0370 270 6000

already registered?

Please sign in with your existing account details.

need to register?

Register to access exclusive content, sign up to receive our updates and personalise your experience on brownejacobson.com.

Privacy statement - Terms and conditions

maternity matters - the ongoing journey to achieve safer care

29 January 2019

2019 is set to be another significant year for NHS Trusts seeking to make improvements in maternity care and help realise the national maternity ambition to reduce by half the number of stillbirths, maternal and neonatal deaths and brain injuries that occur during or soon after birth by 2025.

In November 2018, the Royal College of Obstetricians and Gynaecologists (RCOG) published its Each Baby Counts (EBC) Progress Report into cases of stillbirth, early neonatal death and severe brain injury diagnosed in the first seven days of life. The findings are based on a review of 955 births in 2016 which met the eligibility criteria for the EBC programme and where there was sufficient information provided in the local reviews to draw conclusions about the quality of care. The report finds that different care might have made a difference to the outcome in 71% of cases and although it highlights that the reasons for poor outcomes are complex and multifactorial, it is significant that guidelines were not followed in 45% of these cases. Reasons for a departure from guidelines include a lack of recognition by staff of pathology, communication issues, workloads and staffing levels, local guidelines not being based on the best available evidence and gaps in training. This demonstrates the importance of ensuring staff are aware of local guidelines and understand that any decision to deviate should be justified and clearly documented.

The EBC report also highlights ongoing issues with the quality of local incident investigations. Although there have been significant improvements since the review of babies born in 2015, parental involvement remains inconsistent and still requires improvement. Indeed, in 22% of local investigations in 2016, the parents were neither involved nor made aware that an investigation was taking place.

Of course, the landscape for maternity investigations has changing dramatically over the last year or so. From April 2018, the Healthcare Safety Investigation Branch (HSIB) began to take on responsibility for investigating babies which fulfil the EBC criteria (and also direct or indirect maternal deaths in the perinatal period) replacing the local investigation process. The HSIB investigations focus on establishing the facts of what went wrong and why (looking at human and system contributory factors) rather than assigning blame but are designed to be shorter than Serious Incident reports, enabling families to know the facts more quickly. The aim is for HSIB to achieve national coverage of maternity investigations by March 2019. As of 11 January 2019, HSIB were active in 78 NHS Trusts with 206 independent safety investigations underway and as these reports are completed, it will be interesting to see how the HSIB reports differ from the local investigations previously undertaken by Trusts.

Alongside the HSIB investigation, Trusts are also required to notify NHS Resolution of all maternity incidents of potentially severe brain injury in line with the EBC criteria within 30 days under the Early Notification scheme. This is to enable any potential liability to be investigated proactively and reduce the time between incident and resolution, ensuring that families are provided with a meaningful apology and, in appropriate cases, compensation to help fund, amongst other things, the care needed for their child. Under the Early Notification scheme, Trusts are encouraged to be open about incidents and candid with families so that they are aware of the investigation and understand the basis upon which any admissions of liability are subsequently made and help prevent any further distress.

In light of the NHS Resolution Early Notification scheme and HSIB investigations, we anticipate that communication with families about the investigation process in these cases will have improved further. However, our experience is that there is varied practice by Trusts in terms of how they are approaching the conversations with families and in these circumstances, it is more vital than ever that front line-staff are provided with the skills needed to enable them to have the right conversations at the right time.

If you are interested in the issues raised in this article, you may also be interested in our maternity forum which we are running in partnership with NHS Resolution at our Birmingham office on 5 March 2019. The forum will provide Trusts with an opportunity to hear from NHS Resolution about:

  • The Early Notification scheme and, in particular, the approach Trusts need to adopt to manage these cases, including the conversations that should be had with families about the investigation process; and
  • The maternity incentive scheme and how you can improve performance in terms of meeting the 10 actions under the scheme to improve care and enable recovery of the contribution to the CNST maternity incentive fund and also a discretionary share of any unallocated funds.

If you would like further details about this event, please contact Amelia Newbold - 0115 908 4856 or amelia.newbold@brownejacobson.com

training and events


Re-imagining care - enabling integrated care systems in the digital era London office

Our first joint health tech seminar with leading industry thought leaders. This will be a practical session, sharing experience from across the NHS and beyond to inform options on how to improve services, break down silos and focus on population health outcomes.

View event


Mock Inquest Royal Derby Hospital, Uttoxeter Rd, Derby

It is important that NHS professionals understand their responsibility at inquests. This one day course provides essential knowledge, delivered by the Coroner for Derby and South Derbyshire and other legal experts, equipping delegates with the tools and insight needed to handle inquests confidently and compassionately.

View event

focus on...

Upcoming webinars

CQC and health & care regulatory update

We're pleased to invite you to our next CQC update.


Legal updates

STPs - what are the plans for the estate?

Now that STPs have been released, various questions and thoughts may arise for NHS trusts (and other public bodies) involved in estates and facilities.


Mental health, capacity and deprivation of liberty case law update - February 2019

In this video, Rebecca Fitzpatrick looks at some of the most leading cases in relation to the Mental Health Act and Deprivation of Liberty, including the Supreme Court’s important decisions of 'MM' and 'PJ' which consider the interaction between the Mental Health Act and deprivation of liberty in the community.


Hear from Carl May-Smith providing a CQC and health & care regulatory update - February 2019

Carl May-Smith will look at some of the most recent developments relating to the CQC and other areas of regulation affecting health & care providers.


The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

mailing list sign up

Select which mailings you would like to receive from us.

Sign up