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NHS guidance which often forces pregnant women who test positive with coronavirus to give birth alone is legally wrong, lawyers warned.
Official guidance drawn up by NHS England states that if a woman tests positive for Covid, their husband or partner must self-isolate at home and is not allowed to support them during childbirth.
But campaigners and lawyers told The Independent their guidance for visitor restrictions in maternity services during the pandemic is legally inaccurate as people have the “right to private and family life” under Article Eight of the Human Rights Act.
Maria Booker, of Birthrights, a leading maternity care charity, said: “The NHS oversimplifies the government’s self-isolating Covid regulations and tells partners they have to stay at home. But this hasn’t taken into account the legal nuance that government rules state people can leave home if they have a reasonable excuse.
“A woman being anxious about giving birth alone, which most people will be, is likely to legally constitute as a reasonable excuse.
“It is completely inhumane for a woman to give birth without a partner or supporter. It is even scarier giving birth alone you are Covid positive. It is terrifying. Nobody should give birth alone and that includes Covid positive women.”
Birthrights has been advised by two prestigious law firms, Doughty Street Chambers and Leigh Day, that NHS England guidance around women who test positive with Covid-19 is legally wrong.
Ms Booker said the charity is considering taking legal action against trusts where positive Covid women are being forced to give birth alone if the government does not explicitly change the guidelines on the issue. There is a great deal of variance in how the trusts approach the issue, she added.
During the course of the pandemic, coronavirus upheaval has resulted in women attending scans alone, giving birth alone without a partner, changing their childbirth plans and having less access to pain relief.
While new guidance sent to trusts in England in December stipulated pregnant women should be permitted to have one person accompanying them during scans, appointments, labour and actually giving birth, the growing severity of the pandemic means many trusts are not following the recommendations.
Sophie Wells, a solicitor at Leigh Day, which has a leading public law team, told The Independent: “We know of many heartbreaking stories of mothers being alone in hospital when told their baby has no heartbeat, when they are miscarrying, whilst in labour and whilst trying to care for a newborn, in some cases a very ill newborn.
“We believe that the current regulations already allow for flexibility in these sorts of circumstances. However, it is clear that an explicit exemption urgently needs to be added to the Self-Isolation Regulations so that birth partners and parents of sick babies have clarity about the circumstances in which they can leave home whilst isolating.”
Christina Breaden was recently blocked from having her husband or a friend or relative accompany her at Guy’s and St Thomas’ Trust in central London after testing positive with coronavirus.
The 33-year-old, who gave birth to her first child at the beginning of January, told The Independent the four days she spent in hospital alone after giving birth was the hardest thing she has experienced in her life.
Ms Breaden added: “We went into the hospital because my baby was in breach. We went in to see if we could have him turned. They did a scan and saw my waters had gone so we needed to get the baby out.
“I had to have the baby within two days. I then tested for Covid but had no symptoms. After a sleepless night because I was anxious, I got a text saying I was positive with Covid the next morning.”
Ms Breaden, who works as a technology consultant, said she was taken to an empty floor in hospital and told she would have to give birth alone – explaining her husband could not accompany her to hear the distressing news due to her positive test result.
She said she shared her diagnosis of anxiety with the doctors as well as sending NHS England and World Health Organisation guidance saying pregnant women who have coronavirus can have another person with them during birth if their husband or partner is prohibited but she was still blocked from having a friend or relative.
Ms Breaden added: “I then had to wait for seven hours while they did monitoring. It was tough. I had this horrible news and I was alone. My husband dropped me off the next day and I didn’t see him for four days. It was scary. It was sad.
“I was having a caesarean and I was awake and alone. It was my first time giving birth and I had never had major surgery. I was shaking and crying. It was this moment me and my husband dreamed of having together. We will never get that moment back. I cry every time I think about my birth experience rather than smile.”
Ms Breaden, who gave birth to a boy, said it was really difficult being alone after labour with nobody there to support her – adding that it was tough having to care for her newborn while in pain and being the “most tired” she had ever been in her “entire life” after having had major abdominal surgery.
She spent four days in hospital after giving birth and received a negative Covid test result in that time yet was still blocked from having her husband or anyone else visit, she said.
Ms Breaden said it angered her greatly that weddings are still permitted with eight people yet woman are being barred from having a birthing partner during the “most vulnerable point” in their life.
She added: “At what point does the care of the patient outweigh the draconian policies which seem to disproportionately impact women”.
Birthrights wrote to Guy’s and St Thomas’ Trust criticising them about her ordeal and the trust has assured the pregnancy charity they have now officially changed their policy.
An NHS spokesperson said: “Guidance for maternity services already makes clear that women should have access to support from someone at appointments at all stages of their maternity journey and we have asked all hospitals to facilitate this.
“At the same time as making sure women are accompanied, it is a priority to prevent and control Covid-19 infection and keep women and staff safe and trusts need to overcome any barriers to this, including making use of testing capacity from the national Test and Trace programme.”
The Independent has contacted a representative for the Department of Health for comment.
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