I was shocked to read today of an inquest into the death of a baby which has been halted by the Avon coroner. Criminal charges are said to be under consideration.

The baby died from brain damage caused by oxygen starvation five days after his birth at the Royal United Hospital in Bath. The labour ward co-ordinator told the inquest that she had questioned why the planned emergency caesarean section delivery had been delayed and that she recalled a conversation with the on-duty registrar who believed it should have gone ahead.

When asked why there was no record of the conversation in her statement, she told the coroner that it was “removed from my statement” by the Trust’s legal team. The coroner said the alleged removal of evidence by a solicitor was a “very serious matter” which could amount to perverting the course of justice.

This happens against the background of the so called “Duty of Candour” recently imposed on medical staff and the proposed government plan for a Rapid Resolution and Redress Compensation Scheme for Brain Injured Patients.

I just wonder how there can be public confidence in such a scheme when looking at the events at the Inquest reported today?

It can only be hoped this was an isolated event but my experience as a clinical negligence solicitor acting for claimants does not fill me with confidence. It is amazing how often claims are initially strongly defended only to have the Defence collapse late in the case. This is extremely wasteful of precious NHS resources and the blame is always put on the injured person’s lawyers for the wasted time and money!!

The aim should be a healthy mother and a healthy baby!

Almost everyday of my professional life, I see the very challenging consequences of mistakes made during childbirth and the consequences for the child, the mother, their family and for the health professionals involved.

And so two stories that have broken in the news in the past 24 hours are of particular concern.

The first is that pregnant women are apparently to be handed personal budgets of £3,000 by the NHS to buy the services of private midwives under plans to cut the number of hospital births (a link to the story in the @guardian is here: http://www.theguardian.com/society/2016/feb/23/national-maternity-review-calls-for-personal-care-budgets).

The second story is that half of hospital maternity units are not safe and mistrust between doctors and midwives is harming women and babies. This is according to a nationwide review ordered after 11 babies and a mother died at Morecambe Bay NHS Trust (a link to the Morecambe Bay Investigation reports is here: https://www.gov.uk/government/organisations/morecambe-bay-investigation).

At Morecambe Bay, turf wars between doctors and midwives were said to be promoting an agenda of normal birth “at all costs” and this led to failings being covered up. Dysfunctional relationships among staff are said to be damaging care elsewhere as well.

It is also suggested that pay-outs of compensation will be made on a “no fault” basis to parents in relation to stillbirths.

Shouldn’t there should be some joined up thinking here?

  1. The fundamental aim for NHS maternity services must be that there should be a healthy mother and a healthy baby. Other issues should fade into insignificance, including where and how the baby is born.
  2. There should be a strong focus on breaking down the turf wars said to exist between midwives and obstetricians. Women are entitled to full information about the relative benefits and risks of hospital and home birth. This advice should not be “contaminated” by mistrust and negative feelings between the two professions as I fear it often is now.  After all, both have the same aim – healthy mothers and healthy babies.
  3. I cannot see how providing midwives with a financial incentive to encourage home birth will help ensure mothers are provided with full and objective advice on the risks involved. Of course this must include explaining the likely consequences of delay in getting medical help if there is a need to transfer to hospital with a serious complication for mother or baby. Unlikely but it happens!
  4. Payment of compensation for stillbirth on a “no fault” basis is, no doubt, well-intentioned but completely misses the point in my view.

I have yet to meet a bereaved parent whose aim in court proceedings is to obtain damages. Their intentions are to firstly find out exactly why their baby died and secondly that lessons should be learnt as a result.

A civil claim is a means to fully investigate what happened.

Damages are not the point.  Once again, the Government appears to be failing expectant mothers and their babies.

In 2015, Jeremy Hunt said that there were probably about 1,000 “avoidable” deaths in the NHS every month. So there are about 12,000 deaths every year and this figure does not begin to include serious injuries to patients that fall short of being fatal!

There is a clear public interest in maintaining high standards of care in the NHS and accountability for mistakes. There are currently various ways to deal with untoward incidents that are far from perfect. However, even this flawed system looks to be under threat from current proposals by the government to introduce fixed fees for all claims worth up to £250,000.

Ways of investigating injuries and deaths in the NHS include:

  1. Criminal prosecution of clinicians perceived to have failed in their duties to the patient.

My view, for what it’s worth, is that this approach inhibits openness and produces a culture of covering up mistakes. It is generally unhelpful and I think it should be avoided in the absence ofevidence suggesting malicious intent

  1. Adopt the approach used in the airline industry. This means that openness and discussion are mandated and the aim is to put measures in place to minimise the chances of the mistake happening again

In my view this is the most constructive approach and would be the best system to strive for within the NHS.

