New laws to investigate infant death are only the first step

Posted on: November 29th, 2017

Where there are 1,000 cases of unexpected baby deaths each year it’s certainly time the government considered the options available to parents found in the devastating position. Currently, the only option open to most parents where death of injury occurs is to instruct lawyers or rely on the NHS complaints process.

Most often the results of any investigation are not made available until long after the birth and seem far removed from the circumstances of the delivery. This does not then assist the NHS in finding immediate problems that could reduce the risks to other parents.

Jeremy Hunt has announced all unexplained cases of serious harm or death will now be independently investigated. The Healthcare Safety Investigations Branch, set up earlier this year, will be tasked with reviewing cases. This is hoped to assist with the recruitment of midwives and the growing cost of this shortage in the NHS.

Unveiling the new plans, Mr Hunt said he hoped this would help the NHS learn from mistakes as part of the drive to halve the overall rate of stillbirths, deaths and brain injuries by 2025 – five years earlier than previously announced.

There has been a NHS-backed review of deaths in cases where the baby was seemingly healthy as labour began, which found that in 80% of cases, improvements in care could have prevented the death.

As lawyers specialising in birth injury, we see only the worst stories and always begin our investigations knowing that there has been a poor outcome. We know that many births remain uncomplicated and know that overall the service is safe for many.

The problem arises in that where birth complications remain rare, staff are not always able to see when a labour is starting to go wrong. Investigating each adverse case in hindsight and using this as a training tool in labour wards will be key to reducing the overall number of still births and injuries.

Unfortunately, all investigations start as a result of “blame” having to be established. The NHS litigations teams are prudent in denying any wrongdoing presumably to reduce overall payouts for negligence. Any damages paid for severe birth injuries are always significant, but also justified, as they are for the long term care of someone who has suffered an injury.

Mr Hunt has stated he would get the new Healthcare Safety Investigations Branch to automatically look at all cases of potentially avoidable harm. This will be welcomed, provided the Branch is truly “independent”.

We investigate cases at length and in doing so, we instruct a multitude of experts. It’s common to have up to 5 medical experts just to consider if a birth injury was negligent and caused damage. It is an expensive exercise, but that’s what is needed to prove in a court that the injury happened. The NHS will equally have the same number of experts in court trying to argue that the opposite should have happened. There is still great economic pressure on the NHS to avoid claims where possible. Although this new Healthcare Safety Investigations Branch is set up to make investigations, what is not stated is whether there will be any compensation for those severely affected by life long injuries?

Mr Hunt said he hoped the move would give parents quick answers and ensure learning was shared across the NHS, which in turn would help curb the growing bill for settling clinical negligence claims relating to babies with brain injuries. If this happens, and leads to more admissions being made, the legal bills could be less. However, I would be surprised if this is followed with a system for compensation which would provide sufficiently for those most vulnerable people with severe disabilities.

A significant change in the law would be needed to reduce compensation paid which would mean the public have fewer rights against the NHS, not more. We welcome early investigation, and the findings being used to avoid other injuries, but if the compensation laws are changed, any patient seeking redress against the NHS will have far less access to justice. With social care provision constantly under attack from austerity, people with severe disabilities will be far worse off.

So by all means, please investigate all matters fully and openly, but please then consider the next step of fully compensating those that need assistance the most.

Douglas Miller is a Partner in the Clinical Negligence team at Coffin Mew.