Balancing public health and private rights - birth partners
This article was co-authored by Jason Connor, Litigation Assistant, Cambridge office.
Over the past 11 months individual personal rights have been balanced against the need to protect public health. Individual rights to see extended family, to move unrestricted, to visit a family member in a care home have all been curtailed with the aim of reducing the spread of COVID-19. Difficult decisions have been taken within Hospital Trusts with the natural desire of families to support their loved ones at the end of their life, during surgery, during difficult treatment discussions/decisions to be balanced with the requirement to protect other patients, staff and the wider community from possible infection.
The pandemic has impacted on all services within the health domain including maternity. Remote appointments, restricted access during scans and hospital appointments and limitations on support during the early stages of labour have all been a necessity. For the majority of women however having the support of their birth partner at delivery would be a crucial and essential part of their birth plan. For the birth partner, being excluded from the arrival of the child could be extremely distressing.
The role of a birth partner is to provide a birthing mother with continuous one-to-one mental and physical support with the aim of allowing a smooth, more straightforward birth to take place. Not every delivery however will be smooth and straightforward and sometimes difficult decisions have to be taken.
There is an unequivocal importance attached to having a birth partner attend the birth of a child, an importance that is recognised throughout NHS Protocol guidance. However, given the current position with COVID-19, it is unsurprising that restrictions on these partners are required to ensure infection risk is mitigated and in turn, the health of birthing women, the children themselves, partners and the maternity staff are preserved.
Current NHS Protocol on pregnancy and coronavirus
Current Royal College of Obstetricians and Gynaecologists and NHS guidance regarding support partners and COVID-19 testing is transparent: women and their support partners are required to be tested and a birth partner will be able to attend the birth of the child contingent upon them testing negative and adhering to infection control measures.
A birth partner will not be permitted to attend the birth if they are symptomatic; provide a positive COVID-19 test result or have been in contact with an infected individual. In these circumstances, the partner will be required to self-isolate in accordance with The Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020 and the birthing woman will be tasked with selecting an alternative support person who does not fall into the same self-isolating criterion. A COVID-19 positive birthing woman can leave home to seek medical assistance but no exemption exists for her birthing partner.
The only exception to this is if a symptomatic partner is awaiting test results. In this circumstance, a birthing woman is not to be refused a birth partner’s support, but there may be limits on how long the partner can stay after the birth.
Impeding Article 8 of the European Convention on Human Rights?
These guidance may be clearly defined but it is argued this is incompatible with Article 8 of the European Convention on Human rights which provides a right to respect for one’s “private and family life, his home and his correspondence”.
Delivering a new child into a family it is argued squarely falls to be protected by Article 8, but is this right breached if a birthing woman cannot freely choose the circumstances in which they give birth by having their birth partner with them? In the current times should an exception for birth partners be inserted into the Coronavirus Regulations? If so, what other exceptions could be argued.
The overriding reasoning for excluding birth partners who test positive for COVID-19 is to protect the health of all those in the Maternity Department including other women and babies and the supporting medical staff. The protection of public health and individuals’ human rights do not always coincide which is why Article 8 rights are qualified and interference by the state is permitted. In current circumstances eliminating a portion of individuals rights may be collectively required in order to avoid further damage to public health. Where interference is proportionate this is lawful and legitimate.
Healthcare practitioners are tasked with safeguarding the public from the spread of COVID-19 as well as the mental and physical wellbeing of birthing mothers.
To ensure this, it is imperative during ante-natal appointments, the midwifery team remain clear and candid on the protocols in place, the reasoning, and the mother’s options regarding support persons. Birthing mothers must be made aware of the importance of having a ‘substitute’ birth partner in the case that their primary chosen partner is subjected to COVID-19 exposure and/or self-isolation steps that can be taken.
A potential circumstance which may need reviewing is if there are no alternative support persons other than their selected, COVID-19 positive partner. In this unfortunate circumstance, the possibility of having the birth partner attend may well need to be explored. All hospitals have differences in capacity and facilities available to them, thus whether this can be facilitated will depend on several of these factors, but what is paramount should always be ensuring the possibility of spreading the virus is not substantially increased. In the event that this cannot be ensured, it should be appropriate for the birth partner to be informed they cannot stay.