Nurse-Midwifery-Licensure or Certification

By Mary Crawford, R.N., C.N.M., M.S.

Miss Crawford is currently serving as Chairman of the ACNM Committee on legislation.

The increase in opportunity to practice nurse-midwifery, which has occumed over the past few years, has resulted in an increased professional interest in licensure for nurse-midwives. This in- terest appears to have its roots in two different concerns. One is the concern for protecting the public against the incompetent practitioner. This is a- legitimate purpose of licensure. The other concern. however, seems to be centered around a desire on the part of the nurse-midwife for protection against possible legal action for practicing medicine without a license. This may be a legitimate fear, but it has not been recognized as a legitimate reason for seeking licensure laws.

Kinney' outlines the purposes of professional licensure as fol- lows: (a.) to protect the public from incompetence; and (b.) to protect the professional membership from competition with the unqualified. There are already signs that the occasional hospital administrator or the occasional physician in charge of an obstetric department may be entertaining the idea of setting up a course in nurse-midwifery mainly because he is plagued by a shortage of maternity nurses. Unless such programs are required to meet adequate standards of education we may well be faced with in- competent and unqualified practitioners.

The American College of Nurse-Midwifery defines the nurse- midwife as

". . . a registered professional nurse who by virtue of her added knowledge and skill gained through an organ- ized program of study and clinical experience, recognized by the American College of Nurse-Midwifery, has ex- tended the limits, (legal limits where they obtain) of her practice into the area of management of care of mothers and babies throughout the maternity cycle so long as progress meets criteria accepted as normal."'

The Division on Maternal and Child Health Nursing Practice

18

of the American Nurses’ Association issued the following state- ment to the Executive Secretaries of the State Boards of Nursing on August 11,1967:

“In our judgment it would appear that the legal defi- nitions of the practice of professional nursing could be interpreted to encompass the practice of nurse-midwifery by duly qualified individuals.

“Seven of the fifty medical practice acts examined make specific reference to the practice of obstetrics and/or midwifery as being within the legal definition of medical practice. The seven states having this language in the medxal practice acts are Colorado, Louisiana, Mississippi, Missouri, Nebraska, Nevada. and Ohio.

“Consideration should be given to the possibility of interpreting the practice of nurse-midwifery, under med- ical supervision, as being an appropriate delegation of responsibility by the physician to qualified nurse-mid- wives. We have many precedents where the medical profession has found it acceptable to prescribe and dele- gate to others functions of increasing responsibility in- volving a substantial degree of judgment and skill that were heretofore termed ‘medical pra~tice’.”~

As long as nurse-midwives and nurses maintain their present stand that midwifery is an extension of nursing, we have limited the scope of the problem to a considerable extent. Compulsory licensure laws for nurses already exist in 34 states of the United States. These laws protect the public against incompetent nurses. These laws also provide some guarantee that nurses have been exposed to enough education to enable them to recognize the dangers of practicing midwifery without adequate preparation. The laws do not provide any guarantee that the nurse will be capable of judging what is adequate preparation for the practice of midwifery. This is the responsibility of the profession. It can be accomplished through licensure or through certification.

According to Kinney, the key features of professional licensure is the role of the organized profession. The profession is made responsible for establishing and maintaining standards for p rep aration. The profession shares with the state in administering standards for admission. Characteristic features of professional licensure, cited by Kinney, include: (a) placing on the college staff the responsibility for development of adequate programs of

19

preparatioe (b) systematie appraisal and accrediting of pro- grams by an agency of the profession; and (c) screening of candidates for admission and enforcement of standards for prac- tice by a licensure board of professional personnel appointed by the state.

Separate licensure for nurse-midwives would require new laws in some 48 states. Only two states have such laws at the present time. This is not only a time-consuming job but one which may well be resisted in many states. As Nathan Hershey points out “it would seem unreasonable to license the categories of ‘super nurse’ as each category is accepted in the medical care context. There is enough trouble with the definitions of medical practice and nursing practice already. We should not look for the oppor- tunity to create more compartmentalized realms of practice by statute.’’ State boards of registration may well share this point of view. No state has, as yet, passed separate licensure laws for nurse anesthetists. A few states have exceptions for nurse ane- sthetists in their medical practice acts. Efforts to secure licensure for nurse-midwives will also draw attention to nurse-midwifery practice. General practitioners may see themselves being dis- placed in maternity care. If they do, we can expect strong re- sistance to passage of laws providing for licensure of nurse-mid- wives. The result could be that laws will be passed which prohibits the practice of nurse-midwifery in certain states.

