Improving the safety of maternity care in the National Health Service (NHS) and other medico-legal matters

By John Tingle

There are some very interesting Government patient safety and access to justice policy development activities currently going on in England.

Maternity Services

In maternity services, there is a clear recognition by Government that safety is inconsistent and that there is significant scope for improvement. Our still birth rates are amongst the highest in Europe despite the National Health Service (NHS) making advances in patient safety in this area. In the National Maternity Review we are reminded that half of the Care Quality Commission (CQC) inspections of maternity services result in safety assessments that are either ‘inadequate’ (7%) or ‘requires improvement (41%) (page 22). The CQC is the independent regulator of health and social care in England.

In a speech to the Royal College of Obstetricians and Gynaecologists (RCOG) in London, the Secretary of State for Health, 17th October, 2016, Jeremy Hunt laid out plans to make giving birth safer, including maternity safety funding and other related matters. The Government’s ambition is to halve neonatal death, stillbirth, maternal death and brain injuries caused during or shortly after labour by 2030 and a series of measures were  launched. There will be a £250,000 maternity safety innovation fund and a new national Maternity and Neonatal Health Quality Improvement Programme. New maternity ratings will also be published to help improve transparency, raise standards and will give families better information about the quality of local maternity services.

A safe space

Improvement measures also  include the development of a ‘safe space’ to allow clinicians to speak openly about things that go wrong without fear that information they disclose may be used against them in court or professional conduct hearings. A Government consultation report on this has now been published

Rapid resolution and redress (RRR) scheme for birth injuries

There will be a Government consultation paper published on developing a new rapid resolution and redress (RRR) scheme for birth injuries. The scheme would be similar to the administrative compensation model in place in Sweden. The scheme would pay out for birth injuries without families needing to go to court and prove negligence. The threat of branding individual clinicians negligent would be removed. This in itself is controversial as arguably a tort, fault based compensation recovery system does at least function as a useful mechanism of health carer accountability and can operate to deter bad practice. Clinicians do not want to appear in court and be branded as ‘negligent’ so hopefully,the argument goes,they will practice carefully to avoid this. Under a (RRR) scheme we may lose this apparent and fundamental advantage of the present tort, fault based system. The hope is also that this proposal will lead to more effective health care adverse incident investigation. Eligible families for the (RRR) scheme will have the option of joining the scheme, it is not compulsory. The scheme is seen as being a quicker option than going to court with the average time families have to wait for resolution of a case being 11.5 years.

The (RRR) scheme has been broadly welcomed by the charity for patient safety and justice, Action against Medical Accidents (AvMA)  but they highlight a number of concerns such as a proposed limit of compensation to a pre-determined capped amount regardless of the child’s actual needs which was mentioned in The National Maternity Review report which put forward the proposal. AvMA says the scheme ‘must not short change brain damaged children’. Sweden has seen a 50 per cent reduction in avoidable serious birth injuries in the last 6-7 years and the scheme also has cemented good relations between the healthcare professionals involved in maternity care. This leads to better implementation of patient safety policies, tools and practices.

The new Healthcare Safety Investigation Branch

The new Healthcare Safety Investigation Branch will also be up and running from April 2017.

Litigation costs control

It is also a time of change for medical malpractice lawyers who will be seeing on the horizon the Government introducing fixed recoverable costs for claimant solicitors for some clinical negligence claims. There are claims that Medical legal costs ‘are excessive and should be capped’.