailment, defect, complaint, or other physical or mental condition, by attendance, advice, device, diagnostic test, or other means, or offering, undertaking, attempting to do, or holding oneself out as able to do, any of these acts. " (from the MI Medical Practice Act). If a midwife performs those acts without either a license to do so, or a specific exemption from the Medical Practice Act, she is subject to criminal prosecution. |
That "or other physical or mental condition" is the problem. It's so blasted vague that school teachers, speech pathologists, massage therapist, post-partum doulas, heck, most people in caring professions could get caught up under that phrase. It creeps me out that it could give prosecutors permission to harass folks. I don't know if I feel better that prosecutors are accountable to the people by election or that they might start a witch hunt as a platform to get their names out there for lots of newspaper quotes before reelection.
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| I believe your description is flawed, for the reasons I have mentioned above. But I would describe midwives in Michigan as "unlawful." They are neither regulated by the state, nor exempt from the Michigan Medical/Nurse Practice Acts. |
Thanks for your help with this. It might seem I'm being unreasonably picky about my dissection of your post but it is relevant to me. I've studied homeopathy for six years and want to sit for my CCH (private accreditation) testing. As homeopathy is not legislated in MI, I considered it safely "alegal" like lay midwifery. Learning more about the legality of midwifery could well change my stance on folks pushing for homeopathy licensure.
Thanks so much for you input.
~BV
Valerie
Illinois[/QUOTE]
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I don't mind at all. I certainly don't claim to have all the answers, but I have been involved with the legal/political aspects of midwifery for a pretty long time (almost 28 years) so perhaps together we will find the answers
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It is even easier than that -- simply go to www.fromcallingtocourtroom.net and read it online!
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Good for them!
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The problem is that even though these caregivers aren't specifically prohibited, they are still vulnerable to prosecution if some medical or administrative official has an inclination to do so.
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No, because they would still be subject to charges of practicing nursing without a license, if they were doing things that are reserved to the practice of nursing, which in Michigan includes "systematic application of substantial specialized knowledge and skill, derived from the biological, physical, and behavioral sciences, to the care, treatment, counsel, and health teaching of individuals who are experiencing changes in the normal health processes or who require assistance in the maintenance of health and the prevention or management of illness, injury, or disability. " Even if we add an exemption from the Nurse Practice Act to your hypo, midwives (and others) are still not "alegal." They would be specifically addressed by the law -- an exemption from the Medical/Nurse Practice Acts would have been provided for them. If midwives are explicitly addressed by the law, they are not operating "outside the sphere of the law."
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I am not sure that we do agree on that. According to Michigan law, an AG opinion is binding on state agencies and officials, but *not* on the judiciary, although it may be persuasive. So I am not quite sure what you mean by "effective precedent." What Michigan law essentially says is that a judge may consider the AG opinion, but is not required to comply with it. What I suggested is that an AG opinion regarding midwifery that is 100 years old is not likely to be terribly persuasive, particularly in view of changing medical and social standards in Michigan and throughout the U.S.
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I think that is a good point. Though I don't have time to research the Michigan Medical Practice Act to any depth at the moment, it is likely that it -- like similar acts in other states -- has changed and evolved over time.
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Oh, I absolutely agree with you! It is terribly overly broad. But because it is, and because it can be applied in just the manner you mentioned, it is essential that midwifery be defined and regulated separately from the Medical Practice Act, so that midwives can be protected from criminal prosecution for simply doing what midwives do.
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I would agree with both of those points.
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You are not being "unreasonably picky" at all! You are wise to consider the legal implications of midwifery (and homeopathy) practice!
Valerie
Illinois
~BV
Valerie
Illinois[/QUOTE][/QUOTE]
Originally Posted by bryonyvaughn I appreciate your thoughtful reply, Valerie, and hope you don't mind my asking a few more questions. What you say is new to me and I'm trying to wrap my brain around it. |
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| Thanks for the lead. I've never heard of the book and will request it via interlibrary loan once I'm done with finals. |
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| About ten years ago some special interests tried to rush through an amendment that would have made all nutritional counseling part of the practice of medicine, impacting many wholistic health care providers. Folks rallied and the amendment was soundly defeated. |
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| Back to this "alegal" thing. Let's imagine that state law regarding the practice of medicine explicitly stated the standard realms of nutritional counseling, dentistry, chiropractic care, and midwifery were excluded from regulation under the practice of medicine laws AND there were no other mention of midwifery or nutritional counseling in any other state laws. Would you say those practices were safely alegal, not practicing medicine without a license, or something else entirely? |
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| Please correct me if I'm wrong. We agree that the AG ruling has been the effective precedent for the last century in MI. Your saying because the AG ruling is so old and birth practices have changed so much, a reasonable judge could easily claim the AG ruling irrelevant and convict a DEM of practicing medicine w/o a license. If I got that right but missed a fine but important point please let me know. |
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| Is it the case that the MI Medical Practice Act defined the practice of medicine AFTER the AG ruling? If that's the case I can now see the problem. The AG ruling was from a time the scope of medicine was different than today. |
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| That "or other physical or mental condition" is the problem. It's so blasted vague that school teachers, speech pathologists, massage therapist, post-partum doulas, heck, most people in caring professions could get caught up under that phrase. It creeps me out that it could give prosecutors permission to harass folks. I don't know if I feel better that prosecutors are accountable to the people by election or that they might start a witch hunt as a platform to get their names out there for lots of newspaper quotes before reelection.
