Over the last decade, hundreds of families have come to the courts through routes they would rather not have used to get the answers they were owed. They had approached their hospitals without success and received neither explanation nor reassurance that such failures would not happen again. They had struggled to afford it. Clinical negligence cases having been largely excluded from the previous government’s legal aid programme. And they had tried elsewhere first, as previous reviews had failed them rather than providing the answers they were meant to provide. What these families had in common was that nobody within the NHS had given them the answers they sought, despite being asked.
What Ockenden and Kirkup actually found
While the reviews carried out by Donna Ockenden and Dr Bill Kirkup focussed upon the maternity services at Shrewsbury and East Kent respectively, they both served as bellwethers for the wider NHS. Where patterns of concealment had emerged, those in charge chose to investigate amongst themselves, with no outside scrutiny. The final report published in 2022 listed 15 actions to be taken immediately, nearly all of which related to improving communication with families, other areas of the NHS, or further up the leadership chain, in the case of failures of leadership.
Similarly, Kirkup’s review highlighted a culture of institutional blindness and the inability of organisations to see their own shortcomings. He blamed this on defensive specialism; a culture which prioritised the defence of the organisation over the learning from mistakes that might reduce future risks to patients.
That, perhaps, is the most direct argument against the notion that mistakes are inevitable in healthcare. If most adverse incidents are caused by preventable failures, then it is those failures which must be addressed, ideally, by changes to practice. And yet, as the reviews since have shown, the culture surrounding those failures often serves to conceal them.
The figures behind the culture
The figures published by the RCOG’s Each Baby Counts programme were also damning, if less directly related to organisational failures.
Between 2015 and 2017, 1,116 babies either died or suffered extremely serious injuries after birth at full term. In over 70% of cases, there was a reasonable chance that better care could have made a difference. Put another way, there was a substantial opportunity to prevent most of these deaths and injuries, and it was wasted.
That, perhaps, is the most direct argument against the notion that mistakes are inevitable in healthcare. If most adverse incidents are caused by preventable failures, then it is those failures which must be addressed – ideally, by changes to practice. And yet, as the reviews since have shown, the culture surrounding those failures often serves to conceal them.
The duty of candour exists, so why can’t families get the information and support they’re due?
The law currently requires providers to be open and honest with patients in the event of an incident and to apologise where appropriate. It is not a courtesy, but a duty. And yet for families who have suffered the loss of a baby or whose child has lifelong after-effects, the experience is often one of obstruction and a lack of transparency. Weeks may pass before a family receives even basic correspondence, let alone vital medical records. Reports are vague or deliberately limited by legal technicalities and meetings designed to express sympathy do little to address the facts of the matter.
The patient safety incident response framework (PSIRF) currently in development aims to replace this by enshrining a more comprehensive, transparent and family-friendly response to adverse incidents. The new framework, which came into force in September 2023, aims to replace a postcode lottery of reactive serious incident investigations with a consistent national framework designed to better meet the needs of patients, their carers and families. In practice, this has proved to be a mixed blessing at best, with many families now having to wait months or even years for a full response from their trust while PSIRF is rolled out.
The maternity and neonatal independent safety investigations (MNSI) carry a valuable function, but reports from them too often fall on deaf ears within the NHS. Their recommendations, when not ignored entirely, are often buried by trusts keen to move on from difficult topics. A third of all MNSI recommendations have been estimated to go unactioned.
Where the culture clashes with the courts
This is where the abstract theories on culture meet the families’ lived experience. When a trust fails them, they may consider Brain Injury at Birth Compensation, both for the practical support the family requires and the emotional loss they have suffered.
Beyond the arguments about whether that falls within the spirit of the duty of candour or not, what it often boils down to for parents is an opportunity to make a formal record of what has happened to their son or daughter. To be able to spend whatever time is needed reflecting upon this extraordinary chapter of their lives and how it fits with the rest of their child’s life.
The law allows for this to be achieved through a claim, and it is one of the reasons why families should consider making one. Statutorily speaking, the loss to the family is measured in terms of the child’s future prospects. However, no matter how clinical it is, that loss should be acknowledged and no parent’s pain should be minimised because a trust has chosen to challenge them at every opportunity.
The pillars of a claim: building a case
Any claim will be based upon four pillars of evidence, and if there is weakness in any one of them, there is a risk that the whole case will collapse. It is crucial for families to be aware of potential weaknesses and to ensure that they are addressed. Of these pillars, however, only the first will be in a family’s gift to demonstrate. The others will require the trust’s evidence to be disclosed for examination, and if this is not forthcoming, families will have to take steps to obtain it by other means.
