Lawyers must fix the problems with gagging orders before it is too late
Today, the Health Secretary announced “a new maternity strategy to reduce the number of stillbirths”. This strategy centres on the investigation of still birth deaths by the new Healthcare Safety Investigations Branch but it also included a planned change in the law to allow coroners to investigate full term still birth deaths. Currently there is no requirement for a doctor to refer a still birth death to the local coroner.
Today’s announcements come amid on-going concerns about the numbers of babies who have died in the UK due to problems in labour and birth. Although the rates have decreased over the last 25 years due to improvements in care, there are still concerns about the number of these deaths that are preventable and that reflect mistakes made by staff. A recent report by MBRACE-UK included the finding that in 8 out of 10 deaths different care might have saved the baby’s life.
Recently the Chief Coroner voiced concerns about the inadequacy of the law in England and Wales on referrals of still born deaths to coroners. There is no legal requirement for doctors to refer the death of a still born baby to the local coroner which is a lost opportunity to improve the safety of maternity care. In his last Annual Report he highlighted the lack of statutory or other clear criteria for medical practitioners reporting deaths to coroners. This ‘lacuna in the law’, as he described it, is an obvious cause of the inconsistent policies developed by senior coroners for reporting deaths locally. Some local coroners request doctors to report all still births and all child deaths but there is no legal basis for this approach and it is not uniformly adopted. This means that coroners are not routinely investigating still birth deaths and so the reasons why babies die in unexplained circumstances are not being discovered and lessons are not being learnt. Not only does an inquest bring to light the causes of deaths but it also requires coroners to make a formal Report to Prevent Future Deaths where concerns are identified. Such a report is public and sent to those with the power to make changes highlighting the practical steps that need to be taken with the intention of improving public health, welfare and safety.
Section 18 of the Coroners and Justice Act 2009 enabled the Lord Chancellor to make regulations requiring medical practitioners to refer deaths to senior coroners. However, before doing so, the Lord Chancellor was required to consult the Secretary of State for Health and the Chief CoronerAnchor. The Chief Coroner reported that discussion had commenced on considering whether stillbirths/near term deaths should be reportable cases but that any changes would be likely to require primary legislation. Today’s announcement in the House of Commons promises that these changes will be made after further consultation with the Ministry of Justice. The Health Secretary suggested in his response to questions from the House that this consultation might include considering whether or not “specialist” coroners will be needed in order to properly investigate these types of death.
 Para. 120 ibid.
 Paragraph 7, Schedule 5 Coroners and Justice Act 2009
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