|
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| I don't have Black's Law Dictionary but M-W defines "unlawful" as illegal. Am I getting you right that you're saying all midwifery practices in MI are subject to prosecution if they are not CNM? If so is it only by the grace of the political climate that DEMs aren't being prosecuted today? |
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| Thanks for your help with this. It might seem I'm being unreasonably picky about my dissection of your post but it is relevant to me. I've studied homeopathy for six years and want to sit for my CCH (private accreditation) testing. As homeopathy is not legislated in MI, I considered it safely "alegal" like lay midwifery. Learning more about the legality of midwifery could well change my stance on folks pushing for homeopathy licensure. Thanks so much for you input.
|
Valerie
Illinois
~BV
Valerie
Illinois[/QUOTE][/QUOTE]
Joined
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118 Posts
Just to answer a few of your questions--yes, the problem with the AG's opinion is that it was issued prior to revisions in the current MPA and to the addition of other statutes in MI that specifically refer to the provision of maternity care.
For example, the Municipal Health Facilities Corporations Act, i.e. the statutes governing the licensing and regulation of hospitals (Act 232 of 1987), in section 331.1103 defines a "direct provider of health care" as someone "whose primary current activity is the provision of health services to individuals." It then goes on to define "health services" as the "diagnosis and medical and surgical treatment by direct providers of health care of persons suffering from illness, injury, and disability, including persons suffering from tuberculosis and other contagious and infectious diseases, and persons requiring maternity care."
The definition of "health services" continues with references to dozens of other types of healthcare providers who are licensed in the state of Michigan. However, the only people licensed in Michigan to provide maternity care are physicians and CNMs. So according to Michigan law, you're acting as a provider of health services that you don't have a license to provide, which is required by the MPA.
The other problem with the AG's opinion is that it was issued well before the establishment of a very large body of case law rulings determining that, in the absence of a statutory definition of DEM and statutory exemption from the medical/nursing practice acts, midwives are practicing medicine and/or nursing without a license. The most recent ruling, from the IL Supreme Court, is the broadest one to date and is binding on future courts in that district that consider the same issue (Valerie can explain more about how this works, but it's not good for midwives). Also, the US Supreme Court declined to take up the ruling, meaning that it saw no reason to review and possibly overturn it.
And then there's the biggest issue facing midwives in unlicensed states, which is that the only avenue for determining if a midwife provided negligent care is the criminal court system. So if you have a death or injury happen on your watch, not only are you subject to charges of practicing medicine without a license, but manslaughter, reckless endangerment and the possession/use of a controlled substance (i.e. Pit). Also, all midwives in unlicensed states that carry Pit and other prescription medications for the treatment of PPH are violating not just their state laws on possession/use but federal laws as well.
Putting it all together, I think it's safe to say that midwifery is not legal in any state where licensure is unavailable. And you're very right in pointing out that what it all comes down to is how tolerant the climate in your state happens to be at a given point in time. As we're seeing in state after state, though, the climate can turn from tolerant to hostile overnight and if, as you say, you throw a politically ambitious prosecutor into the mix, then all bets are off.
Katie Prown
Legislative Chair
Wisconsin Guild of Midwives
For example, the Municipal Health Facilities Corporations Act, i.e. the statutes governing the licensing and regulation of hospitals (Act 232 of 1987), in section 331.1103 defines a "direct provider of health care" as someone "whose primary current activity is the provision of health services to individuals." It then goes on to define "health services" as the "diagnosis and medical and surgical treatment by direct providers of health care of persons suffering from illness, injury, and disability, including persons suffering from tuberculosis and other contagious and infectious diseases, and persons requiring maternity care."
The definition of "health services" continues with references to dozens of other types of healthcare providers who are licensed in the state of Michigan. However, the only people licensed in Michigan to provide maternity care are physicians and CNMs. So according to Michigan law, you're acting as a provider of health services that you don't have a license to provide, which is required by the MPA.
The other problem with the AG's opinion is that it was issued well before the establishment of a very large body of case law rulings determining that, in the absence of a statutory definition of DEM and statutory exemption from the medical/nursing practice acts, midwives are practicing medicine and/or nursing without a license. The most recent ruling, from the IL Supreme Court, is the broadest one to date and is binding on future courts in that district that consider the same issue (Valerie can explain more about how this works, but it's not good for midwives). Also, the US Supreme Court declined to take up the ruling, meaning that it saw no reason to review and possibly overturn it.
