Legal Developments on Stillbirths

1st February 2019

In brief
Francesca Beach examines proposed Coronial reform and other investigatory changes surrounding stillbirths

In detail
Suffering a stillbirth at full term is about the most devastating experience any parent can ever go through, even more so, perhaps, when it has arisen through avoidable mistakes at the time of delivery.

When we act for parents in these circumstances, beyond the trauma and grief they suffer, they will always want to find out exactly what went wrong and try to force changes on the health service so that the same mistakes are not repeated in the future.

This is where the quality of any investigation into what happened is so crucial.

The Coroner
Coroners have a legal duty to investigate any death that occurs in unnatural or unusual circumstances. They do not have the power to investigate stillbirths, however, as the law, as it stands, does not recognise the life of an unborn baby to be separate from that of its mother.

The Civil Partnerships, Marriages and Deaths (Registration Etc) Bill, introduced as a private members’ Bill, is currently working its way through Parliament with Government and cross party support. If it becomes law it will direct the Lord Chancellor to commission a report on extending the jurisdiction to stillbirths and to then amend the Coroners and Justice Act 2009 to bring in the necessary change.

SANDS, AvMA and other campaigning groups, have welcomed the proposed changes.

We do as well although the time that the process is taking is rather frustrating – the Bill was first introduced in Parliament 5 years ago.

Hopefully, it will now become law in the near future.

Allied with the duty of candour and the Coroner’s ability to conduct a thorough investigation and produce Reports to Prevent Future Deaths where appropriate this change has real potential as part of the drive to improve the performance of our maternity services

Hospital Investigations
Methods of neonatal death investigation were previously limited to that provided by the Hospital in which the death occurred.

The Healthcare Safety Investigation Branch has now been given the power to investigate every case of a stillbirth, neonatal death, suspected brain injury or maternal death notified to the Royal College of Obstetricians and Gynaecologists through the Every Baby Counts programme. This means that approximately 1,000 incidents will be investigated per year. This initiative began in April 2018 with a full national roll-out expected in March 2019.

Francesca Beach, Solicitor for Fairweathers Solicitors LLP, commented:

‘Our Stillbirth and neonatal death rates are falling but are still high compared with many other comparable developed countries across Europe. There is an acknowledgement now that we can and should do better.

These changes, as proposed and now in place, are encouraging. Coroner lead investigations are crucial in helping our clients to understand and try to come to terms with what happened to their baby and I don’t see why stillborn deaths should be treated differently in principle.

The Root Cause Analysis and Serious Untoward Incident Investigations conducted by Hospitals vary hugely in their legitimacy, quality and usefulness. At their worst, they can be terribly evasive and self – serving. There is always the feeling that they are ‘judging their own’ so the injection of a new level of independence into the process through the NHSB must also be a good thing in my view”

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