In  March 2015, Bill Kirkup published his report on avoidable harm in maternity services at the Morecambe Bay NHS Trust. His introduction carried a warning: “It is vital that the lessons, now plain to see, are learnt… by other Trusts, which must not believe that ‘it could not happen here.’”

With the publication last year of the Ockenden report, we now know that one of those other Trusts was the Shrewsbury and Telford NHS Hospital Trust. She stated; “For more than two decades they have tried to raise concerns but were brushed aside, ignored and not listened to.” Ockenden clearly feels a deep sympathy for the families’ pain and she commended their courage.

The Healthcare Safety Investigation Branch (HSIB), the independent investigator for patient safety in England, began to operate from April 2016, after an announcement by the Secretary of State in July 2015. It offers support and guidance to NHS organisations for investigations and carry out certain investigations itself.

In 2018, it became responsible for the investigation of maternity cases that involve intrapartum stillbirth, early neonatal deaths or severe brain injury. The intention was to improve England’s poor record of baby and maternal deaths and injuries. When Jeremy Hunt announced that HSIB would investigate around 1,000 maternity related clinical incidents a year, rather than the NHS Trusts at which these incidents occurred due to potential conflict of interests, the emphasis was that HSIB would conduct a “thorough learning focused investigation”.

However, following an investigation by Channel 4 News, the concern is that 5 years on, the investigation processed is flawed, and significant opportunities to improve maternity care in England have been missed. HSIB has “had little impact on baby deaths and harms”.

Unfortunately, HSIB does not have the legal power to force Trusts to put its recommendations into action. There is also concern that its recommendations do not go far enough. When parents’ and families’ memories have differed to the account set out in the medical records, HSIB reports have either sided with the treating clinicians or have otherwise stated “we cannot reconcile these differing accounts”. The concern is that if clinicians’ accounts are accepted without question over and above the parents’ or families’ recollections, unless admissions of poor care are made, opportunities to learn and improve are being missed and the HSIB have not changed the status quo after all.

Channel 4 News made a Freedom of Information Request asking “How many maternity incidents met the criteria for HSIB investigation?” The response they received stated that between 2019 and April 2023, the number of referrals to HSIB in connection with neonatal brain injury were down by 19%, referrals in connection with neonatal death were down by 21%, however, referrals in connection with stillbirth increased by 63%. HSIB reportedly stated that its maternity investigation programme had “a positive impact in the areas it could influence”.

On the basis of the Channel 4 investigation, it appears clear that the maternity branch of HSIB has not been successful in improving maternity care. It’s been reported that staff at HSIB were concerned in November 2021 that there was a “high potential for harm” and suggested that some or all investigations into maternity care should be put on hold, stating that “a seriously flawed investigation is worse than no investigation”. They recognised that there was ongoing potential for harm to staff, parents and families in that:

  • Parents and families may not be provided with an accurate picture of the causes of adverse events
  • Clinical issues are going unrecognised and unaddressed meaning that organisations and their staff are missing important opportunities to learn and improve the care they provide

Parents and family are understandably frustrated that an HSIB investigation has limited value because they have relied upon HSIB investigations to find the truth and make sure that lessons are learned only to find that their account of events are not recognised or that previous recommendations have resulted in no action being taken. This means that errors have been repeated and further tragic deaths and injuries have occurred.

You can watch the Channel 4 TV 2-part report here.

RHL Solicitors’s medical negligence solicitors act for the parents of stillborn and brain injured babies, conducting thorough and rigorous clinical negligence investigations with the intention of establishing liability and recovering compensation.   Our shared expert’s reports make a difference to future care in maternity services. To find out more, please telephone our expert lawyers on 0344 7768328 and speak to a member of our specialist maternity and birth injury team.