The Legal Landscape of Midwifery: Accountability, Negligence, and the Human Cost

Negligence in maternity care rarely arises from a single act. Instead, it often stems from systemic pressures, lapses in communication, and failures to uphold professional and regulatory standards. The aftermath can be devastating, families face lifelong consequences, and the emotional toll on both families and practitioners can be profound.

In this article Zainab Sarwar, Registered Midwife and Expert Witness with Somek & Associates will explore how current challenges in UK midwifery intersect with legal accountability, referencing the NMC Code, NICE guidance, and RCOG/RCM standards, all of which define the benchmark for expert witness opinions in clinical negligence litigation.

1. The Modern Midwifery Crisis: Legal and Professional Concerns

Across the UK, maternity services are under unprecedented strain. Reports from the Care Quality Commission (CQC) and Royal College of Midwives (RCM) repeatedly identify staffing shortages, burnout, and poor communication as persistent risks to safety.

From a legal standpoint, these pressures do not excuse failings in care, but they provide the context in which negligence often arises.

Under the NMC Code (2018), midwives have a clear duty to:

• Preserve safety. Act immediately when concerns arise.
• Practise effectively. Maintain competence and accurate record-keeping.
• Be open and honest. Applying the duty of candour when outcomes are poor.

When these standards are breached, even unintentionally, the law recognises a duty of care has been broken. As an expert witness, my role is to evaluate whether a reasonably competent midwife, working under similar circumstances and guided by these standards, would have acted differently.

2. When Communication Breaks Down

A frequent pattern in midwifery negligence cases is delayed escalation rather than overt error. Consider this scenario:

A woman in labour shows repeated variable decelerations on the CTG, but the midwife records them and delays contacting the obstetric team, intending to reassess later. The delay results in a hypoxic injury to the baby.

From a legal perspective, this demonstrates how failing to act promptly on abnormal findings shifts from an error in judgement into a breach of duty of care.

• Under the NMC Code (2018), midwives must “act without delay if you believe there is a risk to patient safety” and raise concerns immediately when necessary.
• NICE Guideline NG229 (2022) notes that “continuous electronic fetal monitoring is indicated for women at increased risk” and that non-reassuring features require urgent obstetric review.
• The RCOG/RCM Consensus Statement on Electronic Fetal Monitoring (2017) emphasises that midwives must recognise the limits of their competence, consult colleagues promptly, and ensure the safety of mother and baby.

In this scenario, choosing to “monitor and wait” breached these standards. Legally, the expert witness evaluates whether a reasonably competent midwife, in similar circumstances, would have escalated sooner.

For families, the outcome is not merely a delay; it is life-changing harm, with long-term consequences and loss of trust in maternity services.

3. The Impact on Families

Behind every negligence claim lies a story of loss, trauma, and unanswered questions. For parents, the psychological and emotional impact can be lifelong, whether through bereavement or the challenge of raising a child with cerebral palsy or other injuries.

The NHS Resolution Early Notification Scheme highlights that birth-related claims remain among the highest-cost areas of NHS litigation, both financially and in human terms. Families often describe feeling uninformed, unheard, and dismissed at the time of care.

Adherence to NMC professional standards could prevent many of these experiences. The Code requires midwives to:

• “Listen to people and respond to their preferences and concerns.”
• “Be open and candid with all service users when things go wrong.”

For families, transparency and communication are as vital as clinical outcomes. When care fails, clear explanations, apologies, and learning can mitigate trauma and rebuild trust, yet these are often absent in negligence cases.

4. Systemic Negligence vs Individual Accountability

In many expert witness reviews, the midwife’s actions cannot be separated from system failings. Staffing shortages, unclear escalation pathways, and weak leadership often underpin adverse outcomes.

Legally, both the individual practitioner and the employing trust are accountable. The trust bears vicarious liability for its employees, while the practitioner remains accountable to the NMC for professional standards.

Guidelines from RCOG and NICE exist to support safe, evidence-based care within those systems. Failure to implement or follow them may indicate organisational negligence, increasingly scrutinised in litigation following the Ockenden (2022) and Kirkup (2023) maternity reviews.

5. Learning and Prevention: The Way Forward

From an expert witness and governance perspective, key lessons include:

• Informed Consent and Documentation. Clear, contemporaneous records protect families and practitioners; lack of documentation is a common failing in negligence cases.
• Communication and Escalation. Midwives must feel empowered to escalate concerns without fear of reprimand.
• System-Level Accountability. Leadership and staffing models must enable midwives to meet obligations under the NMC Code.
• Compassionate Candour. Early, open communication and debriefing after poor outcomes can reduce litigation and rebuild trust.

The consequences of negligence in midwifery reach far beyond the courtroom. For families, it marks the start of a lifelong journey of loss or adaptation. For practitioners, it is a reminder that professional accountability is not about blame but about learning, safety, and integrity.

As a midwifery expert witness, my role is to bridge the legal and clinical worlds, interpreting standards of care set by the NMC and other bodies to ensure that future practice learns from past harm.

The goal is not merely to assign fault but to ensure every family receives safe, compassionate, and accountable care – the kind that leaves no one asking, “what if?”

References

1. Nursing and Midwifery Council (2018) The Code: Professional standards of practice and behaviour for nurses, midwives and nursing associates. London: NMC. Available at: https://www.nmc.org.uk/standards/code/ (Accessed: 3 November 2025).
2. National Institute for Health and Care Excellence (NICE) (2022) Fetal monitoring in labour (NG229). London: NICE. Available at: https://www.nice.org.uk/guidance/ng229 (Accessed: 3 November 2025).
3. Royal College of Obstetricians and Gynaecologists & Royal College of Midwives (2017) Consensus statement: Electronic fetal monitoring in labour. London: RCOG/RCM. Available at: https://pre.rcm.org.uk/media/5602/rcm-rcog-consensus-statement-on-efm.pdf (Accessed: 3 November 2025).
4. Ockenden, D. (2022) Independent Review of Maternity Services at Shrewsbury and Telford Hospital NHS Trust: Final Report. London: NHS England. Available at: https://www.ockendenmaternityreview.org.uk/ (Accessed: 3 November 2025).
5. Bolam v Friern Hospital Management Committee (1957) 1 WLR 582.
6. Bolitho v City and Hackney Health Authority (1997) 4 All ER 771.

Author Zainab Sarwar Registered Midwife and Expert Witness.