  1. Full investigation via the current civil court system. This is a critically important safeguard underpinning the interests of patients. It allows investigation into incidents to be undertaken by independent judges. Investigations in the civil courts are rigorous and can shine a light into cases where healthcare is of dubious quality to find out what went wrong and enable lessons to be learnt. Indeed there is a track record of such investigations uncovering abuse and incompetence where it has occurred.

However this is about to change.

The use of the civil courts to investigate incidents within the NHS will be effectively prevented in the majority of cases by the government’s plan to introduce a “fixed costs” regime for clinical negligence cases worth up to £250,000 from October 2016. Under this, further costs are barred once an arbitrary fixed limit is reached.

The proposed limit of £250,000 will cover most injuries and deaths involving children, the elderly and disabled. Only the wealthy and those with maximum severity injury such as total paralysis and brain damage would be likely to fall outside this limit.

Only this week, Chris Ham, chief executive of the King’s Fund think tank, is quoted as saying that recent NHS Guidance “brings to an abrupt end the post Mid Staffs era when leaders of the NHS organisations saw failure to ensure safe levels of staffing as more serious than failure to balance budgets. Financial control is king”.

So it is more important than ever that the civil courts should continue to exercise a central role in safeguarding the interests of the vulnerable in our society and this must not be taken away by the proposed government reforms.

Accountability for mistakes and the government proposals for fixed costs for civil claims.

I read about the collapse of the criminal case against a NHS Trust involving the tragic death of teacher Frances Cappuccini last week with great sadness for her partner and family.

However there is another aspect to consider, namely whether criminal prosecution is the best way to hold doctors and hospitals to account. Is it in the public interest to have doctors and the medical profession living in fear of criminal prosecution? Will this encourage open consideration of mistakes and an opportunity to learn from them? I think not.

Jeremy Hunt said in 2015 that there were probably about 1,000 “avoidable” deaths in the NHS every month. That is about 12,000 deaths every year and does not even begin to include serious injuries to patients that fall short of being fatal!

There is a clear public interest in maintaining high standards of care in the NHS and accountability for mistakes but does criminal prosecution inhibit or encourage openness about mistakes? The airline industry has a much more constructive approach to mistakes when they happen – open discussion is mandated and the opportunity is taken to learn from what happened with a view to preventing similar incidents in the future.

It seems to me that criminal prosecution in medical cases is usually inappropriate except in really exceptional cases. Instead, the NHS should adopt a similar system to the airline industry and also encourage accountability and regulation of standards by the availability of proper investigation of claims through the civil court system.

Unfortunately, proper investigation via the current civil court system into the deaths and injuries of children, elderly and disabled people will be effectively prevented by the government’s plan to introduce a “fixed costs” regime for clinical negligence cases worth up to £250,000 from October 2016. Under this, further costs are barred once a fixed limit is reached.

So the future seems to be that mistakes will continue to happen and accountability to injured patents and bereaved families will be seriously damaged.

The Conservative Government is proposing to impose a fixed costs regime for all medical claims worth up to £100,000. This has been announced without any proper consultation or analysis of the likely effects on injured patients.

Such a move will inevitably lead to a situation where Defendants are encouraged to deny allegations of negligence, leaving injured patients to carry out investigations that would not be paid for even if negligence was proven, and their claim succeeded.

Why do I say this?

If costs are fixed, defendants will be given a clear incentive to deny responsibility for most claims and thus force injured patients to run up high costs proving what happened in their case. The costs incurred could then not be recovered as they would be fixed. This would mean many worthy claims being abandoned as they would become uneconomic to pursue.

Needless to say, this would provide a totally unfair balance between the interests of injured patients and the defendants.

IF the Government is intent on proceeding with a fixed costs regime (and I would argue that the current system of CFA funding works well and does not need replacing anyway), it is essential that there should be safeguards for injured patients put in place. I suggest that if the regime is to be introduced, the following obligations should be imposed on defendants:

  1. To investigate claims and produce a detailed response within a specified period of time – say 4 months.
  2. To either make full admissions in the response or provide clear reasons for denial
  3. In the event of denial, the detailed response should include the reports on liability/causation upon which the denial is based.
  4. Trial of the scheme for claims worth up to say £5,000 before it is extended to higher value claims

Failure to provide proper safeguards will result in a grossly unfair situation for injured patients and will of course impact disproportionately on the poor, disabled and disadvantaged.