These arguments should not deter our efforts to protect the public against incompetence if we are convinced that licensure is the best means of accomplishing such protection. Licensure, however, does not always guarantee competence. Derbyshire? points out that state boards of medical registration are usually made up of political appointees of either the party or the medical variety. They have seldom been selected with the primary pur- pose being to find experts in the various subjects of the examina- tion. These boards also must perform disciplinary and adminis- trative functions. The result is licensing by 54 different jurisdic- tions with little uniformity in quality, content, or even subject matter. Many of these boards pass all local graduates year after year.

Even if we could depend on a conscientious effort to appoint experts to state boards of registration, the nurse-midwifery pro- fession is not large enough, in this country, to guarantee that nurse-midwives will be available to serve on licensure boards.

20

Standards would have to be administered and disciplinary action decided by those less familiar with nurse-midwifery. Examina- tions may even be developed by individuals who are not prepared in nurse-midwifery.

Finally, licensure regulations tend to limit the amount of flex- ibility needed to keep up with new ideas in a field. Legislation rarely keeps pace with actual practice. Fifty different laws must be changed when the need arises. This problem has been well demonstrated by past regulations for licensure in nursing. HOW many years did it take us to get the requirements for a certain number of scrubs in the delivery room removed from the nursing regulations in all states? Practical nurses today cannot give in- jections in many states because this is defined as nursing in the nursing practice acts.

The other means by which the public can be protected from the incompetent nurse-midwife is through a certification pro- cedure developed by the American College of Nurse-Midwifery. Long before licensure laws could be passed in all 50 states, it should be possible to build a program of certification which is accepted by the health professions and the public as a guarantee of quality in the practice of nurse-midwifery. Specialists in the different professions have traditionally been recognized through certification rather than through licensure. There is only one license to practice medicine. The specialist is recognized through certification by a specific specialty group such as the American College of Obstetricians and Gynecologists, the American Acad- emy of Pediatrics, and many others. Concentration of effort is needed if the American College of Nurse-Midwifery is going to develop an effective program of accreditation and an effective program of certification. It is possible that such programs could be developed jointly or in cooperation with the American Col- lege of Obstetricians and Gynecologists and/or the American Nurses’ Association. If so, the protection offered by such pro- grams should be available in a much shorter length of time.

Nathan Hershey points out that “we should not lose sight of the fact that the ‘super nurse’ now functions, and as a practical matter may have to function in the future in a legal context which is not clear.” Eighteen states legally require a license to practice midwifery. This means the nurse-midwife must register under an outdated non-professional midwife law. Seven states actually include specific statements in their medical practice acts

21

that midwifery is the practice of medicine. The majority of states include specific statements that anyone performing surgery is practicing medicine. Schools of nurse-midwifery are, therefore, obligated to assist their students to understand the legal impli- cations of nurse-midwifery practice. Every nurse-midwife should recognize the importance of working under the supervision of an obstetrician if she is practicing nurse-midwifery. As Bernice Anderson6 points out the procedure of transference of medical acts to nursing in the past has been:

(a) The doctor is willing for the nurse to do them. (b) Nurses are willing to assume the responsibility. (c) Nurses are adequately instructed as to how to do

them, their effect, danger points, and remedial activi- ties to be instituted.

Every nurse-midwife should know the wording of the medical and nursing practice acts and whether the state in which she is working requires a license to practice midwifery. If there is any possibility that her work may be viewed as providing economic competition for the physician, she would be wise to seek assist- ance in gaining legislative recognition through exceptions to the medical practice acts in that state. An alternative solution might be to secure a ruling from both the Board of Registration in Nursing and the Board of Registration in Medicine on whether or not nursemidwifery constitutes the unauthorized practice of medicine. Such a ruling would not be binding in a court but would be very strong evidence, in the unlikely event that the charge of unauthorized practice of medicine is brought against the nurse-midwife.

References 1. KINNEY, LUCIEN B.: Professional Standards: Through Licensure of Certi-

fication, Am. J . Nursing, 65: 118-121, October 1965. 2. Minutes of the Seventh Annual Meeting of the Am. Coll. Nurse-Mid-

wifery, New Pork, May 12,1962. Unpublished. 3. HARRIS, IANTHE, C.: (Letter) Division of Maternal and Childhealth Nurs-

ing Practice, Am. Nurses Assn., New York, August 11, 1967. 4. HERSHEY, NATHAN: Putting the Legal Aspects of Nurse-Midwifery in Per-

spective, BUZZ. Am. CoZZ. Nurse-Midwifery, VIII: 65-75, Fall 1963. 5. Derbyshire, R. C.: The Objective and Achievements of State Board

Licensure Examinations, JAMA, 198: 758-759, November 1%. 6. ANDERSON, BERNICE: What Does the Professional Nurse-Practitioner Need

to Know to Understand the Medico-Legal Aspects of Obstetrical and Gynecological Nursing. Read before Conference of Obstetric, Gynecologic & Neonatal Nursing, Dist. I and 11, ACOG, October 17, 1962.

22