And then there's the biggest issue facing midwives in unlicensed states, which is that the only avenue for determining if a midwife provided negligent care is the criminal court system. So if you have a death or injury happen on your watch, not only are you subject to charges of practicing medicine without a license, but manslaughter, reckless endangerment and the possession/use of a controlled substance (i.e. Pit). Also, all midwives in unlicensed states that carry Pit and other prescription medications for the treatment of PPH are violating not just their state laws on possession/use but federal laws as well.
Putting it all together, I think it's safe to say that midwifery is not legal in any state where licensure is unavailable. And you're very right in pointing out that what it all comes down to is how tolerant the climate in your state happens to be at a given point in time. As we're seeing in state after state, though, the climate can turn from tolerant to hostile overnight and if, as you say, you throw a politically ambitious prosecutor into the mix, then all bets are off.
Katie Prown
Legislative Chair
Wisconsin Guild of Midwives
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Katie is referring to Cryns, a 2002 decision from the Illinois Supreme Court. The court determined that the midwife was practicing nursing without a license, because she was performing actions that were reserved to the practice of nursing, specifically assessing the "heath needs" of the mother and baby. While that decision is binding only on IL courts, it can certainly be used as persuasive precedent in other jurisdictions.
As Kate mentioned, the U.S. Supreme Court denied certiorari, allowing the IL Court decision to stand as law.
Valerie
Illinois
Originally Posted by [email protected] The other problem with the AG's opinion is that it was issued well before the establishment of a very large body of case law rulings determining that, in the absence of a statutory definition of DEM and statutory exemption from the medical/nursing practice acts, midwives are practicing medicine and/or nursing without a license. The most recent ruling, from the IL Supreme Court, is the broadest one to date and is binding on future courts in that district that consider the same issue (Valerie can explain more about how this works, but it's not good for midwives). Also, the US Supreme Court declined to take up the ruling, meaning that it saw no reason to review and possibly overturn it. |
As Kate mentioned, the U.S. Supreme Court denied certiorari, allowing the IL Court decision to stand as law.
Valerie
Illinois
Joined
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847 Posts
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Thank you so much for your explanation, Katie. It helps me a lot. I always thought the homeopaths pushing for regulation were a bunch of busy bodies trying push out long existing competition and insecure folks seeking public validation for their non-mainstream healing modality. (Partly of the blame is on them for not explaining the problem nearly as well as you and Valerie.) Now I see the need for legal protection through homeopathic regulation or revision of the MPA.
Thank you both once again for your patience with me on my rabbit trail.
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~BV
Originally Posted by [email protected] Just to answer a few of your questions--yes, the problem with the AG's opinion is that it was issued prior to revisions in the current MPA and to the addition of other statutes in MI that specifically refer to the provision of maternity care. <cutting lots of helpful information> Katie Prown Legislative Chair Wisconsin Guild of Midwives |
Thank you both once again for your patience with me on my rabbit trail.
~BV
Joined
·
118 Posts
What happened to homeopathy as a result of the passage of broad medical practice acts is an interesting story--they were actually one of the main practitioners who were targeted by the passage of medical practice acts and licensing laws requiring providers to be allopathic physicians or nurses. At the turn of the 20th century, there were far more practicing homeopaths and schools of homeopathy than their were physicians and medical schools. But that all came to a screeching halt once the MPAs and licensure laws in every state made them illegal.
While I have heard of a handful of other "alternative" providers being prosecuted for practicing medicine without a license, they haven't been targeted in anywhere near the same numbers as midwives have been. I think the reason for this is because birth is never 100% risk free and many midwives will preside over a loss at some point in their career, unpreventable or not. That's not the case for other "alternative" providers, very few of whom will have a client die in their care.
Also, the powers-that-be often think of homeopathy or naturopathy as modalities that are so ineffective as to be virtually harmless. Midwifery, on the other hand, is widely viewed by the medical community as a form of substandard care that risks the lives of mothers and babies. And even physicians or legislators who consider midwifery to be a safe alternative nonetheless are aware that midwives do hold peoples' lives in their hands any time a mother or baby experiences a complication. I think those are the reasons why midwives are so often the focus of both prosecution and of regulatory efforts, while other "alternative" providers tend to be left alone.
Katie Prown
Legislative Chair
Wisconsin Guild of Midwives
While I have heard of a handful of other "alternative" providers being prosecuted for practicing medicine without a license, they haven't been targeted in anywhere near the same numbers as midwives have been. I think the reason for this is because birth is never 100% risk free and many midwives will preside over a loss at some point in their career, unpreventable or not. That's not the case for other "alternative" providers, very few of whom will have a client die in their care.
Also, the powers-that-be often think of homeopathy or naturopathy as modalities that are so ineffective as to be virtually harmless. Midwifery, on the other hand, is widely viewed by the medical community as a form of substandard care that risks the lives of mothers and babies. And even physicians or legislators who consider midwifery to be a safe alternative nonetheless are aware that midwives do hold peoples' lives in their hands any time a mother or baby experiences a complication. I think those are the reasons why midwives are so often the focus of both prosecution and of regulatory efforts, while other "alternative" providers tend to be left alone.
Katie Prown
Legislative Chair
Wisconsin Guild of Midwives
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