A cap on spending on NHS agency staff has come into force in England on Monday 23 November 2015, which aims to save £1bn over the next three years.

These financial controls will help the NHS reduce agency staff bills which reportedly cost the NHS £3.3 billion last year, more than the cost of all that year’s 22 million Accident and Emergency (A&E) admissions combined.

Health Secretary Jeremy Hunt said:

“For too long staffing agencies have been able to rip off the NHS by charging extortionate hourly rates which cost billions of pounds a year and undermine staff working hard to deliver high-quality care. The tough new controls on spending that we’re putting in place will help the NHS improve continuity of care for patients and invest in the frontline – while putting an end to the days of unscrupulous companies charging up to £3,500 a shift for a doctor.”

Chief Inspector of Hospitals, Professor Sir Mike Richards, said:

“Introducing the cap on the amount trusts pay agencies for staff is the right thing to do. I welcome the fact that this is being phased in, allowing staff and trusts time to adjust and minimising any risks to patient safety. Close monitoring will allow us to assess the impact on individual trusts.CQCs will work closely with NHS Improvement to ensure ongoing patient safety.”

NHS trusts have reportedly been misusing agency staff as a solution to the new staffing levels required by Francis. The shadow health secretary, Andy Burnham, claims some of these rising costs can be attributed to staffing cuts in the last parliament and a fall in the number of nurse training places in England.

Since the Frances Inquiry report, a spotlight has been shone on safe staffing levels, particularly in hospitals. The National Institute of Health and Care Excellence (NICE) have since released a safe staffing guidance in England, which sets standards in staffing, stressed that the NHS needs a strong, readily available nursing workforce more than ever to continue to meet the guidelines and ensure patient safety.

Linda Levison, Head of Clinical Negligence at Pattinson & Brewer said:

“It is worrying that with the caps on agency and the latest Government budget news on the NHS, there has been no mention of increased funding for frontline staff. The combination in a reduction of staff due to agency fee caps, cuts on bursaries for student nurses and the reduction of foreign nurses, could spell disaster for our NHS if it is not married with an increased commitment to fund further staffing .”

Although this is not intended to be a punishment for agency staff, but for the private businesses making millions from the NHS system, we can only hope that our NHS does see devastating long term effects by clarifying how these savings will be spent on improving the service for patients.

In a settlement approved at the High court this morning our client received a lump sum of over £4.3 million and annual payments of £210,000 per annum from age 19 for life.

Women are currently routinely told that for most women, giving birth in stand alone midwifery units or at home is as safe as a traditional labour ward in a fully equipped hospital

This case however was a lesson in the dangers of the less formal care that women are being encouraged to rely on outside the hospital labour ward.

EGW was born on 6th August 2003 at a maternity unit staffed only by midwives. The unit was about 40 minutes drive from the nearest hospital equipped to deal with complications for mother or baby arising during or after delivery.

After birth, EGW suffered respiratory complications. In the midwife led unit this was not recognised quickly enough and an ambulance was not called until the baby suffered a major collapse and cardiac arrest. She suffered brain damage as a result. Liability was admitted before court proceedings were commenced.

EGW is now 12 years old and has cerebral palsy with severe physical disability but a largely preserved mental ability and life expectancy.

Under new National Institute for Health and Care Excellence (Nice) birthcare guidelines thousands more babies could be born without doctors being present..

Several consultant-led units have been closed and replaced with units run by midwives.

Linda Levison, head of Clinical Negligence at Pattinson and Brewer, stated, ” If the baby had been born in a fully equipped hospital, she would probably now have little or no disability.Mothers should have the opportunity to make informed choices.  They should be made aware that in the unlikely event of a serious complication, minutes can make all the difference between serious brain injury and an uninjured child.”

The Government backed organisation NICE (National Institute for Health and Care Excellence) has issued guidance that it may be safer to give birth at home or in a midwifery unit if you have a low risk pregnancy. I’m not sure you can ever say a pregnancy is low risk until the baby has been delivered.

I feel duty bound to issue a word of caution – if you give birth at home or in a stand alone unit, you are potentially a long way from medical help if something does go wrong.  In my experience, a few minutes can make a critical difference – any delay in getting medical help may make the difference between having a child who is healthy and a child who is seriously brain damaged.

A wise doctor once said to me that the statistical risk may be small but you are a person not a statistic.  If something goes wrong it can affect you 100%

The following article appeared in The Times last week – it is well worth a read:

Women encouraged to give birth at home