Government announces Lasting Power of Attorney “revamp”
An independent review, chaired by Conservative peer, Baroness Julia Cumberlege and commissioned by NHS England has published proposals which it states are “designed to make care safer and give women greater control and more choices”.
The review stems from the report of Dr Bill Kirkup CBE in March 2015, which examined reported serious failings in maternity services at Morecambe Bay NHS Trust. His report noted that dysfunctional professional culture directly impacts on the quality of services, and at one hospital, the report found that there were: “unchallenged failures in clinical competence; poor relationships between obstetricians, paediatricians and midwives; a culture of midwives promoting normal childbirth ‘at any cost’; failures of risk assessment and care planning; failure to escalate concerns; and a failure to investigate adverse incidents and learn lessons”.
Anyone would agree that this is a worrying list of failures and that action must be taken to prevent them from occurring in any other hospital. As clinical negligence lawyers, my colleagues and I hear from clients that these failures continue to take place in hospitals across England and Wales, and while the independent review published yesterday has many laudable aims, it remains to be seen whether the actions proposed in that document are enough to change this situation.
Of particular note is that the review recommends that women have their own individual personal maternity care budget. These budgets would be worth “at least £3,000”, given that this is apparently what a low risk “standard” birth costs the NHS. The review argues use of this budget would allow women to pick and choose the care which they receive.
Examples of what women could use this budget for could perhaps be items such as the use of a birthing pool, extra breastfeeding support after the birth or having a home birth itself. The review has clarified that if a woman was to require urgent care stemming from complications and she had already “spent” her budget, she would receive care regardless of this.
My concern is that the proposed introduction of a NHS personal maternity care budget may detract from focussing on providing care and choice to every pregnant women in the NHS system and instead clog the system and referrals process with bureaucracy. It remains unclear how this “personal budget” will be accounted for; there is no new funding injection for maternity services being proposed, when this appears to be desperately needed.
Cathy Warwick, The Chief Executive of the Royal College of Midwives stated in October last year that the current system was “creaking at the seams”, in light of a study which showed that some 42% of units shut down temporarily in the past year. Surely a “personal budget” system, which in theory would allow every pregnant woman in England to “choose” one-to-one midwifery care will simply be unable to cope with increased demand? I am unclear as to what the review seeks to add to maternity services provision. The current status quo is that pregnant women are supposed to have a choice about their ante-natal and post natal care, and the manner in which they deliver their baby. I am unsure how directing funding away from core funds to enable a “personal budget” will assist a system which is “creaking at the seams”.
The proposals raise more questions for me than they answer. Will the proposals mean the opening of the floodgates and pave the way for women to make “top-up” payments if they go over-budget? In other words, is this creeping privatisation of the NHS? If there is to be a push for “choice” and opening up the avenue of home births to more women, there is an onus on the NHS to provide women with the full facts; and the full facts remain that the safety of home births versus hospital births remains contested (as you can read in Sharon Burkill’s previous blog here. What is certain, is that it is cheaper for the NHS to provide home births than hospital led deliveries.
It was with familiarity and I admit, a modicum of frustration that I read Baroness Cumberlege’s statement that: “no family should wait for years as the rights and wrongs of their tragedy are fought over by lawyers”. I couldn’t agree more, and that is why it is somewhat galling to see the resolution of cases being delayed time and time again due to delays by NHS Trusts and the NHSLA in admitting liability for cases concerning poor maternity care, particularly those cases involving the death of a baby. We are faced frequently with continued denials of liability in the face of supportive evidence and these continued denials force the escalation of costs, and increase the distress of grieving parents.
Baroness Cumberlege notes that “£560 million is spent annually on compensating families for negligence during maternity care……..when things do go wrong, the fear of litigation can prevent staff from being open about their mistakes and learning from them”. I would respectfully contend that a large amount of these costs are surely accrued by illogical denials of liability from the NHSLA, which only serve to increase costs which are ultimately utilising public money. In addition, the fear of litigation should never prevent staff from being open about mistakes and learning from them, which is the aim of the duty of candour (which you can read more about here).
When we speak to families who have experienced difficulties with maternity care, often resulting in the death of their child, on the whole their wishes are simple. They wish to know what happened, why it happened, and who should be held accountable. What is needed is a cultural shift, and I am not sure how a £3,000 “personal care budget” can change the problems that we see in the maternity care system.
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