Who’d be a Whistle Blower?
The East Kent NHS Foundation Trust manages five different hospitals. Today's BBC article startlingly sets out that from as long ago as 2015 the Royal College of Obstetricians and Gynaecologists were reviewing maternity care, amid "concerns over the working culture". The outcome of that review “found poor team working in the unit, a number of consultants operating as they saw fit….and out of date clinical guidelines”. The BBC article went on to say that Consultants on the Maternity Unit failed to carry out labour ward rounds, review women, make plans of care or attend out of hours when requested and, rather alarmingly, rarely attending training on the use of CTG machines (the CTG, amongst other things records the heart rate of the baby). Staff told the review they believed that maternity services were not a priority at Board level and there was little point in raising concerns as no action would be taken by the Trust.
Between 2014 and 2017 the number of stillbirths and the number of babies who died within the first 28 days of life at the Trust were higher than the UK average. Doctors at the Trust have appeared at a number of Inquests and some doctors reported to the General Medical Council regarding their fitness to practice. The Independent reported that between 2014 and 2018 there were 68 baby deaths for children under 28 days old and 143 stillbirths. The CQC is investigating events and has stated that it has “a legal duty to investigate and, where appropriate, prosecute….for a failure to provide safe care…resulting in avoidable harm…”. We will of course await the outcome of the investigation from the CGC but note the parallels with what happened at Shrewsbury and Telford Hospitals over many years. Whilst the Trust has apologised, saying it has "not always provided the right standard of care” we must ask why, in an age where so much information is available about managing pregnancy that the number of babies who die each year is so high.
Sadly, the Royal College of Obstetrics and Midwives report that in the UK, each year over 1000 babies die or are left with severe brain injury because something has gone wrong during labour. After losing a baby, there are so many things that parents will need to do and it can be very confusing. Parliament has today announced the passing of a bill that gives parents two weeks of statutory bereavement leave in the event of losing a child. When I read about that this morning, campaigners for the law stated that more time was needed for families in this situation to deal with their grief as well as vast amount of administrative paperwork. If the death of a baby has been sudden or unexpected there may also be a hospital investigation and an Inquest to deal with. It can be a very confusing time because many organisations start to get involved and it can feel difficult to ensure that your voice as the parents is properly heard. Below is a very brief guide regarding some of the ‘next steps’ you might hear from the hospital. Please call us for a detailed discussion regarding any of these issues.
You are free to make a complaint about the care the mother and baby received in the hospital. The NHS has a Complaints Procedure which must be followed when a complaint is received. More details about how to complain can be found here.
If you do make a compliant, the outcome is likely to be that you are told that an HSIB investigation is starting in lieu of the complaint investigation and you will be asked if you want to particulate in the HSIB process. Since April 2018 HSIB have been responsible for investigating the majority of maternity incidents to include stillbirths (after 37 weeks) and the loss of babies in labour or in the first few weeks of life. The purpose of HSIB is to “achieve rapid learning and improvement in maternity services, and to identify common themes that offer opportunity for system-wide change” The HSIB process can take several months and the result should be a report setting out what happened having reviewed the medical records and interviewed staff to take statements. You will be given the opportunity to review the report and add your comments before it is finalised.
Once the HSIB report is finalised you are likely to be invited to attend a meeting at the hospital to discuss what happened, be offered a formal apology (if this has not already been given) and to answer any questions you might have. Attendance at the meeting is entirely optional. The Trust is responsible for actioning any safety recommendations made in the HSIB report and at the meeting, the Trust may tell you what is being done to prevent a similar tragic event occurring again.
Obviously the stillbirth of a baby is a distressing experience for parents and families and bereaved parents will want to find out why their baby was not born alive. In England and Wales the Coronor is not able to investigate deaths where a baby “did not have life independent of the mother” and so if a baby died in pregnancy or showed no signs of life at the moment he or she was born, the death will not be reported to the Coroner.
Instead, the causes of stillbirth are reviewed via investigations commissioned by NHS providers. As mentioned, since April 2018, HSIB has begun to investigate certain stillbirths. HSIB is independent of the NHS and funded by the Department for Health and Social Care (DHSC) via NHS Improvement but there has been criticism that HSIB are not independent enough, that the process lacks the transparency needed and there is a lack of confidence that lessons are learned and practice improvements implemented. Therefore, a consultation was opened last year to bring stillborn babies within the remit of the Coroner to ensure an independent investigation is carried out and the parents receive a trusted account of why their baby was stillborn. We are awaiting the outcome of the consultation.
Other than stillbirths, the death of a baby may well be reported to the Coroner who will make a decision on whether an Inquest should be opened. Once opened it will be adjourned to allow the Coroner to gather all the relevant evidence. In my experience it is likely to take a least a year before the formal Inquest then takes place.
The short answer is as soon as possible and whenever you are ready to. Your solicitor can guide you through all of the above steps and tell you the right time for the solicitor to get involved, what a claim will involve and the potential value of proceeding with a claim.
Our team at Kingsley Napley has investigated many cases involving stillbirths, babies who pass away shortly after birth and those born with injuries as a result of childbirth. Please get in touch if you would like some advice on your options and how we can help you. You can contact one of our Medical Negligence & Personal Injury lawyers on 020 7814 1200, or email us at firstname.lastname@example.org.
Punam is a Senior Associate in the Clinical Negligence and Personal Injury Department. She deals with all aspects of medical negligence claims, including birth injury and acquired brain injury claims, claims relating to fatal accidents, those involving gynaecological injuries following childbirth and those due to the delayed diagnosis of cancer.
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