Did the staff do what they should have done?
The first pillar is one of a substandard level of care. This is often obvious, though in some cases, it may be one of the weakest pillars. It should be supported by the other three pillars, although the burden of proof for a claimant may well relate solely to expert evidence on this pillar.
If they had done something different, would a different action have been likely to result in a different outcome?
The second pillar of a claim, meanwhile, is plausible causation. In most cases, this will also rely upon expert evidence, and there is a strong possibility that this will overlap substantially with the first pillar. Proving it will be a matter of demonstrating precisely how the failure in care contributed to the outcome.
And did that bad outcome lead to loss and damage?
Assuming causation can be demonstrated and the first two pillars are secure, however, a claim can still fail if it turns out that the injuries have minimal consequences or cause nothing more than occasional challenges, inconveniences or expenses to the family. If the injuries do not result in any losses or cause any damage, then a claim will fail. Crucially, therefore, to claim successfully, you must be able to demonstrate that the bad outcome caused or was a substantial contribution to your losses in the balance of probabilities.
Once medical records have been obtained, therefore, families need to ensure that they are in a position to demonstrate that the care provided fell below an acceptable standard and that this failure contributed to the outcome.
A solicitor looking into the claim will need to be satisfied that the claimant can demonstrate the “Four Principles of Medical Negligence”, namely that the defendant owed the claimant a duty of care, that duty of care was breached to the relevant standard, that care failure was the cause of injury and that injury resulted in damages. In the context of claims relating to birth injuries, it is accepted that a healthcare professional will owe a duty of care to their patient. As such, the solicitor making the review will be looking at the likelihood that the standards of care fell below those of a competent professional. By law, this can only be demonstrated through independent expert evidence.
Cerebral palsy in a child born with HIE is most frequently diagnosed when that child is no longer an infant. This is the condition most likely to require lifelong care and treatment and specialist equipment. In practice, there is less of a requirement to demonstrate damage, since the injuries rarely fail to have consequences for the child’s life. Instead, it is a matter of demonstrating the likely impact on that child’s life.
Why the financial value of a claim isn’t about the injury
This is a common error amongst non-experts, and it fails to take into account the full picture. For any claim made, the financial value of the settlement is as much about the requirements for the future as it is about the injury itself. Therapy, equipment, home adaptations and support are all factors which will add to a settlement’s value and should be taken into account in any assessment of the worth of a claim. Whether it will be necessary for five years or fifty years from the date of the incident, it will be a factor in any settlement, and therefore vital to any assessment of the worth of a claim.
Interim payments: funding care while the case is ongoing
Claims for serious birth injuries can last for many years, and children still require the specialist equipment, therapy and care throughout that period. NHS Resolution, the organisation managing claims against the NHS, has policies of interim payments for precisely this reason. Where a claim is likely to succeed, families can ask for funding for specialist equipment, therapy and care to be met on an interim basis. This means they can be prepared for the long road ahead without waiting for the litigation to conclude.
This should be a priority for families in certain circumstances, not least where the child has suffered an HIE and is likely to need significant care. The ability to begin specialist interventions earlier can have significant benefits in the long run. It can, therefore, be difficult for families and children if a solicitor advises waiting for the conclusion of a litigation process which could last for years when the needs of the child are no less urgent.
The scale of the problem, in numbers
NHS Resolution’s latest (2023/24) annual report shows that maternity claims accounted for roughly 10% of all clinical negligence claims brought against the NHS, but over 50% of the value of all clinical negligence payments made. This highlights the disproportionate impact that birth-related injuries have upon families, both in terms of the harm to the families involved and the financial impact upon the NHS. It also illustrates why the Clinical Negligence Scheme for Trusts (CNST), which provides cover for NHS trusts in clinical negligence claims, faces such a huge funding shortfall. It is further evidence that money spent on litigation is money that could have been spent on preventative measures, potentially reducing the number of such claims in the first place.
Preventative care is clearly to be preferred to managing the consequences of mistakes that have already been made. However, it cannot compensate for the loss that has already occurred, nor does it assist with the costs of supporting those injured.
Transparency and accountability are not mutually exclusive
The lessons from Ockenden, Kirkup and Each Baby Counts can be seen to apply across the NHS. In particular, families who seek answers through the courts cannot get them quickly enough through internal procedures. When the NHS talks about transparency, it rarely talks about families. The failures of the NHS to respond to families have frequently resulted in the families seeking redress through the courts, which should be an absolute last resort, not a routine occurrence.