Overall, the NHS remains one of the safest healthcare systems in Western countries and giving birth in England is generally safe. However, it remains the case that avoidable errors within maternity still occur which can have devastating consequences for the child and family, together with the impact on the treating clinicians and the financial cost to the NHS.
In 2018/19 despite obstetric claims representing only 10% of clinical claims by number, they accounted for 50% of the total value of new claims reported. The Clinical Negligence Scheme for Trusts (CNST) maternity collect to meet the projected cost of obstetric payments to be made in 2019/20 is £718.7 million.
A key focus for us remains very much on maternity and how we can contribute to the delivery of safe maternity care.
From 1 April 2017 our members were required to report to us within 30 days all maternity incidents of potentially severe brain injury (in line with the criteria used by the Each Baby Counts programme of the Royal College of Obstetricians and Gynaecologists), namely all babies born at term (≥37 completed weeks of gestation), following labour, that had a potentially severe brain injury diagnosed in the first seven days of life. These are any babies that fall into the categories:
- Was diagnosed with grade III hypoxic ischaemic encephalopathy (HIE) or
- Was therapeutically cooled (active cooling only) or
- Had decreased central tone AND was comatose AND had seizures of any kind
The trust legal services department should be informed by clinical teams within 14 days that a notifiable severe brain injury incident has occurred. The trust legal services department should then report the incident to us within 30 days of the incident.
This early sight allows us to provide support to trusts and families and begin our own investigations at a much earlier stage.
The Early Notification scheme is a flagship for our strategic approach, bringing together all four strategic aims and providing holistic service to our members, using expertise from across the organisation.
Although in its early stages, the scheme is already reducing the time between incident and resolution, with an associated reduction in costs. Seeking notification of incidents means not only that we can proactively investigate liability, but also that trusts are encouraged to be open about incidents, be candid with families and maximise opportunities to learn from them. Our ambition is that this will help to break down any perception of defensiveness on the part of the NHS and ultimately that litigation should not be seen as a barrier to safety.
By investigating these incidents early, we are able to identify those in which, sadly, babies have suffered injury as a result of care that does not meet the expected standard. In appropriate cases we have been able to provide families with a written apology, offer financial support and practical advice on how to access support in caring for their child and provide support for the staff involved.
The added benefit of seeking 100% notification is the potential to build a robust database, which should provide valuable insight on what drives these incidents. We aim to analyse the data to facilitate learning and interventions, allowing good ideas to be shared.
In order to investigate, we need copies of the medical records and any other relevant documentation that we are able to access from the trust. Investigations are carried out with support from our legal and expert clinical advisors. Records are handled sensitively and securely, and any learning from the Early Notification process will be shared on an anonymised basis. To learn more about how we will use this information, please see our privacy notice.
The scheme is complemented by the offer of staff support for affected healthcare staff. Five years of cerebral palsy claims: a thematic review of NHS Resolution data explores the concept of staff being the ‘second victims’, often suffering guilt, fear, anxiety and depression in silence. Through our Early Notification work, our members tell us that managing discussions with families at emotional and difficult times is particularly challenging. We are working to provide our members with support, training and guidance on resolution of concerns at the point of incident.
In November 2017 the Secretary of State for Health and Social Care updated on progress with the National Maternity Safety Strategy, bringing forward the ambition to reduce the number of stillbirths, neonatal and maternal death and brain injuries by 50% to 2025 (previously 2030). Our work is integral to the ambition and our Early Notification scheme was referenced as providing a new route for families to access compensation, based on the current principles of liability. The updated strategy recognised the key role we have to play in helping to incentivise the delivery of best practice to improve safety, using the platform of CNST pricing.
AvMA (Action against medical accidents): AvMA (Action against medical accidents): an independent charity which offers free specialist advice to individuals and families who believe they have or may have been affected by avoidable harm in healthcare.
Please contact us if you would like to discuss the Early Notification scheme, mediation or peer support by emailing us at ENteam@resolution.nhs.uk or calling us on 0207 811 2678.
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